author: Buchanan, J. Merrick, C. J.,

text:
    Carrollton Bank et als. v. Daniel Cleveland et al.
    The declarations of tlie vendor made after the salo, though out of the presence of the vendee, acknowledging that the sale was simulated, are admissible against the vendee to prove fraud in the vondor ; but such evidence alone is insufficient to establish fraud in the vendee The appreciation of the circumstances showing complicity on the part of the vendee, in the fraud practiced by his vendor, is a matter peculiarly within the province of the jury, and whero the record of conviction of fraud and simulation in a contract of sale discloses the fact that the property remained in the possession of the vendor after the sale, the Supreme Court will not disturb the verdict of the jury.
    APPEAL from the District Court of the Parish of East Feliciana, Ratliff, J.

      Fuqua é Kilbourne and S. E. Hunter, for plaintiffs.

      J. B. Smith and C. Roselius, for defendants and appellants.
   Buchanan, J.

This is a suit by judgment creditors of defendant, Cleveland, to set aside a sale of slaves made by him to the other defendant, Lee, as simulated and intended to cover the vendor’s property from the pursuit of his creditors.

The cause was tried by a jury, who found a verdict for plaintiffs, setting aside the sale as simulated, and subjecting the property to the satisfaction of the judgments against Daniel Cleveland.

Defendant, Lee, appeals.

The appellant relies upon bills of exceptions to the admission of the testimony of two witnesses, of the declarations of Cleveland after the sale, in conversation, treating the property as still belonging to himself.

This testimony was properly admitted. In the case of Groves v. Steele, 2d An. 480, (a case similar to the present,) it was held, that the declarations of the vendor, after the sale, out of the presence of the vendee, acknowledging the simulation, were admissible against the vendee, to prove fraud in the vendor. “ The defendant, says the court, might have asked the court to charge the jury as to the limited effect of this evidence, and its insufficiency in itself to prove fraud in the vendee.” See also Davis v. Stern, ante p. 177.

It must be observed that these declarations were not the only evidence before the jury. Other facts were shown, which seem to bring the case within Articles 1915 and 2456 of the Code. The appreciation of the circumstances, as showing complicity of the appellant, in the fraud practiced by his vendor, was a matter peculiarly within the province of the jury ; and there is no instance of this court setting aside the verdict of a jury as contrary to evidence, where the record of conviction of fraud and simulation in a-contract of sale discloses the fact that the property sold remained in the possession of the vendor after the sale.

Judgment affirmed, with costs.

Merrick, C. J.,

having been of counsel for the Union Bank, now represented by one of the plaintiffs, declined to sit in this case.


source: Caselaw Access Project

author: Merrick, C. J.

license: Public Domain

text:
    Succession of Lucy Ann Caldwell.
    At a Sheriff's sale of real estate, according to the terms of the sale, as announced and entered on the Sheriff's books, the credit price of tho sale was to bear six per cent, interest per annum to maturity, and eight per cent, eventual interest; the purchasers having given their notes to bear eventual interest only, the Sheriff, some time afterwards, took a rule upon them to show cause why they should not comply with tho terms and conditions of the sale as announced — Held: That after tho Sheriff had made a sale of the property, executed the deed, delivered the notes of the purchasers to the party entitled to them, and returned the writ into court, he was without further interest in the controversy, and, consoquontly, the rule taken by him could not be maintained.
    APPEAL from the Second District Court of New Orleans, Morgan. J.

      W. H. Hunt, for plaintiff.
    C. Dufour, for defendants and appellants.
   Merrick, C. J.

The present proceeding is a rule taken by the Sheriff, E. T. Earlier, against D. Verges and P. Murphy, to show cause why they should not comply with the terms and conditions of the sale under execution of three pieces of real estate, at which they were declared to be the purchasers.

No exception appears to have been filed to the proceeding by rule; and the parties, so far as the record discloses, went to trial without objection upon the merits.

It appeal’s that the property was advertised to be sold for one-fifth cash, and the residue on a credit of 6,12,18, 24, 30 and 36 months, and one portion of the same was, by the advertisement, to bear “ six per cent, interest.”

On the day of sale, the Deputy Sheriff announced orally, and entered on his book, that the credit price for which the other two pieces of property should be sold was to bear “ six per cent, interest per annum to maturity, and eight per cent, eventual interest.”

The defendants in the rule, however, gave their notes, to bear eight per cent, interest after maturity only, and the Sheriff executed his deed, and returned the proces-verbal of his sale. The agent of the legatee received the notes, and kept them in his custody some months, when he discovered that the six per cent, interest was omitted from their face. He immediately, and before maturity of any of them, delivered them to the Sheriff, and this rule has been taken by the Sheriff to compel a compliance with the terms of sale, as announced and entered on tho Sheriff’s books.

Having been condemned on the trial of the rule, the purchasers appeal.

We are of the opinion, that the present proceeding cannot be maintained.

After the Sheriff had made a sale of the property, executed the deed, delivered the notes of the purchasers to the party entitled to them, and returned the writ into court, he was without further interest. His agency had ceased with tho return of the writ under which he acted. It cannot therefore be said, that tho Sheriff has a real and actual interest in the matter in controversy, and, as a consequence, the rule taken by him must be discharged. C. P. Art. 15.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed; and we do now order, adjudge and decree, that the rule taken by the Sheriff in this case be discharged, at his costs, and that he pay the costs of the appeal.


author: Land, J.

text:
    Mitty Broxton v. S. Bloom et als.
    Whore a defendant is interrogated by the plaintiff for the purpose of proving the liability or indobtod • noss set forth in the petition, and the defendant, in answering, states facts which tend to establish his liability, he may also in the same connection state other facts, which show that such liability has been discharged.
    A plaintiff cannot he permitted to establish by proof a cause of action not alleged in his petition, without the consent, express or implied, of the defendant.
    A suit by sequestration is a lawful act, and, according to the general rule of law, the plaintiff would l not bo liable at all in damages for the exercise of this right, — but is made liable in such a case for any actual damage, in the event of his failure in the suit, which the sequestration may have occasioned ; this is an exception to the general rule.
    APPEAL from the District Oourt of the Parish of St. Tammany, Wilson, J.

      A. Hennen, for plaintiff and appellant.

      Penn & Martin, for defendant.
   Land, J.

The plaintiff, a free woman of color, instituted this suit, on a sequestration bond, to recover damages to the amount of three thousand dollars.

Before considering the case on its merits, it is necessary to pass upon the bills of exceptions taken on the trial below. The plaintiff excepted to the ruling of the Judge a quo on her motion to strike out a part of the answers of John G. Carpenter, ODe of the defendants, to the interrogatories on facts and articles propounded to Mm for the purpose of proving the amount of damages claimed in the petition. The Judge did not err in overruling the motion.

Where a defendant is interrogated by the plaintiff, for the purpose of proving the liability or indebtedness set forth in the petition, and the defendant answers, and states facts tending to establish his liability, he may also in the same connection state other facts, which show that such liability has been discharged. C. P. 353. The answers of the defendant came within the operation of this rule, for, whilst they show a liability to the plaintiff, for the hire of her children during the pendency of the sequestration suit, they also disclose facts showing a discharge of such liability.

The plaintiff also excepted, on the trial below, to the introduction of testimony to prove that she was a lazy, idle and worthless person, and could not, with her children, make a livelihood; and further, that she was not injured by the writ of sequestration issued against her, but was, on the contrary, benefited thereby. The District Judge did not err in receiving the testimony.

The plaintiff’s action was for the recovery of damages for wrongfully suing out a writ of sequestration; and in such a case, she was only entitled to recover the amount of damages actually sustained, and not vindictive, or damages in the nature of smart-money. And if it were true that she had sustained no actual damage in consequence of the sequestration sued out against her and her children, the fact was a complete defence to the action, and the defendants had a right to establish it by testimony.

The defendants excepted to the ruling of the Judge in permitting testimony to go to the jury, by whom this cause was tried, to prove that the services of the plaintiff’s attorney in the sequestration suit were worth the sum of one thousand dollars. The ground of the exception was, that the testimony was irrelevant and inadmissible under the pleadings, because there was no allegation in the petition, that counsel fees had been incurred or paid.

The District Judge erred. It is an elementary rule of pleading, that a plaintiff cannot be permitted to prove a cause of action not alleged in his petition, without the consent, express or implied, of the defendant.

On the merits, we are unable, from the testimony, to disturb the judgment of the lower court, based as it is upon the verdict of a jury, and which rejects the plaintiff’s claim for damages on the sequestration bond. The mere sequestration of the plaintiff'and her children, who were claimed as slaves, did not, ver se, entitle her to damages against the plaintiffs in the sequestration suit, and the sureties on their bond; but, as we have said, her right of recovery depends on proof of actual damage.

The evidence shows, that the plaintiff and her .children had been in the enjoyment of their liberty for several years prior to the institution of the sequestration suit, and that they were indolent, lazy and thriftless, and by their labor, had made but a meagre support. And the evidence further shows, that during the sequestration suit, or at least, so long as they were in the possession of John G. Carpenter, the plaintiff and her children were well fed, well clothed, and well treated, with little or no restraint upon their personal liberty, and that the hire from their labor was insufficient to defray their expenses, or at most did not exceed the same. It is, therefore, difficult to affirm, upon the testimony, that the plaintiff sustained any damage or pecuniary loss in consequence of the sequestration of herself and children, by reason of the loss of her labor, or of the proceeds of the same. As to her claim for counsel fees, we are unable to consider it, for the reason that there is no such demand contained in her petition. Although evidence was permitted to go to the jury, to prove the value of the services of plaintiff’s counsel in the sequestration suit, yet the jury do not appear to have considered it, for no damages were given by their verdict to the plaintiff on that ground.

