author: Yooriiies, J.

text:
    Joseph Penny v. Henry Carl.
    An award made by arbitrators appointed under an agreement of reference, without fixing a day for the hearing of the parties, and without talcing any other.oatli than such as appears at the foot of their report — “ sworn and subscribed,” &c. — is a nullity.
    O. P. 450.
    PPEAL from the District Court of East Baton Rouge, Robertson, J.

      Dunn, for plaintiff.

      Bradley, for defendant and appellant.
   Yooriiies, J.

On the 22d July,' 1850, Joseph Benny and Henry Gcvrl entered into an agreement to submit to arbitrators the differences arising between them in relation to the settlement of the accounts of their partnership in a plantation and wood business. One of the clauses of this agreement is as follows:

“ They further stipulated that said arbitrators shall, after examining their respective claims and hearing evidence that either party may produce, make an award, to be returned to the Sixth District Court for the Parish of East Baton Rouge, and to have, on rule taken by either party against the other, the force and effect of a judgment; and the parties further bind themselves under the penalty of $500, to stand to and abide by the award made by said arbitrators, and not contravene the same.” It was further covenanted, that the award, agreement, and all other papers submitted to the arbitrators, should be filed with the clerk of the court. This was done on the 6th of September, 1850. The account stated bjr the arbitrators, which accompanies their award, shows that Garl is indebted to Penny in the sum of $737 68.

On the 9 th of the same month, Garl filed a petition, setting forth the agreement and the award of the arbitrators, and that the award was null and void on the following, among other, grounds: That the arbitrators were not sworn ; that no day was fixed for the hearing; that the witnesses were not put upon oath, &c.; and also alleged that Penny was indebted to him in the sum of $1,417 28. He therefore prayed that Penny be cited to answer his petition, and condemned, on declaring said award null and void, to pay him said sum of $1,417 28, with legal interest from judicial demand.

On the 18th September, 1850, Penny ruled Garl to show cause why the award should not be homologated. To this rule Garl answered, adopting the allegations of his petition, and praying that the same he cumulated and tried with the action thus instituted by him, the award rejected, and judgment rendered in his favor for the amount claimed in his petition.

In dissolving this rule on the 9th Juty, 1851, the judgment of the District Court declares: “ The pretended award not being homologated, neither is it definitely rejected — -its merits to bo inquired of on future audience, a day to be assigned to hear the witnesses to prove the alleged objection to the pretended award.”

The only evidence of the oath taken by the arbitrators is the following certificate at the foot of their report: “ Sworn to and subscribed before me, this 29th August, 1850. — John R. Dufrorg, J. P. This is clearly insufficient under the ruling in Lode et al against Dakin & Dalein, 15 L. R. 425. The second objection, that no day was fixed for the hearing by the arbitrators, is equally fatal. O. P. 450. The award must therefore bo considered as a mere nullity.

These cases having been cumulated, the District Court rendered judgment in favor of Penny, against Carl, for the sum of $737 68, adopting as the basis thereof the award of the arbitrators, and the latter appealed.

We think the judge a quo erred. The award of the arbitrators should not have been made the basis of the judgment.

The evidence taken after the filing of the report of the arbitrators, shows that Carl admitted all the items, with the exception of three, of the account of Penny against him, which formed the basis of the award of the arbitrators. The item of $205, paid on Carl's note in favor of Mrs. Lilly, is satisfactorily proved by the testimony of the latter. The item of $15, for expenses lo New Orleans, is the only item we find unsupported by evidence. The credit side of Penny's account exhibits $957 35, received for wood, as per statement; $136 received from Carl, $17 50 from Mays, and $45, half the salvage on a lot of cotton, making an aggregate of $1,156 33. This amount, it will be observed, is partly composed of credits of the partnership and of Carl. The debit side, amounting to $1,879 03, is also composed of items chargeable both to Carl and to the partnership: hence the error in the award of the arbitrators, and of the judgment of the District Court. But the evidence in this respect is entirely insufficient to enable us to adjust the rights of the parties.

It is therefore ordered and decreed, that the judgment of the District Court be avoided and reversed, and the case remanded for further proceedings according to law, the costs of the appeal to be paid by the appellee.


source: Caselaw Access Project

author: BucrtANAN, J.

license: Public Domain

text:
    A. Gentile v. Desire Plasencia.
    A curator ad 7ioc appointed by the court to represent the interest of minors, who were legatees under a will, which the executor and the other heirs at law had sued to set aside, cannot be paid his fees out of the legacy to the minors, which, by the terms of the will, was specifically appropriafed to certain designated purposes for their benefit.
    PPEAL from the District Court of the parish of Assumption. Colé, J.
    xl Bonford, for plaintiff.

      Malhiot & Mills, for defendant and appellant.
   BucrtANAN, J.

Francisco Plasencia by his last will emancipated certain slaves, to whom he also bequeathed a legacy in the following terms:

“Je donneetlégue á Eélicté Eranpoise, mulátresse agée d’environ six ans, en-fant de Louise, émancipée paracte au rapport de André Le Blanc,.notaire, ainsi qu’á chacun des enfans sus-nommés, Suzanne, Perez ou Perrie et Lise, la somme de cinq cents piastres, á chacun une fois payée pour pourvoir a leurs besoins jusqu’á ce qu’ils soient á máme de le faire eux-mémes.”

“Je prie mes deuxfils, Graville Placinero et Désiré Placencia, de se charger de l’exécution de cette derniére disposition de mes volontés et d’administrer conjointemontles intéréts des dits enfans en fesantle placement lo plus avanta-geux pour eux de cette somme de deux mille piastres.”

The heirs at law brought suit against the testamentary executor to set aside the will; an d the court, considering that the interest of these minor legatees required to be separately defended, inasmuch as the executor, being himself a son and one of the heirs at law of the testator, might be deemed to have an interest opposed to that of the legatees, appointed the plaintiff, an attorney at law, curator ad hoe of the minors. He made an appearance in that capacity and pleaded to the suit. Judgment was rendered, maintaining the will; declaring the legatees to be staiu liberi\ ordering the testamentary executor to retain two thousand dollars out of the funds of the succession, to be used for the purposes expressed in the will; and to take the necessary steps to procure the freedom of the legatees, according to law.

The plaintiff has instituted the present action, claiming a fee of five hundred dollars for services rendered by him as attorney at law' in the defence of the suit of the heirs just mentioned, and asking that the same be paid him out of the legacy of tw'O thousand dollars, in the hands of the executor. He had judgment in the District Court according to the prayer of his petition, and the administrator has appealed.

We are of opinion that the compensation claimed, cannot be paid out of the fund of $2,000, bequeathed by the testator. By the terms of the will and of the decree of the court in the suit by the heirs to annul the will, that fund was specifically appropriated to certain designated purposes, from which it caunot now be diverted. If there be a liability any where to pay the value of the curator’s services, it would seem to rest upon the heirs who provoked his appointment in their unsuccessful attack upon the testator’s will. It seems just that they, his universal legatees, should bear the burden of any expense incurred in resisting the execution of the declared will of their testator, to-wit: the emancipation of their slaves. See succession of Criswell, 9th Annual. At all events, the curator ad hoe has no right to defeat, in this action, the dedication of a fund made by a decree to which he was a party. We think the judgment must be reversed, but will reserve by our decree the plaintiff’s right if any he have, to claim a compensation for his services, from the heirs who provoked his appointment, or out of any funds coining to said heirs from the testator’s estate, remaining in the hands of the executor undistributed.

The judgment of the District Court is reversed, and judgment is rendered for defendant as in case of non-suit; without prejudice to the right of plaintiff against the heirs for a compensation; costs in both Courts, to be paid by plaintiff' and appellee.


author: Buchanan, J.

text:
    State v. the Judge of the Second District Court of New Orleans.
    A mandamus will not be awarded to compel a judge of the District Court to allow a premptory exception to be filed, or to compel him to grant an appeal from the refusal to permit the exception to be filed. The proper practice is to reserve a bill of exceptions to the refusal of the judge, to allow the premptory exception to be filed, in order to bring the matter to the notice of this court, upon an appeal which the party might be entitled to at a subsequent stage.
    The mere refusal to allow the filing of a plea is not, of itself, such a judgment as entitles the party offering the plea to remove the case at once from the court of the first instance by appeal.
    ON the application of Richard Rdf for a mandamus to the Judge of the Second District Court of New Orleans. Lea, J.

      L. G. & G. B. Duncan, for the relator.
   Buchanan, J.

(Slidell, C. J. declined sitting in this cause.)

This appli. cation is in the alternative to compel the Judge of the District Court to allow a premptory exception to be filed ; or to compel him to grant an appeal from this refusal to permit the said exception to be filed.

Both these remedies seem to be inadmissible. The state of facts presented by the petition for mandamus, does not inform us that a bill of exceptions was reserved to the refusal of the District Judge, to allow the filing of the premp-tory exception. It is our opinion that this would be the proper course for the party to have pursued in order to bring the matter to our notice upon an appeal, which the party might be entitled to at a subsequent stage of the proceedings.

The mere refusal to allow the filing of a plea, is not of itself such a judgment as entitles the party offering the plea, to remove the case at once from the cognizance of the Court of the first instance by appeal. Co. P., Article 6G6.

The rule nisi is therefore refused.

Application for a Rehearing.

L. O. & Q-. B. Duncan:

The court says that the petition in this case does not inform the Court whether or not a bill of exceptions was taken to the refusal of the Judge to allow the premptory exception to be filed. With great deference we are unable to perceive the application of such an argument, or what it had to do with the immediate question in hand. But in truth it is the only doubtful matter in this whole case, under the views of law entertained by the undersigned whether a party not yet on the record — the record itselfnot showing in any way that he has appeared or filed any plea or answer, could make any exception to any proceeding which might take place in the case.

