author: Btjchanak, J.

text:
    W. Reed et al. v H. H. Crocker, Executor.
    A suit to remove an executor from office may be maintained by a portion of the heirs named in the will.
    The Act of the Legislature of March 13th, 183T, sec. 3d, reenacted 12th of March, 1855, imposing a penalty on executors, administrators, &c., for withdrawing the funds of the succession from bank without an order of court, is imperative and must be enforced when there are no peculiar circumstances which form an exception.
    The statute is equally imperative that the executor must render a full account of his administration at least once in every twelve months, and the neglect of the counsel of absent heirs to compel an account, will not exonerate the executor.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Ogden & Leovy and P. E. Bonford, for plaintiffs.

      Pwrvis & Bugu'e, for
    defendant and appellant.
   Btjchanak, J.

This is a suit to remove an executor on two grounds: 1st. That he has not deposited in a chartered hank paying interest on deposits, the funds which have come into his hands as executor, or having so deposited them, that he has withdrawn such funds without an order of court.

2d. That he has suffered more than a year to elapse from the date of his appointment, without rendering an account of his administration.

The defendant, first, excepts that the plaintiffs are without interest to institute this proceeding.

The plaintiffs assert themselves to be descendants of the brothers and sisters of the testator, and, as such, to be his heirs at law.

The evidence offered on the trial of the exception shows that the plaintiffs had instituted suit against the defendant and others, for three-fourths of the succession of Elisha, Orocker ; and the judicial admissions of defendant, contained in his pleadings in that suit, identify plaintiff, as constituting a portion the relatives, descendants of deceased sisters, spoken of in the last will of Elisha Orocker. The exception was, therefore, properly overruled.

Upon the merits, it was shown that defendant kept an account in bank as executor. The bank did not pay interest on his deposits it is true. But it is proved that the defendant made inquiries, and was informed that there was no bank in the city paying interest on deposits. Although, therefore, the plaintiffs have proved that several of the chartered banks in New Orleans do pay to certain of their customers interest on deposits under special agreements, yet these appear to be deviations from the general practice of the institutions in question, which were unknown to the defendant and to the officers of the bank in which he kept his account.

The court below has held the defendant liable to the penalty, imposed by the Act of March 13th, 1837, section 3d, reenacted on the 12th March, 1855, (Session Acts, page 78, section 2,) for such sums as the executor withdrew from the bank without an order of court; and we find no error in that ruling. The cases are numerous in which the penalty has been enforced. Indeed the law is imperative.

Oases might possibly arise, whose peculiar circumstances would form an exception, as for instance, if the administrator held the power of attorney from the very heirs who claimed to make him liable for the penalty of the statutes in question.

The requirement of both those statutes is no less imperative, that the executor must render a full account of his administration at least once in every twelve months. The defendant qualified as executor on the 12th July, 1854. This suit was brought on the 81st December, 1855, up to which time no account had been rendered. The defendant’s counsel argues, that by the 1183d Article of the Civil Code, (which is expressly kept in force by the concluding section of the Act of 1855, page 'T9,) the executor is only required to render an account at the instance of the counsel of the absent heirs. But we do not consider this to bo a correct interpretation of the meaning of the Legislator in the Article quoted. The preceding Articles had ordained, that the term of administration was one year; that the duties of administrators ceased, even before the expiration of that time, when the heirs present -themselves or send their powers of attorney to claim the succession. Then follows the provision (in the Article quoted) that, when the heirs do not present themselves or send their powers, Sc., an account must be rendered at the expiration of the year, at the instance of the counsel for absent heirs. This can only be taken as recognizing the authority of the counsel appointed by the court to demand the account, even should he receive no special mandate to that effect from the heirs. In that case he has a mandate derived from the law. But it cannot be supposed that it was intended the neglect of the counsel of absent heirs to compel an account, should have the effect of allowing the administrator to go out of office without rendering any account. Besides, the Article 1183 is found in the chapter of the administration of vacant estates.

The Article 1666 is more directly applicable to testamentary executors ; and that Article is without even the apparent qualification which terminates Article 1183. It reads thus :■ “ He (the executor) must render an account of his administration at the expiration of the year, commencing from the moment in which he had the seizin.”

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Merrick;, C. J.

license: Public Domain

text:
    Steamer Jean Webre v. H. Kendall Carter & Co.
    It is not for the carrier to render it probable that the injury to freight was occasioned by one of the natural dangers incident to the navigation. It is incumbent upon him to show that he has used diligence and proper skill to avoid the accident, and that it was unavoidable.
    APPEAL from the Sixth District Court of New Orleans, Gotton, J.

      Goxe S Breaux, for plaintiff.

      Steele, Hammer S Hays, for defendants and appellants.
   Merrick;, C. J.

This suit is brought to recover $1092 freight and charges on the transportation of 151 bales of cotton from Alexandria, in this State, to this city, in the month of July, 1855, tho freight being at the extraordinary rate of six dollars per bale.

The claim is resisted by the defendants as to $611 35, on the ground that the eighty-one bales of cotton wore delivered in a damaged and unmerchantable condition.

The District Judge was of the opinion that the cotton was damaged before it was received by the plaintiff, and that the larger portion of the loss to the planter was occasioned by the factors adhering to what he calls the unjust rule adopted by the pickeries of this city.

The bills of lading affirm the cotton to have been in good order and condition when received, and the obligation assumed by the plaintiff was to deliver the same in like good order and condition at New Orleans, (the dangers of the river and fire only excepted,) the privilago of lighterage and stowage in flats and barges being also reserved to the plaintiff.

The testimony is insufficient in our opinion to rebut the acknowledgment contained in the bill of lading, that the cotton was received on board in good condition.

Erom the admissions of the master of the boat, and the testimony of plaintiff’s witnesses, there can be but little doubt that the cotton was damaged while being transported by the plaintiff. The flat-boat on which it was stowed struck something which occasioned a leak, and thirty-two bales were landed upon the beach, covered with tarpaulins and left in charge of a watch, and the residue brought to the city. That which was landed and left in charge of a watch, was brought to the city in about two weeks afterwards.

It is not sufficient for the plaintiff to render it probable that the injury to the cotton was occasioned by one of the natural damages incident to river navigation ; to relieve himself from responsibility, it was incumbent on him to prove that he used due diligence and proper skill to avoid the accident, and that it was unavoidable. Angelí on Carriers, sec. 168; Bond v. Frost, 6 An. 801; same case, 8 An. 297.

It is objected, that the mode adopted to ascertain the damage done was illegal, oppressive and unjust; that, as the damaged cotton is left with the owner of the pickery, there is every inducement to find and appropriate the largest possible amount of damaged cotton. This subject was considered in the 8 An. 297. The custom of merchants in this city of sending cotton to the pickeries is again proven. It is also shown that the damaged cotton is allowed as a partial compensation. The custom is certainly objectionable, but -so long as it is generally adopted and no better mode can be pointed out, we are not prepared to say that the party sending damaged cotton to a pickery shall not be entitled to recover for such damage as he has really sustained. Much is entrusted to the owner of the pickery, but it is the same with the cotton factor and many other agents. In this case, the owner of the pickery was placed on the stand as a witness, and the plaintiff could have had the benefit of a cross examination, had it been desirable to ascertain whether there had been a breach of the confidence reposed in him.

"We do not think the delivery of the cotton without objection a bar to the defendants’ right to claim a deduction for the damage done, it having been discovered after the delivery. Oakey v. Russell, 6 N. S. 60.

The damages claimed appear to be proven to the amount stated in defendants’ brief, viz, $545 60, which should be allowed as a deduction upon the plaintiff’s demand.

The tender was not made in such a form and amount as to relieve the defendants from the payment of costs.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court in this case be avoided and reversed, and now, pronouncing such judgment as ought to have been rendered, it is ordered, adjudged and decreed, that the plaintiff do have and recover judgment against the defendants for the sum of five hundred and forty-seven dollars and forty cents, with five per cent, interest thereon from the first day of September, 1855, until paid, the defendants’ reconventional demand having- been consumed in reducing the plaintiff’s demand to the amount herein awarded; and it is further ordered, that the plaintiff and appellee pay the costs of the appeal and the defendants the costs of the lower court.


author: Spom-ord, J.

text:
    Mary A. Goodin and Husband v. Mrs. Alice Allen.
    When the husband and wife both appear as plaintiffs in an action in revendication of the paraphernal property of the wife, the real plaintiff is the wife, authorized and assisted by her husband. When in such case the affidavit to obtain a sequestration was made by the husband only, and he alone signed the sequestration bond, 7tdd, that the sequestration was properly dissolved.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      R. & H. Mcvrr, for plaintiffs and appellants.

      3. B. Eggleston, for defendant.
   Spom-ord, J.

The plaintiffs have appealed from a judgment dissolving an order of sequestration.

The suit is declared to be in revendication of the paraphernal ]:>roperty of the wife claimed by a third person. It results from the allegations of the petition, that the property in dispute was under the administration of the wife.

The husbund and wife both appear as plaintiffs. The affidavit for the sequestration was made by the husband only, he alone signed the necessary bond.

On this ground the sequestration was dissolved.

The court did not err. The real plaintiff is the wife, authorized and assisted by her husband. “ Actions relating to the ownership of the dotal *or paraphernal property of the wife, or of some real rights belonging to her, must be brought by the wife, duly authorized by her husband, or by the Judge, if he fails to do it.” C. P. 107. -j

The defendant had a right to require indemnity from the wife against the effects of a wrongful sequestration.