The proof which was made, that slaves could have been hired out for so much per month, and their hire would have amounted to a certain sum, during the time that the plaintiff and her children were in the possession of John G. Carpenter, as sequestered property, on his bond, can only be considered as hypothetical testimony, and without any effect as proof of .damage sustained by plaintiff. The issue was, not what the hire of slaves was worth, during the period mentioned, but what actual damage the plaintiff herself had sustained. And the proof is ample, that in consequence of the laziness and indolence of plaintiff and her children, she sustained no actual pecuniary loss by reason of the sequestration ; for, if it be true, that whilst she was in the enjoyment of her liberty, the plaintiff made but a meagre support, and afterwards, whilst in the possession of Carpenter, she and'her children were well maintained, without expense to herself, and were kindly treated, there can be no foundation for the claim for actual damage arising from the loss of labor, or its proceeds.

It is not true, as contended by the learned counsel of plaintiff, that the sequestration suit itself was a wrong, or fault, in the sense of Article 2294 of the Civil Code,'and that the detention of the plaintiff under the writ was a false imprisonment in contemplation of law, for which the defendants are liable on their bond in exemplary damages. A suit by sequestration is a lawful act, and, according to the general rule of law, the plaintiff would not be liable at all in damages for the exercise of the right — but is made liable, in such a case, for actual damage, in the event of his failure, by virtue of an exception to the general rule.

The plaintiffs in the sequestration suit, John A. P. Maples and others, obtained a verdict and judgment against Mitty Broxton and her children, declaring them to be slaves, and as such the property of the plaintiffs in that suit, and the judgment was only reversed in this court on the ground, that it was not shown that the succession of Nathan Maples, the former owner of Mitty Broxton and her children, owed any debts. See 12 An. 759. It cannot therefore be said, that the sequestration suit was vexatious and malicious, and as such entitled the plaintiff to recover exemplary damages, without any proof of actual loss.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be affirmed, with costs.


author: Buchanan, J.

text:
    Victoire Paty v. Mrs. Aglaé Martin.
    Tho conjectures of medical men as to the probable duration of a disease have not, per se} the weight of proof of the fact of duration.
    APPEAL from the Pifth District Court of New Orleans, Eggleston, J.

      Clarice & Bayne, for plaintiff. D. Augustin, for defendant and appellant.
   Buchanan, J.

This is a redhibitory action. Plaintiff purchased, in July, 1858, of defendant, the slave Nancy, guaranteed against redhibitory maladies.

In November, 1858, this suit was brought. The petition alleges, that the slave was laboring under an incurable disease, described as chronic inflammation and enlargement of the womb, at the time of the sale, to the knowledge of defendant.

Plaintiff had judgment.

The proof does not, in our opinion, support the allegations of the petition.

I. As to the existence of the disease at the time of sale.

In the latter part of October, 1858, the slave was sent to Mercier’s hospital by plaintiff, and was examined by Drs. Mercier and Alpuente, who pronounced her affected [with chronic inflammation of the womb, which they conjecture to have been, at that time, of six months standing. There is a bill of exceptions reserved as to this statement of conjectures of those physicians. This court has frequently had occasion to express its opinion respecting this kind of evidence. The conjectures of medical men as to the probable duration of a disease, have not, per se, the weight of proof of the fact of duration. See the cases of Dupré v. Demarest, Dupré v. Prescott, and Roca v. Slawson, in 5th An.

In the present case, we have, in opposition to this conjectural evidence, the testimony of Drs. Martin and Turpin, who were the physicians of the family of defendant, previous to the sale of the slave Nancy to plaintiff; also the testimony of Barbey, an intimate and frequent visitor in defendant’s family ; of Mrs. Reilly, a white servant in that family; and lastly, of Dr. Raneé, who was employed, on behalf of plaintiff to examine the slavei professionally, at the time of her purchase.

In addition to the facts proved by these witnesses, it may be observed, upon the speculative or theoretical view of the case, that Dr. Martin proves that an inflammation of the womb may assume the chronic form in the space of three months from its commencement; in which statement he is not contradicted by any of the other professional witnesses examined.

II. The petition alleges, not only that the disease complained of existed at the time of tlio sale, but that, to the knowledge of defendant. This allegation is (lisproved by-the evidence, which shows the existence of another disease in the slave at the time of the sale, to-wit, a tumor in the neck, which was made known to the purchaser; who assumed the risk of the same. The conveyance of the slave to plaintiff refers to the title by which defendant acquired her; and that title describes the slave as maladive. The nature of her sickness, and plaintiff’s knowledge of the same, are proved by the witnesses.

III. As to the curability of the disease, Dr. Mercier alone declares it incurable ; and this remark of his seems to apply, not so much to this individual case, as to this class of diseases. He has never known an inflammation of the womb to he cured. But all the other physicians examined, refrain from so positive a declaration. On the contrary, they consider such diseases to be curable in their nature.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and that there be judgment for defendant, with costs in both courts.


author: Voorhies, J.

text:
    Christine Médart, Wife, &c. v. Fasnatch et al.
    The rule, tliat sucli mutters of defence as might have hoen pleaded on tho merits, cannot form legal grounds for an injunction, in arrest of the execution of the judgment, finds an exception in cases of persons incapacitated from contracting generally or specially. As long as the disability lasts, a judgment obtained against them, under such circumstances, and which has not acquired the force of tho thing adjudged, is liable to the same objection as the obnoxious obligation.
    A ¡tarty may cumulate separate actions in the same demand, when tho one is not contrary to the other, nor precludes it, even though they arise from diiferont contracts.
    APPEAL from Sixth District Court of New Orleans, Howell, J.

      L. Castera, for plaintiffs and appellants.

      Race & Foster, for defendants.
   Voorhies, J.

The plaintiff appeals from a judgment dismissing her demand, upon an exception filed by the defendants.

The exception charges, in the first place, that the petition discloses no ground of action; and, secondly, that it contains an illegal cumulation of actions.

I. The plaintiff, a married woman, enjoins the execution of two judgments obtained against her and her husband jointly. She alleges that both judgments, and the two notes, upon which they wore rendered, are null and void, because, so far as she was concerned, these obligations were in fraud of the law, being merely the surety of her husband.

The defendants, on the other hand, contend that this was a good ground of defence at the time of the rendition of the two judgments; and that, consequently, it cannot be urged as a ground of injunction.

The rule, that such matters of defence as might have been pleaded on the merits, cannot form legal grounds for an injunction, finds an exception in cases of persons incapacitated from contracting generally or specially. As long as the disability lasts a judgment obtained against them, under such circumstances, a,nd which has not acquired the force of the thing adjudged, is liable to the same objection, as the obnoxious obligation. We have lately held that a judgment obtained upon the judicial confession of the wife, did not prevent her from afterwards questioning the legality of the obligation, upon which the judgment was rendered. Baines v. Burbridge, 15 An.

II. There was not an improper cumulation of actions in the petition. Separate actions may be cumulated in the same demand, when the one is not contrary to the other, nor precludes it; nor does it matter whether they arise from different contracts. C. P. 149 — 151.

Bach of the two judgments, obtained against the plaintiff; is based upon notes, having the same payees and drawers; and the object of the present suit is to protect the plaintiff against the enforcement of these judgments out of her property. Viewing this as a cumulation of actions, the demands cannot be considered as inconsistent with each other; indeed, although they grow out of the same transactions, the one indebtedness is neither exclusive of, nor contrary to the other.

In point of fact, however, there is really but one cause of action disclosed in the petition.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed ; that the exception filed by the defendant be set aside, and this case remanded for further proceedings according to law, the- defendants paying the costs of appeal.


text:
    Heirs of J. B. Hullin v. Adolhhe Fauré.
    A citizon of Louisiana, being in tho State of Now York, executed a deed of trust in conformity to tho Jaws of that State, whereby he conveyed to a citizen of Now York a certain sum of money in cash, upon trust, for the use and benefit of other parties. — Meld: That such a contract was not in violation of tho laws of Louisiana, since it was made and executed in another State, bearing upon a fund in that State, and admitted to be according to the laws of that State.
    Whore a fund is thus placed in trust, to be held for tho benefit of a certain person during his life, and at his death the ontiro fund to be paid over to another person specified — Held: That such specified person cannot be considered as deriving title from the beneficiary, whose estate was a mere life estate in the fund.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      Pierce <& Tappan, for plaintiffs and appellants.

      P. Soule, for defendant and appellee.
   Buchanan, J.

James B. Hullin, a citizen of Louisiana, being in the city of New York, on the 8th September, 1845, executed on that day a deed of trust in conformity to the laws of New York, whereby he conveyed to James Foster and Bache McEver, citizens of New York, ten thousand dollars in cash, upon trust, that the said Foster <& McEver, or the survivor 'of them, should invest the said money upon bonds and mortgages on, or in the purchase of, improved real estate in the city of New York, and should apply the rents and interest accruing from said real estate, or such portion thereof as they might think fit, to the use of Ada Hullin, ¡daughter of the said James B. Hullin, until the arrival of the said Ada at the age of twenty-one years; and should add the portion of the rents or interest so accruing, and not applied as aforesaid, to the capital of the trust-fund, until the arrival of the said Ada at twenty one years of age; and should apply the rents and interest of such accumulated capital and interest as should accrue from the time of Ada’s attaining the ago of majority, until her decease, to the sole and separate use and benefit of said Ada; and should, forthwith after the decease of the said Ada, pay over to the lawful issue of the said Ada, if any, the whole of the trust-fund with its accumulations; and if there should be no lawful issue of said Ada, her surviving, the trustees should then pay over and convey the whole of the trust-fund or its accumulations to the husband of the said Ada, if she leave a surviving husband; and in case she leave no husband surviving, then the trustees to pay over the trust fund, &c., to the surviving brothers and sisters of said Ada.

Ada Hullin died, at a time not specified, being at the time of her death married to defendant, by whom she had no children her surviving. The defendant has applied to the trustees in New York, since the death of his wife, and has received a portion of the trust fund ; for the remainder of which he has instituted a suit in a court of New York.

