author: Voobhibs, J.

text:
    State of Louisiana v. W. H. Marion—W. C. Copes, Surety on bail-bond.
    Indictments need not describe the court before which they are found, nor the jurors by whom, they are found, nor need they aver that the court has jurisdiction of the offence.
    The caption to indictments is here uniformly dispensed with.
    A mistake in an indictment, as to the parish for which the Grand Jury was empannelod and sworn m, is not a ground upon which to quash.
    The State has a right to the presence of a party indicted for a felony, and he has no right to be heard in a motion to quash, while he is absent and a fugitive from justice — his surety on a bail-bond cannot, therefore, be heard on this subject.
    APPEAL from the District Court of the Parish of Claiborne, Egan, J.

      Frank P. Stubbs, for the State. W. C. Copes, for defendant.

      N. J. Sandlin, for surety on bail-bond and appellant.
   Voobhibs, J.

The appellant, W. C. Copes, was the surety on the bail-bond furnished by the accused, W. H. Marion. A motion having been made for the forfeiture of this bond, the latter failing to appear, the former filed an opposition upon several grounds.

I. The prosecution originated in the parish of Claiborne; but, by mistake, the indictment states that the Grand Jury was empanelled and sworn, in and for the parish of Bossier. The endorsement is signed by W. C. Maples, foreman of the Grand Jury; and the record informs us that W. C. Maples was the foreman of the Grand Jury, at that term of court, in the parish of Claiborne.

It is evident on the face of the papers, — nay, the bond itself states, — that the indictment was preferred by the Grand Jury of the parish of Claiborne. The indictment, furthermore, is headed : “ The State of Louisiana, 11th Judicial District. The Parish of Claiborne, to-wi.t .•”....

Be this as it may, indictments need not describe the court before which they are found, nor the jurors by whom theyare found; nor need they aver that the court has jurisdiction of the offence. State v. Kennedy, 8 R. 591; State v. Peterson, 2 An. 921; State v. Gomer, 6 An. 311. In England this was different with regard to the caption, which, though not considered as part of the indictment, was a necessary concomitant. The caption served to inform the court where the indictment was removed, of the authority of the inferior court to take cognizance of the case. The necessity of a caption, in England, originated from the peculiar organization of the courts charged with the administration of the criminal laws. But, inasmuch as a prosecution, in this State, is never removed from one to a higher tribunal, a caption can be of no benefit to an indictment, and is uniformly dispensed with. 1 M. 221, Territory v. McFarlane; 8 R. 513, State v. Nolan; 3 An. 154, State v. Lyons.

II. The next ground of complaint is, that the judgment of forfeiture was not rendered at a jury term of the court. Acts 1855, p. 151, 58.

The forfeiture was entered up during the session of the adjourned April court, and judgment signed nunc pro tunc at the October court. Both these terms were jury terms. Acts 1857, p. 4.

III. The last ground of objection, insisted upon in the appellant’s brief, is the alleged erroneous ruling of the District Judge, in refusing to quash the indictment. This matter is fully disposed of in overruling the first objection', inasmuch as the motion was based upon the error of the indictment in describing the Grand Jury as being of the parish of Bossier. Besides, the State had a right to the presence of the accused, who was indicted for a felony. The accused himself had no right to bo heard on his motion to quash, as he was absent, and a fugitive from justice. The present defendant being a surety on the bail-bond, cannot, therefore, be heard on this subject.

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


source: Caselaw Access Project

author: Merrick, C. J.

license: Public Domain

text:
      W. C. Maples v. Cyrus Peed.
    Where the appellant has failed to give bond in favor of all the parties interested in maintaining the judgment, the appeal must bo dismissed.
    APPEAL from the District Court of the Parish of Ouachita, Richardson, J.

      John T. Ludeling, for plaintiff and appellant.

      McGuire t6 Ray, for intervenors and appellee.
   Merrick, C. J.

The controversy in this case relates principally to the distribution o the proceeds of a certain steam saw-mill and plaining-machine among the attaching creditors.

The plaintiff appeals; but ho has failed to give bond in favor of the intervenors, in whose favor the proceeds have been distributed. The motion to dismiss, on this ground, must prevail.

It is, therefore, ordered, that the appeal in this case be dismissed, at the costs of appellant.


author: Yookhies, J.

text:
    C. A. Hooper v. R. Wilkinson.
    Tho upper estate is entitled to a natural servitude upon the estate situated below it, for purposes of drainage; and levees or dams erected across a bayou, which runs through the two estates, by the proprietor of the lower, to prevent the flow of the waters in this stream, are infringements of the right of servitude appertaining to the upper estate.
    This is a right of servitude which the proprietor of the upper estate possesses ; and in the enjoyment of this right he should not be disturbed or molested, although possibly no actual injury might result from the interruption of the right.
    The proprietor of an estate has a right to perform artificial drainage, but not so as to pervert the right of servitude, as originating from the natural situation of the place.
    A proprietor is not entitled to divert the flow of waters on his plantation, from the front to the rear, so as to effect his drainage in an opposite direction, to the detriment of other adjoining proprietors.
    APPEAL from the District Court of the Parish of Catahoula, Mayo, J.

      Curvy <& Hawkins, for plaintiff.

      Smitli <& Spencer, for defendant and appellant.
   Yookhies, J.

The object of this suit, on the part of the plaintiff, is to compel the defendant to remove the obstructions which the latter has erected across Bayou Peter.

In the answer, the defendant asks, by way of reconvention, that the plaintiff be compelled to close the ditches by which the latter drains his plantation through this bayou.

The parties own adjoining plantations, through which runs the Bayou Peter. The plaintiff’s estate is situated above, and is' consequently entitled to a natural servitude upon the lower estate of the defendant, for purposes of drainage. The levees or dams erected to prevent the flow of the waters in this stream, are an infringement upon the right of servitude appertaining to the upper estate.

“ The proprietor below, says the Code, is not at liberty to raise any dam, or to make any other work to prevent this running of the water.” C. C. 656.

The defendant’s counsel contends strenuously, that but a small portion of the plaintiff’s lands, from their natural situation, drains by means of the Bayou Peter, and that no injury can result from the levees or dams complained of, inasmuch as one of the forks of the bayou is amply sufficient for that purpose. We do not think that the evidence bears out this position ; but, at all events, this is not precisely the question. Por if the stream dammed up is the natural outlet for the waters flowing from the estate of the plaintiff, that is a right of servitude which he possesses ; and, in the enjoyment of this right, he should not be disturbed or molested, although possibly no actual injury might otherwise result. C. C. 779.

The verdict of the jury, on this branch of the case, meets our concurrence; but we think that the defendant is entitled to relief on his reconventional demand.

The evidence shows, that the lands of the plaintiff drain naturally in the rear, with the exception of a small portion or the second bank of the bayou on both sides. The law, it is true, recognizes the right of a proprietor to perform artificial drainage, but not so as to pervert the right of servitude, as originating from the natural situation of the place. The plaintiff is not entitled to divert the flow of the waters on his plantation from the front to the rear, so as to effect his drainage in an opposite direction, to the detriment of other adjoining proprietors. The plaintiff’s ditches, four in number on the wést side of the Bayou Peter, and one on the east side, should be closed at the highest point on the first bank of the bayou, without prejudice to the right of the plaintiff to drain in this bayou the lands situated between this ridge and the stream.

It is, therefore, ordered and decreed, that the judgment of the District Court on the verdict of the jury be amended, so as to compel the plaintiff to close his ditches (four in number on the west, and one on the east side of Bayou Peter,) at the highest point of the first bank, as stated in the foregoing opinion ; and it is further adjudged that, in other respects, the judgment be affirmed, the plaintiff paying the costs of appeal, and the defendant the costs of the District Court.


author: Voorhies, J. Meeeick, C. J.,

text:
    State of Louisiana v. J. W. Markham.
    The rule that the defendant must not bo chargod with having committed two or moro offences in any count of the indictment, does not apply to cumulative offences denounced in the same statute.
    The prosecution for keeping a banking-game, or banking-house, is governed by the prescription of one year.
    It is not necessary that the State should prove the dealing of Faro several times, in order to show a violation of the statute: once will be sufficient.
    To keep a house whero a banking-gamo is carried on, as well as to keep a banking game, is an offence under the statute: there is no real diflorance between keeping a banking-house where money is bet or hazarded, and keeping a house where a banking-game is carried on.
    Where the Judge, in his charge to the jury, does uot state nor recapitulate tlio evidence, so as to influence their decision on the facts, — nor state, nor repeat to them the testimony of any witness, nor give them any opinion as to what fads have been proved or disproved, the chargo is not liable to the objection, that it touched upon the facts.
    The imprisonment allowed, in default of the payment of any fine imposed by a sentence of the court, cannot exceed one year. Acts. 1855, sec. 4>
    APPEAL from the District Court of the Parish of Caddo, Jones, J.

      S. Wells and F. P. Stubbs, for the State.

      Hodge & Austin, and R. S. Par-ham, for defendant and appellant.
   Voorhies, J.

The defendant’s counsel assign as error several rulings of the District Judge, to which bills of exception have been taken.

I. There was filed a motion to quash, upon the ground that the indictment was void for duplicity.

The offence charged is, that the defendant “ did keep a banking-game commonly called faro, and a banking-house, at which money, and various things representing money, (and commonly called chips or checks,) and other articles of value, were bet and hazarded ; and the said James Markham, did then aud there aid and assist in keeping said banking-game and banking-house,” &c.

This instrument is drawn in the words of the statute; and, although the latter denounces distinct offences, it does not follow that these cannot be included in the same count, without being obnoxious to the charge of duplicity. The rule, that the defendant must not be charged with having committed two or more offences in any count of the indictment, does not apply to cumulative offences, denounced in the same statute. In penal statutes, said the court, when the statute enumerates several offences connected with the same transaction, or the intent necessary to constitute each offence, disjunctively, they may be alleged cumulatively in one count; and, iu that event, must be charged in the indictinent conjunctively.” State v. Faut, 2 An. 837 ; State v. Bogan, 2 An. 838 ; State v. Banton, 4 An. 32 ; State v. Fuller, 14 An. 668.

