author: Labauve, J. InsnEV, J.

text:
    No. 1215.
    Eliza J. Sanderson, Appellee, v. George Ralston, her Husband.—John Watt & Co., Intervenors—Appellants.
    The actual continuance of residence of a newly married couple, at one establishment, for more than one year, is sufficient to fix their domicil.
    A domicil once acquired cannot be lost, until the party acquires another.
    The domicil of the husband will control that of the wife.
    George Ralston and. ISIiza J. Sanderson ware married in 1852. Soon after the marriage they removed to their plantation, in the parish of Concordia, La., where they both resided for more ' than one year. Mrs. Ralston then moved to Mississippi, to the high lands, on account of her failing health. Ralston still remained on the plantation in Concordia parish, exercising all his rights and privileges as a domiciliated citizen of Louisiana; such as voting, serving on the jury when called on, and was at one time a member of the police jury of the parish. He spent a considerable portion of his time in Mississippi, at the residence of his wife with his family. Under this state of facts, it was held that Ralston, having acquired his domicil in Louisiana, and nbt having acquired one elsewhere, he must still be considered as domiciled here, not- ■ withstanding the fact that liis wife never returned to Louisiana to reside. The domicil of the wife being controlled by that of the husband, the legal domicil of Ralston and wife is still in Louisiana.
    Appeal from the District Court, Parish of Concordia, Farrar, J.

      Sparrow ,<& Montgomery, for George Ralston and Mrs. Ralston.

      Campbell, Spofford & Campbell, for Eliza J. Sanderson, wife of George Ralston.

      Mayo & Spencer and Farrar & Reeves, for intervenors,
   Labauve, J.

The plaintiff alleges, in substance, that she intermarried with George Ralston on the 7th day of July, 1852, and that after her said marriage, petitioner and her said husband settled, and became domiciliated in the parish of Concordia where they have ever since claimed their residence. That petitioner has large claims against her said husband for money received by him during their marriage, from her father, John A. Sanderson, and from his estate, which sums were the separate and paraphernal property of petitioner; that in the month of March, 1855, petitioner’s said father gave the said Ralston for petitioner $1,000; that after the death of her said father, in making a partition between petitioner and her co-heirs, the latter, besides the other property, to-wit: the Waverly plantation in said parish, allotted to petitioner by said partition, became indebted to her in the sum of $60,437 91; that of this sum, $4,000 was paid on the day the act was passed, to-wit: the 8th February, 1856, and the balance, together with the accumulated interest, was paid as follows: On the 21st March, 1856, $23,597 18, with the interest; on the same day $1,000, also with the interest, and on the loth October, 1856, $12,865 22, also with the interest; and that he also received on the 21stMarch,1856, in her own right $20,000, her paraphernal money, coming from the estate of her father; that said last-named amounts were received from petitioner’s mother, Elizabeth Sanderson, who was administratrix of the estate of John A. Sanderson, deceased, in the State of Mississippi, and also in this State, as will appear by her accounts of administration, filed in the State of Misssissippi. She alleges that her husband’s affair's are so deranged that she believes his estate will not be sufficient to satisfy her claims, which her said husband received and appropriated to his own use.

She prays accordingly for a judgment against her said husband, and for a mortgage upon his property.

In a supplemental petition, she claims the further amounts as having been received by her said husband from her said father’s estate: On the 7th April, 1856, $665 90; on the 11th June, 1857, $5,612 77; on the 29th April, 1856, $15,000, and on the 3d May, 1856, $523 09.

| John Watt & Go. intervened in this suit, alleging their residence in New Orleans, where they were doing business as commercial partners, and to be creditors of said George Ralston in the sum of $33,349 12, with interest, as holders of four promissory notes, executed by the said Ral-ston; that they have lately commenced suit in parish of Tensas to enforce their claims, where his principal property is situated, consisting in a plantation, for the use of which the said indebtedness was contracted, they being his factors and commission merchants; that said Mrs. Ralston has no rights or claims of any kind upon her husband’s property in Louisiana; that said Ralston and wife were married in the State of Mississippi, where they have before and ever since resided and had their domicil.

They pray to be permitted to intervene in this suit, and that plaintiff’s demand be rejected at her costs, and for general relief.

Judgment having been rendered below in favor of plaintiff and rejecting the intervention, the intervenors took this appeal.

The claims of the plaintiff, charged as having accrued to her, and been received by her husband from the estate of her father, in the State of Mississippi, are not disputed; but it is denied that she has any right or mortgage upon her husband’s property in Louisiana, on the ground that said Ralston and wife were before their marriage and ever since residents of the State of Mississippi.

Neither the claims of the intervenors are disputed,

The whole case then involves but one question: that .of domicil aa regards Ralston and wife.

The plaintiff’s claims being founded on the laws of Louisiana, it is incumbent on her to establish clearly that her husband’s domicil was in this State at the time he received her funds as alleged in the petition.

“ The domicil of each citizen in the parish wherein his principal establishment is selected. ”

“ The principal establishment is that in which he makes his habitual residence.” O. 0., Art. 42.

A man’s domicil is his house, where he establishes his household, and surrounds himself with the apparatus 'and comfort of life. Tanner v. King, 11 L. 178; see also Cole v. Lucas, 2 A. 946. 7 A. 395. 9 A. 165.

The testimony shows that said George Ralston was from Philadelphia, where he was raised, and came to the parish of Concordia in the spring of 1841, where he resided as his home, on the Frogmore place, belonging to his uncle by marriage, John F. Gillespie, to the end of 1843, or commencement of 1844; in the meantime he had entered, under the right of pre-emption, a piece of public land which he sold to his said uncle; he left this place and went to Natchez; afterwards, in 1845 or 1846, he went to Philadelphia.

The witness who testified here, says that next- time he saw him was just before or just after his marriage; he thinks it was just after. “I was frequently in Natchez, between 1844 and 1852, many times in each year. I have been a resident of this parish a little over thirty years. I resided about four hundred yards from the Frogmore plantation.

If Mr. Ralston had resided at Frogmore at any time between 1844 and 1852, I think I should have known it. ”

The next thing that is seen of George Ralston in the parish of Concordia is, that after his marriage, say 7th July, 1852, and before the death of his father-in-law, who died in the fall of 1855, he was residing with his wife on the Waverly plantation, then belonging to his said father-in-law.

When Ralston left the plantation called Frogmore, belonging to his Uncle Gillespie, in the parish of Concordia, at the end ,of 1843 or commencement of 1844, nothing in the record shows that anything remained behind him which would excite his interest, desire or thoughts, to return to that parish. He went to Natchez, afterwards to Philadelphia, and returned not to Conc®rdia but to Natchez, where he married on the 7th July, 1852; after his marriage, as we have seen, he went with his wife on the Waverly plantation in Concordia, then belonging to his father-in-law. In the interval of over eight years, between his former residence on the Frogmore plantation and his new residence on the Waverly plantation, it is not pretended nor proved that he actually resided in that parish, or had property or interest therein.

But it is contended, and it is true, that he had resided in said parish, on Frogmore plantation, a sufficient length of time to acquire a domicil which he could not lose until he had acquired another. The answer is, that he absented himself from the State for more than ninety days, and that domicil not' being preserved as prescribed by law in such cases, this acquired residence was interrupted. Constitution of 1845, Arts. 10 and 11. For lie was not a housekeeper, nor did he occupy a tenement for carrying on business; he was staying at his Uncle Gillespie’s. Besides, the right reserved to a voter, on removing from one parish to another, to vote in the former parish until he has acquired a residence in the latter, applies to the removal from one parish to another within the State. Ralston left the State. Constitution of 1852, Art. 10.

Ralston married in Adams county, in the State of Mississippi, and gave his marriage bond as a resident of that State, and the presumption is that he was a citizen thereof.

We must now inquire whether or not he became a resident of the State of Louisiana subsequent to his marriage.

After their marriage, and before the death of plaintiff’s father, Ralston and wife went on Waverly plantation, in Concordia, and belonging to said Dr. Sanderson. They stayed there one year or more. This place being believed to be unwholesome to Mrs. Ralston, her father gave her a house near Natchez, with the usual convenience and comfort, indicating that the occupants were persons of fortune, and to which place Ralston and his wife removed, and have ever since resided in that house. I't is not shown when this residence on the Waverly plantation took place, and whether it was intended as a permanent or a temporary one. This plantation was not Ralston’s property, but belonged to his father-in-law.

To acquire domicil, the fact and intention must combine.' Ralston has himself shown his intention by his own declarations in public acts. We must bear in mind that this residence was between the marriage of these parties and the death of the wife’s father.

In two public acts relating to the estate of the father, deceased, one passed in Natchez on the 7th February, 1856, and the other in Louisiana, Concordia parish, on the 8th February, 1856, and in another public act of sale passed in Tensas, on tho 5th March, 1857, the said Ralston and wife are declared to be residents of the State of Mississippi. This series of repeated declarations cannot be casual or accidental, when they are supported by facts and circumstances. Were it an isolated act, contradicted by other acts of the party, it might be recognized as an error.

We do not attach much importance to Ralston’s acceptance of the appointment by Governor Wells, as a member of the police jury for Concordia in 1865, neither to his voting in May, 1866, nor to his declaration in an act of sale passed 2d November, 1865, that he was a resident of Concordia. The motives and purposes are clearly shown, and indicated by what has transpired since. Besides, this could not change his domicil from Mississippi to Louisiana; he still resided in the former State with his family, and retained his domicil therein. It is proper to remark that this property, given as a residence to Ralston and wife, and on which they have ever since resided, became the property of Mrs. Ralston in the partition of the estate of her father, made in 1856.

Upon the whole, we are of opinion that the domicil of George Ralston and wife was always in the State of Mississippi, and that the said plaintiff has no right of action against her husband in the present suit.'