The plaintiffs are the surviving sisters of Ada Hullin, and sue the defendant to restore to them what he has received under the dispositions of the trust-deed, on the ground that the said trust-deed is contrary to the law of Louisiana, and, therefore, void.

James B. Hullin died in November, 1845. It is admitted, that his estate in Louisiana, at the time of his death, exceeded fifty thousand dollars in value.

Plaintiffs sue as heirs-at-law of their sister, Ada.

It does-not appear to us, that the contract above mentioned, violated the law of Louisiana. It was a contract made and executed in New York, bearing upon a fund in New York, and admitted to be according to the law of New York.

' The authorities quoted by the counsel of plaintiffs do not apply to a case like the present. The question of situs of the trust-fund in question does not arise ; for that fund constituted no part of the succession of James B. Hullin. He had absolutely divested himself of the same, before his death, and vested the legal title in the trustees named for the benefit of Ada Hullin and others. Had this conveyance exceeded in amount the disposable portion of their common ancestor’s estate, Ada Hullin might possibly have been held to collate in an action of partition of her father’s estate with the plaintiffs, her co-heirs. But the admission in the record shows that it did not exceed the disposable portion.

And besides, this case has none of the attributes of an action of partition among the heirs of James B. Hullin. The plaintiffs claim as heirs of Ada Hullin. Their petition alleges “ that as sole heirs of their late sister Ada Hullin, formerly wife of the defendant, their mother having died shortly after the decease of J. B. Hullin, petitioners are entitled to all moneys, rights and claims arising from said trust-deed,” &c.

But defendant does not hold by a title derived from Ada Hullin. The estate of Ada was a mere life estate in this fund, with remainder in fee to defendant. See Wailes v. Daniell, 14 An. 578.

It is, therefore, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.


author: Duffel, J.

text:
    James Billiu v. J. R. White.
    A party’s appearance by attorney to move for the dismissal of an attachment and to except to the jurisdiction of tho court over him. cannot he construed into a submission to the jurisdiction which would authorize a judgmont in personam.

    APPEAL from tho Sixth District Court of New Orleans, Howell, J.

      Whittaker & Fellows, for plaintiff and appellant.

      Johnson & Denis, for defendant.
   Duffel, J.

This is an attachment suit.

The defendant who is an absentee was never personally cited.

A curator ad hoc was named and cited, bufcmade no appearance.

¡Subsequently, to-wit: on the 11th of November, 1858, the defendant appeared by counsel, and simply excepted to the jurisdiction of the court, on the ground that the property attached, a slave, did not belong to him, but was the property of the plaintiff, under a title derived from him in November, 1856, a date anterior to the issuing of the attachment.

On the 27th of November, 1858, the exception was ordered to be tried together with the merits; and it appears that the slave attached died on the same day.

The case remained in Statu quo until the 30th of April, 1859, when, the defendant’s counsel suggesting the death of the slave, the court, by reason of said death, dismissed the action at the costs of the plaintiff.

The ruling of the District Court was proper, for the party’s appearance by attorney, to move for the dismissal of an attachment and to except to the jurisdiction of the court over him, cannot be construed into a submission to the jurisdiction which would authorize a judgment in personam. Davis v. Taylor, 4 N. S. 134. Bonner & Smith v. Brown, 10 An. 134.

Judgment affirmed, with costs.


author: Merrick, O. J.

text:
    Caroline Fink, Widow Pfaeflin, Rudolph Fink et al., Intervenors, v. D. Bullerdieck, Executor, and City of New Orleans.
    Decision in tlio case of F. R. Mrilc, et al. v. Executor J. D. Einlc, 12 An., affirmed.
    APPEAL from the Second District Court of New Orleans, Morgan, J.
    P. E. Bonford, for plaintiff and appellant.

      Durant & Honor and J. J. Michel, for defendant.
   Merrick, O. J.

This case presents the same question which was decided in the cases of F. H. Fink et al. v. Executor of J. D. Fink, 12 An. 301, and Pfaeflin v. Bullerdieck, decided in January, 1860, not reported.

We see no reason to depart from those decisions.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be affirmed, with costs.


author: Yoorhies, J.

text:
    City of New Orleans v. City of Baltimore.
    Where one of two residuary legatees incurs an expense in protecting their joint interest, and the evidence shows that his aci proved beneficial to both, justice requires that he should he reimbursed by his co-legatee to the amount of the expense incurred on his account.
    An executor is never entitled to receive more than his commissions, which the law fixes as his exclusive remuneration, for services rendered in the mortuary proceedings.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.
    /. J. Michel and J. Livingston, for plaintiff.

      C. Roselius and Mott & Fra ■ zer, for defendant and appellant.'
   Yoorhies, J.

The plaintiff and the defendant are the residuary legatees of the estate of John McDonogh,deceased.

Two suits were instituted for the purpose of testing the validity of the will, one in the Federal courts by the legal heirs of the deceased, and the other by the State of Louisiana in the State courts.

The city of New Orleans employed counsel to represent itself and its co-legatee, the city of Baltimore, stipulating a contingent fee of one hundred thousand dollars, with the reservation : “that the sum stipulated to be paid in the first resolution, in case of success, was based upon the supposition that the city of Baltimor will approve of this agreement, and pay one-half of the said sum of $100,000.”

The above agreement was submitted to the municipal authorities of Baltimore, and met the sanction of one branch of the Common Council, whilst in the other branch no action was had upon the subject. The communications from the Mayor of New Orleans to the Mayor of Baltimore, being suffered to remain unanswered, the suits were entrusted to these four counsel, to-witr A. Orailhe, Esq., Randall Hunt, Esq., Robert Preaux, Esq., and the executor of McDonogh’s will, Christian Roselius, Esq.

These suits involving the decision of a canse, alike important by the mass of property at stake and especially by the intricate aud complicated questions involved in the issue, were tried and finally decided by the Supreme Court of the United States and by the Supreme Court of the State of Louisiana. The will being declared valid, the city of New Orleans paid the stipulated fee of $100,000 to the counsel employed by her on her own behalf and on behalf of the city of Baltimore

Hence the present suit for the recovery of $50,000.

The payment of this fee was made under remarkable circumstances.

The matter being submitted to the Oity Attorney, the opinion given was that the plaintiff was liable only for one-half, and that the counsel had to look to the defendant for the payment of the other half. ’ Those gentlemen, in the opinion they prepared on this occasion, expressed their conviction that they had thoir recourse upon the city of New Orleans for the whole amount; and they concluded their argument as follows :

But, independently of these considerations, it is perfectly clear that the city of Baltimore is bound to credit the city of New Orleans for the amount of one half of the sum expended for the preservation of the common property, whether there has beer, an express acquiescence on its part or not. Under such a state of facts, one joint proprietor is the agent of the other, and his acts done in good faith are binding on all. Our contract is with one of the joint owners of the property, worth upwards of $4,000,000; it follows as an undeniable consequence that the party who has contracted the obligation must pay us and look to the other joint owner for the reimbursement of his share.”

The following is a letter addressed by Mr. Roselius to the commissioners and agents of the McDonogh estate, to-wit;

“ Gentlemen : The claim presented by the commissioners of the Sinking Pund, against you, for $100,000 paid to lawyers for defending the will of the testator in the suits brought by the States of Louisiana and Maryland, and by his legal heirs against the executors, etc., cannot be allowed or paid by you. So far as one-half of the claim is concerned, it is not due at all, for in paying it the city of New Orleans discharged its own debt, being one of the universal legatees. There can be no doubt that the city of Baltimore is bound to reimburse to the city of New Orleans one-half of the expense incurred in the defence of the will; but it is a matter which the Board of Commissioners and Agents cannot take upon themselves to settle at present. In my opinion, the city of New Orleans should be credited with the amount which the city of Baltimore is bound to contribute, say, $50,000, and the account ought to be settled when the funds on hand are divided between the two joint owners of the property.
“ However this may be, it is certain that the claim cannot be settled at the present time by the Board.
“ I am, respectfully, your obedient servant,
“C. Roselius.”

The municipal authorities, upon these recommendations, disbursed fifty thousand dollars for the payment of what she conceived to be due by the city of Baltimore. The latter, however, refused to reimburse this amount; and the former is now opposed in the recovery of her claim, upon the ground that the agreement was not a binding one, for the want of assent on the part of the obligor, and that the services in question were wholly useless.