The following passage occurs in Starkie: “ It is the usual practice to allege offences cumulatively, both at common law, and under the description contained in penal statutes, as : that the defendant published, and caused to be published,” &c. Cr. Pl., p. 271.

The motion to quash was, therefore, properly overruled.

II. There is a bill of exceptions to the charge of the Judge to the jury, which was as follows :

“ If the jury find that the defendant has dealt the game of Faro in the parish of Oaddo, within the last twelve months, and if they further find that the game of Faro is a banking-game, then the defendant is guilty under the bill of indictment. Again, if the jury find that the defendant has kept a house in which the game of Faro has been dealt in the last twelve months, and that the game of Faro is a banking-game, he is guilty. The dealing of Faro one time or more, if it is a banking-game, is a violation of the statute, and, every time it is done, a new offence is committed.”

The first objection to this charge is, that the accused “ could not properly be convicted under the indictment in this case, by reason of having dealt Faro only at some indefinite time within the twelve moriths mentioned.”

The vagueness of this objection has enabled the counsel to argue under it in this court a question which evidently was not contemplated by the District J udge. The accused did not express the desire that the court should charge the jury that it was necessary, for a conviction, to prove the offence to have been committed within twelve months preceding the preferment of the indictment, and not previous to the trial. The objection stated in the bill of exception related to the proof of the commission of the offence “ only at some indefinite time" within the twelve months; and under this same objection, another question is presented, that is whether the offence charged in the indictment be subject to the prescription of one year, or to that of six months.

In order to give effect to the first objection, it were necessary to determine whether the J udge meant that the offence should have been committed within the last twelve months preceding the tiial, or preceding the finding of the indictment. And, inasmuch as the matter was not called to the attention of the District Court, and the objection made specifically with reference to the same, the accused is not entitled to relief in the premises.

With regard to the question of prescription, there can be no difficulty. This is a prosecution for a criminal offence, and not a suit or prosecution for the recovery of a fine or forfeiture. Besides, the offence charged becomes, in case of its repetition, a felony : the accused, on a second conviction, is sentenced to imprisonment at hard labor. State v. Jumel, 13 An. 400 : Acts 1855, p. 145, § 95 ; Acts 1855, p. 151, 110. The prescription of one year governs this prosecution. See also State v. Hollin, 12 An. 677 ; State v. White & Ward, 13 An. 573.

Secondly. The bill of exception states that: “ once dealing the game of Faro does not constitute the offence of keeping a banking-game, or banking-house.” In the case of the State v. Agudo, 5 An. 186, the court remarked : “ Proof that banking and gaming had been carried on in the house, previously to the time the offence charged in the information was committed, gave the house this character ; and proof that the accused had banked and gamed there before the act and time charged in the information, tended to show the guilty knowledge and intention, which, with the act, constituted the offence charged.” It is not necessary, as contended for by the prisoner’s counsel, that the State should prove the dealing of Paro several times, in order to show a violation of the statute : once will answer the purpose.

Thirdly. It is contended that, the mere dealing of the game of Paro, it being a banking-game, or the mere keeping of a house in which the game of Paro has been dealt, within the twelve months mentioned, is not an offence under our laws.”

To keep a house, where is carried on a banking-game, as well as to keep a banking-game, is an offence under the statute. Acts 1855, p. 145, l 95. There can be no real difference between keeping a banking-house, where money is bet or hazarded, and keeping a house where a banking-game is carried on. “ That Act, said Chief Justice Eustis, evidently purports to prohibit and punish the keeping of gaming houses. The term used in it, of banking-houses, or banking-games, presents no difficulty whatever as to its meaning. The evil to be suppressed was the gaming-house, with its capital, always ready for play. Whether the capital, or stake, is owned, or furnished by the house, or made up at the time by the players, the evil is the same, the offence is the same.” City of New Orleans v. Miller, 7 An. 651.

Fourthly. The accused objected to the charge, upon the ground that it touched the facts.

The Judge has not stated, nor recapitulated the evidence, so as to influence the decision of the jury on the facts; he has not stated, nor repeated to them the testimony of any witness ; nor has he given any opinion as to what facts have been proved or disproved. The objection, consequently, has no foundation. Acts 1855, p. 151, $ 16.

III. As in the case of the State v. Butman, ante p. 166, the prisoner was fined in the sum of one thousand dollars, and, in default of payment, ordered to be incarcerated until the fine and costs be paid. The maximum of imprisonment is not to exceed one year. Acts 1855, p. 151, $ 4.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed ; and that this case be remanded, with instructions to the District Judge to pronounce sentence upon the accused, upon the verdict of the jury, according to law.

Meeeick, C. J.,

concurring. The case of the State v. Jumel is not precisely in point. There, the District Court had the option to pronounce a sentence of imprisonment, or to fine the accused. Here, it is not in the power of the court to do more than ./me, unless the accused refuses to pay the fine inflicted.

I have, therefore, doubts, whether the Act relative to criminal proceedings, in view of Arts. 115 and 103 of the Constitution, does not limit prosecutions by indictment or information to six months where the penalty denounced is a fine only. The clause is in these words : Nor shall any person be prosecuted for any fine or forfeiture under any law of the State, unless the prosecution shall be instituted within six months from the time of incurring such a fine or forfeiture. Nothing herein contained shall extend to any person absconding or fleeing from justice.”

Notwithstanding my doubts on this question, I yield my impressions to the conclusions of my colleagues, in which they have great confidence.


author: Land, J.

text:
    Henry B. Holmes v. C. H. Dabbs.
    Although the grounds or an exception bo vaguely and indefinitely sot forth, yet whore they are sufficiently certain to apprise tho plaintiff of the nature of the legal bar intended to be pleaded against his demand, evidence is admissible to sustain them.
    Where property has been adjudicated, upon tho death of tho husband, to the wife, as the surviving spouse in community, on tho advice of a family meeting, homologated by the decree of a court of competent jurisdiction, and whore tho child of the deceased was a party to the proceedings, and represented in tho mode pointed out by law, such adjudication is conclusivo upon tho child as a party to the proceedings, until it shall bo reversed or annulled, either by appeal or by a direct action of nullity.
    APPEAL from tlie District Court of tlie Parish of Ouachita, Richardson, J.

      John T. Ludeling, and Isaiah Garrett, for plaintiff and appellant.

      F. P.

      Stubbs for defendant.

      McGuire (5 Ray, F. P. Stubbs, and Morrison <& Purvis, for warrantor.
   Land, J.

This is an actiou of partition. ' The plaintiff alleges, that he is the legal owner of one undivided half interest in certain slaves in the possession of the defendant; that, as sole heir to his father, Hardy Holmes, he inherited said one undivided half interest, and that his title to tho slaves has never been divested.

The defendant, in his answer, denied tlie alleged title of the plaintiff to the slaves, and called his vendor, Mrs. Julia C. Holmes, the plaintiff’s mother, in warranty, to defend his title.

The vendor, Mrs. Holmes, appeared on the call in warranty, and filed an exception to the plaintiff’s demand, on the following grounds :

First. “ The property claimed by the plaintiff was held in common between the father of the plaintiff and this appearer, his wife, at the time of the death of the said Hardy Holmes, through whom plaintiff claims. If plaintiff has any legal claim to any of said community property, it is to such an undivided half interest as may be left after the payment-of the debts of said community, and settlement of the same, which has not yet been done, if the adjudication of the interest of plaintiff to this appearer is not legal; and until such settlement, plaintiff cannot maintain a suit for any particular price, or part of said property.”

Secondly. “ That debts of said community having been paid by this appearer, upon the adjudication of the community property to her, if said adjudication is illegal, (which is denied), plaintiff can in no event maintain his suit, until he refunds to this appearer one-half of said community debts, which he has not offered to do.”

Thirdly. “ That plaintiff cannot maintain any suit against defendant, until he has caused the judgment of adjudication of the property to this appearer to be set aside by a direct action, which has not been done.”

On the trial of this exception, the plaintiff reserved a bill of exceptions to the introduction of the evidence offered by the warrantor to prove that there had been no settlement of the community, that debts of the estate had been paid by her, and that there had been an adjudication to her of the property, — on the ground, that no evidence could be received under the exception, in consequence of the vagueness of the allegations contained in it.

It is true, that the grounds of the exception are vaguely and indefinitely set forth, but they were sufficiently certain to apprise the plaintiff of the nature of the legal bar intended to be pleaded against his demand, and the evidence to sustain them was not improperly received on the trial below.

The evidence adduced in support of the exception, establishes that the slaves demanded in this suit were adjudicated to the warrantor, Mrs. Holmes, as the surviving spouse in community of Hardy Holmes, (and who was also the natural tutrix of the plaintiff,) on the advice of a family meeting homologated by the decree of a court of competent jurisdiction; that to these proceedings the plaintiff was a party, and represented in the mode pointed out by law, that is to say, by and through his under-tutor.

This decree is conclusive upon the plaintiff as a party to the proceedings, until it shall be reversed or annulled in one of the modes pointed out by law, that is to say, by appeal, or by a direct action of nullity.

The decree protects the title of the surviving spouse, and its validity cannot be enquired into collaterally. Whatever irregularities may have preceded the decree, they can only be inquired into and passed upon in a direct action to annul the judgment. 1 Hennen’s Dig., verbo Judgment, p. 811, Nos. 2 and 4; Lalann’s Heirs v. Moreau, 13 La. 431.

