text:
    Robb et al. v. Potts.
    In proceedings vid executive the creditor must bring himself within the letter of the law.
    A judgment having been obtained against the owner of a city lot, in proceedings instituted by ouo of the municipalities of New Orleans, under thestat. of 3 April, 1833, for the opening of a street, establishing the amount of his contribution,- defendant purchased the lot, and assumed to pay the judgment in favor of the municipality, putting himself in the place of his vendor. Plaintiffs having become Subrogated to the rights of the municipality, took out an order of seizure itnd sale against the property. Held, that defendant,-in- assuming the debt, merely put himself personally in the place of his vendor; that plaintiffs can enforce against him only the mortgage which existed-on the property at the time of his purchase, and that that must be done vid ordinaria; that if the claim, on which the order of seizure and sale was obtained, still belonged to the municipality, it could- not, under the act of 1832, resort to proceedings vid cxccutivd, without having previously passed a resolution requiring the issuing of the process by the court in which the assessment was confirmed; and that the right to proceed vid executive, oven after passing such a resolution, is personal to the Corporation, and cannot be transferred to its creditors.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Lockett and Goold, for the plaintiffs. JSlmore and W. W. King, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs allege that, in the case of the Mayor and Council of Municipality No. 2, praying for the' appointment of commissioners; and for the opening of Lafayette street, the said municipality obtained, under the act of 1832, a judgment against Asher Philips, establishing the amount of his contribution, which judgment was duly recorded. That they have obtained a judgment against Municipality No. 2, t:o satisfy which the judgment against Philips has been sold under execution, a-nd adjudged to them. That Asher Philips having died, his widow and heirs have sold to the defendant the property assessed for the opening of Lafayette' street, and affected by the judgment and judicial- mortgage. That the defendant assumed in the act of sale to pay said judgment to the municipality, and has agreed to put himself in the state and-place of the widow and heirs of Asher Philips. That by their purchase of the' judgment they have become subrogated to all the' rights of the municipality, and' are entitled to avail themselves of the assumption- of the defendant. They pray that executory process may be'issued, and that the property mortgaged be seized and sold for cash. The order of seizure was granted, and- the' defendant appealed.

The executory process- is a harsh remedy, and whoever resorts to it must make out a clear case, and bring himself within the letter of the law. If the claim on which the order of seizure was obtained in the present instance were' still the property of the Municipality No. 2, that corporation eould not, under' the act of 1832, resort to the executory process, without previously passing a resolution requiring the issuing of the process by the court in which the assessment was confirmed. The right to proceed vid ejecutiva, after passing, this resolution, is personal to the corporation, and cannot be transferred to its creditors. If the defendant, in assuming the payment of the debt, had given a-spe-^ cial mortgage on the property to secure it, the plaintiffs might, perhaps, proceed as they have done, on that mortgage. But no such mortgage is found in the sale under which defendant holds He has simply assumed the debt, and put himself personally in the place of his vendors. The plaintiffs, therefore, can only enforce against him the mortgage which existed on the property at, the timo of his purchase, and this must be done in an ordinary suit. For the reasons assigned, the appellant is entitled to relief.

It is therefore ordered, that the order of seizure and sale in this case be set aside and annulled, and that the plaintiffs pay the costs in both courts.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Molinari et al. v. Fernandez, Tutrix.
    Art. 368 of the Civil Code, which authorises a husband, though a minor, to apirear in Court iri all cases, is an innovation on the former laws on the subject, and forms an exception to the' dispositions of arts. 376, 377, 1235,. and 1236 of that Code; and these articles now apply only to eases of ordinary emancipation. A similar power is conferred upon tho wife who is under age, provided she ho authorised by her husband, by sec. 12 of the stafe. of 25 March, IS28, amending art. 999 of the Code of Practice.
    Whore a mother, who had forfeited the natural tutorship of her children by marrying a second time without having been legally authorised to retain it, after tho death of a tutor appoint., ed in her place and of her second husband, is re-appointed tutrix by the advice of tho family meeting, she will not be bound to give bond. The rule exempting the father or mother from giving security before acting as tutor or tutrix, isa general one, to which an appointment under such Circumstances forms no exception. Per Curiam: Under art. 950 of the Code of Practice, the judge might have- appointed her tutrix without the a’dvice of a family meet" ing; the submission of her application to such a meeting, and its decree declaring her war' thy of the trust, can impose no additional burthens on her.
    íhc designation of a notary before whom the inventory and appraisement are to be made, is only nee'essavy where a partition Is to he made in hind, in cases of Imitation it is unnecessary; in such cases an appraisement made before tbs sale, in the mode usual in seizures under execution, is sufficient.
    APPEAL from the First District Certil't of New Orleans, McHenry, J. Antoine Molinari died in 1833, leaving three minor children: Antoine, Theresa, and Paul. His widow was confirmed as the natural tutrix of these' minors. She proceeded to settle the estate, and on its final liquidation the' only property left for the children was a house in Hospital street, in this city. The widow afterwards contracted a second marriage with Rufino Fernandez, and afterwards surrendered her tutorship, and caused a dative tutor to be appointed, agreeably to the forms required by law in such cases. Her second husband, Fernandez, died in September, 1843; and shortly after, the tutorship having become vacant, Mrs. Fernandez was appointed, on the recommendation of a family meeting, and confirmed as natural tutrix of said minors Molinari. Sho took the oath required, by law, but gave no bond, and has since acted as the legal representative of said minors, in all matters appertaining to the administration of their estate. The two eldest children, Antoine and Theresa, having been emancipated by marriage, instituted suit against Mrs. Fernandez, as tutrix .of their brother Paul J. Molinari, for a partition. She answered in her capacity of tutrix, but made' no defence; she admitted the plaintiffs’ right to obtain the partition by licitation, as prayed for, and submitted the Case to the judge, who gave judgment accordingly. The property was advertised, appraised, and, at the sale, adjudicated to Omer Gaillard, for a sum considerably exceeding the appraisement; but this purchaser now refuses to comply with the terms of sale. A rule was taken against him, which was made absoluto, and he has appealed.

      S. L'. Johnson, for the appellant-.
    I. Mrs. Fernandez was not duly qualified to represent, as tutrix, the minor Paul J. Molinari. The children of the first marriage would have had a prior legal mortgage on the property of their mother, if she had-not forfeited the tutorship ; by her fault thei-f mortgage is now inferior to that of the children of the second marriage. Under these circumstances,- it-is contended that she is not duly qualified-as tutrix of the minor, Paul J. Molinari; that she must give security like any other dative tutor, in order to be qualified; and that the exemption, in article 330, of the father and mother from giving security, avails them only when they hold the tutorship by right, the only species of tutorship which the Code supposes the father and mother to hold. G. C. 272, 288, 330: Tutorship of Mossy, 3 Rob. 390: Article 951 of the Code of Practice, would seem to favor the idea that she might have claimed the tutorship by right;- but it would not authorise her to claim the appointment in a case like the present, where, by her neglect, she has incurred the penalty of art. 272 of the Civil Code, and has given the children of the second husband,, ii prior mortgage on all her property, even that whicli she may have derived from-the first community.
    Moreover, she did'not claim the tutorship of right, but accepted the dative tutorship as it was conferred upon-her. The question is, whether the exemption in art. 330 of- the father and mother from giving security, can avail the mother, when dative tutrix. Upon this point, there appears to be no authority. It was not raised in the ease of the Tutorship of Mossy, beeauso,-as we are inj formed, the maternal grand-father of- those minors, offered to be seourity for his daughter, as their tutrix. In the French Code, security is not required from tutors of any kind. Art. 288 clearly shows that the framers of our Civil Code did not contemplate the father or the morlher’s be-coming a dative tutor. The •facts of this case show that there might be serious prejudice to the issue of the first marriage, by the doctrine contended lor by our opponents. The minor, Paul, is not represented in the rule, and was not a party to the. original suit; there was, therefore, no defendant, and no contestation litis; the judgment' was consequently null, and could not authorise the sale of' the property.
    II. The plaintiffs also were minors, emancipated by marriage, and were not" specially, authorised by the judge, on the advice of a family meeting, to sue for the partition of their property, as required by law in-such cases. G. C. 1236, 1235, 376, 377. Breaux v. Carmouche, 9 Rob. 36.
    III. No public inventory of the property to be divided, such as is required for the basis of a judicial-partition, was made during the pendency of the suit, nor' within one year preceding it. C. C. 1-246-9. This inventory might have been made after the decree of partition, and at any time before the sale. Millaudonv. Percy, 5 Mart. N. S. 554. Lalaiine’s Heirs v. Moreau, 13 La. 433. This was not one of those errors of- proceeding,- which are covered by the' judgment of the court. 13- La. 433. But w-e are told that the appraisementwhich was made, was a substantial compliance with the law; and that art. 1247 is applicable'only to partitions in kind, and not to those to be effected by a sale.An appraisement madcw-ithout the'presence of the parties interested, or that of a notary or witness, evidenced-by no public act — '•by nothing but a slip.iof pap.er filed in court, containing aproces-verbal under private signature, purporting-to be signed by the appraisers alone, is far from being a substantial compliance ■with the law prescribing the form of public inventories. Arts. 1247, 1093-9, 1-101-3. Art. 1247 makes no distinction-between partitions in kind, and those’ which are made by a sale of the property.
    IV. It is urged by the plaintiffs in the rule, that the purchaser cannot refusetb take the property and pay the price, unless he be disturbed in his possession. In support of which--position,■ they cite the following authorities : Arts. 710; 7-11, C.-P.,-and the cases of Collins v. Daly, 4 Rob. 113. Abat v. Pallet, 3-Mart. N. S. 220. Foster v. Murphy, 5 Ib. N. S. 82. Freret v. Meux, 9 Rob. 416. Stille v. Bronson, 5 Mart. N. S. 47.
    AU-of these authorities except Freret v. Meux, are inapplicable to the present' case. Arts.-710, 711, C. P. apply to -sheriffs’- sales-made under writs of fi. fa., in cases where the property is subject to legal or judicial mortgages. Theses mortgages do-not prevent the sale under ti fi. fa., nor excuse the purchaser for not complying with the' conditions of the sale, saving the cases excepted in art. 7-1-0; All of the cases above cited, except that of Freret v. Meux, relate top sheriffs’ sales made- under writs of fi. fa. The general expression of judicial sales, which is applied as weil to sales in execution of writs-of ft. fa., as'lo those ordered by a court in matters of succession or partition, could alone give rise to the error of confounding this case with those above cited. Our Code, art. 2594, says that: “ Sales which are made by authority of law, are of two kinds: 1st. Those which take place when the property of a debtor has been seized by order of a court,-to be sold for the purpose of paying the.creditors. 2d. Those which are ordered in matters of succession or partition.”
    Sales under execution do not give rise to the redhibitory action, but may be set aside, in cases of fraud, and declared null in cases of nullity. C. C. 2597, 2515. They transfer only the rights of the debtor, such as they are. C. C. 2598. On the contrary, “ all the warranties to which private sales are subject, exist against the heir in judicial sales of the property of successions. Art. 2602. When the court, in Freret v. Meux, say that the vendee, “ may .refuse ■to pass the sale until a good title is tendered to him, and musthe relieved if his vendor is unable to give one; it is otherwise with regard to judicial sales,” «¡ting Code of Practice, art. 710,3 Martin N. S. 221, it is evident.from the authorities cited by the court, that the -first class of judicial sales specified under •art. 2594, was alone intended.
    The heirs of Molinari wish to sell their property to effect a partition. If of .age, they might agree-to sell it by an auctioneer, or an attorney in fact. We ■might in that case, refuse to accept a sale of real estate, until the auctioneer or attorney in fact was shown to be authorised in writing, by all the parties in interest to sell; until a good title be made out to us; until, in fine, such title be tendered to us in writing. C. C. 2584, 2255, Freret v. Meux, above cited. ■Not being of age, they can sell only through legal representatives and with legal ■formalities. What should forbid us in this case, to examine the qualifications of those soi-ifearci legal representatives, and the reality of the alleged authorisation ? Ours is not the case of a purchaser who has accepted a deed and taken possession of the property, and is trying-to see how long he can enjoy it without paying the price ; so that art. 2535 does not apply to us. Pontcharlrain Ii. R. ■Company v. Dwell, 6 La. 485. Freret v. Meux, above cited. We have not taken possession of the property, because we believed that the judgment and sale conveyed to us no title. The tender of title in the rule, by the minor plaintiffs in the rule, can add nothing to the previous formalities. If the judgment and public sale have divested the minors Molinari of their rights, and transferred them to us, we are willing and ready to pay the price.