It is not unprofitable to quote a passage from the brief of the defendant’s counsel, himself one of the executors of the will, to whom was paid one-fourth of the fee of $100,000, and through whose written recommendations in part had the payment been made. The counsel says:

“ Pour legal gentlemen were employed, when there is nothing in the record to show that the services of even one was required.
“ It is in evidence, that in the court below, and in the Supreme Court of this State, the executors then in possession of the estate of McDonogh, were represented by that able jurist, and skillful and profound advocate, Levi Peirce; in the Supreme Court of the United States, by two gentlemen of great learning and ability, Messrs. Brent and May; and, besides, the city of Baltimore was, in the State courts, represented by Mr. Durant, the attorney for absent heirs, whose attention and skill could prevent any advantage being taken of his clients. The facts show, that there was no occasion for the employment of the great array of legal talent, for whose services payment is now claimed; if the four gentlemen were well employed, then a greater number might as well be appointed, and the expense charged to the two cities in equal proportions.
“ The defendants were well advised as to what the executors were doing, they knew that Mr. Peirce had received ten thousand dollars, as the attorney of the executors, and that he claimed ten thousand dollars more, to be allowed him in case the will of McDonogh was sustained; that Mr. Grivot was to and did receive 5000 dollars. That Brent and May were to receive twenty-five thousand dallars, which they did receive. That four thousand two hundred dollars, were paid to Mr. Graihle, for the opinion of the French jurisconsults in favor of the validity of the will, and that Mr. Durant was to and did receive five thousand dollars, as attorney, for absent heirs. That these fifty-nine thousand dollars, were enough to pay a sufficient number of counsel to argue the case, and that these gentlemen were amply able to protect the interests of all parties.
This array of figures would be enough to meet almost any attempt to show the value of the services rendered, but when there is no proof of the value of the services, and no such attempt is made, is destructive of all foundation for the plaintiff’s case.
“ The record shows that the executors paid attorneys and counsellors at law, the sum of sixty-seven thousand two hundred dollars, mostly to defend the will of John McDonogh, and the sum of one-hundred thousand dollars, paid by the city of New Orleans to Messrs. Roselius, Preaux, Graihle and Hunt, raises the sum up to one hundred and sixty-seven thousand two hundred dollars!! ”

The above passage from the brief of the defendant’s counsel, takes the extreme position that, not only were the services of his three associates useless, but that even his own were not required. It is very possible that, without their services, the suit might have had the same result; but we think that, considering the magnitude of the interests at stake, the protracted nature of the litigation, the complicated matters under adjudication, and the manner in which the services were performed, the course pursued by the city of New Orleans in employing counsel to represent particularly the residuary legatees, was deserving of commendation. 15 Howard, p. 367; 8 An. p. 171. It was the conduct of a prudent negotiorum gestor or rather co-parcener. The record shows abundantly that these services were eminently beneficial to both the residuary legatees, and justice requires that the plaintiff should be reimbursed.

But there is a portion of this amount, which connot be recovered in this suit: that is the amount paid to the executor, (Christian Roselius), whose commissions the law fixes as his exclusive remuneration for services rendered in the mortuary proceedings. Baldwin’s ex’r. v. Carleton, 15 La. 398. Deduction must therefore be made for one-half of the $25,000 so paid.

It is, therefore, ordered and decreed, that the judgment of the District Court be amended, by reducing the amount thereof to the sum of thirty-seven thousand five hundred dollars; and that, in other respects, the said judgment be affirmed, the plaintiff and appellee paying the costs of appeal.


text:
    A. E. Carter v. Thomas H. McManus et al.
    The interpolation of words accidentally omitted in a will, made in the nuncupative form by public act, cannot be considered as an interruption or turning aside to other acts.
    APPEAL from the District Court of the Parish of East Feliciana, Ratliff, 3.

      A. M. Dunn, F. Hardesty and W. F. Hernán, for plaintiff and appellant.

      John Me Vea, for defendant.
   Land, J.

This suit is to annul the last will and testament of Samuel McManus, made in the nuncupative form by public act on the 30th day of June, 1857.

The causes of nullity alleged by the plaintiff are:

First. That the testator was at the time of making his will very old and infirm, and was without a disposing- mind and memory.

Secondly. That in point of fact said act and the dispositions therein contained wore not received by said notary in the presence of the witnesses therein named.

Thirdly. That in fact it was not dictated by said testator, and written by the notary as dictated by the deceased in the presence of the witnesses.

Fourthly. That it was not read, by the notary as it was dictated by the deceased, to the testator in presence of the witnesses after it was written.

Fifthly. That it was not signed by the testator in the presence of the witnesses therein named.

Sixthly. That the formalities prescribed by law were not fulfilled at one and the same time, without interruption or turning aside to other business, but on the contrary, there were frequent interruptions.

And seventhly. That there was a turning aside to other acts and an interruption by the interpolation of the words and costs of the administration of my estate” in said will.

The only evidence offered on the trial of this suit was the will of Samuel McManus. It appears to have been made strictly in conformity with law, and no testimony was adduced by the plaintiff to impeach the validity of the will on any of the grounds alleged in his petition. The interlineation mentioned cannot be considered as an interruption or turning aside to other acts.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.


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    Mary E. Baines, Wife of I. N. Maynard, v. J. W. Burbridge & Co.
    An action of rovondication may do defeated, by proof of an outstanding title in a third person ; for the plaintiff in such an action must succeed by the strength of his own title. But such proof might be rebutted by proof of disclaimer of title by such third person. In the same manner, a title derived from a person protending to act under a power of attorney, which did not confer the authority to make the title, is valid, if it he proved that the mandator has ratified the act of his agent.
    Where a person acting under a power of attorney which did not contain the power to donate, made a donation propter nuptias, which donation was ratified by the principal after the marriage had taken place — Held: That tins act of ratification was not a constitution of dowry after marriage ; for every ratification relates back to the time of doing the act or making the contract ratified.
    Where a married woman confessed judgment upon a debt of lior husband’s, for which she lmd made herself surety by notarial act — Held: That such confession was but the complement or consummation of a contract which the law prohibits, and which was, consequently, null.
    A married woman is not estopped, by confessing judgment, from afterwards denying that the debt enured to her benefit.
    APPEAL from the District Court of the Parish of West Feliciana, Haralson, J.

      Powell S Widcliffe, for plaintiff.

      Collins & Leafce, for defendants and appellants.
   Buchanan, J.

This is an action of nullity and injunction instituted by a married woman, against a judgment and execution thereupon issued. The judgment was rendered against plaintiff herein and her husband, by confession. She pleads that the debt for which she confessed judgment, was a debt of her husband’s, which did not enure to her separate interest, but for which she had become surety of her husband to the judgment creditor, (defendant herein,) in contravention of a prohibitory law, and acting under marital influence, and in ignorance of her rights.

The evidence establishes that the debt upon which judgment was confessed, was a debt of plaintiff’s husband, for which she had made herself surety by notarial act.

It is also proved that the slaves seized in execution of the judgment, and of which the sale is enjoined, were in part the dotal, and in part the separate paraphernal property, of the plaintiff.

The defendants and appellants made the following points before this court:

1st. That plaintiff’s petition contains no allegation which might not have been pleaded in the case of G. W. Burbridge & Co. v. I. N Maynard et al. and therefore the injunction against the execution of the judgment in that case cannot be maintained upon these allegations. ^ ;

2nd. That the donation of slaves propter nuptias, which is plaintiff’s title to a portion of the slaves mentioned in the petition, is void, having been made by a person acting under a power of attorney, which did not contain the power to donate.

3rd. That the ratification of the donation by the principal, being made after the celebration of the marriage, could produce no effect, as dowry cannot legally be constituted during the marriage.

4th. That the judicial confession of plaintiff cannot be avoided for error of law.

I. The injunction prayed for herein, is but auxiliary to the action of nullity, a conservatory measure, instituted to keep matters in stalu quo until the determination of the validity of the judgment upon which the seizure is based.

II and III. The power of attorney from Jacob B. Maynard to Isaac N. Maynard is a power to sell, but not to donate. — It might well be doubted whether the former included the latter. But the donation was followed by possession in the donee, of twelve years and upwards, to the knowledge of the mandator, whose name had been used as donor in the contract, by his mandatory. And the property donated, is not now seized as the property of the mandator, but as that of the mandatory and of the donee. It is true, that an action of revendication may be defeated, by proof of an out-standing title in a third person; for the plaintiff in such an action must succeed by the strength of his own title. But such proof might be rebutted, by proof of disclaimer of title by the third person. In like manner, a title derived from a person pretending to act under a power of attorney, which did not confer the authority to make the title, is valid, if it be proved that the mandator has ratified the act of his agent. C. C. Article 2979. In the present case, Jacob B. Maynard ratified, in the most formal manner, by notarial act, the donation made in his name by Isaac N. Maynard about one year after the date of said donation, and eleven years before the seizure herein enjoined. And that act of ratification and confirmation was not a constitution of dowry after marriage: for every ratification relates back to the time of doing the act, or making the contract ratified. Bloodsworth v. Jacobs, 2 An. 24; Dunbar v. Bullard, 2 An. 810.

IY. The cause alleged.for revoking the confession of judgment is something more than an error of law. That confession was but the complement or consum¡nation of a contract (that of a married woman as surety of her husband) which the law prohibits, and which was consequently null. C. C. 2412. The plaintiff is not estopped, by confessing judgment, from denying that the debt enured to her benefit.

It will be observed that there was no evidence adduced, either in the original suit, or in the present controversy, to show that the consideration of the notes sued on enured to the benefit or advantage of the plaintiff. The judgment was rendered simply on her confession, made out of court, in the presence of her husband, and under his influence. It is a naked acknowledgment, and nothing more. Patterson v. Fraser, 5 An. 586.

Judgment affirmed, with costs.


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    B. Haynes, Liquidator, v. Emily A. Courtney & Husband.
    Before a purchaser evicted from property purchased under execution can demand a reimbursement of the price from the seizing creditor, lie must first have failed to recover it from tho seized debtor, oil execution sued out for that purpose.
    A stock mortgage given to secure the payment of stock to a property bank is prior and superior to a loan mortgage, although given in the same act, or hypothecary contract with tho corporation, and a sale of the property mortgaged, under a decree to satisfy the amount of the loan, will not extinguish the stock mortgage, unless the amount of the adjudication shall oxceod tho amount of the stock mortgage.
    The rule requiring the ro-insoription of mortgages at the expiration of ten years, does not apply to mortgages given by stockholders to tho property hanks to secure the amount of stock subscribed.
    In a judicial sale of laud mortgaged to secure the payment of stock, where tho amount of the adjudication does not exceed tho amount of the stock mortgage, the sale is null — such a defect is not a mere informality, which can be cured by the lapse of five years
    APPEAL from the District Court of the Parish of East Feliciana, Haralson, J.

      McVea <& Hunter, for plaintiff

      Muse & Hardee and Fuqua <& Kilbourne, for defendant and appellant.
   Land, J.