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


author: Laud, J.

text:
    Dyas & Co. v. J. H. Dinkgrave et al.
    A commercial firm cannot demand in the same suit the payment of two promissory notes, although they are dated at the same place, and on the same day, and both payable to the firm under its firm name, where it is shown that such firm was composed of different persons, when the indebtedness was created which formed the consideration of one note, from those persons who composed the firm when the indebtedness was incurred which formed the consideration of the other note. It would be a case of distinct creditors joining in the same action their separate and distinct demands against the debtor.
    Under such circumstances, the old firm and tho now firm would be considered in law as separate and distinct persons, with separate and distinct rights and obligations, and could not, as creditors, join m the same action their separate and distinct demands against their debtor. The law does not permit separate creditors to join in an action against their debtor, unless there be a joint interest between them in the thing demanded, or a privity of contract, which authorizes the joinder.
    APPEAL from the District Court of the Parish Ouachita, Richardson, J.

      Morrison & Rurvis, for plaintiffs.

      Thomas 0. Benton, for defendant and appellant.
   Laud, J.

The defendants are sued on two promissory notes : one for §1473 32, and the other for §853 12, and both dated at the same place, and on the same day, and both payable to Dyas & Co., of New Orleans, and both payable twelve months after date.

The defendants filed an exception to the suit, on the ground that two actions have been cumulated contrary to law, in this, to wit: that the firm of Dyas & Co. was composed of different persons, when the indebtedness was created which forms the consideration of the first note for §1473 32, from those persons who composed said firm when the indebtedness was incurred which formed the consideration of the second note, to-wit, the note for §853 12 ; in other words, that two distinct creditors had joined in the same action against them their separate and distinct demands.

were different from those who compose the new firm of Dyas & Co. The defendants also filed an affidavit for a continuance of the trial on the exception, on the ground that they have been unable to procure the testimony of a witness residing in the city of New Orleans, to prove the facts stated in their exception, to-wit, that the persons who composed the old firm of Dyas & Co.

The exception, and the application for continuance, were overruled, and the defendants reserved their bill of exceptions.

It is the opinion of the court, that if the exception were true in point of fact, that it was sufficient in law to dismiss the action, and that the continuance should have been granted.

If the facts be true, as alleged in the exception, that the old firm was separate and distinct, or, which is the same thing, that it was composed of different persons from those composing the new"firm of Dyas & Co., then the old firm was as separate and distinct in law, from the new firm, as one man is from another, and its rights, duties, obligations and liabilities were as separate and distinct as those of one individual from those of another. And a debt due to the old firm would not be a debt to the new, for which the latter firm could maintain an action, for the want of that legal interest in the thing demanded, which is necessary to constitute a cause of action, or to give a party a legal standing in the courts.

On the other hand, the old and new firm, being considered in law as separate and distinct persons, with separate and distinct rights and obligations, could not as creditors join in the same action their separate and distinct demands against their debtor.

In the case of Weaver v. Armant, 14 An. 182, we had occasion to say “ that the law does not permit a creditor to sue all of his debtors in the same action, unless there is a joint liability, or privity of contract, which anthorizes the joinder ; nor will it permit a party to be joined in a demand in which he has no interest.”

The converse of this proposition is equally true, that is to say, the law does not permit separate creditors to join in an action against their debtor, unless there be a joint interest between them in the thing demanded, or a privity of contract, which authorizes the joinder.

To hold otherwise would bo at variance with the well settled rules of pleading, and might lead to a multiplicity and confusion of pleas and issues, at present unknown to our system of practice, to say nothing of the consequences of a general verdict and judgment rendered in such a case,, consolidating the claims into one, or allowing some, and rejecting others.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed, and that the cause be remanded to the lower court, for further proceedings according to law, and that the plaintiffs pay the costs of this appeal.


text:
    Bonner et als. v. M. A. Copley et als.
    In an action for tho recovery of damages, interest cannot be allowed on the amount found by the verdict or judgment.
    And in an action on a bond for the recovery of damages, the rulo is the same.
    In a suit on a sequestration bond, to recover damages for illegally suing out a writ of sequestration in a possessory action — Held: That interest could not be allowed on tho items of damage found against tho defendant.
    In such a suit, actual damages are all that the plaintiff is entitled to recover ; and the opinions of witnesses cannot form the basis of a verdict. But the witnesses should testify to the facts within their knowledge, and from those facts the jury should find the actual damage sustained by the plaintiff. Attorney^ fees are allowed as damages in cases of this character.
    APPEAL from the District Court of the Parish of Morehouse, Richardson, J,

      W. J. Q. Baker, for plaintiffs.

      Morrison & Purvis, for defendants and appellants.
   Land, J.

This suit was commenced on a sequestration bond, to recover the sum of five thousand dollars damages, for illegally suing out a writ of sequestration in a possessory action for a tract of land, by George W. Copley, now deceased.

The case was tried by a jury, who found a verdict in favor of the plaintiffs for the sum of $1,686 25, subject to a credit of $250, with eight per cent, per annum interest thereon, from the 1st of March, 1854, to the date of the verdict. rJ’lio finding of the jury was confirmed by the judgment of the lower court, and the defendants have appealed.

The jury, in their verdict, found each item of damage sustained by the plaintiff's, and gave interest on the same, at the rate of five per cent, per annum, from the date of the issue of the writ of sequestration. Among these items of damage, are two for attorneys’ fees, — one for $400, and one for $100, with interest on each from the same date.

This verdict is erroneous in allowing interest on the items of damage found against the defendants, from the date of the writ of sequestration.

In actions for the recovery of damages, interest cannot be allowed on the amount found by the verdict and judgment. 3 An. 702 ; 1 An. 382 ; 13 La. 371; 5 La. 328 ; 2 La. 580 ; 5 M. 11. And in on action on a bond for the recovery of damages, the rule appears to be the same. See Poydras v. Patin, 5 La. 328. In such cases, interest is not allowed, even from judicial demand.

The verdict, besides, awards to the plaintiffs excessive damages, on the evidence in the record. The proof of actual damage, which is all the plaintiffs are entitled to recover, does not show an actual loss exceeding two hundred and fifty dollars in addition to the fees of counsel incurred in the defence of the sequestration suit. The hypothetical opinions of witnesses cannot form the basis of a verdict in such a case. The witnesses should testify to the facts within their knowledge, and from these facts the jury should find the actual damage sustained by the plaintiff.

We find, however, in this case, the speculative opinions of witnesses, which may have had some influence with the jury in the formation of their verdict, and may account for the excessive damages allowed to the plaintiffs.

The items for attorneys’ fees are sustained by the evidence, and may be allowed as damages, under the decisions o£ this court in cases of this character. See Jones v. Doles, 3 An. 588.; Penny v. Taylor, 5 An. 713.

It is, therefore, ordered, adjudged and decreed, that the verdict of the jury be set aside, and that the judgment bo reversed; and it is now ordered, adjudged and decreed, that the plaintiffs recover of the defendants in solido the sum of seven hundred and fifty dollars, subject to a credit of two hundred and fifty dollars, with interest thereon at the rate of eight per cent, per annum, from the 1st of March, 1854, until the 14th of June, 1860, the date of the judgment of the lower court; and it is further decreed, that defendants pay the costs of the lower court, and that plaintiffs pay the costs of this appeal.


author: Vooehies, J.

text:
    Elizabeth Johnson v. Philo Alden et al.
    Where it is shown that an act of donation was not simulated, but a real contract entered ‘into between the parties, and carried by them into effect, the judgment creditors of the donor cannot disregard this transfer and proceed by execution.

    The distinction which is recognized between fraudulent and simulated contracts, — limiting in the former case the creditor defrauded to a direct action in revocation, and in the othor instance allowing the creditor to seize the property at once, — obtains in regard to donations.
    A judgment emancipating a minor cannot be attacked collatterally.
    An emancipated minor has not the right to donate his property.
    The nullity of such a donation is not however absolute, but relative ; it is intended for the minors protection, and whon ho becomes of age, he may ratify or confirm the obligation.
    When such a contract is entered into with sincerity, while the emancipated minor might seek protection from it on account of his legal incapacity to make such a donation inter vivos, yet creditors whose claims have sprung into existence since the douation was passed and executed, cannot avail themselves of this defect, where it is not a contract made in fraud of their rights, nor has proved injurious to them.
    APPEAL from the District Court of the Parish of Bossier, Egan, J.

      Robert J. Looney, for plaintiff.

      J. D. Watkins, for defendant and appellant.
   Vooehies, J.

The Sheriff, to whom an execution had been directed in the case of Taylor, Knap & Co. against M. O. Taliaferro, proceeded to seize in the hands of the plaintiff, Elizabeth Johnson, a slave, Mathilda by name, as the property of the judgment debtor.

The plaintiff filed an injunction and third opposition, claiming to be the owner by virtue of a donation from Taliaferro.

The act of donation bears date the 29th day of April, 1856 ; and the donee since has ever had the possession of the slave.

The judgment rendered in favor of the seizing creditors is dated the 15th day of September, 1858, suit having been instituted on a note dated the 30 th September, 1857.

It appears, consequently, that these creditors’ rights accrued over a year after their debtor had donated to the plaintiff the property in question.

As the evidence shows that the act of donation was not simulated, but a real contract entered into between the parties, and carried by them into effect, the creditor could not disregard this transfer, and proceed by execution. C. C. 1973,1975 ; 15 An.

The distinction which is recognized between fraudulent and simulated contracts, — limiting in the former case the creditor defrauded to a direct action in revocation, and in the other instance allowing- the creditor to seize the property at once, — obtains in regard to donations.

The defendants, however, contend that on other grounds, they were entitled to resort to summary process. They aver that the act of donation was absolutely null and void, because the donor was, at the time, a minor.

The donor had not attained the age of majority, but had been emancipated by the court, upon a recommendation of a family meeting. The under-tutor was not present at the deliberations of the meeting; indeed, it appears that there never had been appointed an under-tutor. Be this as it may, there was a judgment emancipating the minor ; and this judgment cannot be attacked collaterally, — still less by the creditors of the emancipated minor, the plaintiffs in execution.

