author: Rost, J. lime. J. Slidell, J. Eustis, C. J. Rost, J.

text:
    Matter of the New Orleans Improvement and Banking Company.
    The proviso in the statute of 27 March/1843, amending article 3333 C. 0., which declare» that that act shall not apply to certain mortgages in favor of the property banks, is not restricted to stock mortgages executed in favor of those banks, nor to those made directly to them, but extends to mortgages which have been acquired by subrogation ,* and where the subrogation was by authentic act, and recorded where similar contracts are required to he recorded, third persons will be affected by notice without any inscription in the books of the recorder of mortgages. [On this point,- the Cow't being equally divided, the judgment below was affirmed.]
    The statute of 27 March, 1843, was intended to enlarge the effect of the statute of 11 March, 1842, amending art. 3333 G. G. It does not follow because these statutes are exceptional, that they should be construed strictly. The construction should be such as will advance the object of the legislature. [On this point, the Oowrt being equally divided, the judgment below was affirmed.]

    Section 19 of the statute of 9th February, 1836,-incorporating the New Orleans Improvement ,and Banking Company, does not exempt from taxation real estate held by the company* The exemption extends only to its capital stock.
    The proviso of section 7 of the statute of 20th March, 1840, amending the charter of the city of New Orleans, limiting the privilege conferred*by that section to two years, applies only to claims for paving, and not to amounts due for taxes.
    The penalty imposed by section 9 of the statute of 9th February, 1836, incorporating the1 New Orleans Improvement and Banking Company, which declares that if the said company shall, at any time, suspend or reñíse payment in lawful money of the United States of any of its notes, bills, or obligations, the holder of any such note, bill, or obligation, or person entitled to demand and receive such money, shall be entitled to receive interest-thereon from the time of such suspension or refusal, until fully paid, at the rate of twelve per cent a year, cannot be recovered without a demand of payment of each note, and proof of failure to pay, and then only from the date of such demand and failure. The suspension of specie payments by the bank, will not relieve the holder from the necessity of malting such a demand, to entitle him to interest at that rate.
    Where an account presented by commissioners appoint to liquidate the affairs of a banking company, has been homologated so far as- not opposed, the judgment of homologation will be conclusive against a creditor who made no opposition below. An appeal taken by a. creditor under such circumstances cannot be entertained, without an assumption of origina! jurisdiction, by the Supreme Court.
    By the statute of 15th March, 1830, section 11, the legal mortgage on real estate in favor of the State for taxes imposed on it, is limited to two years from the time when such tax-became due.
    from the Third District Court of New Orleans, Strawbridge, L, presiding.

      Elmore, Attorney General, for the State.

      T. A. Clarke, for Corning & Co.

      Marsoudet, for the Commissioners and for Alvarez.

      D. N. Mermen., pro se.

      Pitot, for the Citizens Bank.

      W. W. King, for the General Council.’

      Schmidt, for Justamond.

      The judges being equally divided in opinión on some of the points in this case, the judgment of the lower court was, on these points, affirmed, under article 68 of the constitution.
   Rost, J.

Oppositions were made by several of the creditors of the Improvement and Banking Company to the final tableau of distribution filed by the commissioners appointed to liquidate that institution; and the various appeals presented by this record, have been taken from the judgments rendered on those oppositions.

The most important error to which our attention is directed is assigned by J. Corning Co., who are note holders, and claim to be paid out of the proceeds of the real estate, under a mortgage subscribed in their favor by the bank, in 1842. They allege that the District Court erred in giving the precedence to the mortgage of the Citizens’ Bank, on the same property, after it had lost its rank for want of reinscription. The facts material to this part of the case are as follows:

On the 22d of May, 1835, Dominique Seghers sold to the Improvement Bank the land on which the St. Louis Hotel stands. A part of the price was paid in cash, and for the balance of $200,000, it Was stipulated that the bank might, Within a given time, elect to pay it, or to furnish in satisfaction thereof her bonds to that amount, bearing interest payable in 1850. The bank elected to give bonds, and accordingly, on the 21st of March, 1836, the bonds were executed and secured by an act of mortgage of that date. They were paraphed to identify them with the act, and delivered to Seghers. The act of 22d of May, 1835, was duly recorded on the current register of the recorder of mortgages, on the 30th May following. The act of 21st March, 1836, securing by mortgage the bonds referred to, was recorded on the 28th of the same month, not in the current register, and in the order of time, but upon the margin of the record of the act of the 22d of May, 1835. On the 14th April, 1840, Seghers sold the bonds to the Citizens’ Bank, who took from him a transfer of the bonds and subrogation to the mortgage given to secure them, by notarial act. This act was also presented to the recorder of mortgages for recording, and he did accordingly record a memorandum of it, not in the current register, in the order of time, but on the margin of the record of the act of the 22d of May, 1835, and following the record of the act of the 21st March, 1836.

In 1848 this controversy arose between the Citizens’ Bank and the note hold ers, each contending for a priority in rank, as mortgagees on the property sold by Seghers. The note-holders allege that the only valid inscription is that made in the order of its date, in May, 1835; that the subsequent inscriptions having been made in the margin of this, though subsequent in date, cannot affect them, because they are not bound to look more than ten years back from 1845. The Citizens’ Bank, on the contrary, maintains that the recording of the act of subrogation of the 14th April, 1840, was a new and a later inscription, by which a new creditor gave notice of his claim; that, under art. 3330 C. C., a creditor is competent to make an inscription of a public act, or of a judgment in his favor, and that no agency of the debtor is required therein. That art. 3356 C. C. requiring mortgages to be recorded in the order of their date, without leaving any intervals between them, is merely directory to the recorder. They further argue that it is unnecessary to enquire into the question of reinscription, because, under the provisions of an act of 1843, amending art. 3333 C. C., no reinscription was necessary. The District Court dismissed this opposition, and recognized the right of mortgage claimed by the Citizens’ Bank. The opponents have appealed.

The court being equally divided on this opposition, I will proceed to state the reasons of the opinion I have formed.

The act relied on by the Citizens’ Bank in support of the proposition that no reinscription was necessary, is in these words:

“ Be it enacted that art. 3333 of the Civil Code be so amended that, it shall be the duty of the recorder of mortgages, and of judges performing the like duties, to cancel and erase, on the single application in waiting to that effect, by the owner, creditor of the owner, or other pax-ty interested, all inscriptions of mortgages which have existed or may exist on their record for a period exceeding ten years, without a renewal of such inscription: provided, however,' that this section shall not apply to mortgages against husbands for tire dotal or other claims of their wives, to mortgages against tutors and curators in favor of minors, interdicted or absent persons, nor to such mortgages in favor of the property banks.”

The words, such mortgages, have not a precise meaning. But in the french text the general description of hypotMques consenties en favuer des banques hypoihécaires, is made use of.

The appellants argue that, this act must be construed with an act of 1842, which provides that the rules requiring the reinscription of mortgages shall not apply to mortgages which have been or may be given by the stockholders of the vai-ious px-operty banks, and that its application should be limited to stock mortgages. That, if’it embraces other mortgages, it can only be those given dia;ectly to the bank, not those acquired by subrogation, as this has been. That, if it extends to mortgages acquii'ed by subrogation, it is necessary that the subrogation should be duly inscribed in the book of the recoi'der of mortgages, and that the inscription in this case, in the book of 1835, of a memorandum, defective in form, is insufficient.

There is no reference to the act of 1842 in that of 1843. The latter purports to be a direct amendment of the article of the Code, and the reason and policy which induced the first exception, lead me to the conclusion that it was intended to be enlaa'ged by the second enactment. It does not follow that, because this legislation is exceptional, it should be consti-ued strictly. It is one of the means resorted to by the legislatux-e to secure the State against loss on the bonds issued in favor of the property banks; and when the meaning of their enactments is not free from ambiguity, I consider it my duty to make such construction as will advance the object they had in view. I do not think that the words used in the statute were intended to limit its application either to stock mortgages, or to those given directly to the property banks. It is doing no violence to language to consider all mortgages owned by them as mortgages in their favox-, under the statute, without reference to the manner in which they have been acquired.

The subrogation in this case was made by authentic act, and x-eeorded where the law required similar contracts to be recorded; this affected the opponents with notice without any inscription in- the books of the recoa-der of mortgages. It was good against all the world as an alienation. It matters not, therefore, whether the memoa-andum, inscribed in the office of the a-ecorder of mortgages, was defective as an inscription, or recorded out of its proper place. It was at least notice of the subrogation to the recorder; and, under the provisions of the act of 1843, he could no longer cancel the mortgage.

After the subrogation to the Citizens’ Bank, in the manner already stated, this mortgage stood, under the act of 1843, in the same position as mortgages against husbands, tixtors and curators.

That the legislature intended the reserved inscriptions to continue in force, cannot, upon any rule of construction, admit of a doubt. This legislation-no more impaired the obligations of the contract between the bank and the holders of its circulation, than all the other exceptional laws passed of late years, in relation to banks, have impaired those obligations. Registry laws are essentially under the control of the legislature, who may at all times dispense with reinscriptions. I arp of opinion that no reinscription was necessary, to preserve the rank of the mortgage of the Citizens’ Bank.

The Citizens’ Bank has appealed, and alleges that it is aggrieved by the following dispositions of the judgment: 1. All those declaring that the property of the Improvement and Banking Company is subject to taxation, the same being exempted by the 19th section of their charter. 2. The one allowing a privilege to municipality No. One, for the whole amount of their claim, while the same, if due at all, is reduced by law to the last two years.

