author: Porter, J.,

text:
    HANSE & HEPP vs. NEW-ORLEANS MARINE AND FIRE INSURANCE COMPANY.

    APPEAL FROM THE PARISH COURT FOR TIIE PARISH AND CITY OF NEW-ORLEANS.
    Eastern Dist.

      March, 1830.
    The expenses of the crew of a vessel, for their wages and provisions, during ■ her detention at an intermediate port, to refit or repair injuries sustained on the voyage, from the time of her putting away for the port, and every other expense necessarily incurred during the detention, for the benefit of ail concerned, arc subjects of general average.
    In an action, against the insurers in which the assured claim the whole amount insured, or such proportion of the average loss as they liaye sustained, they may prove and recover a general average.
    The insured may sue the underwriters directly, without the amount being settled by the parties subject to the contribution as on a general average, especially when there is nothing else to contribute in settling the average but property for which the insurers are already liable.

      Where the error is in the amount of the sum found by the verdict, and depends on calculation, the Supreme Court will correct it without setting the verdict aside.
    This is an action on a policy of insurance, to recover the ' . , , amount insured on a steam-boat.
    The plaintiffs allege that they insured the sum of five thousand dollar's, at the office of the defendants, on their steam-boat, called the Fair Star, her engine, tackle* apparel, &c., for the term o'f six months, commencing the 5th March, ,1828; the boat, engine, tackle, &c., being valued at twenty thousand dollars. That on or about the 31st of August or 1st of September, 1828, near Biloxi, the boilers of the boat cracked and bursted, by which her value was destroyed, and damage done to her engine, tackle and materials to the sum of ten thousand dollars, and more than fifty per cent., on the sum insured; that said damage and injury was caused by the winds, waves and fire, and other perils insured against; the sea, before and at the time of said loss and damage running high, which caused the boat to fetch and roll excessively. They further allege, that as soon as the loss and damage was known, the boat was abandoned to the insurers. That said boat, engine, tackle, &c., sustained an average loss of ten thousand dollars, in consequence of the perils insured against: wherefore they pray, that the defendants be adjudged to pay to them the said sum of five thousand dollars, or their proportion of such average loss and damage as has been sustained, and which they allege amounts to five thousand dollars ; and for such other relief as the case requires.
    The defendants admitted the execution of the policy sued on, and pleaded a general denial; they denied especially that any event had happened which could make them liable.
    The policy is dated the 5th of March, 1828, and declares that “ Hanse & Hepp, as well in their own name as for and in the name of every other person to whom the same may appertain, doth make assurance, and cause themselves and every of them to be assured, lost or not lost, at and from-, upon the body, engine, tackle, apparel, &c., of the good steam-boat Fair Star,” &c. “The said boat, engine, tackle, &c., for so much as concerns the assured by agreement between the assured and assurers in this policy, are and shall be valued at twenty thousand dollars, without any farther account to be given by the assured to the assurers. Touching the perils which the assurers are con tent, to bear in the voyage, they are"of the river and fire, and all that shall have or come to the hurt, detriment or damage of the said steamboat, engine or any part thereof. And in case of loss or misfortune, it shall be lawful for the assured, &c., to sue, labor and travel for, in and about the defence, safeguard and recovery of said'steam-boat, &c., without prejudice to this insurance; to the charges whereof, -we, the insurers, will-contribute according to the rate and quantity of the sum herein insured. We, the insurers, are contented to bind the capital stock of the New-Orleans Marine and Fire Insürance Company to the assured, &c., at the rate of six per cent, for six months; and in case of loss, the assured are to abate two per cent., &c.
    “ Memorandum,. It is agreed, that the assured are not to abandon on account of the steam-boat grounding or being otherwise detained. Also, that the said steam-boat is warranted by the assured free from average under fifteen per cent., unless general. And when a simple average loss shall be on account of repairs, &c., the assurers shall be answerable for only two thirds of the expenses of reparation, or replacing the property lost; the other third being considered as the general difference of value between new and old materials.
    “Warranted stiff, stanch, sound, in good condition, seaworthy and well found in all things necessary for the above named voyage, at the time of her departing from the port or place first above named.

    “ Five thousand dollars on the hull and materials of the-above boat; to run as a regular packet from this place (New-Orleans) to Mobile, Pensacola and all intermediate places on the lakes, for six months from this dale (March Stb, 1828;) valued as above. /