The plaintiff, who sues as liquidator of the affairs of the Clinton and

Port Hudson Railroad Company, for the benefit of the New Orleans Gas Light Company, instituted the present action against the defendant, as administratrix of the succession of Jamas H. Brown, deceased, and also in her individual capacity to recover a debt of five thousand dollars, and interest thereon, and to enforce a conventional mortgage on a tract of land, and certain slaves, given by herself and said Brown, to secure the payment of the debt at its maturity.

The origin of this debt was the subscription of James H. Brown, in the year 1835, for fifty shares, each for $100, to the stock of the Clinton and Port Hudson Railroad Company. And the defendant, who was at that time the wife of Brown, became individually liable for the payment of the subscription, by joining her husband in the act of mortgage, or hypothecary contract with the Company, and by expressly stipulating therein a liability in solido with him, as she was authorized to do by the 20th section of the Act of the Legislature approved March 10th, 1834, entitled “ An Act to amend the Act entitled an Act to incorporate the Clinton and Port Hudson Railroad Company, approved the 7th day of February, 1833.”

The defendant in her answer alleges, that she is no longer the administratrix of the succession of James H. Brown, deceased; that she has been discharged from the office by a judgment of the court which appointed her, and that the succession is now without any representative. She further alleges, that the land mortgaged to secure the payment of the subscription to the stock of the company, belonged to the community that existed between her and the said James H. Brown, her first husband, and that the subscription or indebtedness, if it exists at all, is a debt due by said community, and that she has the right to have the land seized and sold for the payment of the same, before her separate estate can be held liable therefor.

She further alleges, that the land is in the possession of one George L. Gayden, by purchase from one William Langfitt, who "claimed title thereto, under a pretended Sheriff’s sale — but which sale, she avers, was absolutely null and void, and in no manner conveyed title to the land, nor impaired the right of mortgage in favor of said company. She prays, that Gayden,he called in warranty, and that in the event of a judgment against her, that the land in his possession be first seized and sold (before resorting to her separate estate) for the payment of the subscription or indebtedness aforesaid.

George Jj. Gayden, in answer to the call in warranty made by the defendant, after alleging that he is the owner, and in possession of the land, set up the following defences : first, that the land is not bound for any indebtedness of the defendant, Mrs. Courtney, to the company; and that if the land were ever bound for any such indebtedness, the debt is now prescribed by the lapse of five and ten years, and that the mortgage has lost its effect, rank and privilege by said prescription ; secondly, that he is not, in any manner, bound in warranty to the defendant, and that she has no right to point out said land to pay any indebtedness she may owe to the company; thirdly, that if there were any defect in the Sheriff’s sale of the land to Langfitt, under whom he claims title, the defendant has no right to question the same collaterally in this suit; and fourthly, that in addition to the title acquired from Langfitt, he has also acquired a title to the land, by virtue of a sale for taxes due the State, which was made by the State Tax Collector on the 6th day of December, 1851.' He also called his vendor, Langfitt, in warranty, and in the event of á judgment against himself, he prayed for a judgment over against Langfitt.

To the call in warranty of Gayden, Langfitt appeared, and excepted to the right of the plaintiff to prosecute this suit, and of the defendant, Mrs. Emily A. Courtney, to call his vendee in warranty, on the following grounds, to-wit: first, because the plaintiff, as the representative of the Clinton and Port Hudson Railroad Company, and the defendant, are his warrantors, and are by law bound to warrant him in his title to the tract of land, upon which they now seek to enforce the mortgage set up in the plaintiff’s petition. "

On this first ground of his exception, Langfitt avers, that he purchased at a Sheriff’s sale the tract of land in question, at the suit of C. Sanders and others, then-representing the affairs of the Clinton and Port Hudson Rail-road Company, as commissioners, against Emily A. Brown (now Courtney,} who was the defendant in execution, and who is also the defendant in this action.

The second ground of his exception is, that if the Gas Light Company, who claim to be the transferrees, or owners of the mortgage sought to be enforced in this suit, have any rights under the same, that said rights can only be enforced against the proceeds of the Sheriff’s sale in the hands of the proper representatives of the Clinton and Port Hudson Railroad Company.

The third ground is, that the mortgage which the plaintiff seeks to enforce ceased to operate upon the land, by virtue of the judicial sale, at the suit of the commissioners of the same company, which is now represented by the plaintiff.

And the fourth ground of the exception is, that the rights of the plaintiff to attack the Sheriff’s sale, or to enforce the mortgage claimed in his petition on the land in dispute, are absolutely barred by the prescription of five and ten years.

For a more perfect understanding of the issues made in this case, it is necessary to state, that by the legislative Act of the 10th of March, 1834, before mentioned, the capital of the Clinton and Port Hudson Bailroad Company was increased five hundred thousand dollars, one-half of which was to be created by subscriptions in money, and the remaining half, of two hundred and fifty thousand dollars, by loan or loans on real security, as provided for in the Act.

That the real security on which the contemplated loan was to be effected, -was to consist of subscriptions to the stock of the company, secured by special mortgage on lands and slaves equal to the amount of stock respectively subscribed ; and the mortgage stock thus created was to be a security for the payment of the capital and interests of the bonds of the company, which were to be issued for the purpose of effecting the loan.

That the bonds of the company were to bo issued, as it were, in three several series; the first, for the sum of seventy-five thousand dollars, payable eight years after dare; the second, for the like sum of seventy-five thousand dollars, payable fifteen years after date; and the third series, for the sum of one hundred thousand dollars, payable twenty years after date. And that in pursuance of the provisions of said Act, the mortgage stock was subscribed, and the bonds of the company were issued, and the contemplated loan was effected thereon.

That by the said Act the Clinton and Port Hudson Bailroad Company was invested with banking privileges ; and every subscriber of mortgage stock was entitled to a credit on his own note equal to one-half of the amount of his stock, which was to be refunded in equal annual installments within a period of twenty years from the date of the Act.

That James H. Brown became a subscriber for mortgage stock, under the pro • visions of the Act, to the amount of five thousand dollars, and afterwards borrowed from the company, on his stock, the sum of two thousand one hundred and twenty-five dollars. And that in the act of mortgage to the company, to secure the payment of his stock, he specially hypothecated the laud now in dispute, and also specially mortgaged the same, for the reimbursement of the loan that ho might afterwards obtain.

That James H. Brown failed to pay the amount of the loan obtained by him on his stock, and that at the suit of the commissioners, (in whose hauds the affairs of the company had been placed for liquidation in consequence of its insolvency,) the land, which had been specially mortgaged, as aforesaid, was seized and sold, under executory process, to pay and satisfy the amount of said loan, and was adjudicated to William Langjitt at the price of $3,866 66 cash, on the 6th day of March, in the year 1847.

It may be further stated, that after the insolvency of the-Clinton and Port Hudson Bailroad Company, the New Orleans Gas Light Company instituted suit against the plaintiff, as liquidator, and obtained a judgment requiring' him to proceed to collect of the subscribers to the mortgage stock of said company, a sum sufficient to pay the bonds held by said Gas Light Company, and on which said loan of two hundred and fifty thousand dollars, or a part thereof, had been effected as provided for in the Act of the 10th'of March, 1834.

Upon this statement of the facts of the case, the relevancy of the issues presented by the pleadings will more clearly appear; and the grounds of defence both to the plaintiff’s action, and to the defendant’s right to call in warranty, may be substantially stated as follows :

1st. That the plaintiff and defendant are bound to warrant the title of Langfitt to the.land purchased by him at the judicial sale; or, at least, that they are bound to refund to him the price of adjudication, which he paid in cash at the time of the sale. ;

If we consider the plaintiff as the seizing creditor in the executory proceedings, he is only bound for the reimbursement of the price of the adjudication, (if bound at all, which is rendered doubtful by Art. 713 of the Code of Practice,) in case the purchaser, who is evicted, fails to recover the price of the defendant in execution. Before the purchaser can demand a reimbursement of the price, of the seizing creditor, he must have failed to recover it of the seized debtor, on his execution sued out for that purpose; and as Langfitt, the purchaser, has no judgment against the seized debtor for the reimbursement of the price, his demand against the plaintiff in this suit is, consequéntly, premature. C. P. Art. 711, C. C. Art. 2599.

The defendant, Mrs. Courtney, is under no obligation to reimburse the price of adjudication, because she was no party to the contract of loan, in satisfaction of which the land was seized and sold. She bound herself in solido with her husband for the payment of the stock subscribed, but not for the payment of the loan on the stock; and the fact that she joined him in the mortgage given to secure the payment of the loan, as well as of the stock subscribed, did not bind her individually as a debtor in solido for the satisfaction of the loan, The executory proceedings were against her, as the possessor of the mortgaged property, and not as the personal debtor of the plaintiffs in that suit, and, therefore, she cannot be considered, in the sense of Art. 711 of the Code of Practice, as the seized debtor, and liable to an action for the reimbursement of the price of adjudication. The debtor was James H. Brown, and the action for the recovery of the price must be against his estate, which is not represented in this suit, and against the seizing creditor, in the manner prescribed by law.

2dly. That the mortgage given as a security for the payment of the stock subscribed by James U. Brown was extinguished by the judicial sale of the land, under the executory process, for the purpose of satisfying the loan made by the company to Brown on his stock. This can-no longer be considered an open question. It has been held, that the stock mortgage' is prior and superior to the loan mortgage, although granted in the same act, or hypothecary contract with the company, and that a sale of the mortgaged property, under a decree, to satisfy the amount of the loan, will not extinguish the stock mortgage unless the amount of the adjudication shall exceed the amount of the stock mortgage. Meeker v. The Commissioners of the Clinton and Port Hudson Railroad Company, 2 An. 972 ; Haynes v. Harbour, 14 An. 237. And such is the case now before ns ; the amount of the stock mortgage was five thousand dollars, and the amount of the adjudication was three thousand eight hundred and sixty-six dollars and sixty-six and two-third cents, and on the authority of the eases cited, the stock mortgage was not extinguished by the judicial sale.