The 19th section of the charter of the Improvement and Banking Company, provides that the capital stock of the company shall be exempt from taxation. The taxes claimed were not levied upon the capital stock. They are taxes on real estate, which the company was of course bound to' pay.

We concur with the judge of the District Court that, under the 7th section of the law of 1840 (Sessions Acts, p. 51), the municipality No. One, has a privilege for taxes due them, and that the proviso at the end of the section limiting their privilege to two years, is applicable to the claim for paving only.

The Commissioners of the Improvement and Banking Company have appealed from the following dispositions of the judgment. 1. The one allowing to the Citizens’ Bank the sum of $4,693 32, the amount of rents received since the St. Louis Hotel was seized by the sheriff, under their mortgage. 2. The one allowing interest at the rate of twelve per cent per annum to the holders of the notes, from the suspension of specie payments.

It appears that, after the Improvement and Banking Company had gone into voluntary liquidation, the Citizens’ Bank seized the St. Louis Hotel, under the mortgage to' which they had been subrogated by Seghers. It was understood between the par-ties that, in order to save costs and to prevent delay, the seizure should be permitted to go on, the legal right of the Improvement Bank to resist the seizure and sale being reserved. During the continuance of the seizure the rents mentioned in the last petition of appeal accrued, and' the' court allowed them to the Citizens’ Bank. The appellants contend that there is error in this part of the judgment: I. Because the privilege granted to the Citizens’'Bank, by the 26th section of its charter, was not applicable to the present case. 2. Because, even if this privilege actually existed', the Citizens’ Bank could not avail itself of it, because it had become a party to tfre concurso.

These grounds assume that the Improvement and Banking Company was liquidated as an insolvent concern. The reverse is manifestly true. They gave security to the satisfaction of' the Board of currency for their'deposits and circulation, and' remained in possession of their assets as a solvent corporation. Their charter was never declared forfeited by a decree of court. The liquidation, on their part was voluntary, and it was managed exclusively by the stockholders without any participation or interference on the part of the creditors. There' was no concurso, and the Citizens’ Bank had the right to proceed as they have-done. The right to the rents is not contested, if the seizure is considered valid'.

In the case of Bartlette v. The New Orleans Canal and Banking Company, 1 Rob. 543, our predecessors Reid that, the interest allowed by the charter of a bank, when it suspends specie payments, is not due from the time of the suspen.sion, hut only from the day of the demand of payment by the note-holder. We adhere to the decision of the court in that case, and are of opinion that the judgment must be amended, so far as it allows interest on the circulation without a demand.

Under the views expressed in Girod v. His Creditors, 2 Annual, 546, we can take no notice of the appeals of Duncan N. Hennen andP. Alvarez. Mr. Hennen filed no opposition in the District Court, and the judgment homologating the account, so fax as not opposed, is conclusive against him. We could not entertain his appeal without assuming original jurisdiction of the opposition first made by him in this court. Alvarez is in the same situation.

The attorney general made opposition, claiming a privilege for the whole amount of the taxes due on the real estate of the company. The judgment having limited the privilege to the taxes of the last two years, he prays that it be amended. Whatever may have been the state of the law before the passage of the aet of 1830, it appears to us that the district judge decided correctly, under the provision of that act, limiting the privilege of the State to the taxes of the last two years.

The only appeal which remains to be noticed is that of the General Council, which is taken from the judgment of the District Court, disallowing a privilege for the taxes due them. The opposition originally made was founded upon a judgment obtained agains.t the Improvement Bank, with privilege on the St. Louis Hotel. But the Citizens’ Bank was not a party to these proceedings, and the District Court, considering that the laws giving a privilege to the several Municipalities for their taxes, make no provision for those due to the General Council, dismissed the opposition.

It is urged that the tax claimed was imposed by the police juiy, who had the power necessary for laying such taxes as they might judge necessary to defray the expenses of the public works of their respective parishes. That these .taxes are merely assessments on property, and attached to the property itself, and not to the person who may at the time be the owner, in consequence of which a privilege exists upon the property, although no express law gives it. The case of Oakey v. Mayor et al., 1 La. 15, is cited in support of these views.

We are unable to distinguish the taxes imposed by the General Council from • those levied by the Municipalities. They are all of the same nature, and under the settled jurisprudence of this court in matters of privilege, the court below-decided correctly.

lime. J.

I concur in the opinion read by Mr. Justice Rost, and adopt the reasons which he has assigned.

Slidell, J.

If this were a contest between ordinary persons, I should have no hesitation in concluding that the mortgages to secure the bonds given to Seghers would have been gone as to third persons, for want of reinscription. The policy of the law, requiring inscriptions to be renewed every ten years, and dispensing the public from searching beyond that time, would be defeated by a contrary construction.

I cannot concur in the argument that, the recorder may adopt his own mode of keeping his books; and that, if parties want information, they ought to get his certificate, which he, understanding his own books, will so make as to include all' outstanding mortgages. One is not bound to get the recorder’s certificate; but has a right to go and inspect the books himself. Civil Code, 3363. Act of 1826, p. 62. In making that inspection, the law does not require him to search back more than ten years. 1 do not wish to be understood as saying that, a mortgage fully inscribed in the book for the year 1840, although the actual date of its inscription was in the year 1841, would be ineffectual ah initio, against other mortgagees. Perhaps the inscription, being formal in other respects, would protect the party until the year 1850 ; but when the mortgage book of 1840, became superannuated by the lapse of ten years, a party searching is not bound to look }n that book, so for as ordinary mortgage creditors are concerned. It was expressly said in Shepherd’s case that, the object of reinscription is to dispense from searching more than ten years back.

If, as was said in the case of Shepherd, a reinscription made in January, 1846, in the book of that year was void, because it does not in itself contain a description of the mortgaged property, but merely a reference to the description in aD antecedent inscription, in January, 1836, a fortiori, a defective reinscription in 'file book of 1835, upon'the margin of an act inscribed in 1835, must be held of no effect in 1848.

The next enquiry is, whether the Citizens’ Bank, the subrogee of the mortgage given by the Improvement Bank, stands, quoad that mortgage, on the same footing as an ordinary person. In consideration of the interest of the State in the so called property banks, the legislature thought proper to engraft upon the general law, an exception in their favor, by the act of 1842, entitled an act to amend art. 3333 of the Civil Code. By this statute it was enacted that, the article be so amended that, the rule requiring the re-inscription of mortgages at the expiraration of ten years from the date of their registry, shall not apply to the mortgages which have been, or may be, given by the Stockholders of the various properly banks of this State. It is perfectly obvious that, this act does not cover a mortgage given by the Improvement Bank to Seghers.

Is the case aided by the act of 1843, entitled an act to amend article 3333 of the Civil Code 1 By this statute, authority is given to the recorder of mortgages to cancel inscriptions that have existed for ten years, without a renewal of such inscription ; provided, however, that this section shall not apply to mortgages against husbands, for the dotal and other claims of their wives, to mortgages against tutors and curators, in favour of minors, interdicted, or absent persons, nor to such mortgages in favour of the property Banks—niaux hypotheques consentios en favour des Banques hypothéeaires.

How, here, the dispensation of a general duty, imposed upon eveiy body, and from which the property banks had, under the preexisting law, been exempted, in the sole case of mortgages given to them by their stockholders, is inferred by way of a negative pregnant. Even admitting that the grant of dispensation may be so inferred, it seems to me that such an inference, establishing an exemption in derogation of common right, should be restricted to the express class of mortgages designated in this proviso-—that is to say, mortgages in favour of the property banks—hypotheques consenties en faveur des Banques hypotMcaries.— The utmost latitude, which, on sound principles of construction, would seem admissible in favor of the property banks, would be to consider this inferential legislation as covering all mortgages given by any mortgagor directly to them; especially when we remember that the act of 1842, which, it is reasonable to presume, was in the contemplation of the legislators of 1843, gave the properly banks a dispensation in a much more limited class of cases, to wit, mortgages given to them by stock-holders.

However, it is not now necessary to give an unqualified opinion upon the extent of the exemption, as regards the origin or nature of the morgage. Am other view seems to me conclusive of this case.

If the exemption from reinscription is to be extended, under the act of 1843, to mortgages not given to the property banks originally, but held by them as subrogees, it is, at any rate clear that, the subrogation should be duly inscribed. The public should be duly informed, that the mortgage has passed into the hands of a favored class of creditors, exempted from the necessity of reinscription. This certainly was not done by inscribing in the book of 1835, in the margin of the original mortgage, a mere memorandum, defective in itself, that Seghers had transferred the mortgages of 1835 and 1836 to the Citizen’s Bank. Nor can I perceive how the fact of the subrogation being made by a notarial act, relieved the Citizens’ Bank from the necessity of recording the subrogation in the mortgage office.

I therefore dissent from the decree rendered in this cause.

Eustis, C. J.

My opinion is that, the act of 1843 does not apply to the case of a mortgage like that under consideration; and, consequently, I concur in the view taken by Mr. Justice Slidell, and dissent from the opinion of the other judges.

Rost, J.

The court being equally divided, on the opposition of J. Corning Co. to the mortgage claim of the Citizens’ Bank, on the ground of want of reinscription of the mortgages, it is ordered that, the judgment of the District Court on that opposition stand affirmed. It is ordered that the judgment on the other oppositions be amended, so as to allow interest at the rate of twelve per cent per annum on the circulation, from the day of the demand of payment, instead of allowing it from the suspension of specie payments. It is ordered that the judgment, as amended, be affirmed, and that the account of distribution be rendered in conformity with the foregoing opinion. It is is further ordered that one-half of the costs of the court below be paid by the Improvement Bank, and that the remainder of those costs, and those of this appeal, be paid by the other appellants.


source: Caselaw Access Project

author: Rost, J. Slidell, J.

license: Public Domain

text:
    Same Case—Application for a Re-hearing.
    Section 2 of tlie statute of 10 March, 1845, conferring a privilege on the several parishes of the State for taxes imposed on property in their respective limits, extends to taxes imposed by the General Council of New Orleans.
   Rost, J.