      Collens, for the plaintiffs, and Pecquet, for the tutrix, in reply.

      Mrs. Fernandez never claimed the dative tutorship providedfor by art. 272. She preferred to surrender the tutorship; and, at her own request, ,a dative tutor was appointed in her place; but after the death of her second husband, her incapacity to hold the tutorship, by natural right, having ceased, she prayed for and obtained the natural tutorship provided for by art. 268. Art 272 is intended as a protection against the second husband. The mother cannot be suspected of any such bias,all the children are her’s, and she must feel for them equal solicitude. Luring the second marriage, she might yield a great deal to the ■influence of her husband; but after his death she occupies in the eye of the law the same position with regard to all her children. Theie being, after the death of the second husband, no existing legal cause of exclusion, article •288 could no longer apply. If, after the death of the second husband, Mrs. Fernandez had a right to the natural tutorship, no family meeting was necessary, though indeed one was held, and it advised her appointment. She was “of ■right” entitled to the tutorship, it being then, vacant. C. -C. 265, 268. No cause of exclusion could be urged against her ; no other person could claim a preference. The circumstance requiring the call for a family meeting, provided for by arts. 272 of the C. C., and C. P. 951, could not apply to the widow; for. at the time, there was no marriage existing or intended. She was not therefore required to give security. C. G. 269, 330.
    The cases of Mossy, 3 Rob. 390, and Robinsonv. Weeks, 5 Mart. N. S. 379, do not apply. In those cases, the second husband was living.
    JBoileux, in his “ Commentnire sur le Code Civil,” under art. 395, C. N., says: “ A la mort du deuxieme mari, la mére qui n’a pas été maintenu, recouvre-t-elle la tutelle? Nous le pensons : cessante causa, cessat effectus.”

    Letters of tutorship are mere certificates of the fact of appointment or confirmation ; and their existence or non-existence cannot disturb the legal character and validity of the appointment by the judge. It is .the confirmation duly made, followed by the oath required by law, which invests the natural tutor or tutrix with his or her official charge and responsibility. The assumption that, jf j\qrs, Fernandez gives no other security than the tacit mortgage, Paul Molinari’s mortgage must be necessarily inferior to that of the minors Fernandez, .as being of subsequent date, is an error, for the confirmation” as natural tutrix must date, in relation to the children of both marriages, back to the time when the tutorship was actually assumed, or was vested by law, to wit, to the date of the death,of the second husband. C. C. 268. But if it were not so, in all cases of this kind the minors of the first bed, for all acts of administration previous to the mother’s ro-appointment, are always fully secured, either upon tho estate of the second husband {C. C. 272), or by the bond of a dative tutor (C. C. 330), and in this case, Paul Molinari has both guarantees.
    The appellant relies on articles 1235,1236,376, 377 of the Civil Code, to sustain his second position. These articles do not apply to the caso, but are intended to govern minors emancipated otherwise than by marriage^ The minor wife had a right to sue for a partition, and no curator was required to assist her. Her husband was the proper person to authorise and assist her. A suit for a partition cannot be viewed as a voluntary alienation, to which the prohibitions of arts. 375, 377 apply, nor does art. 1236 apply as to the mode of authorisation, to the minor wife emancipated by marriage. Her curator is her husband. C. ■Code, 378,123 et seq., and 1779. Code P. 106, 107. Art. 1239 of the Civil Code is conclusive in our favor; jt admits of no distinction between the minor ■wife, and the wife of age. The right to sue, in a case like this, is clearly es„ lablished in tho case of Hooka v. Hooke, 6 La. 472. Art. 1240 declares that ■the husband can, with the concurrence of his wife, sue for the partition of im* movable property. See also arts. 368 of the Civil Code ; and art. .999 of the C. P. and amendment thereto. Bullard & Curry, p. 154, sec. 14. The word f‘ even” in this amendment makes the rule general. As to the alienation, if it can be so called, by means of the partition. — it is clear that it can he made by minors. Civil Code, 1235, 1236, 1237, 1238, 1239 and 1240. C. P. 1023. In 14 La. p. 22, it is decided that a licitation to effect a partition is not a sale as between the heirs, and does not change the .character of the thing to be dL vided.
    This suit is instituted by two persons: 1st, a minor husband; and '2d, a minor wife, assisted by her husband, who is of age. Admitting,the defendant in the rule to be correct, in drawing a distinction between these two, as to their right of demanding a partition, still, it being adinitted that the minor husband had that right, under art. 368 of the Civil Code, the judgment ordering the partition is valid, for it could have been rendered upon the petition of tho minor husband alone.
    I he authorisation of the judge, if required at all, in relation to minors emancipated by marriage, is necessarily inyolved in the judgment rendered, decree-, ing the partition.
    It is contended that there should have been an inventory preceding the sale ■or partition. Arts. 1246, 1247 and 1248, are quoted. These articles .can apply only to cases where the partition is to be made in kind. The use to be made of the inventory is shown by articles 1278, et seq. Its object is also to enable the notary to make the collations between the heirs, and this is expressly excluded from such a case as tho one before the court, by art. 1304 of the Civil ■Code. This is a licitation; and the rules applicable to jt are entirely different. In Imitations the judge “orders a sale at public auction,” in which case an inventory is perfectly useless. Cessante rations legis, cessat ipsa lex. Of what use could the inventory be ? Why take an inventory of a single town lot, fully described in the petition and judgment, and ordered to be sold for .cash, when the proceeds aro to be distributed equally among the heirs, without collation 1 ltwould have been a work of entire supererogation. Even an appraisement, in cases pf licitation, pan have no effect. Jacobs v. Lewis, 8 La, 179. Foidev, Weekes, 7 La. 312. Civil C.odo 339, 1863.
    Even did the technical informalities spoken of exist, the minor is bound, and pould not disturb tho purchaser. Michel v. Michel, 11 La. 154. Lallane v, Moreau, 13 La. 433. Tolmie v. Thompson, 2 Pet. 106. The purchaser can-pot refuse to take the property and pay the price. The sale was a judicial one. In judicial sales the purchaser cannot withold the price, unless he is disturbed in his possession. Abat v. Pallet, 3 Mart. N. S. 220. iStille v, Prou-nson, 5 Ib. N. S. 47. Foster v. Murphy, 5 Ib. N. S. 82. Collins v. Daly, 4 Rob. 113. Freret v. Meux, 9 Rob. 4Í6. See also C. P. 710 and 711. It is true that in judicial sales, made to effect partitions, the rules of warranty are different from those of sales made under Ji. ja.; but all judicial sales possess in common this feature, that the adjudication is a complete title to the purchaser. Civil Code, arts. 2594, 2598, 2601. See also C. C. 2535 fit s,eq.

   The judgment of the court was pronounced by

Rost, J.

The defendant has appealed from a judgment condemning him to comply with the terms of an adjudication of real estate, and prays for its reversal, on the following grounds •:

1st. The property was sold under a decree rendered in an action of partition, which had been instituted by two of the heirs against their mother, as tutrix of the other heir. The plaintiffs were both minors, and, although married, it is alleged they could not sue for a partition of real estate, without the authorisation of the judge, given on the advice .of a family meeting.

2d. The mother of the defendant had lost the natural tutorship, by marrying without having been legally authorised to retain it, and another tutor had been .appointed. This tutor, and the second husband, both died ; a family meeting advised that the mother should be re-appointed tutrix,and she was so appointed, bu.t did not give bond. The appellant contends that she could pot act until that formality was complied with, and that she did not represent the minor in this suit.

3d. It is further alleged that the appraisement made before the safe, is not .such as tho law requires in cases of partition.