It is further contended, that, admitting the validity of the proceedings of emancipation, the donor, being but an emancipated minor, had not the right to donate his property. Such is undoubtedly the law. C. C. 373, 376, 1463, 1464, 1740 ; Gregsley et al. v. Louisiana Bank, 3 La. 492. The nullity, however, is not absolute, but relative : it is intended for the minor’s protection, and, when he becomes of age, he may ratify or confirm the obligation. C. C. 2252.

As was stated above, there is no question as to the sincerity of the donation from Taliaferro to Elizabeth Johnson ; and, were the former to urge, in avoidance of this contract, his legal incapacity to make such a donation inter vivos, he would be entitled to protection. But these creditors, whose claims have sprung into existence since the donation was passed and executed, cannot avail themselves of this defect. It is not a contract made in fraud of their rights; nor has it proven injurious to them. C. C. 1973. The evidence shows, that in the intervening time, up to the moment that the defendants in injunction became the creditors of Taliaferro, the latter was in possession of a considerable estate.

The question again resolves itself into this, that, even should these creditors be entitled to ask the avoidance of this donation, — a donation real and sincere in point of fact, — they must resort to the revocatory action.

Judgment affirmed.


author: Voorhies, J.

text:
      A. B. James & Co. v. A. M. Alford & Co.—A. L. Shotwell, Warrantor.
    A party cannot be liold liable for the notes and obligations of a firm, of which he became a member while a minor, and from which he withdrew before he was emancipated, when it does not appear that he had been benefited by the concern, nor that he had committed a fraud upon the plaintiff.
    APPEAL from the District Court of the Parish of Bossier, Egan. J.

      Young & Killgore, for plaintiffs.

      Fort & Bro. and J. J). Watkins, for defendants and appellants.

      Robert J. Looney, and B. L. Hodge, for warrantor.
   Voorhies, J.

Suit was instituted upon two notes drawn by the firm of A. M. Alford & Co. in favor of A. B. James & Co.

The defendant, A. M. Alford, after filing a general denial, and calling A. L. Shotwell in warranty, amended his answer for the purpose of pleading minority.

Judgment was rendered in favor of the plaintiffs against the defendants, and in favor of the defendant Alford against Ms warrantor.

Alford alone appeals.

The plea of minority must prevail. Alford was an unemancipated minor when he became a partner in the firm of A. M. Alford & Co., and when he withdrew from the firm. It is true that he received, on his withdrawal, a draft for the sum of $2000, in payment of his interest or share in the-partnership; but this was the amount of his cash interest in the concern. ' It does not appear that, in other respects, he was benefited; nor that he committed a fraud upon the plaintiffs. There is, consequently, no principle of law or equity, by which the appellant can be held responsible in the premises. C. C. 379, 1775, 1778, 1869, 2225, 2252.

It is, therefore, ordered and decreed, that, as regards the appellant, A. M. Alford, the judgment of the District Court be avoided and reversed; and that there be judgment in his favor, rejecting tire plaintiffs’ demand, with costs in both courts.


text:
    Vicksburg, Shreveport and Texas Railroad Company v. E. C. Hart.
    . In an action to expropriate land for a railroad, or other work of public utility, under the Act of 1855, the plaintiffs are not bound to pay the jurors for their attendance.
    APPEAL from the District Court of the Parish of Caddo, Jones, J.

      L. M. Nutt, for plaintiff and appellant.

      Williamson <& Heath, for defendant.
   Merrick, C. J.

This proceeding is instituted under the Act of 1855, p. 33, for the expropriation of certain town property in Shreveport, for the purposes of the railroad.

The case was tried by a jury in conformity with the Act, and from the verdict and judgment of the court thereon, defendant appeals.

There is no bill of exceptions in the casé, and even the assignment of errors presents no question of law, as the jury do not appear to have regarded the Act of 1855, for they allowed the defendant more thau the value of the lots at the commencement of the undertaking.

We are unable, in the conflict of testimony, to revise the finding of the jury on the questions decided by them. They saw and knew the witnesses who testified,. and the verdict ought not to be disturbed on slight grounds.

The judgment must, however, be amended in one particular. The plaintiff ought not to be compelled to pay the jurors for their attendance. They are to be paid in another manner.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be reversed so far only as it condemns the plaintiff to pay the claims of the jury for their attendance; and it is further ordered, that in all other respects, said judgment be affirmed, the appellant paying the costs of the appeal.


text:
    O. O. Woodman v. Richardson & McFee.
    Whenever the plaintiffiii an action dies, after an answer has been, filed, the suit must be revived by the appearance of the legal representatives ; but this is not a new suit, and when the executor files an amended petition merely for the purpose of making himself a party to tho proceedings, tho defendant, although entitled to notice, cannot claim the legal delays allowed for answering tho original petition. He has the right to file an aswer lo tho amendment 5 but it must be done immediately, unless the amendment bo of such a nature as to induce the court, upon his motion, to grant further time for answering tho same.
    APPEAL from the District Court of the Parish of Ouachita, Richardson, J.

      Morrison <& Purvis, for plaintiff.

      R. Richardson, for defendants and appellants.
   Voorhies, J.

The plaintiff brought suit upon a promissory note executed in his favor by the defendants. After issue joined by the filing of an answer, he died.

The cause was continued from one to another term of court, for the purpose of having the suit revived in the name of the legal representatives of the deceased plaintiff : an order to that effect was entered upon the minutes of the court.

At the subsequent term, the suit was revived at the instance of the testamentary executor of the deceased; the petition containing the application was regularly served upon the defendants, as if this were an original suit, and the legal delays mentioned after the lapse of which the answer should be filed.

The cause was fixed for trial, and in the absence of the defendants’ counsel, judgment was entered up against them. Then followed an application for a new trial on the grounds that their attorney was unavoidably absent at the time of the trial, and that the amended petition was served upon them within ten days previous to the rendition of the judgment.

With regard to the first ground, the position is untenable : the evidence does not show affirmatively the unavoidable detention of the defendants’ counsel at the time of the trial.

N or does it appear that the defendants ever objected to the fixing of the cause for trial, or asked further time to answer the amended petition, by means of which the executor revived the suit in his own name.

‘‘Actions, says the Code of Practice, Art. 21, do not abate by the death of one of the parties after answer filed.” Under the Spanish law, from which is derived this rule of practice, the suit was to be prosecuted to an end, notwithstanding the death of the plaintiff, if there had been issue joined. Partidas, 3, 5, 23.

Whenever, under our system of practice, the plaintiff dies, after an answer has been filed, the suit must be revived by the appearance of the legal represents tives ; but this is not a new suit. If the executor files an amended petition merely for the purpose of making himself a party to the proceedings, the defendant, although entitled to notice, cannot claim the legal delays allowed for answering the original petition. He has the right to file an answer to the amendment; but, says the Code : “ it must be done immediately, unless the amendment be of such a nature as to induce the court to grant further time for answering the same.” C. P., Art, 4-21.

In the case at bar, no extension of time was demanded; but, on the contrary, the case was fixed for trial without objection on the part of the defendants. Their objection, therefore, that judgment was entered within ten days after the service of the amended petition, has no weight, especially as there is no intimation that the party had been taken by surprise.

Judgment affirmed.


text:
    Rugely, Blair & Co. v. Cyrus Gill.
    Whore a suit was brought in tho name of certain persons, as composing a commercial firm, and tho defendant excepted to the petition, upon tho ground that all the members of tho firm had not been joined, in tho action — Held: That where it was shown‘that the name of one of the persons used in the style of the firm was omitted, the burden of proof was on tho plaintiffe to sho wthat they alone composed the firm.
    Tho burden of proof is on the party who has to support his case, by proof of a fact of which he is most cognizant.
    In such a case as tho omission of ono of tho names appearing iu tho stylo of the firm, tho defendant is not bound to state in his exception the name of tho partner not joined in the action.
    APPEAL from the District Court of the Parish of Morehouse, Richardson

      Robert Richardson, for plaintiffs.

      J.Harvey Brigham, for defendant and appellant.
   Land, J.

This suit was commenced for the recovery of money paid by the plaintiffe, as accomodation acceptors of the defendant’s draft; for the recovery of attorney’s fees, interest and commissions, and to enforce a mortgage given by defendant to plaintiffe as a security for the reimbursement of the whole or any part of the draft that plaintiffe might be compelled to pay out of their own funds.

The suit was brought in the names of Rugely and Rochelle, as commercial partners, formerly doing a commission business under the firm, name and style of Rugely, Blair & Co.

The defendant filed an exception to the plaintiffs’ petition, on the ground that all the members of the firm of Rugely, Blair & Co. had not been joined in the action as co-plaintiffs, and prayed that the suit be dismissed.

No evidence was offered by the plaintiffs on the-trial of the exception; it was overruled; and from a judgment oil the merits against the defendant, be has prosecuted this appeal, and in this court insists, that the Judge below erred in overruling bis exception.

It is the opinion of the court, that the onus probandi was on the plaintiffs to establish the fact, that they alone composed the firm of Rugely, Blair & Co., because the name of “Blair," used in the style of tho firm, implied that he was a real person, and a partner in interest in the concern; and if so, he should have been joined as a party plaintiff in the action. But if the name of “Blair," in the style of the firm, were a mere fiction, then the fact should have been proved by the plaintiffe, because they were not only more cognizant of the fact, but the evidence of it, perhaps, was in their exclusive possession. The burden of proof is on the party who has to support his case, by proof of a fact of which he is supposed to be most cognizant.

It is further our opinion, that the defendant was not bound by the rules of pleading, to state in his exceptions the name- of the partner who had not been joined in the action, for the reason, the style of the firm name, in which the plaintiffs sued, shows a prima facie case of the existence and non-joinder of a real and necessary party to the suit, that is to say, the existence of “Blair," as a co-partner of the plaintiffs in the firm of Rugely, Blair & Co.