In this case a re-hearing'having been asked by the counsel for the General Council, and the court being of opinion that the General Council, under the act of 1845, is entitled to a privilege for the taxes for the year 1845, and the counsel for the Citizens’ Bank consenting to an amendment of the decree so as to allow the amount claimed for taxes for that year, with privilege :

It is ordered by the court that, the decree heretofore rendered be so amended as to allow the sum of three hundred dollars, with privilege to be paid out of the funds coming to the Citizens’ Bank, and that the General Council be recognized as ordinary creditors for the balance of their claim, to wit, the sum of twenty-six hundred and twenty dollars and fifty cents, and be paid accordingly. And it is further ordered that the costs of the appeal of the General Council be paid by the Citizens’ Bank.

Slidell, J.

I am in favor of opening this case by rehearing, for the reasons expressed in my former opinion.


text:
    Same Case—Rule by Corning et al.
    The fact that a judge of the Supreme Court was absent from the bench at the time of the argument of a'case, will not disqualify him from taldng a part in its decision.
   T. A. Clarke, for Corning 8f Co., on suggesting to the court that, on the 18th of April last, the case of the Improvement and Banking Company was argued before three of’ the judges of the court, the fourth judge being absent, and that two of the judges present at the argument have agreed in reference to the matters in controversy, and that they form a majority of the court which heard the cause ; moved, that the Citizens’ Bank do show cause why the decree entered on the 6th instant, supra p. 477, should not be annulled, and one entered in conformity with the opinions delivered by the two judges who formed a majority of the court which heard the case. After argument, this rule was discharged.


author: Rost, J.

text:
    Succession of Foster.
    The homologation of a tableau of distribution presented by the widow and administratrix of the succession of a deceased husband, recognizing a mortgage of a third person upon certain slaves belonging to the succession, and ordering its payment, is conclusive against her right subsequently to claim a legal mortgage on the same property to the exclusion of such third person.
    Where no neglect or maladministration is alleged,- and there is no prayer that the administratrix he held liable beyond the fund acknowledged or shown to be in her hands, the mere fact that the assetts in her hands, at the time of the homologation of the first tableau of distribution, and which were ordered to be applied to the payment of a mortgage claim, were sufficient at that time to pay it, will not authorize,.in an opposition by the mortgage creditor to the second tableau, a judgment against the administratrix, individually, for the amount of the claim, with the interest accrued since the homologation of the first tableau.
    Money paid by an administratrix to a creditor of a succession, out of the proceeds of property subject to a previous mortgage, cannot be recovered back by the administratrix, where, at the time of the payment, there were funds in her hands proceeding from the sale of the mortgaged property sufficient to extinguish it, though, by the laches of the administratrix in suffering the mortgage claim to remain unpaid and from the accumulation of interest, the fund has become insufficient to extinguish it. She cannot avail herself of her own laches to recover money lawfully paid.
    from tie District Court of St. Maty, Voorhies, J.

      W. B. Lewis, for the appellant.
    Maskell, for Hillyer and Bobbins.

      Sjplane, for the heirs of Thomas Foster.
   The judgment of the court was pronounced by

Rost, J.

In 1835, the widow and administratrix of Levi Foster, whoso succession was insolvent, filed a tableau of classification, upon which Hillyer and Robbins were placed as mortgage creditors upon certain slaves of the succession, therein named, for the sum of $3,666, with interest at the rate oí' ten per cent per annum from the 22d of October, 1831, until paid; this debt being liquidated by a judgment of the Supreme Court. The decree homologating the classification authorized the administratrix to make payments in conformity therewith, as funds came into her hands. She subsequently made various payments on this claim, by which it was reduced to 2,709 dollars and 48 cents, with interest at ten per cent from the 25th of October, 1843. In 1845, the administratrix filed in court a second and final tableau, showing the payments made by her, and the assetts in her hands. In this tableau the proceeds of the sale of the slaves mortgaged, to Hillyer and Robbins, and the interest received on those proceeds from the purchasers, are stated to amount to the sum of $6,461. The claim of Hillyer and Robbins is represented as amounting to the sum of $5,477 61, upon which payments had been made to the amount of $4,863, 51. The tableau further shows that the administratrix has paid to the heirs of Thomas Foster $1009 38, under a judgment which decreed to them the balance of the proceeds of the slaves mortgaged to Hillyer and Robbins, after satisfying the claim of the latter. The tableau represents the sum coming to Hillyer and Robbins as being only $596 72. These creditors have made opposition, on the ground that, the tableau, so far- as it concerns them, is erroneous; they ask that the administratrix be held to strict proof of the payments made by her; that the. tableau be amended; and that they be placed thereon, as they were on the first tableau, and allowed the sum and interest which they claim.

The heirs of 1 liornas Foster also made opposition, on the ground that they are privileged creditors, and have a tacit mortgage on the property of the succession for $10,000, and that they are not placed on the tableau as such. The administratrix answered this opposition, and claimed, in reconvention, the sum of $1009 38, alleged by her to have been paid in error to these parties.

The opposition of Hillyer and Robbins was sustained for the whole amount of their claim ; and judgment was rendered against the administratrix, in favor of the heirs of Thomas Foster, for $120, with interest at ten per cent'from the date of the last payment made to them.

The administratrix has appealed. The sum now due to Hillyer and Robbins is correctly stated by their counsel, and they are entitled to the interest allowed by the judgment under which they claim.

The administratrix has applied one-third only of the price of the slave, Hamilton, to the jpayment of their claim, and has retained the remaining two-thirds under her legal mortgage. This she has no right to do. The judgment on the first tableau is conclusive against her. The real amount in her hands is $7,084 47. She has made payments to the amount of $4,863 51, leaving a balance of $2,221 16, which Hillyer and Robbins are entitled to receive. The payments made to the heirs of Thomas Foster cannot prejudice them, the judgment of the court being that their mortgage be first satisfied.

The District Court held that, as the assetts in the hands of the administratrix when the tableau of classification was homologated, were sufficient to pay the entire claim of Hillyer and Robbins, she was bound to pay that sum, with the additional interest which has since accrued.

We are of opinion that the pleadings do not authorize that conclusion. No 1 . neglect or maladministration is alleged in the opposition; and there is no prayer that the administratrix be held liable beyond the fund acknowledged or shown to be in her hands. That opposition cannot, therefore, be extended beyond that fund.

The heirs of Thomas Foster have not made out their claim, nor does their opposition contain any allegation under which the administratrix can be made personally liable; but we are of opinion that the payments made to these parties were not made in error; after they took place, the fund remaining in the hands of the administratrix was sufficient to pay the entire claim of Hillyer and Robbins. These payments, therefore, were lawful when they were made; and if, through the subsequent neglect of the administratrix, this claim has been increased by the accumulation of interest, and the fund remaining is no longer sufficient to satisfy it, she cannot be permitted to avail herself of her own laches, for the purpose of recovering money lawfully paid.

It is, therefore, ordered that the judgment in this case be reversed. It is ordered that, the tableau be amended, in conformity with the foregoing opinion; and that Hillyer and Robbins receive from the administratrix, out of the proceeds of the slaves mortgaged to them, the sum of #2,221 16. It is ordered that the costs of the District Court on this opposition be paid by the administratrix, and those of this appeal by the opposing creditors.

It is further ordered that the opposition of the heirs of Thomas Foster be dismissed, with costs, and that the claim of the administratrix against them in re-convention be disallowed.


author: King, J.

text:
    Fay v. Chambers.
    A confirmation, by commissioners appointed to ascertain the rights of persons to lands, of a claim for a specified number of acres between certain boundaries, being a complete grant from the United States, cannot be affected by any errors committed by officers of the government, in surveying and locating the claim.
    from the District Court of St. Mary, Overton, J.

      Olivier, for the plaintiff.

      Splane, for the appellant.
   The judgment of the Court was pronounced by

King, J.

This is a petitory action, in which the plaintiff alleges that he is the owner of a tract of land, measuring eight and one-third arpents, more or less, front, on both sides of the bayou Téche, by forty in depth, upon which the defendant has entered, and committed various acts of trespass and waste. He prays to be decreed to be the owner of the land described in his petition, and for damages. The defendant sets up title to all the land in his possession, acquired by purchase from the United States. A judgment was rendered in favour of the plaintiff for the lands, leaving the question of damages open; and the defendant has appealed.

The plaintiff exhibits as his title : 1st. A requete of Hilaire JBoutté, junior, for six arpents front, more or less, on both sides of the Téche, upon which there is an order of survey for the six arpents prayed for. 2dly. The confirmation of this claim as “ a tract of land containing four hundred and eighty superficial arpents, equal to four hundred and six and 21-100 american acres, founded on an order of survey, in favour of Hilaire Boutté, for six arpents in front by forty arpents in depth, on both sides of the river Téche,” “betwixt the boundaries of Mr. Boudreau and that of Mr. Sorrel.” 3diy. A complete chain of mesne conveyances from Boutté to himself.

A survey of the township, in which the /land is situated, was made by a United States’ surveyor, who located the title of the plaintiff on the western side of the Téche, as a claim for only six arpents in front by forty in depth. In 1848, the defendant purchased from the government 101 62-100 acres of the land on the east side of the bayou, which, it is contended, belongs to the Hilaire Boutté title,- and which.forms the matter of controversy in this suit!