      “ Five thousand dollars is already insured by this company, five thousand dollars by the Mississippi office, five thousand dollars by the Louisiana State Insurance office.” .
    The evidence showed that the boat left Mobile the 31st August, 1828, at mid-day, for New-Orleans, being the last trip she could make within the policy, with strong gales and occásional 'squalls. She labored heavily from the swell and rolling of the sea, and about seven o’clock, P. M., the packing of the cylinder flew out, which caused her to come to. The hands were employed in repacking the cylinder, and the winds and sea increasing. On the 1st of September, about seven o’clock, A. M., being near the bay of Biloxi, the packing again blew from the cylinder; but the boat succeeded in getting up to the bar, came to anchor, landed some way-passengers at Biloxi, and packed the cylinder anew. She raised steam and got in readiness to proceed, when a sudden explosion of steam took place, which filled the hold with heat and vapor. On examination, it was discovered the outer starboard boiler was rent near two feet, which rendered it impracticable to proceed. The mail and passengers were sent in a boat to New-Orleans, and to inform the owners of the accident and procure an engineer and materials requisite for repairs. On further examination, it was found the larboard outer boiler was eracked, and leaked so as to prevent being filled. The engineers finally concurred in opinion that it would be impossible to refit the boilers for use, without taking them out, if even then. On the 29th September, the boat and her machinery was towed, with the assistance of the schooner Emblem, into the bayou St. John, to the bayou bridge.
    A survey of the boat and machinery was had at the instance of the plaintiffs, by the port wardens of New-Orleans, assisted by a master shipwright and two engineers, who state in their report: “Having examined minutely the boilers, two of which were moved forward to the fore hatches for light, and the others remaining in their beds, room sufficient being left by the removal of the others to allow them to be perfectly examined, found them all five

      completely v>orn and burned out; the substance of the iron entirely destroyed by salt, mud and corrosion,” &c.
    The testimony was contradictory, as to the charge of negligence of the captain and engineers. The experts who examined the boilers afterwards, say, they must have been red hot, and nearly without water, when they exploded. An engineer who examined them, says the iron was rotten ; that he could sink his hammer through it. It was in proof, that new boilers were procured before the boat was fit for service again.
    The engineers estimated the loss to the owners in repairing the boat, at seven thousand dollars. The old materials on hand and retained by the owners, were valued at two hundred dollars. The bill of expenses, including the wages and provisions of the boat, officers and crew, also including an item of four hundred and twenty-seven dollars, pSid to a.Mr. Wood for attending the boat nine or ten months after she was brought into the bayou St. John, amounted to one thousand six hundred and eleven dollars and twenty-three cents.
    The cause was submitted to a jury. At the close of the trial, the counsel for the defendants moved the court to charge the jury, that the wages> and provisions paid and consumed during a delay to repair, or after the accident, in case she does not repair, were not chargeable to the insurers, under a’ partial loss on the “hull and materials” of the vessel. The court refused the charge, and a bill of .exceptions was taken to the refusal.
    A further charge, that “ the insurers were not liable for losses or accidents occasioned by the negligence and misT management of the insured or their agents,” was required ; but the judge refusing, his refusal was excepted to.
    The jury returned a verdict of one thousand and eighty-three dollars for the loss, and five hundred and sixty-two dollars and forty cents for expenses; in all one thousand six hundred and forty-five dollars and forty-five cents; which, upon motion, was set aside, and a new trial ordered.

      At the second trial, the same evidence was before the jury. 'rpwo kips 0f esiception were taken by the defendants’ counsel, similar to those on the first trial, and are stated in full in the opinion of the court. The jury returned a verdict of one thousand five hundred and fifty dollars for the plaintiffs, with interest from judicial demand, which was confirmed by the judgment of the court.
    The following, entitled “plaintiffs’ estimate,” is in the papers of the suit:
    Engineers’ estimate of repairs is....$7,000
    One third deducted, new for old,. 2,333
    4,667
    Expenses for wages and provisions, excluding $427, 1,184
    o,851
    The defendants only being liable for one fourth,.. .$1,463
    The defendants being dissatisfied with the verdict and judgment, appealed.

      Lockett, for the plaintiffs, contended :
    1. That this was a case of general average, in which the defendants were directly bound to the insured for the amount of the loss. Suppose a ship in ballast at sea, owned by one person, encounters a storm which requires her to cut away her masts voluntarily, to save the vessel, and puts into an intermediate port' to repair. She is detained to make these repairs, and keeps the crew on wages and provisions ; what kind of loss would it be % It is the very definition of a general average.
    2. But it is objected, that there is no cargo, no freight and but one owner; consequently, there can be no contribution and no general average, and the underwriters are therefore not bound to pay. In answer to this, suppose the ship were insured by four companies, each five thousand dollars, and the loss, including wages and provisions, is four thousand dollars, would the insurers contribute each one thousand dollars, to pay this loss of four thousand dollars 1 Can there be any doubt about this 1 Here would be a voluntary sacrifice and a contribution, the very essence and definition of a general average.
    3. But the loss may be called by what name the defendahts’ counsel pleases; it is still a loss. If the ship had perished, there would have been a total loss, and the insurers would have been bound to pay the full value, to wit: twenty thousand dollars; each insurance five thousand dollars.
    4. In the case before the court, the boat was insured by three insurers when the accident, happened, which required her to stop at an intermediate port, and repair. The injury sustained was by one of the’perils insured against, by which the insurers were' bound to make good the damage. If she had been totally lost, they would have been bound for the entire insurance on her.
    5. But suppose it only to be a partial loss, we are completely sustained by the, authorities. A particular average is called partial loss, and the insurers are liable to pay the damage happening to the thing insured, or the expenses incurred exclusively on its account and occasioned by the perils insured against. Phillips on Insurance, 369.
    6. The cases cited by the defendants sustain the plaintiffs. A case from 11 Johnson, is relied on: in that case, insurance was effected on the ship Orbit, from New-Yorlc to Liverpool and back to the United States. The vessel, on her outward voyage, sustained considerable injury, so that on her arrival at Liverpool she was put into dock, and remained four or five months. On suit being instituted for the wages and provisions of the crew during this time, it was held that these expenses were incurred before the vessel arrived at her port of discharge, and were necessary for the prosecution of the voyage. 11 Johnson, 320. 1 Caines, 537. 2 Ibid., 263.
    7. In the present case, the crew remained on board to take care of the boat, and their wages and provisions form as fair a claim to reimbursement as any other expense incurred. See also Boulay-Paty, rol. 4, 12.