An exception must be taken by & party of Beeord. One of the grounds of alledged injustice in the lower Court, is that the Judge refused to allow the Delator to place himself on tbq Record so as to allow him to take exception to anything, and this too after having ex-officio caused the petition to be notified to him. Protesting therefore against any inference to bo drawn by this Court from the omission of any such allegation as is referred to in the opinion of the Court, yet the truth nevertheless is that such exception was tendered, but no complaint could bo made of the Judge’s action thereon, for inasmuch as it recited what in truth transpired, the Judge had no difficulty in the matter.

But taking it for granted, and it hardly admits of a doubt, that the Relator has a remed}', such as it is, by appeal, at another stage of the proceedings; does that fact debar the Relator to his remedy of mandamus? We think not. What is a mandamus? We answer that it is a writ of right — that it is a writ belonging to the citizen ; that he is entitled to it, on showing that he complies with the prerequisite stops — that he is as much entitled to it as he is to an ordinary citation on the filing of a petition. That it is no answer to say that he has another remed/y. I-Io may have such a remedy: so if a man is about destroying the property of another, it is true that other may let the act be done at the peril of the aggressor and take his action of damages, but it is equally true that he may prevent the injury by injunction, and in truth such remedies are, whenever jurisprudence is well administered, not only tolerated but are favorites in the administration of justice; and that remedy which tends to prevent an injustice should be so held as far preferable over that other, which allows the wrong to be inflicted — the blow' to be struck, under the hope of applying the remedy for the injury inflicted.

But to the question of what is a mandamus ? The question is answ'ered in the 829 article of the O. P., see also 4 R. 227, 11 R. 285. The writ is also issued in all cases where it is to aid the appellate jurisdiction of the Court,— but if it be true in law' that no one can appeal until he is a party, then surely the refusal of the Judge to allow the Relator to become a party, is in derogation of the appellatejurisdietion of this Court, and the writ is properly asked for even on the ground of its being to aid in the exercise of the appellate jurisdiction of this tribunal.

The 830th Art. expresses its mission in the administration of our system of jurisprudence in terms as broad as the boundless field of good sense, on which with some propriety, wre boast that that system is founded.

The Legislature appears to have anticipated the objection which Courts of superior jurisdiction wmuld naturally have, and most properly have, to interfere with tbo police, as it were, of courts of inferior jurisdiction prior to a final judgment — and has in Article 831 of the O. P. expressly declared that the fact that the party has other means of relief shall not be interposed as an objection to the issuing of this writ, “if the slowness of the ordinary forms is likely to “ produce, such a delay that the public good, and the administration of justice “ will suffer from it.” Now, without the semblance of a doubt we do not hesitate to express it as our firm conviction that if allowed to be heard, at bar, in support of the application with the Judge’s answer before the Court, which we are authorized to say is ready to be at once set up if the rule itself should be granted — we can, by a proper analysis of the original petition herein — as applied to the law in such cases, show that the party has not only brought himself within the influence of the spirit of the laws in such cases made and provided, but within the very letter. If there is to be any life or spirit left in this Article of the Code, — if it is not to be nullified, and expunged ; if the decisions heretofore rendered upon it; some of which-we now invite the attention of the Court to, as seen in 2 Martin, 487; N. S. 73; 2 N. S. 573 ; 4 N. S. 189; 2 La. 88,394,503; 4 La. 14; 6 La. 595; 9 La. 94; 14 La. 483; 11 La. 38; 4 R. 50; 5 Annual, 757; are not to be abandoned, then indeed ought this rule at least be granted, the party should be allowed to show by a proper presentation of the documents which he refers to as part of his petition, and such as may be exhibited by the answer of the Judge, that the writ itself should be granted. It can bo made evident that the Judge has refused to take cognizance of the rights of the Relator, or to pass upon them in any way. It is not contended that this Court can command the Judge of the lower court wliat judgment he must render on the opposition tendered to lie filed, but it is insisted that this tribunal not only can command him to take cognizance of the matter, but that his taking cognizance of the case and passing upon it in some way, is really the only mode in which that Court can execute its appellate jurisdiction. 5 Ann. 755.

It is believed that the Relator clearly presents his case within the foregoing provisions of the Code, and the decisions thereon, but especially within the Article 837 of the C. P., on which sec also 1st. Annual, p. 25. See also C. P. Art. 838, 841, 842, 843.

The Article 506, C. P. referred to by the Court, is believed by the undersigned, in no way to militate against the grounds assumed by the Relator, but in truth to be a powerful supporter, if not conclusive of the case in his behalf. He believes he can make it perfectly certain that the case presented is infinitely more cogent than any of the numerous adjudged cases which have arisen under this article — but it cannot be done in an application of this nature without becoming excessively tedious to the Court. An oral statement can be much more condensed as to time than any written statement which can be made.

Where a party presents himself in a case as a third opponent, claiming that tho plaintiff has no right to proceed in the case against any one, and his application is no't allowed to bo heard, clearly if Ms remedy is by appeal, in order to make it effectual to any good end or legal purpose, his appeal must be at once from that refusal, because if he is right in his opposition the plaintiff cannot proceed — if in this very case, the Relator is right in his pleas, the case is at an end — therefore if any appeal is ever allowed it must be at a time to make that plea effectual if founded on fact, in other words if the refusal in question, of the Judge, is but interlocutory, still it is clearly of such a nature as to work an irreparable injury to the Relator. I-Iis whole proposition rests upon the alle<ration of a right to stop the petitioner in the lower Court from proceeding in the matter at all — the moment that is refused, conclusive injury is done — the right to an appeal is from that refusal instanter, or never, and if that appeal is refused the injurry is certainly irreparable.

The magnitude of the interests involved in this case — the certain amd irreparable injury which will most surely follow a refusal of the remedy now prayed for, as we cannot doubt will follow, is the apology,. — if any is required_ why we again invoke the hearing of this Court upon the petition filed in this case, and particularly that the rule should issue, and the Relator heard.

Rehearing refused.


author: Spoitord, J.

text:
    State v. J. S. Hendry.
    In a prosecution under the 5th Section of the Act 27th Feb. 1S29, for shooting with intent to kill, and inflicting a wound less than mayhem, the Statute not contemplating accessorial guilt, a count against one as accessory will be quashed.
    PPEAL from the District Court of East Baton Rouge. 1lobertson, J.

      A. M. Dunn, for the accused :
    1st. The Statute of 1829 contemplates the offence of shooting with intent to hill as necessarily personal.
    2d. The Statute makes no provision as to aiders or abetters, or accessories, before the fact, and applies only to the person making the assault.
    3d. There must be a description of the offence in the words of the Statute creating it. Art. 52, State v. M. Lavahan.

    4th. The Statute was designed to punish offences arising from sudden violence of passion, and unpremeditation, in which there can be no aiders, &c. 1st Chitty, 215.
   Spoitord, J.

John S. Hendry was indicted under the 5th Section of the Act of 7th Eeb. 1829, for shooting John MeOrory with intent to kill, and inflicting upon him a wound less than mayhem.

In a separate count the appellees, Ohesly B. Hendry and Laura Hendry were indicted for being “feloniously and wilfully present, counselling, aiding, abetting and assisting the said John S. Hendry, the said John McGrory, to shoot and wound in the manner and form aforesaid.”

On motion of counsel, the Judge ordered this count of the indictment to be quashed, and the District Attorney took an appeal on behalf of the State. But he has not presented any points or cited any authorities, and wo are not informed why he conceives that an error has been committed to the prejudice of the State, which can be remedied by this appeal.

The counsel for the defendants supports the ruling of the District Judge by the argument that their offence, if any offence at all, is necessarily a statutory one, and that in an indictment for a statutory offence, the language of the statute must be substantially pursued; that this has not been done in the count against the appellees; that the Statute under which they were indicted, is wholly silent as to counsellors, aiders and abetters ; and that to be properly indicted thereunder, they should have been charged as principals, with all the statutable ingredients of the crime.

It is further urged that the Statute contemplated a personal offence, and excludes the idea of accessorial guilt.

These positions acquire some strength from the fact that in other statutes creating offences of a cognate character, the Legislature have in terms, embraced “ aiders, abetters, and counsellors,” and provided for their punishment, so that the omission to do so here is significant of a purpose. See Acts, 4 May 1805, § 23, 22d Eeb. 1817, 20th March, 1818, § 16, &c.

An aider and abettor present at the commission of a crime, or an accessory at the fact was called, at common law, a principal in the second degree; his punishment was, in general the sanie as the principal in the first degree. But where the offence was personal in its nature, the aider and abettor suffered a milder punishment. On an indictment under the Statute against stabbing, it was held that only the party who actually inflicted the stab was ousted of his clergy. 1 East, P. 0. 348-350.

go here, it would seem, that only the party who actually inflicts the wound less than mayhem is to undergo the penalty prescribed by tho Statute, as the Statute is silent touching principals in the second degree. The rule may be different, where the offence is not defined by Statute, but adopted from the common law by its technical name. We think the Judge did not err in quashing the count, which charges the appellees as aiders and abettors.

Judgment affirmed.


author: VoonniES, J.

text:
    M. S. Hedrick v. Mr. & Mrs. Banister.
    A married woman, though a public merchant, cannot be proceeded against by suit in the absence of her husband, without an authorization of the Judge before whom the suit is brought. C. P. 118 i G. 0. 12S.

    The rule given in Dxupwy v. Ilimt, 2 An. 564, as to citation of absentee? ^by service upon a curator ad hoc reaffirmed.
    from the Fifth District Oourt of New Orleans. Aiigustin, J.
    Wooldridge, for plaintiff.