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and avoided. It is further ordered and decreed that the intervention be sustained, and that said plaintiff’s demand be rejected, and that she pay costs in both courts.

Petition for a Rehearing, by appellee. — These judgments, if they should become final, will doom to a life of penury a lady who was born to afilience.

Appalling as this result may be to their client, the habitual respect which the undersigned entertain for the judgments of your honors would deter them from the present application, were they not impressed with a profound conviction that there are two sufficient grounds upon which a reconsideration of the cases should, and will be awarded.

1. Because the leading facts, arguments and authorities upon which they relied to show that Geo. Ralston’s domicil was in Louisiana, and which do show it, have been accidentally overlooked, and passed in silence by the Court.

2. Because, irrespective of the question of domicil, the judgment of the Court goes beyond the case, and precludes forever, without any fault of hers, the unquestionable right of Mrs. Ralston to a dissolution of the community, and to a personal judgment against her husband, which right still subsists, even if he were a citizen of Mississippi.

We doubt not that the desire to dispense impartial justice, which ever prevails in this court as its ruling principle, will secure from each member a patient perusal of our views upon both these points.

I. — From the year 1812 until now, it has been imposed upon judges, asa constitutional duty, “in all cases to adduce the reasons on which their judgment is founded;” not simply to adduce a reason, or some reasons, but the identical reasons which compel che judgment. It would therefore be disrespectful to this Court to imagine that any other reasons than those set forth in their pronounced opinion influenced, in the slightest degree, the judgments in these cases. We then proceed, respectfully, to show that important, and, as we think, controlling facts, arguments and authorities adduced on behalf of Mr. and Mrs. Ralston, have, by some accident, entirely escaped the notice of the Court.

The opinion ignores the fact, that upon their marriage Ralston and wife were “established” by Dr. Sanderson at theWaverly plantation, in Concordia parish, in a furnEhed house, where they both lived continuously for more than a year; and that to “establish,” according to Webster, means as its first definition, “to set and fix firmly or unalterably; to settle permanently.”

The opinion ignores the argument and legal inference, that this “establishment” of the newly married couple in Louisiana, and their both continuing to live there more than one year, gave George Ralston necessarily a Louisiana domicil, whether he ever had one before or ndt; and that this domicil could not have been changed from Louisiana to Mississippi, unless he afterwards removed to Mississippi in fact, with the intention of making that State his durable home, and abandoning his Louisiana domicil.

The opinion ignores the pregnant fact, that so far from displaying any design thus to abandon the domicil he had undoubtedly acquired in Louisiana by this “establishment” and subsequent residence, George Ralston continuously, and by acts of public notoriety, which are not even alluded to by the Court, manifest the design and intention of retaining that domicil, by “spending the greater part of his time in Louisiana;” by serving on the grand jury of Concordia parish, which he is proved to have done before the war, and before the indebtedness to Watt & Co. existed; by serving frequently on juries in Concordia, in which capacity he was often seen acting by intervenors’ witness, Shaw; by voting at elections in Concordia parish before as well as since the war; by having his sole property and business in Louisiana, by refusing to serve on juries in Mississippi, where the question was judicially investigated, and his right to exemption on the ground of his Louisiana domicil judicially accorded in the very midst of his neighbors, where his outgoings and b'comnms were best known. Sui ely facts like these, if they had been remembered by the Court, would not have passed unmentioned in that summing up of reasons pro and con, which constitutes a, judicial opinion on a contested question of domicil.

The opinion states, that though Ralston had disappeared for about six or eight years, yet from his appearance and marriage in 1852, m Adams county, Miss., and his giving a marriage bond as a resident of that State, “ the presumption is that he was a citizen thereof.” If this be1 so, i't'is'a much easier thing to prove that one man is a citizen of Mississippi than that another is a citizen of Louisiana.

If those comparatively irrelevant circumstances raise a “presumption ” of Mississippi citizenship, why should not the pertinent and weighty fact's just detailed prove positively a Louisiana citizenship? the joint establishment of the married pair in Louisiana; the sole business and internist of the husband being there, where he has always spent the greatest portion of his time; his serving on grand juries and on petty juries continuously in Louisiana; his voting constantly there; his exelcisihg none of these sacred rights or duties of citizenship elsewhere) and his positive exemption from these duties in Mississippi, upon the question being there raised.

Facts of this character we find dwelt upon habitually in the judicial reports of all countries as important, and controlling in questions' of domicil, while we have yet to see a case where it was finally decided that the place of marriage is presumed to be the husband’s domicil, or that a description, by a deputy clerk, in a $200 marriage bond of “A. B. principal and C. D. surety, of the county of-,” which the bridegroom seldom, if ever reads, should determine so grave a question. In the first case, the bridegroom usually goes to the bride’s domicil to be married, and when the rites are solemnized his domicil becomes hers'ipso jure; and in the second case, it is the domicil of the surety only which is described, for he only is required to be a resident of the place where the license is issued, and the residence of the bridegroom is utterly irrelevent and never thought of.

Not only have these facts and arguments been ignored, but all the authorities we cited also. Declarations in three acts, not one of which was written by Ralston, and in none of which was his residence a matter of the slightest consequence, are treated as controlling, and the authority of New Orleans v. Sheppard, 10 A. 268, and Hill v. Spangenberg, 4 A. 553, practically overruled sub silentio. These uncalled for declarations, written by third persons, where numerous parties really residing’in Mississippi were lumped together with Ralston, and Ms residence was immaterial, are here treated as decisive, and the habitual voting and other acts arid services of the party himself, directly involving the highest rates of citizenship are treated as so trivial as to be unworthy of a passing mentiori, when the Court in 4 An., page 553, under like circumstances, solemnly decided that “as to the comparative weight of this evidence, (a declaration in a notarial act), it may be considered as inferior to another implied declaration of the defendant on the subject of his domicil. The recital in the notarial act was immaterial, and may have been in reality the act of the notary, and not suggested by the defendant, nor noticed by him; but Ms voting in the parish of Jefferson was his own deliberate act, clearly implying a declaration that he resided in that parish, and involving a fraud upon the public, if that declaration was untrue.”

The cases of Shelton v. Tiffen, 6 How. 185, and Guier v. O'Daniel, 1 Binney, 354 note, bearing directly and intimately on the vital questions in this case, are also unnoticed by the Court. It is twice repeated in the opinion, that Waverly belonged to Dr. Sanderson, and at the end the Court say: It is proper to remark that the property near Natchez, given as a residence to Ralston and wife, became the property of Mrs. Ralston in the partition of the estate of her father, made in 1856.

It seems to us that it would have been equally proper to remark that Waverly, upon which Dr. Sanderson established Ralston and his wife, wlmre they both lived for more than a y a-, a d where Ralston continued to Live, as is sworn by many witnesses, till it was recently sold, also became the property of Mrs. Balston in the partition of the estate of the father, made in 1856, and that not by lot, but by the voluntary agreement of the widow and all the heirs, furnishing a fair presumption that this was in pursuance of the common understanding at the time of the original establishment of Balston and wife there.

The only facts the Court does mention out of the great array adduced on our side, are summed up in this laconic sentence: “We do not attach much importance to Balston’s acceptance of the appointment by Gov. Wells, as a member of the police jury for Concordia, in 1865, neither to his voting in May, 1866, nor to his declaration in an act of sale passed November 2, 1865, that he was a resident of Concordia. The motives and purposes are clearly shown and indicated by what has transpired since.

We respectfully protest, that in the face of the unnoticed facts and acts and declarations of Balston, running back to the year 1852, this reflection upon his motives, adopted from the arguments for interven ors, is inconsistent with the evidence on the record, and therefore unmeritc-d.

Balston and wife were not established on Waverly just after their marriage in 1852, to evade a debt to Watt & Co., that was not created till 1862 and 1865! Not for that purpose did they live there together more than a year after settling there! Not for that purpose did Balsion continue to reside there till the war and after the war! Not for that purpose did he serve in Concordia on petit juries before the. war, and on the grand jury in 1860! Not for that purpose aid he vote there up to the time of the war as well as afterwards! The three circumstances selected by the Court, from the mass of our evidence, were not relied upon as in themselves sufficient. They only prove the consistent carrying out of Balston’s purpose and conduct as a citizen of Louisiana, ever since his marriage, and at periods entirely free from suspicion. Why s' cuM those pre-existent facts be ignored? They would, if noticed, desticy cur vestige of ground for even a suspicion of Balston’s motive.,, and the injustice unintentionally done him by their omission, is itself, we humbly submit,-a sufficient reason for a rehearing.

II. — But the judgments, so far as they affect Mrs. Balston’s claims against her husband are erroneous, for the further reason, that her petition is rejected in tolo, and barred in all its manifold branches by a res judicata. The Court must have overlooked the injustice of this decree. On the front page of the record, No. 1215, is pasted the written admission of intervenor’s counsel, that “the amount for which judgment is rendered in this case is fully supported by the evidence.” That amount exceeds $80,000. Yet, for this large sum all claim against her husband is barred! A claim that is indisputable, though without mortgage, even if it were true that both spouses had always resided in Mississippi! It has been so adjudged by this Court. In Arnold v. McBride, 6 A. 703, the very case was decided in regard to Mississippians; it was held, and the law is there guoted, that the wife had a valid claim in Louisiana to a personal judgment against her husband for moneys inherited from her father’s estate, whilst all parties were domiciled in Mississippi, but that the law of Louisiana would not superadd a mortgage to the claim, inasmuch as no mortgage existed in Mississippi. But this unhappy lady is cut off by the Court from any recourse whatever, even as a personal creditor of her husband.