      Slrawbridge, for the defendants, contended :
    1. That the judge a quo erred in refusing to instruct the jury that the insurers were not liable for.losses occasioned by the negligence or mismanagement of the insured or their agents, unless so expressed in the policy. In consequence of this refusal, the jury retired, not to consider whether the accident and loss happened by the negligence or misconduct of the plaintiffs’ agents, but merely to settle the amount for which the defendants are to be made liable: a mere inquest of damages.
    2. The testimony clearly shows, that there was negligence and mismanagement. • The boilers were suffered to become empty and red hot, which was evidently the principal cause of the disaster; none can say the jury could not have found proof of negligence.
    3. The plaintiffs rest their case and right to recover wages and provisions in this action, on the clause in the policy .which says the insured may sue, labor and travel for, &c.. in case of loss, &c. If by this they mean we are to contribute to expenses for the general benefit, it is admitted; but if we are to be liable for expenses properly chargeable to another subject as to the vessel or freight, or for expenses not customarily chargeable to the ship, we deny their right to recover.
    4. It has been a matter of debate among judges, whether wages and provisions were allowable even in a case of general average. It was argued from the bench that they were not, but that they were a charge on the freight, and that the underwriter on freight was to bear the loss. 2 Caines, 266, 279. 4 Dallas, 247.
    5. It has also been decided, that these charges were not a partial loss on .the freight. 2 Binney,. 547. And it is remarkable that all these cases, as well as those quoted in the argument at bar, concur in the opinion that they are not chargeable to the ship.
    6. Usage affects the construction of the policy. Phillips on Insurance, 14. No clause is found which can make an underwriter on a ship liable for looses on the cargo, or vice . ... i, , versa; and yet this happens every day, by contribution to general average. The whole system of contribution, what losses or expenses are to be contributed for, what property and in what proportion the contributions are to be made, rests on usage;- and in every case cited, is an authority to show that wages and provisions are not, by commercial usage, a charge against the ship in partial loss, either as expenses or otherwise.
    The counsel for the plaintiffs seems to think the clause authorizing in case of loss, the insured to sue, travel and labor for, &c., is peculiar to this policy,, and that it has never been the subject of examination, and that it is an express authori-sation for him to recover. See the following cases on this subject. 7 Johnson, 422 and 432, and the cases therein cited. 1 Connecticut Reports, 243. 7 Cranch, 419.

       This case was omitted to be reported in its proper place and time, through inadvertence. It is now given as an important case.

   Porter, J.,

delivered the opinion of the court.

This action is brought on a policy of insurance, executed by the defendants on the steam-boat Fair Star, .her engine, tackle, &c., for the sum of five thousand dollars, the one fourth of her value. The petition charges the loss of ten thousand dollars by the bursting of the boilers, caused by the winds, waves and other perils insured against; and alleges that .an abandonment was made to the company, who by reason thereof, have become liable to pay the sum of five thousand dollars, with interest and costs. .

The petition further alleges that the boat, engine, tackle and materials, have sustained an average loss and damage to the amount of ten thousand dollars, in consequence of the perils insured against, and it concludes by a prayer for the condemnation of the defendants in the sum of five thousand dollars, with interest and costs, or their proportion of such average loss and damages as the petitioners have sustained.

The general issue was pleaded, and the cause submitted to a jury, who found a verdict in favor of,the plaintiffs-for the sum of one thousand six hundred and forty-five dollars and forty cents, with interest from judicial demand. This verdict _was set aside on application of tbe defendants, and a new trial granted. The jury who passed on it the second time, gave a verdict in favor of the petitioners for the sum of one thousand five hundred and fifty dollars, with interest. On this finding, the court below rendered judgment for the sum just stated, with interest from judicial demand. The defendants made an unsuccessful attempt to obtain a new trial, and appealed.