Art, 368 of the Civil Code is an innovation on the former laws on the same subject. It athorises the husband under age to appear in court in all cases, and was .intended as an exception to the dispositions of arts. 1235, 1236, 376, 377 of the Civil Code, relied on by the defendant. Those dispositions apply now to cases of ordinary emancipation only. The amendment to ait. 999 of the Code of Practice, found in the 22d sec. of the act of 1828, amending various articles .of the Codes, gives .a similar power to tho wife under age, proyid.ed she be .authorised by her husband. Session Acts, p. 154.

The rule that all persons except the father and mother shall be bound to give bond before they can a.ct as tutors, is general in jts terms, and there is no warrant of Jaw for making a distinction in cases like the present. Under art. 950 of the Code of Practice, the judge was .authorised to appoint the defendant tutrix, without the advice of a family meeting; the circumstance that she submitted her application to them, and was decreed worthy of the trust, cannot impose additional burthens upon her-

The appraisement made before tho sale was in the usual mode in cases of seizures under execution, and satisfies the requisitions of tho law. When a li,citation takes pla.ee, there is no notary designated before whom the inventory .and appraisement can be made. Those formalitios only take place in partitions jn kind.

There is no error in the judgment appealed from.

Judgment affirmed.


text:
    Ledoux et al. v. Anderson et al.
    Where a'factores notified that cotton consigned to him by a third person, was made on plain, tiffs’ plantation and belongs to them, and is direoted not t.o pay over the proceeds without the.ir.consent, ,tl>e notice will render the factor liable for any subsequent payment made to ■the consignor, not depending on a superior right. Art. 2926 of the Civil Code is inapplicable to the liability of factors receiving goods for sale. Their liability is fixed by commercial usage.
    APPEAL from the Commercial Court of New Orleans, Watts, J".

      Wharton, for the .appellants, Benjamin and Micou, for the defendants.
   The judgment of the court was pronounced by

Rost, J.

This is an action for the proceeds of several parcels.of cotton, shipped to the defendants,, as factors, under the following circumstances : The plaintiffs purchased a plantation, with a .crop ,of .cotton then hanging by the roots upon it. Certain articles of agreement were subsequently reduced to writing, by which J. A. Cotton, the former owner of the land, was to gather the crop and prepare it for market with his hands, and ship it to M. D. Cooper dj- Co., factors, in New Orleans, for sale ; o.ut of the proceeds, the plaintiffs were to recoive $5,000, and afterwards to convey the land back to him, on the conditions agreed on between them. This agreement p.eyer was signed by the parties. Colton gathered the crop with his hands, and shipped 104 bales of it .to the defendants, at different times. The plaintiffs having been apprised of these shipments, notified the defendants not to dispose of the proceeds without their concurrence, as the cotton came from their plantation in West Feliciana, and had been shipped to them by Cotton, without authority. They stated, at the same time, that they did not object to the defendants, as factors. The defendants, after being thus notified^ made .adyances to J. A. Cotton, to the amount of $981 2.8, and were authorised by him to pay over to the plaintiffs th.e balance in their hands.. The plaintiffs obtained a judgment for that balance in.the .court below, apd being dissatisfied with it they appealed.

It is unnecessary to determine whether parol evidence was properly received in support of any part of an agreement contemplating a transfer of real estate. The shipments made by Cotton to the defendants, in ljis own naipe, were a direct violation of hjs contract, and he cannot claim their proceeds under it. We cannot consider him as a partner. The light most favorable to the defendants in which he can be viewed is, that of agent of the plaintiffs; and there cap be no doubt of the legal right of the latter to intercept the funds in the hands of the defendants, by giving them notice not to pay them over to him. That no,tice renders them liable for any subsequent payment made to the agent, and not depending on a superior right. Story on Agency, §429. In cases of ordinary deposit, where the thing deposited is to be returned, art. 2926 of the Civil Code requires the depositary to return the deposit in all cases, unless it is arrested in hands by legal process, at the suit of a third person. The decision in the case of Oneto v. Delaunay, 6 La. 32, was made upon that .article, and is inapplicable to the liability of factors receiving goods for sale. That liability is fixed by coni*' xnercial usage.

The defendants must account to the plaintiffs for the amount of the advances made by them to Cotton, after they were notified.

It is, therefore, ordered, that the judgment in this case be'reversed, and that there be judgment in favor of the plaintiffs, and against the defendants, for §¡1,682 20, with interest at the rate of five per cent per annum, from the 4th January, 1845, till paid, and costs in both courts-.


text:
    Perret v. Sauvinet.
    A consignee -will not be liable for the freight of property which Was never delivered’ to' him',where it is not shown that he ever accepted the consignment, or authorised tho entry of the property at the custom-house by the consignor, wlio took possession of it-
    Appeal from- the Parish Court of New Orleans, Maurian, J.

      Eyma, for the appellant,
    cited Lex Mercatoria Americana, p.- 204-.- Trust-v. Duvall, 4 Wash. O. G. R. 181. 2 Peters’ Dig. p. 375, no. 36. Blagg v.Phcenix Ins. Co., 3 Wash. G. C. R. 5. 1 Peters’ Dig. p. 365, no.- 3.

      Marsondel, for the defendant.
   The' judgment of the court was pronounced by

Rost, J.

The plaintiff claims from the defendant the freightof 805hampers' of potatoes, shipped in Havre on board of the Austerlitz, by one RacineDelay, and consigned to the'defendant. Delay came to this city on board of that ship, and through some irregularity in the custom-house, was permitted to make the entry1 in his own name, and take possession of the p’ofatoos, which were delivered to Mm by the officers of the ship. It is not shown that the defendant took any any part in the entry of the goods, nor that he was at all aware of the’ consignment,- unbilled upon to pay the freight. The court below, considering that the plaintiff had failed to make out his case, gave judgment against him, and he appealed.

There is no error in the judgment. Iti's true, as contended by the appellant, that the consignee on a bill of lading is bound to pay the' freight, unless the consignor has bound himself to do so by the charter party. But it is equally time that the person designated in the bill of lading, as the consignee, does not in reality become so, till after the goods are delivered to him. The facts that the consignment in this case was accepted by the defendant, and the entry made by his authorisation, not being brought home to him, ho is not bound for the freight. Judgment affirmed.


author: Slidell, J.

text:
    Weld et al. v. Shaw et al.
    Where the bills of sale for a crop are made out in the name of the factor, and the receipts oj payment are sign'ed by him, he will be liable personally to the purchaser for any deficiency in the quantity actually delivered, though the purchaser lmew, at the time of the sale, that the party from whom he bought was acting as agent.
    Where money has been paid to afactorfor the use of his principal, to whieh it is afterwards discovered that the latter is not entitled, the factor will be liable to’ an action at the suit of the person from whomrihe received it, unless ho has, before action brought, actually paid over the amount to his principal, or dono something equivalent thereto. The mere passing of the money to the credit of the principal outlie factor's books, will not exonerate the latter from liability.
    APPEAL by the defendants^from a judgment of the Commercial Court of New Orleans, Watts, J,

      G. R. Duncan, for the plaintiffs,
    cited Story on Agency, 266-9. 2 Kent, pp. ©9-30,8.41.

      C. M. Randall, for the appellants',,
    contended that they are not liable, having acted as agents, and their principal having been made known to plaintiffs. C. C. 2981, 298’2. Zacharie\. Nash, 13 La. 21. Hazard- v. Lambeth, 3 Rob. 378. Story on Agency, § 263. Plaintiffs contracted with the principal,- defendants being only agents for the delivery of his crop.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiffs seek to recover from the defendants damages, for the alleged violation of a contract respecting céítíSin sugar and molasses, produced on the plantation of Nolan, a planter in this State, and also to get back certain alleged over payments. The claim consists of three items, to Wit: the value of one hogshead not delivered ; the difference between the quantity of molasses charged and that actually received; and the loss of profits by the nondelivery of twenty hogsheads of sugar, alleged to have formed part of the lot sold, but which, it is contended by the defendants, was not included in the sale.

The question to be considered, before examining the items in detail, is, whether the action is properly brought against Shaw' Sf Co., or whether, as they' contend, Noltín is alone liable.

The material facts affecting the general question are, that the plaintiffs had sent their agent into the country to visit sugar estates and make bargains for crops. This agent went, in March, f84’5, to the plantation of Nolan, examined a portion of his crop, and made an offer for it.- No bargain was made, but Nolan told him Shaw Sf Co. were his agents. The Witness returned and reported to the plaintiffs, who went to Shaw Sf Co. and made a contract with them foi*' the sugar and molasses at Nolan’s plantation. It was agreed that the sugar should be weighed at the plantation, on the 10th April, 1845; and the molassesguaged at the same time. The sugar, after being weighed,- Was to remain on-the plantation, if the purchasers chose, but at their own risk. No precise- quantity of sugar and molasses was stipulated! Early in April the plaintiffs’ agent went with Shaw, and a weigher employed by the plaintiffs, to Nolan’s plantation. One hundred and seventy hogsheads were weighed, and a portion of the molasses barrels wore guaged, by Nolan’s nephew, in the presence of the weigheiv who had been requested by the plaintiffs to supervise the guaging. After the-agent and Shaw returned to the city, Shaw Sf Co. gave the' plaintiffs a written-order on Nolan for the sugar and molasses, on the 10th April, 1845. Upo» this order the plaintiffs received-_ the principal part of the- molasses soon after-wards, and the residue, with the sugar, in August following. The bills of these-sales were made out as “bought oí John R. Shaw Sf Co.,” and the receipts of’ payment were signed in the same way. In these bills and receipts Nolan is-not named as principal, and the only way in which his name is mentioned is, that the sugar and molasses is stated as being on his plantation. The payment foi''270 hogsheads of sugar was made to Shaw Sf Co., on the 10th April, 1845; and moneys were paid from time to time to them, in like manner, on account of the molasses; the principal payment being made on the 10th April.