It is clear that, the officers of the government fell into error in locating the' Boutté title, which has been laid on but one side of the stream, and has assigned to it but six arpents front by forty in depth, being only one-half of the quantity for which it was confirmed. The confirmation was a complete grant, from the government, of a specified number of acres, on both sides of the bayou, between certain named boundaries, which the officers have no authority to reduce; and no action of theirs can divest the plaintiff of his title, or impair his right of ownership.

The only contest relates to the land on the east side of the river. On that side, the plaintiff was entitled to six arpents front, by forty in depth, if that quantity could be obtained. It appeal's, however, from surveys, that the lines of this tract, at a short distance from the front, come in conflict with the claim of Jacques Sorrel,- which, it is conceded, is older and superior to that of Boutté, leaving on that side but one hundred and one and 62-100 acres applicable to the latter. For that quantity the district judge, no doubt, intended to render judgment. The decree, however, may be susceptible of a different construction; and, with the view of removing future sources of litigation, we will change its phraseology, without altering, as we conceive, its substance, so that it will read as follows :

“ It is decreed, that the plaintiff be the owner of the land in controversy, consisting of one hundred and one 62-100 acres, having a front of six arpents, on the east side of the bayou Téche, lying between the side lines shaded in pink, extended back until they intersect the lines of the claim of Jacques Sorrel, as represented on the plat of survey, made by A. S'. Fields under the order of court on file in the cause, and marked no. 11; and that the plaintiff be qiiieted in his possession of the same. It is further decreed, that the question of damages be left open.” Thus construed, the' judgment appealed from is affirmed, with costs.


author: Eustis, C. J.

text:
    Ledoux et al. v. Smith.
    Though a writ*of provisional seizure Was illegally issued, and the illegality was alleged in the answer, yet, if no application was made to the court below to quash the proceedings under the writ, and there was no action of the court upon it, the illegality cannot he considered on appeal.
    from the District Court of St. Mary, Overton-, J,

      Olivier, for the plaintiffs.

      Splane, for the appellant.
   The of the court w.as nounced by

Eustis, C. J.

This is an action to recover the amount of certain advances for supplies to the defendant’s plantation, made in the year 1844. The plaintiffs took out a writ of provisional seizure, under which a quantity of sugar, forming part of the crop of that year, on which the plaintiffs claimed a privilege by virtue of the act of 1843, amendatory of article 3184 of the Code, was seized. The plaintiffs had judgment for the amount of their debt and interest, giving them also the privilege claimed by them on the sugar provisionally seized, or the proceeds thereof, and directing the sheriff to pay over the same to the plaintiffs, in satisfaction of the debt, interest and costs. The defendant has appealed.

"We think the debt is established by sufficient evidence, and that it bears a privilege, under the proper construction of the act of 1843 and article 3184 of the Code. Welsh v. Barrow, 3 An. 133. Farrar v. Rowley, 3 An. 276.

It is argued that the plaintiffs had no right to the-writ of provisional seizhre, in the authority of the case of Smith v. Smith, 2 An. R. 448. No application was made in the court below to quash the proceedings under the writ; and, although the objection to the issuing of the writ was contained in the defendant’s answer, no action of the court was had upon it; and we are not at liberty to consider the subject on the appeal.

The sugar- was seized by the sheriff, on the 7th day of February 1845, and, on the fourth day of April ensuing a bond appears to have been' executed by the defendant, with Henry C. Dwight as his surety, the condition of which was, to to deliver the sugar to the sheriff whenever called upon to pay the amount adjudged to be due by the defendant to the plaintiffs, by privilege, as obtained by them. The sheriff held 150 hogheads of sugar under several writs against Smith, and, it seems, the day after the execution of this bond, it was sold under an execution issued by the Union Bank, and Dwight became the purchaser. Of this lot that part effected by the plaintiffs’s seizure, formed a part. The sale was for cash, and, as the defendant is the sole appellant, we can perceive no objection to the judgment of the District Court as it now stands.

Judgment affirmed.


text:
    Louisiana State Bank v. Dumartrait et al.
    Where the death of an endorser is known, notice of protest, put into the post-office, addressed to the deceased, is insufficient; the notice should have been addressed to his executor. But, if the notice reached, or came to the knowledge of, the executor, notwithstanding its defective address, the succession would not he discharged. So a notice, under such circumstances, addressed to the deceased, if served on the executox-, at his dwelling, is sufficient.
    Under the statute of 13th March, 1827, s. 1, the certificate of a notary that, a written notice of protest was served at the domicil of the endorser, in a village named in the certificate, is sufficient, though it do not state the person on whom the service was made.
    from the District Court of St. Martin, Voorhies, J.

      Magill, for the plaintiffs.

      Simon, for the appellants.
    The endorser was dead, and the notaiy knew it, since he served the notice at the domicil of the executor. Why then did he not address the notice to the executor himself, instead of addressing it to a dead man ? The general rule is that, if the party be dead, notice should be given to his executor or administrator. Chitty on Bids, pp. 242 and 222. Notice should be addressed to the executor or administrator, and not to the deceased, when, as in this case, the holder of the note knows the name of such executor or administrator.

      But, it will be said that, the notice was served at the domicil of the executor. It is true, the certificate says so; but is that sufficient to indicate that the executor got it ? Served at the domicil! With whom was it left ? and in what manner was it served? For aught that appears, it may have been handed over to a slave, and that would be bad. It may have been thrown in the yard, and there left, or picked up by a servant, or by a stranger. There is nothing certain as to the question whether it reached the executor, and the certificate should shew, at least, such facts as would enable the court to conclude that the party entitled to notice, must have received it in due time. Why was not the notary, or his witnesses, who accompanied him, called to prove the manner in which the service had been made at the domicil of the executors ? Why did the plaintiff limit his evidence as to such service, to what is recited in the certificate ? Undoubtedly because said service was defective, and would have been shewn to be so. I am aware that, in divers cases, the Supreme Court has decided that, a notice left with a clerk in a store, or with a partner in the counting-room of a commercial house, or with a white servant in the endorser's house, or put on the counter in the endorser's 'stpre, or with a student in a lawyer's office, was sufficient ; but those cases are quite different from this. The manner in which the notice was served presented to the mind a fact, from which it was properly presumed that the notice x-eached the party. It has been also decided that, a notice left with a slave, is bad, 9 La., 334; and that a notice, stated in the notai-y’s certificate to have beep sent by an expx'ess, without naming him, is insufficient. JDuralde v, Guidry, 5 N. S. 6§. The word domicil, as we undei'stand it imder our laws, is too loose, for the pui-pose intended. It does not mean only the house in which the party lives, but according to the 42d article of the Civil .Code, “ the domicil of each citizen is in the parish whex-ein his principal establishment is selected.” The word domicil is clearly insufficient to indicate where the notice was left.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action on a promissory note, against the executors .of the endorsei’s, and the only point that has been i-aised by counsel is, as to the sufficiency of the notice to the defendant, Pierre Gary, one of the executors of the late Louis Gary.

The certificate of the notary states that,' the notice was served, by means of p written notice addressed to the endorser, L. Gary, and served at the domicil .of P. Gary, testamentai-y executor of L. Gary, at St. Martinsville.

There are two objections raised to the validity of the notice, thus certified to have been given. The first is, that the address was wrong, and that it ought to have been to the executor, and not to the deceased. Had the notice been put in the post-office, with this address, the succession of the deceased endorser would not have been bound by it, his death having been known at the time, according to the case of the Cayuga Bank v. Burnett, 5 Hill’s Rep. 238. But, if the notice reached, or came to the knowledge of, the executor, notwithstanding the defective direction-, it seems to us clear that the succession would not ¡be discharged for want of notipe.

The notice was served at the domicil of the executor, in St. Martinsville ; and the second objection is, that the certificate is defective, and does not establish that a valid notice was given, because it does not state the manner in which the service was made, nor with whom the paper was left; and that the word domicil )S too loose and indefinite, to fix the place at which the service was made.

The act of 1827, by which the certificates of notaries were made evidence against endorsers of the service of notices' of protest, has been frequently the subject of adjudication, in cases arising under it; and the decisions of our courts, on the duties of notaries, under the act, have been followed by them as rules of conduct. We think these decisions conclusive on the point raised in this case. On the authority of the cases quoted by counsel—and, we believe, that there are some recent decisions to the same effect—we think the certificate of the notary is sufficient, without stating the person on whom the service was made. Franklin v. Verbois, 6 La. 731. Commercial Bank v. Gove, 15 Ib., 114. Bank of Louisiana, v. Mansker, Ib. 115, we think the word domicil, in the connection in which it stands in the certificate, to wit, the domicil of P. Gary, in St. Martinsville, is sufficiently definite. It means, in common parlance, his habitual residence in that village; and, whether taken in its popular, or strictly legal sense, a notice of protest served there, is well served.

Judgment affirmed.


text:
    Patout, Administratrix v. Rawls.
    Where there is sufficient time between the date and the return day of a citation, the fact that the return day was not during any regular term of. the court, is immaterial.
    from District Court of St. Maiy, Voorhies, J.

      Olivier, for the plaintiff.

      Divight, for the appellant,
   The of the court was

nounced by

Rost, J.

This suit is brought to recover a mortgage debt of $1,279. The defence is that, the defendant has been released from the payment of the claim. The defendant excepted that he had not been served with a copy of the citation, and that he was cited to appear on the third monday of February, which is not a regular term of the court. These exceptions were overruled, and judgment rendered in favor of the plaintiff. The defendant appealed.