      Durant & Horner for defendant and appellees.
   VoonniES, J.

Tho action in this case is based on the following document:

“ §1,000 New Orleans, 24th January, 1849.

Due M. S. Hedrick the sum of one thousand dollars, in value for that amount borrowed this clay, and in default of paj'ment tho 1st of September next, if demanded, the said H. S. Hedrick, by this instrument of writing, hath tho lawful claim and title to two negroes, now in my possession, by the names of Jane and Aleck, and slaves for life, as witness my signature.

O. BANISTER.”

The plaintiff alleges that Charlotte Banister is a public merchant; that she, being tho owner and possessor of said slaves, signed the above note with the consent and authorization of her husband, Thomas Banister, by whom the body of the same was written. He prays that they be condemned, in solido, to deliver to him as lawful owner, the slaves Jane and Aleck, and in default thereof, condemned, in solido, to pay him $1,000, with legal interest from the 21st of October, 1833; and also prays that Thomas Banister be ordered to answer, under oath, whether the body of the note or obligation annexed to his petition, was written by him or not, and whether the same was signed by Charlotte Banister with his knowledge and consent or not.

After denying the execution of the note, and pleading the general issue, Charlotte Banister avers in her answer, that her husband is now absent from the State; that he has resided and has had his domicil in the State of California for nearly five years past; that she has had no communication with him on the subject of this suit, and is not in any manner empowered to represent him, or answer for him in the premises.

The curator ad hoc, appointed by the oourt to represent Thomas Banister as an absentee, filed an answer, averring that Charlotte Banister had no authority to sign the note sued on, and denying that there ever was any consideration for tho same, or that the same was given in the usual course of her business. He also pleaded prescription.

The defendants are appellants from a judgment rendered against them in solido, for the sum of $1,000, with interest as prayed for, and also $2 50, cost of protest, and $25, allowed to the curator ad hoe as a fee and to be taxed as costs, and the costs of suit.

It is shown by the evidence that Charlotte Banister was a public merchant at the date of the note; that the note is in the hand-writing of her husband, except the blanks, which were tilled up by the plaintiff, himself, with “ $1,000 ” —“ one thousand dollars.” The signature of Mrs. Banister to the note is proved by the testimony of Carter and Glidsey. It is admitted that the plaintiff and Thomas Banister left this city together in 1849, for the State of California, and that the latter has never returned since. The answer of Thomas Banister to the interrogatories propounded to him, taken under commission, .are also in evidence. He says that his wife did not sign the document (a copy of which being annexed to the commission) in his presence or with his knowledge; that she always had such a privilege whenever she needed it; but never knew her to sign a note or business paper up to that time. The plaintiff’s receipts have also been produced in evidence; one of which to Thomas Banister, dated, at Sacramento city, the 20th November, 1849, purports to be for $229 25-100, for the expenses of John Edmonds to California, the balance ($284 63) in full to date; and the other is as follows :

“Draft.$ 133 33 j

Squins, ------ iso 00

Cash, ----- - 20 00

Gold Watch,. 323 00

Cash $1050

$632 33.

Rec’d, New Orleans, May 9th, 1850, of C. Banister, four hundred and seventeen dollars 68'cents in full. M. S. HEDRICK.”

" Some of the witnesses proved on the trial below, that in conversations with them Mrs. Banister declared that she had borrowed one thousahd dollars from the plaintiff.

The defendants have urged various grounds of objection to the plaintiff’s right of recovery; among others, as errors apparent on the face of the Record, Eirst, “ That Charlotte Banister, a married woman, has been sued in the absence of her husband without anjf authorization to defend the suit by the Judge, before whom the same is brought.” We think this objection is well taken. It is clear, under article 118 of the Code of Practice, that if “ the husband be absent,'the plaintiff must demand that the wife be authorized by the Judge, before w'hom the suit is brought; to defend it alone, if she be of age.” The Civil Code, Article 123, declares that “ that the wife cannot appear in court without the authority of her husband, although she may be a public merchant.” In the case of Adle v. Anty, 1 A. 260, an hypothecary action against the wife in which the husband was joined, where a judgment by default had been regularly taken against both of them, and afterwards set aside on the wife’s answer alone, it was held that the judgment rendered upon that issue, considering her separate answer as an unauthorized appearance in court, -was not binding upon her. See also 3 A. 619.

Second, “ That Thomas Banister could not be legally brought into court by the appointment of a curator ad hoc to represent him ; and all the acts and doings of said curator are null in law.” The rule on this point may be considered also as well settled. Mr. Chief Justice Eustis, as the organ of the court, in Dupry v. Hunt, 2 A. 564, said, “ In our opinion it only authorizes the appointment of a curator in suits which may lawfully be instituted against the absentee, and which are ponding before the Judge who is called upon', to make the appointment, but confers no power to bring- absentees, into court, on the simple demand of a creditor. If the absentee leaves his property without an administrator or agent, if it be attached at the suit of a creditor, or if an absentee becomes a necessary party to a suit between other persons lawfully in court, in the furtherance of justice, the law authorizes a curator to be appointed to represent him.” Prom this it clearly follows that Thomas Banister was not legally brought into Court by the appointment of a curator ad, hoe, Mrs. Banister in her answer, as we have seen, disclaims having any authority to represent her husband in the present controversy; and it is neither alleged nor proved by the plaintiff that she possessed any such authority. We are, therefore, of opinion that our learned brother of the District Court erred in sustaining the plaintiff’s action.

It is therefore ordered and decreed that the judgment of the District Court be reversed and avoided, and that the plaintiff’s demand be dismissed at his costs in both courts.


author: Slidell, C. J.

text:
    Marston & Winter, Administrators, v. W. Noble & J. Baker.
    The defence to the plaintiffs’ action on a promissory note, was that the note belonged to the estate of Kemp, that it was not a negotiable instrument, and that there being no judicial order for its transfer shown, no lawful title passed to the transferee. The note, after being endorsed in blank by Koble, the payee, and by Zea, in his individual capacity, went into the hands of Jlullcwd. Held, There is no affirmative evidence impeaching the validity of this transfex-, as one detrimental to the estate of Kemp, and, Kcible having been notified of the transfer some time before suit brought, and no payment having been made to the estate on account of the note, thei-e is no equitable reason for turning plaintiff out of coui't, for not showing a judicial authorization of transfer to him.
    Reservation made as upon a like objection in the case of Stünshorough v. MeOoXe, 4 An. 822.
    from the District Court of the parish of East Baton Rouge. Bob. ertson, J.
    Brimot, for plaintiffs and appellant.
    Bunn, for defendant.
   Slidell, C. J.

The action is based upon a note of the following tenor :

$300 Batos Rouge, January 4, 1842.

■Three years after datell promise to pay to the order of Willimn NoMe, and .■at-the ¡Branch of the iBank of Louisiana, at Baton Rouge, the sum of three ¡hundred (dollars and cents, for value received, with ten per cent, interest •from due till paid, the sum of three hundred dollars, to be reduced proportionally, should the amount of land on the title papers be less than 400 arpents.

^Endorsed,) JAMES W. .BOATNER.

William Noble,

William D. Lea.”

.Noble is sued as endorser, and there is a prayer for the enforcement of a ■mortgage given to secure the note upoü certain land in the possession of BaTcer.

It appears that this note, with two others of like amount, was given by Boatner, on account of the price of land bought of him at a probate sale, in the matter of the succession of Kemp. The tract was represented as con. taining 400 acres, more or less, and was sold at the rate of $2 50-100 per acre, with an understanding that there should he a proportional reduction in Case of a deficiency of quantity. The whole price was $1,000, of which $100 was paid in cash.

The first objection made to the plaintiffs’ recovery was that the note belonged to the estate of Kemp, that it was not a negotiable instrument, and that there being no judicial order for its transfer shown, no lawful title passed to the transferee, Bullard.

The note, after being endorsed in blank by the payee, and by Lea in his individual capacity, went irato the hands of Bullard. There is no affirmative evidence impeaching the validity of this transfer, as one detrimental to the ■ estate of Kemp; there is evidence that Noble was informed of its transfer as far back as 1845, and it is not proved that any payments on account of this note have been made to the estate of Kemp, the original holder. Under these circumstances we are of opinion, that there is no equitable reason for turning the plaintiff out of Court, simply because he has not shown a judicial authorization for its transfer to him ; and then the interest of the defendant, Noble, will be amply protected by making in our decree such a reservation as was made upon a like objection in Stansborough v. McCall, 4 Annual, 322.

It is shown by the judicial admission of Noble that the land contained only 240 arpents. The survey, by which a greater deficiency is claimed, was irregularly conducted, and is not binding on the plaintiff. The proportionate reduction of the note held by the plaintiff leaves a capital sum of $154 16-100, for which, with interest from maturity there must be judgment against Noble. The objection made to the certificate of notice, appears to us untenable. We consider the notary as substantially certifying that he mailed the letters.

We are not prepared, upon the evidence before us, to set aside the judgment rendered against Balter, the third possessor. The registry of the original mortgage, so far as the certificate exhibited by the transcript speaks, is defective, and so was the registry of the judgment obtained by Lea, with respect to the mention made in that judgment of an outstanding note.

It is therefore decreed that the judgment of the District Court, as to said William Noble, be reversed, and that the plaintiffs recover of said William Noble the sum of $154 16-100, with interest thereon, at the rate of ten per cent, per annum, from the 7th of January, 1845, and costs of suit against said Noble in the Court below, andnne half of the costs of this appeal; with leave to said Noble to bring said sum and interest into Court, for distribution contradictorily with the succession of said Kemp, upon due notice given to the proper representative of said succession; the plaintiff to have a right of execution with a like qualification as to the collection made thereon.

