text:
    James Ira Amonett, Executor, v. Mrs. Henrietta Amis et al.
    If a person contracting an obligation towards another, grants a mortgage on property of which ho is not then owner, this mortgage shall be valid, if the debtor should ever after acquire the ownership of the property, by whatever right. O. C. 3271.
    Future property can never be the subject of conventional mortgage. C. C. 3276.
    Appeal from the District Court of the Parish of Madison, Farrar, J.

      A. T. Steele, for plaintiff and appellant. Montgomery & Snyder, for defendants.
   Merrick, C. J.

This suit is brought to recover two tracts of land in the possession of the defendants, and forming a part of the plantation cultivated by them. Both parties claim through Lewis A. Collier.

The defendants claim in virtue of two Sheriff sales made to their ancestor and author at the suits of Milke v. Collier and Williams v. Collier, prior to the acquisition by the plaintiff’s testator of whatever title he held.

By the Sheriff’s sale at the suit of Milite, the defendants’ ancestor and author ¿ad adjudicated to them about two thousand acres of land, by a description which embraces the land in controversy. The sale of the land and certain negroes was made by the Sheriff on the ninth day of January, 1844, for $25,866 66 cash.

The other tract was sold on the first Saturday of August, 1847, for $1,213 32 cash.

The plaintiff’s testator after Collier’s surrender, viz., in September, 1847, bought his pretensions to the lands in controversy and certain other lands, in all about twelve hundred acres, for fifty dollars, on a credit of twelve months.

This suit was commenced on the 3d day of March, 1858, that is, more than ten years after the Sheriff’s sales relied on by the defendants.

We have not been pointed to any alleged defects in the sale under the order of seizure and sale in the case of Williams v. Collier. We suppose, therefore, that branch of the case which involves the title to lots 6 and 7 in township 16, range 13, east, to be abandoned, and we shall confine our attention to the claim for the N. E. quarter, and the E. half of the N. W. quarter of section 15, in the same township and range.

It is objected, that at the time Lewis A. Collier mortgaged the property to Lambeth and Thompson, the assignors of Milke, he was not the owner of these two tracts of land ; that therefore, when the order of seizure and sale issued upon the mortgage, nothing more was sold than Collier owned when he granted the mortgage, and therefore the sale under the mortgage conveyed no more title than the mortgagor had when the mortgage was granted.

The mortgage was given on the 18th day of February, 1842. The land in controversy, as. already said, is in section 15, township 16, range 13, east. At that time, the adjoining section on the north (section 10) was public land. Hence, the description in the act of mortgage, bounding the tract by public lands on the north, includes the tract in controversy. The description is as follows, viz :

“ All that tract of land and plantation, together with the improvements thereon, at the junction of the Walnut and Brushy bayous, in the Parish of Madison, in this State, containing about two thousand acres, and bounded as follows, to wit: On the west side by the tract of land known as the Ray tract, on both sides of the bayou; on the east side by the Delilah Head tract; on the south side by said Walnut bayou; and on the north side of said bayou by the heirs of Clark tract; and on the north and south sides by public lands."

But at the time of the execution of the mortgage Collier did not own these two fractions of section 15. He did not acquire title to the same until the third day of September, 1842, when he bought them from Edward Armorer for $740.

When the order of seizure and sale issued in June, 1843, at the suit of Milke, it was upon the same description of the property as that contained in the mortgage. Notice oJf.the seizure, following the same description of the mortgage property, was served by the Sheriff upon the defendant, Collier.

The latter, without making any objection on the ground that the description embraced more property than was mortgaged, injoined on other grounds. This injunction, by a formal judgment of the Court, was dissolved with damages, and the property was adjudicated on the 9th of January, 1844, as we have already stated, to the defendants’ ancestor and author, Junius Amis and Richard Feather-ston.

Immediately afterwards the purchasers took possession, and caused the lands to be surveyed. They applied to the plaintiff’s testator for information as to the boun-claries, and he gave them the description from the deed, and informed them how the S. W. corner of section 16, and N. W.,corner of section 15, could be found.

With the whole of section 15, there was still a deficiency in the quantity of two thousand acres mortgaged.

The three defences set up in the action are :

1. That the mortgage was perfected by the subsequent acquisition of title by Collier to the fractions of section 15 in controversy.

2. That Collier and his subsequent vendees are estopped by his acts ; and

3. That the demand is barred by the prescription of ten years.

The following articles of the Civil Code bear on the first question, viz:

Art. 3271 — “ If a person contracting an obligation towards another, grants a mortgage on property of which he is not then owner, this mortgage shall be valid, if the debtor should ever after acquire the ownership of the property, by whatever right.”

Art. 3276 — “ Efiture property can never be the subject of conventional mortgage.”’

These articles of the Code present no difficulty. Collier did not mortgage to Lambeth and Thompson future, uncertain acquisitions. He mortgaged as owner, a specific immovable which they accepted in good faith, and caused their act of hypothecation to be recorded, and thus the public had notice of the thing covered by the mortgage. When, therefore, Collier subsequently acquired title to the particular thing upon which he had granted a mortgage, the case had happened which was contemplated by Art. 3271, and the right of the mortgagees affected the whole of the immovable.

It is, therefore, ordered, adjudged and decreed by the Court, that the judgment of the lower Court be affirmed, with costs against the appellant.


source: Caselaw Access Project

author: Dotpel, J.

license: Public Domain

text:
    B. A. Alderson v. Edward Sparrow.
    The law does not require the registry of a tax collector’s sales in the office of conveyances out of New Orleans. The decision in the case of Baker v. Towle’s Administratrix et al.} 11 La. 438, re-affirmed.
    The Civil Code of 1825 requires a registry, as regards third persons, of only instruments made under private signature (Arts. 2242, 2417). The recording of other acts is provided for hy legislative enactments. Acts of 1855, No. 274 p. 335, and No. 285 p. 345. The first of these two acts is a substantial re-enactment of the 7th section of the act of 1810, p. 60 ; and of the 1st section of the act of 1813, p. 206. See to the same effect Revised Statutes of 1852, verbo Recorder, p. 475, $§1 & 2.
    The purchase of one’s own property is null. C. C. 2418.
    Appeal from the District Court of the Parish of Concordia, McVea, J.

      T. P. Farrar and A. T. Steele, for plaintiff. H. B: Shaw, for defendant and appellant.
   Dotpel, J.

The plaintiff caused to be recorded in the office of Mortgages of the Parish of Concordia, on the 10th of July, 1851, a judgment which he had obtained against Thomas Curry.

On the 10th of February, 1849, Curry agreed, in a writing drawn up by the defendant, Sparrow, to sell to P. Alexander the undivided half of sec. 9, the S. E. half of sec. 8, fractional sections 16 and 17, and the W. half of sec. 15, all in township No. 7, north, of range 7, east, in the Parish of Concordia, said half containing about 960 acres. This instrument was not recorded before 1853.

On the 10th of January, 1852, Curry made a deed to Alexander, in accordance with their aforesaid agreement. This last deed was accepted by the present defendant for the vendee, and was duly recorded on the 22d March, 1853.

The above described land forms apart of the Bringier grant.

The object of the present suit is to subject the above described property to the payment of the said mortgaged judgment, in the hands of Edward Sparrow, the actual owner and third possessor of the premises.

The Bistrict Judge rendered judgment in favor of the plaintiff, ordering the seizure and sale of the property to satisfy the plaintiff’s demand.

The defendant appealed.

In 1841 Curry and Garland purchased the Bringier grant as containing 40,000 arpents.

The claim was patented as containing only 28,971 68-100 acres.

Curry and Garland, it appears, sold divided portions of the land, to the extent of 5,130 acres, thus leaving undivided 23,841 67-100 acres. They sold, June 3d, 1846, to W. C. Hamner, an undivided interest of 1,500 acres, and a like undivided interest to H. A. Bullard; and by a compromise, the heirs of James Mooney were, on June 25th, 1846, recognized as undivided owners for 5,500 63-100 acres. The undivided interest of Curry, in the tract of 23,841 67-100 acres, was thus reduced to 7,670 52-100 acres on the latter date.

On the 7th of April, 1849, the heirs of /. Bastable recovered by judgment of Curry an interest of 4,329 undivided acres; and on the 30th of April, 1850, the Sheriff of the Parish of Concordia, as tax collector, executed a deed of sale in favor of the present defendant, Edward Sparrow, of the undivided interest of Curry in the Bringier grant, this interest being put down at 7,500 acres, more or less, in the Sheriff’s deed.

It is thus seen that the entire interest of Thomas Curry in the Bringier tract had been absorbed before the date of the registry of the judgment of the plaintiff, B. A. Alderson.

The tax sale to Sparrow was, on the day of its execution, recorded by the Clerk of the District Court in the book of Sheriff’s deeds, but was only recorded in the Recorder’s office of conveyances on the 25th October, 1852.

The law does not require the registry of collectors’ sales in the office of conveyances out of the city of New Orleans, nor are we advised that a recording is necessary in the Parish of Orleans. Such was the decision in the case of Baker v. Towles’ adm’x et al., 11 La. 438.

Our predecessors say: “ But the plaintiff contends, that the Sheriff’s deed can have no effect' against him, because it was not recorded until after the institution of this suit, and that the Act of 1813, as well as that of 1810, and the Civil Code of 1808, required that such deeds should be recorded, in order to give them effect against third persons.

“ It does not appear to us that either of the’ provisions relied on embraces deeds of this kind. The Act of 1813 speaks of Sheriffs’ sales made under execution, and although, in some respects, there is some analogy between the. two cases, yet the tax roll, which is the warrant of the collectors to coerce the collection of taxes, is certainly not an execution, nor can the sale be said to be by the Sheriff in that capacity. His sureties as Sheriff are not responsible for his acts as collector. He gives a distinct bond.”

The Civil Code of 1825 introduced no change in this respect, and requires a registry, as regards third persons, of only instruments made under private signature. Arts. 2242, 2417. The recording of other acts is provided for by legislative enactments. Acts of 1855, No. 274, p. 335, and No. 285, p. 345.

The first of these two Acts is a substantial re-enactment of the seventh section of the Act of 1810, p. 60, and of the first section of the Act of 1813, p. 206. See, to the same effect, Revised Statutes of 1852, verbo Recorder, p. 475, || 1 and 2.