Under this state of facts we consider Shaw Sf Co. as personally liable to the plaintiffs. By giving the invoices and receipts in their own name, and as for goods bought of themselves, they are precluded from sheltering themselves under the plea of agency, although it was known at the time to Weld Sf 'Co. that they were Nolan’s factors; See the case of Jones v. Littledale, 6 Adolphus and Ellis, 482. Hastings v. Lovering, 2 Pickering, 221. Besides, if there could* be a question as to the personal liability created by these acts, there is anothei1' well settled principle which the plaintiff has a right to invoke. Where money has been paid to a factor for the use of the principal, to which the latter is discovered afterwards not to' be entitled, the factor will be liable to an action at the suit of the person from whom he received such money, as for money had and received to his use, unless he has, before action brought, actually paid over' the money to his principal, or done something which is equivalent; thereto. See Buller v. Harrison, Cowper, 566, and the cases' citod in Russell on Brokers and Factors, 565. Nor is the Case" altered by the fact, fhat the money has' merely been passed to the credit of the principal on the’ agents’ books. Now, in the present case, the defendants appear to' have had notice of the plaintiffs’ claims' before the institution of this suit. The puit was brought on the 21'st November, 1845, the accounts of defendants with the planter had been settled on the 20 th November, by striking abalance; but it was in Nolan’s favor for $1,000, being more than the whole amount claimed by plaintiffs1; and so the balance appears-to have stood, when the defendants were cited.

As to the items of plaintiffs’ claim, we think the defendants are’ clearly bound1 to refund the value of one hogshead of sugar'. Their invoice was for 270 hogsheads sold, and for this they wero paid in full, on the 10'th April, 1845; and they' gave the plaintiffs- an order on Nolan for 270 hogsheads. Only 260 hogsheads' Were really delivered. Under the agreement, the plaintiffs had a right to leave' the sugar on Nolan’s plantation until August. It is’ true, it was Weighed in April, and was from- that time to be’ at the plaintiffs’ risk. If it had been destroyed by a fortuitous event, the loss would have been the plaintiffs’; but as the lion-delivery of this hogshead is wholly unaccounted for, the' defendants are' liable.

We are satisfied also that there Was a short delivery of the'molasses, and' for' this item also judgment was correctly rendered by the court below.

As to the other item, the difference in price- of 20' hogsheads, being the’ alleged residue of Nolan’s crop, for the whole'of which the plaintiffs say they contracted, we do not think the case made out against Shaw SfCo. It appears that, besides tho 27Ó hogsheads which Nolan had in the purgeries, and which wore exhibited to plaintiffs’ agent, at his first visit, there were twenty hogsheads in another building; it is left doubtful, under thé téstirho'ny, whethor'this was comprehended in the contract. We have hold Shaw 4* Co. liable, because they made out the invoices and other vouchers in their own name as vendors. They never made out invoices, receipts, or orders, for more than 270'hogsheads ; and there is nothing in the evidence to show that they were aware that the plaintiffs looked to them, or even to Nolan, at the'time, for more than that number. The claim for damages on that score, if it exists, must be litigated with Nolan. Even if the present suit Were against him, as the evidence stands, it' is not clear that the plaintiffs could be considered as having made out that part of the case.

ft is therefore decreed that the judgment ef the court below be reversed, and that the plaintiffs recover of the defendants the sum of $168 28, with interest from the 22d November, 1845, and costs in the court below; the plaintiffs' paying the costs of-this appeal;


author: Eusyis, C. J.

text:
    Dupuy, Curator, v. Hunt et al.
    One wlio WaS tf'cause1 of action against-an-absentee, cannot'bring him before Cur'courts'by merely causing a curator to be appointed to represent him. Conceding that article 57 of the" Civil Code, under the term- absentee, applies to persons who have never resided in the State,it-presupposes that the absentee has property in the State, or that an action has been-instituted against him. If an absentee leave his property without an administrator or agent! if it be attached at the suit of a creditor, or if the absentee become a necessary party to an> action between-other persons lawfully, in court,-a curatbr may he appointed to represent' him. Art. 57 of the Civil- Code is not changed - by art; 116 of the Code of' Practice. The' articles of the Code of P-ractice concerning the appointment of curators presuppose something upon which the jurisdiction of-the court Can properly be based. Arts. 194, 19'5, 924,-963,964, ofthat Code must be talcen-together, and-be construed with reference to; and in-furtherance of, the provisions of the Civil Code.
    Decision in the case of Dupuy, Curator, v. Bemiss,<mte$. 509/ affirmed.'-
    APPEAL from the First'District-Court of New Orleans, BucKatian, L- The' facts of-this case are stated in the opinion of the court, infra, and in-that1 pronounced in the case of Dupuy, Curator, v. Bemiss,-ante p. 509;

      Dunlap, Prentiss and Finney, for the appellant.-
    The Circuit Court'of the-United States has no jurisdiction to order the sale of the property of a succession, while subject to the jurisdiction of the Probate Court, and in the due-' course of administration, in the hands of its officer, the curator. 6 Rob. 230; Lowry, Curator, v. Erwin, 9 Rob; 254. G. C. 1105. C. P. 924, ss. 9, 13,-Elliott v. Peursoll et al., 1 Peters, 340. Thompson v. Tolmie, 2 Peters, 169. Schroeder’s- Syndics- v. Nicholson, 2 La. 355; 4‘Tb. 83. All the cases cited by the defendantsare from common lawStates, where the'administrator is seized' of the goods of the estate, and is, by law, capable of standing in judgment in any' court of general jurisdiction.- 2 Blackstone’s Comm. 126,' 410, 426.' He can be' sued in any of the State courts, and therefore is amenable to the'federal tribunals. Tho only question which has ever arisen in the federal courts, in regard1 to jurisdiction over administrators, has been inn-elation to their citizenship, not" as to their capacity to stand in judgment and execution. In this State, curators" do not occupy the position of- administrators at common law; they do not hold1 the goods of the intestate in full and absolute property, but only sub modo, as-1 agents and officers of the Probate Court, to whom alone, by the very law of-their" creation, they are responsible for suehgoods. The State courts of- general jurisdiction cannot seize and sell the property of a succession, in - due course of-’ administration.-
    The federal courts come into the State to administer its laws ; they aro, pro-' hacvice, State oourts. It is true, they are not subjected tb the modes of procedure imposed upon-the State tribunals : but, so far as the rights and qualities-of property are concerned, they act wholly- under the State laws. If, by the" State law; any particular species of property is exempted from execution, could the federal-courts execute their judgments upon such property ?
    The State law creates a certain court, giving it exclusive jurisdiction and control over vacant successions, and authorises it to appoint a certain officer, who-shall be accountable to it alone, for the goods of a succession placed in his hands by the court. This curator has no seizin or absolute title in the goods of the succession ; he has only the charge of them ; he is the mere officer of the Pro-, bate Court, and by the law of his creation, accountable to it alone. The federal .court, by pretending to assume jurisdiction over him, cannot increase either his power or his liability. He is a State officer, .accountable to a particular State tribunal, for the property entrusted to his .charge. In no other State tribunal .can he stand in judgment, so as to render the goods of the succession in his hands subject to an execution, even though he permit a judgment to go against ¡him in such tribunal. Such judgment might bind him personally, but could not be executed against the goods placed in his.custody by the ¡Probate Court, where .the succession ¡was opened, and from .which he derived his authority.
    But, it is said, if the federal court had power to render judgment, it had, ¡necessarily, thepower to .execute it. That, as a general rule, ¡we admit; but ¡there are exceptions to it. The judgment of a federal court cannot be executed .on property already seized by the sheriff, under process .from a State tribunal. This has been expressly decided, in the case of Hagan v. .Lucas, :10 Peters, .400. Again: a judgment cannot be executed on property not subject, by law, .to execution. .Suppose.the legislature of this State should change .entirely the ¡the character of immovable property, and subject it -to entallment. No one ¡will pretend that, upon a judgment rendered after the passage of such a law, immovable property could be seized and sold under execution, either from the ■federal or any other-court. If, then, .the State-law can .exempt property from -execution intoto; a fortiori, the same power can exempt it .during the period of .its administration, and while in the.-custody of-the Jaw.
    If the United States Circuit Court was without jurisdiction, either ratione persona.ox ratione.materia, the decree ordering the sale of the slaves in controfversy .was .a nullity, not only voidable, but wholly -void. .See authorities cited before. If the order, or decree, directing the sale, was not merely en-o¡neous, but absolutely .void, it follows that the sale made by virtue of said order nr decree was equally null and void. 1 Pet. 340. 2 Howard’s U. S. Rep. 43. 3 Mart. N. S.,1. 8 Ib. N. S. 1.76.

      Grymes, for the defendants,
    .contended that the Circuit Court.of the United .-States had jurisdiction, and that its judgment was conclusive, .citing ¡Const. U. ;S. art. 3, sec. 2. Act of Cong, of 1789. Gordon’s Dig. 149, no..575. 5 Gond. Rep. 542. 4 Dallas, 12. 1 Cond. Rep. 210. 3 Wheaton, 212. 4 lb. 108. ¡8 lb. 642. 10 lb. 152. 1 Peters, 623. 6 lb. 291. 14 lb. 72. 1 Kent’s Com. 395, 342, 348.
   The judgment of the court was .pronounced-by

Eusyis, C. J.

This suit was instituted for the recovery of certain slaves alleged to belong to .the succession of Claudius Gibson, and for damages for their .qaption and detention. William Hunt and A.S. Robertson are made defendants, .and the sum of four thousand dollars is sought.to be recovered from them, in .solido, being the alleged value of the hire of the slaves, since March 26th, 1842, the time of the taking possession of .the slaves by the defendants. Judgment is prayed for against Hunt for the slaves, which are alleged to be .in his possession, or their value, the sum of $7,000. Hunt resided in the State of Mississippi. No service of the petition or citation was made on him, nor were the •slaves in dispute, or any other property of his, reached by the process of the court. By a supplemental petition judgment was prayed for against Robertson, for the value of the slaves, and also the appointment of a curator ad hoc to represent William Hunt. Process was served on ihe .attorney appointed .curator ad hoc, who, in his capacity as curator only, appeared, and prayed .that the suit might might be transferred to the Circuit Court of the United States for this .district, Hunt heing a citizen and resident.of Mississippi. It was objected to .this application .that, the removal of the .cause .could not be ordered at the instance of a curator ad hoc merely; and the application was disallowed.