And, it is further decreed that the judgment in favor of said Baker be affirmed, without prejudice to a further action by plaintiff for the enforcement of his alleged mortgages.

It is further decreed that one half of the costs of the appeal be paid by the plaintiff.


author: Spoffokd, J.

text:
    E. Graves, et al. vs. D. W. Graves.
    A donation above the disposable portion, which is by the terms of the will remunerative and. not beyond the value of the services will be sustained.
    A nuncupative will by public act, should show on its face the fulfillment of those essential formalities, of which the Code requires express mention. Therefore the statement in the will that the same having been read in an audible voice by J. Hone, of the subscribing witnesses, and by me, Notary, in the *c presence of the testatrix” does not necessarily imply that it was read in presence of the witnesses, and in a will by public act that ingredient cannot be supplied by testimony.
    An instrument although invalid as a nuncupative will by public act, may be good as a nuncupative will under private signature. All the requisites of a will of the latter class are specified in 0. 0.1574 and 1575. Express mention of the fulfillment of these requisites is not demanded. Proof aliunde maybe received. Oral proof is admissible that a testament of the latter class was “ read by the testator to the witnesses, or by one of the witnesses to the rest, in presence of the testator,” and this is sufficient without its being so stated in the testament.
    from the District Court of the Parish of Madison, Snyder, J.

      M. Wallace and J. Nolan, for plaintiff and appellant.

      Hynes, for defendant.
   Spoffokd, J.

Some of the forced heirs of Mrs. Elonor Graves deceased, brought this suit to set aside her last will and testament as defective in form and illegal in substance.

The alleged illegality in the disposing part of her will consists in the bequest of six slaves, constituting nearly four fifths of the succession, to her son Daniel W. Graves, thereby depriving her numerous other children of their legitime. The plaintiffs claim that the legacy should be reduced to the disposable portion.

But, by the terms of the will, this is purely a remuneratory donation. The expressions of the testatrix are “for and in consideration of services rendered to me by my son Daniel in attending to my business and taking care of me for some years past,” “ for a debt I justly owe him,'the amount of which I consider equivalent to the property bequeathed to him.”

The Article 1S00 of the Civil Code declares that “remunerative donations can never be reduced below the estimated value of the services rendered.”

The evidence shows the service of the legatee to have been of the most meritorious description and not at all inferior in value to the bequest. Eor about sixteen years he remained with his widowed mother and his unmarried sisters, while his brothers were seeking their fortunes elsewhere. He gave up employments which would probably have been more profitable to himself than the legacy in question to minister to the comfort of this family, his mother declaring that she could not get along without him. At the death of her husband they appear .to have had but three or four negroes. The industry, economy and devotion of this son contributed to save and augment the little estate which the other children now seek to partake equally with him, in spite of the dying injunctions of their mother.

On this branch of the case we think there is no error in the verdict and judgment.

But the will is said to be informal and therefore void.

It purports to be a nuncupative will by public act, and as such, it is certainly defective. Such a will should show, on its face, the fulfillment of those essential formalities, of which the Code requires express mention. LeBlanc v. Bacas, 16 L. 82; Succession of Sparks, 12 Rob. 36. One of this class of formalities is that the will “be read to the testator in presence of the witnesses.” C. C. 1571-The only mention in this will of the reading is as follows : “ the same having-been read in an audible voice by John Hone, one of the subscribing witnesses, and by me notary, in the presence cf the testatrix.” There are no expressions which necessarily imply that it was read in presence of the witnesses, and in a will by public act that ingredient cannot be supplied by testimony.

But “ it suffices for the validity of a testament, that it be valid under any one of the forms prescribed by law, however defective it may be in the form under which the testator may have intended to make it.” O. 0. 1583.

So this instrument, although invalid as a nuncupative will by public act, may be good as a nuncupative will under private signature, Verdun v. Verdun 15 L. 28.

All the requisites of such a will are specified in the articles 1574 and 1575 of the Civil Code. But express mention of the fulfillment of those requisites is not demanded as in a will by authentic act. Proof aliunde may be received.— Falkner v. Friend, 1 Rob. 48, Sophie v. Duplessis’ 2 An. 726, Vernon v. Vernon's Heirs, 6 An. 246.

It is true that Art. 1575 says, a testament of this class “ must be read by the testator to the witnesses or by one of the witnesses to the rest, in presence of the testator; ” but the testament need not state that this was done; it is enough if it be proved by oral evidence to have been done.

Theproces verbal of the probate of the will in question, does not show that any such proof was administered before the Clerk ; but the form of the instrument may have misled him as to the necessity of such proof. In this suit it has' not been established, probably because the pleadings of the plaintiff did not notify the defendants of its importance; the allegations are vague and confined to “ defects and informalities patent upon the face of the will.”

We think, under the circumstances, that the defendants should not be precluded from showing hereafter that all the requirements of Articles 1574 and 1575 of the Civil Code have been complied with. In the succession of Sparlcs 12, Rob. 40, such a privilege was reserved.

It is, therefore, ordered that the judgment of the District Court be avoided and reversed; it is further ordered that the will of Eleanor Graves received by Lafayette Jones, a Notary Public of the Parish of Madison, on the 12th day of January, 1853, be declared informal, null and void as a nuncupative will by public act, reserving to the defendants the right of proving the said testament as a nuncupative will under private signature, and all their rights under the same when duly proven; it is further ordered that the defendants pay costs in both Courts.


author: Ogden J.

text:
    J. E. Robertson et al., v. Sarah Wallis, Administratrix.
    When a sale of slaves is made without any declaration on the subject of warranty, with a statement at the time that they had been burnt, but accompanied by the further statement that they had recovered, the sale must be considered as made subject to the usual warranties against redhibi-toryVices.
    When the burns were on parts of the body where they could not be readily seen at a sale of the kind, and the purchaser could not judge by a superficial examination whether the injury was a serious one, and it impaired the slaves value, the vendor is entitled to relief.
    PPEAL from the District Court of the Parish of Terrebonne. Cole, J.
    XJL Connelhj & Rightor, for Rohertson et al.

      J. 0. & A. Beatty for Srn'ah Wallis, appellant.
   Ogden J.

This is a redhibitory action with a prayer in the petition in the alternative for the rescission of the sale or the reduction of the price. The negroes were sold as a family, consisting of the mother and her three children, and were adjudicated at auction to the plaintiff for the price of $1376, payable in three annual instalments.

Judgment was rendered in the court below, allowing a deduction from the price of $626, and the defendant has appealed.

Two of the slaves, the mother and the oldest child, about eight years old, had been, previous to the sale, injured by burns on the body which rendered them unsound property. The fact of their having been burnt was made known at the sale, but it was stated that they had recovered, and they were sold without any declaration on the subject of warranty. Under such circumstances the sale must be considered as made subject to the usual warranty against redhibi-tory vices. The burns were not on parts of the body where they could be readily seen at a-sale of this kind, and the’ purchaser could not judge by a superficial examination whether the injury was a serious one.

Although the testimony is conflicting we are satisfied that the injury to the two slaves who were burnt very materially impaired their value, and that the plaintiff is entitled to a reduction of the price as to them. As to the boy Charles and the infant, it is not shown that they died of any disease which existed at the time of the sale and in an action quanii minoris, no judgment could be properly rendered, throwing the loss of those negroes on the vendor. The children being all under ton years of age, the right to have the whole sale cancelled on account of the redhibitory vices affecting the mother cannot be doubted. If the judgment had been one rescinding the sale on account of redhibitory defects, as the tender of the slaves, which was made before the death of the boy, would have placed him at the risk of the estate, the plaintiff would have been released from the loss. But the plaintiff did not appeal from the judgment and has not asked for an amendment to have the sales rescinded. He is therefore only entitled to a reduction of the price on account of the two slaves affected bj’’ burns.

We cannot tell on what data the Judge of the Court below determined the amount allowed by him in reduction of the price. It is to be inferred that he included in the estimate the two children who died, and if so, there was error in his judgment in that respect. The evidence is so conflicting that it is difficult to estimate how much the value of the slaves Fanny and Ellen was diminished by the injuries they received from the burns.

We think from the evidence, that excluding the two children who died and for whom nothing ought to be allowed, that a deduction of throe hundred dollars from the price would be a sufficient allowance for the diminution in value of the other two by reason of the defects complained of.

It is therefore adjudged and decreed that the judgment of the Court below bo reversed and proceeding to render such judgment as ought to have been rendered in the Court below. It is further ordered and decreed that the plaintiff be allowed a deduction on the price of the slaves Fanny and her children, of three hundred dollars to be taken pro rata from the three notes given for the price, and that the costs in the Court below be paid by the defendant and those of this appeal by the plaintiff and appellee.


text:
    Sarah Wallis, Administratrix, v. J. E. Robertson, et al.
   Ogden J.