Again: By our law of March 18th, 1852, adopted before their marriage, Balston and wife, even if they were non-residents, fell under the community regime, as to Louisiana property. The disorder of Balston’s affairs is proven and admitted. She prayed for a dissolution of the community, and the right to administer separately her own affairs in Louisiana, and both were accorded in the decree, which your honors reverse. At one blow her right to this double relief is also forever barred!

Mrs. Balston could not have conscientiously alleged her husband to be a Mississippian when she knew he was not; and when he had for so many years been in possession of the undisputed status of a citizen of Louisiana; recognized uniformly as such, from 1852 until now, by her judges, her sheriffs, her clerks, her jurors, grand and petty, her police jurors, her commissioners of elections, and her governor. Not only so, but she knew that Mississippi, through her courts, had treated him as a citizen of Louisiana. It is difficult to depict the surprise which overwhelms her upon finding him now, for the first time, at a place remote from his haunts, and by a tribunal that, according to its reasons for judgment, would seem to know little or nothing of these important facts, rejected as a Xjouisianian, and declared to be a Mississippian! If the courts of Mississippi and this Court both decide correctly, he is a citizen without a country, a head of a family without a domicil, a man without a home! To what hospitable shore shall he flee?

It is respectfully submitted, that if there be a conflict of testimony this Court should lean in favor of that view which will maintain the status hitherto accorded to Balston by the various courts, public officers, and citizens of Louisiana, as well as by the courts of Mississippi.

These considerations are deferentially but earnestly laid before the Court. It is not strange that many of them, though urged before, failed to attract any attention. Three months, lacking six days, intervened between the oral argument and the rendition of the judgments under review.

In that long interval, questions “of great pith and moment” have exercised, and sometimes divided the Court. Full well do we know what ill-requited toils fall to the lot of this Bench. But equally well do we know that one of its highest pleasures as well as one of its noblest duties, is to avail itself of that wise provision of our laws, which grants a delay after judgment pronounced, purposely to afford the opportunity to correct an oversight or retrieve an error. The end and object of all laws, forms of procedure and tribunals, is but the administration of justice.

Both eases have been treated together by the Court, and the reasons for judgment in one referred to as the main reasons for judgment in the other. For the causes hereinbefore assigned, we pray that a rehearing be granted in both cases.

On Behearing.

InsnEV, J.

This case is before us on a rehearing. The rehearing was granted upon the plaintiff’s argument, that according to the weight of evidence, after the marriage of George Balston to Eliza J. Sanderson in 1852, they acquired a domicil in Louisiana.

There is in the record unquestioned testimony, that after the marriage Balston and wife were established on the plantation called “Waverly,” in the parish of Concordia, and this seems to have been their only home for a year or more after such establishment.

The establishment of a newly married couple carries with it the idea of fixity and permanence.

Upon a re-examination of the evidence, which we have attentively reconsidered, we incline to the opinion that the actual continuance of Balston and wife, for a year or more, at a home in which they were thus established, was sufficient to fix their domicil in Concordia parish under the law of Louisiana.

It is true, Dr. Sanderson, Mrs. Balston’s father, did not then convey a title to Balston and wife, or either of them, in the Waverly plantation, but from the fact that it was treated as their plantation; that Balston, until Dr. Sanderson’s death, had no other occupation but that of administering this plantation, and that, shortly after his death, the heirs in an amicable partition of his large succession, assigned this plantation to Mrs. Ralston as a part of her inheritance; it is .not unreasonable to conclude that it was always the intention of Dr. Sanderson, and understood among the family, to set apart this property for her.

George Ralston, having in this manner acquired a domicil in Louisiana after his marriage, could not lose it without acquiring a new one. To accomplish such a change, it should appear that he removed in fact to another State or country, at the same time intending to give up his domicil in Louisiana, and get a new one elsewhere.

Mrs. Ralston, having resided with him a year or more on the Waverly plantation, and finding her health impaired by living there, went to a house purchased by her father, in his own name, upon the elevated land in the neighborhood of Natchez and a few miles from Waverly, to take up her abode.

Her removal to that house to improve her health, did not change her husband’s domicil. Our law considers the domicil of the husband as controlling that of his wife, although she may actually inhabit another country. The evidence shows that no children were born of this marriage, and that Mrs. Ralston was actuated by a desire to regain and preserve her health in going from the low lands of Concordia parish to dwell on the other side of the Mississippi river, upon the hills.

The fact of a removal, with a view to a change of residence by Mr. Ralston himself, is not satisfactorily established, though after his wife’s removal he was often at the house near Natchez, occupied by her. But there is positive testimony, that after as well before her removal, he spent the greater part of his time in Louisiana, attending to his interests at Waverly. It should have been shown that in spending the rest of his time at the house near Natchez, he did so with the intent to change the domicil acquired in Louisiana.

But the evidence leads to the conclusion that he. did not intend to give up that domicil, and to adopt a Mississippi domicil.

Without such an intent on his part, accompanying an actual removal, he cannot be considered as having changed his domicil. We find repeated allusions to his service on juries in the parish of Concordia. He served ion a grand jury in that parish in 1860. He voted there not only since the late war but before.

These are important public and notorious acts of citizenship, implying a Louisiana residence, and they occurred ante litem motam at an unsuspicious time.

On the other hand, there is no evidence of his having exercised any such rights in the State of Mississippi at any time.

It appears that he was on one occasion called upon to do jury duty in Adams county, Miss., but that the Court excused him on the ground of his non-residence. Adams county is opposite Concordia parish, and we think miich weight should be attached to these circumstances, occurring on both sides of the river, as showing in what light his domicil was regarded by those who had the best means of knowledge respecting it.

His appointment as a police juror for Concordia by the governor of Louisiana in 1865, his voting in Concordia in 1866, and his declaration in an act of sale of November 2d, 1865, alluded to in our former opinion, would not be conclusive if they stood alone, but they may be viewed in connection with the antecedent facts just referred to, as corroborative evidence to show that Ralston never intended to abandon his domicil in Louisiana.

In the absence of any countervailing iacts oi equal weight, showing an intent on his part to acquire a Mississippi domicil, those which we have, considered already, would suffice to sustain the judgment of the lower court.

The contradictory circumstances referred to in the first opinion of the Court, as of the greatest consequence, were the descriptive declarations in the acts of partition of the 7th and 8th February, 1856, between the Sanderson heirs, and the act of purchase of a Tensas plantation on the 5th March, 1857, in which Ralston is spoken of as a resident of Mis-. sissippi.

Were these acts written by Ralston himself, or were the location of his domicil at all material to the subject-matter of the acts, these declarations would assume a graver importance. But they were not written by him,. and it was not material that his residence should be stated with accuracy or even stated at all. Indeed, in two of the acts, there were a number of parties who resided in Adams county, Miss., and Ralston was included in one common description with them. The force and effect of such descriptive recitations, in determining the domicil of parties, has been heretofore discussed in this court, and they have been held as of secondary importance in the cases of Hill v. Spangenberg, 4 A. 553, and New Orleans v. Sheppard, 10 A. 268.

In the former ease, the Court said: “ The descriptive words used in the notarial acts were admissible in evidence against the defendant, and a fair subject of consideration in connection with other facts, in testing the question of evidence. But we do not consider such immaterial recitals in contracts with third persons as conclusive upon the party making them, in a contest with others upon a question of jurisdiction. As to the comparative weight of this evidence, it may be considered as inferior to another implied declaration of the defendant, on the subject of this domicil. The recital in the notarial act was immaterial, and may have been in reality the act of the notary, and not suggested by the defendant, nor noticed by him; but his voting in the parish of Jefferson was his own deliberate act, clearly implying a declaration that he resided in that parish, and involving a fraud upon the public, if that declaration was untrue.

In the ease of New Orleans v. Sheppard, it was observed: “ There are in evidence but four documents of date posterior to 1847, which contain the recitals “of New Orleans,” and “residing in New Orleans,” to which the District Judge has attributed so much significance.” It is true that such descriptive words used in notarial acts and judicial proceedings are admissible in evidence against the defendant, and are fair subjects of consideration in connection with other facts touching the question of domicil. But it must be observed of these recitals, that upon none of the cases in which they were used were they essential averments; they were hot material, either as regards the contract in which this occurred, or the jurisdiction of the court to which they were addressed; they were inserted in one case by a notary, in the other by an attorney-at-law, and being immaterial to the matters in hand, may not have received the deliberate attention of Sheppard. They are overshadowed in the present case by other facts: continuous acts done by Sheppard, and declarations immediately and deliberately emanating from him at a time not suspicious.”

The case of the Commercial Bank of Natchez v. King, 3 Rob. 243, like other cases cited for the intervenors, does not seem specially applicable to the present case. The party there had by repeated and public declarations upon the subject, and holding himself out to all persons as a resident of the parish of Madison, induced a notice of protest to be sent to him there, and he was held bound by it, though in fact he resided in Mississippi.

These questions of domicil are usually questions cf great nicety, and. in a country like this, of constant changes, and frequently of divided or double residences, they are particularly difficult. In'such cases it is impossible to harmonize all the evidence.

A preponderance of evidence, tending to a probability of truth, must turn the scale.

If the testimony in this case were equally balanced, instead of leaning as we, upon more deliberate consideration, think it does in favor of the plaintiff’s position, we should defer, more than in ordinary cases, to the opinion of the local Judge, whose knowledge of parties and witnesses is presumed to be better than ours.

He decided in favor of the plaintiff and against the intervenors.

For the foregoing reasons, it is ordered that the judgment heretofore rendered in this case be set aside, and the judgment of the District Court affirmed, with costs.


source: Caselaw Access Project

author: IlsiiET, J.

license: Public Domain

text:
    No. 1224.
    John Watt & Co. v. George Ralston.
   IlsiiET, J.

As already stated, the main question in this case is the same as in that of Eliza J. Sanderson v. George Ralston, just decided, viz: Was George Ralston domiciliated in Louisiana or Mississippi?