The curator ad hoc then pleaded formally to .the jurisdiction of the court, neither the person nor property of Hunt having been reached by the process of the court, he being a citizen and inhabitant of Mississippi, and having had no residence or domicil in Louisiana. This plea was overruled, and .the questions involved in it have been argued .on the .appeal.

It is to be observed that, in order to insure to the plaintiff the full benefit of ¡hik claims .against the defendant Robertson, there is no necessity of making Hunt a party to this suit. The action against Robertson is simple, .and it can •have its lawful effect without making Hunt a party, .and the question presented is, as to the power of the cour.t to bring Hunt before it, for the purpos.e of judg,ment against him, under the appointment of a curator ad hoc. There was judgment for the defendants on the merits, and the plaintiff has appealed. We have stated the matters involved in the plea to the jurisdiction of the court made in the interest of Hunt, for the purpose of having it understood that we cannot assent to the correctness .of the opinion of the judge of the District Court in overruling it, and in order that our assent might not be implied from our silence in regard to this point, which the .conclusions .to which we .haye come on tlye merifs do not render it necessary to determine.

Wo have not been successful in finding any enactment of the legislature, or any recognised principle of law, which authorizes a plaintiff who has a cause of action against an absentee, to bring him before our courts by causing a curator to be appointed to represent him.

Conceding that article 57 of the Code, under the term absentee, applies to persons who have never resided in the State, that article presupposes that the absentee has property in the State, which of itself would give a court jurisdiction, or that a suit be instituted against him. In our opinion it only authorises the appointment .of a curator in suits which may lawfully be instituted against the absentee, and which are pending befor.e th.e judge who is called upon to m.ake 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 ah administrator or agent, if it be attached at the suit of a creditor, or if an abr sentee becomes a necessary party to a suit between other persons lawfully in court, in the furtherance of justice the law authorises a curator to be appointed to represent him. 7'h81'e is then something on which the jurisdiction of the court is based, and the judgment rendered would be within the recognised and ordinary prerogatives of the judicial power. But that a court in Louisiana should render a judgment against a citizen of London or ofNew York, who had never set his foot in the State, nor had property within it, and w.as entirely unconnected with any pending or possible litigation, and on a simple matter between .himself and his creditor, appears to us in conflict with all sound views of .the administration of justice. What effect would be giyen to a judgment rendered in such a case, in other courts of the Union ? Can we expect that other States will recognise for an instant an infringement on the exclusive jurisdiction and right of protection, which they have over their oyvn citizens and property within their own limits ? Noy do we thin)t that the intendment of article ,57 of the Cqdo is changed by article 116 of the Code of Practice. The several articles of thay Codo concerning the appointment of curators to persons presuppose something qpon which the jurisdiction of the court can properly be based. C. P, .arts. 194,195,924, 963, 964. They must all be taken together, and con-, ptrued with reference to, and in furtherance of the provisions of, the Civil Code, and notas creating what would be an anomaly in legislation.

We think th.e plea to the jurisdiction of the court, made by the curator of JVilliam Hunt, ought to have been sustained.

Robertson justifies his acts complained of in the plaintiff’s petition, as done by fjim as marshal of the United States, under certain orders and de.cr.ees of the Circuit Court of tho United States, for tho fifth judicial circuit and district of Louisiana, which he was bound to execute.

The material facts of the case are stated in the opinion of the court recently delivered in the case of the present plaintiff against John B. Bemiss, ante p. 509. ;In the present case we have not beforo us in evidence the whole record of the proceedings of the Circuit Court of the United States. The cause of action against Robertson is fixed in the petition as having taken place on or about the 26th of May, 1842, and consisted in his, Robertson’s, wrongfully and illegally taking possession of the slaves, and delivering them to Hunt, and-the testimony is confined to the sale of the slaves of that date.

We have before us the petition and order of seizure and sale in the case of Tobias Gibson v. Davis, Curator, of date the 2d Dec. 1841; the bill of William Hunt against the same party, and the service of the subpama on the curator, on the 17th of February, 1842 ; the order of sale of the 19th of February, 1842, and the return showing the manner in which it was executed; and the final decree rendered in favor of Hunt against the curator. It is therefore obvious, on the principles we have settled in the opinion we gave in Bemiss’ case, that the plaintiff, curator of the estate of Claudius Gibson, has no recourse in damages against the officer executing the decree of the Court of the United States sitting in Chancery, under the very imperfect state of the records on which the defence is presented to us.

The judgment in favor of Robertson, appealed from, is therefore affirmed, pvith costs in both courts; and tho suit against Jlunt is dismissed, at the costs of ¿lie plaintiff.


author: King, J.

text:
    Sturges v. Kendall.
    '¿lie forbearance of a plaintiff by whom an action had been commenced by attachment, in which certain persons were made garnishees, to obtain a judgment against tho latter at the same time that judgment was rendered against the defendant, is no waiver of his right to proceed against them at a future day.
    Where garnishees are cited to answer interrogatories within a certain time, their neglect to answer is considered to be a confession that they have in their bands property belonging to the debtor to the amount stated in the interrogatories ; and this confession authorises a judgment against them without tlie formality of a default; nor are they entitled to any notice of tho plaintiff’s intention to render them liable, upon the confession which the law infers from their silence. C. P. 353.
    Thenegleetof garnishees to answer interrogatories can be considered as a confession of having in their hands property of the defendant, only to the amount of the debt mentioned in the interrogatories.
    Appeal from the Fifth District Court of New Orleans, Buchanan, J.

      Singleton, for the plaintiff,
    cited Parmley v. Bradbury, 13 La. 353. 16 La. ,525. C. P. 243, 312.

      Benjamin and Micou, for the appellants. No counsel .appeared for the defendant.
   The judgment of the court was pronounced by

King, J.

The plaintiff commenced this action by an attachment, and made the appellants, Follain and Bcllocq,, parties as garnishees. To the latter interrogatories were propounded, which have not been answered. A judgment was ijrst .obtained against the defendant, and after a return of nulla bona on the execution which issued thereon, the plaintiff caused the interrogatories propounded ,to the garnishees to be taken for confessed; whereupon a judgment was rendered against the latter, fro.m which they have appealed.

The appellants contend .that, there is no evidence in the record .that the interrogatories were served upon them ; that no judgment having be,en rendered against them when a judgment was taken against the defendant, recourse against them was abandoned ; that judgment was rendered against the garnishees without a previous default having been taken against them, or a rule upon them to show .cause ; that the ¡affidavit for the attachment ..claims only $300 to be due by the defendant, whereas a judgment has been rendered against the garnishees for a larger sum.

I. The plaintiff prays that the garnishees be made parties and required to answer interrogatories, which he states are appended to his petition. Annexed to the petition, and apparently upon the name sheet of paper, are two interrogatories addressed to the appellants, at the foot of which is an .order that they be answered. There is but one filing of the petition, interrogatories, and order, the whole having been treated by the .clerk in this respect .as one document. The citation directed to the garnishees, requires them “ to answer in writing, under oath, the interrogatories annexed to the petition, of which a .copy accompanies the citation,” &e. The sheriff’s return js., .that he served a .copy of the petition and citation on Messrs,. Follain and Bellocq, &c. We think this evidence establishes, with sufficient clearness, that the interrogatories were considered as forming a part of the petition, and that they were copied .and served as a part of it.

II. The forbearance of the plaintiff from taking a judgment against the garnishees, at the time that judgment was rendered against the defendant, was no waiver of his right to proceed at a future day against the former. A judgment is not required by the Code.of Practice to be rendered at the same time against the defendant and garnishees, and it is by no means unusual to take separate judgments, at different times, against such parties.

III. The garnishees were .cited to answer the interrogatories within ten days from the service. Tfieir negleet to answer is considered as a confession that they had property of the debtor in their hands, to the amount stated in the interrogatories, and this legal confession authorised a judgment to be rendered against them without the formal entry of a default. They were entitled to no notice of the plaintiff’s intention to render them liable, upon the confession which the law inferred from their silen.ee,. Code of Prac. 263. 13 La. 353.

IV. The affidavit on which the attachment was founded declared only $306 to be due by the defendant, and the interrogatories propounded to the appellants only enquire of them whether .they are indebted to .the defendant in that sum. The neglect to answer can only be considered .as a confession ,of an indebtedness to that amount. The judgment against them is for a larger sum with interest, and in that respect is erroneous. The judgment of the District Court is therefore reversed, and ours is in favor of the plaintiff and against the garnishees, Follain and Bollocq, for three hundred dollars ; the appellees paying the costs of this appeal.


text:
    Clements v. Cassily et al.
    Unifer íhc 5th seo. of flie stat. of 20 Mar’dlf, 1839, amending art. 243 of the Codo of Practice, if is' sufficient to authorise an attachment, that the creditor stibuldYweaf that he'verily believes that tiro debtor resides out of the State ; it is not necessary that he should-swear positively that lie does so.
    Appeal from the Coinin'ercial Court of New Orleans, Watts, J.

      Perin, for ¿he appellant. Conklin, for the défeflda'Ut's;
   The judgment' of the court Was pronounced 6y

Slidell, J.

The court below, upon a rule taken f>f flie d'éféud'ftUfsi dismiss-ed the attachment issued in tMs1 cause, because the plaintiff, in his affidavit, instead of swearing positively that the defendants resided out of the State¡-swore' that lie'Verily believed so. Such an affidavit Would have been defective under the Code of Practice,- but we' think is go'od Under the amendatory act of 1839' (p. 164), Which declares “ thaii the'article 243’of the said Code be so amended that, in lieu of tfi'e oath prescribed by said article, it shall be sufficient for the creditor to swear to the existence of the debt demanded by him, and that he Verily believes that the' debtor hals left the State' permanently, or that he resides1 out of the' State, or conceals himself, so that citation cannot be served on him.”' Under the' Code the'affidavit was required to be positive in these three cases;'- and as they are each enumerated in the amendment, die' sufficiency of an affidavit of belief cannot be reasonably restricted to one of the enumerated cases, Upon the ground of a distinction which the lawgiver has not thought proper'to Uiake, between those facts which may be affirmed with certainty, and those which, under ordinary circumstanbes, can only be the subject of belief.