This case was brought on one of the notes given by the defendant for the price of Fanny and her children, in which, according to the decree rendered in the suit of J. E. Robertson v. Sarah Wallis, the defendant in this suit is entitled to a credit only of one hundred dollars. The court below allowed a larger credit on account of redhibitory vices and defects complained of by the defendant in the sale of the negroes, and the plaintiff Sarah Wallis appealed. The appeal in this case and in that of J. E. Robertson v. Sarah Wallis were brought up in one transcript, and by consent of parties tried together. There being no agreement of the parties to the contrary, this case must be disposed of in the same manner as if it had come before us on a separate transcript of appeal. The plaintiff is appellant and is entitled to a reversal of the judgment on the ground that the defendant is not entitled to as large a credit as has been allowed by the court below. The appellant asks for a judgment also against the admin-istratrix of Daulc’s estate, Daulc having been sued as the security of Robertson. We find nothing in the Record making DauVs estate a party to the appeal, and no judgment was rendered as to him in the Court below. It is therefore ordered and adjured that the judgment of the Court below be reversed, and that there be judgment in favor of the plaintiff against the defendant, J. E. Robertson for the sum of three hundred and fifty-eight dollars and sixty-six cents, with eight . per cent, interest thereon from the 3d of March, 1864, with costs in both courts, and that the rights of plaintiff against the estate of Daulc be reversed.


text:
    Nolan Stewart, Executor, v. John B. Scudder et als.
    The Citizens’ Bank having seized and sold the property of the defendant on a credit of twelve months, and it having produced a larger sum than the debt, a bond for the balance was given to the sheriff, which, in his return upon the writ under which he sold, he states he holds subject to the further order of the court in the present suit. This suit is a revocatory action to annul judgments and to impeach a tutor’s account for fraud ; it is coupled with a prayer for an interlocutory order to the sheriff to retain in his hands the surplus proceeds of the reputed sale in the Citizens’ Bank suit, which order was granted by the District Judge ex-pcM'te. The defendants filed an answer, denying the frauds charged, and setting up their claims. Subsequently, a consent was entered as follows : “ Continued with understanding that the twelve months’ bond is to remain unexecuted until decision.”

      Held: 1. That an entry of record by the counsel, u Continued with understanding that the twelve months’ bond is to remain unexecuted,” is an agreement not to issue execution on the twelve months’ bond.
    2. That after the cause has been at issue on the merits for more than two years, an exception, that summary proceedings to obtain payment by preference out of funds of a judicial sale are improperly coupled with a revocatory action, is filed too late to be entertained.
    3. The answering to the merits upon the charge of fraud, coupled with the agreement regarding the bond, is a waiver of technical objections.
    4. The answer i? a waiver of objections as to misjoinder of parties and improper cumulation of various matters in the petition.
    PPEAL from the District Court of East Baton Rouge, Gooley, J.
    XI R. & H. Marr, for plaintiff and appellant.

      Dunn & Lacy, for defendant.
   Slidell, C. J.

The plaintiff is the executor of the will of James MaOalop, whose succession is a large creditor of John B. Scudder. The defendants are John B. Scudder and his wife, T. J. Bird and Lminia his wife, and Gilbert M. Thomas, a minor ; Lminia and Thomas being the children of Mrs. Scudder by a former marriage.

The Citizens’ Bank had seized Scudder’s property mortgaged to it; Mrs. Scudder and Mrs. Bird had also levied executions upon it; and on the eve of the sale this suit was instituted. The plaintiff, not disputing the Bank’s mortgage and right to sell, asserts a right to be paid out of the residue of the proceeds of the approaching sale, superior to any pretensions of Mrs. Scudder, of Mrs. Bird, and of Gilbert M. Thomas. He predicates this superiority on various grounds arising out of the acquisition of the property by Scudder, antecedent incumbrances which he had paid with subrogations, and other alleged equities. He also charges that the judgments obtained by Mrs. Scudder and Mrs. Bird wore collusive and fraudulent, and that the accounts rendered by Scudder, as co-tutor of Laoinia and Gilbert, were also collusive and fraudulent. He asks citations in the ordinary form, and a decree annulling the judgments rendered in favor of Mrs. Scudder and Mrs. Bird, declaring any claims by them or Gilbert inferior in rank to his, and that the proceeds of sale, after satisfying the mortgage to the Citizens’ Bank, be paid to him as executor. With the above prayer was also coupled a prayer for an interlocutory order, commanding the sheriff to retain in his hands the surplus of the proceeds of the expected sale, after paying the Citizens’ Bank, which order the District Judge granted ex-parte, and without requiring a bond.

The sale took place on the 3d April, 1852. Bird bought the property for $35,000, at twelve months’ credit, settled the Citizen’s Bank debt, costs and charges, by separate bonds, and gave his bond to the sheriff at twelve months for $19,213 62-100, the balance of the price, which bond the sheriff, in his return of the writ in the suit of the Citizens’ Bank, says he holds subject to the further order of the court in the suit of Stewart, Executor, v. Seudder — the present action. This return bears date 14th April, 1852. The sheriff’s deed to Bird is dated 3d April, 1852, and was recorded 8th April, 1852.

The Citizens’ Bank was not made a party to this cause: and the surplus of the price is the subject of this controversy.

On the 15th April, 1852, Mrs. Seudder, Bird and wife, and Gilbert, by his tutor, filed a joint answer, denying the allegations of the petition, and setting up their respective claims. Mrs. Seudder claimed the amount of her judgment with interest, and tacit mortgage from 6th March, 1843. Mrs. Bird claimed the amount of her judgment and interest, with tacit mortgage from the same date ; and a claim was made for the minor Gilbert, with tacit mortgage, in virtue of an account rendered by Seudder, as former co-tutor with his wife. Seudder also answered, acknowledging his indebtedness to the plaintiff, but partially denying the charges of fraud.

On the 16th April, 1852, by written consent of counsel for plaintiffs and defendants, the following entry was made of record in this cause : “ Continued with understanding that the twelve months’ bond is to remain unexecuted until decision.”

By the expression “ to remain unexecuted,” we understand an agreement that no execution should issue on the bond which had already been signed by Bird and his sureties, and delivered to the sheriff.

It was not until the 19th December, 1854, after the cause had been at issue on the merits for more than two years, that the defendants filed exceptions suggesting, in substance, that the plaintiff had improperly coupled a summary proceeding, to be paid by preference out of the proceeds of a judicial sale, with a revocatory action to annul the judgments held by defendants; and prayed that so much of the petition as sought to annul the judgment might be stricken out, or that the plaintiff be compelled to elect on which issue the cause should be tried. The court below compelled the plaintiff to elect whether he would try the cause as a revocatory action, on a charge of fraud and collusion, or as a summary proceeding at the suit of a third person claiming to be paid by preference the proceeds of a sale by superior privilege. The plaintiff, taking a bill of exceptions, and under the coercion of the ruling, elected the latter.

We think the Court erred. Although the suit, in some of its features, partakes of the nature of a third opposition, it was nevertheless intended by the plaintiff as an independent suit, a revocatory action in which the plaintiff attacked the judgment and the tutor’s accounts for fraud. It was so treated by the defendants, as shown by their answers taking issue on the merits, and without exception. It may be conceded there was irregularity on the part of the plaintiff in asking, and on the part of the judge in granting, in an independent suit of this sort, an order arresting the surplus proceeds in the sheriff’s hands, without bonds; and we are not prepared to say that if objections had been made in limine, the plaintiff might not have been justly put to his election. But the answer to the merits upon the charges of fraud, &c., which gave the proceedings the character of an independent and revocatory action, and not of a mere third opposition under the Code of Practice, coupled with the agreement respecting the fund made on the 16th April, 1852, must be justly considered as waiving the technical objections. The answer must also be considered as waiving any objections to the joinder of parties and the cumulations of the various matters set up in the petition ; which, however, it must be observed, all tend to one result, the establishment of a better right to the fund in controversy than the defendants have.

The circumstances which distinguish this case from Bank of Louisiana v. Debuy, 2 Annual, 649, cited by defendants, are too obvious to require comment.

It is therefore decreed that the judgment of the District Court be reversed, the exceptions dismissed, and the cause remanded for further proceeding according to law, and with leave to defendants to ask a trial by jury — the defendants to pay the costs of the appeal.


text:
    A. Spears v. J. H. Shropshire.
    The plaintiff, a married woman, sued to recover certain slaves; she offered in evidence an ante-wu/pt/ial marriage settlement, which was ruled out on the ground that it had been adjudged to be fraudulent in Mississippi. But held, that the records produced did not show that it had been so adjudged.
    A marriage settlement made in Mississippi might be void for fraud as to antecedent creditors, and not necessarily void as to subsequent creditors.
    A judgment rendered in one case will not constitute resjucbicata in another, where the parties are different. .
    from the District Court of the parish of East Feliciana, Sterling, J.

      Smith & Smiley and Perm, for plaintiff and appellant.

      Muse, for defendant.
   Slidell, C. J.

One of the objects of this suit is to recover certain negroes, alleged to have been the property of Aleiha Spears, before her marriage with Shropshire, and conveyed in trust to her co-plaintiff, Gollins, by an antenuptial marriage settlement. The defendants allege that the marriage settlement was fraudulent, and had been so adjudged in Mississippi.

At the time of the cause the plaintiff offered in evidence the marriage settlement, and to its admission the defendant objected, on the ground that it had been adjudged fraudulent in the courts of Mississippi, as shown by certain judicial records of that State, offered in evidence by the defendant, which objection was sustained by the Court, and the marriage settlement was excluded.

In this ruling we think the Court erred. We are clearly of opinion that the proceedings and decrees in Mississippi do not on their face, show that the marriage settlement has ever been adjudged in Mississippi fraudulent and void. The record in one case simply ascertains that a claim by Collins, as trustee for four bales of cotton, set up on a seizure of said four bales by certain judgment creditors of James H. Shropshire, was interposed for fraudulent purposes. The other record, or rather fragment of a record, simply shows that certain proceedings at law, against certain slaves, which may have been the same now in controversy, had been arrested by an injunction obtained upon presentation of a bill of complaint, of which no copy is before us, that this injunction had been dissolved for want of equity on the face of the bill, a demurrer thereto being sustained, and that the decree was affirmed on appeal'.

The ground of exclusion therefore, which was adopted by the District Judge was untenable. To avoid, however, future discussions in the trial of this cause, it is proper to say that the exclusion of the marriage settlement would have been erroneous, even if those records had shown that the invalidity of the marriage settlement on the ground of fraud had been therein adjudged. Eor those decrees would not constitute res judicata in the present case, being between different parties. Moreover, a marriage settlement made4in Mississippi might be void for fraud as to antecedent creditors, and not necessarily void as to subsequent creditors.