For the reasons already given in the opinion just pronounced in the latter case, we think that Ralston had a Louisiana domicil, and his property was not therefore subject to attachment under the.facts of the case.

But as personal service of petition and citation are made upon him, in the parish of Tensas, where he now claims to reside, the suit should not have been dismissed.

It is therefore ordered that the judgment heretofore pronounced m this case be set aside, and it is now ordered, adjudged and decreed that the judgment appealed from, so far as it quashes the attachment at plaintiff’s-costs, be confirmed; but that in all other respects, it be avoided and reversed, and the case be remanded for an answer and trial upon the-merits, the defendant paying the cost of appeal.

(Judges Labauve and Howehh adhere to the former opinion.)


author: Hyman, C. J.

text:
    No. 482.
    H. Millspaugh v. City of New Orleans.
    The action in damages for offences or quasi-offences is prescribed by the lapse of one year O. O. 3501.
    Appeal from the Second District Court of New Orleans, Thomas, J.

      J. W. Gurley, for plaintiff and appellee.

      J$. Filleul, for defendant and appellant.
   Hyman, C. J.

Howard Millspaugli in November, 1864, brought suit against the city of New Orleans, alleging that on tbe 15th September, 1862, be bad deposited on tbe river landing witbin tbe limits of the city three hundred 'tons of stone ballast, which, by public notice, be was required to remove therefrom in thirty days. That before the thirty days expired be applied to tbe chairman of tbe committee of streets and landings, who bad issued tbe notice, and that tbe chairman, on being shown that tbe ballast did' not interfere with tbe public convenience, consented that it might remain on tbe landing until further order; that notwithstanding- such consent tbe street commissioner on tbe 25th of October, 1862, in violation of bis rights, and without his knowledge, removed tbe ballast to the city depot, and tbe city used the same in paving its streets, etc. He prayed for judgment against tbe city for tbe value of tbe ballast, alleged to be worth $1,050, with interest, etc.

Tbe city filed answer, and pleaded therein prescription.

Tbe District Court rendered judgment as asked for by plaintiff, and tbe city has appealed..

All tbe facts alleged by plaintiff are substantially proved.

According to tbe allegations of plaintiff, a tort has been committed on him by tbe city and its servants, and tbe law declares “ that every act of man that causes damages to another obliges him, by whose fault it bap-' pened, to repair it.” C. C. 2294. But it also declares that actions for offences or quasi-offences, are prescribed by one year. C. C. 3501. ’

More than a year elapsed from tbe time damage was done by tbe city and its servants to plaintiff before be instituted suit; so, whether tbe act of tbe city be viewed as an offence or quasi-offence, tbe right of action of plaintiff is prescribed.

The plea of prescription must prevail, as plaintiff’s claim is extinguished by effect of time.

It is decreed that tbe judgment of tbe District Court be reversed; it is further decreed that there be judgment in favor of defendant, with costs in both courts.

Rehearing refused.


author: TAniAPEBEO, J.

text:
    No. 1244.
    Samuel Pursell v. Chauncy C. Porter.
    Where the sheriff sells real estate for the taxes due on it under an order of seizure, he must comply strictly with all the formalities required by law, otherwise ,the sale will be a nullity.
    The judge or justice of the peace, who issues the order of seizure and sale of real estate for taxes due, has the right to appoint a curator ad hoc to represent the absent owner, on whom notioe of • seizure, etc., can be served, which will be binding on the owner.
    Where the sheriff has sold a lot of ground for taxes, and the record oj. the proceedings show that he has complied with every requirement of the law, the purchaser Is bound to comply frith his bid.

      Appeal from the Fifth District Court of New Orleans, Leawmont, J.

      W. W. Handlin, for plaintiff and appellee.

      E. Filleiil, for defendant and appellant.
   TAniAPEBEO, J.

The defendant, being the purchaser of several squares or parcels of ground lying in New Orleans, from the plaintiff, to whom he executed a mortgage by authentic act to secure the payment of the price, and failing in his payments, the vendor obtained an order of seizure and sale, and caused the property to be sold.

At the sale Henry Samory, who occupies the position of appellant in this controversy, became the purchaser of one of the parcels or squares on the conditions proposed, but declined afterwards to comply with the terms of the adjudication, alleging that the sheriff and the seizing creditor were unable to make a valid title to the property. ■ He caused a rule to be served upon the plaintiff, the defendant and the sheriff to make him a valid deed, or in default therein to show cause why the adjudication should not be set aside, and the sum of one hundred dollars, deposited by him, restored. Upon trial of the rule it was dismissed. From the judgment of dismissal Samory a2>pealed.

In this court the case was heard by agreement upon the order of seizure and sale found in the record, and upon the arguments and notes of counsel presented in their briefs.

The appellant objects that the tax sale, under which Handlin, the plaintiff’s vendor, acquired the square of ground, is null through informalities in the proceedings, and points out as radical defects an insufficient and vague description of the property; and the land having been sold as property of a non-resident, no legal appointment of a curator ad hoc to represent the absentee was made as required by the act of 1858, (No. 285, Session Acts.) It appears that the advertisement describes the property as sold for the taxes due upon it for the years 1853, 1854, 1855, 1856 and 1857, and is described as square No. 626, bounded by the streets Euphrosine, Calliope, Second and St. John’s Avenue; and that the constable’s sale to Handlin gives the same description.

The appellant gives the description of the square, as to number and "boundaries taken from the assessment rolls of delinquent tax-payers for the several years mentioned, showing some variation in the names of streets, and that in the deed to him the square is numbered 671; whereas, in all the assessments referred to it bears the number 626. He points out also that in the deed to him the streets named as boundaries of the square are Euphrosine, Calliope, Rendon, St. John or Hogan Avenue. On the part of the defendant, however, the discrepancy in the number of the square as well as that in the name of one of the streets, forming a part of the boundary, seems to be explained.

The name of “ Second street ” has been, by a city ordinance, changed to Rendon. Leovy’s City Laws and Ordinances, p. 282. And the number of the square, bounded by the four streets above named, has, by the city authority, been changed from 626 to 671. New Digest, City Laws, page 487.

"We shall next examine the objection of the appellant, as to the appointment of and services of a curator ad hoc to represent the unknown owner of the property.

The justice of the peace of the Seventh Justice’s Court rendered the order of sale for the taxes, and appends to the order the following:

“C. E. Schmidt, attorney ad hoc.” Mr. Schmidt, sworn as a witness on trial of the rule, said that he acted as curator ad hoc in the case. A receipt of the witness was shown for fees in various cases Of the kind; one of which is designated as the case No. 143, in the Seventh Justice Court, and this corresponds with the number of the case in which the order was rendered.

Upon the whole, we think that the requirements of the law have been sufficiently complied with to render the title acquired by the purchaser at the tax sale a valid one.

It appears that he has been in possession for a number of years, paying taxes for the benefit of the State and the city, and that his title has not hitherto been questioned.

We see no sufficient ground for the purchaser, Samory, to refuse to comply with the terms of the adjudication of the property. 5

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed, reserving to the parties in interest the right to further legal proceedings against the delinquent purchaser, according to law, the appellant paying costs in both courts.


text:
    No. 1778.
    The State of Louisiana, ex rel., v. J. A. Noble, Keeper of the City Work-House.
    The act of the Legislature of 1855, Secs. 120 and 121, vesting the power in the Recorders of the City of New Orleans to try and sentence parties for minor offences against the law, is not in conflict with section 105 of the Constitution of 1864; under this law, which is still in force, a party, may be tried before the Recorder on the charge of vagrancy, and, if found guilty, sentenced without indiotmenb or information.
    WRIT OF HABEAS CORPUS.

      B L. Lynch, Attorney General, for State.
   Hyman, C. J.

A writ of habeas corpus was issued, ordering Julius A. Noble, chief warden and keeper of the work-house of the City of New Orleans, to produce before this court the body of John Harris, who, in his petition for the writ, averred that he was illegally deprived of his liberty by Noble, who justified his detention by virtue of a warrant of commitment issued by J. A. Letten, Recorder of the Third District of the City, which warrant commanded Noble to keep him, Harris, because he was convicted of being a vagrant by the Recorder, in safe custody during six months at hard labor, from 20th February, 1868. That the Recorder, without trial known to law, and in violation of the Constitution of the State, proceeded in a summary manner to condemn him to imprisonment at hard labor in the work-house for the term of six months. That the Recorder had no authority to hear and determine the case of the petitioner, and that, therefore, the proceedings before the Recorder, his sentence and warrant of commitment were null.

Noble answered that he detained Harris by authority of the warrant described, which he annexed to his answer.

By the 121st section of an act entitled “An act relative to crimes-and offenoes,” approved March 14th, 1855, the Recorders of the City of New Orleans are authorized to determine who are vagrants under description of such by section 120th of the act, and to commit them to the workhouse for a term not exceeding six months, where they are to be kept at hard labor.

Art. 103 of the Constitution of 1852, declared that prosecutions should be by indictment or information, and that the accused should have a speedy public trial by an impartial' jury of the vicinage; and Art. 124 of same Constitution declared that the Legislature might vest in the Recorders of the City of New Orleans such criminal jurisdiction as might be necessary for the punishment of minor crimes and offences, as the peace and good order of the city might require.

In 1859, it was decided that the acts of the Legislature, in vesting Recorders of the city with the trial of minor crimes and offences, did not violate Art. 103, which requires prosecutions tó be by indictment or information, because the Legislature was expressly authorized by Art. 124 to vest such power in Recorders. See 14 Annual page 38. And in 1860 it was decided that Art. 124 was exceptional to Art. 103, and that minor crimes and offences could be tried, under authority of legislative .enactments, by Recorders, without the solemnity of jury trial, and without indictment or information. 15 An. p. 190.