There are two bills of exception, which present the questions of law on which the case has been litigated. One is, to a refusal of the court below to charge the jury that the insurers were not liable for losses occasioned by the negligence or mismanagement of the insured or their agents, unless so expressed in the policy.

' A great deal of research has been exhibited by the counsel on both sides, in the discussion of this question, tyut we do not find it necessary to express an opinion on it. The evidence is spread on the record, and we are unable to discover any thing in it which authorizes an allegation of this icind, or which could have required the application of the doctrine on which the appellants rely. It would be improper, therefore, to remand the cause to obtain the opinion of the judge a quo on an abstract question, not necessary to the decision of the case.

The other bill of exception is in the following words : “ At the trial of this cause, the counsel for the defendants moved the court to charge the jury that tbe wages and provisions paid and consumed during a delay to repair, or after the accident in case she does not repair, -were not chargeable to the insurers, under a partial loss on the hull and materials of a vessel; and the court refusing so to charge them, the defendants tendered their bill of exception,” &c.

We will first examine the question, whether the insurers are responsible for the wages and provisions of the crew during the time the vessel remains in an intermediate port for repair, and then see whether there was error in the judge’s not giving the particular charge called for; and if there was, what should be the effect of it.

The expenses of the crew of a vessel, for their wages and provisions, during her detention at an intermediate port, to refit or repair injuries sustained on the voyage, from the time of her putting* away for the port, and every other expense necessarily incurred during the detention, for the benefit of all concerned, are subjects of general average.

According- to the principles adopted in the English courts, the expenses of the crew for their wages and provisions during the detention, of the vessel to refit, are not subjects of general average; and the non-liability of the insurers -to reimburse them, seems well established in that country, notwithstanding some doubts expressed by writers on this branch of maritime law.

In one case, which came before the court of king’s bench, the reasoning of the chief justice would seem to show the propriety of admitting them as a charge against the insurers, for he is reported to have said, “ if the return to port was necessary to the general safety of the whole concern, it seems that the expenses unavoidably incurred by such necessity, may be considered as the subject of general average.” Subsequent decisions, however, have not carried, out the doctrine to the extent contended for in this case by the appellees. Parke on Insurance, 174. 2 Condy’s Marshall, 720. Hughes on Insurance, 290, 292. Beames, 166. Benecke on Indemnity, 462. Abbott on Shipping, (ed. 1829,) 349. 3 Maule & Selwyn, 482. 4 Ibid., 141. 2 Barn. & Cres., 805.

In France, such charges were reputed general average if the vessel was hired by the month;- but if hired by the voyage, the expense was borne alone by the ship, as a particular average. Valin vehemently contested the justice of such a distinction, and the commission charged with the preparation of the late code of commerce of that country, abolished it by the work which they drew up for legislative adoption. On the representations, however, made by the tribunal of commerce of Havre, it was established, and is now the law of that portion of the continent of Europe. Emeregon, vol. 1, 539 and 625. Pothier, Traité du Chartre Partie, No. 85. Boulay-Paty, vol. 4, 452 and 454.

The Law Merchant of the United States is contrary to that of England, on this point, and does not recognize the distinction of the French jurisprudence. , With us, it appears well settled that the wages and provisions of the crew, from the time of putting away for the port, and every other expense necessarily incurred during the detention for the benefit of all concerned, are subiects of general average. . - . . _ ? lhe reasoning of justice Sewell, m delivering the opinion of Supreme Court of Massachusetts, appears to us to express with clearness and correctness the grounds on which such a rule has been established. “A liberal construction,” says he, “in this respect, appears conducive to the interest of the insurers in-the benefit they derive from every reasonable precaution against impending and extraordinary risks, such as the continuing at sea with a vessel disabled in her sails and rigging. By rendering all concerned liable in a general contribution to defray the extraordinary expenses of seeking a port, and of the detention there to refit, the hazard of opposing interests is avoided, and a security common to all concerned is purchased, as it ought to be, at their common risk and expense.” Phillips on Insurance, 348. 4 Massachusetts Reports, 548. 7 Ibid., 365. 3 Kent’s Commentaries, 250. 4 Dallas, 246. 2 Binney, 547. 2 Washington’s Circuit Court Reports, 226. 2 Connecticut Reports, 239.

In an action against tiie in-supers, in which the assured claim mount ^insured" or such proportion of the average loss as they they mayprove and recover a

■ The insured may sue the derwntors direetiy, without ing "settled by ject to'the contribution as on a especiallye,v\d?en elie6to "contribute in settling the average but property for ere^are1 already liable.

Having thus ascertained the liability of the defendants for the wages and provisions of tbe crew, during the period the , , , , , . ... steam-boat was detained at Biloxi, our next inquiry is wh®1!161' the plaintiffs can recover them in the present action, The petitioners demand judgment against them for five , , 1 ,, . , i . , . thousand dollars, the whole amount insured, or their propor7 ^011 such average l°ss and damage as the plaintiffs might have sustained; which average loss,, however, they aver amounts to five thousand dollars. Under these allegations, thilik the plaintiffs could properly prove a general r r r J r . ° average. We are not aware what other objection could be made to the action, except that of the amount not being set^ec^ by parties subject to the contribution, before recourse was had on the insurers.