Judgment affirmed.


author: Spoworb, J. Merrick, O. J.

text:
    William Wooters v. Ellen Feeny, wife of Hogan.
    When a husband had voluntarily lived separate and apart, and the wife during that time had purchased real estate, the title to which, being on record in the name of the wife, as a donation made to her individually, was subsequently acquired by an innocent third person in good faith, under a chain of title from the wife, it was held that the husband could not, after the wife’s death, recover the property, as having belonged to the community, and having been sold by the wife without authority.
    The husband, by parol evidence, could not thus despoil the purchaser of immovable property, acquired under a chain of recorded titles apparently perfect, without notice, actual or constructive, of the husband’s latent claim, which has no basis in equity.
    APPEAL from the Second District Court of New Orleans, Cotton, Judge of the Sixth District Court, presiding-.

      J. W. Briohell, for plaintiff and appellant.

      Benjamin, Bradford & Finney and Durant & Hornor, for defendant.
   Spoworb, J.

The plaintiff seeks to recover a piece of immovable property from the defendant, upon the ground that it formed a part of the community between himself and his deceased wife, and was disposed of by his wife in fraud of his.rights.

The defendant boug-ht in entire good faith, under a chain of titk apparently perfect, and without notice of any right or claim of the plaintiff. She paid a valuable consideration, which the plaintiff does not offer to restore.

Eor a great many years the plaintiff and his wife lived in a state of voluntary separation, although the community was not dissolved. She pursued a separate industry, and thereby acquired some means. It seems that she invested them in the real property now in dispute, but to avoid being interfered with by her husband, she did not buy it in her own name, but induced one Beman to purchase it for her benefit.

Sevan afterwards sold the property to Chamberlain. Chamberlain transferred it to il/ra. Wooters, wife of the plaintiff, by donation inter vivos, which she was authorized by a competent court to accept. She afterwards sold it to Chamberlain, describing herself in the act of sale as the widow of plaintiff. Chamberlain sold to Bradford, and Bradford sold to the present defendant, Mrs. Feeny.

These titles were duly registered. It will thus be seen that on the records of the country the property once stood as the separate property of Mrs. Wooters. It is only donations made jointly to both spouses that become community property. O. O. 2371.

The plaintiff rests his case upon the allegation that the original purchase, ostensibly made in the name of Sevan, being really made by his wife, the property thereby fell into the community, and can be reclaimed by him in the hands of an innocent purchaser without notice, because his wife was incapable of alienating the community estate pending the marriage without his assent, and because, further, she was, at the time of the alienation to Chamberlain, imbecile in mind.

It is obvious, from the statement already given, that the plaintiff is seeking to make out a title to immovable property by parol, in contradiction to written and recorded conveyances, and against an innocent purchaser for value.

Considering the position in which the plaintiff stands, this is insufferable. He brought about the present condition of things by his own conduct. He lived apart from his wife, and unknown to the world as her husband; permitted her to manage her affairs as a femme sole, contributed nothing to the common fund, and during her lifetime did not pretend to have any interest in her affairs. He now produces no written title. The written titles which exist do not show that he had an interest in the property which he claims. He has no counter-letters. He complains that his wife, who made everything she had by her personal industry and thrift, defrauded him of his half of her earnings by a series of simulations. If she did, his only remedy is against her heirs for a settlement of the community, or against those who confederated with her to defraud him. He cannot, by parol evidence, succeed in despoiling the defendant, who is a purchaser for a valuable consideration, of immovable property under a chain of recorded titles apparently perfect, without notice, actual or constructive, of the plaintiff’s latent claim, which has no basis in equity, and is the result of his own negligence or misconduct.

The District Judge rendered a judgment of nonsuit. Both parties agree that the judgment should be either for the plaintiff or defendant. The appellee’s prayer for an amendment must be allowed.

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

Merrick, O. J.

It is undoubtedly true that property acquired by the wife by her own industry and labor during the existence of the marriage (where there is no separation of property) falls into the community. The idea of community is based on the reciprocal industry of the spouses. But if the husband, who is the head and master of the community, suffers the title to be taken in the name of an agent, or to be made to the wife in the form of a donation to her individually, he must be presumed to have been willing to incur the risk of the faithlessness of the agent or the risk of loss of title by the death or disobedience of the wife. If he claims the property as that of the community, he ratifies the form in which it has been acquired. So here Woofers cannot claim that the property belonged to the community without ratifying the'machinery by which it was effected.

But it is said that the property, having once vested in his wife or the community, could not be alienated without his authorization or that of the Judge, and the sale by Mrs. Woofers to Ohamberlain, being without such authorization, conveyed no title. This objection to my mind presents the real difficulty in the case. But I think so long as Woofers suffered the title to remain in this form, third persons treating- with the wife as owner (in virtue of the donation) in good faith and for a valuable consideration, must be considered as having acquired all the interest they could have acquired had the property really been the paraphernal property of the wife. The sale of the wife, under such circumstances, is not an absolute nullity. If the property had -really been paraphernal, her heirs, and not the husband, after her decease could attack the sale. And they could not rescind the sale without restoring to the purchaser so much as her estate had been benefited by the purchase. So, too, the husband, if he would rescind such a sale on the ground that the property really belonged to the community, must restore so much as the community had been benefited by the transaction, and must not only make the purchaser and the possessor of the property a party to the suit, but also the heirs of the wife, who alone appear from the face of the papers to be interested in rescinding or ratifying the sale made by the deceased.

The plaintiff, therefore, has not placed himself properly before the court, in order to avail himself of any supposed irregularity in the transfer.

Eor the foregoing reasons I concur in the decree pronounced in this case.


author: Cole, J. Buchanan, J. Spoffokd, J.,

text:
    James H. Riggin v. Bernard Kendig.
    When the death of a slave is necessarily connected with and a direct sequence of the vice of character, it can then be no more regarded as a fortuitous event than a death which results from a vice of body.

      Held: That value of a slave could be recovered where the slave was a notorious runaway, and died of a disease contracted while a runaway, and which was a consequence of exposure in the woods and the eating of indigestible food.
    APPEAL from the Eourth District Court of New Orleans, Reynolds, J.

      J. J. Michel, for plaintiff and appellant.

      Thomas J. 8em/mes, for defendant.
   Cole, J.

This suit is instituted to recover the price of a slave and damages, on the ground that he died of a disease acquired while a runaway, and which was the consequence of exposure in the woods and eating indigestible food.

The evidence establishes that the slave Tide was a notorious runaway previous to the sale from defendant to plaintiff; that Kendig is a negro trader, and bought Tide of one Loupe, also of the same calling, who knew him to be a runaway.

We think that Kendig was cognisant of this vice of Tide when he sold him, fully guaranteed to plaintiff. They were both negro traders of the city, and that class of society is not easily imposed upon. Plaintiff charges him in the petition with a knowledge of the fact, and in support of the charge avers that he bought Tide from Loupe without warranty and with full knowledge of the existing vice.

When this cause was fixed for trial, the plaintiff, in order to prove the averment, notified Kendig to bring into court his bill of sale from Loupe. On the day of trial he produced a deed of sale from Loupe with full warranty, but on examination it was found to be a sale of a different slave, whereupon Kendig made an affidavit, in which he states that he delivered the bill of sale to his counsel supposing it to be the bill of sale for Tide; that when his counsel pointed out the error he carefully examined his papers, and could not find it. He believes it to be lost or mislaid, and that he generally gives up his private bills of sale to the notary when he sells.

Now in this affidavit he does not pretend to have ever bought the slave with warranty, yet that was the point in controversy, and one which'his own interest made it his duty to declare upon.

As the sale from Loupe to Kendig was a private act, and as he swears he was accustomed to give his private bills of sale to his notary, why did he not make a search among the records of that officer in the city of New Orleans ?

Defendant did not cause Troupe to be cited to defend the warranty, which he pretends to have received from him. He prays in his answer that he bo cited in warranty, but this is all that was done.

it ¡g no-(; natural to suppose defendant would incur the risk of losing upwards of one thousand dollars if he had a warrantor to protect him.

Defendant was ‘aware at the time of the sale of Dick to plaintiff that he was affected with the redhibitory vice of being a runaway, and is liable to plaintiff in the event the death of Dick was caused by exposure and bad food from being a runaway.

Before alluding to the testimony as to the cause of his decease, we will dispose of the following bill of exceptions taken by defendant to the ruling of the lower court: “Be it remembered, that on the trial of this cause the defendant’s counsel having asked Dr. Browning, on cross-examination, how long the boy had been sick when ho was called upon to attend him, replied that he did not know except from what the boy told him: on then being asked how long the boy told him he had been sick, said that the boy informed him he had been sick two or three weeks; then, on re-examination, plaintiff asked the witness to what cause the boy ascribed his sickness, to which question defendant objected, on the grounds that the declarations of the slave were not evidence, and that the question propounded had no reference to an explanation of the question prounded by defendant, which was merely directed to the length of time the boy had been sick, and not as to the nature or origin of his disease. The court overruled the defendant’s objection, because of the question asked on cross-examination, and admitted the testimony, thereupon the defendant objected, and tendered this his bill of exceptions, which is signed this 29th May, 1856.”