Thus, it was settled under the Constitution of 1852, that the Legislature could vest in Recorders the right if trying persons for minor offences, without indictment or information, and that when Recorders tried persons for such offences under legislative authority, thoy were not entitled to a jury trial; and 120 and 121 sections of the act cited is still in force empowering Recorders to try vagrants, without jury, or indictment or information, unless they be in conflict with the Constitution of 1864, as they are not repealed. See Constitution 1864, Art. 149. We do not perceive in sections 120 and 121 of the acts of 1855 any conflict with the Constitution of 1864.

Article 105 of the Constitution has provisions similar to the provisions in article 103 of the Constitution of 1852. The only difference in their provisions, is that the former declares that the accused shall have a speedy public trial by an impartial jury of the parish in which the offence was committed, while the latter declared that the accused should have a speedy public trial by an impartial jury of the vicinage; article 133 of the Constitution of 1864 differs not from article 124 of the Constitution of 1852, as minor crimes and offences are contained in the expression minor offences.

It is decreed that the application of John Harris to be discharged from imprisonment be refused, at his costs.


text:
    No. 1685.
    W. A. Knox v. Evans White.
    Where a third party has acquired a' promissory note in good faith for a valuable consideration before muturity, the maker is preoluded from setting up as a defence the illegality of the consideration.
    APPEAL from the District Court, Parish of East Feliciana, Posey, J.

      Oross & Hardee and Race, Foster & E. T. Merridc, for plaintiff and appellant.

      MeYea & Kilbowrne and J. JET. Muse, for defendant and appellee.
   Hyman, C. J.

Defendant gave his note for $301 38 on the 12th of January, 1867, payable twelve months thereafter to James A. Cable, or , order, bearing eight per cent, interest from its date.

He also gave a mortgage on three lots of ground in the town of Clinton, parish of East Feliciana, to secure its payment. The lots are described in plaintiff’s petition.

Cable endorsed the note in blank, and, before its maturity, plaintiff became the owner of it for a valuable consideration and in good faith.

Plaintiff sued to recover of the defendant the amount of the note with interest, and asked that the mortgage on the lots be recognized, and that they be sold to satisfy his claim.

Judgment was rendered against plaintiff, and he has appealed.

The defence set up by defendant is that no recovery can be had on the note, because it was given in renewal of a note that was given for the. price of a slave.

This defence — illegal consideration — -cannot avail against the holder of a note who acquired the same bona fide before its maturity. See Story on. Promissory Notes, secs. 191 and 192.

It is decreed that the judgment of the District Court be annulled and reversed. It is further decreed that plaintiff recover of defendant the sum of three hundred and four dollars and thirty-eight cents, with interest thereon at the rate of eight per cent, per annum, from the 12th day of January, 1867, till paid, and the cost of this suit.

It is further decreed that the mortgage on all the lots described in plaintiff’s petition, and given to secure the payment of his claim be recog-' nized and enforced, and that the lots be sold to satisfy this judgment.


text:
    No. 1486.
    Paul Lieuteaud v. Jeanneaud & Cathalogne.
    Where a party made a Jease of a house in New Orleans for the period of five years with his written consent that the lessee might renew the lease at its expiration for the same length of time, on the same terms and conditions, and the sub-lessee with the consent of the lessor, notifies him, the lessor, that he desires to renew the lease, according to the agreement, the lessor cannot avoid a renewal of the lease, on the ground that his consent so to do, was obtained through error orfraud. -
    Where one of two innocent parties must suffer loss or inconvenience, it should fall on the party who , induced it.
    APPEAL from the Fourth District Court of New Orleans, Théard, J.

      A. Robert, for plaintiff and appellant.
    £?. Schmidt, for defendants and appellees.
   Hyman, C. J.

This suit is brought by plaintiff to evict his tenants of a house and lot in New Orleans, because, as he alleges, the lease had expired on the 1st September, 1867.

Defendants contend that the lease was renewed for five years from that date, and ask the Court so to decree.

A lease was made by plaintiff to G. Gessely, of the property, for five years from 1st September, 1862.

On the 20fch October, 1862, Gessely sold, by written act, to Lancour & Baron, his stock of goods in the house rented, and also his right and interest to the contract of lease, which he described in the act to be a lease for the term of five years from the 1st of September, 1862, at the rent of forty-five dollars per month, with the privilege of renewing it at the expiration of that time for five years more, on the same terms.

At the foot of the act, plaintiff wrote his consent to the transfer of the lease.

In March, 1863, Baron sold the right of lease to P. Labrousse. Plaintiff gave his written consent thereto on the act of sale by Gessely to Lancour & Baron.

In March, 1864, plaintiff consented to the transfer of the lease from Labrousse to defendant.

Before 1st September, 1867, the time when the lease would have expired without renewal, defendants notified plaintiff that they would renew it for five years as stipulated.

Plaintiff contends that he made no agreement with Gessely by which the right was granted to renew the lease; that he knew not, that in the act of sale by Gessely to Lancour & Baron, the statement was made, that the lease could be renewed; that he consented to the transfer of the lease in the sale, because he supposed that the lease described therein was such as he had agreed to with Gessely, and that his consent was obtained through error-or fraud, and was given through inadvertence.

It may be as plaintiff contends, but, by his written statements, he caused defendants to. believe that the lease was to be renewed at the option of the lessee, and thus believing, they purchased with his consent, the rights to, as they supposed, a contract of lease, which he had before, and at the time of their purchase declared to be his contract.

When one of two innocent persons must suffer loss or inconvenience, it should fall upon him who induced it.

The judgment of the District Gourt was rendered as asked for by defendants.

It is decreed that the judgment be affirmed, the plaintiff, who is appellant, is to pay costs of appeal.


author: Tajdiaperro, J.

text:
    No. 1281.
    N. King Knox v. A. Duplantier et als.
    ■Where no appeal bond has been given in favor of the parties called in warranty, the appeal will be dismissed. , ■
    APPEAL from the District Gourt, Parish of East Baton Rouge, Posey, J.

      Dunn & Herron, for plaintiff.

      Favrot <& Damon, for defendant.' Burgess <& Chaney, for warrantor,
   Tajdiaperro, J.

A motion is made to dismiss the appeal in this case, on the ground that no appeal bond has been given to any of the parties called in warranty and made defendants. This defect, being apparent from the appeal bond, the motion to dismiss must prevail.

It is therefore ordered that the appeal in this case be dismissed, at costs of the appellants. 12 Rob. 203; 10 An. 232; 14 An. 315.

Rehearing refused.


author: Ieshex, J.

text:
    No. 1149.
    John Grant v. Joseph Leach.
    All contracts are to be construed so as to accomplish the intention of the parties, and in determining their provisions, a liberal and fair construction must be given to the words used, either singly or in connection with the subject-matter. This rule of construction applies, whether the contract is between private parties or a legislative grant.
    In construing a contract, where the State is a party, the rule is, that all rights asserted against the State must be clearly defined, and not raised by inference or presumption.
    Where the State by legislative act has made a grant, or given a privilege to an individual or a cornpany, and there is reasonable doubts as to the proper construction to be given to the grant, such doubts are to be solved in favor of the State.
    "Where the legislature has conferred on an individual or a oompany, an exclusive privilege or monopoly in a grant or license, and limited that monoply to a number of years, after the expiration of which it shall cease, the expiration of that time will not abridge or impair other privileges contained m the grant or license, (such as collecting toll, etc.,) in perpetuity
    The franchises and prerogatives conferred on an individual or a company by the Legislature in a grant or license, do not cease with the expiration of the time specified in the grant at which the monopoly shall cease. *
    Vessels navigating the waters of the Gulf cannot uso the canal or pass on the coast of Alabama, known as Grant’s Pass, without paying the toll and charges imposed by the grantee on vessels passing through, notwithstanding the time fixed by the grantor (the Legislature of Alabama) for which the monopoly was permitted, has expired.
    APPEAL from the Fourth. District Oourt of New Orleans, TIt&ard, J.

      Clarke & Bayne and Campbell, Spofford <& Campbell, for plaintiff and appellee.

      Phillips & Levy and Buchanan & Gilmore, for defendant and appellant.
   Ieshex, J.

This action was brought by the plaintiff to recover from the defendant tolls due by the Creole, in passing through “ Grant’s Pass,” from the 26th October, 1865, to the 14th March, 1866, say----$3,183' 20

Damages for non-payment, fifty per cent.................. 1,591 60

$4,774 80

And for this gross amount, judgment was rendered for the plaintiff.

In the month of February, 1839, the General Assembly of the State of Alabama passed an act entitled “ an act to authorize John Grant to cut or excavate a channel or canal through the shoal or shoal-reef, which now obstructs the inland navigation between Dauphin Island and Cedar Point, in the county of Mobile.”

This act seems to have been passed under the following circumstances: Before the opening of “ Grant’s Pass,” the whole transportation between New Orleans and the places on the Mississippi Sound, the waters of Mobile Bay, with few occasional exceptions, passed outside the islands, and was exposed to the delays, embarrassments and dangers of a voyage on the Gulf of Mexico.

A more safe and less difficult communication was required for the increasing traffic and travel between the Eastern States and the city of New Orleans.

The inconveniences were such, that at the session of Congress of 1825 an appropriation was made for the construction of a proper inland passage, to be expended under the superintendence of the engineer-corps of the United States, through the shoal or shoal-reef. The engineers selected one of the natural channels, which now exists, and the money then appropriated, with one or two other appropriations, were expended to accomplish the object desired.

Major Chase, of the engineer-corps, reported that it was impracticable to construct a navigable channel through the reef, and no further appropriations were made.