But, although the decisions are somewhat contradictory 011 ^'s P°inb we apprehend that the insured may do so, in a case like that before the court, where it is not shown there , . 1 ... . . was any thing else to contribute in settling the average, but property for which the defendants are responsible. 7 Johnson, 412. Phillips on Insurance, 353. 4 Binney, 502. 1 Caines, 196.

Where theer-ror is m the amount of the th^er'dietf and ga*” preme ’ Court wi&ou^setting theverdietaside

Under this view of the case, we cannot see what object, .useful to the defendants, could have been ’ obtained by claiming the instructions from the judge a quo, that the defendants were not responsible on a partial loss. Admitting they are not, if they were so on a general average, it is immaterial how the judge charged the jury on this point in relation to what his opinion was requested.

'There remains for our consideration the amount found by . . the jury. On questions of fact, we rarely interfere with the decision of the country. If we do so on this occasion, it is because taking every loss proved at the highest rate established by the evidence, the verdict is for too large a sum. The error, therefore, being one of calculation, it behooves us to correct it. Taking the estimate of the engineers at seven thousand dollars, and deducting from it one third of the difference between new materials and old, we have four thousand six hundred and sixty-six dollars. To this must be added the amount of expenses (deducting the charge for attendance on the boat after her arrival in New-Orleans four hundred and twenty-seven dollars and fifty cents, leaves one thousand one hundred and eighty-three dollars and seventy-three cents,) which added to four thousand six hundred and sixty-six dollars, gives five thousand eight hundred and forty-nine dollars and seventy-three cents. From this must be deducted one fourth of the value of the old materials, fifty dollars, and we have five thousand six hundred and forty-nine dollars and seventy-three cents, of which the defendants are responsible for one fourth, that is, one thousand four hundred and forty-nine dollars and ninety-six cents; from which twOper cent, is to de deducted according to a clause in the policy, and the balance will be one thousand four hundred and twenty dollars and ninety-eight cents, for which the plaintiffs are entiiled to judgment.

It is, therefore, ordered, adjudged and ,decreed,' that the judgment of the District Court be annulled, avoided and reversed, and the verdict set aside; and it is further ordered, adjudged and decreed, that the plaintiffs do recover from the defendants the sum of one thousand four hundred and twenty dollars and ninety-eight cents, with costs in the court of the first instance ; those of the appeal to be borne by the appellees.


source: Caselaw Access Project

author: Bullard, J.,

license: Public Domain

text:
    POOL vs. BROOKS ET AL.
    Eastern Dist.
    June, 1836.
    AITEAL FROM THE COÜRT OF THE THIRD JUDICIAL DISTICT, TIIE JUDGE THEREOF PRESIDING.
    A judgment of the Orphans’ Court in Mississippi, rendered contradictorily with the guardian of a minor, decreeing a balance due to the former guardian, on a settlement of his accounts, is prima facie evidence of this claim, in an attachment suit against the property of said minor in this state.
    Where a minor, with his guardian, resides out of the stale, but has property within it, he may be sued by attachment, with the appointment of a curator ad hoc to defend, in the District Court, without the appointment of a tutor here.
    Where minors under the age of puberty, with their tutor, had left the state, but inherited property in it: Held, that the District Court had no jurisdiction of an action Dy attachment against the inheritance of the minor for a debt of his mother’s succession, even when a curator dd hoc was appointed to defend.
    But if a minor resides with his guardian or tutor, in this state, he is suable in the District Court, ifin possession of his property, after partition, for a debt due by himself, and not by a succession.
    This is an action founded on a judgment of the Orphans’ Court of Mississippi, decreeing a balance due to the plaintiff of five hundred and sixty dollars and forty-five cents, as the ■former guardian of the defendant, Brooks. The suit is brought against the defendant and his present guardian, Gilmore, both residing in the state of Mississippi, by attaching property of the minor in this state for the amount of the debt due by him.
    The plaintiff alleges Jhal the defendant, Gilmore, has removed the property of his ward into this state, and within the jurisdiction of the court; and which he prays may be attached, to satisfy his claim, and that he have judgment accordingly. ,
    The court appointed an attorney at law to represent the absent defendants.
    The attorney for the defendants excepted to the action, 1st, Because the minor is unable to appear in court without his tutor or guardian, and it was the duty of the plaintiff to have had one appointed. 2d. There being no person in the state legally appointed to administer the property of the minor, it could not be attached, and the District Court had no jurisdiction of the case.
    He opposed the further plea of mil tiel record to the action, as founded on the judgment of the Orphans’ Court of Mississippi, that it was obtained ex parte, and is a nullity. The "attorney for the absent defendants further answered, and alleged various defects in the proceedings in relation to the attachment.
    After the pleadings were made up, and the cause at issue, on the application of the plaintiff’s counsel, the attorney for the absent defendants was also appointed by the court curator ad hoc to the minor, to which the attorney objected, as coming too late.
    The curator ad hoc excepted to the service of the attachment as defective, and that a curator ad hoc should have been appointed in the first instance, which was overruled.
    An answer was then filed to the merits, similar to the one put in by the attorney for the absent defendants.
    The record and judgment of the court in the state of Mississippi was produced in evidence. The decretal part declares that <C,N- Pool, the former guardian of John Brooks, filed in court a final settlement of his said ward’s estate, which was examined, and ordered to be recorded. Balance due guardian, five hundred and sixty dollars and forty-five cents.”
    The record'of the proceedings and judgment was certified according to the act of congress. Its reading was objected to, but it was admitted.