As the question as to the burden of proof might have admitted of some doubt, wo will remand the cause.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed, and the cause remanded to the lower court for a new trial on the exception for the want of proper parties, and for further proceedings according to law, and that plaintiffs pay the costs of this appeal.


author: ■Merrick, C. J.

text:
    Turner, Wilson & Co. v. R. R. Madden & Son.
    Whore a defendant desires to avail liimsolf of admissions contained in the original petition, lie should except to the amended petition, filed for tlie purpose of explaining the admissions made in the original, instead of answoring the same. When, an auswor is made to the amendment and the case tried, both petitions are to ho taken as a whole and construed together.
    APPEAL from the District Court of the Parish of Claiborne, Egan, J.

      McGuire & Ray, for plaintiffs. IVatMns & George, for defendants and pellants.
   ■Merrick, C. J.

The controversy in this case is confined to credits which should be allowed upon the promissory note of the defendants, the foundation of this suit.

In the original petition, plaintiffs allowed certain credits which did not correspond in dates and amounts with certain receipts which defendants set up in their answers.

Plaintiffs filed an amended petition, in which they explained the mistake made in the original petition.

The judgment of the District Court allowed the defendants the credits, which were admitted under the amended petition, and proved by the evidence.

The defendants appeal, and contend that they are entitled to the benefit of the admissions made in the original petition.

We are of the opinion, that the District Court did not err. The defendants, if they had the right, and intended to avail themselves of the admissions in the original petition, ought to have excepted to the amendment, instead of answering the same. When the case was tried, the original and amended petitions were to be taken as a whole; and so construed, they ceased to contain the admission relied on.

The case was, therefore, properly disposed of upon the evidence.

We see no reason to amend the judgment in plaintiffs’ favor. The proceeds of the 25 bales of cotton are alleged to amount to $1200, in the answer to the amended petition.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be affirmed, and that the defendants pay the costs.


author: Vookhies, J.

text:
    McCutcheon et als. v. McCutcheon et als.
    The will of a party contained a clause, by which more than the disposable portion of his property was to belong to his wife during her natural life, to use or dispose of as she thought best, either in her lifetime or at her death, for her benefit and the benefit of their children — Held: That the tenure of the -widow under this clause, is not that of an usufructuary, and that such a disposition of property is at variance with the provisions of the Code respecting the legitime.
    The tenure of the children, as heirs under such a clause, is not one recognized by our laws, and must be considered as not written. The will is, in that respect, null and void.
    APPEAL from the District Court of the Parish of Caddo, Jones, J.

      Williamson & Heath, for plaintifls and appellants.

      B. L. Hodge and F. P. Austin, for defendants.
   Vookhies, J.

Mark McCutcheon, deceased, left a will, by which he made a partition of his property between his children and surviving wife, widow in community.

He had been twice married, and left four children from each marriage.

Three of the children of the second marriage contend that the will is null and void, because provision is not made in their favor, as the law contemplates.

On the other side, it is contended that they are heirs, under the clause donating property to their mother, as follows :

“ I give and bequeath unto my wife, Palmelia E. McCutcheon, six hundred acres of land,_ the place where I now reside, together with all the improvements, and a cotton-gin, horse-mill, threshing-machine, farming tools, household and kitchen furniture,'two mules, four horses, all my cows and hogs, six oxen, two wagons, one buggy, and a negro man named Willis, one named Perry, one named Adam, one named Lenis, one named Jackson, a negro boy named Franklin, one named Emmanuel, a woman named Lucy, and her two children Ellen and Mary Jane; and I desire also Win. A. Hay good to have a negro girl in his possession named Sarah. The above described property to belong to the said Palmelia E• McCutcheon during her natural life, to use or dispose of as she thinks'best, either in her lifetime, or at her death, for her benefit and the benefit of her four children-Elizabeth A. Hay good, Sandford R. McCutcheon, Harriet E. Rose, andJRosellaJ, S. McCutcheon."

The tenure of the widow, under this clause, is not that of an usufructuary _ The property is bequeathed to her, with the limitation that it shall belong to her during her natural life; but she has the right to use and dispose of the same as she thinks best, either in her lifetime, and even after her death. In so doing, she is to act as much for her own benefit as for that of her children.

On the other hand, these heirs have no control over the acts of their mother in this respect. Their right vests only after her decease; for, in the meantime, she may dispose of the property as she thinks best. It is true that, in so doing, she must have in view as well the interest of her heirs, as her own; but that is a matter entrusted to her, and not to them.

Such a disposition of property is at war with the provisions of the Oode respecting the legitime; and, as the tenure of these heirs is not one recognized by our laws, and must be considered as not written, it follows that they are not participants, under the will, in their father’s succession. The will is, in that respect, null and void. C. C. 1122.

The question, whether the widow is entitled to the marital fourth, will come up more properly in the partition of the estate.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed; and that the will of Mark McCutcheon, so far as it disposes of his property, be set aside and annulled, the defendants paying the costs of the District Court, and the appellees the costs of appeal.


text:
    M. Childs v. G. A. Wilson.
    In a rodliibitory action, tlie plaintiff must sue to avoid the sale and. to recover back the price. Before he can recover tlio price, he must sue for and obtain, in the form prescribed by law, the avoidance of the sale.
    The right of a purchaser to recover damages for the value of animals, that have contracted a redhibitory diseaso, from those that were purchased, arises ex delicto, and cannot form the basis of a suit by attachment.
    APPEAL from the District Court of the Parish of Jackson, Richardson, J.

      Morrison $ Purvis, for plaintiff and appellant.

      McGuire <& Ray, for defendant.
   Land, J.

The plaintiff sues to recover the amount of two promissory notes, given by him for the price of a horse and mule purchased by him from the agent of the defendant; he also sues to recover the value of two other horses, on the grounds, that at the time the agent of the defendant sold to him the first named horse and mule, they were unsound and affected with a contagious disease called “ Glanders,” of which the mule died, and which rendered the horse worthless ; and that the “ two other horses ” contracted the disease from the horse and mule, and have died or been rendered valueless by it.

The defendant is a non-resident, and the suit was commenced by attachment. His attorneys moved the court to dissolve the attachment, for the reasons, that plaintiff’s petition shows no actual indebtedness of the defendant, and none is sworn to ; and that plaintiff’s demand is predicated on a claim for unliquidated damages which cannot be used as the basis of an attachment.

The plaintiff does not sue to avoid the sale, and recover back the notes given for the price; in other words, this is not a redhibitory action ; but he sues for the price, without seeking to disturb or annul the contract of sale, under which the horse and mule came into his possession, and under which he executed and delivered his notes to the defendant. This the plaintiff cannot do ; before he can recover the price, or the notes given for the price, he must sue for and obtain, in the form prescribed by law, the avoidance of the sale.

In respect to the promissory notes, therefore, the plaintiff’s petition discloses no cause of action, or actual indebtedness of the defendants to him.

As to the demand for the value of the two horses that contracted the disease after the sale, the right of action is ex delicto, and cannot form the basis of a suit by attachment.

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


text:
    N. A. C. Ethridge et al. v. G. H. Milling, Sheriff, et al.
    The flisriffcannot bo held to show the validity of a judgment which ho has been, commanded to execute, and to satisfy with moneys that may come into his hands. It is his duty to pay the proceeds of his sales ovor to the seizing creditors, shown to be entitled to them by the certificate qf mortgages and by the writs of fieri facias in his hemds. And if concurrent seizing creditors intend to contest each other’s right, or mortgage, or privilege, they mustdo so contradictorily with each other,whilst the proceeds remain with the Sheriff, and cannot afterwards hold him responsible for the payment of such proceeds to the parties shown by the writs and certificate of mortgages to have been entitled to the same. The creditor’s romedy is by third opposition, or action of nullity, to avoid the judgment recognizing the mortgage or privilege, aud ordering it to be enforced against the debtor’s property. Where a Sheriff, after having satisfied all the prior mortgages, pays over the entire balance of the proceeds of the sale, to one of several seizing creditors whose mortgages are concurrent, he is responsible to the others, for the amount, or pro rata of the proceeds, to which they were entitled at the time of the sale and distribution.
    APPEAL from the District Court of the Parish of Ouachita, Richardson, J.

      W. J. Q. Baker, for plaintiffs, and for Boston, appellant.

      McGuire & Ray, for defendants.
   Land, J.

A rule was taken in this case by certain judgment creditors of one B. W. Evans, on the Sheriff, to show cause why he should not pay the amount of their executions, with twenty per cent., per annum, interest, out of the proceeds of the sale of certain lands which had been sold by Mm, under seizures made by the plaintiffs, and other creditors, of the judgment debtor.

It appears that the entire property of the judgment debtor, had been sold by the Sheriff, and that the proceeds were insufficient to satisfy all the judgments, under which seizures had been made ; and that the Sheriff distributed the proceeds (with the exception of two certain sums retained to abide the event of two certain suits,) among the creditors acceording to the rank and priority of their mortgages, with the exception of the judicial mortgage in favor of A. C. & A. B. Beech, who have joined as plaintiffs in the rule in this case.

It is contended, that the Sheriff should not have paid a certain judgment in favor of Oalcey, Hawkins & Co., founded on a promissory note, secured by special mortgage, anterior in date to the judicial mortgages of plaintiffs in the rule, because the judgment was obtained, and the writ of execution was issued, and placed in the hands of the Sheriff, after their seizures had been made, and, because, the judgment itself was by confession, and its validity was subject to be questioned, so far as it recognized a special mortgage on the land sold ; and that as the Sheriff paid the judgment1, without an order of court, he is bound to show its validity, as against the seizing creditors, or to pay the amount of their judgments. We do not think these positions tenable. The judgment was valid and conclusive between the parties, and the Sheriff was bound to execute it in pursuance of the command of the writ, and to pay the proceeds of the sale over to the plaintiffs in execution, as creditors holding a superior, mortgage on the property seized and sold, The Sheriff cannot be held to show the validity of a judgment which he has been commanded to execute, and to satisfy with moneys that may come into his hands. It is his duty to pay the proceeds of his sales over to the seizing creditors shown to be entitled to them, by the certificate of mortgages, and by the writs of fieri facias in his hands ; and if concurrent seizing creditors intend to contest each other’s right of mortgage, or privilege, they must do so contradictorily with each other, whilst the proceeds remain with the Sheriff, and cannot afterwards hold him responsible for the payment of such proceeds to the parties shown by the writs and certificate of mortgages to have been entitled to the same. The creditors remedy is by third opposition, or action of nullity to avoid the judgment recognizing the mortgage or privilege, and ordering it, to be enforced against the debtors property.