We consider that the objections in this bill are not well taken, for the following reasons:

When an illegal interrogatory is propounded to a witness as to what a third party said, if the answer thereto will have a direct effect on the decision of the suit, then it is lawful for the opposite party to propound interrogatories, not only with reference to an explanation of the question already presented, but also as to anything else that this third party said, which would have the effect of rebutting the conclusion that might be drawn from the response to the first illegal interrogatory, provided the questions allude to the same conversation.

If in this case the answer to the interrogatory of defendant was allowed to stand alone, then as the boy said he had been sick two or three weeks, his death might be ascribed to a fortuitous event, (0. O. 2511,) and defendant would not be responsible. As defendant thought proper to propound a question, the answer to which affects the principal issue in this case, the adverse party had the right to ask any questions relative to the same conversation, which might destroy the effect of the first illegal interrogatory.

The answer of witness to the question: “to what cause the boy ascribed his sickness ? ” was as follows: “At the same time Dick told him how long he had been sick, he informed him that he had been laying exposed in a shanty in the woods for three or four weeks, and sick in that shanty. He did not say where that shanty was, but said it was back in the woods.”

In this case then it appears that the slave informed Dr. Browning that he had been lying exposed in the woods at the same time that he told him he had been sick. Notwithstanding then the illegality of the testimony of slaves T-’u-n'osed against whiic pen-ons, and also that oí be&r-ssy tesiimouy, as defendant first propounded the illegal interrogatory, the effect of the answer to which affected the main issue, we consider plaintiff had the right to rehut the effect of that answer by questions as to other parts of the same conversation, the answers to which would have such effect.

The lower court then properly overruled the objections to. the interrogatory set forth in the bill of exceptions.

Having shown that defendant must have been aware of the existence in the slave of the redhibitory vice of running away at the time he sold him to plaintiff, and having disposed of the bill of exceptions, the sole question that remains for our consideration is, whether the death of Dials was produced by a disease contracted from exposure and bad food from being a runaway.

The evidence establishes that Dials was absent as a runaway for three or four months previous to the period of his death, to wit: from March to July, 1855, when he was brought in a dying condition to the house of Mrs. Emomuel; that Dr. Browning was sent for, and he died in about three days of inflammation of the bowels.

Dr. Browning testifies that “inflammation of the bowels is caused from exposure to dampness, cold, eating indigestible food, and various other causes. Should think that a negro, having run away from his master and gone into the back of the woods, living in dampness, would be very likely to contract such disease, as well as many others.”

Although this slave may have died of a disease not produced from being a runaway, still as it is established that he was a runaway for a long time previous to the sale to the plaintiff — that defendant must have been aware of this redhibitory vice, and concealed it from plaintiff — that he .was a runaway for three or four months previous to his death — that he died of inflammation of the bowels, which is sometimes caused by exposure to dampness, cold and eating indigestible food; and as this slave had been lying sick and exposed in a shanty in the woods for three or four weeks, we conclude that under this state of facts this slave must be considered as having died of a disease contracted by exposure and want of proper food whilst a runaway — that as this disease was a direct consequence of a vice existing before and at the time of the sale, that plaintiff has the right to recover in this suit.

A sufficient cause for the death from a disease, which may be considered a direct consequence of a redhibitory vice, having been established by plaintiff, it is reasonable, under the circumstances of this case, to attribute the disease to causes known to be adequate, such as exposure and want of digestible food, rather than to some imaginary cause which might make his death a fortuitous event.

The case of Kiper v. Nuttall, 1 Rob. 46, does not conflict with our view in the present suit. In that action it was not proved that the death resulted from a disease which either existed or was the consequence of one existing at the time of the sale, and therefore the decease of the slave was a fortuitous event within the meaning of Art. 2511 of the Civil Code.

We consider that whenever the death may be viewed as a direct sequence of the redhibitory vice, then the death cannot be deemed a fortuitous event. Eor example, if a slave is sold who is unsound of mind, and in a fit of insanity kills himself, his death is a direct result of the redhibitory vice, and cannot be viewed as a fortuitous event in the sense of the statute.

if a Jove has !he redhibitory hce of running away, and whilst in the act attempts to swim a river and is drowned, his death is not a fortuitous event within the meaning of Article 2511 O. 0., but is a direct consequence of the Vice of running away.

Article 2500 O. O. divides the latent defects of slaves into two classes: vices of body and vices of character. Now if death, resulting from a disease existing at the time of the sale, is not a fortuitous event, why should a death which is the direct consequence of a vice of character be considered a fortuitous event ? We think that whenever the death of the slave is necessarily connected with and a direct sequence of the vice of character, it can then be no more regarded as a fortuitous event than a death which results from a vice of body.

It is established that a slave like Dick, having no vices and defects, was worth a thousand dollars and upwards in July, 1855. We consider that plaintiff is entitled to recover of defendant $1000, with legal interest from judicial demand, August 8th, 1855.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and proceeding to render such judgment as ought to have been rendered by the lower court: It is ordered, adjudged and decreed, that plaintiff recover of defendant one thousand dollars, with five per cent, interest from the eighth day of August, eighteen hundred and fifty-five, and costs of both courts.

Buchanan, J.

I concur in the decree reversing the judgment of the District Court, on the ground that the evidence convinces me that the slave Dick was addicted to the vice of running away, to the knowledge of defendant, at the time of his sale to plaintiff, and that the defendant concealed this vice of the slave from plaintiff.

The death of the slave Dick before the institution of the action has not, in my opinion, exonerated the defendant from liability. The slave was brought home to his master in a dying condition, from a disorder contracted and aggravated to an incurable degree by exposure to the inclemency of the weather in the woods while runaway. I think it may be fairly said that the slave, in the words of Article 2510 of the Code, has perished through the badness of his quality.

The Erench text of the Article is, “ si la chose vendue a péri par suite de sa mauvaise qualité.” By bad quality in this Article I understand to be meant redhibitory nice. If, then, the death can be traced to a redhibitory vice with which the slave was affected at the time of the sale — if the death was the consequence (la suite) of such vice — the loss must fall upon the seller.

I think the evidence in this case clearly shows the death of Dick to have been the consequence of the redhibitory vice of running away. In this respect the case differs from that of Kiper v. Nuttall, 1 Rob. 46, where the disease of which the slave died could not be traced to and had no connection with that under which she was laboring at the time of her sale — the only redhibitory malady.

Spoffokd, J.,

dissenting. “If the thing affected with the vices has perished through the badness of its quality, the seller must sustain the loss.” C..C., Art. 2510.

“If it has perished by a fortuitous event, before thepurchas&r has instituted his redhibitory action, the loss must be borne by him.” O. O. 2511.

The slave in this case perished before the action was brought. He died of an inflammation of the bowels, an acute disease, which attacked him for the first time.

The cause of the disease rests upon conjecture. And the law looks not to remote possible or conjectural causes more than eight months after the sale, but to those which are proximate and certain.

It seems to me that this slave did not die of the habit of running away, or “through the badness of his quality,” but perished by a fortuitous event in the sense of the Code, and therefore I think the purchaser should bear the loss. Kiper v. Nuttall, 1 Rob. 46.

Yoorhies, J., concurring.


author: Merrick, C. J.

text:
    The State v. The Judge of the Fifth District Court—Ex rel. S. M. Perkins.
    Interlocutory orders made in the progress of a cause have their effect without being signed by the Judge.
    When in a redhibitory action an interlocutory order was made, authorizing the delivery of the slave into the custody of the defendant, upon the execution of a bond in favor of the plaintiff, it was held that the order was one which was calculated to produce, or which might occasion an irreparable injury, and that an appeal from such an order should be allowed.
    ON application for a mandamus to the Judge of the Fifth District Court of New Orleans, Eggleston, J.

      Oollins & Wooldridge, for relator.
   Merrick, C. J.

It appears by the answer of the Judge of the Fifth District Court to the rule issued in' this case, that “ Pmdcins instituted in that court, the 1st of May, 1857, his redhibitory action against Shelton to recover the price of a female slave named Jane, which the former purchased of the latter on the 5th of March, 1857, and guaranteed against the vices and maladies prescribed by law. In his petition, he charges that the slave was afflicted with a chronic disease of the heart and lungs, and the disease called Tonsils, to such an extent as to render her services useless to him. On the 16th May, 1857, Ar. Milteriberger, the agent of Perlcins, the plaintiff, addressed a letter to Shelton,” notifying him that the slave was left with one Serenes, in this city, where she was kept at a charge of 40 cents per day; that the plaintiff looked to him for the return of the price, interest thereon, expenses and damages, and that the slave was at his disposal whenever the same should be refunded.

“ The plaintiff, in his petition, demands $500 as -damages for medical services, counsel fees and charges. On the 20th of May, 1857, Shelton took a rule on Perlcins to show cause why he should not be allowed to bond said slave, on giving such bond and security as the court might require, for the forthcoming of said slave, suggesting in his rule, ‘ that since the institution of this suit, the plaintiff has made a tender and consignment of the slave forming the subject matter of this litigation, and that said slave is now in the slave-yard of one Serenes, at a heavy expense, and that her health may be injured by her being there confined.’ ”

The District Judge in his answer further states that “ this rule came up for trial, and the facts were duly proved. Several witnesses testified to the danger the slave would incur by remaining in the slave-yard, and the bad condition and structure of the place.”