      Several' bills of exception appear in the record, and a bill e3Cception taken to the manner of drawing up a bill of exception, which are not material to notice,
    The district judge considered the record and. judgment of Mississippi as sufficient evidence of the plaintiff’s claim, and gave judgment accordingly. .The defendants appealed.

      Lawson and Andrews, for the plaintiff.
    1. The guardian was properly made a party to this suit with his ward, although both absent, and they were properly represented in the attachment and defence of the suit, by an attorney to defend, and a curator ad hoc.

      2. The District Court had jurisdiction, and was the proper tribunal to sue in, because this was a debt due by the minor, being the balance advanced for him by his former guardian, as evidenced by the Orphans’ Court of Mississippi. The attachment was regular. Code of Practice, article 110, 115, 116, 996. Louisiana Code, 57. Session Acts of 1828, 13. 3 Louisiana Reports, 483. 6 Martin, JV. S., 519.
    3. The record of the judgment in Mississippi wfts properly admitted in evidence, and is proof of the plaintiff’s demand. Full faith and credit is due to this judgment; and 'the competency of the tribunal which rendered it, or its correctness cannot be inquired into in this court. 8 Martin, N. S., 704.
    4. The defendants’ counsel has submitted to the court a manuscript decision of the High Court of Errors in Mississippi, to show that the judgment here sued on is erroneous, and should have no effect. The two cases are entirely different, and the decision in Mississippi can have no effect on the case here.
    5. The decree of the Orphans’ Court, auditing the guardian’s account, and stating the balance due him, is, at least, primh facie evidence of his claim for this balance against the minor.

      Turner, for the defendant.
    1. The guardian in Mississippi was improperly made a party. He is not the debtor, and has no interest in the case, and should have been dismissed. ,

      2. The minor is not properly represented, and is not regularly before the court. He should have been sued with a tutor, or curator legally appointed to defend; and in such a case, the District Court is without jurisdiction. Roland jvs. Stephens et al., 3 Louisiana Reports, 483.

      S. By the laws of the state of Mississippi, a guardian to a minor cannot exceed the revenues of the minor for education, support and expenses. See Revised Code of Mississippi, page •67, section 131. See also manuscript decision of the High Court of Errors and Appeals in the case of Alfred Moore and Wife vs.' Lewis Cason, administrator.

    4. There is no decree or final judgment in pursuance of the laws of Mississippi. See James’s Digest, page 52, section 87, and the manuscript above cited.

      5. This action is founded upon just such a case as the High Court of Errors revised and reversed in the case herewith given. By the same it appears to be held, that such an order of the Court of Probates is not evidence of debt sufficient to found an action upon; and that it is not a decree within the meaning of the law.
    .6. The digest above referred to, called tire Revised Code,, is proved in this case to contain the laws of the state of Mississippi, and is used and referred to by both parties.
    The counsel for defendants believe that having referred to1 points and authorities heretofore made and cited, and to the points and authorities now given, the Supreme Court cannot find the least difficulty in revising the judgment of the District Court, and rendering a judgnient in favor of the defendants,
   Bullard, J.,

delivered the opinion of the court.

The decision of this case depends principally on the effect we are bound to give to a decree of the Court of Probates in the state of Mississippi. The present action was brought against a minor residing in that state, by attachment on his property situated in this, to recover the amount of a judgment for a balance due to the plaintiff, as the former guardian of the defendant. It appears that the plaintiff was called on to render an account of his administration, and that on a puaq settlement, a balance of about five hundred dollars was found to be due him by his ward ; and that the present guardian of the defendant was ordered by that court to pay over the balance.

A judgment Court inMiss?s-sippi, - rendered with the guar-decreeing^bal former “■uardian on a settlement of his accounts, is prmd facie oiaim^'anat-taehment suit pertySt of6 said !rtate.r m thlS

Where a minor dían residefUout of the state, hut withinitfiiemay taehmentby and the appointment hoc to defend, SrarT without the appointment of a tutor here.