The judgment of the court below is therefore reversed, and this cause is remanded for further proceedings according to laW; the defendants paying the costs of this appeal;


author: Ling, J.

text:
    Succession of McNeil.
    A judgment ibnof conclusive against persons, neither parties, nor privies to it.
    Sec. 7 of the stat. of Mississippi of 21 February, 1840, prohibiting any bank in that State from transferring “ by endorsement or otherwise; any note, bill receivable, or other evidence of debt,” cannot he considered as prohibiting a bank from collecting its dues, by accepting payment of a note due to it, after maturity, li-om- a third person, nor ds depriving the latter of tile right to be refunded the amount out of tlie succession of the maker.
    Appeal from the Court of Probates of Madison, PPoltines, J.

      Amonett, for the appellant. Snyder and Shannon, contri.

   The judgment of the court was pronounced by

Ling, J.

This is a- controversy between two parties, each of whom claims to be entitled to the pro rata dividend, declared, on a tableau of distribution of the succession of Alexander McNeil, deceased, to be applicable to a note' of which the deceased was the maker. It appears from the evidence that McNeil was the maker of a note for $16,216 66, secured by mortgage, which was endorsed by O. B. Cóbb, and discounted by the Commercial and Railroad Bank of Vicksburg, for the use of the latter. Erwin, being a creditor of the bank, instituted’ a suit against it in a court of this State by attachment, in which he made Lowry, the curator of McNeil, a garnishee, and attached in-his hands tlie’debt, of which-the note in question is the evidence. A judgment was recovered in that action against both the bank-and the garnishee for §6,000, with interest.- The curator subsequently presented a tableau of distribution of the funds of McNeil's succession, on which he placed Erwin as a creditor, for the amount of the judgment. Cobb opposed this part of the tableau, alleging that he was the owner of tlie note in question. Mrs. Cobb, who is separated in property from her husband, subsequently intervened- in the proceeding, and claimed for herself thS fro raía dividend applicable to this note, averring that it belonged to her. The probate' judge sustained her claim, and decreed to her the distributive share of McNeil’s succession- applicable to the note. From that judgment Erwin has appealed.

The evidence establishes clearly that, after the maturity of the note, it was-taken up with funds of Mrs. Cobb's, and for her benefit, by the husband, who-acted as her agent in the transaction.- But Enoin contends that his attachment-was prior to the acquisition of the note by Mrs. Cobb, and that his-judgment obtained in that proceeding determined his right as a creditor to be placed on the-tableau, and to be paid the amount of his claim, in preference to the intorvenor.He also contehds that, a statute of Mississippi forbids the banks of that State from-assigning their evidences of debt; that the intervenor acquired the note in contravention of'this prohibitive law'; and that her title to it is consequently void.Mrs. Cobb was not a party to the suit of Erwin against the bank, and the judgment which he obtained in that proceeding had not, as to her, the force of- the thing adjudged'. Although that judgment stood unréversed at the date of the trial below, it had not the effect of concluding her from contesting Erwin’s claims, nor from showing her ownership of tlie note,-and claiming the dividend ot McNeil's succession applicable'to it.

It has been suggested that, on an appeal to tlie Supreme Court, the judgment obtained by Erwiri was reversed, in consequence’of irregularities and defects in the proceedings. The cause had not been finally determined on the’ appeal, when the judgment in the present controversy was rendered ; and the decree of the Supreme Court is not in evidence before us,- but is reported in the 12th vol-. of-Robinson’s Reports, p. 227. Erwin consequently acquired no rights under his attachment. His claim rests upon a judgment which has been reversed, and it is difficult to perceive with’what object he prosecutes this appeal; for, although we are compelled, in the present state of the record, to reverse the judgment of the inferior court, it must be merely for the purpose of remanding' the cause to receive in evidence the decree of the Supreme Court, in the case of Erwin v. The Commercial and Railroad Bank of Vicksburg, which will destroy the foundation on which his claim against McNeil's succession is based.

An isolated section of the statute of Mississippi of 1840 is in evidence, which prohibits the banks of that State from transferring their notes, bill’s receivable, or other evidences of debt, by endorsement or otherwise. There is nothing, however, in the law before us, which forbids those institutions from collecting their dues; and a: prohibition so unreasonable is ñot to be presumed. In the present instance, the bank surrendered the note to one of the parties to it, who" paid its amount in full. As between the bank and that party, we presume that tlie transaction is valid and sanctioned by tho laws of Mississippi. The funds, however, used in making the payment, belonged to ¡1 third person, and to that person the benefit of the payment must result.

For the reasons assigned the judgment of the Probate Court is reversed, and the cause remanded for the purpose of enabling the opponent, Cobb, to offer in evidence the decree of the Supreme Court, in the case of James Erwin v. The Commercial and Railroad Bank of Vicksburg; the appellee paying the costs of this appeal.


text:
    Broughton v. King.
    After a jury lias been sworn, a continuance cannot be claimed by the counsel of a party, ofl the grouud of want of time to prepare himself to try the case.
    A judicial sale, made at the suit of a mortgage creditor,will not be treated as null for informalities anterior to the order of seizure, except in cases of an actual want of citation, nor for informalities posterior to it not involving the violation of a prohibitory law.
    Where a mortgage creditor proceeds by an order of seizure and sale, citation of the debtor' is unnecessary.
    Before the adoption of the Code of Practice, it was not necessary to take out an execution under an order of seizure. The sheriff served the order itself on the party in possession* Code of 1808, b. 3, tit. 19, art. 43.
    The provision of the constitution, art. C9, that all process shall be issued in the name of tbs State, is directory to those charged with the issuing of judicial process. It regulates a mere matter of style; and its non-observance in a judicial sale cannot affect the title of a purchaser.
    Judgments rendered in cases of attachment, where the defendant has not been cited and has not appeared, are in rem, and affectonly the property attached.
    Appeal from tlie District Court of Concordia, Curry, J.

      R. N., and A. N< Ogden, for the appellant Broughton.

    The defendant could not attack Broughton’s title, as he claimed under it. Trahan v. McManus, 2 La. 213. Bedford v. Urquhart, 8 La. 234. Grant v. Walden, 6 La. 627. A suit by attachment is a proceeding in rem, authorising only the sale of the property attached.

      Frost, for the appellant Presler,

    contended that the judgment against Presler, having been rendered without citation or appearance, was null, citing 5 Mart. 465. 1 Ib. N. S. 9. 6 Mart. 726. 8 lb. N. S. 145. 5 Ib. N. S. 656. 10 La. 338. 19 La. 215. 14 La. 35, 291. 16 La. 487. 2 Nutt&McC, 25. 6 Yerger, 522. 7 Howard, 99, 102, 128. 4 lb. 40.1. 20 Pick. 420. 4 Peters, 474. 1 lb. 340. 5 Howard, 517. 5 Wend. 175. 1 Smedes & Mar. 168. 19 Johns, 739. 6 Wheaton, 128. 8 Craneh, 21. 9 Pick, 259. 5 Rob. 418, 506. 7 Cow. 274. 5 lb. 524. IS, & M, C. R. 620. 6 Rob. 104.

      J. Dunlap, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

The defendant King is in actual possession of a tract of land granted by government to Joshua Presler in 1811, and claims title under a sheriff’s sale made in an attachment suit against Edward Broughton, who is alleged to have acquired the title of the grantee, under a judicial sale made at the suit of a mortgage creditor of the said grantee. Presler contends that the judgment and sale which are alleged to have divested him of his title are absolute nullities, and prays to be restored to the possession of the land, and quieted in his title. He also claims the rents and profits of the land. Broughton alieg.es that he has never been divested of his title, and that Presler has no claim. He prays that theknd be adjudged to him, and that he may recover the rents and profits from the defendant. The defendant denies the allegations of the two other parties ; avers that he, and those under whom he claims, have been in open, peaceable, and uninterrupted possession, under a just title, since 1823, and pleads the prescription of ten and twenty years. In case of eviotion he claims to be reimbursed-the value of- his improvements. By agreement of- parties, the questions in relation to the improvements, rents and profits, were reserved, and the question of title alone submitted to the decision of the court.

The claims of Presler and of Broughton formed the object of two separate suits, which have since been consolidated’. They were tiled together before a jury, who found in favor of the defendant, and the two other parties having failed in their attempt to set aside the verdict, have appealed from the judgment rendered thereon. The record contains-several bills of exception, which require but a-brief notice. The objection made to the juror, Forshey, is not supported by evidence ; and the court properly refused to continue the cause after the jury had been sworn. The questions of fact presented by the other bills of exception are nob material to the issue, and the questions of law reserved by them are properly before us for our decision on the merits.

In support'of the claim of Presler, Various informalities are alleged, By reason of which it- is contended that the order of seizure under which the other parties claim, and the sale which took place under it, are null and void. Under the views expressed by this court in the late case of Gibson et al. v. Foster et al., ante p. 503, it is unnecessary to notice particularly the informalities anterior to the order of seizure, except those relating to the want of citation, or such as Being posterior to i'tj do not carry with them the violation of a prohibitory law.

The defendant has shown an order of seizure directed to the sheriff by a court of competent jurisdiction, and the sale made under it at twelve-mouths’ credit, on the second exposure. He has also produced the execution and sale under the twelve-months’ bond. It is alleged that his title is void, because no writ of' execution under the first order of seizure has been produced, and also because that order was given without previous citation to Presler.

The law did not then, and does not now-, require a citation in such cases. Before the adoption of the Code of Practice, it was not necessary to take out an execution, under an order of seizure. The sheriff served the order itself on the party in possession, and proceeded under it. Old Code, p. 462, art. 43.

The constitutional provision that all process shall issue in the name of the State is directory to the functionaries entrusted with- the issuing of judicial process. Ife regulates a mere matter of style, and its non-observance in a sale made by the sheriff would not affect the title of the purchaser.

There are no other informalities alleged which can be deemed at all material. It is moreover in evidence that, before the purchase by Broughton, Presler occupied a house on the land in controversy, that Broughton went on the land at the time he acquired it, and that Presler continued to occupy the house as his tenant, paying him fifty cents a cord for the wood he cut upon the land. This arrangement continued from 1824, till some time in 1827, when the house was destroyed by fire, and Presler declined building another, on the ground that Broztghton would not compensate him for improvements. If a ratification Of the sale, and a voluntary execution of the order of seizure under] which it was made, were needed to support the title of Broughton, they would be found in those acts of Presler. He is undeniably divested of ‘his title.