The Judge permitted the defendant to bond the slave, but “required a bond with good security in the sum of two thousand dollars, for the forthcoming of the slave, in the event of there being a judgment in favor of Pw'lmnsT

He further states that three applications were made to him for an appeal from the judgment making the rule absolute, before it was signed, and not considering Perlcins entitled to an appeal, he declined to allow one.

To establish the correctness of his ruling on the application for an appeal, the Judge submits the following reasons, viz:

“ 1st. Because it is not an appealable case, at all events, before the judgment is signed.
“ 2d. Because the life of the slave was put in jeopardy by the act of Pwlcins, in placing her, ill as he charges she was, in an unhealthy place, as it was proved to be on the trial of the rule.
“ 3d. That Perlcins had made a real tender and consignment of the slave to Shelton, and he had a legal right to take her into his possession to cure her if possible, and to protect himself against loss by the execution of a bond and security in a sum exceeding the principal, interest, damages and costs claimed by Pes'lcins."

The second and third of these reasons relate more particularly to the correctness of the decision of the District Judge on the merits of the rule taken before him, than to the question whether the plaintiff is entitled to the appeal prayed for. ¥e will, therefore, consider the first reason assigned.

It is not usual to sign the interlocutory orders made in the progress of a cause, and as they have their effect without the signature of the Judge, the plaintiff was not obliged to wait until the Judge should sign such interlocutory decree before applying for an appeal. See Van Winckle v. Flechaux, 12 L. R. 150.

As interlocutory orders are always subject to revision on appeal, it is certainly not desirable that the administration of justice should be burdened by a multiplicity of appeals. But it is well settled that where the interlocutory order is calculated to work or ma}r occasion the party an irreparable injury, a direct appeal from such order is allowed the party. The only remaining question then is, whether the order of the Judge, authorizing the delivery of the slave into the custody of the defendant, is one calculated to produce, or which may occasion, an irreparable injury ? Aside from the question of the solvency of the parties to the bond, the delivery of the slave to the defendant upon the execution of the bond may have the effect to compel the plaintiff to institute a now action upon the bond after the determination of this suit. It may so change the condition of parties to the present suit, that the final judgment in that case will not end the controversy between Perlcins and Shelton. Orders producing such effects are considered as working irreparable injuries. C. P. 566; Hyde v. Jenkins, 6 L. R. 435; Gossett v. Cashell, 14 L. R. 245; Taylor v. Penrose, 12 L. R. 137; ibid. 148; Comstock v. Paie, 15 L. R. 481; 2 Rob. 342. As a question of law merely, it seems to us to result from the authorities cited, that the plaintiff is entitled to his appeal.

That appeal will suspend the order of the District Judge, which it is said that humanity requires should be executed. In reply to this argument, we can only say we have not seen the testimony which the District Judge considers so convincing. Should it produce the same conclusions in our minds when it reaches us, the defendant will be fully protected by the appeal bond and the unfavorable effect which the conduct of the plaintiff will produce upon his cause, and the slave herself Toy the penal laws made for her protection. Builard and Curry Dig. 56, sec. 39.

It is ordered, &c., that the rule he made absolute, and that a peremptory mandamus issue in this case, commanding said Judge to make such statements and allow an appeal as prayed for by the applicant in his petition.


author: Oole, J.

text:
    Succession of Sargent Pratt.
    At the decease of husband or wife, all the property possessed by them is presumed to be community property until the contrary is shown.
    If the surviving wife expresses her willingness to pay all the debts, and no creditors desire it, an.
    administration on the husband’s estate, so far as it concerns the community, is unnecessary. "When it is not alleged or shown that any part of the estate was the separate property of the husband, the surviving wife has the right to be put in possession of all the property left by him, on complying with the obligations of the usufructuary, as explained in the Civil Code. Her usufruct of the share of her deceased husband commences from the moment of his death.
    The heirs of the husband should be protected against the debts of the estate by requiring the wife to advance the money to pay them, or procure the release of the heirs from all liability for them.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Durant & Hornor and W. H. Paxton, for opponent and appellant.

      P. E. Bonford, for administratrix.
    P. W. Gurley, for absent heirs.
   Oole, J.

Aplira Pratt, sister of the deceased Swt'gent Pratt, petitioned to he appointed administratrix of the estate of her said brother, which is valued in the inventory at §23,757 25.

An opposition was filed to her appointment by Ann O'Brien Pratt, on the ground that she was surviving widow in community of said Sargent Pratt; that he died intestate, left neither ascendants nor descendants; that his property was entirely community property; that she is entitled to one half of her husband’s property in full ownership, and to the usufruct of the remaining half; that the succession owes no debts, and'that she is willing to accept his succession unconditionally.

The attorney of absent heirs joined issue, demanding proof of the widow’s marriage.

Judgment was rendered against her on account of the exclusion of important legal testimony; it was reversed by this court, and the cause was remanded for further proceedings.

At the second trial, an immense amount of testimony was introduced to establish her status as widow of said Sargent Pratt.

We are of opinion that it is satisfactorily proved that she was his wife: her status as wife was recognized by Sargent Pratt in every possible way, up to the period of his decease ; their marriage was also proved.

We think there is no necessity for the appointment of an administrator to the estate.

It would only he needlessly creating expenses for the succession to appoint an administrator, when no creditor desires it, so far as the record shows; when the debts are not heavy, and the widow expresses her willingness to pay them.

There was a large amount of testimony offered to show that the property of the estate, or a large part thereof, is community property. We consider that the pleadings did not justify the introduction of such- testimony, and that it cannot be considered in the issues made up by the parties.

It is true that opponent alleged in her opposition that the property of her husband’s estate is community property, but the answer of the attorney of absent heirs was a general denial, and only required special proof of the marriage.

If the heirs claimed the whole or any part of the estate as the separate property of the deceased, it was their duty to have alleged it.

We suppose, then, that it was the intention of the parties not to have in the present suit the character of the property determined, but to have two points decided, to wit:

Whether Aplira Pratt is entitled to the administratorship, and if she is not, whether opponent has the right to be put in possession of the estate.

The first point has been already decided in the negative; the second point must be given in favor of opponent for the following reasons:

The Act of the Legislature, approved March 25th, 1844, enacts: “ That in all cases hereafter, when either husband or wife shall die, leaving no ascendants or descendants, and without having disposed by last will and testament of his or her share in the community property, such share shall be held by the survivor in usufruct during his or her natural life.”

Two questions now arise: first, what part of the estate is community property, and secondly, when does the usufruct commence ?

As to the first point, we would remark that the law presumes the whole estate is community property, until the contrary is proved. In this case, no proper pleadings were made so as to decide against the presumption of law.

As to the second point, we are of opinion that the usufruct commences from the moment of the decease of the husband or wife, for as the surviving partner is entitled to the usufruct of the share of his spouse in the community property, and as the title of that share vests directly after the death of the spouse in his heirs, the right to the usufruct begins at the same moment that the title of the pi'operty attaches to the heirs ; othei’wise there would be property without any one being entitled to the usufruct, for by the Act of 1844, the heirs in the cases contemplated by that law are divested of the usufruct, and if the surviving partner did not have the right to the usufruct of the propex'ty at the moment of the decease of her spouse, then there would be no one who could claim it.

We are then.of opinion that opponent is entitled to be put in possession of the effects of the succession of her husband, on complying with the obligations of the usufructuary, as explained in the Civil Code.

We do not think it necessary to put the parties to unnecessary expense and trouble in remanding the cause to have a new inventox’y made.

There has been no question raised as to the necessity of a new one, and the old one appears to be a reasonable basis for the security to be given, inasmuch as Art. 552 C. O. directs that the security shall be estimated according to the inventory, and such further sum as shall be fixed by the Judge, according to the nature of the real property subject to the usufruct, to answer for the damages which the usufructuai-y, or those for whom he is responsible, may commit thereon.

It appears to us that no injury can be suffered by the heirs by our views, for they can bring a direct action against the widow for that part of the property which did not belong to the community.

We will also protect the heirs against the debts of the estate, by obliging the widow to either advance a sufficient sum to pay the debts of the deceased, or to furnish, as she avers she can, the consent of the creditors that she shall assume and furnish security for the payment of the debts due to them; this assumption must also be accompanied with a release of the heirs from all liability.

In order to prevent future difficulty, we would observe that the security should only be exacted for the debts of those creditors who may have presented themselves previous to the application of the widow to furnish the security, the release and assumption, or to advance a sufficient sum to pay the debts.

It is, therefore, ordered, adjudged and decreed that the part of the judgment which maintains the opposition of Ann O’Brien Pratt so far as to have her recognized as the surviving widow of Sm-gent Pratt, be affirmed ; and it is further ordered, adjudged and decreed, that the rest of the judgment be avoided and reversed; and it is further ordered, adjudged and decreed, that the application of Aphra Pratt to be appointed administratrix be rejected; that Ann 0 ’Brien Pratt, the surviving widow, be put into possession of the estate of her deceased husband, Sargent Pratt, by the lower court, after she shall have given good security, conditioned according to the obligations of the usufructuary in Art. 551 of the Civil Code, in an amount equal to one-half of the estimated value of the movables and slaves of the estate of said Sargent Pratt, according to the inventory of said estate made on the thirteenth day of September, of the year eighteen hundred and fifty-five, and according to any supplemental inventory of such estate, if any such has been already made ; and after the said widow shall have given security in such further sum as shall be fixed by the Judge of the lower court, according to Art. 552 of the Civil Code, unless said widow prefers giving a special mortgage, as provided by Art. 555 of the Civil Code; and after the said widow Pratt shall have advanced a sufficient sum to pay the debts of her deceased husband’s estate or furnished the consent of the creditors of said estate, that she shall assume and furnish security for the payment of the debts due to them; this assumption must be accompanied with a release of the heirs from all responsibility for said debts ; the said widow is only to guaranty, as aforesaid, the rights of such creditors who may have presented themselves previous to the application of said widow to furnish security, as aforesaid, for the benefit of the creditors of said estate, reserving the rights of the heirs to sue for the separate estate of said Sm-gent Pratt.