There is no error in this judgment, The defendant was properly cited, and, as there was sufficient time between the date of the citation and the return day, it is not material that that day was not a regular term of the court.

On the merits, we are bound to give legal effect to contracts, according to the true intent of all the parties to them. C. C. 1940 Kilgore and the defendant were partners, and owed the plaintiff the sum of $7,057, secured by mortgage. The partnership was dissolved; and Kilgore, receiving in his share of the assets the largest portion of the property mortgaged, assumed the payment of $5,777 65, being the sum claimed, which the defendant, in the same act, acknowledges to be due by him individually, and which he binds himself to pay the plaintiff. Subsequently Kilgore gave Patout an additional mortgage on other property, to secure the sum he had assumed to pay; in consideration of which, Patout discharged the defendant from all further liability for that sum.

The defendant’s counsel contends that this discharge was for the entire debt; but it is manifest that Patout did not intend to give such a discharge, nor do we think that the act would, under any circumstances, authorize that interpretation.

Judgment affirmed.


author: Kiwe-, J.

text:
    Kemper et al. v. Splane et al.
    No action can be instituted against the surety on an administrator’s bond, until the necessary stops have been taken to enforce payment from the principal. Stat. 16 March, 1842, sec. 6.
    Where a judgment has been rendered in an action against an administrator, removing him from office and ordering him to render an account, the institution of an action, by the heirs, against him on his bond for the amount of their inheritance, is not inconsistent with the previous action; but proceedings should be suspended until the administrator has rendered ■the account ordered in the first action, or until the delay allowed to him for that purpose has expired. The settlement of the account ordered would form the basis of a judgment in the second action. But where, in such a case, the plaintiff proceeds to trial, his action must he dismissed.
    from the District Court of St. Mary, Voorhies, J.

      Gibbons and Dwight, for the appellants.

      Maskell, for the defendants.
   The judgment of the court was pronounced by

Kiwe-, J.

The plaintiffs, who are heirs of the late Nancy Kemper, deceased, have instituted this action against the defendant, Splane, who is the administrator of her succession, and Sparks, the surety on his bond, claiming the amount of their respective inheritances from their mother. They allege that the administrator has received the proceeds of the property sold, which he retains, and that he declines rendering a final account, and takes no steps to bring his administration to a close.

Various exceptions were pleaded by the administrators, which, having been overruled, the defendants answered that, in a suit then pending in the same court, the administrator had been required to file an account of his administration, and, until the rendition of that account, the filing of which had been delayed from no fault of the administrator, no action on the bond could be maintained. This ground was sustained by the district judge, who also held that, under the act of 1842, no action could be instituted against the surety on the bond, until the necessaiy steps had been taken against the principal, to enforce payment. The suit was dismissed, and the plaintiffs have appealed. '

The judge did not, in our opinion, err. As regards the surety, the actof 1842 is imperative, that the necessaiy steps must be taken to coerce payment from the principal, before proceeding against the surety on an administrator’s bond. See Acts of 1842, p. 303, § 6.

It appears that a suit had previously been instituted against the administrator to render an account and to remove him from office, in which a judgment had been rendered, at the same term of the court at which the present judgment was rendered, dismissing him from his trust, requiring him to render an account of his administration, and to pay ten per cent interest on the amount of the succession funds in his hands, from which the administrator appealed.

The two actions were not inconistent; but we think that further proceedings .should have been suspended in this suit, until the administrator had rendered the .account ordered in the previous decree, or until the delay allowed to him for that purpose had expired. The settlement of the account ordered would then have formed the basis of a judgment in this action. To have proceeded in the present suit, to determine the amount of the indebtedness to each heir, would have been to settle the succession of the deceased, and to render useless that part of the previous decree which ordered the administrator to account. The plaintiffs, however, having proceeded to trial, no alternative was left but to dismiss their action. Judgment affirmed-


author: Etjstis, C. J.

text:
    Gautier v. Briault.
    Simulation, ais between the parties to an authentic act, cannont be proved by parol.
    from the District Court of Lafayette, Overton, J.

      Mouton and Magill, for the plaintiff.
    Fraud may be proved by any species of evidence. C. C. 1842,1875. 2 An. 458, 908. 4. La. 351. Green-leaf on Ev. 55, 248, 284. 2 Story’s Equity, § 1531.

      Crow and Greig, for the appellant.
    The act cannot be contradicted by parol. C. C. 2256. 11 Mart. 630. 5 N. S. 250. 6 N. S. 206. 3 La. 460. 4 La. 169. 9 La. 566. 5 Rob. 116. 1 An. 108. The act could be cancelled only on the production of a counter letter. 8 N. S. 448. 3 R. 452. 6 R. 44-7.
   The judgment of the court was pronounced by

Etjstis, C. J.

The plaintiff, in an authentic act, acknowledged himself to be indebted to the defendant in the sum of four thousand dollars* which he promised to pay as soon as he was able; and to secure-the payment of the sum-and interest he mortgaged certain property, described in the act, to the defendant, who was a party to the act and signed it. The present suit is to annul that act, on the ground that there was no consideration for the acknowledgment of the debt, and that no debt whatever, either at the time or since, was due by the plaintiff to the defendant, and that the act was passed out of friendship solely for the defendant and to aid him in his business. The plaintiff had judgment, and the defendant has appealed.

A bill of exceptions, taken by the defendant at the trial, presents the question, whether the alleged simulation of the act can be proved by witnesses. The authorities cited by the counsel show that, it is a settled rule of our jurisprudence that, a simulation, as between the parties to an authentic act,- cannot be proved by parol. Delahoussaye v. Davis, 19 La. 411.

By the plaintiff’s own allegations there was no fraud in the inception of the act, and the subseqrrent intent of the defendant to avail himself of its provisions, and bxact the sum acknowledged to be due by the plaintilff, does not authorize the admisión of parol evidence as to the cause or consideration of the act.

The case is, therefore, remanded to the District Court, with instructions to the judge to refrain from receiving the evidence of witnesses against the tenor of the authentic act; and it is ordered that the appellant pay the costs of this-appeal.


text:
    Dwight, Curator, v. Allen et. al.
    The appeal must be dismissed, where the certificate of the clerk merely states that,- “ the record contains all the papers on file in the snit.” C. P., 896.

      from the District Court of St. Martin. Voorhies, J.

      L E. Morse and Nicholls, for the appellant.

      Magill and Maskell, for the defendants.
   judgment of the court was pronounced by

King, J.

The motion made to dismiss this appeal, on the ground that the clerk of the District Cdurt has not certified that the record contains all the testimony adduced on the trial, must prevail. The certificate of the clerk is that, “ the record contains all the papers on file in the suit of William C. Dwight, Curator &c v. W. P. Allen and David Bell.” This certificate is clearly insufficient. C. P, art. 896. 2 An. Rep. 11. We find in the record no statement of facts nor bill of exceptions.

Appeal dismissed.


text:
    Succession of Guidry.
    A promise to pay a debt due by a deceased husband, made by the wife subsequently to his death, when the marital authority had ceased, is binding on the wife.
    from the District Court of St. Martin, Voorhies, J/

      Magill, for the administrator, appellant.

      Simon, contrá.
   The of the court was pronounced by.

King, J.

The administrator of the succession of Aspasie Quidry, deceased, presented a tableau of distribution of the funds in his hands, which was opposed by Cohanin, and by Follain, Bellocq and Degelos, who claimed to be creditors of the deceased, and complain that the administrator refused to recognize them as creditors. Their oppositions were sustained, and the administrator has appealed.

The claim of Follain, Bellocq and Degelos, is fully sustained by the evidence. The deceased repeatedly admitted the correctness of the demand, and that she was liable to pay it, and that the debt was contracted for supplies of various kinds which were necessary for her household and for her plantation. At the time that this debt occurred, the deceased was separated in property from her husband, who possessed no means for the support of his family. The proof of the separation, it is true, was made by parol; but it was admitted without objection.

The claim of Cohanin is shown to have been one due by the husband of the deceased, which the deceased frequently promised to pay. She finally gave a draft for its amount, which was not paid. The promise to pay this debt having been made subsequent to the death of her husband, when the marital authority had ceased, the judge did not, in our opinion, err in enforcing the obligation.

Judgment affirmed.


author: Rost, J,

text:
    Fontenot v. Fontenot.
    An action against a tutor for neglecting to collect a debt due to the minor, is prescribed by four years, from the majority of the latter. C. C. 356.
    from the District Court of St. Landry, Overton, J.

      Dataste, for the appellant.

      W. B. Lewis, for the defendant.
   The of court was pronounced by

Rost, J,

The plaintiff sues the legal representatives of his tutor, for a sum of money, which, he alleges, the latter had made himself liable to pay. The defence is a plea of prescription, under article 356 of the Code. That plea was ■sustained in the court below, and the plaintiff appealed.

It appears, that Don Diego Lafleur, the ancestor of the defendant, was appointed tutor of the plaintiff, in place of Clemence Richard, the natural tutrix, who lost the tutorship, by contracting a second marriage, without having been ■authorized to retain it. Clemence Richard and her husband had acknowledged in writing, that they had received $1,494, inherited by the minor from his father.