It also appears from the evidence, that in 1854, William, C. Micou, who had acquired the undivided interest of the heirs of James Mooney, instituted, in the District Court of the Parish of Concordia, an action in partition against all his co-owners, including Thomas Curry, of the heretofore mentioned undivided 23,841 67-100 acres of land. The sale of the whole property, by separate section, and by fractional section, as given in the United States survey, was, under these proceedings, decreed on the 11th of November, 1854, and the judicial sale took place in July, 1856. The undivided interest of each co-proprietor was designated in the decree of partition as follows :

Interest of the succession of William C. Micou.5,500.63 acres.

“ “ Wright, Williams <& Co.1,500

“ “ William C. Hamner.1,500 “ .

“ “ Edward Sparrow.5,506.02 “

« “D.S. Stacy.2,753.01 “

“ D. S. Stacy’s six minor children.2,753.01 “

“ “ J. B. Denegre.4,329 “

Total as above.23,841.67

D. S. Stacy, prior, to the death of his wife, in whose rights his six minor children figure in the partition suit, had conveyed to Edward Sparrow the undivided interest of all his acquisitions in said grant, and had acquired the undivided interest of all the acquisitions of Edward Sparrow in the same. Thus their interest was the same.

At the partition sale of July, 1856, Stacy tad Barrow acquired, among other property, the sections and fractional sections of land described in the sale from Curry to Alexander4, (we will here remark, that Alexander conveyed the land bought by him from Curry, to Sparrow and Stacy, in December, 1853) and subsequently, at a judicial sale made to effect a partition between Sparrow and the heirs of Stacy, the former acquired the lands described in the Alexander sale, with the exception, perhaps, of a portion of the west half of the section 15.

In the first partition suit, D. S. Stacy, in his answer, after stating various conveyances made by Curry and Garland, adds : “ Defendant shows that the share of Thomas Curry in said grant was 9,192 52-100 acres, and has been disposed of in the following manner, viz :

Recovered by Bastable’s heirs.....4,329 acres.

Sold to Mrs. Lillard.1,280 “

“ “ John Johnson.1,764 “

“ “ P. Alexander. 920 “ ■

“ at tax sale... 899.52 “

9,192.52 “

This answer was adopted by Edward Sparrow, and the present plaintiff now contends that Sparroiv cannot gainsay his judicial admissions, and rest his title on the collector’s sale, and by that means defeat his vested rights.

The plaintiff was not a party to the partition suit, nor did he acquire any right on the faith of these declarations, for his judgment and its registry were of anterior dates. Besides, we know of no law which, as a general rule, prevents a party from claiming ownership to property under different titles. In fact, the purchase of one’s own property is null. C. C. 2418.

It may well be that, in this instance, the defendant did not object to the sale from Curry to Alexander, because he was cognizant of the prior promise of sale, and had doubts as to the validity of his sheriff, or tax sale, as to Alexander’s, interest, by reason of such prior knowledge of his equitable right; but surely no one, excepting Alexander or those claiming. under him, could have successfully contested the title of Sparrow under said tax sale, unless for other causes.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed and avoided, and that ours be for the defendant, with costs in both Courts.


author: Buchanan, J.

text:
    Succession of Thomas Talbert, deceased.
    Ten days public notice must be given before letters of administration can be granted to an applicant.
    Appeal from the District Court of the Parish of Tensas, Farrar, J.

      Reeves <& Spofford, for plaintiff. T. P. Farrar and Snyder <& Lewis, for appellant.
   Buchanan, J.

The appellees had been appointed by the Probate Court of Amite County, Mississippi, administrators, with the will annexed, of Thomas Talbert, deceased, who was in his lifetime resident in said county. Subsequently, it becoming necessary to prosecute the collection of debts due to said Talbert’s estate by residents of Louisiana, the appellees presented their petition, praying to have granted to them letters of administration, to the District Court of Tensas Parish in this State, upon giving bond and security according to law in the sum of-dollars. This petition was filed the 27th March, 1860 ; and on the same day, the court made an order granting letters of administration to the petitioners as prayed for.

Two days afterwards, the 29th March, 1860, Thomas L. Talbert, a resident of Avoyelles, styling liimself a son and forced heir of Thomas Talbert, the deceased, filedJiis opposition to the petition of appellees, claiming a superior right in himself to the administration of this succession, alleging that he was aggrieved by the judgment granting to the appellees the administration, without previous notice of their application, and praying an appeal from said judgment; which was granted.

The case of Crawford v. Graves, 15 An. 244, relied upon by the appellees, is not analogous to the present case. The Mississippi administrator, in that case, did not apply for letters of administration in Louisiana, as the appellees have done; nor (as was said by the Court) was it necessary that he should do so. He was pursuing in Louisiana property (slaves) which had been illegally abstracted from his possession as administrator, and run into Louisiana. We said, that we admitted his claim to recover the property, not in a representative capacity, but in a personal capacity, because he was bouud to account for that property.

But in the present case, the appellees address themselves to the Louisiana Court to be qualified as administrators in this State, on complying with the legal formalities of bond and security, which will make them officers of the Court and accountable to it. Their counsel argue, in their brief filed in this Court, that it was, indeed, unnecessary for them to have done this. We are inclined to believe the contrary, considering the Acts of 1842, page 300, and of 1855, page 398. See also Henderson v. Rost, 15 An. 405. But that question is foreign to the present issue. Whether necessary or not, the appellees have applied for letters of administration ; and the only question before us, is, whether they are entitled to an exemption from the ten days’ advertisement required by articles 966 and 967 of the Code of Practice, and by Art. 1107 of the Civil Code. We have been referred to no authority recognizing any such exemption. The case of The State v. The Judge of Prohate, 18 Louisiana, 570, decided in 1841, and cited in argument, is not to be viewed as authority since the statute of 1842, which is believed to have been passed in reference to that very decision.

It is, therefore, adjudged and decreed, that the order and judgment recognizing and appointing the appellees, Sarah Talbert and William A. Cotton, administrators of the succession of Thomas Talbert, be reversed and annulled; and that this cause be remanded to the District Court upon the opposition of appellant, and for further proceedings according to law ; appellees to pay costs of this appeal.

Merrick, O. J., absent.


author: V oorhies, J.

text:
    A. C. Watson v. A. P. Marshall, Police Jury Warrantor.
    Services imposed for the common or public utility relate to tbe space which is to he left for public uso by the adjacent proprietors on the shores of navigable rivers, and for the making or repairing of levees, roads and other public or common works. C. C. 661.
    All that relates to this kind of servitude is determined by laws or particular regulations. Ibid.

    The 5th section of the Act of 1829 provides : “ That the earth which shall be employed for the repairs and construction of a levee shall be taken at the distance of at least twenty feet from the base of said levee, on the side of the river. An exception is*made in regard to the parishes of Concordia and Ouachita, in which the Police Juries have plenary powers as to roads and levees. § 52.
    Appeal from tbe District Court of tbe Parish of Tensas, Farrar. J.

      Snyder & Lewis, for plaintiff. Thos. P. Clinton, for defendant and appellant. T. P. Farrar, for warrantor.
   V oorhies, J.

Tbe plaintiff, the owner of a plantation on the Mississippi, in tbe Parish of Tensas, injoined the defendant, who had contracted to buld the former’s levee, from taking dirt on the plantation side of the levee.

On account of the transpiration and rain water, the latter found it very inconvenient to procure the required earth from the river side.

The question raised is, whether the defendant was at liberty to do so from either side of the works.

The fifth section of the Act of 1829 (Sess. Acts, p. 78) provides : “ That the earth, which shall be employed for the repairs and construction of a levee, shall be taken at the distance of at least twenty feet from the base of said levee, on the side of the river.” But the 52d section of this statute declares that, as re-. gards the parishes of Concordia and Ouachita, the provisions of this Act shall not apply, except upon their adoption by the Police Juries of these respective parishes. And it proceeds to give them “ plenary and unlimited power to make such enactments with regard to roads and levees, within their respective limits,” &c.

In the absence of proof of any legislation on the subject by the Parish of Ten-sas, or by the Parish of Concordia, from which has been carved out the Parish of Tensas, this matter must be regulated, if at all, by the provisions of the general law. There being no ordinance authorizing the contractor to take earth inside of the levee, and the general law requiring it to be taken outside, the utmost right that could be claimed by that party, would be the latter.

Servitudes of this kind are determined bylaws or particular regulations (C. C. 661); and the proprietor of the land is entitled to protection, whenever the exercise of such rights is not fixed by law.

The jury did not pass upon the demand in warranty: the issue is, therefore, pending yet in the inferior Court as between the defendant and the warrantor.

Judgment affirmed.

Merrick, C. J., absent.


text:
    A. V. Witkouski and Husband v. Mary A. and J. Witkouski.
    Tho repeal of a repealing law does not revive the first law, unless it be so particularly expressed by the legislator. C. C. 23.
    The charges of a Sheriff for keeping property under a writ of sequestration,-so far as they are not regulated by the fee bill, are the subject of proof, and not of judicial discretion.
    The doctrine in the case of ¿forrar v. Rowley, 3d An. 276, re-affirmed.
    Appeal from the District Court of the Parish of Carroll, Farrar, J.

      Short & Parham., for plaintiffs and appellants. F. F. Montgomery, for defendants.
   Buchanan, J.

A writ of sequestration was issued in this cause; at the instance of plaintiff; under which writ, the Sheriff seized and took into his custody and possession, on the 24th September, 1859, all the property specified in the inventory of the succession of Thomas Davis, of which a copy was annexed to the writ'.

On the 7th December, 1859, on the application of the Sheriff, the District Court made the Sheriff an allowance of two hundred and fifty dollars a month for keeping the property sequestered, commencing on the day of seizure aforesaid, and to continue as long as the property Should remain in the Sheriff’s possession; said allowance to be taxed among the costs of suit.

The plaintiff has appealed from this' order of Court. He argues that the allowance is illegal, and refers us to the 71st Article of the Constitution of 1845, and to Phillips’s Revised Statutes, p. 124, secs. 2, 4 and 6.