In consequence of the direction which the cause took at tbe trial, it would be premature to decide, now, the validity of the marriage settlement, under the laws of Mississippi.

The proposition “that the cause should have been dismissed in limine litis, for the reason that the prosecutions of the same would implicate Mr. and Mrs. Shropshire in the crimes of fornication and adultery, bastardize their children and fix a stigma upon their family, and was contra horns mores," seems to us, as at present advised, untenable.

It appears that Mr. & Mrs. Shropshire were twice married, once in 1829 and once in 1882. The marriage settlement was made before the second marriage, and at the time of the first marriage, Shropshire had another wife living; but there was a divorce a vinculo matrimonii before his second marriage to the plaintiff, and her knowledge of the previous marriage is not proved. There is reason to believe from testimony taken in this cause, but excluded at the trial, that it will be found, the second marriage to Mrs. Aletha Shropshire was valid, and the first marriage to her, void under the laws of Mississippi; and consequently that her personalty did not pass to hxmjure mariti. It may also appear that, under the law of Mississippi, the previous issue were legitimated by the second marriag'e. We express at present no conclusive opinions on these questions of Mississippi law, and confine ourselves to observing that we find no present reason to dismiss the suit on the grounds suggested.

If the marriage settlement should be found to be valid under the laws of Mississippi, it will suffice to exclude the defendant Shropshire, and those claiming under him from setting up any ownership in property comprehended in it. If a Court in Louisiana will not enforce the marriage settlement specifically, because it contains, as alleged, a fidei eommissum (upon which we express no opinion at present,) still, if the mai'riage settlement was valid in Mississippi, it would seem equitable to protect the original ownership of Mrs. Shropshire, and give her succession the benefit of it, she having died since she brought this suit.

It is therefore decreed that the judgment of the District Court be reversed, and that this cause be remanded for further proceedings according to law, and with instructions to the Court below to receive in evidence the marriage settlement ; the costs of the appeal to be paid by the appellee.


author: Ogden, J.

text:
    Benjamin Poydras de Lallande et als. v. Francoise Poydras de Lallande et als.
    The rule, “ Quce temporalia sunt ad agendum perpetua ad excipiendum,” applied in answer to the plea of prescription setup by co-proprietors.
    from the District Court of the Parish of Pointe Coupee, Farrar, J.

      L. Jannin, for plaintiff.

      Mioou & Pronosty, for defendant and appellant.
   Ogden, J.

The plaintiffs and the defendants were joint owners of the Chenal plantation, purchased in 1825 at the succession sale of Julien Poydras. Julien Poydras constituted his nephews and nieces, twelve in number, the universal legatees of his immense estate. The defendants were his nieces, five in number ; and the plaintiff, Benjamin Poydras, was a nephew, and the brother of the defendants. The plantation in question was adjudicated to Benjamin Poy-dras and his five sisters for $50,000, payable in five annual instalments. Guy Richan'd, who was a cousin of Benjamin Poydras and his sisters, became interested in the purchase of the plantation, for an equal share, so that each owned an interest of one seventh, and were all equally bound for the payment of the price. Benjamin Poydras held the power of attorney of his five sisters, defendants in this suit, and of the other heirs residing in Prance; and in his own right, and as agent of his co-heirs, he received possession from the executors, of the whole succession of his uncle, including the notes given by himself and his sisters for the price of the Chenal plantation.

This suit was instituted in 1848 by Benjamin Poydras and the representatives of Guy Richard, to effect a partition of the property, and by consent of parties a sale was decreed for that purpose.

The defendants having, by a demand in reconvention, obtained an account from Benjamin Poydras of profits and revenues of the property from the time of the purchase in 1825 until the sale in 1829, filed an opposition to the account, and have taken this appeal from a judgment rendered thereon. The appellants have complained, in this court, of error in the judgment appealed from, only as regards four items of their opposition.

The first item is the charge which Benjamin Poydras has made of the price of the plantation, as paid by him in four annual instalments, with the interest accumulated thereon. The grounds of objection to this charge are, that the price o'f the property is not a proper item in the account of the revenues, and that the dpmand ;s barred by prescription. The notes which Benjamin Poy-dras and his sisters had executed for the price of the plantation were surrendered up to him as the agent of all the heirs of Julien Poydras. The estate •was -a very large one, and' these notes constituted but a small portion of the assets realized by the sale of the property, of which Benjamin Poydras owed an account as agent not only for his sisters, who had joined him in this purchase, but to the other heirs, all of whom resided in Prance. In 1844, Benjamin Poy-■dras rendered an account of his agency to his co-legatees, in a suit before a tribunal-in Prance, to which all the heirs were parties, and in that account debited himself with $50,000, as the price of the Chenal plantation. As only five out ■of eleven of his co-heirs were interested in the settlement of his accounts of the Chenal plantation, and the representatives of Guy Richa/rd, as owning one-se-Tenth of that plantation, were also necessary parties, — the rights of those heirs having a separate interest growing out of the purchase by them jointly of that particular plantation, and of its administration by Benjamin Poydras, were expressly reserved for future settlement in Louisiana, where the property was situated. It was necessary, however, that the price of the Chenal plantation should be embraced in the general account which was the subject of litigation in the suit to which all the heirs were parties in Prance, and, with the above reservation, the price was accounted for in the settlement. After a very protracted litigation, and after the death of Benjamin Poydras, a final judgment was rendered by the Court of Appeals at Rennes, establishing a large amount to be due to Benjamin Poydras by his co-legatees. As the defendants in this suit themselves owed five-sevenths of the price of the Chenal plantation,- which was thus accounted for by Benjamin Poydras in his general settlement w’ith all the heirs, the defendants must be considered as having received their portion of the price of the Chenal plantation. And, in accounting for the revenues of the plantation, Benjamin Poydras had the right to compensate the claim of his sisters for the revenues by their portion of the price of the plantation, for which he made himself responsible when he accepted a surrender from the executors of the -whole estate of his uncle, to himself, as agent of all the heirs.

The maxim, “ Quce temporalia sunt ad agendum perpetua sunt ad exeipien-dum,” would under such circumstances prevent his co-proprietors from availing themselves of prescription. Nichols v. Hanse & Hepp, 2 L. R. 385; Delahousaye v. Dumartrait, 16 L. R. 91. He had the same right to reimburse himself out of the revenues of the plantation for the price of it, for which ho made himself responsible and subsequently accounted, as if the notes had in fact been taken up by him at maturity. When one partner, who has the management of the partnership property, pays an obligation for which all the partners are equally bound, he has a right, in settlement of accounts with bis co-partners, to credit himself with such payment, and prescription cannot run as long as the account of his administration is unsettled.

The appellees have argned that there was nothing to prevent Benjamin Poy-dras from suing his co-partners for their portion of the price, and that the maxim, uOontra non raientem agere non aurrit prescript™,” does not, therefore, apply. It may be conceded that the rule which is generally recognized, that no action will lie by one partner against another, except for a final settlement, would not have been applicable to prevent Benjamin Poydras from bringing a suit in such a case as this. We consider, however, that the plea of prescription cannot be maintained on account of the relation between the parties, which made it equitable and just that their mutual claims should be brought into a general settlement of the partnership accounts, and which it must be presumed was their intention by their postponing a settlement for so long a period. The plea of prescription cannot therefore avail the defendants, who were properly charged in the settlement with their proportion of th'e whole price debited to Benjamin Poydras, in the account rendered by him to all the heirs in Erance.

2. The charge for extra services allowed to Stephen Vanwiclcle, who was left in charge of the plantation as agent, forms the next ground of opposition, concerning which, error in the judgment appealed from is complained of. This presents only a question of fact; and, after examining the evidence, we are not satisfied that the allowance of $1804, for extra services, was unreasonable. It became necessary during Vanwiclcle's administration to make a great many improvements which required the employment and superintendence of numerous mechanics; and, considering the nature and amount of services rendered by him during the absence from the country of all of the proprietors, the objection to this charge does not seem well founded.

3. The opposition to the item in the account for amount paid to Vdnwickle for the costs and expenses, and a fine imposed on him for an assault and battery, committed while searching for runaway negroes belonging to the plantation, we think, ought to have been sustained. This did not constitute a proper charge against the proprietors of the plantation ; it was an act of liberality on the part of Benjamin Poydras to allow it — but, as his co-partners have objected to it, he is not entitled to be credited with the amount thus paid.

4. The fourth and last objection made to allowing the heirs of Guy Richard a proportion of the price of the property, on account of the two co-parts first embraced in the sale, which belonged to them separately, and also rent for the same, was, in our opinion, properly overruled. The evidence shows that by an oversight, this land was sold with the rest of the plantation which was common property. There is no question as to the title, and the only mode of correcting the error, as the heirs of Richard were willing to ratify the sale, was to make an equitable partition of the proceeds of the sale, which seems to have been done; and for the use of their land by the partnership, they were entitled to rent.

It is, therefore, ordered and adjudged that the judgment of the court below be avoided as regards the twelfth item of the opposition to Benjamin Poydras’ accounts for the amount of three hundred dollars paid to Stephen Yanmekle, and that the opposition to that charge be sustained. It is further ordered and decreed that the judgment of the court below, in all other respects, be affirmed, and that the appellees pay the costs of this appeal.

Spoitobd, J., did not sit in this case.


author: Voorhies, J. Slidell, C. J.

text:
    H. P. Morancy v. Police Jury of Madison.