It is further ordered, adjudged and decreed, that said Aplwa Pratt pay the costs in the lower court, of her application to be administratrix of said estate and of the opposition of Ann O’Brien Pratt, and also the costs of appeal.

Vide: Act of 1844, p. 99; Succession of Fitzwilliam, 3 An. 489; Succession of Bringier, 4 An. 389.


author: Spojffoed, J. Buchanan,, J.,

text:
    C. Yale, Jr., & Co. v. P. Hoopes—Seaman, Peck & Co., Intervenors.
    A party intervening in an attachment suit and claiming a privilege on the property attached, is bound to see that his intervention is properly put at issue and brought to trial.
    When no default is taken and no issue joined on the petition in intervention, the plaintiff may proceed to render his judgment by default against the defendant final, without the cause being fixed for trial.
    The intervention falls with the decision of the main suit.
    The proper mode of testing the rights of one claiming the vendor’s privilege on property attached is not by way of intervention but by third opposition.
    APPEAL from the Sixth District Court of New Orleans, Gotten, J.

      Emerson & Huntington, for plaintiffs.

      G. B. Singleton, for intervenors and appellants.
   Spojffoed, J.

The plaintiffs upon a money demand against Hoopes, a nonresident, attached certain merchandize, and brought suit praying for judgment against him, with the right of selling the property attached to pay their claim by preference.

Seaman, Pecio & Go. intervened, and, alleging that they had sold the merchandize attached to the defendant on a credit, he having promised to furnish them collateral security, which he had failed to do, they prayed: 1st, that the sale from them to Hoopesha avoided, and the goods restored to them; and, 2d, that they be decreed to have the first privilege on the goods as vendors.

The counsel for plaintiffs accepted service of this petition in intervention and waived citation on the 28th April, 1865. On the 8th May, 1855, they took a judgment by default against their debtor Hoopes, who had been personally cited on the 25th April, which was duly confirmed (after proof of their demand) on the 15th May, and signed on the 19th May.

The intervenors never took any default against the plaintiffs, although they might have done so before the default was taken by plaintiffs against the defendant. There never was any issue joined on the demand in intervention with any party. Indeed, the intervenors seem to have slept over their claim for more than six months without having made any attempt to put it at issue, or to bring it to a trial.

It is only cases where issue is joined by answer filed that are required to be fixed for trial; O. P. 4G3. As there never was any issue joined in that mode here, the plaintiffs, who could not be retarded in their suit by intervention, had a right to proceed to the proof of their demand, and thus make the default against their debtor final.

With the decision of the main suit the intervention falls. As no issue was joined upon it, the question of the right of the intervenors to a vendor’s privilege has not been passed upon. The proper mode of testing such a question is not by way of intervention but by third opposition. O. P. 395 et seq.

The cases of Jones v. Lawrence, 4 An. 279, and Thompson, executor, v. Milne, 4 An. 208, are decisions against the appellants. They have suffered no injury by the conduct of the appellees, who have not taken any advantage, and were not compelled to intervene.

Judgment affirmed.

Buchanan,, J.,

concurring. I concur in the decree affirming the judgment, dismissing the intervention and third opposition, because I am of opinion that the Article 394 of the Code of Practice does not mean that the Judge cannot proceed to try and determine the issue between plaintiff and defendant without also at the same time hearing and deciding the intervention ; but simply that he is bound to do so if the parties require it, and if they have put themselves in a situation to try the intervention. The Article says “The Judge cannot refuse to admit an intervention, but he must pronounce on its merits at the same time that he decides the principal action.”

I understand the last clause of this quotation to be a qualification of the first, in aid of the provision of Article 391 “ one may intervene either before or after issue joined in the cause, provided the intervention do not retard the principal suit.” The other construction of Article 394 (that the plaintiff cannot try his cause unless the intervention is tried at the same time), is inconsistent with Article 391, because the intervention might be filed after the principal cause was assigned for trial, and the defendant might neglect to join issue upon it, for the purpose of retarding the trial, or the plaintiff might be unprepared to do so ; in either of which cases the cause would have to be continued. In the present case there was another very sufficient reason for dismissing the intervention. It prayed for two inconsistent remedies, the annulling of the sale and a preference, as vendor, upon the proceeds of the things attached; and was had pleading.

Lastly, the intervenor has not been injured by the dismissal of his intervention. He may renew his suit for the annullment of the sale by a separate action, or, if he prefer to claim the privilege of vendor, he may renew his claim by motion, as well after judgment on the principal demand as before it. C. P. 401. In either case the appellant is secure, for he has the property attached in his own hands, having bonded it.

In conclusion, I would remark, that the appellant’s plea is styled an “intervention and third opposition.” Properly speaking, it is not an intervention hut a third opposition ; and a third opposition of both the classes mentioned in Article 396 of the Code of Practice. And neither class of third opposition, in contemplatiqji of law, is to be heard and decided at the same time with the case of plaintiff, as against the defendant. The third opposition does not concern the person of the defendant but only the thing seized. It asserts either a jus in re, or a jus ad rem.

Merrick, C. J., dissenting. This suit being for $700, was commenced by an attachment which was levied April 23d, 1855, on three boxes of merchandize marked in the name of the defendant, an absentee, directed to Port Gibson, Mississippi. Citation was served by posting on the door of the St. Louis Church and the door of the court-house, on the 25th day of April, also personally the same day.

On th.e 25th day of April, 1855, Seaman, PeeTe & Go. intervened in the suit, and claimed to be the vendors of the goods attached; and alleged that the defendant at the time of the purchase agreed to furnish certain collaterals in order to secure the payment of the price, and, that by reason of his non-compliance, intervenors have a right to annul said sale and to take hack said goods. They pray that the goods be provisionally delivered to them, that said sale be annulled, or, if the court should be of the opinion that said sale ought not to be annulled, then that they be decreed to have the vendor’s privilege upon the same for $1179 97, the price, and a preference over the plaintiff. A formal order was made by the Judge allowing the intervention and service, which was accepted the same day by plaintiff’s attorney, in these words :

“ Service accepted and copy of petition and citation waived.”
“ New Orleans, April 28th, 1855.
[Signed] Emerson & Huntington,
Attorneys for Yale, Jr., & Go."

The intervention and citation was also served on B. W. Gurley, curator ad hoe, and the Sheriff, on the 30th of the same month.

The same day, viz: the 30th of April, the intervenors took a rule upon the plaintiff to show cause why the merchandize should not be delivered to them upon their bond. Service of this rule was also accepted by the same attorneys. Counsel were heard on the rule on the first day of May, and it was continued and made absolute on the ninth day of May. On the second day of May the curator ad hoe, who had been appointed on the 30th of April, was first notified of his appointment.

In six days after the curator ad hoe was notified of his appointment, viz: May 8th, 1855, and eight days after the appointment on the minutes of the court and the service of the intervention, the plaintiffs took a judgment by default on showing that the defendant had failed to answer. This default was made final, not only against the defendant but also against Hoopes & Go., on the fifteenth day of May, 1855, on the proof of the plaintiff’s demand, and without setting the ease for trial.

The intervenors do not appear to have had any knowledge of the default taken against the defendant on the 8th of May, for the judgment on the rule was pronounced in their favor on the 9th, and the property was bonded for by them on the 14th day of the same month. The judgment by default having been made final on the fifteenth, the day after the property was bonded under the rule, was signed on the 19th of May.

The same day the judgment was signed, the plaintiffs again appear by counsel and represent to the court that the defendant resides out of the State and has no lonown agent here, and move the appointment of Samuel T. Meyers, curator ad hoe, to represent defendant, which was done.

Thereupon, notice of judgment was served on the new curator ad hoe on the 22d day of May.

Execution issued on this judgment on the 9th day of June, and was returned no property found on the 23d day of July, An alias fi. fa. was issued in November, which was returned in like manner in December, 1855.

On the 12th day of January, 1856, the plaintiffs filed their exceptions and answer to the intervention and third opposition for the first time. They except to the intervention and third opposition, and pray that the same may be dismissed, because final judgment has been rendered and the intervenors have taken no steps to bring their claim to trial.

The answer, in the event the exception should be overruled, was a general denial.

On the 18th day of January the plaintiffs filed a supplemental petition, issued a fi. fa., and propounded interrogatories to John Wall & Go., as debtors of the defendant.

On the 19th of February, 1856, they filed a similar proceeding against Gurry & Person.

On the 23d of February, 1856, onmotion of plaintiffs counsel another cw'ator ad hoc (J. B. Bustis) was appointed for these proceedings, of which notice was given on the 25th.

After sundry continuances, the intervention or opposition came up for trial in November, 1856, when the exception filed on the 12th day of February, 1856, was sustained and the intervention dismissed. The intervenors have appealed.