As the Sheriff is not bound to show or maintain the validity of the judgment in favor of Oakey, Hawkins & Co., it is unnecessary to consider the other questions elaborately argued in the case.

Whether Oakey, Hawkins & Co. were the owners of the judgment rendered in their favor, at the time of the sale, or of the distribution of the proceeds, is a question in which the plaintiffs in the rule do not appear to have any interest.

The judgment of the lower court, discharged the rule as to all the plaintiffs, except A. C. & A. B. Beech, whose mortgage was shown by the certificate of mortgages, to be concurrent with that of C. D. Elliott, to whom the sheriff paid over the whole balance of the proceeds, after satisfying the prior mortgages — and is correct. The Sheriff is responsible to these creditors, A. C. & A. B. Beech, for the amount, or pro rata of the proceeds, to which they were, as seizing and mortgage creditors, entitled, at the time of the sale and distribution. This right is recognized and enforced by the judgment of the lower court.

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


author: Voobiiies, J.

text:
    Succession of D. W. Coxe.
    Actual dispossession is not always required in order to constitute an eviction. A purchaser maybe evicted, although ho continues in possession of the property, if that possession be under a different title ; as, for instance, if the vendee should subsequently hold under the true owner, either by inheritance or otherwise.
    These principles are not applicable to the case of purchasers under the “ Maison Rouge Grant,” who have availed themsolves of the Act of Congress passed for their reliof, and havo acquired the superior title of the United States. Such purchasers cannot be considered as having been evicted by the superior title of the United States, and have not the right to demand a repetition of the amounts paid by them on their purchases, from a party holding title under the grant. The title from the government must be considered as enuring to the benefit of their vendor, in aid and completion of the imperfect title transferred by him, on payment of the entrance money, and legal interest thereon, from the date of the receiver’s receipts.
    APPEAL from the District'Court of the Parish of Oaldwell, Mayo, J.

      John T. Ludeling, for Handy, Faulk and Felhiol, opposing creditors and appellants.
    I. Garrett, for the heirs and legatees of D. W. Coxe.

      Wade H. Hough,

    for absent heirs.
   Voobiiies, J.

The appellants purchased their respective tracts of land from Daniel W. Coxe, deceased, whose title, as derived by mesne conveyances, was based upon the grant to the Marquis de Maison Rouge.

The Supreme Court of the United States, in a case in which Daniel W. Coxe was a party, decided that the De Maison Rouge claim, or title, was null and void, and that the land in question belonged to the United States, by virtue of the treaty of cession of Louisiana. Vide 3 Howard 773, The United States v. Richard King and Daniel W. Coxe; 7 Howard 833, same case.

During the pendency of this suit, Congress passed an Act for the relief of purchasers under the Maison Rouge grant, in case of the final adjudication of the title in favor of the United States. (9 U. S. Stat. at large, 565.) The appellants availed themselves of the provisions of this Act; they entered their respective tracts of land, by virtue of the right of preemption, given to them by the above mentioned Act of Congress, of the 27th of January, 1851. This Act provides that, in the event of a final adjudication of the suit in favor of the United States on the Maison Rouge grant, every person, his heirs or assigns, who have prior to the 1st of March, 184 9, purchased land in good faith and for a valuable consideration from Daniel W. Coxe, or other persons holding titles under the said Maison Rouge grant, and who have improved and .cultivated the land so purchased, or any part of it, shall be, and they are hereby authorized to enter with the register of the land office, for the district in which said lands may be situated, as nearly as practicable by legal subdivisions, the whole or any portion of the tract so purchased> to include the residence and improvements, upon paying to the United States the minimum price of public lands.

It is admitted that the appellants remained in possession of the lands, which they had purchased from D. W. Coxe, since the date of the transfer up to the present time, and that they have in the meantime obtained titles from the Government by availing themselves of the Act of Congress above recited.

The question submitted for our consideration is, whether the appellants have been evicted by the superior title of the United States; and, if so, whether they are not entitled to demand a repetition of the amounts which they have paid on the purchase from Daniel W. Coxe.

It is well settled doctrine that actual dispossession is not always required in order to constitute an eviction. A purchaser may be evicted, although he continues in possession of the property, if that possession be under a different title ; as, for instance, if the vendee should subsequently hold under the true owner, either' by right of inheritance or otherwise. Eviction, as defined by the code, “ is the loss suffered by the buyer of the totality of the thing sold, or of a part thereof, occasioned by the right or claims of a third person.” O. O. 2476 ; 1 R. 362, Auguste Landry v. Honoré Felix Garnet; 11 R. 397, Isaac Thomas et als. v. Elizabeth Clemens et als ; 13 An. 390, Moses H. Butler v. James T. Watts.

The case under consideration does not seem. to be contemplated by the above quoted authorities, as will appear by reference to the facts. It is true, that the appellants have acquired the superior title of the United States ; but they were enabled to do so upon the express condition that they had purchased the lands from Daniel W. Coxe, in good faith and for a valuable consideration. That was the inducement that led Congress to confer upon them the extraordinary privileges granted by the Act of 1851. These purchasers cannot be allowed to avail themselves of the benefit of this Act, and then repudiate the contract which enabled them to obtain relief. Had Daniel W. Coxe entered these lauds, the title would have enured to the appellants’ benefit; and as it was through the titles, which he had transferred to them, that they were enabled to become the real owners of their respective tracts, there is no reason in law, and still less in equity, why these titles should be treated now as absolute nullities. It was as purchasers from Daniel W. Coxe — and purchasers in good faith and for a valuable consideration— that the appellants acquired the superior title of the United States ; and, had it not been for the transfer from Daniel W. Coxe to them, they could not have acquired the ownership of these lands.

We concur with our learned brother of the district court, who has favored us with an elaborate opinion in this case, that: The Act of Congress for the relief of persons holding under the Maison Rouge grant, was, no doubt, based on the good faith of the settlers, and on the supposition that they had paid the price for which they had purchased the lands. This seems to be the only reasonable mode of accounting for the distinction made in the Act between these settlers and ordinary preémptors. Under all the circumstances, the title from the Government must be considered as enuring to the benefit of Coxe, in aid and completion of the imperfect title transferred by him, on payment of the entrance money, and legal interest thereon from the date of the receiver’s receipts. Of this judgment the purchasers will have no right to complain, for the reason that its effect is to place them in the same position as though they had derived a perfect title from Coxe.’ ’

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


author: Mebbick, C. J.

text:
    Mahala Wood v. D. P. January.
    The terms father and mother, used in Art. 1481 of the Civil Code, refer only to the legitimate father and mother of the disposer.
    The natural parent cannot claim, as forced heir, any portion of the estate of his deceased illegitimate child, as against the universal legatee and instituted heir.
    There can he no irregular succession, much less forced heirship, where the illegitimate child disposes of his whole estate hy will.
    APPEAL from the District Court of the Parish Catahoula, Mayo, 3.

      James G. Taliaferro, for plaintiff and appellant.

      Smith & Spencer, for defendant.
   Mebbick, C. J.

The decision of this case turns upon the question, whether the natural mother can claim, as forced heir, any portion of the estate of her deceased illegitimate son, as against the universal legatee and instituted heir ?

It is true, that Article 1481 of the Civil Code declares that Donations inter vivos or mortis causa cannot exceed two-thirds of the property, if the disposer, having no children, leave father or mother, or both. But the terms father and mother in this Article (as correctly argued by defendant’s counsel) mean only the legitimate father and mother. The law on the subject of the inheritance by natural parents from their illegitimate children is treated of under another division of the Code, viz : that of irregular successions.” And by Article 874 it is apparent that there is no place for the irregular succession where there is an instituted heir. The article reads as follows : Irregular successon is that which is established by law in favor of certain persons, or of the State in default of heirs either legal or instituted by testament.”

These two last sorts of successions are the objects of the present title. Therefore, there can be no irregular succession, much less forced heirship, where the illegitimate child disposes of his whole estate by will. See also C. C. Arts. 919, 922, and 1314.

In the case of the succession of Maria J. Robert, 2 Rob. 424, the legatee took, by a decree of this court, the whole estate, to the exclusion of the natural mother, but the present point does not appear to have been presented by counsel for adjudication in that case.

The judgment of the lower court, in favor of defendant, must, therefore, be affirmed.

Judgment affirmed.


text:
    B. W. Burnham v. E. C. Hart.
    Attorneys’ Tees cannot be recovered as damages, in a redhibitory action.
    Tho plaintiff in a redhibitory action is entitled to recover, as damages and interest, five per cent, per annum on the price paid for the thing affected with the redhibitory vice, from the date of the sale.
    Tho defendant in such an action is entitled to five per cent, per annum interest, from his warrantor, from judicial demand.
    APPEAL from the District Court of the parish of Caddo, Jones, J.

      Hodge & Austin, for plaintiff. Landrum. & Williamson, for defendant. L. M. Nutt, for warrantor and appellant.
   Land, J.

This is a redhibitory action to avoid the sale of a slave, and recover back the price, expenses and damages, on the ground of the existence of the defect or vice of blindness at the time of the sale.

The defendant called his vendor in warranty.

The slave was a boy some ten or eleven years of age, and tho evidence adduced satisfied the jury who tried the ease, and satisfies us, that the slave was affected with the vice of blindness, resulting from an organic disease of the optic nerve (which is shown to be incurable) at the time he was sold by the defendant to the plaintiff, and also at the time he was sold by the warrantor to the defendant.

The blindness of the slave, however, was not sufficiently total, as to come within the class of apparent defects or vices, for the existence of any one of which the vendor is not liable, on his obligations of warranty.