After the appointment of Lafleur, Clemence Richard transferred to him, a claim against Jean Marie DebaillO'n, for $1,386 27, hearing ten per cent interest, which Lafleur bound himself to apply, when collected, to’ the payment, so far as the sum would go, of the sum due by her as tutrix. Lafleur obtained a judgment upon this claim; but, before it was satisfied, Debaillon died insolvent ; and there is no proof that any portion of it has been paid. It is not pretended thafthe balance due by Cltrhence Richard has ever been paid to Lafleur. We cannot distinguish this case from that of Offutt v. Collins, 11 Rob. 491. The neglect of the tutor to collect those debts of his ward, was, in the language of the law, one of the acts of the tutorship,- respecting ■yfhich he should have brought his action within four yebrs after he became of age.” The plea of prescription must prevail. Judgment affirmed:


text:
    Edmonds v. Her Husband.
    Where thfe petition in am action for separation a mensa eb Ihoro contains nó prayer for a partition of the property of the community, and the defendant has had no notice of an application foi1 that purpose, a separation- of property cannot be decreed at the time of rendering judgment for a separation.
    from the District Gourt of St. Landry; Overton, J.

      Swayze and-

      Taylor, for the plaintiff.

      Martin and Linton, for the appellant.
   The' judgment of the comf was pronounced by

Rost, J.

The plaintiff sued her husb’aud for a Separation1 from bed and board, on the ground that he kept his concubine in the common dwelling. The defendant has pleaded abandonment and adultery on the part of his.wife, and prays that he may be divorced from her. He has appealed from the judgment rendered against him; and the plaintiff asks that it be amended, so as to decree ■a dissolution of the community and a partition of the property composing it.

The allegations of the petitition are fully sustained by the evidence. The defendant introduced witnesses to prove adultery on the part of the plaintiff; but the judge of the District Court informs us that he attached no weight whatever to their testimony.

We have neither means nor inclination to differ fi’om our learned brother, in a matter of this kind. The virtuous indignation which he cannot conceal in redressing the wrongs of a poor colored woman, shows a proper sense of his duties as a guardian of public morals.

A separation from bed and board carries with it a separation of goods nnS effects; but as the petition contains no prayer for a partition of those effects, and the defendant has had no notice of this application, we think it was properly rejected by the district judge. Judgment affirmed-


author: Slidell, J.

text:
    Dwight, Syndic, v. Simon et al.
    Where a cessio bonorum has been accepted by the court and the creditors, and a syndic? been appointed and qualified, all the property and rights of property of the insolvent are vested in his creditors, represented by the syndic as their trustee. Stats. 20 Feb. 1817; 29 March, 1826.
    All the rights of an insolvent vest in his syndic, whether placed on his schedule or not-
    The rights vested in the creditors by a cessio bonorum are unaffected by subsequent proceedings of the insolvent, in causing himself to be declared a bankrupt, under the act of Congress of 19 August, 1841. Per Cur: Nothing passes to the assignee of the bankrupt, but the residuary interest of the insolvent after the full administration of the insolvent estate, and the entire fulfilment of the trust thereby created in favor of the creditors
    The appointment of an administrator, regularly made, will not be rendered void by the subsequent discovery of a testament; nor does the authority of the administrator cease from the moment of the probate and order of execution of the will. His capacity to prosecute an existing suit will not cease, even after the executor named in the will has been duly qualified,- where the latter, after praying for an inventory, takes no?further steps in the administration, and does nothing whatever to indicate that he-takes any interest in the prosecution of an action in which the interests of the succession are seriously involved.
    The capacity to exercise the office of administrator, does not cease, ipso facto, by the bankruptcy of the individual. It may be a ground for his removal; but, of itself, does not impair his official authority.
    The exception of res judicata must be specially pleaded.
    Where a partner charged with the settlement of the partnership employs an agent to act for the benefit and in the business of the partnership, and the latter, even by the express direction of that partner, applies the money of the partnership in his hands to the pay-a ment of the individual debts of that partner, or otherwise to his use, he violates his duty as the agent of the partnership!, and will be liable to to creditors. Had he delivered the money to the liquidating partner, he would not he answerable for its subsequent appropri ation by the latter to his own use.
    An attorney at law should not be held to a less onerous responsibility than an attorney in fact; and he will be bound ter pay interest on any sum remaining in his hands, from the day he becomes a defaulter by delaying to pay it over. C. C. 2984.
    Attorneys and counsellors at law practising in partnership are equally responsible to their clients for money collected and not paid over, thougn one of them may have had no par ticipation in that particular transaction.
    from the District Court of St. Mary. Overton, J.

      Dwight, appellant, pro se.

      Maskell, one of the defendants, pro se.

      Magill appearedon the same side.
   The opinion of the court, read at this term, was prepared, at the last term by

Slidell, J.

P. H. Robert and B. C. Robert were associated in a commercial partnership in the parish of St. Mary, under the firm of P. H. & B. C. Robert. The interest of the former was two thirds, and that of the latter one-third. In 1838 the firm was dissolved by mutual consent, and B. C. Robert was charged with the liquidation of its affairs. In June, 1838, the liquidator placed in the hands of Simon ¿y Maskell, associated as attorneys and counsellors, in the practice of law, a large amount of notes, evidences of debt, and accounts, due to the firm, which they receipted for, as received for collection for account ■of Messrs. P. H. Sf B. C. Robert. In 1839, P. II. Robert died; his succession was opened in the Probate Court for the parish of St. Mary, and B. C. Robert was appointed administrator of his succession. In 1840, B. C. Robert instituted proceedings as an insolvent debtor, in the District Court for that parish. 'The cession was accepted, and W. C. Dwight was duly appointed syndic, and ¡recognized as such by a judgment of the court.

In 1841, the present suit was instituted by Dwight, as syndic, to recover from ■Simon Sf Maskett all monies collected by them upon the claims placed in their hands for collection, and the delivery of such as were uncollected. The plaintiff also prayed for general relief.

After certain exceptions were taken by the. defendants, which will be presently noticed, B. C. Robert intervened in his capacity of administrator of P. H. Robert, alleged that the entire interest in the notes and claims was in the syndic and the administrator, that no one else had any right or interest in them, and that Simon Sf Haskell had been repeatedly requested to account and make delivery to them, but had refused. The intervenor joined in the prayer of the syndic.

To the petition of the syndic the defendants, in April, 1842, filed the following exceptions, praying the dismissal of the cause : “ 1. That the plaintiff, from his own showing, is syndic of Baynard C. Robert alone, and has no right to demand the claims due to the firm of P. H. B. C. Robert, which must be applied first to pay the debts of the firm. 2. That Joshua Baker is the testamentary executor of P. H. Robert’s estate, which is interested to the amount of two thirds of the property of P. H. Sf B. C. Robert; and said Baker alone has the right to claim the portion of property which belongs to the estate of said P. H. Robert. 3. That no surrender was made of the property, rights and credits of P. H. Sf B. C. Robert, nor could the same be legally done. 4. That Joshua Baker, as aforesaid, being entitled to two thirds of the claims belonging to the partnership of P. H. <íj- B. C. Robert, and as such representative not having made a surrender, he has a legal right to demand the credits and rights of action belonging to said firm, in preference to the syndic of B. C. Robert or any one else.”

After the intervention of Robert, as administrator, the following additional exceptions were filed by the defendants. “1. William C. Dwight claims as the syndic of B. C. Robert, who has made a surrender of his property, rights, and credits, individually and as a member of the firm of P. H. Sf B. C. Robert, under the bankrupt law of the United States; and therefore, the assignee of said Robert, alone, has a right to carry on this suit. 2. B. C. Robert, who has made himself a party to this suit as administrator of the estate of P. H. Robert, cannot stand in judgment in said capacity, because: first, having been bankrupt he cannot act as administrator of an estate ; second, because P. H. Robert having made a last will and testament, no administrator can be legally appointed to his estate, but only an executor under the will.”

in October, 1843, all these exceptions were tried together, and were overruled. Judgments by default were rendered, and subsequently the defendants answered to the merits.

¥e will at present enquire whether the exceptions were properly overruled, in October, 1843. It is clear that W. C. Dwight, being the syndic of one of the partners only, would not have been competent to-maintain this action alone, and without the assistance of his partner’s administrator. But this objection has been cured by the intervention of the administrator, who has united with him in the action, and is to be considered as a co-plaintiff in the cause.

But the first and third grounds of exception go further, and contest entirely the interest and authority of the syndic with regard to the partnership assets and their collection—in short, his capacity to stand in judgment in this cause. In the consideration of this branch of the exception, we shall assume, for the present, that the co-plaintiff, .the administrator of the estate of R. LI. Robert, the only .other partner, is the proper representative of his suceeesion and partnership-interest.

"We have seen that the partnership was dissolved, and B. C. Robert charged .with its liquidation, before he became insolvent and made a cession. By the effect of the cession, its acceptance by the court and the creditors at their meeting, and the recognition and entering into office of the syndic, all the property and rights of property of the insolvent became vested in his creditors, represented by the syndic as their trustee. Under our legislation, and the reported decisons of the Supreme Court, this proposition cannot be considered as admitting a doubt. See the acts of 1817 and 1826, and the cases of West v. Creditors, 8 Rob. 128. Lawrence, syndic, v. Guion, 9 Rob. 223.

"\yhat was the property of the insolvent at the time of the cession? It comprised not only his individual property, but also his interest in the firm of P. IL <$• B. C. Robert, then dissolved and in process of liquidation. It is quite true that -the syndic of the insolvent partner did not become the owner of the partnership assets. They belonged to the partnership, and were subject to the payment of the partnership debts, and the liquidation of the rights of the partners inter se. But the residuary interest of the insolvent partner passed to, and b.ecame vested in, the syndic ; and, as the representative of the insolvent partner, he was entitled to participate in the administration of the partnership assets, and the liquidation of the firm. The only interest in the partnership which remained in the insolvent after his cession, and its acceptance, was such contingent residuary interest as might remain after the full administration of the syndic, and the full and entire payment of all his debts—a contingency which has never happened.