From this statement of the case it appears that at the time the default was taken by the plaintiff against the defendant it was not possible for the intervenors to do more than they had done. Service of their petition had been accepted by the plaintiff, and citation waived.

They had caused their petition to be served on the Sheriff and on the curator ad hoc, and the delay for answering Jiad not elapsed.

It is true, they might have taken a judgment by default against the plaintiff on the demand in intervention by the fifteenth of May, but it does not appear that the judicial days for making it final would have elapsed, and no answer was filed by the curator ad hoc.

As the summer months intervened and the courts adjourned shortly after the order of the Judge decreeing the delivery of the property to the intervenors, and as the plaintiffs wholly neglected to answer the intervention, no laches, in my opinion, are imputable to the intervenors. It was the duty of the plain" tiffs to answer the demand in intervention and third opposition, the service of which they had acknowledged. They were themselves in fault for not answering, and the intervenor ivas no more bound to take judgment by default against the plaintiff than the plaintiff is in any other case bound to take a default against the defendant. See May v. Ball, 12 An., just decided. The mandate of the citation in both cases (to the defendant to the original petition and intervention) is to comply with the demand contained in the petition, or deliver the answer to the petition in the office of the clerk of the court. O. P. 393, 179.

How, therefore, can a party who has disobeyed the injunction of the court complain of the opposite party for not having had him adjudged to be in default? His complaint amounts to this : It is true it was my duty to answer your demand in intervention, for I have been so ordered by the court, but as you have had the good nature to wait on me when you might have had me declared to be in default, now, therefore, you are greatly in the wrong yourself, and it is the duty of the court to dismiss your demand for your negligence.

When the intervention is once allowed by the Judge and served, it forms, in my opinion, a part of the suit, which can only be got rid of by the plaintiff by some action of the court,- either on an exception or motion to strike out. If the intervenors cross swords with the plaintiff by demanding anything in their petition of intervention adverse to the plaintiffs’ demand, or if they oppose anything in the plaintiffs’ petition, as they do in this case, the intervention and opposition becomes so far an answer, and presents an issue for trial which the intervenors are entitled under all circumstances to have assigned for trial.

From the time the intervention is served upon the plaintiff he is as much bound, as I think, to take notice of it as he is of the defendant’s answer, and he must regard the intervenors as parties to the suit having rights as such. He must prepare himself to meet the intervention and do what is required to be done on his part, viz: file his answer.

As in the case of an answer the plaintiff cannot obtain judgment against the defendant, without-setting the cause down for trial, so on the intervention; the cause must be put at issue and set for trial, for the Judg-e is peremptorily required to pronounce on the merits of the intervertion at the same time he does the original demand. C. P. 394. An injunction which appears to have been wholly disregarded in the present case.

It is not made the duty of the intervenor to force the other parties to trial, nor is he in general less favored than other suitors. Por the proceeding by intervention is one well calculated to avoid circuity and multiplicity of actions, which the law abhors, and to prevent the 'collusive and fraudulent use of the forms of judicial proceedings.

There are only two things which require greater diligence on the part of the intervenors than on the part of other suitors, they-are prescribed by Article 391 O. P.: 1st, He must always be ready to plead ; 2d, He must be ready to exhibit his testimony. But even in these respects the Code of Practice is so construed as to give the intervenor time to cite the parties, and a reasonable delay to procure the testimony. 16 L. R. 268.

But it is said that the cases of Thompson v. Milne, 4 An. 208, and Jones v. Lawrence, ibid 279, are decisive of the case at bar. They do not appear to me to sustain the view for which they were cited. In the first case it appears that the plaintiffs had done their duty and cmswered the intervention, and were not in default, and it was held that the intervenors were bound to take notice of an order made in open court. The plaintiffs were appellees, and the cause was remanded for a new trial at their instance.

In the case of Jones v. Lawrence it is stated that the intervenors employed the defendant’s counsel. That on the trial of the cause they (the counsel) absented themselves from the court-house, and not being found in the courthouse buildings the plaintiff proved his claim and submitted the case. After-wards, when the intervenors attempted to annex a supplemental petition to their former one and so proceed upon both, their proceedings were very properly dismissed.

In the case of Durocher v. her husband, the intervenors expressly consented that the principal action should be first tried and the court say: “ The waiver by the intervenors of their light to oppose the progress of the cause, and their consent that it should proceed to judgment, was equivalent to a withdrawal of the intervention. The Judge, under the express renunciation by the intervenors of their right to be heard, was dispensed from pronouncing upon their intervention at the only time when legally he could, home pronounced, upon it, to wit: when declaring upon the principal action.” 3 An. 332. The fair inference is, that had it not been for the consent of the intervenors the Judge, in obedience to Article 394, would have been obliged to pass upon the intervention when he decided the principal action, and his failure so to do would have been error.

Holding these views, I am unable to concur in the decree in this case which seems to me to destroy the usefulness of the intervention, and open the door to surprises.

In my opinion, the Judgment of the District court ought to be reversed, and the cause remanded for further proceedings.

Mr. Justice Cole concurs in this opinion.


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

text:
    Margaret Tompkins at al. v. Horace Prentice et al.
    A testator having no descendents living, devised his whole estate to his mother, brother and sister, omitting entirely his father who survived him. The father made a notarial act of renunciation of all his right and interest in the estate of his deceased son. Creditors of the father claimed the right to have the renunciation set aside on the ground that it was made by their debtor in fraud of their rights as jlament creditors, and to have the portion of the estate for which they alleged the father was the forced heir of his son, subjected to the payment of their claims against the father. Reid : That such an action could not be maintained.
    There are rights of the debtor which the creditors cannot exercise, even should he refuse to avail himself of them.
    The debtor in this case would only have the right to demand the reduction of the donation mortis coma to the disposable portion.
    By Art. 1491 Civil Code, this reduction can be sued for only by forced heirs or by their heirs or assigns ; the wurd “ assigns” is defined to mean those whose rights have been transmitted by particular title, such as sale, donation, legacy, transfer and cession. O. C. 8522.
    The creditors of the forced heir are not embraced within the definition, and cannot sue for the reduction.
    APPEAL from the District Court of Carroll, Fa/rran•, J.

      Short & Pao'ham, for plaintiffs and appellants.

      L. Selby, for defendants.
   Merrick, C. J.

The action of the creditors in avoidance of the contracts of their debtors, is allowed by the Code for the purpose of annulling some fraudulent act of the debtor himself.

But in this case the principal act complained of, is that of Joseph Prentice in making a will, by which he conveyed his whole estate to his mother, brother and sister. Had he given one-sixth of his estate to his father, Horace Prentice, there would have been no pretence for the institution of this action.

But Joseph Prentice was not the debtor of the plaintiffs. He owed them nothing.

By Article 1491 O. C. it is provided that on the death of the donor or testator, the reduction of the donation, whether inter vivos or mortis ecmsa, can be sued for only by forced heirs or by their heirs or assigns.

By Article 3522, the term “assigns” is defined to mean those whose rights have been transmitted by particular title, such as sale, donation legacy, transfer and cession. The French word ay ant-cause is defined in the same language. Moreover, the Article declares that whenever the terms of law employed in the Code have not been particularly defined therein, they shall be understood as defined in said Article. See 8 Toul., No. 245.

Now the law-giver must be understood to have used the word in the sense defined, because in the concluding portion of the Article the word “ creditor” is used in contrast with the word “ assigns.”

Possibly the law-giver may have preferred to give effect to the wishes of the testator and allow his estate to take the direction he had indicated, rather than subject it to the seizure of creditors of an heir who did not feel himsejf aggrieved by the universal legacy to another.

In another place the Code says, that there are rights of the debtor which the creditors cannot exercise, even should he refuse to avail himself of them. They cannot require the separation of property between husband and wife, nor can they oblige their debtor to accept a donation inter vivos made to him, nor accept it in his stead. Neither can they call on a co-heir to collate when such debtor has not exercised that right. C. C. 1986, 1987. Article No. 1491 has but added another case of like nature to the list.

Had this very case been in the mind of the law-giver, it is not unreasonable to suppose that in the controversy to the estate of the testator between the mother, brother and sister of the deceased, and the creditors of the father, that the former would have been preferred. The letter of the law protects them in their possession under the will so long as the father of the deceased does not choose to disturb the dispositions of the will.

In our opinion what was in the mind of the compiler^Df the Napoleon Code, or what has been said by the French commentators, ought not to preponderate against the express definition of a term given by the compilers of our own Oode, and sanctioned by the law-making power.

Judgment affirmed.

Buchanan, J.,

concurring. The petition has a double aspect: one against Horace Prentice, in relation to whom it is a revocatory action; and the other against his two co-defendants, Minerva L. Prentice and Horace D. Prentice, in relation to whom it is an action for the reduction of' a donation mortis cama.

From the manner in which the plaintiffs state their case in the petition, as well as from the objection made by them to the admission of Joseph Prentice's will in evidence, it is apparent that they would have preferred to treat the succession of Joseph Prentice as an intestate estate. But this cannot be done; and their objection to the introduction of the will was properly overruled.

Joseph Prentice has disposed of all his estate by his will, in favor of three persons: 1st, his mother, as legatee by universal title, for one-half; 2d, his brother Horace Prentice, as legatee by universal title, for one-fourth; and, 3d, his sister, Oelia Mm'iu Prentice, as legatee by universal title, for one-fourth.