The failure on the the part of the scientific and experienced officers of the United States, effectually prevented the enlistment of enterprise or capital in the undertaking proposed by John Grant, as to the construction of the work needed, and he was compelled to rely upon his own energy, skill, and the means he could command, to cut or excavate a channel or canal through a shell reef, about two miles in length, and it is not a matter of question, that the work was punctually completed, and has been suitably maintained for the purposes of navigation.

The first section of the act in favor of Grant authorizes him to enter upon and take possession of so much of the shoal as may be necessary to cut or excavate a channel or channels of sufficient depth and width, to afford a good and safe inland passage for steamboats and other vessels in the trade, between the waters of the Mobile Bay and other places in the Gulf of Mexico; and said Grant is authorized to build all such lighthouses, beacons, wharves and other buildings, as may be necessary to carry the object of the act into full effect.

The second section allows him to charge and receive from all such boats or vessels as may go in or out of such channel, specified rates of toll, with facilities of collecting them by suit.

The third section invests the grantee with all the rights and powers necessary for the construction and repair of said channel or channels, and the State stipulated and agreed that for and during the space of twenty-five years from the passage of the act, he should have and enjoy the exclusive right and privilege of constructing a channel or canal, for the passage of steamboats or other vessels, through the shoal or shell-reef referred to.

The fourth section authorizes him to sell or convey any portion, or all of the rights and privileges conferred on him by the act, at any time after he had so far completed the work as to admit the passage of steamboats or other vessels drawing five feet of water.

The fifth section provides that, if any person should wilfully or carelessly do any act whereby said work shall be injured or impaired, or the navigation of the channel obstructed or hindered, whereby the said Grant or his assigns should be obstructed or hindered in the prosecution or enjoyment of the work, said person shall be liable to a fine and to a suit for damages.

The act imposes upon the grantee the obligations to complete the work in twelve months, so as to admit the passage of vessels drawing five feet water, and to maintain the work in such a condition of repair that vessels should not be hindered in passing for six consecutive months, under pain of forfeiture; also, that none of the existing channels should be obstructed or interfered with by him.

The plaintiff has been in possession of the canal made by him since 1839, and has collected tolls without any challenge from the public authorities of the State of Alabama.

He has not forfeited the privilege granted by any misuses or non-uses. Nor is it pretended that he has failed in the performance of his duty.

The defendant objected in the lower court—

1. That the act is unconstitutional, and because it imposes a tonnage duty without the consent of Congress, in violation of the Constitution of the United States, and the act by which the State of Alabama was admitted to the Union.

2. That the act is a regulation of commerce, and- repugnant to the Constitution of the United States.

3. That the act has expired by its own limitation; and

4. That the canal has been under the control of the military authorities of the United States, during a portion of the period in which the defendants used it, and that the defendants are not chargeable.

In this court, the objections urged against the plaintiff’s claim are restricted to three grounds:

1. Admitting the plaintiff’s right to recover in this case, the amount allowed is not justified by the evidence.

2. The act under which the plaintiff makes this claim, expired by its own limitation on the 2d February, 1864, and consequently there is no right to recover any amount whatever; and

3. That the capture by the Federal troops in August, 1864, of “Grant’s Pass,” which had been previously occupied and fortified by the Confederate authorities, vested a title by the laws of war in the United States, and that the navigation was free from toll.

The objections to the unconstitutionality of the act being waived — the first question in order is, whether the grant has become extinct by limitation; if it has, the plaintiff’s claim would have no basis to rest upon.

The Supreme Court of the United States, in the case of the Binghampton Bridge, say: “All contracts are to be construed to accomplish the intention of the parties, and in determining their provisions a liberal and fair construction will be given to the words, either singly or in connection with the subject-matter. It is not the duty of a court by legal subtlety to overthrow a contract, but rather to uphold it and give it effect. And no strained or artificial rule of construction is to be applied to any part of it. If there is no ambiguity, and the meaning of the parties can be clearly ascertained, effect is given to the instrument used, whether it be a legislative grant or not. The Court state the principle of strict construction. They say: “ The principle is this, that all rights which are asserted against the State must be clearly defined, and not raised by inference or presumption; and if a charter is silent about a power, it does not exist.

If, on a fair reading of the instrument, reasonable doubts arise as to he proper construction to be given to it, these doubts are to be solved in favor of the State; and when it is susceptible of two meanings, the one estricting and the other extending the powers of a corporation, that lonstruetion is to be adopted which works least harm to the State. But f there is no ambiguity, and the powers conferred are clearly marked, ,nd their limits can be readily ascertained, then it is the duty of the lourt to sustain and uphold it, and to carry it out to the true interest nd meaning of the parties to it. And any other rule of construction rould defeat all legislative grants, and overthrow all contracts.

The doctrine thus enounced, is in accordance with the cardinal rule lid down in Art. 13 of the Louisiana Code. This Court, keeping in view the principle that it is its duty to ascertain the intention of the Legislature, and to give effect to it, considered itself bound to carry out their intention according to a fair and liberal construction to acts passed specially, with the view to the accomplishment of great public good, by the promotion of internal improvements. See the case of New Orleans v. St. Romes, 9 A. 577.

With these sound rules of interpretation to guide us, the meaning of the act may be ascertained from a disquisition of it, in its entirety.

The point essential, in the present controversy, regards the right of the plaintiff, under the grant, to hold and possess the canal and the accessory works by whatever title it confers upon him, and to collect and receive tolls, notwithstanding the clause of limitation contained in the act, and the expiration of the time limited.

As we have seen, from the several sections of the legislative act, the plaintiff is authorized as grantee to take possession of so much of the shoal as may be necessary to cut or excavate a channel or channels and concomitant therewith, to build such light-houses, wharves, etc., as may be necessary to carry the object of the act into full effect; and he is invested with all the rights and powers necessary for the construction and repair of said channel or channels; and fines and damages are recoverable, if his work is wilfully and carelessly injured or impaired, or the navigation of the channel obstructed, or he is injured in the prosecution or enjoyment of the works; and by way of recompense for his skill, work and expenditures, he is allowed to charge or receive tolls, etc;

Here then is a license coupled with an interest, which amounts to a grant. 2 Bouvier’s Inst. 568. And there is no limitation as to time in the act, in regard to that franchise.

But the grant was not an exclusive license or a monopoly, as, without a protective clause in favor of the grantee, the General Assembly of Alabama might at any time confer similar concurrent privileges upon other persons, with whom the grantee would be brought into injurious competition. See the cases of the Charles River Bridge, 11 Peters, S. C. R. 422, 71; Tuckahoe Canal Co. v. Tuckahoe, R. R. Co., 10 Leigh’s Va. Rep. 42, 71; 13 How. S. C. R. 71; 9 Geo. 518, 526; 5 Cush. 375; 2 Gray 1, and the Pontchartrain Railroad Co., 11 A. 353.

Considering the magnitude of the work undertaken by the grahtee, and as incentive to the performance of the work designed, the State made the grant an exclusive one; not however in perpetuity, but limited to a term of twenty-five years, during which time the grantee’s monopoly protected him from even legislative interference, in granting similar privileges to others.

The clause of limitation, by the very letter of the act, applied solely to the plaintiff’s prerogative or exclusive privilege, and to no other right,' title or privilege, vested in him by the grant.

In reaching our conclusion, as to the proper construction to be placed upon the act, we have not permitted the bill presented by the plaintiff on the 30th November, 1865, to the Legislature of Alabama, of which he' was then a member, to escape our attention.

The bill purported to be an amendment or supplement to the- original act in favor of the plaintiff, and it contained four sections.

It was rejected ¿ra loto, either, as may be supposed, because the rights'; and privileges originally conferred were thereby sought to be extended or enlarged, which, under special orders No. 83, from Headquarters of the Department of Alabama, could not be done without the previous consent of the government of the United States, or because the existing grant ¡ was sufficient for all the purposes designed by the Legislature.

It is not fair to presume, from the insertion in the supplemental act, that the expiration of the twenty-five years “ should not impair the-grantee’s rights, ” that he questioned the existence or the validity of his franchise; because, when the bill was presented by him in November, 1865, sometime after the expiration of the limitation, he was in the full possession and enjoyment of his canal, collecting freely, and generally without any disputation, tolls or tonnage duties from all vessels making use of it.

Entertaining, as we do, no doubt of the correctness of our interpreta- '' tion of the act we have been considering, we do not deem it necessary to . inquire why, in the supplemental act, the grantee inserted the clause that his rights should not be impaired by the expiration of the time for which, the monoply was limited.

The doctrine of the defendant, as to the legal effect of the expiration of a limitation to a license or grant, illustrated by the case cited from 6 Hill, 271, is correct in principle; but it has no application to a case like this one, where no express limitation attaches, except as to the enjoyment of the exclusive privilege or monopoly.

The plaintiff maintains that the grant is not revoked, or at all events is one that cannot be revoked without remuneration to the grantee of the. expenditure incurred by him, and he cites numerous authorities in support of .that position. See 11 N. H. R. 102; 17 S. and R. 383; 7 N. H. R. 237; 7 Benj.; 7 Tenn. 373; 1 Greenl. 117; 5 Greenl. 9; 15 Viner’s (abridg. ed.) License, p. 94

But this question does not properly arise in this case now, as up to the time at which the defendant’s debt was contracted, neither by the original nor any supplemental or posterior legislation had the State of Alabama manifested any intention to revoke the grant, or any opposition whatever to the rights under it, claimed and enjoyed by the plaintiff.

It has always permitted the grantee to hold and occupy the canal and its adjuncts, and seems wholly unconscious of any usurpation by the, plaintiff of its exclusive right or title to the property. The works constructed by the plaintiff have become so necessary, nay, indispensable to inland navigation, that it may be reasonably supposed, if the State deemed the grant extinct by the expiration of the limited term, some legislative provision would have been made in respect to its permanent occupation, and the keeping in good order and repair, the canal and the' buildings, etc., attached to it.