The Article 71 of the State Constitution has been omitted from the Constitution of 1852, as observed by the counsel for appellee. But it is nevertheless true; that the Article 283 of the Code of Practice, relied on by appellee, must be held to have been repealed by the Article in the Constitution of 1845, so far as it is inconsistent with it. Se,e the case of Farrar v. Rowley, 3 An. 276, decided under the Constitution of 1845. In that case, the Court said : “ It was stated in argu-ment, and acquiesced in by counsel, that for all disbursements made by the Sheriff, hire of keeper and supplies, the Sheriff has paid himself out of funds in his hands : but the charge at present insisted upon is, for his responsibility and care generally. For this, the Sheriff is remunerated by the emoluments of his office. Sheriffs are bound to take care of property taken possession of by them, and are authorized to lay out money for its necessary preservation. They may appoint guardians for its safe custody; and the law as we understand it, gives them ample authority for all just and proper expenditures, and the Constitution imposes no obstacle to their reimbursement. But if the 71st Article of the Constitution has any application to ministerial officers, it prohibits allowances of this kind.”

Such was the doctrine of our predecessors in 1848. And we may add, as the legal sequence of the above language of Chief Justice Eustis, that the omission in the present Constitution of the provision contained in article 71 of the Constitution of 1845, does not revive any law which had been repealed by that article. The repeal of a repealing law does not revive the first law, unless the intention to revive be expressed by the legislator. C. C., Art. 23, par. 4. The distinction taken by the Court in Farrar v. Rowley, is therefore held by us to be still applicable to the charges of Sheriffs for keeping property sequestered. Those charges, so far as they are not regulated by the fee-bill, are the subject of proof, and not of judicial discretion.

In the present case, the only proof offered in support of this claim of the Sheriff, was the writ of sequestration and the return of the same.

This proof does not sustain the allowance made. '

It is, therefore, adjudged and decreed, that the order appealed from be reversed, and that the cause be remanded for further proof to be adduced contradictorily 1 with the parties; the appellee, S. D. Olivier, to pay the costs of this appeal.

Merrick, C. J., absent.


author: Merrick, C. J.

text:
    The State, on the relation of Polar Star Lodge No. 1, praying for a mandamus v. the Judge of the Third District Court of New Orleans.
    The execution of judgments belongs to the Courts by which the causes have been tried in the first instance, whether such judgments have been reversed or affirmed on appeal.
    An injunction cannot issue without judicial authority, and is within the discretion of tho Court a quo.

    ON the relation of Polar Star Lodge No. One, praying for a mandamus.

      T. W. Collens and C. Dufour, for relator.
   Merrick, C. J.

This proceeding is for the purpose of compelling the District Court to grant an injunction against the execution of a decree of this Court, at the instance of the attorneys who appeared before this Court in that case.

The petition for the injunction shows, as a ground for the same, that the suit was instituted without any authority from relator, and that all the proceedings were without its permission or mandate, and that the counsel who instituted the suit in the name of relator were not authorized so to do; it shows, further, that a small minority of the members of the corporation illegally assembled together, away from the usual place and apart from the other members, without any regular notice or any order from the Worshipful Master, and in violation of the bylaws of the corporation, and by deliberating and voting with persons not corpora-tors, and being presided over by persons who were not members, passed an illegal and void resolution authorizing J. L. Tissot, Esq., an attorney and counsellor at law, to institute said suit, which he accordingly did, with the assistance of E. Filleul and /. Q. A. Fellows, in violation of the rights of petitioner ; that said suit, though relator was never a party thereto, resulted in a judgment in its favor ; that relator was, and still is represented by R. Brugier, Worshipful Master, &c., &c„ and by a committee composed of N. Colin, A. Colombet and L. Gloeck-ner; and that the committee; by a resolution, is authorized to institute and prosecute these proceedings; that by a resolution relator has declared that said suit was instituted without its authority or consent; and that relator is in full possession of the property, and that the act of incorporation obtained on the 9 th of February, 1858, was adopted for the benefit of relator and all the members, and only to prevent a supposed lapse of its corporate existence ; bnt that relator is nevertheless in full possession of all said property, and its officers hold the same ; that the relator believes that Messrs. Tissot, Filleul and Fellows are about to issue execution and put the minority of the members of the corporation in possession, to the exclusion of the corporation itself and a large majority of the members thereof, so as to expel the proper officers, and put the property into the hands of A. Morel, styling himself Worshipful Master, and others illegally assuming to be officers of the corporation, but who are not in fact its officers, and many of them are not even members.

The relator prayed for an injunction forbidding said attorneys and counsellors at law to issue execution or to cause process to issue on the judgment; and that the Olerk of the Court be injoined from issuing, or the Sheriff from executing the same ; and that petitioner have leave to cancel and vacate said judgment.

An inspection of the record of the original suit, and the opinion and decree of this Court, will show that the matter which is urged as the foundation of the injunction was put at issue and decided by us, and that substantially the same persons who now claim to represent the relator made the same claim in that suit, and it was determined against them by the judgment of this Court.

The question therefore is presented, whether the writ of injunction is one of absolute right in the sense that it cannot be refused in the first instance, although it is plain and manifest to the Judge that the demand for the same is utterly unfounded and in direct conflict with a matter having the force of the thing adjudged between the parties, which that Court is compelled to execute.

Article 617 C. P. declares that the execution of jnágmeiAs belongs to the courts by which the causes have been tried in the first instance, whether such judgments have been reversed or affirmed on appeal. By articles 296, 298, 303 and 304, O. P., it is apparent that an injunction cannot issue without judicial authority.

We think a fair construction of these articles leaves a judicial discretion in the Court of the first instance, to refuse to issue an injunction where it is manifest that it is in direct conflict with the decree of this Court between the same parties, and where it necessarily implies a contempt of the authority of the Court. To, issue an injunction under such circumstances would be a vain thing, involving parties in useless costs and delay.

If any individual corporator be refused Ms legal rights and immunities as such, by those exercising corporate powers, it will be time to consider what remedy he has, when his case is presented in proper form to the Court.

It is, therefore, ordered, that the rule prayed for by relator be refused, at its costs.


author: Duffel, J. Duefel, J.

text:
    Robert Howes, for the use of, &c., v. The Union Insurance Co.
    A policy and the indorsement thereupon should be construed together, unless they are so much in conflict that they cannot he reconciled, in which case the indorsement should govern. Alterations made by either party with the consent of the other are valid ; and almost any change as to parties, or terms, may be made by indorsement with consent.
    If a policy does not state the agreed value of the property insured, but leaves that for proof, it is called an open policy ; but if the policy states what llie parties have agreed upon as the value of the property, it is called a valued policy ; and, in general, this agreed estimate aud valuation is final and conclusive upon both parties. The exceptions to this general rule are that a wager policy, an insurance without interest, an evaluation out of all proportion, with intent to defraud, aud fraudulent representations and concealments, vitiate the instrument.
    Appeal from the Sixth District Court of New Orleans, Howell, J.

      Whittaker & Fellows, for plaintiff and appellant. G. LeGardeur, for defendants.
   Duffel, J.

The plaintiff obtained from the defendants, an open, or running policy, which contains in the memoranda the following clause: “ This insurance is declared to be on such risks as may be approved and endorsed on this policy by the company. No risk binding until so endorsed.

To the extent of-dollars.”

The policy bears the following endorsements :

“1858 1 50.”
“May 17. Bk. Morning Star, Rio Janeiro, New Orleans, mdze.-2800 1J-42 00.”
“ 28. “ ©rape Shot, ' “ “ ' ' amt. gold 7380 1-73 80."

The bark Morning Star was, with all her freight, destroyed by fire ; hence the' action of the plaintiff, as on a valued policy, for the recovery of the sum of $2800 with interest and costs.

The answer pleads an open policy, and a tender of $1075, the alleged value of the merchandise insured, including all charges and advances.

The District Judge awarded 1117 45 as follows: 7560 pounds of yellow metal at 12} cents, $945, and charges $172 45.

The plaintiff appealed.

It is in evidence that the plaintiff’s application was accompanied with the bills of lading and invoice. The application is in the following words, to wit: “ To the Union Innurance Company, of New Orleans :

Please enter $2800 on open Marine Policy No.-, made for Robert Howes, on merchandise, on board the bk. Morning Star,-, Master, at and from Rio de Janeiro to New Orleans.

Premium, — per cent, to $— bills of lading dated-Approved--

President.

Robert Howes, applicant.

New Orleans, 17th May 1858.

The bill of lading proves that the merchandise insured, 7560 pounds of yellow metal, was shipped on the Morning Star, as charged in the above endorsement; and the invoice price, inclusive of charges, amounts to $2160 48.

It may be inferred that the endorsements authorized by the policy, merely had in view the declaration of the shipments and their nature, without stating the value of the risk ; but if the insurers agree to alter the terms of the contract by the endorsement, there is no reason why this should not be done. Parsons on Maritime Law, vol. 2, p. 34. Kennebec Co. v. Augusta Ins. Banking Co., 6 Gray, 204.

The rule, says Parson, vol. 2, p. 35, “ we think should be, that the policy and the endorsement should be construed together, unless they are so much in conflict that they can not be reconciled, in which case tho endorsement should govern.” And again, p. 36, “ Alterations made by either party with the consent of the other, are valid. And almost any change, as to parties, or terms, may be made by endorsement with consent-” The consent, in the case at bar, is palpable ; the insured applied in writing, and the insurers, having before them the bills of lading and invoice, made the indorsement at a figure larger, by several hundred dollars, than the value and charges expressed in the invoice.

The rule as defined is : if a policy does not state the agreed value of the property insured, but leaves that for proof, it is called an open policy, but if the policy states what the parties have agreed upon as the value of the property, it is called a valued policy ; and in general, this agreed estimate and valuation, is final and conclusive upon both parties. Parsons on Maritime law, vol. 2, p. 62 ; Greenleaf on Evidence, 8th edition, vol. 2, p. 443, sect. 407 ; Angelí on Fire and Life Insurance, 2d ed. p. 4, sect. 5 ; Phillips on Insurance, 1st ed., vol. I, pp. 320 to 327, sect 2, and sect 1, p. 304 et seq. Irwin v. Manning, 9 Manning & Scott’s Rep. 391.

The exceptions to this general rule are that a wager policy, an insurance without interest, an evaluation out of all proportion, with intent to defraud, and fraudulent representations and concealments, vitiate the instrument. Parsons on Maritime Law, vol. 2, p. 63. Phillips on Insurance, 1st. ed., vol, 1, chap. 14. sect. .1, p. 304, verbo, amount of insurable interest, and vol. 2, chap. 14, sect. 1, p. 206, valued policy. Alsop v. Commercial Insurance Co., 1 Sumner, 451-473, Catron v. Tennessee Ins. Co. 6 Humph. 176-185.