The judgment is in favor of the plaintiff, and also in favor of the defendant over against his warrantor; but the judgment which is in favor of the plaintiff awards to him the sum of one hundred and fifty dollars, as damages for attorneys’ fees, in addition to the price, and the expenses incurred on account of the slave.

This court has held, and the jurisprudence is now considered settled, that attorneys’ fees cannot be recovered as damages, under Art. 2482 of the Civil Code. 19 La. 360, 13 An. 195, ibid 499. And as the word “damages” used in Art. 2482 is used in a sense not less limited or less general than it is in Art. 2523 of the Civil Code, there is no reason why the same word of the same legal import should be differently construed, and, under one Article of the Code held to exclude attorneys’ fees, as damages, and, under the other Article of the Code, held to include them as damages. The judgment is, therefore, in this respect, erroneous.

The plaintiff, as appellee, has prayed for an amendment of the judgment against the defendant; and the latter, as appellee in relation to the warrantor, has prayed for an amendment of the judgment against him.

The plaintiff claims five per cent, per annum interest on the price paid, from the date of the sale; and to this he is entitled, as damages and interest, under Articles 2523 and 1932 of the Code,- — as damages under the former Article, and as interest under the latter, from the time of default.

The defendant claims five per cent, per annum interest from his warrantor, from judicial demand; and to this he is entitled under Article 1932 of the Code.

It is, therefore, ordered, adjudged and decreed, that the judgment, as between the plaintiff and the defendant, be amended, and that the sum of one hundred and fifty dollars allowed as damages for attorneys’ fees, be rejected; and that the plaintiff recover of the defendant, as damages and interest, five per cent, per annum on the price paid, to-wit, $1000, from the date of the sale, to-wit, the 7th day of May, 1857 ; and that the judgment thus amended be affirmed, at plaintiff’s costs in this court. And it is further ordered, adjudged and decreed, that the judgment, as between the defendant and his warrantor, be also amended, and that the defendant recover of his warrantor five per cent, per annum interest on the price paid, to-wit, $800, from judicial demand; and that this judgment thus amended bo affirmed, with costs in both courts.


author: Vooriiies, J.

text:
    C. W. Millard v. Reuben Farley.
    In a suit to cancel a contract, where it would require a liquidation between the parties in order to ascer.tain their respectivo rights, the plaintiff is not bound to refund what he has received, before ho can be allowed to institute his action.
    Where there has bocu an active violation of a contract, the creditor is under no obligation to put the* debtor in default iu. order to entitle him. to his action to caned.,
    APPEAL from the District Court of the Parish of Morehouse, Richardson, J.

      Matthews & McFee, for plaintiff and appellant. John T. Ludeling, for defendant.
   Vooriiies, J.

An exception was filed to the plaintiff’s action and resulted in a judgment of dismissal.

The plaintiff appealed.

The object of this suit is to cancel a contract entered into between these parties.

The case, as presented by the pleadings, is as follows, to-wit:

C. W. Millard contracted with the Board of Trustees of the Masonic Female College for the erection of a college building. After commencing operations, Millard transferred his rights under the contract to Reuben Farley, and also a portable steam engine, mules, materials, &e., which were in use for that purpose, on condition that the latter would pay him one thousand dollars, — four hundred in cash, and the balance on credit, — and would assume the payment of liabilities of the former to third persons for the sum of six hundred and three dollars.

It appears that the defendant has received from the Board of Trustees the sum of three hundred and eighty-five dollars; and that he paid to the plaintiff the sum of three hundred and ten dollars in cash, and furnished his note for the sum of ninety dollars, to make up for the payment of the sum of four hundred dollars stipulated to be paid in cash.

The defendant disposed of materials for purposes other than the erection of the college building, and was enjoined from disposing of the rest to the prejudice of the plaintiff, who then proceeded to have the latter portion sequestered.

The plaintiff' notified the defendant to pay tho debts or liabilities due to third persons; but the same remains unpaid to the amount of $469 46.

The exception filed in this cause sets up that the plaintiff has not placed the defendant in mora, and has not offered to restore the price received.

“With regard to the second objection, it may be at once observed, that, if the allegations of the petition be substantiated by the evidence, the plaintiff will be largely the creditor of the defendant.

As it would, under the circumstances, require a liquidation between the parties, in order to ascertain their respective rights, it were doing a vain thing to compel the plaintiff to refund what he has received, before allowing him to institute his action.

The other objection is not tenable, under the distinct allegations of the petition, that there was, on the part of the defendant, an active as well as a passive violation of the contract.

The Code, it is true, says that a putting in default “ is a prerequisite to the recovery of damages and of profits and fruits, or to the rescission of tho contract ”; C. C. 1906 ; but this rule is modified by the provisions of a subsequent Article, in cases of active violation of contract. Then, the creditor is under no obligation to put the debtor in default, in order to entitle him to his action.” C. C. 1926. The plaintiff has complied with his obligations, and, besides, has in vain notified the defendant to take up the liabilities due by the former to third persons.

It is, therefore, ordered and decreed, that’the judgment of the District Court be avoided and annulled; and that this cause be remanded for further proceedings according to law, the defendant and appellee paying the costs of appeal.


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    Mary Summerlin et al. v. A. Livingston et al.
    Where a marriage is null and void no community can ever exist between the parties to it.
    Where a party legally married, before tho dissolution of such marriage, contracts another, tho latter contract is absolutely null, and is not susceptible of confirmation or ratification whether express or implied. Nor is it necessary that a direct action be instituted for the purpose of sotting it aside : its nullity may be demanded by way of exception or defence.
    In a suit for the settlement of tho community, tho surviving spouse may set up, for purposes of defence, tho nullity of tho marriage, arising from the fact that the decoasod was at tho timo of the marriage, legally married to another person; even though he was awaro of her condition at tho timo of their marriage. A party cannot avail himself of his own turpitude as tho basis of a domand; yet ho is not estopped when he resorts to it for purposes of defence.
    The admission by a defendant, in bis original answer, that bo married the deceased, will not estop him from amending his pleadings by alleging the absolute nullity ot such a marriage-
    A marriage absolutely null may produce civil effects ; but this takes place by special provision of law, and only in favor of the party who has actod in good faith, and in favor of tho childron born of tho marriage. The contract itself has in other respects no vitality.
    APPEAL from the District Court of the Parish of Morehouse, Richardson, J.

      Newton S Hall, for plaintiffs and appellants.

      W. H. Compton and Todd <& Brigham, for defendants.
   Vooriiies, J.

This suit involves mainly a settlement of the community, which had existed between Aaron Livingston and Ms deceased wife, Martha F. Hinson.

At the threshold of the investigation of this causo, our attention is arrested by two bills of exception, taken by the counsel for the defendant, Livingston. Both of these relate to a ruling- of the District Judge, with regard to the right of the surviving spouse to assail the validity of his marriage to the deceased.

Application was made, on the defendants’ behalf, to amend the original answer, in order to enable him to aver and prove that, at the time of his marriage with the deceased, the latter was a married woman, and had on that occasion, been guilty of the offence of bigamy.

It is evident, that the party has an interest in raising that issue; for, if the marnage be null and void, no community ever existed between him and the deceased. C. C. 115 et seq. But his opponents contend that this question cannot be raised in the present form; and furthermore, that the defendant is' estopped from availing himself of this plea.

“ Persons legally married are, until a dissolution of marriage, incapable of contracting another, under the penalties established by the laws of this State.” C. C. 94. The nullity of such a contract, is absolute; as it contravenes the policy of the law, and, besides, subjects the guilty party to a criminal prosecution. Such nullities are not even susceptible of confirmation or ratification, whether express or implied. C. C. 115, 2252. Nor is it necessary that a direct action be instituted for the purpose of setting aside the contract: its nullity may be demanded by way of exception or defence. See the case of Domec v. Barjac and Lalande, ante page 342.

It is true that, if the defendant was at the time aware of the condition of the deceased, and of her incapacity to enter into the bonds of matrimony, his course in marrying her was highly immoral and reprehensible. The record does not give any information on this subject; but, at all events, although the party could not avail himself of his own turpitude as a basis for a demand, yet he is not estopped when he resorts to it for purposes of defence. See the case of S. C. Weaver v. C. E. Alter, 15 An.

It is lastly contended, that, by the answer filed in this cause, the defendant, Livingston, is estopped from availing himself of the alleged radical defect of the marriage between himself and the deceased.

The admission by the defendant, that he married the deceased, is not inconsistent with the allegation that, in so doing, the latter committed bigamy. No doubt, the parties entered into the bonds of matrimony ; but it one of them was at the time incapacitated by a previous marriage, the second contract, although clothed with the forms of law, was radically null and void. It is true, that such a contract may produce civil effects; but this takes place by special provision of law, and only in favor of the party who acted in good faith, and in favor of the children born of the marriage. C. C. 120. But even then the contract itself has, in other respects, no vitality; aud, in legal parlance, the parties have never been married.

This case must then be remanded, to allow the defendant to amend his pleadings, for the purpose of alleging and proving the nullity of the marriage between himself and the deceased, Martha F. Hinson.

It is, therefore, ordered and decreed, that the judgment of the District Court be reversed; and that this case be remanded for further proceedings according to law, the plaintiffs paying the costs of appeal.


text:
    Vicksburg, Shreveport and Texas Railroad Company v. T. P. Hamilton.
    Whenever the contest between tho defendant and his warrantor puts at issue the defendant’s right to recover of the warrantor a sum exceeding three hundred dollars, although the demand of the plaintiffaud the actual demand in warranty be less than three hundred dollars, tho Supreme Court will have jurisdiction over defendant’s -demand against his warrantor.
    In the country parishes judgments aro only signed at the end of tho term ; and orders of appeal granted between the time of rendition of the judgment and signing by the District Judge, are not premature.
    In order to establish a valid contract, it should appear that the offer was not only seriously made, but accepted. •
    APPEAL from the District Court of the Parish of Claiborne, Egan, J.