The defendant has not been deprived of any right of navigation, indeed the act prohibited the grantee from interfering with any existing channel. These channels still remain in their original condition, and if the defendant desired to employ them it was competent for him to do so;but he could not in justice make use of the capital, labor and care of the plaintiff for his own benefit, without paying to him a legal equivalent. -

It is needless to allude to tlie occupation of the canal by the Federal authorities prior to the 23d October, 1865, as the plaintiff was on that day, by order of the President of the United States, reinstated in the full possession thereof.

From the testimony in the lecord, it appears the Oreóle’s passage through the canal only commenced in November, 1865, whilst the canal was in the plaintiff’s possession, and they terminated inMarch, 1866. She made forty-one trips through, and this, at the rate of fifteen cents per ton, on 393 tons, makes a total of (wo thousand four hundred and sixteen dollars and ninety-five cents.

The charge of fifty per cent., as damages for non-payment within the legal delay of this amount, cannot be allowed in this proceeding, as from the act of the Legislature of Alabama, as it is extant upon the transcript of the record, no specified amount is fixed as damages for the failure of a boat or vessel, to pay tolls or tonnage duty within the stated delay.

The amount for which judgment was rendered in the lower court for the plaintiff, must be reduced.

-It is therefore ordered, adjudged and decreed that the plaintiff, John Grant, have judgment against, and recover from the defendant, Joseph Leach, the sum of two thousand four hundred and sixteen dollars and ninety-five cents, with legal interest from judicial demand, 5th April, 1866, and the costs of suit in the District Court; and it is further decreed that for the amount claimed as damages, there be judgment in favor of the defendant and against the plaintiff, as in ease of nonsuit.

And it is further ordered, that so far as the judgment appealed from conflicts with the decree now rendered by this Court, that it be annulled, avoided and reversed, otherwise affirmed, the costs of appeal to be paid by the plaintiff and appellee.,


author: Taliaferro, J.

text:
    No. 1100.
    W. G. Bakewell, Testamentary Executor of Alexander Gordon, Appellant, v. Police Jury et als., Appellees.
    A railroad, passing through a parish, is liable to an assessment of a parish tax on the property of the road located within the parish, unless exempted by a special law The burden of showing such an exemption is on the railroad company.
    Where an injunction is dissolved, no damages can be allowed to the party enjoining.
    APPEAL from the District Court, Parish of St. Bernard, Gazabai, J.

      O.0. Belahoussage and S. Belden, for plaintiff and appellant.

      P.A. Bucros, Jr., and Sambola & Bucros, for defendants and appellees.
   Taliaferro, J.

A collector of parish taxes for the parish of St. Bernard, having seized certain property in default of payment of the amount of the parish tax assessed against the Mexican Gulf Railroad, advertised it for sale.

The appellant, in his representative capacity, took out an injunction to prevent the sale, alleging various grounds for his proceeding.

1. That all the movable property and fixtures of the railroad, throughout its entire course, is assessed at its domicil in New Orleans, and is not subject to taxation in the parish of St. Bernard.

2. That the lot of lumber, included among the personal effects seized, belongs individually to the complainant and not to the railroad.

3. That the eight and a-half arpents of land lying adjacent to said railroad, and assessed as belonging to it, is the property of the widow of Alexander Gordon, deceased.

4. That the assessment posted for examination and correction, was illegally made in this, that the plaintiff in injunction should have been assessed in his representative capacity, and not the Mexican Gulf Railroad.

5. That no application for a list of plaintiff’s taxable property, in his fiduciary capacity or otherwise, as is required bylaw in the case of absent owners, or agents of property subject to taxation was ever made, and from this neglect of the proper officer, the plaintiff was debarred the privilege of correcting the rolls within the delays granted, and that the assessment was illegal on that account, the property assessed not having been designated or given in by the proper agent or representative of the railroad.

6. That the valuation was made in bulk, and not in separate parcels, and carried out in separate columns.

It was urged on the trial, that a much larger amount of property was seized and advertised for sale than was necessary for the payment of the taxes assessed.

The plaintiff prayed that damages to the amount of one thousand dollars be awarded him for the illegal and oppressive proceedings taken against him by the defendants.

The Court below dissolved the injunction, and ordered a sale of so much of the property seized as would be necessary to pay the amount of taxes claimed and costs.

The Court further decreed, that the defendant should pay twenty-five dollars damages, to be deducted from the amount of the tax assessed against the railroad.

From this judgment the plaintiff and appellant appeals.

In this court the defendant and appellee prays that the judgment be amended by striking out of it the decree of damages against him.

It appears that the taxes claimed amounted to one hundred and ninety dollars. A witness testified, that the property seized to pay the taxes was worth between four and five thousand dollars.

If the railroad is exempted from the payment of taxes, except at New Orleans, by any special law, it was incumbent upon the plaintiff to show it. This he has not done, and in the absence of any special provision of law to the contrary, we conclude that an assessment of a parish tax by the parish of St. Bernard might legally be made upon the property of the corporation or owners of the railroad within the limits of that parish. We do not find, from the evidence, that the plaintiff has made good the allegations in his petition for injunction. The lot of lumber among the property seized, is shown to have belonged to plaintiff only in part. The eight and a-half arpents of land, shown to belong to Mrs. Gordon, is not identified as part of the property seized.

The plaintiff has not shown how the “Mexican Gulf Railroad ” was erroneously denominated on the assessment roll.

If his own name should have been inserted, he does not allege or show that the error caused him any injury, or that he was taken by surprise, or that he did not know in due time of the irregularity complained of. Not' having examined the roll within the time prescribed by law, it was too late afterwards to object to it on mere grounds of informality. 11 A. 251. 13 A. 497.

It is not alleged in the petition for injunction that the amount of property seized was greatly in excess of the amount of the taxes. This appears to be the case, but we do not think the plaintiff has made it sufficiently clear by proof that he sustained any damage from the over seizure, and consequently we are unable to concur with the District Judge; in the award of damages made by him.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, so far as it awards damages to the plaintiff In injunction; and that in all other respects it be confirmed. It is further ordered, that the plaintiff and appellant pay costs in both courts.


author: Idsdev, J.

text:
    No. 1042.
    Allen L. Hayes v. R. L. Hayman.
    The action for the recovery of personal property is prescribed by the lapse of three years, when th© possessor holds by a just title, in good faith, unless the thing is shown to have been stolen or lost. O. 0.3á72.
    Where a party has been arrested, and on examination no cause is shown for the arrest, malice wiU be presumed, and damages maybe recovered for malioious prosecution. • ,
    Where there is want of probable cause for the arrest, malice will be inferred.
    Express malice may be proved.
    In an action for damages for malicious prosecution, it is sufficient to show that the oriminal pro» ceedings were entirely without cause. *
    APPEAL from the Fifth District Court of New Orleans, Leaumonl, J.

      Belden & Fuselier, for plaintiff and appellant.

      T. Á. Bartleile, for defendant and appellee.
   Idsdev, J.

The plaintiff sues to recover from the defendant a watch, valued at two hundred dollars, which he alleges was stolen from him sometime since, and is now unlawfully in the possession of the defendant. He also claims one hundred and fifty dollars damages. t

The defendant, after pleading the general issue, avers that he bought the watch in good faith for the sum of two hundred dollars, and that he and his vendors having possessed the same more than three years, under purchase in market overt, he has acquired title by prescription, and prays that the plaintiff’s claim be rejected; but if,"the plaintiff establish his title to the watch, that he pay the defendant the sum of two hundred dollars, the price paid by him, before recovering it.

The defendant also claimed in reconvention from plaintiff five thous-an d dollars for malicious prosecution.

The Court below gave judgment for plaintiff for the watch, or payment of two hundred dollars, and condemned him to pay defendant fifty dollars damages and costs of suit.

The plaintiff appealed.

The possession of the watch by the plaintiff, as owner of it, was anterior to the date at which the defendant or the persons from and under whom he holds his title and possession to it; and he has not shown a divestiture of the plaintiff’s title by onerous or gratuitous title, but he pleads and relies upon the prescription of three years, (C. O. 3472) during all which time he and his vendors or authors, have continuously and uninterruptedly had the possession of the watch, in good faith, and by a just title, as owners. See Art. C. C. 3460, par. 2.

The defendant purchased the watch about June, 1864, from one S. Silverstein, a jeweller, who purchased it on the 5th August, 1862, from one J. B. Prudhomme, also a jeweller, each purchaser paying for the watch its full value.

More than three years therefore had elapsed between the purchaso from Prudhomme and the date of service of the petition.

The plaintiff, however, contends the watch was stolen from him, and that the prescription laid down in Art. 3472, does not apply.

There is no legal evidence in the record to show that the watch was lost or stolen; and it was therefore unnecessary for the defendant to prove that he bought it in market overt, or from persons in the habit of selling such things, although he has satisfactorily proved that all the persons, through whose hands it passed, were dealers in watches.

The plaintiff’s action, for the recovery of the watch, is prescribed.

The reconventional demand of the defendant, whose residence is not in the same parish as that of the plaintiff, grows out of certain acts of his, in prosecuting the defendant criminally on a charge of having purchased his watch, knowing it to have been stolen.

The record shows this state of facts:

The plaintiff caused the watch to be put into the custody of a police officer, who discovered that some name which had been engraved on the watch had been nearly erased by filing. The defendant promptly gave the name of his vendor, and stated the price he had paid him for it, which upon inquiry, the plaintiff ascertained was true. This vendor, one Silverstein, also informed the plaintiff where he had purchased the watch, and the price he had paid for it to his vendor, Prudhomme, which, upon inquiry from Prudhomme he found to be true, declining to go further back to Prudhomme’s vendor, whose name was given to him by Prudhomme.