But it was contended in the court below that, the interest of the insolvent in the partnership did not pass, and that no authority over the partnership assets and the liquidation of the partnership was vested in the syndic: because the partnership assets and the interest of the insolvent in the partnership, were not stated in the schedule.

It'has been repeatedly held, that all the rights of property of an insolveut vest in his syndic, whether they be stated in the schedule or not. In Muse, syndic, v. Yarborough, 11 La. 521, the court said : “ All the property of the debtor is presumed to be entered on the schedule, because he is to swear- that it is ; and if any has been omitted, it is clear it does not belong to the debtor, but passes to fhe creditors by the cession.”

But it is not correct, in point of fact, that the insolvent did not embrace in his schedule his interest in the partnership. His partnership affairs are expressly Referred to in his petition; in it, and in his schedule, he embraces, and actually presents and tenders to the court, all the commercial books of the firm. The receipt itself, for the great mass of the partnership assets, signed by the defendants, and which forms the basis of this action, appears to have been surrendered at the time. It bears the paraph ne varietur of the district judge, who signed the order accepting the cessio bonorum, and went into the possession of the syndic.

In the court below, at the trial of the cause on the merits, it was urged, and successfully, that the interest of B. C. Robert in the partnership vested in his assignee in bankruptcy. It appears that, in February, 1843, B. C. Robert preserried to the United States court his petition to be declared a bankrupt, and was so decreed, in March, 1843. His partnership, as well as his individual affairs and liabilities, were stated in his schedule. Maskell, the defendant, was appointed his assignee.

But all this was posterior to the insolvent proceedings in the state court, which are still pending, and where the syndicate exists in full force. The rights vested by the insolvent proceedings in the creditors of Robert and his syndic as trustee, were wholly unaffected by the action of the bankrupt, and of the federal tribunal under the bankrupt law. Nothing passed to the assignee but the residuary interest of the insolvent, after the full administration of the insolvent estate, and the entire fulfilment of the trust thereby created in favor of the creditors. This point is so clear', and has been so fully adjudged, that it would be a waste of time to enlarge upon it. See the Bankrupt Law. West v. His Creditors, 8 Rob. 129. See also Schrœder’s Syndic v. Nicholson, 2 La. 351. Being, therefore, satisfied that Dwight, the syndic of one of the partners, has a right to stand in judgment in this cause, and to maintain this action, provided his co-plaintiff has a legal capacity to represent the interests of the other partner, and assist in the liquidation of the partnership affairs, we proceed to the consideration of the administrator’s capacity, which will necessarily involve the alleged authority of Baker, as testamentary executor. And for the purpose of simplifying the enquiry, we will, at present, test the question with reference to the state of things existing down to the 6th October, 1843, when, as already stated, the exceptions under consideration were heard and overruled by the predecessor of the district judge, who subsequently heard this cause on the merits.

The co-plaintiff, B. C. Robert, administrator of the succession of P. S. Robert, vyas duly appointed to .that .office in 1839, took the oath, and gave a bond which was duly filed by the parish judge, as his signature attests. Thus far he appears clothed with ample official authority. And we may here remark, that the defendant, Maskell, seems to have entertained no doubt upon that subject; for we find him, in his professional capacity, bringing a suit, in 1840, in the name of the administrator, against a debtor of the firm.

But it is shown that, near the close of the year 1840, B. C. Robert discovered a sealed paper purporting to be a will made by his deceased partner. He presented it to the Court of Probates in which the succession had been already opened, and under whose order he held his office; and prayed that the will might be opened, proved, and acted upon according to law. The will was accordingly opened: it was found to be an olographic testament. The hand writing was proved by witnesses, one of whom was the defendant, Maskell; and an order was made by which ihe will was recognized as being in due form. It was further decreed by the parish judge, as follows : “ Being satisfied that said testator is dead, I have orderod said will to be executed, recorded, and deposited in my office, after signing the same, ne varietur, at the begining and end of each page.”

Under this evidence it was contended that the appointment of the administrator was void. No authority has been adduced to sustain this proposition ; and, in our opinion, it is deary untenable. In the absence of a will, it was necessary that the succession should be administered; and the order appointing an administrator was clearly lawful, for the appointment in the will was inefficient until the probate. C.C. 1637.

But it is said that, as soon as the pi'obate and order of execution took place, the authority of the administrator expired. This, also, is untenable. The ea-pacify of the administrator, for the purpose of prosecuting an existing suit, could not cease until a successor was duly installed in his stead. An executor is not bound to accept the executorship. C. C. 1670. When the exceptions were tried, nearly three years had elapsed since the probate of the will. The executor named in the will, during this entire period, was silent. There was no call by him, upon the administrator, for an account; no demand of the assets, not even a notice to the probate judge that he was willing to accept the appointment. If the administrator was ousted by the mere order of probate and execution, then the succession was under the charge of no one; and all the provisions of the law, framed for the preservation of successions, which require administrators to account before they arc discharged, which require them to continue in office until the estate is wound up, and which otherwise discountenance the abandonment of estates, must be disregarded. It is in this spirit that, in the analagous case of an executor, and of heirs claiming the succession from him, we find it provided that the testamentary executor, even after the expiration of his administration, is bound to continue to defend the suits commenced by, or against him, on account of the succession, until the heirs appear, or cause themselves to be represented. Civil Code, art. 1669.

Tho opposite view to that which we have adopted, might be convenient to debtors; but would involve the destruction of the rights of creditors, and the ruin of heirs.

Upon the point that the capacity of the administrator ceased, ipso facto, by his bankruptcy, we have been favored with no authority, and consider it untenable. The administration was a trust held for the benefit of heirs and creditors, and not to be blended with the personal condition of the administrator. It might have been a ground for provoking his removal; but, of itself, did not impair his official authority.

We have no hesitation, therefore, in saying that the decree of 6th October, 1843, overruling the exceptions, was properly rendered.

But it appears that, when the cause came up for trial on the merits, these questions were again raised, and the successor of the former judge, while he expressed his regret that he was prevented from deciding the cause on the merits, was of the opinion that, the right of the plaintiffs to prosecute the claim, was still examinable; and, dissenting from the conclusions of his predecessor, dismissed the suit, considering the right of action as vested in the assignee in bankruptcy, and the executor named in the will.

What we have said as to the authority of the syndic, need not be repeated: but a few remarks are necessary respecting the right of the administrator to continue the prosecution of this cause.

It is true that, since the exceptions were first decided, Baker, after a long interval, for the first time appeared in the court of probates and took the oath of office. This was in July, 1845. A petition was also presented in his name, in September, 1845, by the defendant, Maskell, as his attorney at law, praying that an inventory might be made. An order to that effect was made. No other action by the executor is shown. No inventory, no call upon the administrator for an account, no intervention in this cause, nothing whatever appears, to indicate that the executor takes any interest in the prosecution of a suit in which the interests of the succession are seriously involved, and the existence of which, if not known to himself, is, at least, fully known to his counsel.

In view of these facts, we are of opinion that we should be misinterpreting .the law, and doing injustice to the creditors of an insolvent partnership and of an insolvent succession, if we were to turn the present parties out of court, who are diligently, and in spite of the continued embarrassment which they have encountered, prosecuting a claim which no one else has shown any disposition to enforce. The assignee in bankruptcy cannot deny the authority of the syndic ; and the executor has not taken the necessary action to oust the authority existing in the administrator to prosecute this cause.

The counsel of defendants refers, in his brief, to a previous suit, brought by Dwight, syndic, alone, against Maskell alone, in which the suit was dismissed upon the exception that, the plaintiff was not the syndic, as by him alleged? the' proceedings under which he was appointed being illegal and void. Pie argues in his brief that, the judgment constitutes res judicata. No plea of res judicata was filed in the court below. Whether such a plea may be made for the first time in this court, is a question which we do not think it necessary to decide. It is certain that the exception of res judicata must be specially pleaded. Here the defendants have filed an answer to the' appeal, in which they simply pray an affirmance of the judgment, but have not pleaded res judicata. In the matter of the Commissioners of ike Atchafalaya Bank, on the opposition of Barker, we held that, the mere suggestion and argument, by counsel, in his brief, of matters upon which he relied for a change of the judgment in the appellee’s favor, did not give the party a right to have them considered, where the appellee had filed no answer praying an amendment. The propriety of the rule is equally obvious m the present case; and there certainly are no equitable considerations which would make it proper for us now to give the party leave to file such a plea. It is proper also to remark that, the decree of 6th October, 1843,-was partially executed by the defendant, Maskell, as will be hereafter noticed.

Upon the merits, we will first observe that, the defendants, Simon and Maskellr were associated in the practice of the law at the time of the receipt of the-claims for collection, in June, 1838. They so continued until the year 1840? when the defendant Simon left the bar. It is proper to remark that the business thus placed in their hands, seems to have been, as between the partners, almost exclusively conducted by the defendant, Maskell. But, as the defendants were partners, as the receipt was signed in the partnership name,, and as it is not proved that their clients subsequently abandoned the joint liability and agreed to look to Maskell alone, we must consider both the defendants liable. On this point it is proper also to remark that, in a former action upon the receipt against Maskell alone, the exception was pleaded that the liability was joint, and that the action could not be maintained against Maskell alone.

One of the grounds of defence, suggested in argument, is that,- the assets were placed in the hands of the defendants for the purpose of paying certain creditors, and hence that the defendants could not give them up without the authority of such creditors. And we find that, about four years after this suit was instituted, a petition of intervention was filed by Lewis S¡- Co., creditors of P. II. &¡- B. C. Robert, Maskell acting- as- their attorney, in which they allege that P. IL. Sf B. C. Robert placed as a pledge or pawn in the hands of Maskell and Simon, the notes and claims in question, for the Ben'efit of the intervenors; and1 that by said pawn or pledge they have a privilege upon them. We have seen that the receipts state that the claims were received for the account of P. H.