      Udd: that the Police Jury of the Parish of Madison was liable under their ordinance of the 3d of January 1850, for work done on the requisition of the Levee inspector, by a front proprietor on his own Levee.
    The prescription of one year, under Article 8499, applies to the action of workmen, laborers and servants for their wages, andnot to an action for specific work, or work done by the job, whether under a contract or on a quaivkim menvit, and materials furnished for such work.
    The claim being under the ordinance there can be no recovery unless the ordinance be complied with. Sltdbll, O. J., and Spofford J., dissenting.
    from the District Court of the Parish of Carroll, Snyder, J.

      Short and Parham, for plaintiff and appellant.

      A. R. Hynes, for defendant.
   Voorhies, J.

The plaintiff instituted this action against the Police Jury of Madison to recover the sum of $602 50, besides interest, being the alleged value of the work done by his slaves, and hands hired by him to that effect, upon the Levee, fronting on the Mississippi. The defendant, besides the general issue, filed a plea of prescription.

The record shows that the services were rendered, and the value of the work done is correctly set up by the plaintiff.

The only questions presented for adjudication, are, whether the defendants are liable for that debt, and, in that Court, whether the claim is or not barred by the peremptory exception set up by the defendant.

The 10th section of an ordinance of the Police Jury of the Parish of Madison, passed the 3d January, 1850, provides, that “ all front proprietors who may erect levees after the date hereof, and previous to any contract with the levee commissioners, on a route to be approved by them, shall be paid therefor, in a reasonable sum to be determined by said commissioners.” In June of the • same year this ordinance was repealed.

It was upon the requisition of the levee inspector that the plaintiff rendered the services, the value of which is now sued for: It is clear to our minds, under the circumstances of this case, that the Police Jury of Madison must be held liable for the plaintiff’s demand. They were invested with the power by a legislative act of the 3d January, 1850, to pass that ordinance, the first and seventh sections of which provide as follows, viz: “1st. that an ad valorem, tax be annually levied on the amount of the State tax for the erection of levees on the Mississippi river, throughout this parish.” 7th. “ that an ad valorem tax of one hundred and fifty per cent, on the State tax of 1849, on all property in this parish, be assessed and collected by the parish collector as a special levee fund, for the year 1850 ; provided said tax shall be collected on or before the first day of January 1851.”

As the plaintiff had to bear his proportion of this heavy burden, it would be manifestly inequitable to impose upon him the additional one of constructing the levee on his own plantation.

•The prescription of one year, on which the defendants rely, is applicable to the “action of workmen, laborers and servants for their wages,” (0. O. 3499,) and not to an action for specific work, or work done by the job, whether under a contract or on a quantum meruit, and the materials furnished for such work.” 19 L. 413.

It is therefore ordered and decreed that the judgment of the District Court be avoided and reversed, and that the plaintiff recover of the defendants the sum of six hundred and two dollars, with legal interest from judicial demand— the costs of both Courts to be taxed.

Slidell, C. J.

(with whom concurred Spoefobd, J.)

The claim seems to be made under the ordinance, and there is no allegation that the work was required by a sudden emergency, or that it has benefited the parish to the amount claimed. The claim being under the ordinance, it seems to me it cannot be recovered unless the ordinance was complied with.

I think the judgment below should be affirmed.


author: Voobhies, J.

text:
    Succession of James McCalop.
    Service of citation on defendant’s overseer and at his plantation, is sufficient.
    It is the settled rule that a creditor «nay enforce the payment of his claim against a succession, either by direct action, or by way of opposition to the account of the executor.
    An under-tutor of minors is not a necessary party, where their natural tutor is a party and has no interest adverse to that of the minors.
    PPEAL from the District Court of West Baton Rouge, Robertson, J.

      A. J. W. & J. B. Mam, attorneys for testamentary executor and appellants.

      G-. S. Lacey and T. G. & P. H. Morgan, for Menard & Vignaud, appellees.
   Voobhies, J.

The appellees, Mena/rd & Vignaud, brought an action in the District Court of East Baton Rouge against John B. Scudder and the testamentary executor of the late James Me Galop, to recover the sum of $19,864 03, alleged to bo due them by Scudder, and for which the testator was liable as surety. There was a judgment in favor of the plaintiffs for the sum of $15,138 03, and the executor appealed. On the 2d of July, 1852, a judgment was rendered by the Supreme Court, reducing the plaintiffs claim to the sum of $12,122 74, with interest from judicial demand. See 7 An. 387.

A writ of fieri facias was issued on this judgment, directed to the Sheriff of the parish of West Baton Rouge, who proceeded to execute it by seizing a number of slaves belonging to the testator’s succession. An injunction was obtained by the executor on the ground, among others, that the plaintiffs could enforce the payment of their judgment against the succession, if at all, only in duo course of administration after having called upon the executor to render an account, and not by virtue of a writ of fieri facias.

On the 19th March, 1853, the property seized was released and the writ returned by order of the plaintiffs, in consequence of which the injunction was dissolved at their costs.

On the 21st March, 1853, the appellees obtained an order from the Clerk of the District Court of West Baton Rouge, where the succession was opened) directing the executor to render an account of his administration. The executor excepted to the appellees’ right, as creditors, or otherwise, to make such a call during the pendency of the injunction suit, and, also filed an answer and reconventional demand. On motion of the appellees’ counsel, the exception, answer, and reconventional demand were dismissed by tho District Court, on the ground that the executor was bound to render an account; that such pleas could only be urged after an opposition had been made to an account filed.. — ■ We do not think the judge d quo erred. The Act of 1837 makes it the duty of all executors to render, at least once every twelve months, an account of their administration, and by the act of 1846, the Clerks of the respective District Courts in the country, are invested with the power to grant orders, directing such executors as may be delinquent to perform the duties thus enjoined upon them. The course pursued by the executor was therefore manifestly irregular. It is clear that the pleas filed by him could not consistently have preceded the rendition of his account, which was essential to constitute the foundation for the action of the creditors in asserting their claims against the estate. The rules for the settlement of successions administered by executors, are clearly and explicitly laid down in our codes. We think if the executor had followed . them as his guide in this instance, he would have avoided much unnecessary complication and confusion in the proceedings. C. C. 1663, 1168 et seq. O. P. 987, 988 et seq.

Finally, an account was rendered by the executor on the 15th December, 1858. It was opposed by the appellee, on the ground that they were not classed as creditors for the amounts claimed by them, viz:

1. $12,122 74, with interest from judicial demand and costs, amount of the judgment of the Supreme Court in their favor.

2. $2,500, the joint and several note of Soudder and MeGalop, endorsed by Soudder, dated 20 th March, 1850, payable twelve months after date, and duly protested for non-payment, with interest and cost of protest.

3. $3,000, the joint and several note of Soudder and MeOalop, endorsed by Soudder, and duly protested for non-payment, with interest and cost of protest.

On motion of the appellees’ counsel, the heirs of the testator were made parties and ruled to show cause why the provisional tableau filed by Nolan Stewart, the executor, should not be homologated and approved. The Heirs filed an answer, accepting it as a correct statement of the affairs of the estate, and setting forth also various matters of defence against the appellees’ demand. At this stage of the proceedings, Nolan Stewart, the executor, and Catherine Stewart, wife of Alfred A. Williams, and one of the heirs of the testator, died, the latter leaving minor children. Alfred A. Williams was then appointed dative testamentary executor of the testator ; and was also confirmed as natural tutor to his minor children. Upon the suggestion of the death of these parties, the proceedings were revived against Williams, and a judgment by default was taken against him.

The regularity of this judgment, or tacit issue, is contested on the ground of the insufficiency of the service of the citation and petition, which was made during Williams' absence on his overseer at his plantation. It is objected that it does not appear to have been made at the house of Williams in the manner prescribed by Article 189 and 201 of the Code of Practice. According to the interpretation of those Articles in the case of Maxwell v. Collier, 6 R. 86, we must consider the service as sufficient.

It is also objected that the minor children of the late Mrs. Williams, have not been legally brought before the Court, the under-tutor not having been notified of the pendency of the proceedings. On the hypothesis that it is necessary, under the act of 1853 (Session Acts of 1853, p. 293,) to cite the heirs in order to authorize the homologation of a tableau, it may be doubted whether the law-maker intended thereby that an answer should be filed or issue joined by them. The right of the heirs to intervene for the protection of their interest in the proceedings for the homologation of a tableau has never been contested. This enactment may be considered as a means to secure to them the exercise of that right. A different view of the law, it seems to us, might give rise to protracted litigation, resulting necessarily in the majority of cases, to the serious injury of the creditors, whose rights are considered by law to be paramount to those of the heirs, who have only a residuary interest.— However, be this as it may, we think the minors are legally represented by Williams as their natural tutor, and that he has- no interest in opposition to their interest in this controversy. Hence is is unnecessary to make die under-tutor a party to the proceedings.

It is also objected that the appellees were bound, under Article 986 of the Code of Practice, to obtain, by an action in the ordinary manner, a judgment liquidating their claim. It is the settled rule, that a creditor may proceed to enforce the payment of his claim against an estate cither by a direct action or by way of opposition to the account of the executor. 10 L. 356, 5 An. 709.

The appellees’ claim, founded on the judgment of the Supreme Court, must bo viewed as having the authority of the thing adjudged. C. P. 123, 3 An. 36. It follows, therefore, as a necessary consequence, that all the matters urged as grounds of defence in the present controversy, which were litigated and decided in that suit, must be considered as closed. We do not think there is any ground for the proposition, that in consequence of the acts of the appellees, the controversy between the parties has been opened again. It appears that the appellees after having obtained the judgment in question, instituted another suit in the District Court of West Baton Rouge, involving the same cause of action, except the notes claimed in this litigation. In one of the allegations contained in their petition, they advert to the judgment, declaring that should the same be affirmed and paid in whole or in part, the amount so paid would operate as a credit pro tanto upon the several items of indebtedness claimed by them. To this action, the defendant pleaded the exception of his Us pendens, and also pleaded to the merits. On the 6th of October, 1852, this suit was dismissed on motion of the plaintiff’s counsel. We have been unable to perceive anything in the proceedings of that suit calculated to affect the interest of either of the parties.