      J. W. Thomasson, for plaintiff.

      W. J. Stirling, for defendant.

      McGwire & Ray, for warrantor and appellant.
   Land, J.

The defendant was sued for the sum of $281 25, tho'amount of certain installments due on his subscription to the stock of the railroad company. He confessed, in his answer to the petition, the plaintiff's demand, and called in warranty Sacie P. Gee, and prayed for judgment over against him for tho amount admitted to be due the plaintiff. The ground of the call in warranty is, the alleged promise of Gee, who was acting as tho agent of the company, to pay out the stocks, and take a transfer of the same to himself, at the time the subscription to the stock of the company was made by the defendant.

There was judgment in favor of plaintiff, and" judgment in favor of defendant over against the warrantor, who has alone appealed.

The defendant has filed a motion to dismiss the appeal, on the following grounds, to-wit:

1st. Because the amount in dispute does not exceed three hundred dollars.

2d. Because the.appeal was granted 'befóte the judgment had been signed in the lower court.

As to the first ground, it appears that the defendant subscribed to the stock of the company, six hundred and twenty-five dollars, in shares of twenty-five dollars each, to be paid on calls to be made by tho president and directors of the company; and that this suit was instituted for tho recovery of less than one-hall', of the amount of the defendant’s subscription to the stock of the company. The defendant’s call in warranty puts at issue Ms right to recover of Gee the whole amount of the stock subscription, that is to say, the sum of six hundred and twenty-five dollars, notwithstanding the demand in warranty is only for a part of it, to-wit, the sum of $281 25, the amount claimed by the plaintiffs. The controversy between the defendant and warrantor was thus made to cover an amount exceeding three hundred dollars, and was thereby brought within the jurisdiction of this court. See Williams v. Vance, 2 An. 909.

As to the second ground for the dismissal of the appeal, it is only necessary to remark that, in the country, judgments are only signed at the end of the term, and that orders of appeal granted between the time of the rendition and signing by the District Judge, are not premature. McGregor v. Barker, 12 An. 289.

On the merits, we are of the opinion, that the evidence is insufficient to establish a valid contract between the defendant and Gee, which could have been enforced by an action at law.

There is no proof that the defendant accepted the offer of Gee, and acted on the faith of it, at the time of his subscription to the stock of the company; nor is there proof of Gee’s acknowledgment of his legal liability to pay the amount of stock subscribed by the defendant, at any time subsequent to the subscription. As was said in the case of the plaintiffs against Terry, 13 An. 419, “ it should appear that the offer utas not only seriously made, hut accepted."

The judgment as between plaintiffs and defendant, we do not consider before us, on this appeal.

It is, therefore, ordered, adjudged and decreed, that the judgment as between the defendant and the warrantor, Sack P. Gee, be reversed; and it is now decreed, that there be judgment in favor of the warrantor, with costs in both courts.


text:
    James L. Jones v. Anderson Fleming.
    The form of tlie contract or instrument by which a surety binds himself for the payment of tho debt, in case the debtor should not himself satisfy it, does not affect tho surety’s right to plead, in bar of the action against him, bis discharge in consequence of a prolongation of tho term of payment, without his consent.
    There is no distinction between the surety who has bound himself in solido with the debtor, and the surety who has not so expressly bound himself.
    The release of one of the principal debtors, by the surety, from all liability to himself as surety, renders such debtor a competent witness for the surety.
    One witness is sufficient to prove tho payment or extingivislimmt of an obligation exceeding in amount or value live hundred dollors, without tho aid of coroborating circumstances, although his testimony se, would not be sufficient to prove a contract not reduced to writing, for the payment of money not exceeding that amount.
    APPEAL from the District Court of the Parish of Morehouse, Richardson, J.

      McGuire <& Ray, and W. A. Caperton, for plaintiff and appellant.

      Todd & Brigham, for defendant.
   Land, J.

The defendant is sued as one of the makers of a joint and several promissory note payable to plaintiff or bearer. The note was signed by McKee & Brakefield, by Samuel Fleming and by the defendant, Anderson Fleming.

The defence is, that the defendant signed the note as the surety of McKee & Brakefield, the principal debtors of the plaintiff; and that, since the maturity of the note, the plaintiff has prolonged the term of payment granted to the principal debtors, without his (defendant’s) consent, and thereby discharged his obligation as surety to pay the note.

This defence is founded on Art. 3032 of the Civil Code, which declares, that the qirolongation of the term granted to the principal debtor, without the consent of the surety, operates a discharge of the latter. And the evidence adduced to prove the alleged prolongation of the term of payment consists of the testimony of one of the principal debtors, taken under a commission, after he had been released from all liability by the defendant to himself, as surety on the note.

To the defence thus made out, both on the law and the fact, the plaintiff objects :

First. That the defendant cannot avail himself of it, for the reason, he signed the note as a joint and several maker, and bound himself in solido with the other makers, for its payment.

Secondly. That if the principal debtor is not an incompetent witness for the defendant, his surety, even after a release by the latter, his testimony is insufficient in law, without the aid of corroborating circumstances to establish the alleged giving of time in tho defendant’s answer.

1st. The form of the contract or instrument by which a surety binds himself for the payment of the debt, in case the debtor should not himself satisfy it, does not affect the surety’s right to plead, in bar of tho action against him, his discharge, in consequence, of a prolongation of the term of payment without his consent. The phraseology of Art. 3U32 is too general to admit of any exception; and besides, comes after Art. 3014 of the Oodc, which treats of the surety’s obligation in solido with the principal debtor,- — and no distinction is made by the former Article between the surety who has bound himself in solido with the debtor, and the surety who has not so expressly bound himself.

2dly. The release rendered the debtor a competent witness for tho defendant, because, by virtue of the release, the debtor ceased to have any interest in the event of the suit pending between the parties. One witness is sufficient to prove the payment or extinguishment of an obligation exceeding in amount or value five hundred dollars, without the aid of corroborating circumstances, although his testimony per se would not be sufficient to prove a contract not reduced to writing, for the payment of money exceeding that amount. See Parmer v. Dison, 2 An. 536.

There is nothing in the record to impeach the testimony of the debtor, and consequently, nothing to destroy the credibility to which his testimony is entitled.

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


author: Mereick, O. J.

text:
    Vicksburg, Shreveport and Texas Railroad Company v. N. R. Hempkin et al.
    The decision in the case cf Nbuvet v. Arma/nt, 12 An. 72, affirmed, to the effect that, whore tho appeal hend was insufficient at tho timo the appeal was brought up, the substitution of a now bond cannot euro tho dofect.
    APPEAL from the District Court of tho Parish of Ouachita, Richardson, J.

      Morrison tSs Purvis, and McGuire & Ray, for plaintiff and appellant.

      S. L. Stuck, for defendants.
   Mereick, O. J.

There is a motion in this case to dismiss the appeal, which must prevail. The order of the Judge allowed a devolutive appeal, on giving bond in the sum of two hundred dollars.

The bond given was in the sum of one hundred dollars. The appellants offer to substitute a new bond in this court.

The case of Nouvet, syndic, v. Armant, seems to be decisive on this motion. The bond being defective at the time the appeal was brought up, cannot be cured by the substitution of a now bond in this court. 12 An. 72.

It is, therefore, ordered, adjudged and decreed, that the appeal in this case be dismissed, at the costs of the appellant.


text:
    William Prather v. A. J. Bobo, Sheriff.
    Where it is sliown that a party depends entirely upon his trade as a printer and editor for means of support, his printing press and materials necessary for the exorcise of his trade are exempt from seizure under Art. 644 C. P.
    Tho tools and instruments, exempted from seizure by law, must be necessary and not merely convenient for tho exercise of the trade by which tho debtor gains a living.
    APPEAL from the District Court of the Parish of Morehouse, Richardson, J.

      D. C. Morgan, and John T. Ludeling, for plaintiff and appellant.

      Morrison <® Purvis, for defendant.
   Voorhies, J.

The plaintiff has enjoined the execution of a judgment rendered against him in favor of the appellees, Byrne, Vance & Co. He contends that, under Art. 644 of the Code of Practice, the Sheriff proceeded illegally to seize his printing press and materials.

The evidence shows that Prather is a printer by trade; that he is the owner and editor of a paper called the Morehouse Advocate; that he himself, with- the assistance of two workmen, does the printing in the establishment; and that his circumstances are such, that it is with the means derived from this source that he gains a living. The press and materials are stated to be worth about the sum of eight, hundred dollars.

Tho law exempts from seizure “ the tools and instruments necessary for the exercise of the trade by which he (the debtor) gains a living.” C. P. 644. In construing this text, the courts have held that the books of professional men were exempt from seizure; and so, of the commercial books and counting-house furniture of a merchant, and of iron chests found in the counting-house, in which are kept the books and papers. Lambeth v. Milton, 2 R. 81; Farmer’s Bank v. Franklin, 1 An. 393 ; Harrison & Co. v. W. W. Mitchell et als., 13 An. 260.

In the case of Hanna v. Bry, it was held that a doctor’s horse could not be fairly comprehended under the denomination of tools and instruments necessary for the exercise of his profession. “ His surgical instruments, said the court, those for the preparation of medicines usually employed by country practitioners, and possibly, under the dictum in Milton’s case, 2 R. 81, his medical library, are protected by the Code. But we cannot go further, and treat as tools and instruments of his profession all other things that contribute to its convenient exercise.” 5 An. 655.

In the case at bar, the exemption from seizure finds its application; for the materials levied upon are, not merely convenient, but necessary to carry on tho debtor’s trade,- — -they are his indispensable tools and instruments. And as this is the only means by which he gains a living, and is enabled to sustain himself and family, and as these materials are'the implements of the trade, which he carries on with his manual labor, they become, under the Article of the Code, exempt from seizure.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed ; and that there be judgment in favor of tho plaintiff and appellant, perpetuating tho injunction sued out in this case, the defendants and appellees paying the costs of both courts.