Among the numerous informalities alleged by Broughton, in avoidance of the title of the defendant, it is shown that in the attachment-suit a tract of’land situated on Lake Bruin, and containing about eighth hundred arpents, was attached. This land is a different tract from the one sold to satisfy the judgment, and the point is expressly made that judgments rendered in cases of attachment, without the defendant having been personally cited, are purely ire rem, and have no legal effect whatever beyond the property attached. This question came before the former Supreme Court in the case of Hill & McGunnegle v. Bowman, 14 La. 445, and it was then held,-that proceedings by attachment are not only ire rem but also ire personam.

The earnest desire not to disturb rules of property established by the decisions of our predecessors, has induced us to retain this case under advisement during an unusual length of time. After mature deliberation, we are unable to concur in thatopinion. We do not believe, ns it is there stated,-that 'the legislature of Louisiana has considered all persons, whether-they were ever in this State or not, as amenable to our courts. Laws authorising judgments ire personam to .be rendered against absentees, without citation, notice, or appearance, in direct actions nominally instituted against them, are subversive of all ideas of justice and common right. The seizure and sale made under those judgments of any other property but that which may in certain cases have been attached, or in which other persons may have had an interest, are spoliations. We would, unhesitatingly, arrest the execution of judgments of that description rendered elsewhere, and refuse to listen to the argumentthat foreign laws had taken from us the power, which we hold under our own, to afford adequate protection to cur citizens. The rale which in such a case we would deem it our duty to enforce, obtains in other countries, and we cannot presume that the legislature intended a violation of it.

The .view taken of the rights and liabilities of absentees in the ease of Dupuy, Curator, v. Hunt et al. ante p. 562, is decisive of the question under consideration. Judgments rendered in cases .of attachment, where the defendant has not been cited and has not appeared, are in rem, and .affect only the property attached. This is in accordance with the doctrine laid down on the subject by Judge Story and Chancellor Kent, and, we believe, with the jurisprudence of the other States. It conforms also with the jurisprudence of France on the subject of the saisie-arrét, from which our attachment law appears to have been, in a great measure, taken. Story’s Conflict of Laws, 549. 1 Kent’s Com. 262. Clerk’s New York Digest, verbis Foreign Laws and Judgments, .and the authorities there cited. Code de Procédure of France, Saisie-arrét.

The defendant in this case had not been personally cited, and was in eourt only by the attachment of a traet of land situated on Lake Bruin, which is not even shown to have belonged to him. That land alone could be> sold to satisfy the plaintiff’s claim. The judgment had no existence beyond it. We have, therefore, come to the conclusion that Edward Broughton has not been lawfully .divested of his title, and that, as in relation to the land claimed, he had not been cited and was not in court, the decree homologating the monition cannot avail the defendant. Admitting that he holds under a just title, his possession has not continued during a sufficient length of time to enable him to acquire by-prescription.

For the reasons assigned, it is ordered, that the judgment in this case be reversed ; that Edward, Broughton recover from the defendant the land mentioned in his petition, and that he be forever quieted in his title to said land, against .all claims ajld pretensions of the defendant and of Joshua Pregler. It is further ordered, that the case be remanded for further proceedings in relation to the improvements, routs, and profits. The costs in both courts to be paid in equal proportions by Joshua Presler and Edward P. King.

       The-counsel for Broughton, after the jury had been sworn, moved fora continuance, on the ground of want of time, since the filing of the opinion of the ¡Supreme Court in one of the two cases, aind their subsequent consolidation, to prepare himself. — Reporter.


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    Cutters et al. v. Baker et al.
    Consignees, who accept a .consignment, are bound to obey the directions of the consignor, made at a time when the property was under bis control, as to the appropriation of the proceeds.
    Where a factor, by whom merchandise was received with directions to apply its proceeds to the payment of a bill, pays the bill before selling the property, ho will be entitled, as factor, to a privilege on the merchandise, for his reimbursement.
    Where afactor, to whom property had beenconsigned, with directions to apply the proceeds to the payment of .certain creditors of the prinoipal, agrees with the latter to apply the proceeds to the payment of their claims, the appropriation cannot he affected by a subsequent attachment by a creditor of the prinoipal; the property or its proceeds being beyond the control of the latter.
    Factors have a privilege entitling them to be paid by preference to an attaching creditor, out oftheproceeds of goods consigned to them, for any advance made thereon, or for any balance of account accrued anterior to the attachment, though not resulting from advances on the goods. .C. C. 3214. Stat. 17 Feb, 1841.
    APPEAL Appeal from the Fourth District Court of New Orlenos, Strawbridge, Jr Felloioes, Johnson Sf Co. are appellants m this case. The facts are fully-stated in the opinion, infra.

      Peyton and I. W. Smith, for the plaintiffs. Fraser, for the appellants. J. J) unlap, for the defendant, Baker. Mott, for Bennett.

   The judgment of the court was pronounced by

Slidell, J.

Cutters and Phetys are the holders of three bills of exchange drawn by Baker on Fellowes, Johnson Sf Co., .on the 27th August, 1845. These bills are not in the usual form, requiring an .absolute payment by the drawees, but their tenor js, “ on the receipt of funds belonging to me, pay to the order of Cutters Sf Phelps, within sixty days from date.” Cutters Phelps sent these bills for .collection to their agents at New Orleans. In their letter they say : “We will thank you to have them accepted by F. J. §■ Co,, and hold them for payment, .and as fast as money is paid on them forward it to us. Mr, Baker says he is sending them a lot of barrels to sell for him, with directions to pay on these drafts as fastas-tliey realise the money; and their acceptance of our drafts is not to bind them-^only to pay over as fast as they collect money. We presume ¡they will not object to accepting the drafts on these terms. If they should ob* ject and will not accept them, ask them to agree to dispose of the funds of Jeer, as they come into their hands, in .accordance with the drafts,”

The agent of plaintiffs accordingly presented the drafts to Fellowes. Johnson 4' Co., who declined to accept, and stated that they had no advice from the drawer, and that he had no authority to draw. A few days after this, F. J. & Co. received a letter from Baker, under date of 29th August, 1845, in which he says: “I have taken the liberty to draw .sundry bills on your house, predicated on a shipment of barrels, which will leave Paducah about tbe 10th or 15th September next. Of course I do not expect you to accept these bills, (without you please to do so,) but merely to say that you are advised that funds will be in your hands to meet them at maturity.

Some days subsequently the agent of the plaintiffs called again with the bills, when F. J. Sf Co. exhibited to him Baker’s letter. There is some discrepancy in the testimony as to the precise purport of what passed between them; but, after a careful consideration of all the testimony, we consider the substance and .effect of it to be, that F. J. §■ Co. promised to hold the proceeds of the barrels that might be shipped in conformity to Balter’s letter of advice, applicable towards the payment of all the bills drawn against such contemplated shipments. To the holders of tlio other bills the same promise was made as to the plaintiffs.

We consider these facts as amounting to an agreement between F. J. & Co, and .the holders of these bills, that the pi'oceeds of such barrels as should thereafter come to theirhands from Baker, under the letter of advice of 29th August, shouid be appropriated towards those bills, and that F. J. & Co. could not thereafter appropriate the proceeds of that merchandise to other purposes. But the plaintiffs have no right to hold F. J. Co. absolutely answerable as acceptors. They have incurred only a qualified liability, that is, for the pro rata of the proceeds.

Several shipments of barrels were subsequently received by F. J. & Co., and being received generally they were fairly .applicable to the benefit of the bill holders. But there was one shipment of barrels for which they cannot be so charged. In November, 1845, F. J. & Co. received from Baker a letter enclosing receipts of certain parties at Plaquemine and Donaldsonville, for 1045 barrels, placed in their hands by Baker. In this letter Baker directs F. J. Co. to advertise these Jots, and when sold to apply the proceeds first to the payment of a draft held by Story for §700, which seems to have been based upon those consignments, and afterwards to the bills above mentioned, giving a preference to the plaintiffs’ bills. At the time when Baker wrote this letter, these two consignments were under his own control, and the receipts in his own possession. Consequently he had a right to direct the appropriation of their proceeds, and F. J. if Co. in accepting the consignments, were bound to obey his orders. The promise made by F- J- Co. to the plaintiffs cannot therefore be considered as comprehending that property, F. J. fy Co. paid the Story bill, and charged it against the proceeds of the other consignments of barrels. This they had no right to do. Bat having paid the money to Story, they are as factors entitled to a privilege upon the 1045 barrels for their reimbursement, when they shall be sold, which had not been done when this cause was tried in the court below.

Besides .the barrels, some small shipments of other merchandise were made by Baker to the defendants. The drafts held by the plaintiffs and the other bill holders standing in the same categ02-y, were not bas.ed upon the shipments other than of the barrels, and are not covered by the agreement to appropriate proceeds made by F. J. 8f Co. They had a right to appropriate the proceeds of these other shipments to their account with Baker, for advances made before the .levy of attachment by plaintiffs, and Bennett, .another creditor,

Under the view above expressed, the plaintiffs are entitled to receive from F. J. 4* Co. towards payment of their bills their pro rata of proceeds of shipments of barrels, to wit, $ . If the consignments of1045 barrels should realise more than enough to reimburse F. J. fy Co. what may be uncovered of the $700 paid to Story, and charges pertaining to those consignments, the plaintiffs will be entitled to the benefit of such surplus.

There is another creditor Whose rights remain to be considered. One Bennett, subsequent to the agreement between F. J. 8f Co. and the bill holders, brought spit by attachment against Baker, and garnisheed F. J. 4- Co. We consider the rights of the bill holders as superior to those of this attaching creditor. The agreement made between the bill holders and F. J. 4* Co., in conformity to Baker's letter of advice, anterior to the attachment, placed that merchandise and its proceeds beyond the control of Baker. Bennett could only obtain, by his attachment, a right secondary to the bill holders, and also to the factors’ privilege for advances and balance of account .accrued ¡anterior to the attachment. See the cases of Urie v. Stevens, 2 Rob. 252. Armor v. Cockburn, 4 Mart. N. S. 667. Babcock v. Malbie, 7 Ib. N. S. 139. Civil Code, art. 3214. Act of 17 February, 1841, p. 21. If we suppose that, after paying the bill holders and the factors, there could be any thing left for Bennett, we would leave the case open to ascertain the balance ; but of this there is no probability.