We, therefore, conclude that the endorsement, although made on an open policy is, nevertheless, in the nature of a valued policy, as all the ingredients constituting such a policy are therein contained, and hence it must be so treated.

And as the answer does not charge any fraud, wager, misrepresentation, or even error, the plaintiff could, at most, only be required, on the issue presented, to prove an insurable interest and a shipment with a loss.

The fact that the plaintiff, out of extreme caution, introduced evidence as to the value of the metal in Rio Janeiro, can not prejudice his case, for the pleadings did not open the policy generally. Kennedy v. N. Y. Life Ins. Co. 10 An. 809.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower Oourt be avoided and reversed; and it is further ordered, adjudged and decreed, that the defendants, the Union Insurance Go. of New Orleans, be condemned to pay to Robert Howes, for the use of Joseph S. Clark, the sum of twenty-eight hundred dollars, with legal interest from judicial demand, June 29th, 1858, and the costs of both courts.

Land, J., absent, concurring.

Same Case — On a Re-hearing.

Duefel, J.

We -were induced to grant a re-hearing’ in this case under the apprehension that we had, perhaps, drawn doubtful conclusions from known facts, or enunciated principles which might be looked upon as innovations, or as tending to break up the symmetry of the system of insurance.

A well considered review of the whole subject has satisfied us that we were mistaken as to the trae character of the policy, and this, by attaching too much importance to the fact that the bills of lading and invoice had been submitted to the insurers by the insured.

The policy is, in form, a valued or running policy, the plaintiff’s application was, specifically, for an entry, on an open policy, for a stated amount, on merchandise ; and the endorsement was made as requested : neither the insured, nor the insurers, fixed any value on the goods, the former simply gave, "and the latter endorsed, the insurable interest, thus leaving the value open to inquiry and proof,

We will here remark, in order to guard against any misconception, that the case of Kennedy v. N. Y. Life Ins. Co. 10 An. 809, was simply cited as being applicable to cases of insurance, and in no manner as affecting the rule of evidence in ordinary cases.

"Viewing, therefore, the policy as an open one, we are satisfied that the District Judge has given to the plaintiff the full value of his merchandise, whether we take the value at Rio Janeiro, after deducting the costs of entry, or the value in New Orleans, the place of destination.

It is ordered that our former decree be set aside, and that for the reasons assigned, the judgment of the District Court be affirmed at the costs of the appellant.

Buchanan, J. took no part in this opinion.


author: Buchanan, J, Buchanan, J.

text:
    P. P. J. Martin et al. v. P. C. Blanchin and Antoine Giraud.
    It is not in the authority of a court to appoint ex parte a Receiver of assets belonging to a partnership. A writ of sequestration, or a rule upon the defondants to concur in the appointment of a Receiver by the parties, would bo the proper remedies.
    Appeal from the Fifth District Court of New Orleans, Eggleston, J.

      Wolfe, Singleton & Clack, for plaintifls. C. Roselius, for defendants. J. L. Tissot, for Receiver.
   Buchanan, J,

The three plaintiffs and the two defendants formed a partnership in January 1558, for three years, in the business of manufacturing and selling cotton seed oil, under the social style of Bienville Cotton Seed Oil Factory. One of the plaintiffs, Martin, had the charge of the manufactory ; and the two defendants kept the books, and administered the financial department of the concern, with the exclusive right to use the social name, and to purchase and sell.

In April 1860, plaintiffs instituted this action, alleging maladministration of defendants, causing damage to plaintiffs. They pray that the partnership be dissolved, that a Receiver be appointed to liquidate its affairs, pay its obligations, and make partition of the surplus after the discharge of its liabilities. Au affidavit of the truth of these allegations was filed with the petition ; but no bond was given.

The District Judge, on the petition being filed, made an ex parte order, appointing Stanislas Plassan, Receiver of the partnership, ou his giving bond with security in the sum of $70,000.

Defendants took a rule to set aside this order, as illegal, and as granted upon false allegations.

On the hearing of the rule, defendants offered witnesses to prove that the allegations of the petition were false; which testimony being rejected, a bill of exceptions was reserved.

The rule was dismissed, and defendants appeal. The fust point for decision, is the legality of the ex parte order for the appointment of a Receiver.

That order directs that the Receiver named, have custody and possession of all the property, rights, credits and effects belonging to the partnership existing between the plaintiffs and defendants, and of all the partnership books of account, documents, vouchers and other papers, belonging thereto. It was further ordered that an inventory of the property of the partnership be made by a Notary Public, and returned into court.

It is argued by the counsel of appellants that this proceeding, for the appointment of a Receiver, is in substance a judicial sequestration, and should be governed by the rules of law contained in the Civil Code and Code of Practice in relation to sequestration. C. P. 275 ; 0. 0. 2948 et seq.

We have already mentioned that by the articles of partnership, the defendants Blanchin & Giraud were appointed administrators of the partnership, and keepers of its books. The powers thus vested in them, could not, it would seem, be taken away from them, by an ex parte proceeding.

In the case of Frazier v. Wilcox, 4th Robinson 517, the authority of a court of Louisiana, to appoint a receiver of assets belonging to several parties before the court, upon a consent of all the parties interested, was recognized by the Supreme Court. But the court, on that occasion, guarded their doctrine, as follows : (page 525.) We are not to be understood as giving our sanction to an opinion sometimes expressed, that the Judges of the inferior courts, without the assent of the parties to a suit, or with the consent of only one of them, can exercise the powers of a chancellor, and appoint of their own accord, Receivers for the purpose of collecting and keeping the funds attached, or that may be the subject of litigation.”

The doctrine, with the same qualification, was reiterated by the court in the case of The United States v. The United States Bank, 11 Rob. 418.

According to the law and the adjudged cases before us, there were two courses open to the plaintiffs, for the provisional assurance of their interests pending this litigation ; the one, to have sued out a writ of sequestration, which would have necessitated the giving of a bond ; the other, to have taken a rule upon the defendants to concur in the appointment of a Receiver by the parties.

Another question is presented by the bill of exceptions to the rejection of testimony offered on behalf of defendants ; but it is unnecessary to decide this question, in view of the opinion expressed by us upon the first ground of defendants’ rule.

It is, therefore, adjudged and decreed, that the judgment [of the District Court be reversed ; that the rule taken by counsel of defendants, on the 8th May 1860, to set aside the appointment of a Receiver, be made absolute; that the costs of said rule, and of this appeal, be paid by plaintifis and appellees ; and that this cause be remanded for further proceedings, according to law.

Same Case. — On an Application eor a Re-hearing.

Buchanan, J.

Plaintifis ask for a re-hearing, upon the authority of three decisions, not cited in argument before judgment.

It is contended by counsel that our decision is inconsistent with two cases decided by our predecessors, Brown v. Union Insurance Company, 3 An. 177, and Starke v. Burke, Watt & Co., 5 An. 740; also with the case of Pratt v. McHatton, 11th An. 260, decided by the present Bench.

Brown v. The Union Insurance Company and Starke v. Burke, Watt & Co. were cases of insolvent corporations, and the appointments were made by the court, ex necessitate, in the absence of parties able to appoint a liquidator or Receiver.

In Pratt v. McHatton, no objection seems to have been made to the appointment of a Receiver, until the case was in the Supreme Court on appeal, and the objects of the appointment had been accomplished by the sale of the assets of the partnership.

These cases are manifestly inapplicable to the pi’esent issue.

Re-hearing refused.


author: Herrick, C. J.

text:
    Payne & Harrison v. Geo. W. Waterston.
    Neither the rendition of an account, nor giving of notes, can prevent the defendant from showing errors and inquiring into the consideration of the notes in a suit against him. If he had made payment, with a full knowledge of the errors, it would have been considered voluntary, and the money could not have been recovered back under the law then in force after the expiration of one year.
    The addition of usurious interest was a forfeiture of the entire interest, and the controversy must be decided by the law in force at the date of the note. (Act of 1844).
    Where a certain per cent, is charged for money advanced, and conventional interest is also stipulated, . the contract is tainted with usurious interest, and the principal only can be recovered. Decision of Judge Porter in the case of Daquin v. Coiron, 3 L. It. 393, re-affirmed.

      Per curiam: The merchant is but the agent of his principal, and he is bound to account in good faith for all sums made from contracts entered mto on behalf of his principal. The law will not permit him to make a profit out of such contracts.
    Appeal from the District Court of the Parish of Livingston, Ratliffe, J. •

      J. R. Jones, for plaintifis and appellants. A. Hennen, for defendant.
   Herrick, C. J.

This suit is brought upon two out of three promissory notes given as the balance struck upon an account current rendered by the plaintifis as factors and commission merchants to the defendant. Judgment having been given in lavor of the plaintiff for a part of their demand only, they appeal. Since the judgment was rendered in this case, the defendant has departed this life, and Ashford Addison has been appointed the dative testamentary executor of his last will and testament.

The answer to the appeal filed by the executor waives the exception, that the citation was served on Good Friday, and it will be unnecessary to pass upon the question raised upon the exception; for the defendant, now made a party, prays, that upon the demand in reconvention there may be judgment in his favor, and that in other respects the judgment of the District Court may be affirmed.”

The defendant in his answer, and amended answer (which was filed without any bill of exceptions reserved by the plaintiffs) alleged that various items making up the accounts and the notes were usurious and illegal, and composed of compound interest, etc. The amended answer also contains a demand in reconvention.

There were two accounts rendered by plaintiffs to the defendant Waterston; one on the 1st day of April 1852, and the other the 29th day of March 1853, which last corresponds with the date of the notes sued on. In the account of 1852, there were charged two items for advancing ; one of $55, and the other of $85, the former itself bearing interest,, an interest account being stated at eight per cent, in the usual form. The balance found on the account of 1853 was $8951 63, and on this balance there were charged the same day $223 79 for advancing, being a total of $9,175 42. To this was added $1,044 71 interest for 15 months, the average time the notes had to run at eight per cent., making a total of $10,220 13 for which the two notes sued on payable in fifteen and nineteen months, and one other (since paid by Judge Waterston,) payable in eleven months, were given, each being for $3,406 71.