3dly. That the debt for which the plaintiff sues, and the mortgage which ho seeks to enforce, were barred by the prescription of five and ten years before the institution of this suit. The prescription of five years is not applicable either to the debt or the mortgage. The debt, that is, the subscription to the stock of the company, was not due until demanded, and ten years had not elapsed between the demand of payment and the institution of this suit. The prescription of ten years does not apply to the stock mortgage granted by James H. Brown to the Clinton and Port Hudson Railroad Company. This company was one of the property banks of the State, and the rule requiring the re-inscription of mortgages at the expiration of ten years from the date of their registry does not apply to the mortgages which were given to it by the stockholders. See Act of 11th March, 1842, p. 232.

4thly. That the defects in the judicial sale of the land for the purpose of satisfying the loan made by the company to James H. Brown were cured by the lapse of five years, and that the right both of plaintiff and defendant to cause the sale to be annulled, on the ground of such defects, was barred by the prescription of five years before the commencement of this suit. In the case of Meeker v. The Commissioners of the Clinton and Port Hudson Railroad Company, the court held that the judicial sale in that case was absolutely null and void, for the reason that the amount of the adjudication did not exceed the amount of the stock mortgage. Such was the defect in the sale to Langfitt, and it was not, in our opinion, a mere informality, against which the purchaser could prescribe after the lapse of five years from the date of the sale.

5thly. That the stock mortgage in favor of the company was extinguished by the sale for taxes due the State on the 6th day of December, 1851, at which sale Gayden, the vendee of Langfitt, became the purchaser of the land in dispute. This position is wholly groundless. The land, was assessed as the property of Langfitt, and sold for taxes due by him, and the tax sale was null and void as to all parties in interest, except himself and those claiming under him. The Sheriff’s sale under the executory process was null and void as to the company represented by the plaintiff, and Langfitt consequently acquired no title to the land, which he could convey through the medium of a tax sale or otherwise to Gayden or any one else, to the prejudice of the mortgage rights of the company, And

6thly. That the defendant has no right to require the plaintiff to discuss the mortgaged property, before resorting to her separate estate, for the satisfaction of the debt demanded ; nor the right to call G. L. Gayden, the possessor of the land in warranty for that purpose ; nor the right to question collaterally in this suit the validity of the Sheriff’s sale in satisfaction of the loan made to Brown. These grounds of defence have no materiality in this suit, because the plaintiff had the right to disregard the Sheriff’s sale, as a mere nullity in respect to the company, and had the right, under the Act of the 10th of March, 1834, to cause the mortgaged property to be seized and sold according to law, in whose hands soever found, without resort to the hypothecary action, as required in cases of transfer of mortgaged property, before proceeding against the separate properly of the defendant, — which rights the plaintiff claims to exercise in this suit. Hence the plea of discussion, and the call in warranty made by the defendant, were mere surplusage. The plaintiff prays for judgment against the defendant for the amount of the debt demanded, and that the land and slaves specially mortgaged be seized and sold for its payment; and the effect of the execution of the judgment prayed for will be the seizure and sale of the land in the possession of Gayden, and the discussion of the same, in satisfaction of the debt, before proceeding’ against the separate property of the defendant.

The judgment of the lower court is against the defendant in her individual capacity, for the sum of $5000, with interest on'the sum of $3000 thereof, from the 30th day of September, 1852, at the rate of ten per cent, per annum, until paid; and the like rate of interest on the remaining’ sum of $2000, from the 11th day of September, 1854; it also recognizes the mortgage claimed in the petition, and orders the land and slaves to be seized and sold to pay and satisfy the debt, interest and cost. The judgment is also in favor of G.'L. Gayden against Wm. Langfitt, his warrantor, for the sum of $5000, the price of the land, with five per cent, per annum interest thereon from the date of eviction — but rejects absolutely the demand in warranty of Wm. Langfitt against the plaintiff and defendant for the reimbursement of the price paid by him for the land at the Sheriff’s sale.

The judgment, instead of being final against Langfitt on- his call in warranty, or rather against his administrator, Joseph A. Ball, who is now before the court, should have been one of nonsuit as to the plaintiff, and is, in this respect, erroneous.

The defendant complains of the judgment against her, on the ground that it allows interest on the debt at the rate of ten per cent, per annum from the dates mentioned, instead of five per cent., or legal interest, from judicial demand.

In the act of mortgage to the company, the defendant bound herself in solido with her husband to pay ten per cent, per annum interest on the amount of stock subscribed, in the event of the failure of herself or husband to pay the same or any part thereof on the demand or requisition of the Board of Directors of said company, and the only question on this alleged ground of error, is, whether the defendant was legally put in default. The requisition or demand was in the form of a letter addressed to the defendant, and put into the Post Office by the plaintiff’s attorney, and also by the publication in the newspapers of the parish of East Feliciana, the place of the company’s domicil.

The letter was a demand in writing, and was sufficient to put the defendant in default, and to fix her liability to pay, under her contract, ten per cent, interest from its date. C. C. Art. 1905. The presumption is, that the letter was received by her in due course of mail.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court, as between the plaintiff and defendant, be affirmed; and it is further ordered, adjudged and decreed, that the judgment on the call in warranty of George S. Gayden against Wm. Langfitt be also affirmed; and it is further ordered and decreed, that the judgment on the call in warranty of William Langfitt be avoided and reversed; and it is now ordered, adjudged and decreed, that there be judgment on said last mentioned call in warranty, as respects the plaintiff as in case of nonsuit. And it is further decreed, that plaintiff and appellee pay the costs of this appeal.

Merrick, O. J., having been of counsel in this case, recused himself.


author: Merrick, 0. J.

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    Pierre Poutz v. Hyacinthe Bistes.—Earnest Morel, Abeilard and Eugénie, Intervenors.
    The death of the wife dissolves the community, and with it ceases the right of the husband to stand in judgment, without the authorization of the court, in matters affecting the community property.
    A party holding a mortgage, by authentic act, against community property, is entitled to executory process, after the death of the wife, only upon giving notice jointly to her testamentary executor and to the surviving husband.
    Where property belonging to a succession had been inventoried in the Second District Court of New ’ Orleans, and had been ordered to be sold by that court for the payment of debts- — Held: That a subsequent order of seizure and sale granted by the Sixth District Court against the same property, upon a mortgage by notarial act, was in conflict with the assumed jurisdiction of the former court, and, therefore, irregular. The mortgagee, in such a case, ought to have applied to the court issuing the first order, for a modification of the terms of the sale, if he was not satisfied with them.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      H. Griffin, for plaintiff.
    C. Morel and Collins & Woolridge, for defendants and appellants.
   Merrick, 0. J.

“ On the 20th April, 1857, by act before A. Boudousquié, Notary, the defendant, Bistes, borrowed from Porche $1,740 27, for which amount he furnished his note, payable one year after date, at the Citizens’ Bank, to his own order, and by himself endorsed. In the same act, he granted a special mortgage, with the clause of non alienation, in favor of any holder of the note, to secure the payment of the note; and his wife, Roseline Porche, renounced, in the form prescribed by law, her rights on the property mortgaged by him.

Poutz, tho holder of the note, applied, on the 4th October, 1859, for executory process, which was granted, and the Sheriff was proceeding to execute the writ of seizure and sale, without any opposition from the defendant, Pistes, when the proceedings were enjoined by E. Morel, claiming to be the testamentary executor of the defendant’s wife, who died on the 15th August, 1859.”

“ The plaintiff, Morel, alleges, that he is the duly qualified testamentary executor of the defendant’s wife; that the property seized under executory process in this case is the property of the deceased, and of the community lately existing between her and the defendant; that the succession of Mrs. Bistes is in course of settlement, in the Second District Court of New Orleans; that the identical property was inventoried, and ordered to be sold, to pay the debts and legacies of her succession ; that the plaintiff, as testamentary executor, and the heirs and legatees of the deceased, should have been made parties to the executory proceedings ; that Poutz is not legally subrogated to the rights of the mortgagee, Porche; that the property is worth more than the amount of the note secured by the mortgage ; that the sale should be made for so much cash as will pay the note, and for the balance on a credit of twelve, eighteen, and twenty-four months, &c. The prayer of the petition is, ‘ that the executory proceedings be set aside; that Poutz and Bistes be cited, and ordered to proceed in the premises according to law, and to the above demand of petitioner.’

On the affidavit of the plaintiff, the writ of injunction was granted.”

“ On the 19th November, 1859, the plaintiff, in executory process, took a rule on Morel, plaintiff in the injunction suit, to show cause why the injunction should not be set aside, with damages, on the face of the papers.”

On the 22d November, 1859, Abeilard and Eugénie, f. c. p., intervened, and alleged that they were legatees of the deceased; that one-half of the property seized belonged to the succession of the deceased, subject to the jurisdiction of the Second District Court, &c., and praying also that the executory proceedings be set aside.”

The District Judge was of the opinion, that the executory process was a proceeding so purely in ran, that notice to the original debtor, Bistes, was sufficient. He dissolved the injunction, with ten per cent, damages, and plaintiff in the injunction appealed.

We are of the opinion, that the death of Mrs. Bistes dissolved the community, and with it the right of the husband, without the authorization of the courts, to stand in judgment in matters affecting the same, ceased. As a consequence, the executory process could only proceed, after the death of the wife, against the common property, by notice jointly to her testamentary executor and the defendant, Bistes. 5 An. 138, 12 An. 222, 14 An. 561.

Again, the property seized under the executory process had been inventoried in the Second District Court, and had already been ordered to be sold by that court, for the payment of debts. The subsequent order of the Sixth District Court for the sale of the same property was in conflict with the jurisdiction assumed by the Second District Court, and therefore, irregular. The plaintiff, after the Second District Court had issued its order for sale, ought to have applied to that court for a modification of the terms of sale, if he was not satisfied with the same. Any other rule would produce unnecessary embarrassment.