It is therefore decreed, that so much of the judgment of the court below as renders judgments in favor of Cutters Phelps, William A.Bennett, and Fellowes, Johnson Co., respectively against the said Baker personally, be affirmed; and that as to the residue of said decree the same be reversed and set aside ; and proceeding to render final judgment in this cause, it is decreed that, as to the claim of said Bennett as attaching creditor, that there be judgment in favor of said garnishees, Fellowes, Johnson Co., with eosts of the garnishment; that the said Cutters 8f Phelps recover from the said Fellowes, Johnson 4' Co. the sum of $230 49, with costs of this suit in the court below, reserving to the said Cutters 4' Phelps their rights, as in the opinion of this court stated, with regard to the surplus, if any there may be, of the proceeds of the 1045 barrels at Plaquemine and Donaldsonville, in the answer of the garnishees mentioned. And it is further decreed that one half of the costs of this appeal be paid by the said Bennett, and the other half by the said Cutters Phelps,


author: Kme, J.

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    Succession of Kelly.
    A curator of avacant succession is not apublic officer, within the meaning of sec. 14 of the stat. of 10 Feb. 1S41; and since the stat. of 28 March, 1840, abolishing imprisonment for debt, a ca. sa. cannot be taken out, after the return of ts.fi. fa. unsatisfied, against one who has converted to his own use money received by him as curator of a vacant succession.
    Appeall from the Second District Court of New Orleans, Canon, J.

      R, M. Carter, for the appellant,
    contended that the curator of a vacant succession is not apublic officer, within the meaning of the stat. of 30 Feb. Í841, s. 14, citing Ex parte Powell, 8 Rob. 95.

      J. F. Pepin, contrá.
   The judgment of the court was pronounced by

Kme, J.

Tlie defendant, Ferrol, was appointed the curator of the vacant succession of Kelly, and, upon the rendition of his final account, exhibited a balance in his hands after the payment of the debts. A rule was taken on the defendant, by the attorneys representing- the State,- to show cause why this balance should not be paid into the State treasury, which rule was made absolute. After a return of “ no property found,” on two writs of fieri facias, on motion of the counsel representing the State, a writ of capias ad satisfaciendum was ordered to issue. A rule was thereupon taken by the curator to show cause why the writ should not be set aside, on the ground that it was unauthorised by law. This rule was discharged, and the curator has appealed.-

The authority relied on to sustain the judgment of the court belowis the 14th section of the act of 1841, p. 17, which authorises a capias ad satisfaciendum to issue against sheriffs, or other public officers, for money by them received in their official capacity. In Ex parte Powell, 8 Rob. 95, the late Supreme Court held- that an executor was not a public officer within the intendment of that act, and the reasoning by which the court arrived at that conclusion, in the correctness of which we concur, is equally applicable to curators of vacant successions.

It is therefore ordered that the judgment of the District Court be reversed, and that the writ of capias ad satisfaciendum issued against the appellant, P. B. Ferrol, be set aside and cancelled; the appellee paying the costs of this appeal.


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    Succession of Plauche.
    The acceptance or renunciation of the community by the beirs of the wife, are subject to the rules provided by law for the acceptance or renunciation of successions under the benefit of inventory ; and the rights and powers of creditors aro the same in both oases. C. C. 2383. They may, in either case, sue the legal representative of the suoo'ession, or make opposition to the accounts rendered by him. If they do so, on an exception by the executor- or administrator, that the time allowed to the heir for deliberating whether he will accept the succession or community has not expired, the proceedings must be stayed until the expiration of the term, or until the heir Has decided. O. C. 1046. Where no such exception is taken, either in writing or in argument, the court will proceed to decide on the rights of the creditors.
    The succession of a deceased wife can be made liable only for one half of the community debts.
    Appeal from the Second District Court of New Orleans, Canon, J.

      Lewis and Bermudez, for the appellant. Buscail and Grandmont, for the opponents.
   The judgment of the court was pronounced by

Rost, J.

Marie Anne Marchand, wife of J. B. B. Planché, died, leaving all her property to her two sons by a former marriage. She appointed one of them the executor of her will; the other resides in Prance, and is represented in the succession by Plonoré JDoussan, his special attorney in fact. The succession is composed of paraphernal property, and of one-half of the property of the community which existed between the deceased and her lasthusband. The executor caused an inventory of both to be made in due time, and entered into the possession of the paraphernal property, leaving that of the community in the possession of the husband. A few days after the inventory had been roturned into court, the executor filed a provisional account of the claims presented against the succession, some of which were not admitted by him, on the ground that they Were community debts for which the husband alone was responsible, that he, the executor, had not taken possession of the property of the cpmtnunity, and that community debts could not be recovered out of the paraphernal estate of the testatrix.

In the petition to, which the account is annexed, the executor states his object to be, to ascertain the course to be pursued by him in his future administration of the succession; and to enable its creditors to establish any just claims they may have. The claims rejected were those of the physician and of the nurse, who attended the deceased during her last illness. These two creditors filed oppositions to the account, and those oppositions having been sustained, for the whole amount of the claims, the executor appealed.

The filing of the account by the executor, so short a time after the death of the testatrix, before he and his brother had either accepted er renounced the community, and before the term for deliberating had expired, was a premature «proceeding. The fact that the husband- continues in possession of the community property, does not, until the heirs renounce, affect their title to one half of it.

The acceptance or renunciation of the community by the heirs of the wife, are subject to the rules provided by law for the acceptance or renunciation of successions under the benefit of inventory; and the rights and powers of creditors are the same in both cases. C. C. art, 2383. They may', in either case, institute suits against the legal representative of the succession, or make opposition to the account he renders. If they do so, on the exception being made by the executor or administrator, that the heir is within the time for deliberating whether he will accept the succession or the community, as the case may be, the proceedings are stayed until the expiration of the term, and untij the heir has decided. C, C. art. 1046. This exception has not been taken in this case, either in writing or in argument, and we are bound to proceed, and decide on the rights of the opposing creditors. The amounts claimed by them appear to us high, very high. But the evidence in relation to- the value of the services, based upon the revolting nature of the decease, and the faithfulness with which they were rendered, is positive and stands uncoutrad-icted. It satisfied the judge of the court below, and there is nothing in the record which can authorise us to interfere with that portion of the judgment. He erred, however, in allowing the whole amount of these two claims ; they are community debts, for one half of which only, the succession of the wife is liable.

It is therefore ordered that the judgment in this case be amended; that the opponent, Honoré Houssan, be placed on the account as a privileged creditor for the sum of $217 50; and that the opponent, Magddaine Planché, be placed on the account as a privileged creditor, for the sum of $170. It is further ordered, that the judgment so amended be affirmed ; the succession paying, the costs of the District Court; those of this appeal to be paid in equal shares by the two opponents.

        Lewis and Bermudez, for a re-hearing. Community debts should be paid out of community property; C. C’. 2373. The husband of the deceased is in possession of the community property, yet the judgment condemns the succession, and of course' the heirs, to pay those debts out of -the paraphernal property of the wife, to the same extent as if she had alienated it with the consent in writing of her husband (C. 0. 124) ; a consent which has never existed. Tho court presumes an acceptance of the community by the heirs, which the law presumes a renunciation in their favor.- C.C. arts. 2392, 2383, 2983. The incomo of the wife received by the husband is intended to help him to1 support the charges of matrimony. lie must alone support them; the wife only helps-him, and having done so to the utmost extent of the law she cannot be bound further_ not as regards her husband, and still less towards those who may have contracted with the husband for things which he is by law bound to provide her with. C. C. art. 2412. B & S’s. D. verbo Contracts of the Wife, E, p. 285, nos. 16, 19. Deslix’s Digest, verbo Husband and Wife, p. 234, no. 12.
      The judgment deprives the heirs of the deceased of a right Which they possess even after having accepted the succession or community-M;hat of discharging themselves from the payment of the debts of the succession or of the community, by abandoning its effects. The heirs and the executor have done every thing necessary to secure that right,- and have avoided doing any thing Which could have deprived them of it. G. C. arts.-1004, 1006.
      Our Code recognises three sorts of successions, three sorts of heirs, and three softs of administrators, each of which is treated of separately. There may be a similitude between the laws regulating these separate successions.- The powers and duties of testamentary executors are,- to a certain extent, similar to those of curators and those of administrators under the 1038th art. of the Civil Code; but the law does not permit the appointment of a testamentary executor to administer a vacant succession, nor the appointment of a curator to administer a testamentary succession; nor Would the law permit, except where it so provides, the testamontary executor to seek for his powers and duties among those that are especially established for another sort of administrator, and to substitute such powers to others that are especially established for him, and by which he is to be governed. The court has however committed this error in their reference to the 9383d and 1046th articles of our Code, These articles, 2383 and 1046, referred to by the court, have no application to testamentary successions. A judgment cannot be rendered against a widow or an heir for a debt duo by the community or succession, while the effects composing its assets are under the administration of a testamentary executor possessed of seizin. Who over heard of an action instituted by a creditor against a testamentary executor for a privileged debt to be paid without delay (or any other debt), being stayed, because the beneficiary heir is within the time for deliberating, or until he decides whether ho renounces or accepts the succession'! The articles of the Code cited in the judgment evidently apply to casos where the wife, of the heirs, retain the effects of the succession or community, or where they are provisionally placed in tile hands of an administrator for the purposes of amere administration. This distinction is rendered the more sensible by a Comparison- of arts. 1044, 1045,1046, of tho Codo, with arts. 1663, 1154, 1155 and 1156. As long as the prescription of renunciation is not determined, the heir may still renounce, where he has not made himself liablo as heir. C. C. 1024. lie has thirty years-for so doing (C.-G. 1023, 3420); and there is no law by which a widow or an heir can be compelled to accept or renounce a community or succession, when its effects are under the administration of a testamentary executor, having seizin.

        Bc-hcaring refused.