It is clear that neither the rendition of the account, nor the giving of the notes can prevent the defendant from showing errors and inquiring into the consideration of the notes in suit against him. If he had made payment with a full knowledge of the errors, it would have been considered voluntary, and the money could not be recovered back under the law then in force after the expiration of one year. Wright v. Hill, 13 An. 234; Wright, Williams & Co. v. Temple, ibid, p. 413; Keane v. Brander & Semple, 12 An. 20.

In 1853 the addition of usurious interest was a forfeiture of the entire interest, and the controversy must be decided by reference to the law in force at the date of the notes. Crane v. Beatty, 15 An. 329. In the case of Brander Williams & Co. v. Lum, it was decided that where there was no agreement to pay usurious interest the mere charge of an item of usurious interest in the acconnt did not bring the case within the act of 1844, declaring the forfeiture of a higher rate of conventional interest than eight per cent., and that the court might allow five per cent, interest. But this authority is not applicable to the present case because it appears by the evidence that the plaintiffs took a promise from the defendant, to pay the usurious interest which was charged in two items, viz : two and a half per cent, for advancing, and eight per cent, interest per annum, making ten, and oiie half of one per cent, interest. The letters referred to by plaintiffs’ counsel on this branch of the case, were not offered in evidence. AH interest, therefore, carried into the notes sued on was forfeited by the statute of 1844, and it must be deducted as well as the illegal charges of 2j per cent, for advancing. This was settled by this court so long ago as 1832, in the case of Daquin et al. v. Coiron, 3 L. R. 393. In that case it was contended that the 'interest and commissions were distinct things, and that the limitation fixed by law to one had no application to the other.

The Court through its organ, Judge Porter, said: “ The Court had no difficulty on this question when it was raised on the argument, nor have its reflections siig-gested any. The inquiry in all these cases is, were the advantages or remuneration stipulated for in consideration of a loan of money, and are these advantages and remuneration greater than the rate of interest allowed by law ? If the answer be in the affirmative, no matter by what shift or device this object is accomplished, no matter in what mode the payment is made, or by what terms it may be designated, the contract is usurious. In the instance before us, we are left in no doubt as to the consideration on which the appellant was to pay ten per cent, interest, and two and a half per cent, commissions. The parties have declared in writing that the loan of money was the cause. Words cannot change things. Ten per cent, interest, and two and a half per cent, commission, for the advance of money one year is precisely the same thing as twelve and a half percent. interest for the loan of money for one year.”

In that case, the plaintiff was only permitted to recover the principal. Taking the written law as our guide, as it existed when the notes were given, we are compelled to allow the defendant the following credits, viz :

Interest charged as commissions for advancing $363 00

Interest charged at eight per cent, in 1852.184 55

Interest “ “ 1853.330 41

Proportion of interest carried into the face of the notes sued on 29th March 1853.789 14

$1,667 10

The defendant also claims that there should be an amendment of the judgment on account of what is called in the testimony the return premium, insurance having been effected on account of the defendant in the Sun Mutual Insurance Company of New Tork. The sugar or cotton factor, or commission merchant, is but the agent of his principal, and he is bound to account in good faith for all sums made from contracts entered into on behalf of his principal. The law will not permit him to make a profit out of such contracts. He has no right to charge his principal with sums which he has not paid or bound himself to pay, and where there is an expectation of a return of a portion of the sum of money paid on account of his principal, he cannot charge him with such advance of money without also allowing him a credit for whatever is refunded in any manner on account of the same. See Brander v. Lum, 12 An. 218, 219. The proof shows that nothing was returned on account of premiums, except for the year 1852 ; the premium of 28 per cent, declared in 1853 not having been paid. Of the premiums for insurance paid in 1852, a dividend of 21 per cent, was declared, of which 40 per cent, was paid. The premiums paid that year amounted only to $139 60. The defendant is entitled, therefore, to a credit of $11 72. No negligence is charged against the plaintiffs in not collecting the return premium of 28 per cent, allowed on the $481 50 premiums paid in 1853, and the plaintiffs cannot under the pleadings be held to account for the same. The total credit to be allowed upon the notes sued on amounts to $1,678 82, which deducted from $6813 42, the notes sued on, leaves $5134 60, for which plaintiffs are entitled to judgment without interest. This is less than was allowed by the lower court, and the judgment must be amended in favor of the defendant. The plaintiff has no well founded complaint as to the notes discounted in market. They appear to have been sold in good faith, and the proceeds credited him on account.

It is therefore ordered, adjudged and decreed by the Court, that the sum allowed by the judgment of the lower court in favor of the plaintiff be reduced from $5714 41 to the sum of $5134 60 to be paid by said executor in the due course of administration, and that said judgment so amended be affirmed, the plaintiff paying the costs of the appeal.


author: Duffel, J.

text:
    S. P. Scott v. Wm. J. McCulloch, Administrator.
    A bill of exchange was put in circulation before its maturity; was protested five days after it had become due, and. was transferred to the plaintiff after its dishonor. The evidence also showing tlrt the acceptors had failed before the maturity of the note, and that the transferrers of the plaintiff had likewise suspended before the transfer. It appearing further that the acceptors had, prior to the maturity of the bill, disposed of land scrips amply sufficient to cover it (the bill being based on land scrips in the hands of the acceptors) ; and that the bill had. been made for the accommodation of the acceptors, although this last circumstance was not known to the plaintiff and his transferrers, Held: That the drawer was entitled to a seasonable notice, and is, therefore, by its omission, discharged.
    Appeal from the District Gourt of the Parish of E. Baton Rouge, Avery, J.

      J. B. Stewart, for plaintiff. H. M. Favrot, for defendant.
   Duffel, J.

The estate of J. Claxton Taylor is sued on the following bill of exchange.

“ Exchange for $2,360. Baton Rouge, La., June 15th 1854. Six months after date of this first of exchange (second unpaid) pay to the order of myself, two thousand three hundred and sixty dollars, value received, and charge the same to account of Louisiana land scrips. (Signed) J. Claxton Taylor. To Messrs Horace Bean & Co., New Orleans.

Accepted, New Orleans, Horace Bean & Co. (endorsed) J. Claxton Taylor, James H. Mulford & Co.”

The evidence shows that the above bill was put in circulation before its maturity, was protested five days after it had become due, and was transferred to the plaintiff after its dishonor. The evidence also shows that the acceptors had failed before the maturity of the note, and that the transferrers of the plaintiff had likewise suspended before such transfer. It appears further that the acceptors had, prior to the maturity of the bill, disposed of land scrips to an amount amply sufficient to cover it; and that the bill of exchange had been made for the accommodation of the acceptors, although this last circumstance was not known to the plaintiff and to his transferrers.

Erom the above facts of the case, we are of opinion, that the drawer was entitled to a seasonable notice, and is, therefore, by its omission, discharged. Edwards on Bills, &c., p. 636 to 647. Whaley v. Houston, 12 An. 585. Bank of Louisiana v. Morgan et al., 13 An. 598. Succession of J. J. Kercheval. 14 An., 457.

The failure to make a presentment for payment at maturity, did not depend on any moral or physical impossibility, but may, with propriety, be attributable to the fault of the holder.

Judgment affirmed.

Merrick, O. J., absent.


author: Land, J.

text:
    L. H. d’Armand v. John W. Pullin.
    A party plaintiff is only entitled to recover the actual damage sustained by him in consequence of the defendant’s violation of the contract of lease.
    Appeal from the District Court of the Parish of Concordia, McVea, J.

      Sparrow <6 Shaw for plaintiff. Ogden, Yorh & Sawyer, for defendant and appellant.

   Land, J.

The plaintiff instituted this action to recover fifteen thousand dollars damages of the defendant, for violating a contract of lease, in not delivering possession of the premises at the time stipulated in the contract, and in holding over two years after the expiration of the lease ; and also to recover damages for waste committed by the defendant during the time of his possession.

T-he defendant, in his answer to the petition, reconvenes and claims fifteen thousand dollars of the plaintiff for the value of certain improvements which he had made upon the premises prior to the date of the contract of lease, and at a time when he hoped to-acquire a pre-emption right to the land.

. The facts which have given rise to this litigation, are as follows :

The defendant, in the year 1846, purchased a small improvement on a tract of land situate within the limits of the “ Bringier Grant,” in the Parish of Concor-dia ; and proceeded to clear and to bring into a state of cultivation a portion of the land, and to erect thereon buildings of considerable value.

The title of the claimants of the grant having been subsequently recognized and established by a decision of the Circuit Court of the United States sitting at New Orleans, and the decision having become final by the lapse of time against the United States Government, judicial proceedings were instituted for the purpose of effecting a partition of the lands among the various co-proprietors, and a decree was rendered ordering a partition of the lands contained in the grant, by licitation or sale. And at the sale made for the purpose of effecting the partition, on the 7th day of July, 1855, the plaintiff became the purchaser of the tract of land on which the defendant resided, and had made valuable improvements, at the price of twelve dollars per acre, one-third cash, and the balance on a credit of one and two years.

Three days after the sale, to wit, on the 10th day of July, 1855, the plaintiff, by written contract, for and in consideration of the sum of three dollars, the receipt of which he acknowledged, leased the land which he had purchased, together with all the buildings, appurtenances and improvements thereon, or thereunto belonging, unto the defendant, John W. Pullin, from the date'of the contract of lease until the 20th day of December then next ensuing; and the defendant on his part agreed and bound himself to take good care of the property leased, and to restore the possession thereof to the plaintiff on the day stipulated in the contract, to wit, on the 20th day of December, 1855.

The lease having expired, the defendant claimed the value of his improvements made upon the land prior to the date of the contract, and refused to deliver possession of the premises to the plaintiff, cm that ground. The plaintiff thereupon commenced proceedings before a Justice of the Peace to expel the defendant from the leased premises, and after a protracted litigation, succeeded in obtaining a final judgment of expulsion against him.

And finally, at the time the defendant abandoned the premises in January, 1858, he left them in a state of dilapidation and waste.