Ofl the face of the papers, therefore, the plaintiff in injunction seems to have stated a case which entitles him to relief on both grounds. The case must be remanded for further proceedings.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be reversed; and that the motion to dissolve the injunction be overruled, and the injunction reinstated ; and that the case be remanded to the lower court for further proceedings according to law ; and that the appellee pay the costs of the appeal.


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    John McKowen, Executor, v. John McGuire.
    The act of residence does not alone constitute the domicil of a party, hut it is the fact of residence coupled with the intention of remaining permanently which constitutes it.
    The right of a surviving partner under Arts. 1131,1152 and 1136, to administer the partnership effects, and to dispose of the same in the ordinary course of trade, is not an absolute right, but depends on the consent of the heir present or represented in the State, capable of accepting the succession purely and simply.
    APPEAL from the District Court of the Parish of East Feliciana, Ratliff, J.

      R. J. Bowman, for plaintiff and appellant.

      Lacy & Ratliff, for defendant.
   Voorhies, J.

This litigation is a contest for the administration of the partnership effects of the late commercial firm of Wm. Carney & Co. which was composed of John McGuire the defendant, and Wm. Carney deceased.

The plaintiff as executor claims the right of administration, by virtue of the last will and testament of the deceased, duly probated and ordered to be executed by the District Court of the parish of East Feliciana. The defendant claims the right of administration as surviving partner by virtue of an appointment made by the District Court of the parish of West Feliciana.

As the court of the domicil of William, Carney deceased has exclusive jurisdiction of the demands of the parties, the principal question in the case, is, whether his domicil at the time of his death, was in the parish of Bast, or of West Feliciana.

It appears from the evidence that Carney had resided, and had his domicil in the town of Jackson in East Feliciana, some eighteen or twenty years before he formed a commercial partnership with the defendant for the purpose of carrying on the business of wholesale and retail grocers in the town of Bayou Sara in the parish of West Feliciana. And that after the formation of the partnership he continued to exercise the right of suffrage in Bast Feliciana, and kept an establishment, and claimed his domicil in that parish to the day of his death, as declared in his last will and testament, lvhich was made during his last illness, at his residence in the town of Jackson.

It also appears that Carney was personally engaged in the business of the firm at Bayou Sara, and when at that place resided with the 'defendant his partner ; and that he was assessed and paid a poll-tax in the parish of West Feliciana.

The fact of his residence with his partner at Bayou Sara whilst engaged in the business of the firm did not operate a change of his domicil; nor did the payment of a poll-tax in that place produce any such effect.

The act of residence does not alone constitute the domicil of the party, but it is the fact of residence coupled with the intention of remaining which constitutes it. The intention of remaining permanently in the town of Bayou Sara never existed in the mind of Carney, and consequently his domicil in the parish of Bast Feliciana was never changed ; and the court of his domicil alone had jurisdiction of the demands of the executor, and <5f the surviving partner, for the administration of the property of his succession. The judgment of the District Court authorizing the defendant to administer the partnership property, and to liquidate the partnership affairs, was therefore irregular and void, and conferred upon him no such power.

The plaintiff enjoined the defendant from administering the partnership effects, and also caused the same to be sequestered by process issued from the District Court of the parish of East Feliciana, on various grounds, two only of which will be noticed in the decision of this case.

The first was the want of jurisdiction in the District Court of the parish of West Feliciana, to authorize the surviving partner to administer the partnership effects. This ground for obtaining the injunction has already been disposed of adversely to the pretentions of the defendant.

The second ground was that there was cash on hand sufficient to pay all the debts of the partnership, and there was no necessity for the appointment of the defendant as liquidator, and that the legatees were willing to accept the succession purely and simply, and to pay their portion of the debts of the partnership.

The Civil Code declares that if there be a commercial partnership, in which the deceased was concerned, the surviving partner, after the portion of the deceased in the partnership effects has been ascertained, and the estimate of it made on the inventory, shall have the right to require that this portion remain with his own, in order that the whole may be disposed of for the common benefit in the ordinary course .of trade, and the proceeds applied, as far as is necessary, to the payment of the partnership debts. And that this right cannot be refused to the surviving partner, if the succession of the deceased partner is vacant, or if all his heirs are absent and not represented ; but the surviving partner is bound to give security to the curator of the vacant succession, or of absent heirs, to the amount of one-fourth ' over and above the estimated value of the portion which was coming to the deceased from the partnership property, according to the inventory. Articles 1131, 1132. But Art. 1136 provides that if any one of the heirs of the deceased partner is present or represented in the State, the surviving partner has no right to retain his part of the partnership property, no more than the parts of the other heirs who are absent, if the heir opposes it and accepts the succession purely aud simply; unless in the act of partnership it be stipulated that the surviving partner shall be entrusted with" the liquidation of the partnership concerns, for in this case such a stipulation must be carried into effect.

It thus appears that the right of the surviving partner to administer the partnership effects, and to dispose of the same in the ordinary course of trade, is not an absolute right, but depends on the consent of the heir present or represented in the State, capable of accepting the succession purely and simply. The legatees are the testamentary or instituted heirs of Wm. Carney, and if they have the capacity of accepting his succession, purely and simply, the right of the surviving partner will be defeated by such acceptance.

The judgment of the lower court was consequently erroneous in dissolving the writs of injunction and sequestration, and in condemning the plaintiff to pay special damages for suing out of the same.

It is, therefore, ordered, adjudged and decreed; that the judgment be avoided and reversed ; and it is now ordered, adjudged and decreed, that the writs of injunction and sequestration issued in this case, bo reinstated, and declared in full force and effect, and that said writ of injunction be perpetuated, and the decree of the District Court of the parish of West Feliciana, authorizing the defendant as surviving partner to administer the partnership effects and to dispose of the same in the ordinary course of trade, be declared null and void for the want of jurisdiction in said court, and that the defendant pay costs in both courts.


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    J. Collins, Administrator, v. Wm. McElroy, Executor.
    Art. 2257 of the Civil Code, requiring corroborating circumstances, in addition to the testimony of on© witness, where the contract is for a sum exceeding five hundred dollars, relates in express terms to the proof of contracts which are not reduced to writing.
    The prescription of three years applicable to a loan of money does not apply to a due bill given, at tho time for such loan.
    from the Second District Court of New Orleans, Morgan, J.

      C. Redmond, for plaintiff. J. H. & J. E. Holland, for defendant and appellant.
   Voorhies, J.

Suit is instituted upon a due bill for the sum of $750, besides interest, the stipulated consideration being money loaned.

The defence is twofold;

1st. That the proof of the obligation is insufficient,

The maker signed the instrument with her ordinary mark, there being three attesting witnesses. The note was offered in evidence, and one of the attesting witnesses proved its execution, as well as the endorsement or transfer. The defendant contends that, inasmuch as the contract is for a sum exceeding five hundred dollars, there should have been corroborating circumstances shown.

This objection is unfounded. The Article 2257 of the Civil Code, requiring such additional proof, relates in express terms to the proof of contracts, which are not reduced to writing.

2nd. That the action is barred by the prescription of three years, under Article 3503 of the Civil Code.

This is not an action for the payment of money lent, although the consideration of the written obligation was money loaned. It is a personal action to en force the payment of the written obligation. Cowen v. Pulley, 11 An. 1 ; Garland v. Scott, 15 An. 143.

Judgment affirmed.


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    D. G. Walker v. D. C. Hays.
    Whore a hill of sale of a slave did not declare that tlic property was delivered, hut contained the declaration that it was bargained and sold to the vendee, and concluded with tho usual warranties — Held: That such a contract of sale was complete, and the property was at the risk of the buyer.
    What was said m Smoot v. liusscll, 1 isT. S. 528, was in relation to the construction of an instrument.
    APPEAL from the District Court of the Parish of Madison, Farrar, J.

      Short & Parham, for plaintiff.

      P. Alexander and A. R. Hynes, for defendant and appellant.
   Merrick, C. J.

This suit is brought upon a draft for $1375.

The defence to tho action is the failure of consideration. The facts are briefly these :

On the 12th of November, 1857, the defendant took from the plaintiff a bill of sale of a negro woman and her child about eighteen months old. The same day he delivered the plaintiff the draft in suit as the price. The bill of sale was signed by the vendor only. The slaves were suffered to remain in the plaintiff’s possession, without delivery to the defendant.

On the 23d day of November, before any demand had been made for tho delivery of the negress and her child, sfie drowned herself and child.

The case was tried by a jury, who awarded the plaintiff the sum claimed upon the draft.

The defendant and appellant relies, in this court, upon two grounds, for tho reversal of the judgment.

1st. That the obligation was contracted upon a suspensive condition, and the subject of the contract was destroyed without the fault of the debtor. And

2d. That the slave was afflicted with the absolute vice of madness.

I. On the first ground, we see nothing in the bill of sale which induces us to suppose that the delivery was dependent upon a suspensive condition, or that the contract was not complete when the defendant accepted the same by giving his draft for the price. The instrument, it is true, does not declare that the property was delivered, but it does declare that it was “ bargained and sold ” to the defendant, and concludes with the usual warranties. The contract of sale was, therefore, complete, and the property was at the risk of the buyer. C. C. 2442, 2443. What was said in Smoot v. Russell, 1 N. S. 528, was in relation to the construction of an instrument. ■ '

II. On the second ground, the only evidence of insanity or madness in the slave, was the unnatural act of drowning herself and child. The inference which is sought to be drawn from this act is, to some extent, rebutted by the proof, which shows that the negro woman was endowed with “ good sense.” The question was one very proper to be submitted to a jury, and their finding upon the same, on the meagre proof in the record relied upon by defendant, must be held conclusive.

Judgment affirmed.