B. C. Robert; and, although the evidence shows that, from time to time, payments were made by Maskell to creditors, sometimes by P. H. Robert’s direction, and sometimes without any previous or express instruction shown, yet the intervenors have wholly failed to show that any act of pledge was execútod. Ñor, as to the other creditors, do the evidence and acts' of Masked show that the assets were placed beyond the control of the firm, so as to constitute the transaction an assignment for the bénefit of creditors.

After the decision on the exceptions, made in 1843, a number of the uncollected claims were deposited in court, by Maskell, upon his motion, to remain there subject to the syndic’s order, upon his receipting for them. Subsequently the' case Was referred to auditors, who, after hearing testimony offered by the parties, made a report, in which, after stating the accounts, reserving the question of the liability of the defendants for alleged negligence with regard to collections and some other disputed matters, they found a balance against the defendants, independent of the claims against them not reported upon, of $1,247 88. To portions of this report both parties objected; and it does not appear that the objections to it were formally acted upon, before the submission of the cause to the court upon the issue joined. At the trial, the report of the auditors, with the evidence, and also the oppositions, were offered in evidence by the defendants ; and an agreement was entered that, the report should be deemed conclusive and binding so far as not specially objected to. This report, which appears to have been dilgently prepared, has thefefore received our attention', and we have given it much weight in forming our conclusions.

We think the auditors properly rejected the items charged by the defendants for payments of individual debts of B. C. Robert, and sums given to his wife, although some of them appear to have been paid or given by his instructions, of With his implied approbation. It is true that, by the articles of dissolution, B. C. Robert was Charged with the liquidation of the firm ; and if Maskell had handed over monies collected to the liquidator, he could not have been answerable for their subsequent misappropriation to his own use. But, as a partner who uses the partnership funds to pay his individual debts, commits a fraud upon the firm', so an agent, acting for the benefit and in the business of the firm, who, even by the express direction of one partner, applies the money of the firm in his hands to the payment of the individual debts of that partner, or otherwise to that partner’s individual use', violates his legal duty as the’ agent of the firm, and must be held liable to the creditors, whom these plaintiffs represent. His recourse is against the partner individually, by whose instructions he acted, and to whose benefit the payments inured.

The auditors excluded from this account, by which they ascertained the balance above mentioned,' Certain credits allowed in the account with the partnership prepared by the defendant Maskell,■ which was before the auditors. They perhaps entertained the opinion that these credits, which were for various sums received for account of the firm by the defendant, did not properly enter into the litigation, because the claims upon which they were made were not comprehended in the receipt upon which the action was brought. But, considering the prayer for genera] rélief m'ade by the plaintiff, the answer of the defendant, with its annexed accomit, and the mannet generally in which the case has been brought before usi We are of opinion that these credits aré'to be considered,' and * that the plaintiffs'shoulddiave the'benefit of them.

The auditors appear t'o have charged1 interest on the’ amount of the claims entrusted to the defendants for collection, and collected, from- thé maturity' of the claims down to the month of December, 1846, when th'eir report was made ; and upon the payments made by the defendants from the date of the maturity of the obligations paid, to October, 1846. We think this was erroneous.

Upon examining the accounts, we find that the latest collections of the defendants were in 1841, and their latest payments, also, in that yéar; and it was in that year also, that the plaintiffs put them in defardt. From the amount of cash received by them, we will deduct the payments for which they are entitled to credit, and give interest on the balance from the judicial demand. We have to remark, in this case, that the account was not of that character where, from mutual debits and credits as between merchants, the entire means of liquidation may not be in the power of either party. Here, the means of liquidating and ascertaining the balance were fully in the hands of the defendants, that is to say, of Maskell, one of the firm, who knew what had be'en received for the account of the partnership of P. H. and B. C. Robert, their employers,- and what had been paid for their account; and who were bound also to know that the payments for the individual benefit of Robert were not lawful. Moreover, it seems to us that, an attorney at law should not be held to a less onerous responsibility, in such a case, than an attorney in fact; and we find it declared by the Code that, “the attorney is answerable for the interest of any sum remaining in his hands, from the day he becomes a defaulter by delaying to pay it over.” C. C. art. 2084.

We allow compensation, for professional services rendered before the call made upon the defendants to account and delivor the assets and balance in their hands. We adopt, on this point, the am'otint allowed By the auditors, as a sufficient compensation for all the professional services of the defendants.

The auditors expressed no opinion upon the question of the alleged want of diligence in the collection of the assets. Under the evidence, we have not been able to come to a satisfactory conclusion, so as,to close that part of the case. We shall reserve the question of the alleged liability of the deféndants, on that score; and also the questien, whether any, and what, damages have' been incurred, by refusing to deliver the uncollected assets when required to do so.

The defendant Simon has disclaimed all agency in the receipt, or detention, of, the notes and accounts entrusted to Simon Sf Maskell for collection, or of their proceeds; and we do not find that he had any participation in this business; but, we do not think this fact of non-interferance exonerates him’, in any manner, from the responsibility incurred by the' partnership, to whose charge the claims were confided. The parties were attorneys and counsellors at law, practising in their profession, and, as we conceive, are' equally responsible towards their clients for monies collected and not paid over.

It is, therefore, decreed that, the judgment of the district court be reversed, and that Wm. C. Dwight, syndic, and Raynard C. Robert, administrator, do recover from Ddward Simon and Thomas Maskell, the sunt of sixteen hundred and ten dollar's and sixty-nine cents, with interest thereon from the 22d Sept. 1841, and costs of suit in both courts; the said sum being for monies collected previous to said date,- deducting the payments and charges allowed them according to the previous opinion. And it is further decreed that, the remaining portion of said claim of said Dwight, syndic, and Robert, administrator, to wit, for the possession of the claims not collected at the date of the institution of this suit, and for damages for the detention thereof, be remanded for a new trial. It is further ordered that, the intervention of Davis 8f Co. be dismissed at their costs.

      The decree in this ease and the paragraph immediately preceding it, were written by the Chief Justice, at the September term, 1849, and added to the opinion prepared by Slidell, J. a.


text:
    Vienne v. Police Jury of Natchitoches.
    Under sec. 37 of the stat. of 3 May, 1847, providing a revenue for the support of the government, the compensation allowed to the assessor of taxes mentioned therein, is not limited to a per centage on the amount of the state taxes only. Sec. 7 of the stat. of 16 March, 1848 cannot affect this interpretation of the stahof 1847, as to the compensation of assessors for the year 1847, under the stat. of that year.
    from the District Court of Natchitoches, Taylor, J.

      Boyce, for the plaintiff.

      Pierson, for the appellants.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action to recover from the parish of Natchitoches the sum of three hundred and thirty three dollars, being the amount alleged to be due to the plaintiff as assessor of taxes for the said parish, being three per cent on the amount of the assessment roll for the year 1847. The parish is charged as being liable to the plaintiff under the 37th section of the act of 1847, entitled an act to provide a revenue for the support of the government of this State. Acts of 1847, p. 172.

The defendant, by counsel, has contended that, by the section quoted, the only compensation for the assessor therein provided for, is that allowed for the state taxes. But this construction is against the evident sense of the whole section, and would leave a large portion of it without any meaning at all. It is the duly of the court to adopt a construction which will give effect to the whole section as it is written, whatever alteration may have been made in the law by the re-enactment of the 37th section of the act of 1847, in the 7th section of the act of 1848. See laws of 1848, p. 132. And it appears by that section that the additional compensation to the assessors, on the part of the parishes, is excluded. The compensation due the assessor for the year 1847, under the previous act, is not affected by the change. Judgment affirmed.


text:
    Polk v. Childers, Executrix.
    The certificate of the clerk of a district court that, a transcript contains all the proceedings had, documents filed, and evidence adduced on the trial of a case in which a judgment had been rendered by a court of probates, but in which an appeal was allowed by the district judge after the court of probates had ceased to exist, where the clerk evidently had no other means of ascertaining the facts in relation to which he certifies than by an inspection of the .original record, in which neither the certificate of the probate judge nor of liis clerk that the record contains all the evidence, nor any list of the documents produced, are to be found, is insufficient, and the case must be remanded. C. P. 1042.
    from the Court of Probates of Sabinp, Speight, J.
    No counsel appeared for the plaintiff.

      Thomas, Morse, Roysdon, and Flint, for the pellant.
   The judgment of the court was pronounced by

King, J.

We are unable to examine this cause upon its merits. It was tiled by the late'probate court, and a final judgment, on a default, was rendered in 1845. The appeal was granted by the district judge, in June 1846, after the court which decided the cause had ceased to exist. The clerk of the district court certifies that the transcript contains all the proceedings had, documents filed, and evidence adduced on the trial of the cause. But the clerk evidently had no other-means qf .ascertaining the fact in relation to which he certifies than by an inspection of the original record, in which are to be fonnd neither the certificate of the probate judge, nor of his clerk, that the record contains all the evidences, nor a list of the documents produced, which the law then imperatively enjoined to be made. C. P. 1,0.42. The cause having been tried by the probate court, it must be governed by the rules which regulated the proceedings of that court. Under the authority of the cases of Tompkins v. Benjamin, 16 La. 199, and of Desormes v. Desormes, 17 La. 115, the cause must be remanded.

The judgment of the District Court is therefore reversed, and the cause remande.d.to be proceeded with according to law; the appellee paying the costs of this appeal.