Upon this statement of the facts, it is clear that the defendant is liable in damages to the plaintiff, for violating the stipulations contained in the contract of lease, and for the waste committed by him during the pendency of the proceedings to expel him as the tenant of the plaintiff from the premises; and the right of recovery for these causes in the main action, is beyond question. But the difficult and most important question which arises in the case, grows out of the defendant’s reeonventional demand for the value of improvements prior to the judicial sale to effect the partition, and to the date of the lease entered into between him and the plaintiff. The stipulations in the contract of lease are entirely silent as to the defendant’s right to claim reimbursement of the plaintiff for the value of the improvements previously made upon the premises; and in the absence of any special agreement, the defendant’s right to reimbursement, under the peculiar circumstances of the case, must be determined upon legal principles.

Notwithstanding the conflicting decisions of this Court as to the right of the party evicted to recover the value of improvements made on the property of another, the case of the defendant appears to come within the letter and spirit of article 500 of the Civil Code, which declares that: “ When plantations, constructions and works have been made by a third person, and with such person’s own materials, the owner of the soil has a right to keep them, or to compel this third person to take away or demolish the same.”

“ If the owner requires the demolition of such works, they shall be demolished at the expense of the person who erected them, without any compensation ; such person may even be sentenced to pay damages, if the case require it, for the prejudice which the owner of the soil may have sustained.”

“ If the owner keep the works, he owes to the owner of the materials nothing but the reimbursement of their value and the price of workmanship, without any regard to the greater or less value which the soil may have acquired thereby.”

“ Nevertheless, if the plantations, edifices or works have been done by a third person evicted, but not sentenced to make restitution of the fruits, because such person possessed bona fide, the owner shall not have a right to demand the demolition of the works, plantations or edifices, but he shall have his choice either to reimburse the value of the materials and the price of workmanship, or to reimburse a sum equal to the enhanced value of the soil.”

It is clear, under this article of the Oode, that the plaintiff had the right either to keep the buildings, which the defendant had erected upon the land, or to cause their removal or demolition at the defendant’s expense; but it is equally clear that in making the election to keep the buildings, the plaintiff incurred the obligation to reimburse the defendant the value of the materials and the price of workmanship, without any regard to the greater or less value which the soil may have acquired thereby; and having incurred this obligation, the defendant had the right to claim its enforcement, as he has done, by way of reconvention in his answer to the plaintiff’s petition for damages for withholding the land.

The plaintiff is only entitled to recover the actual damage sustained by him in consequence of the defendant’s violation of the contract of lease, and upon the evidence before us, such actual damage cannot be assessed, including the waste committed by the defendant upon the premises, at more than two thousand dollars, for the two years, during which the defendant held possession of the premises after the expiration of the lease.

The defendant had erected upon the land a dwelling-house, a kitchen, a gin-house with running-gear, negro cabins, and other out-buildings, which cannot be estimated in value at less than three thousand dollars, and for this sum he is entitled to a judgment on his reeonventional demand against the plaintiff.

It is, therefore, ordered; adjudged and decreed, that the judgment of the lower Oourt be avoided and reversed; and it is now ordered, adjudged and decreed, that the plaintiff recover of the defendant the sum of two thousand dollars damages, to be compensated by the judgment herein rendered in favor of the- defendant on his reeonventional demand.

It is further ordered, adjudged and decreed, that the defendant recover of the plaintiff, for the value of improvements, the sum of three thousand dollars, to be compensated by the judgment herein rendered in favor of the plaintiff, to the amount of two thousand dollars, with the costs in the lower Oourt, together with the costs of this appeal.


author: Voorhies, J.

text:
    John Carmena v. Mary Blaney et als.
    Heirs, or any party interested, can attack a legacy made in violation of Art. 1468 of the C. C. The right is not confined to forced heirs alone. Decision in the case of Lazere v. Jacques, 15 An. 599, re-affirmed.
    A woman having obtained a separation d mensa et thoro, four months afterwards goes with a co-resident of the State to Mississippi, and marrying him there returns to their domicil here — a judgment a, vinculo matrimonii never having been decreed — Held: That she was only a concubine, and not entitled to the rights of a wifo, in a last will and testament.
    The act of confirmation or ratification of an obligation against which the law admits the action of nullity or rescission, is valid only when it contains the substance of that obligation. The mention of the motive of the action of rescission, and the intention of suppplying the defect on which that action is founded. C. 0. 2252.
    A donation of movables motiis causa to a concubine is valid so far as it does not exceed one tenth part of the whole value of the estate. C. 0.1468.
    The nullity of a donation, or reduction in a will, inures to the benefit of all the legal heirs of the testator. Tbe property reverts back to tbe succession to be distributed by the law.
    Appeal from the District Court of tbe Parish of W. Feliciana, Haralson, J.

      Bunn <& Herron and G. Miller, for plaintiff and appellant. S. J. Powell, R. C. Wickliffe and Collins & Leake, for defendants.
   Voorhies, J.

The plaintiff, in his capacity of legal heir of tbe succession of his deceased brother, Joseph Carmena, questions tbe validity of a legacy made' to tbe defendant, Mary Blaney.

The clause of tbe will is as follows, to wit:

“ I will and bequeath to my beloved wife, Mary Carmena, the sum of fifty thousand dollars in cash, to be paid to her by my executors. I also will and bequeath to my said wife the following named slaves, to wit: George, Clay, Jane, and her daughter Rachel, and her son Spencer, and also Laura Jane, George’s wife. I further will and bequeath to my said wife, any personal property she may select from my estate, together with all my silver ware and table furniture.”

The ground upon which this legacy is assailed, is that the legatee was not the lawful wife, but the concubine of tbe testator.

Tbe defendants’ counsel contend that none but forced heirs can attack a legacy made in violation of article 1468 of the Civil Code. This point was raised in the case of Lazare v. Celez Jacques, 15 An. 599; and it was there held that all parties interested, — such as the heirs of the deceased, — have a right to set up this nullity for the purpose of defeating the fraud practiced upon the law. Indeed, to say that forced heirs only, and that to the amount of their legitime, are entitled to invoke this nullity, carries its own refutation ; for it is tantamount to saying that the illicit bequest is binding in all cases in which the legitime is not invaded, and that, when it intrenches upon the legitime, it is merely reducible.

The deceased and the legatee were never lawfully married, but lived as man and wife up to the death of the former.

On the 29th N ovember, 1856, she obtained against her husband, Thomas Simpson, a judgment of separation from bed and board; and, four months having elapsed, she and Carmena, being unable to marry in the State of Louisiana, went over to the State of Mississippi, where they were married. Both parties were residents of the former State, and returned to their home immediately after the marriage ceremonies were performed.

The marriage of Simpson with the legatee, up to the present time has not been dissolved by a decree of divorce ; and, at the date of these proceedings in the lower court, he was living in an adjoining parish.

- As a matter of law, our courts cannot treat her otherwise than as a concubine, even admitting, as her counsel strenuously contend, that, as a matter of fact, she did believe herself finally divorced. She could not plead ignorance of the law, and of the nature of-the proceedings in which she was party plaintiff. Nor can we be influenced in this matter, by the fact that she was esteemed in the neighborhood, and exchanged social intercourse with respectable families.

Her counsel contend that, since the death of the testator, the plaintiff has confirmed the defects of her title. Upon an inspection of the acts which are stated to be confirmatory, we do not find in them mention made of the motive of the action of rescission, and of the intention of supplying the defect on which such action might be founded. Without deciding whether such a defect as an excessive legacy of movables to a concubine may be the subject of confirmation, it is sufficient to say that, in the present instance, the defect has not been aided by any act of the legal heir. C. C. 2252; 15 An. 569.

The legacy of the slaves was an absolute nullity; and, with regard to the movables, the same is valid so far as it does “ not exceed one-tenth part of the whole value of the estate.” C. C. 1468.

This reduction in the will inures to the benefit of all the legal heirs of the testator. The property reverts back to the succession, to be distributed by the law. Lazare v. Jacques, 15 An. 599.

The last will, as amended by this Court, leaves a legacy in favor of the defendant, Mary Blaney, of movables not to exceed one-tenth of the whole value of the estate; and the sum of $4,000 to the children of Hiram Carmena, another brother of the testator. The balance of the succession must be distributed by law between all the legal heirs, as a fund undisposed of by the deceased. So that the children of Hiram Carmena, notwithstanding their legacy, will come in for their portion in the whole residue, unless, however, they be illegitimate children, as the plaintiff asserts. But as these persons are not parties to the record, this difficulty cahnot now be adjusted.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed; that the plaintiff, John Carmena, be reeoguized as a legal heir of the deceased Joseph Carmena; that the legacy of the slaves to Mary Blaney be annulled ; and that the legacy of movables to her be annulled, so far as they exceed the one-tenth value of the whole property left by the deceased ; and that the defendants and appellees pay the costs of appeal.


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    Skipwith & Osborne v. James Lea.
    On the death of a partner his interest in the assets of the firm become vested in his heirs at law. and the surviving partners can only acquire that interest by transfer or assignment from the heirs, and thereby acquire a right to sue for a debt in their own jiame.
    The step-father is not an heir at law to the step-son.
    Appeal from the Second District Court of New Orleans, Morgan, J.

      Hays & Adams, for plaintiffs. A. Beattie and A. Phillips, for defendant.
   Land, J.

This suit is against the defendant as surviving and liquidating partner of the late commercial firm of Hazard & Lea, of Osylra, Mississippi. The capacity of the plaintiffs, and the interest which they have in the debt demanded, are disclosed by the averment in their petition that they are the successors'to and vested with the interest of Slcipwith, Hazard & Co., formerly of this city, in whose favor the debt originally accrued.

The cause of action set forth in the petition, is, that sometime during the spring of 1858, the commercial firm of Skipwith, Hazard & Co., (now represented by the house of Skipwith & Osborne) entered into a contract with the firm of Hazard <& Lea, (now represented by James Lea) whereby Slcipwith, Hazard & Co., were to advance money to, and accept bills for, and grant other and usual facilities to the said Hazard & Lea, and in return whereof the said Hazard & Lea were to ship to Skipwith, Hazard <& Co., all the cotton they could purchase and control; from which said cotton Skipwith, Hazard <& Co., were to receive the usual commission of two and a half per cent., together with the charges, &c., usual in the said trade. That Skipwith, Hazard <& Co., complied with the terms of the contract thus entered into, and made frequent advances, and gave acceptances for the said firm of Hazard & Lea to the full extent of their wants and requirements, in the expectation of receiving shipments of all the cotton which they could purchase and control ; but that the said Hazard & Lea, in violation of their contract, and to the great pecuniary damage of Skipwith, Hazard & Co, and of themselves the plaintiffs, shipped their cotton to other parties in this city.