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    A. E. Carter v. T. H. McManus et al.
    The rales which regulate the sale of the property of minors do not apply to sales of succession property made at the instance of administrators for the payment of debts, and consequently tlio sale of succession property for the payment of debts may he made for less than the appraised value in the inventory, and such sale must be held valid and binding upon the minor heirs as well as upon heirs of full age j where a succession is 'accepted with the benefit of inventory, no law requires that the property shall produce its appraised value, nor that a re-appraisement shall be made in case the first estimation shall not he obtained. In such cases, sales, mado in the manner provided by law for sales under execution, will he valid, if thus ordered and approved by a decree of the court.
    ■Where the administrator of a succession is the surviving partner in community of the deceased, he has the same right to purchase at a sale of the oifects of the succession, as any disinterested third person has, and a purchase made by such administrator is as valid and binding on the heirs, whether minors, or of age, as if made by any third party.
    Where a forced heir sued to set aside a sale, mado by his ancestor, upon the ground that it was a disguised donation and operated to his injury — Held: That the burden of proof was on him to show, that no price had been paid for the property, or that the price was below one-fourth of the real value of the property, at the time of the sale.
    Where the evidence in such a case is so slight as to create hut a suspicion against the payment of the price, and to make out in favor of thb heir hut a doubtful case, it is too uncertain to justify the court in setting aside the sale.
    APPEAL from the District Court of the Parish of East Feliciana, Ratliff, J.

      A. M. Dunn, and Hardesty & Hernán, for plaintiff and appellant.

      J. & C. McVea, for defendants.
   Land, J.

The plaintiff is the grandson, and the defendant, T. H. McManus, is the son of Samuel and Sarah McManus, deceased. The plaintiff, who sues the executors of Samuel McManus, has cumulated in his petition several separate and distinct demands against them, and also other demands against T. H. McManus individually.

These alleged causes of action may well be considered in the order in which they are set forth in the petition.

The plaintiff’s first demand is to have certain slaves declared community property as between Samuel and Sarah McManus, and to have his right, as heir to his grand-mother, to an undivided interest in the slaves, recognized and enforced in the settlement and partition of the succession of Samuel McManus. This claim is without any foundation. The evidence establishes that the slaves were the separate property of Samuel McManus, and wore owned by him before his removal from the State of Mississippi to this State.

The plaintiff’s second demand is, to have the judgment homologating the final account and schedule of debts filed by the administrator, in the succession of Sarah McManus, declared null and void, on the ground of the want of citation, and of fraud on the part of the administrator, in allowing and placing on the schedule or tableau of debts, unfounded or invalid claims against the succession.

The want of citation is not proved, as alleged. But, on the contrary, the evidence shows that the plaintiff’s tutor (he being a minor) was personally cited, to show cause why the account and tableau should not be confirmed by a decree of the court, and that his tutor made no opposition to the homologation prayed for by the administrator.

As respects the charge of fraud, alleged as one of the grounds for annulling the judgment, it is only necessary to say, that there is no evidence in the record to sustain it.

The plaintiff’s third demand is, to have the probate sale of the personal property in the succession of Sarah McManus declared null and void, on the ground that the property was sold for cash for less than its appraised value in the inventory, and on the further ground, that the administrator, Samuel McManus, was a purchaser at the sale, contrary to law.

In respect to the first of these grounds, it has been repeatedly held, that the rules which regulate the sale of the property of minors do not apply to sales of succession property, made at the instance of administrators, for the payment of debts. And as a consequence of this ruling, it has been held that the sale of succession property for the payment of debts may be made for less than the appraised value in the inventory. And, as a further consequence of the same ruling', such sales must be held to be valid and binding upon minor heirs, as well as upon heirs of Ml age; for, in estates accepted with the benefit of inventory, no law requires that the propery shall produce its appraised value, nor that a re-appraisement be made in case the first estimation shall not be obtained. The heirs, whether minors or of age, have, at best, but a residuary interest in such estates, which can be ascertained only by a full administration. In such cases, it appears that sales made in the manner provided by law for sales under execution, will be valid, if thus ordered and approved by a decree of the court. See Valdere v. Byrd, 10 Rob. 396; Richard v. Duel, 11 Rob. 508; Succession of Ogden, 10 Rob. 457.

In regard to the second of the grounds alleged as a sufficient cause to avoid the sale, it is only necessary to observe that the administrator was the surviving partner in community of Sarah McManus, and had the same right to purchase at the sale of the effects of the succession, as any disinterested third person had, and that the purchase made by the administrator was as valid and binding on the heirs, whether minors or of age, as if made by any third party. See Acts of 1840, p. 123; Phillip’s Digest, p. 3, sec. 8.

Plaintiff’s fourth demand is, to have two notarial acts of sale from Samuel to Thomas H. McManus, passed respectively on the 6th of December, 1841, and on the 21st of December, 1842, declared null and void, on the ground that they are disguised donations, and operate to the prejudice of the plaintiff’s legitime.

The sale of the 6th December, 1841, purports to have been made for six thousand three hundred and fifty dollars in cash paid, and whether the plaintiff, as one of the forced heirs of Samuel McManus, can avoid this sale, depends entirely on the sufficiency of the proof which he has made. The burden of proof was imposed upon him by Art. 2419 of the Civil Code, and the plaintiff was bound to prove that no price had been paid for the slaves by Thomas H. McManus, or that the price was below one-fourth of the real value of the slaves at the time of the sale, in order to make out his case, and to avoid the sale, as a disguised donation.

For the purpose of proving that no price had been paid, the plaintiff seeks to establish that Thomas R. McManus was without the means of purchasing the slaves. The testimony shows that Thomas H. McManus had lived with, and acted ás overseer for his father, on his plantation, after he attained his age of majority, some five years immediately preceding the sale of the 6th of December, 1841, and had owned in his own right, for the same period of time, property in slaves capable of producing a revenue. With the proceeds of his own labor, and the revenue of his own slaves, for a pes-iod of five years, it cannot be affirmed that Thomas R. McManus was entirely destitute of means, and that he paid no price for the slaves, or that the price was below one-fourth of their real value at the time of the sale.

The sale of the 21st of December, 1842, was made on a credit of one, and two years, and promissory notes were given for the price, which were carried into the succession of Sarah McManus, and accounted for by Samuel McManus as community property. The plaintiff has not proved that this sale was a simulation, _ as he was bound to do, in order to avoid its effect as to himself, one of the forced heirs of the vendor.

The District Judge came to the conclusion, that these sales were donations in disguise, and stated the grounds on which that opinion was founded. These facts, which influenced the mind of the District Judge, are entirely circumstantial in their nature, and are not necessarily inconsistent with the fact of payment of the price by Thomas H. McManus. These circumstances, at most, create but a suspicion against the payment of the price, and make in favor of the plaintiff but a doubtful case. Such evidence is too uncertain to justify the courts in taking an estate from one man, and declaring it to be the property of another.

The plaintiff’s fifth demand is against Thomas H. McManus for the sum of ten thousand dollars, which he alleges T. H. McManus received as a loan, in the name of his father, from the Union Bank, and converted to his own use. This claim is unsustained by the evidence.

The'plaintiff’s sixth demand is against T. H. McManus for the proceeds of the crops of 1841,1842 and 1843, made on his father’s plantation; which crops, the plaintiff alleges, T. H. McManus received, and converted to his own use. This claim is likewise unsustained by the evidence.

The plaintiff’s seventh and last demand is, to have the sale of the land in the succession of Sarah McManus, declared an act of mal-administration, and the executors of Samuel McManus condemned in damages for the same.

The land was encumbered with a mortgage in favor of the Union Bank, and, instead of being offered in the first instance for cash, it was offered and sold on a credit of twelve months, and Samuel McManus became the purchaser at two-thirds of its appraised value. The plaintiff has failed to show that ho was injured by this sale; and where there is no injury, there is no mal-administration, for which an action in damages will lie.

The evidence, however, shows that the crop of cotton and corn of the year 1842, which belonged to the community which existed between Sarah and Samuel McManus, was not inventoried nor accounted for by the administrator ; and as this evidence was received without objection, it entitles the plaintiff to a judgment against the defendants as executors of Samuel McManus. The net value of this crop is shown to have been four thousand and seventy-five dollars, for onelialf of which the plaintiff is entitled to a judgment against the defendants.

Tho evidence also shows, that there were one hundred and thirty-seven shares of the capital stock of the Union Bank, which belonged to the community, and which were not inventoried or accounted for by the administrator. This stock was worth four thousand three hundred and eighty-four dollars, for one-hall’ of which the plaintiff is also entitled to a judgment against the succession of Samuel McManus.

The evidence further shows, that a debt due the community by Robert FluJcer, amounting to the sum of fifteen hundred and twenty dollars, was not inventoried nor accounted for by the administrator. The succession of Samuel McManus is likewise responsible to the plaintiff for one-half of this debt, less the sum of seventy-six dollars, one-half of the commissions for collecting the same.

For the reasons assigned, it is ordered, adjudged and decreed, that the judgment of the lower court be annulled, avoided and reversed, and that the demands contained in the plaintiff’s petition be rejected as in case of nonsuit; and it is' now ordered, adjudged and decreed, that the plaintiff recover of the defendants, the executors of Samuel McManus, upon the evidence adduced, the sum of two thousand and thirty-seven dollars and fifty cents, with interest thereon at the rate of five per cent, per annum from the 5th day of February, 1858; and that plaintiff recover from said executors tho further sum of two thousand one hundred and ninety-two dollars, with interest thereon at the rate of five per cent, per annum from the 5th day of February, 1858 ; and that the plaintiff recover from said executors the further sum of seven hundred and sixty dollars, less the sum of seventy-six dollars, with interest on the same at the rate of five per cent, per annum from the 5th day of February, 1858 ; and it is further ordered and decreed, that the defendants pay the costs of the lower court, and the plaintiff pay the costs of this appeal.

Merricic, G. J., having been of counsel for the administrator of the succession of Sarah McManus, declined sitting in this case.