In relation to the appellees’ claim, founded on the two notes in controversy we think it is clearly shown that they were not included in the demand in the suit in which the judgment resulted in their favor. On the trial of that suit in the District Court these notes were offered in evidence in connection with a supplementary petition, but ruled out on the defendants’ objection. In sustaining the objection, the Judge said: “considering that said notes could not be received under the pleadings, and that an amended petition could not, at this stage of the cause be admitted, rejected the evidence, reserving, however, to the plaintiffs, the right hereafter to prosecute their claim upon the said notes.”

The payment of these notes is contested on the ground of want of consideration. It is urged that Seudder and MeGalop were never credited with the proceeds of, or ever received any valuable consideration for said notes, which must be looked upon only as accommodation paper for the benefit of the appellees. The testimony of Seudder himself is chiefly relied upon to sustain this allegation. The Judge d quo in his decision says: “ It appears from the testimony of Danis, Cashier of the Louisiana Bank, that these two notes were not discounted, but placed in that Bank for collection, and protested at maturity, 'which fact is established by the protests on file. The whole of the transactions between MeGalop, Seudder, Menac'd and Yignaud, would go to show that they are the l>ona fide holders of these two notes. I pay no attention to the testimony-of John B. Seudder, who, being liable upon the notes, is not a competent witness.” We have carefully considered the testimony of this witness in connection with his correspondence with the appellees and the other circumstances disclosed by the record, and we are not prepared to say that the Judge d quo erred in his conclusion. The account given by Seudder, in relation to the disposition which was to have been made of the note of $2500, is not satisfactory. If it was given to the appellees, as he says, for the purpose of renewing a note of $3000, signed bv himself, and endorsed by the testator, it is somewhat singular that these notes do not correspond either in form or in amount. If intended as a renewal, why was it not made payable at the Canal Bank ? It appears that the note due the Canal Bank was protested on the 23d March, 1850. Saudder sent a note for a similar amount for the purpose of renewing it. On the 17th May, 1850, he wrote to the appellees, saying: “lam in hopes that you will sell that note of $3000 and settle that note in the Canal Bank.” The appellees, it appears, were unable to effect that arrangement, and obtained from Saudder his joint and several note with the testator for $5,500, dated 27th May, 1850, and payable 5th March, 1851, out of the proceeds of which the Canal Bank note was taken up. On the 5th June, 1850, the appellees wrote to Saudder, stating that his note of $5500 had been discounted and the proceeds applied as follows: $3,050 33 to Canal Bank;'$176 76 to Dr. Beaumont; $192 40 to Citizens’Bank; and $14 to Pino, leaving $1134 76 to his credit. In relation to the note taken up they say : “ We return the same herewith enclosed together with your note for $3000, to the order of Mr. MeGalop, which we could not use, so that you may show them to your endorser cancelled.” Saudder answered this letter saying: “I received yours of June 5th, and thank you for the arrangement with the Canal Bank.” He approved of the disposition of the proceeds of the note, and added that he had drawn on the appellees for $180 37 to pay Lesage S Ohopin, &c. Prom this we must infer that the note of $2500, in possession of the appellees since the 10th of March, 1850, was not given for the renewal of the $3000 note duo the Canal Bank.

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


text:
    C. R. Kennedy v. A. S. Phelps, Street Commissioner—City of New Orleans, Intervenor.
    The Mayor and Aldermen, &c., of New Orleans are fully empowered to enact ordinances and adopt measures of police, for preserving the health and promoting the comfort, convenience and general welfare of the inhabitants.
    The power to abate nuisances is a portion of police authority, necessarily vested in the corporations of all populous towns.
    A resolution of the Common Council directing a city officer to abate a particular nuisance under a general “ordinance, is legal, and cannot be assimilated to an ordinance inflicting a fine or penalty upon particular individual.
    Plaintiff and Appellant, Miahel S Gillmore.

      J. Livingston, City Attorney, and Benjcmin, Bradford & Finney, for city of New Orleans, appellee,
    cited 7 Oowen, 585; 12 Pick. 184; 15 Wend. 397; 4 M. 10; 8 Paige; 9 Wend. 571; 7 Bacon’s Abridg. verbo nuisance, O.
   Buchanan, J.

The plaintiff has been extensively engaged in the business of salting hides for the last fourteen years, at the corner of Laurel and First streets, in the Fourth District of the city of New Orleans, formerly the city of Lafayette.

On the 24th June, 1854, the City Council of New Orleans adopted a resolution in the following words :

Eesohed, That the Street Commissioner be and is hereby directed to notify the owner or occupant of the premises situated at the corner of Laurel and First streets, Fourth District, and used as a hide-curing establishment, to discontinue to use said premises for said purpose, and on failure on his part, to comply with said notice, to have said premises closed up as a public nuisance without delay, under the ordinance of the city of Lafayette, passed May 18th, 1838, concerning nuisances.”

The Street Commissioner served upon plaintiff the following notice.

“New Orleans, June 27th, 1854. Mr. Cfharles E. Kennedy, Sir: Take notice that you are hereby required to discontinue the use of your premises, on the corner of First and Laurel streets, for the purpose of curing hides, within one day from the service of this notice, and in default of your not complying with the requisites of the above, you will be dealt with as directed in sections 7 and 8 of the city ordinance, passed third day of May, 1852; also late city of Lafayette, ordinance of May 18th, 1833, and the resolution of the City Council, approved 24th June, 1854. Aug. 8. Phelps, Street Commissioner.”

The petition of plaintiff avers that defendant, acting under the resolution of the City Council above cited, threatens to close and shut up the establishment of plaintiff, and to prevent him from carrying on his business therein, after twenty-four hours notice: that plaintiff fears defendant will, unless restrained by injunction, carry out his said threats, and thereby deprive plaintiff of his business, to his irreparable injury: that the ordinances and resolution mentioned in the notice served upon plaintiff by defendant, are contrary to the laws and constitution of the State: and prays that an injunction may issue, restraining defendant from closing plaintiff’s establishment, or in any way interfering with the same, or preventing plaintiff from carrying on the business therein now carried on by plaintiff.

An injunction having issued upon the petition, the city of New Orleans intervened in the suit, praying' to be allowed to defend the same in the place and stead of the Street Commissioner — and pleaded the general issue to plaintiff’s demand.

The city ordinance "of Lafayette, of the 11th May, 1833, concerning nuisances, referred to in the resolution of the 24th June, 1854, is in the following words:

“ — Whenever any workshop, manufactory, or other like establishment, situated within the limits of this city, exhales foeted or offensive odor or vapor, it shall be the duty of the police officer to examine the premises; and he is authorized for that purpose to enter all such establishments between the rising and setting of the sun; and if such odor, in his opinon, is sufficient to vitiate the air or impair the health of the inhabitants, he shall notify the owner or proprietor thereof in writing, requiring him to cleanse.the same, or discontinue all work thereon, noxious to the health of the city, and within such time as the police officer may designate. At the expiration of such time, should said person neglect to comply with said notice, he shall be liable to a fine of from ten to one hundred dollars for each week he so neglects said notice, to be recovered for the use of the city.”

The power.to abate nuisances, is a portion of police authority, necessarily vested in the corporations of all populous towns.

'In the case of Hart v. The Mayor of Albany, 3d Paige’s, New York Chancery Reports, the Court said, “ The question of nuisance or no nuisance'is always a question of fact, in relation to which the opinions': of individuals will necessarily differ. It therefore becomes necessary in all populous towns, to regulate such matters by police ordinances. And public policy requires that the corporation of the place should not be disturbed in the exercise of their powers unless they have clearly transcended their authority.” Again in the case of Baker v. City of Boston, 12th Pickering, 193, the Supreme Court of Massachusetts said, “It has not been denied, it cannot be, that the Mayor and Aldermen are clothed with legislative powers and prerogatives to a certain extent, and that they are fully empowered to adopt measures of police, for the purpose of preserving the health, and promoting the comfort, convenience and general welfare of the inhabitants within the city. Among these powers no one is more important than that for the preservation of the public health. It is not only the right, but the imperative duty of the city government, to watch over the health of the citizens, and to remove every nuisance, so far as they may be able, which may endanger it.”

The police powers thus generally recognized as essential to municipal government, have been expressly conceded to the city of New Orleans, by the Act of 14th of March, 1810 (Bullard & Curry, 101;) as they are by implication to the late city of Lafayette, by the 10th section of its Charter (Bullard & Curry, 137;) and in the case of the First Municipality v. Blineau, 3d Annual, 689, our predecessors maintained the duty of the municipal government to maintain by all lawful means, the cleanliness and salubrity of the city, and its possession of ample powers to that effect. In that case, indeed, the Supreme Court an. nulled an ordinance which inflicted a fine upon a particular person ; and the present case has been sought to be assimilated to Blineau's case in that respect. But we do not so consider it. The resolution of the 24th June, 1854, is pointed at the plaintiff’s establishment, it is true ; but the Street Commissioner is ordered to proceed against plaintiff in the mode pointed out by a general ordinance, that is to say, as we have seen above, a prosecution before the legal tribunal for the recovery of a fine. The District Judge has properly observed, that there is no evidence showing but that the intention of the corporation was to proceed against the plaintiff under that ordinance. That the Street Commissioner so understood the resolution is plain, from the notice which he has given.

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