The plaintiffs claim the sum of S3,867 for commissions lost on account of the failure of Hazard & Lea to comply with the terms of the alleged contract; and also claim the further sum of $132 91, balance of account current for advances, commissions, &c.

There was judgment in favor of the plaintiffs, and the defendant has appealed.

Several novel and interesting questions have been raised and argued by counsel in the case; but if the first objection made to the plaintiffs’ right of recovery is well taken, it will be unnecessary to consider and pass upon those questions in the present litigation. This objection is that the plaintiffs were bound, under the defendant’s answer, which was a general denial, to prove that they had acquired, by purchase or otherwise, from the legal representatives of Hazard, of the firm of Skipwith, Hazard & Co., by whose death the firm was dissolved, his interest in the partnership assets, or at least his interest in the debt claimed in this suit.

It is not shown that the plaintiffs, as surviving partners, have any right, by virtue of a partnership agreement, to liquidate the partnership affairs; and the only evidence adduced to establish their right to the interest of Hazard in the partnership effects, is that the amount of capital furnished by him, as a partner in the concern, was paid by the plaintiffs to one Hadden, who was the stepfather of Hazard, and who had loaned him the money for the purpose of enabling him to become a partner in the house of Skipwith & Osborne, a firm previously established, and then carrying on the commission business in this city. It is, however,'shown that the defendant recognized the plaintiffs as the liquidating partners of Ship-with, Hazard & Co., by-sending them a draft for a debt due on balance of account by Hazard & Lea to that firm.

On the death of Hazard, his interest in the assets of the firm of Skipwith, Hazard <& Co., descended to, and became vested in his heirs at law, and the plaintiffs, as surviving partners, could only have acquired that interest by transfer or assignment from the heirs, and thereby have acquired a right to sue for the debt in their own name.

And whether they have succeeded to the interest of Hazard in the firm, is not a question of capacity to sue, but a question of title or right to the debt; and the general denial pleaded by the defendant imposed upon them the burden of proving the title or right to the debt, as alleged in. their petition.

The payment which the plaintiffs made to Hadden, was not a payment to the heirs of Hazard, for the step-father is not an heir at law-to the step-son; and unless Hadden had authority (which does not appear) from the heirs of Hazard to receive the payment shown by the evidence, the payment itself was invalid, and not binding upon the heirs.

The fact that the defendant sent to the plaintiffs a draft for a debt due by Hazard & Lea to Skipwith, Hazard & Co., does not estop him from denying plaintiffs’ title to the interest of Hazard in the last mentioned firm.

It is, therefore, ordered,-adjudged and decreed, that the judgment of the lower court be avoided and reversed ; and it is now ordered,'adjudged and decreed, that there be judgment in favor of the defendant .as in case-of‘nonsuit, with costs in both courts.


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    Benjanin Berry v. Morris Marix.
    A livery stable keeper who rents stalls to another, who finds his own,employee, and provender for his horses, is not liable if the latter be lost or stolen.
    Appeal from the District Court of the Parish of Iberville, Avery, J.

      Samuel Matthews, for plaintiff. Z. Labauve, for defendant and appellant.
   Voorhies, J.

The record shows that Marix is a livery stable keeper; that he rented several stalls to Berry at a stipulated price; that the latter furnished the provender and kept an employee in the stable to take charge of his horses; that the former took charge of his own horses in another part of the building; and that two of the plaintiff’s horses, with a saddle and bridle, disappeared or were stolen.

The question is, whether the defendant is responsible for the loss.

Onr attention has been called to articles 2722, 2938 and 2939 of the Oivil Code; but these refer, in express terms, to carriers, watermen and innkeepers, and generally to necessary deposit. They do not embrace livery stable keepers as a class. ' ' ■

In the present case the object of the contract was, not the horses, but the stalls. The difficulty must, therefore, be adjusted by reference to the rules laid down in the second chapter of title IX, b. Ill of the Civil Code, — “Of Letting out Things.” See also article 2644.

The defendant was the lessee of the stalls; and his obligation towards the plaintiff had no connection with the horses, only for the purpose of putting and main- ' taining him in the peaceable possession of the stalls. Having no control over the horses, which were, by the agreement, under the sole eave and charge of the other’s employee, it follows that he cannot be called upon to deliver them to the owner, or to make up the loss.

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


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    A. L. Bingaman v. John G. Cocks et als.
    A party who voluntarily executes the judgment of a Jockey Club against him cannot alternareis come into Court and reclaim the amount so paid.
    Appeal from the Second District Court of New Orleans, Morgan. J.

      L. M. Bay and B. S. Tappan, for plaintiff and appellant. H. H. Straw-bridge and H. B. Ogden, for defendants.
   Buchanan, J.

Plaintiff sues the three defendants for the recovery of one thousand dollars deposited in their hands, as judges of a sweepstakes race over the Metarie Course, run by three horses belonging to plaintiff and two other persons, in January, 1857.

He alleges that he is entitled to said money, because the race was adjudged to him by the said judges, although their decision was subsequently reversed by the Metarie Jockey Club, and the sweepstakes awarded by the judgment of said Club to another party, to whom they were paid.

The plaintiff contends that the Jockey Club had no right of appeal under the bye-laws of the Club, and that the decision of the judges of the race, appointed by the parties, was final.

It is needless to go into the facts of this Gase, as detailed by numerous witnesses, and the questions of racing law argued by counsel, inasmuch as we are of opinion the plaintiff cannot stand in Court to prosecute this action against the present defendants. It is in proof, without contradiction, that the defendants, or a majority of them, having adjudged the race in favor of plaintiff, the sweepstakes were paid over to him by the defendants; that after the decision of the Jockey Club, upon the appeal of Mr. Kenner, reversing the judgment of defendants, the said sweepstakes were returned to the judges (defendants) by plaintiff; and were thereupon, to the knowledge of plaintiff, and without opposition from him, paid over to Mr. Kenner, in accordance with the judgment of the Jockey Club. In this state of facts, plaintiff has no claim against defendants. If he were entitled to the money at their hands, they discharged their obligation to him by paying it over to him. If the Jockey Club were wrong in adjudging the purse to his competitor, he might have refused to return it to the judges, or might have stopped it in their hands by a writ of injunction until he should have had a decision of a court of law upon his rights in the premises. He has done neither of these things, and is therefore without claim against defendants. His action, if any he has, is against the party to whom the money was awarded by the decision of which he complains; but which, it seems, he has voluntarily executed.

.Judgment affirmed, with costs.

MeeRICK, O. J., absent.


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    Joseph Spinney v. Hyde & McKie.
    Where the plaintiff resides out of the State, or in the State, hut in a different parish from the defendant, the latter may institute against the former a demand in reconvention for any cause, even for such as are not connected with or incidental to the principal demand. Revised Statutes, p. 96.
    Appeal from the Fourth District Court of New Orleans, Price, J.

      E. Rawle, for plaintiff. T. Gilmore, for defendants and appellants.
   Buchanan, J.

Defendants, who reside in New Orleans, being sued by plaintiff, a resident of New York, for the price of one-fourth interest in the ship Cotton Planter, sold by plaintiff to defendants, have reconvened and claimed of plaintiff a large sum for balance of account for the earnings of the said ship, while owned jointly by the parties, and employed in the business of a common carrier or freighting vessel.

The plaintiff’s counsel objected, on the trial of the cause, to the introduction of evidence offered by defendants of the items of their reconventional demand, on the ground that said evidence related to a settlement of the partnership accounts, and was not connected with the principal demand.

We are of opinion that the evidence was improperly excluded.

The amendment of the Code of Practice by the statute of 1839, p. 164, (Phillips’s Revised Statues, p. 96,) declares that when the plaintiff resides out of the State, or in the State, but in a different parish from the defendant, the latter may institute against the former a demand in reconvention for any cause, even for such as are not connected with or incidental to the principal demand.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; and that this cause be remanded to the court below for further proceedings according to law, with instructions to the District Judge to admit evidence of the items of defendants’ demand in reconvention. And it is lastly decreed, that plaintiff and appellee pay costs of this appeal.


author: Yoorhies, J.

text:
    Maria Kelly and Husband v. C. A. Lehman et al.
    Where a judgment was rendered for a certain sum of money, and, also, for the delivery of a note— Meld: That the suspensive appeal bond must be sufficient in amount for both, or the appeal will be dismissed.
    Appeal from Ihe District Court of the Parish of Carroll, Farrar, J.

      M. DuBose, for plaintiff. DeFrance, Pilcher & Montgomery, for defendants ' and appellants.
   Yoorhies, J.

The plaintiff obtained, in the lower Court, a judgment for a sum of money and for the delivery of a note of three hundred and sixty dollars, The appeal is suspensive, and the appeal bond is for the snm of three hundred and fifty dollars.

A motion to dismiss this appeal is based upon the ground, that the bond is insufficient in amount. The order of appeal does not fix the sum for which security should have been given, otherwise than by stating that it be conditioned according to law.

The bond furnished by the appellants covers the moneyed judgment, but not the amount of the note. It is, therefore, insufficient.

Appeal dismissed at costs of appellants.

Merrick, C. J., absent.


author: Yoorhies, J..

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    Emily Alexander v. G. Gusman, Agent.
    The sale of a thing belonging to another person is null; it may give rise to damages when the buyer knew not that the thing belonged to another person. C. C. 2427.
    Appeal from the District Court of the Parish of E. Baton Rouge, Avery, J.
    J. W. Burgess, for plaintiff and appellant. T. G. Morgan, for defendant.
   Yoorhies, J..

The plaintiff and the defendant trace up their respective titles to the property in dispute, through mesne conveyances, to a common ancestor, E. T. Hall. The difficulty has arisen from the construction placed upon the transfer from Hall to Abraham Stotts; for the plaintiff claims through the latter, and the, defendant through his son!

The contract between Hall and Stotts was a mixed sale and exchange. The former conveyed the property in dispute to the latter’s minor children in exchange for property belonging to them. In the notarial deed the father appeared simply as representing them in the transaction.