Joseph Prentice's father has, therefore, no interest whatever in the succession of his son, unless the will is set aside partially, by reducing the legacies to the testator’s mother, brother and sister to the disposable portion; for note, that by Article 1489 of the Oode, a disposition mortis causa exceeding the disposable portion, is not null, but only reducible to that portion.

The renunciation by Horace Prentice, the father, of all interest in his son’s estate, can only be viewed as significant of his intention not to contest his son’s will. The creditors have sustained no prejudice by such renunciation, so long as the will is not attacked. Their right to attack the will is, therefore, the vital point in plaintiffs’ case; and I am of opinion with the Chief Justice, that we are bound to interpret the word assigns in Article 1491 according to the definition contained in Article 3522. The latter Article is, as far as it goes, a legislative glossary of the Oode. It commences thus: “ Whenever the terms of law, employed in this Code, have not been particularly defined therein, they shall he undej'stood as follows.”

The Code Napoleon contains no glossary of this kind. Had it done so, the comments of Coin-Delisle and others upon the expression ayans-cduse in Article 921 of that Code, would have been superfluous.

Although it may be going further than the subject requires, I will venture to observe, that I am not at all clear that Horace Prentice, the father, could have successfully combatted the will of his son, had he been so inclined. Joseph Prentice has only disposed of one-half of his estate to the prejudice of his parents, instead of two-thirds, as he might have done legally. It is true, the other half is only given to one parent. But does not this fulfil the law ? Or was he bound to mention both his parents ? The question does not seem to me free from difficulty.

I will also observe, that the plaintiffs have not made all the necessary parties to their action for the reduction of the donation, supposing they have the right to maintain such an action. The testator’s sister is not mentioned in the petition.

Spofford, J., dissenting. The plaintiffs have been for many years judgment creditors of Horace Prentice, one of the defendants, but have been unable to enforce a collection of their claims, because he held no property in his own name.

It appears, however, that after Horace Prentice ceased to hold property in his own name, Maunsel White made a donation of some fifteen slaves and several promissory notes to Joseph Prentice and Horace D. Prentice, minor children of Horace Prentice, who accepted the donation for them in his quality of tutor. Joseph Prentice also made other acquisitions. The father, Horace Prentice, seems to have had the management of this property of his children which was situated in the parish of Carroll, where he resided.

It appears that in the spring of 1854, Joseph Prentice, being of age, came to New Orleans to reside. He lived here something more than a year, and in August, 1855, was accidentally killed during a temporary absence from the city.

He left an olographic will bequeathing one-half of his property to his mother, Minerva 8. Prentice, and the other half in equal portions to his brother Horace J). and his sister, Gelia Maria Prentice.

On the 8th December, 1855, upon the application of Horace Prentice, the father, this will was admitted to probate in the District Court of New Orleans.

On the 12th of November, 1855, however, Horace Prentice had made a notarial act of renunciation of all his right and interest in the succession of his deceased son Joseph. This act was passed before the recorder of the parish of Carroll.

The present suit has a two-fold object; 1st, to set aside this renunciation on the ground that it was made by the debtor in fraud of the right of the plaintiffs as judgment creditors of Horace Prentice ; and, 2ndly, to have the amount of the interest of said Horace in the succession of his son Joseph determined and subjected pro rata to the payment of their claims.

There was judgment for the defendants and the plaintiffs have appealed.

The defendants, Horace Prentice, for himself and as tutor of the minors, and Mrs. Prentice, rely upon the will and upon a plea of prescription of ten years against the judgments of the plaintiffs.

The judgments are not barred by the prescription established in the Act of April 30th, 1853 (Sess. Acts, p. 250), as contended for by the appellees.. Laws concerning prescription, like laws in general, are prospective in their operation. The rule is well settled in our jurisprudence, that when a statutory change is made in the term of prescription against any particular class of actions or demands, the time that elapses previous to the change is reckoned according to the old law, and that subsequent to the change according to the new law. Kellar v. Parish & Thompson, 11 An. 112, and cases there cited. If then it was conceded that, before the Act of April 30th, 1853, domestic judgments were prescriptible in thirty years, only about ten years of the time had run and about twenty years remained to run when the change was made, which reduced the time to one-third of the old period. That would leave nearly seven years to run before the judgments could be prescribed against under the new law, and less than three years had expired when this suit was brought.

Horace Prentice was heir to one-fourth of his son Joseph’s succession. C. C. 899; Cole's Heirs v. Cole's Executors, 7 N. S. 417; Grover v. Clack, 7 An. 174. Under these decisions, if he had been the sole surviving parent, he would have been forced heir for one-fourth. But, as the mother survived also, each of them was forced heir for one-sixth only of their son’s succession, for “ donations int&r vivos or mortis cousa cannot exceed two-thirds of the property, if the disposee, having no children, leave a father or mother, or loth.” O. C. 1481. He could dispose to the prejudice of both father and mother of two-thirds of the estate, leaving one-third as the legitime to be equally divided between them according to the principle announced in the Article 899.

It is contended by the appellants that the will was null as to the father, because he was not expressly disinherited according to the forms prescribed by the Code, and the inference seems to have been drawn that he was, therefore, entitled to one-fourth of the succession. But the only effect of this preterition was to leave him seized of his Ugitime at the opening, of the succession, that is of the one-sixth for which he was forced heir, and of which he could not be deprived except by a disinherison in due form and for just cause. C. C. 1609. See Johnson v. Davidson, 6 M. 506.

His renunciation of his right to this one-sixth was a gift of all the property he had, to the prejudice of his creditors, and it was, therefore, in legal contemplation a fraud upon them. Every man is bound to do justice before he can be permitted to be generous. The debtor’s property is the common pledge of his creditors. And the law has guarded in express terms against such a liberality as was displayed by this insolvent debtor, who would rather decline the bounty which Providence casts upon him, than suffer it to enure to the discharge of his legal engagements. “■ Every act done by a debtor with the intent of depriving his creditor of the eventual right he has upon the property of such debtor- is illegal, and' ought, as respects such creditor, to be avoided.” C. O. 1964. “Not only contracts which dispose of property, but all others which are made in fraud of creditors, and deprive them of their recourse to the property of their debtor, come within the provisions of this section. The renunciation of a succession or other right to property, the release of a debt without payment, or any other act of this kind, may be avoided by creditors, when done to their prejudice, under the rules above established.” O. O. 1984.

The renunciation made by the defendant, Horace Prentice, should then, so far as the complainants are concerned1, have been set aside. This disposes of the first branch of the plaintiff’s demand.

The second question presents more difficulty. What will be the effect of the revocation of this renunciation, and what rights can those plaintiffs claim in the succession of Joseph Prentice?

The Code is clear and positive upon the first of these points. The creditors who have procured the fraudulent renunciation of the heir to be set aside, are, until paid the amount of their claims, put in his place and stead. In the eye of the law, they become beneficiary heirs themselves to the extent of their claims upon the heir. Thus : “ The creditors of the heir who refuses to accept, or who renounces an inhemitamce to the prejudice of their rights, can be authorized by the Judge to accept it, in the name of the deltor and in his stead, according to the forms prescribed on this subject in the following section :

“In case of this acceptance, if there be renunciation on the part of the debtor, the renunciation is annulled only in favor of the creditors for as much as their claims amount to; but it remains valid against the heir who has renounced.
“If, therefore, after the payment of the creditors, any balance remains, it belongs to his co-heirs, who may have accepted it, or if the heir who has renounced be the only one of his degree, it goes to the heirs who come after him.
“ If, on the contrary, the heir has only refused to accept and has not renounced, he can claim the surplus on accepting the succession, provided his right of acceptance he not prescribed against.” O. O. 1014.
“ When the creditors wish to be authorized to accept a succession, which their debtor refuses to accept, or which he has renounced to their prejudice, they must present a petition to the Judge of the place where the succession is opened, to obtain the authorization necessary for that purpose, after the debtor or his representative has been duly cited, or a counsel appointed for him, if he is absent, by the Judge.” O. O. 1064.
“If, on this demand, it is proved to the Judge that the debtor refuses to accept the succession, or has renounced it to the prejudice of his creditors, he is bound to authorize the creditors to accept it in his stead ; and it is the duty of the Judge to cause immediately to be made an inventory of the effects of the succession, to appoint an administrator to manage them, sell them and pay the creditors, on his giving good and sufficient security for the fidelity of his administration, as in the case of acceptance with benefit of inventory.” O. C. 1065.
“ The creditors, who thus accept a succession in the name of their debtor, are considered as accepting it under benefit of inventory.” O. O. 1067.

But, in this case, it appears that the property is in the parish of Caroll, not administered, but held in possession, as owners, by the legatees under universal title. It does not appear that the succession owes any debts. By instituting this suit, the creditors of the renouncing heir have signified their acceptance in his stead. The instituted heirs have met the issue without taking any exception to the form of the proceeding, and I am of opinion that the whole merits of the controversy may be now decided.

The District Judge seems to have thought that the Article 1746 of the Civil Code and the doctrine laid down in the case of Cook v. Doremus, 10 An. 679, formed a harrier to the claim of the plaintiffs. There is no such state of facts presented as would authorise this conclusion. Even if the right of Horace Prentice in this succession were defeasible by a condition subsequent, no such condition has been fulfilled, and his creditors may take whatever interest he has, unless there is some other bar to the action. Moreover, the property did not descend to Joseph Prentice, or come by donation from either of his ascendants. The greater part of it came to him as a donation from a stranger, and he acquired the rest by purchase.