The plaintiff then instituted against the defendant a civil suit, claiming thl*watch, which suit he afterwards dismissed, paying the costs. He subsequently instituted against the defendant a criminal prosecution, caused him to be arrested and taken before the recorder, who dismissed the proceeding without investigation, being of opinion that the action was prescribed, or something of that kind.”

Publicity was, as usual, given of the defendant’s arrest, etc., in all the principal newspapers of the city.

And it is to obtain damages for the illegal acts of the plaintiff, that the defendant urges his reconventional demand.

From all the facts and circumstances of the case, we are to determine whether, in the criminal prosecution in which the plaintiff was the prosecuto!, lie was actuated by malice; whether there was probable cause for the prosecution, and whether the defendant has sustained damage thereby. 12 A. 332. 8 A. 12. 5 A. 714. 9 Rob. 387. 3 Rob. 17.

Malice is usually inferred from want of probable cause; or express malice may be proved. 9 Rob. 387, 418. 9 A. 216.

And if no probable cause be shown for an arrest, malice will be presumed. 4 A. 377.

In the case of McConnell v. Michel, 6 A. 577, this Court said: “ The use of criminal process to enforce a civil claim is an intolerable abuse, even when the claim exists. But if the claim is unfounded; it shows a recklessness of the rights and characters of others which amounts to malice.”

The wanton injury of an individual is, in itself, a malicious act, and-where the criminal proceedings are shown to be entirely without cause, no further malice need be proved.

And in Pellenz v. Bullerdeick, 13 A. 274, this Court also held that “ to judge of the question of malice and the want of probable cause, both of which are essential to maintain the action, we must look at the case as it appeared to the defendant when he made the complaint.

What was the aspect of the case as it was presented to the plaintiff, when he made the criminal chaise against the defendant? He had been informed when, where, from whom and for what price, the defendant had purchased the watch, and upon inquiry he ascertained the truth of the statement in regard to the defendant’s possession of the watch. -

It is true, that some name which had been engraved in the watch had been partially or almost entirely erased, but it is not shown that the name so erased was the plaintiff’s, or when it was done, or by whom; and he knew this fact when he instituted his first civil suit.

'If, as was argued by counsel, the defendant set up the plea of prescription to the criminal prosecution, which was a suspicious circumstance, that plea did not carrse the prosecution, as it would have been if urged after the arrest, etc.; but we cannot discover that any such plea was urged by the defendant. The charge was dismissed, because the recorder wás of opinion “that it was prescribed, or something of that kind. ”

From all the facts and circumstances of the case, under the law and the authorities cited, it is clear that the defendant is entitled to damages, (Art. 2294, C. 0.) which the Court below assessed at fifty dollars; knowing the parties and their circumstances, and which we think should not therefore be increased, as prayed for- by the appellee.

It is therefore ordered, adjudged and decreed, that the judgment nf the District Court be annulled, avoided and reversed. It is further - ordered, adjudged and decreed, that judgment be and it is -hereby-rendered against the plaintiff and in favor of the defendant for the watch . sued for; it is further ordered-, that on the defendant’s • reeonventional, demand he recover from and have judgment against the plaintiff, Allen L. Hayes, for the sum of fifty dollars; and further; that the said plaintiff.pay tíió costs of suit in both courts.


author: Labatjve, J.

text:
    No. 1128.
    Joseph Macheca v. Philip Avegno, Jr.
    In a suit to enforce a right of servitude, parol evidence is admissible to prove possession of the property claiming it.
    APPEAL from the Sixth District Court of New Orleans, Buplaniier, J.

      Sambola & Ducros, for plaintiff and appellant.

      W. B. Kooniz, for defendant and appellee.
   Labatjve, J.

The plaintiff is the owner of the lot and house No. 8, and Philip Avegno, of lot and house adjoining, No. 10, on Toulouse street.

Plaintiff claims to have been, him and his vendors, in possession for nearly ten years, of his said lot and house and appurtenances thereunto belonging, and of servitudes or rights of passage, and of drain through the adjoining lot of Philip Avegno, and also of the servitude or right of receiving hydrant-water through pipes extending over said lot' of' defendant, Avegno. On proper allegations, plaintiff obtained an injunction enjoining the defendant from closing the gutter, conducting the water from petitioner’s lot through defendant’s into the public street; and .also from destroying the pipes through which hydrant-water is communicated into petitioner’s lot.

Plaintiff prays accordingly, and for damages.

The defendant, Philip Avegno, answered by a general denial, and that his ancestor, having been at one and the same time, the owner of the premises of both plaintiff and respondent aforesaid, temporarily constructed a water-pipe, conveying hydrant-water through the premises, now owned by respondent, No. 10 Toulouse street, which pipe is the property of respondent.

The answer concludes by praying for judgment, and damages in reconvention.

By consent of counsel of both parties, the writ, as regards the other defendant, Pierre Pujol, was dismissed.

Judgment was rendered in favor of Philip Avegno, and the defendant appealed.

The plaintiff does not pretend to have any title to the alleged servitude, but he claims it as having been possessed by him and his vendor for nearly ten years, and he calls' this suit a possessory action'.

On the trial of the case below, defendant, Avegno, offered to prove verbal declarations, said to have been made by plaintiff in the presence of. Numa Avegno and Philip Avegno, the defendant, in relation to said servitude; plaintiff objected, on the ground that said evidence was irrelevent, inasmuch as the testimony would tend to destroy title to real property. The Court properly overruled the objection, and admitted the evidence. Possession is a matter of fact, which can be established only by parol evidence, and the defendant had the right to rebut plaintiff’s evidence by the same hind of proof.

The defendant also offered Numa Avegno as a witness. Plaintiff objected, on the ground that the witness, being the plaintiff’s vendor and warrantor of the rights of servitude claimed, was interested in the result of the suit. The Court properly overruled the objection, and admitted the witness. The witness’ interest was the other way; for if he had sold the servitude, his interest was to show that it existed, and he was called to prove there was none, thereby rendering himself responsible to the plaintiff in damages, if it were so.

This case involves none but questions of fact, and having carefully examined the evidence, we are of opinion that plaintiff has failed to show clearly the possession and enjoyment of the servitude claimed, as required by Arts. 47 and 49 of the Code of Practice.

Nurna Avegno sold to plaintiff the lot in question, on the 11th November, 1865, and this suit was filed on the 18th August, 1866. The testimony of said Nurna Avegno, the vendor, shows that, while he possessed and owned this lot, this alleged servitude was precarious, and enjoyed by him at the will of defendant, Philip Avegno.

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


author: Taliafeeeo, J.

text:
    No. 1727.
    Succession of Jean Martin Armat—On Rule to Comply with the Terms of Adjudication.
    Where the amount fixed by the Judge for the appeal bond, is less than that required by law for a suspensive appeal, it will be good as a devolutive appeal, the bond in the latter case being only to secure the payment of oosts.
    A purchaser of property, at probate sale, may be compelled by rule to comply with the terms of his , bid; he can, however, set up in defence of the rule, any defect of title in his vendor, or show any' outstanding title in a third party.
    APPEAL from the Second District Court of New Orleans, Thomas, J.
    O. JDrouet, for appellant.

      G. E. Schmidt, for appellee.
   Taliafeeeo, J.

Lorenzo Siza, having become the purchaser at a probate sale of a lot of ground and the improvements thereon, situated within the Fourth District of the city of New Orleans, at the price of nine thousand dollars, whereof, by the conditions of the sale, he was required to pay in cash $5,500, and the remainder in one year, refused to comply with the terms of the adjudication.

A rule was taken against him by Esther Garcia, widow of Armat, and tutrix of her minor son, Aman Louis Armat, to show cause why he should not be condemned to comply with the terms and conditions of the adjudication, and why — in case the Court should order such compliance, and he should fail to obey the order within the legal delays, a writ of distringas should not issue against his property, to enforce a compliance with the order.

On trial of the rule, judgment was rendered in conformity with the purport of the rule, viz: that he should pay in cash $5,500, and furnish his, note for the payment of the remainder, as required by the terms of the adjudication, and that in default of complying with the order, a writ of distringas should issue against his property to compel compliance. From this order the adjudicatee, Siza, took a suspensive appeal by motion in court, and executed a bond with security in the sum fixed by order of the Court, to-wit: the sum of $2,050. A motion is filed in this court to dismiss the appeal on the ground, that the appeal bond is not for a sufficient amount according to law. The judgment orders the payment of a fixed sum in money, and in default of such payment that the party be distrained of his property until he does pay it. This decree seems absolute, and to present a case in which, if a suspensive appeal be taken, the amount of the bond is fixed by law.

We conclude that the amount of the bond is insufficient for a suspensive appeal, but we are not inclined, on the appellee’s motion, to dismiss' the appeal, but to regard it as devolutive in conformity with frequent decisions of this Court. 1 Rob. 324 3 Rob. 63. 9 Rob. 185. 10 Á. 318. 11 A. 687.

The defendant and appellant, in his answer to the rule, denied that the minor, Aman Louis Armat is the heir of Jean Martin Armat; that the order recognizing the minor as sole heir of Jean Martin Armat, is exiiarte and illegal; and lastly, if the tutrix of the minor were regularly put in possession of the estate, there was no title to the property in the ancestor, Jean Martin Armat.

The defence is wholly untenable. The record shows that the order of court, recognizing the minor as the sole heir of Jean Martin Armat, was rendered upon the application of the tutrix, and contradictorily between her and the curator and the counsel for absent heirs.

The fact of the minor being the sole heir of J. M. Armat is also abundantly shown by other facts adduced in evidence.

Title to the property in Jean Martin Armat is clearly shown, and traced-from prior owners. The defendant does not point out any defect in the title shown, nor even allege an adverse outstanding title in any other person.

It is clear that the defendant shows no good reason to refuse to comply with the terms of the adjudication.

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