Where minors puberty16 ^vith their tutor had left the state, but inherited property in it: Held3 that the District Court had no jurisdiction of an action by attachment against the inheritance of the minor for a debt of his mother’s succession, even when a curator ad hoc was appointed to defend.

Judgment was rendered in .favor of the plaintiff, and the defendants appealed.

It is contended that the judgment rendered by the Orphans’ Court of Mississippi is not even primt facie evidence against the defendant, who was a minor, and not a party ; that that court is competent to settle the accounts of guardians, but not to give judgment for a balance against the ward. In support of this position, he relies mainly upon a decision in the High Court of Errors in (he state of Mississippi, in raanu-script, in the case of Moore and Wife vs. Cason. A careful examination of the opinion of the court in that case, has satis-gec¡ ug fhe two cases ai-e not strictly alike. The court appears to have considered the settlement in that case as irre-guiar and ex parte, and therefore not even prima facie evidence ag'a-inst tine minor. In the present case, the former guardian was called on to settle the account; it was done in open . . . . , . . , , , court and in term time ; and his successor, to whom he had Sl1‘'tendered the property, was ordered to pay over the balance found due by the minor. It is clear the Orphans’ Court had jurisdiction of the premises, as appears by the Digest of ^ laws of that state, which is before us. A court of errors in Mississippi might well say that proceedings were irregular ^or want °f citation, and because the judgment was not final, being rendered in vacation; but this court cannot inquire into the errors committed by the courts of other stales. The piea in case is nwI ^ record., and a record is produced as alleged in the petition, and the parties to it appear to have been the former and the present guardian. We are not informed by the laws of Mississippi that personal citation on the minor is required. The account appears to have been 1 11 approved by a competent tribunal, ana we are of opinion that ^ judgment ¡s at least primé facie evidence against the minor, as well as his guardian.

But if a minor resides with his guardian or tutor in this state, he is suable in the District Court, if in possession of his property after partition, for a debt due by himself, and not’ by a succession.

It is further contended that the District Court was without jurisdiction, this suit being against aminor residing out of the state, and that a tutor ought to have been appointed to represent him. He cites in support of this doctrine the case of Roland vs. Stephens et al., 3 Louisiana Reports, 483. In that case, the action was against minors under the age of puberty, and their tutors who had left this state, and taken away most of the property ; and the suit by attachment, in the District Court was held to be irregular. In the case now before us, if the defendant resided with his guardian in this state, he might be suable in the District Court, if in possession of his property after partition, for a debt due by himself, and not by a succession as such. Code of Practice, article 996.

We are, therefore, of opinion that the jurisdiction was properly sustained; and it appears not only that the guardian was made, a party, and had an opportunity to defend the action, as he might have done, but that the court appointed a curator ad hoc. It appears to us the affidavit was sufficient to justify the issuing of the attachment.

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


author: Martin, J-,

text:
    CHASE vs. TURNER.
    iWEii FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.
    Where the lessee refuses to comply with the terms of the lease, by-withholding the rent as it becomes due, the lessor may have judgment rescinding the lease.
    In an action for the rescission of a lease, the judgment cannot allow any delay in its dissolution.
    In synallagmatic contracts, the refusal of either party to comply, liberates the other.
    EASTERN DlST.

      June, 1836.

      This is an action for the rescission of a lease. The plaintiff alleges that the defendant is indebted t.o him in the sum of seventeen hundred and fifty dollars, being the amount of the last quarter’s rent of certain premises in faubourg Delor, in the city of New-Orleans, ending the 1st of January, 1836. He further alleges, that he leased the property in question to the defendant for the term of ten years, commencing the 1st of January, 1835, at seven thousand dollars per annum, payable quarterly. He prays that, as the defendant has not complied with his engagements made in his contract of lease, that it be dissolved and rescinded at the defendant’s cost; and for all other relief.
    The defendant admitted the execution of the lease ; resisted the action, and justified withholding the payment of rent. He avers that he leased certain property from the plaintiff, fronting on the Mississippi river, which embraced the batture in front; but that he has been deprived of the privilege of landing boats and rafts, and cutting up the same, and of other necessary uses of the batture, by a prohibitory ordinance of the city council of New-Orleans; and that the plaintiff has not maintained him in the enjoyment of the whole property leased. He further states that he is damaged by this disturbance to the amount of two thousand dollars per annum; that he is ready and willing to pay the rent due after deducting two thousand dollars per annum, until he is restored to the full enjoyment of the property leased. He prays for judgment in his favor.
    The contract of lease annexed to the petition was made by notarial act in the synallagmatic form, in which the plaintiff leases a parcel of land situated on both sides of New Levee-street, in faubourg Delor, and running to the Mississippi, together with all the buildings and improvements thereon, and also such batture as may be made in front of said property, during the term of ten years, &c. The defendant accepts the lease, and on his part agrees to pay seven thousand dollars per annum, payable quarterly, and commencing on the 1st of January, 1835.