But it is contended that the action is in effect an action in reduction of an excessive donation mortis causa, and that the Article 1491 of the Louisiana Code, forms a peremptory bar to the demand on the part of the creditors of the heir. “ On the death of the donor or testator, the reduction of the donation, whether inter vivos or mortis ccmsa, can he sued for only by forced heirs, or by their heirs or assigns ; neither the donees, legatees, nor creditors of the deceased, can require that reduction nor avail themselves of it.” O. O. 1491.

The argument is that the creditors, plaintiffs in this cause, are not forced heirs themselves, nor heirs, nor assigns of the forced heir; and, therefore, that they cannot demand a reduction of the excessive legacies to the mother, brother and sister of the deceased in derogation of the legitime reserved by law to the father as forced heir.

It will be observed that the word “ assigns ” is “ apants-cavse ” in the French text, and that, in this particular, the Article is literally taken from Article 921 of the Code Napoleon. It will also he observed that the word ayantscause in Article 921 of the latter Code, is held by the French authorities, with entire unanimity, to embrace personal creditors of the heir. See Grenier, No. 595 ; Delvincourt, t. 2, note 4, p. 66 ; Toullier, t. 5, No. 125 ; Coin-Delisle, Art. 921, No. 2; Marcadé, t. 3, No. 583. Indeed, Coin-Delisle justly remarks that this word is a generic term and was chosen by the r'cdactewrs of the Code for its extensive signification. “ Le tribunal avait demandé de substituer les mots cessionaires et crbanciers á ceux d'ayants-cause, mais le Conseil d’Etat a dd conserver la premiere redaction comme présentant un sens plus étendu.” Donations et Testaments, Art. 921, No. 2.

In the English law, assigns means those persons to whom some right or property is transferred, whether by deed, or by op&ration of Icm. Burrill’s Law Die. The definition of the term in Art. 3522, No. 5, of the Louisiana Code, appears to be somwhat more restricted.

The turn of the phrase in the concluding part of Article 1491, seems to indicate that creditors are intended to be embraced in the word “assigns”; the Article declares that the reduction can be sued for only by forced heirs and their heirs or assigns; neither the donees, legatees nor creditors of the deceased can require it, &c. Here the “assigns” of the forced heir are placed in antithesis to the “ donees, legatees and creditors” of the deceased. The leading intention obviously was not to limit the right of action as to those who claimed through and under the forced heir or in his right, but to shut out those only who wished to exercise this action by reason of some claim they had under or against the deceased testator, other than that of forced heirship to him.

But it matters little what definition be given to the word assigns in Article 1491; for the creditors in this action having accepted the succession which the heir fraudulently renounced, act in his name and stead ; as already remarked, they take the place of the forced heir until their claims are satisfied, and their right to demand the reduction of the legacies in the name of the heir, seems to have been recognized by the tenor of the Code in treating of this subject, and especially by the Article 1985, which is in these words: “In case the debtor refuse or neglect to accept an inheritance to the prejudice of his creditors, they may accept the same, and exercise all his rights in the manner provided for in the title of successions, and they are authorized, by virtue of the action given by this section, to exercise all the rights which the debtor could do for recovering the possession of the property to which he is entitled, in order to make the same available to the payment of their debts.”

The present case comes within none of the exceptions to this rule, which are enumerated in the following Articles 1986 and 1987:

And in Lynch v. Kitchen, 2 An. 844, it was held, that “ creditors can exercise all the rights and actions of their debtors, except those reserved in Articles 1986 and 1987 of the Civil Code.”

Passing from this review of the case, I would remark, that if we give the word “ assigns” in Article 1491 the narrowest meaning, it does not seem to follow that the cfeditors of the heir assuming 'his place, may not attack an excessive donation mortis causa. Marcadé has judiciously observed, that if the Article of the Code Napoleon (921), from which we have taken our Article 1491, had. said that the reduction might be sued for only by forced heirs, and had omitted the phrase “and their heirs or assigns,” still the right of the creditors of- the forced heir to take his place, and sue for the reduction, would have resulted from other provisions of the Code.

“Enfin, sans que le réservataire ait transmis son droit á personne, il est clair que les créanciers qui ont pour gage légal tous les biens de leur débiteur, (Art.

2092, 2093,) auront droit á sa réserve comme a tous les autres biens lui appartenant, et pourront intenter l’aetion en réduction en son nom, pour se faire payer sur les valeurs qu’elle produira. Ce droit est formellement écrit dans l’Art. 1166, qui, déduisant la conséquence de l’Art. 2093, déclare que les créanciers peuvent exercer toutes les actions appartenant á leur débiteur. On en excepte, il est vrai, et avec raison, les actions qui reposent sur un intérét plutót moral que pécuniaire (comme une nullité de mariage, une séparation de corps,

&c.); mais faction en réduction ne tendant qu’á obtenir une part de succession, des biens, de l’argent, et se trouvant puremeñt pécuniaire, il est clair que cette exception ne saurait l’atteindre.

“ En un mot, faction en réduction peut étre intentée par tous représentants ou ayants-cause du rései’vataire, et nous n’avions nul besoin des termes de notre Article pour comprendre ce résultat.” 3 Marcadé, No. 583.

I am accordingly of opinion that the present action can he maintained.

Yoorhies, J., concurred in this opinion.


author: Spofford, J.

text:
    The State v. Cole and Williams—John A. Burk, Security.
    Even after a motion to dismiss an appeal has been filed, the certificate of the Clerk of the lower court to the transcript may be amended.
    The Act of 20th March, 1839, §19, enlarged the discretionary power of the Supreme Court contained in Art. 898 C. P., and made it imperative, not to dismiss appeals for clerical errors not attributable to the appellant.
    ín a bond requiring the accused to appear u when notified,” when the Sheriff returns that he could not find the accused after diligent search, and his surety, who was personally notified in time, failed to produce him as he bound himself to do, this was sufficient to put the parties in default, and the bond was properly forfeited against both principal and surety.
    An objection that the bond only required the accused to appear and answer the charge of robbery, whereas an information was filed against him for the crime of larceny alone, is sufficiently answered by the fact that the accused bound himself, not only to appear at court to answer that specific charge, but also not to depart thence without leave of the court first obtained.
    APPEAL from the Eirst District Court of New Orleans, Robertson, J.

      M. A. Route, for the State.

      A. P. Field and E. Woold/ridge, for defendants and appellants.
   Spofford, J.

This appeal was taken by the surety on a forfeited appearance bond.

The Attorney General has moved to dismiss the appeal.

The only ground urged in support of this motion, is that the record contains no bill of exceptions nor statement of facts, and no assignment of errors has been filed.

But the appellant has produced a corrected certificate by the Clerk of the District Court, showing that all the evidence adduced on'the trial is contained in the transcript. The Attorney General suggests that the certificate of the Clerk cannot be amended in this particular after a motion to dismiss has been filed. But the Code of Practice declares the contrary: “ If, at the time of argument or before, the appellant perceives that the copy of the record is incomplete, either through mistakes or omissions, or from the Clerk having failed to certify the copy as containing all the testimony produced, in the cause, or from any similar irregularities not arising from any act of the appellant, the court may grant him a reasonable time to correct such errors or omissions, during which time judgment on the appeal shall be suspended.” C. P. 898. The Act of 20th March, 1839, § 19, enlarged this discretionary power of the Supreme Court, and made it imperative not to dismiss appeals for clerical errors not attributable to the appellant.

The motion to dismiss is therefore overruled.

The accused was arrested and brought before one of the city Recorders, upon an affidavit charging him in substance with being party to a robbery and larceny. The affidavit being submitted to the Judge of the First District Court of New Orleans, he endorsed thereupon an order authorizing the accused to be admitted to bail, on giving security in the sum of $800, to the satisfaction of the Recorder.

Thereupon he gave a bond with the appellant as his surety, which was accepted by the Recorder, and was discharged. This bond was conditioned for his appearance before the First District Court of New Orleans, “to answer to the complaints brought against him for robbeiy, and not to depart thence without leave of said court.”

The bond required the accused to appear “when notified.” Upon the day fixed, he did not appear, and the bond was duly forfeited against both principal and surety.

The appellant objects that the notice of trial was not served at the domicil of the accused, as indicated on the bond which was signed some months before the appearance day. But the Sheriff returns that he could not find the accused after diligent search, and his surety, who was personally notified in time, failed to produce him as he bound himself to do. This was sufficient to put the parties in default.

A clerical error in the date of the notice made out by the Clerk, is of no consequence. The date of the return was anterior to the day fixed for the party’s appearance.

It is also objected that the bond only required the accused to appear and answer the charge of robbery, whereas an information was filed against him for the crime of larceny alone.

It is a sufficient answer to this objection, that the accused bound himself not only to appear at court to answer that specific charge, but also not to depart thence without leave of the court first obtained. Having departed without leave, his bond was justly forfeited under the authority of the case of The State v. Ridding, 8 An. 79. See also 1 Chitty’s Crim. Law, p. 105.

It is admitted by the appellant, in his motion for a new trial, that the bail bond was executed before George 7. Bright, the committing magistrate, who, as we have seen, was authorized by the District Judge to take it. In the lower court he treated the bond as filed.

We do not think that the appellant can now avail himself of an objection that the bond was not endorsed as filed of record. It forms a part of the record.

Judgment affirmed.