The property, then, never belonged to Abraham Stotts, through whom the plaintiff holds title; and the subsequent sale of it, in his succession, was an absolute nullity, being the sale of another’s property. C. C. 2421. The plaintiff, consequently, has no title to the land.

Judgment affirmed.


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    Wm. H. Letchford & Co. v. Pennell F. Starns.
    When anote hears interest from maturity, the interest begins to run from the day of payment specified, without allowing for days of grace.
    The decision in the case of Weems v. Ventress, 14th An., re-affirmed.
    When a note is maclo payable at a particular place, it is not necessary to allege or prove, in an action against the maker, that a demand for payment was made at the place designated in the note, to enable plaintiff to recover.
    The decisions in 5th An., pp. 61 and 188, re-affirmed.
    Appeal from the District Court of the Parish of Livingston, Wilson, J.

      W. E. Walker, for plaintiffs. A. Hennen, for defendant and appellant.
   Buchanan, J.

This is an appeal by defendant from the confirmation of a judgment by default on two promissory notes payable at the counting-house of the payees, plaintiffs herein." Defendant is the maker of the notes.

Two questions are made by appellant:

1. Interest is allowed in the judgment from the maturity of the notes, and including the three days of grace.

2. No demand of payment at the place where the note was made payable, is proved.

The first point is disposed of, by our decision in Weems v. Ventress, 14 Annual, p. 267.

On the second point, it is now well settled, that when a note is made payable at a particular place, it is not necessary to allege or prove, in an action against the maker, that a demand of payment was made at the place designated in the note, to enable plaintiff to recover. Ripka v. Pope, 5 An. 61; Posey v. Bank of Louisiana, 5 An. 188.

The older cases, relied upon by defendant’s counsel, which favor a contrary doctrine, have been expressly and repeatedly overruled.

Judgment affirmed, with costs.

Merrick, C. J., absent.


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    Wm. B. Robertson v. Wm. Spring.
    Malice, and a want of probable cause must, in all cases, concur, in order to malte out a case of maii-cious prosecution.
    Appeal from the District Court of the Parish of St. Tammany, Wilson, J.

      H. Duncan, for plaintiff. A. Hennen, for defendant and appellant.
   Duffel, J.

The object of this suit is the recovery of $5000, as damages, for a malicious prosecution, perjury. The case was submitted to a jury, who found for the .plaintiff $250, and judgment was accordingly rendered, with the addition of legal interest from judicial demand.

The defendant appealed.

The evidence shows that the plaintiff was indicted, put on his trial, and acquitted of the charge of perjury. The defendant did not' appear, as a witness, before the Grand Jury, who found the true bill, nor is there any proof that such finding was the result of any fraud or perjury, or that the defendant took any active part to bring about such a result, save a request, which was not then acted upon, to present the plaintiff to a Grand Jury, at a previous term of the court.

The criminal prosecution was based on the categorical answers of the plaintiff to interrogatories propounded to him by the defendant in a civil suit, and we are not prepared to say, from the evidence before us, that the unqualified answers of the plaintiff were not calculated to induce a self considered injured creditor, reasonably to advise the charge,

Malice, and a want of probable cause must, in all cases, concur, in order to make out a case of malicious prosecution. G. A. Blass v. Gregor & Wilson, 15 An. 421, and the authorities therein cited.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided, and that the plaintiffs’ demand be rejected with costs in both Courts.


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    Coleman, Britton & Withers v. John Fennimore.—Board of Levee Commissioners, Garnishees.
    The answers ol‘ garnishees are taken to he true, until disproved or contradicted by legal evidence. Answers acknowledging no present indebtedness to defendant, nor any future indebtedness, except contingent upon an uncertain event, will not bind garnishees.
    Appeal from the District Court of the Parish of Madison, Farrar, J.

      A. R. Hynes, for plaintiffs. Compton & James for defendant and appellant. H. Short, for Commissioners.
   Buchanan, J.

Plaintiffs being creditors by note, of a person who had made a contract with a Board of Levee Commissioners of Madison parish to build a levee, sued their debtor and attached in the' hands of the commissioners, the amount that might be due him upon the said contract. The garnishees answered the interrogatories propounded to them, as follows : that upon the contract made by defendant with the garnishees, he had estimates furnished by the engineer to the amount of $88,000, for which, warrants have been issued, less twenty per cent.; that by the terms of the contract and regulations of the board, twenty per cent, on the amount of the estimates, is retained until the entire completion of the contract; that John Fennimore has not yet completed his contract; that the time for its completion has been extended to a future day ; that if by that time the contract upon which the estimates have been given, shall be completed, then warrants will issue for the amount retained on the estimates already furnished, as well as for the work to be completed ; and if the contract shall not be then finished, defendant cannot claim anything of garnishees, as, by the terms of his contract, the amount retained will be forfeited to the board.

These answers have not been traversed; yet simultaneously with judgment against defendant, judgment has been rendered against the garnishees, “ for the unpaid balance, or so much thereof, as will pay and satisfy this judgment, retained by said Levee Board, on a contract between John Fennimore and the Board of Levee Commissioners in the 15th ward, as set forth in the answer of said garnishees.”

Prom this judgment garnishees have appealed.

The judgment is erroneous. The answers of garnishees are taken to be true, until disproved or contradicted by legal evidence. Nothing of the kind has been done or attempted here. On the contrary, the plaintiff has given in evidence the answers of the garnishees, and nothing more, as against them.

Those answers acknowledge no present indebtedness to defendant; nor any future indebtedness, except contingent upon an uncertain event. Failing that contingency, garnishees will owe defendant nothing. It is evident that this judgment is premature. As the time limited for the performance of the defendant’s contract has now past, however, we will remand the cause, to give the plaintiffs an opportunity of propounding supplementary interrogatories to garnishees, in reference to the actual state of their account with defendant.

The defendant has also appealed ; but he has presented no case for relief at our hands. The judgment, as regards him, appears to conform to justice under the law.

It is, therefore, adjudged and decreed, that the judgment of the Court below as to the garnishees, the Board of Levee Commissioners, be reversed ; and the cause remanded for further proceedings, upon the garnishment process; that, as regards the defendant, the judgment be affirmed; and that the costs of appeal be borne, in equal proportions by plaintiffs and defendant.


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    Mary P. Harbour v. J. B. Haynes, Administrator.
    The widow is not hound, under the homestead Act of 1852, p. 172, to postpone her action until the final liquidation of the estate. Such a suit, however, must carry with it a virtual renunciation of the community.
    When the widow shows by proof her necessitous circumstances, it is not requisite for her to prove that her husband had no descendants from any prior marriage in order to bo relieved from giving the security required of usufructuaries under the Code. 5 An. 265.
    Appeal from the District Court of the Parish of East Feliciana, Me Vea, J.

      R. J. Bowman, for plaintiff. J. B. &. J. J. Smith, for defendant and appellant.
   Duffel, J.

The plaintiff obtained a judgment against the administrator of the succession of her husband, John A. Harbour, under the homestead act of 1852, p. 172, for $950, payable in due course of administration and by preference to all other debts, except those for the vendor’s privilege, and the expenses incurred in selling the property.

The administrator appealed.

The administrator pleaded the general issue, but made several points in his brief; we will only notice two, as the others do not properly appertain to a case of this kind.

It is contended, 1st. That, as the law presumes the existence of a community between the petitioner and her deceased husband, the action does not lie until the final liquidation of the said community.

2d. That it was incumbent on the plaintiff not only to show, as she- did, her necessitous circumstances and the want of issue from her marriage, but that she should have proved that her husband had no descendants from any prior marriage, in order to be relieved from giving the security required of usufructuaries under the code.

On the first point, the widow is not bound to postpone her action until the final liquidation of the estate, as this delay would, in many cases, defeat the very object of the law, which is evidently to afford immediate succor to the indigent; such a suit, however, must, we think, carry with it a virtual renunciation of the community.

On the second point. The plaintiff was not required, under the pleadings, to add anything to her proof. Marcos v. Barcas, 5 An. 265.

Judgment affirmed.


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    Alexander G. Penn v. George Crawford.
    A note specially endorsed by the payee to one person will be prescribed by five years when there is not sufficient evidence to establish a new promise.

    The defendant stated on the first presentment that “ he thought the note had been settled, but if not, he would arrange it”; and on the second presentment he stated that “ ho would see the plaintiff and settle the amount of the note.” — *Held: That this evidence is too doubtful, uncorroborated, to interrupt prescription.
    Appeal from the District Court of the Parish of St. Tammany, Wilson, J.

      G. W. Penn and G. W. Martin, for plaintiff. E. P. & T. C. W. Ellis, for defendant and appellant.
   Land, J.

This suit is founded on the verbal assumpsit of the defendant to pay to the plaintiff the amount of a promissory note drawn by one J. M. Durand, on the 22d of February 1851, for the sum of $350, and made payable one hundred days after date at the office of J. J. Halsey in the City of New Orleans, and specially endorsed by the defendant to /. 8. Halsey, Esq. The defendant was the payee of the note.

The defence is, first, a general denial; secondly, that the note was endorsed to J. S. Halsey, Esq., for collection for the use of the defendant; and thirdly, the prescription of five years.

The plaintiff offered no evidence to prove the transfer of the note to himself by /. S. Halsey, to whom it had been specially endorsed by the payee, who is the defendant in this action ; and the only evidence of title which he adduced on the trial, was the testimony of a single witness to the effect, that he, the witness, presented the note twice during the year 1857 on behalf of the plaintiff, to the defendant, who stated on the first presentmnnt that he thought the note had been settled, but if not, he would arrange it; and on the second presentment he stated that he would see the plaintiff arid settle the amount of the note.

This evidence is insufficient to prove a legal title in the plaintiff by transfer or assignment from J. 8. Halsey, the special endorsee ; and it may be well doubted whether this evidence, which is the weakest species known to the law, and which is uncorroborated, is sufficient to establish a new promise on the part of the defendant to pay unconditionally the note, which at the time was extinguished by prescription.

Noth withstanding the averment of the defendant’s answer that the note had been specially endorsed to J. S. Halsey, for collection, the plaintiff did not attempt to' show under what circumstances, or upon what consideration, or from whom he had received the note, and as the case is presented to us upon the record, we think that the plea of prescription should be sustained.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed; and it is now ordered, adjudged and decreed, that ■there be judgment in favor of the defendant uith costs in both courts.