      The mayor of the city of New-Orleans, called as a witness by the defendant, testified that it was forbidden by a city ordinance, passed about 1832, to use the batture within the incorporated limits of the city, for breaking up flát-boats; and that deponent, as mayor of the city, had given orders three times to remove all the lumber from the space where the new levee is intended to be run in front of the upper faubourg, and from the space in front of said levee, &c.
    A judgment of one of the city courts against the defendant, condemning him to pay twenty dollars fine for breaking up flat-boats on the leased premises, in contravention of a city ordinance of the 4th February, 1835, was also read in evidence on the part of the defendant.
    The district judge remarked in giving judgment, that it was proved that the exclusive use of this batture is worth two hundred and fifteen dollars per month for breaking up flat-boats, and cutting up rafts for fire-wood. But that an ordinance was passed since the date of this lease, (4th February, 1835) prohibiting this use of the batture, and that the lessee had been condemned to pay a fine under said ordinance. But the dilemma put on the defendant by the plaintiff’s counsel, seems unanswerable: either the city ordinance is a legal exercise of the right of police, or it is not. If it be legal, the defendant was bound to know the right of the corporation to pass it, and his duty to conform to it. If the ordinance be not legal, this case does not present one of those disturbances against which the lessor is bound to defend the lessee; for the corporation claims no right in the premises, but only the right of making police regulations in relation to them. The lessee must protect himself. Louisiana Code, 2673.
    Nothing is said in the lease of any particular use to which the premises were to be applied ; and if any thing had been said, the case could only have come within the provisions of law. See Louisiana Code, 2669.
    Under the circumstances of the case and the prayer for general relief, the district judge was of opinion that judgment should be rendered for the sum of thirty-five hundred dollars, the amount of two quarters’ rent, with interest, the last ending the 31st March, 1836 ;> and in case this sum was not paj,j with.in thirty days, that the said lease be cancelled and annulled. From this judgment the plaintiff appealed.
    Where the lessee refuses to comply with the leased byf withholding the rent due, the lessor menthreseinding the lease.
    for the rescission judgment86’ efn-not allow any solution.

      Peirce, for the plaintiff,
    urged that the judgment of the District Court was erroneous, in this : the lease should have been cancelled and annulled without delay. The law is positive, and the court had no right to extend the term. Louisiana Code, article 2700.

      Preston, contra.
   Martin, J-,

delivered the opinion of the court.

In this case, the plaintiff claims a rescission of a lease, on the ground of non-payment of the rent, on the part of the defendant and lessee.

The defendant resists the action, and justifies his conduct in withholding payment of the rent. He avers that the leased premises border on.the Mississippi river, and that the city council of New-Orleans, during the lease, has passed an ordinance prohibiting the use of the batture in front for cutting up boats and rafts of timber, in that part of the city and its faubourgs in which the leased premises are situated. That he is disturbed in his enjoyment of the whole of the property included in the lease, in consequence of said city ordinance, &c.

The District Court, in rendering its judgment, has very correctly decided that the alleged disturbance, or restriction . * ° of privilege, by the corporation ordinance, in relation to the batture in front of the leased premises, affords no justification for withholding the rent: but it has modified its judgment on equitable grounds, as a proper case for the exercise of equitable powers, and given a delay to the defendant of thirty days, jn which to pay the balance of the rent due, and thereby avoid a total rescission or the lease.

The Code expressly prohibits the courts of this state from exercising such a power under the circumstances of this case, The article 2700 of the Louisiana Code provides, that the neglect of the lessor or lessee to fulfil their engagements, may give cause for a dissolution of the lease in the manner expressed concerning contracts in general, except that the judge cannot order any delay of the dissolution.

In synallagmatic contracts, the refusal of either party to comply, liberates the other. *

In synallagmatic contracts, the refusal of either party to perform his engagement, entitles the other to his liberation therefrom.

It is, therefore, ordered, adjudged and decreed, that the lease of the premises by the plaintiff to the defendant, be annulled and rescinded; and that the latter pay costs in both courts.


text:
    REGUILLO’S HEIRS vs. LORENTE.
    APPEAL PROM THE COURT 01’ THE THIRD JUDICIAL DISTRICT, THE JUDGE OE THE EIGHTH PRESIDING.
    The assignment and transfer of an instrument of writing, containing a conditional promise by the maker of it to convey a tract of land, on being paid the difference between four hundred dollars and the price for which it was purchased, is valid, without any price being expressed on the face of it.
    Such ah instrument is evidence of a sum of four hundred dollars having been received, coupled with a conditional obligation to convey a tract of land.
    The plaintiffs sue as the heirs and legal representatives of one Policarpio Reguillo, to recover an instrument or obligation in writing, executed by one John Swift, for the consideration of four hundred dollars, the receipt of which is acknowledged, in which he binds himself to convey to said Policarpio Reguillo a tract of land, containing fourteen superficial acres, and which is assigned to the defendant.
    EASTERN DlST.

      June, 1836.

      The defendant pleads a general denial and several other ma(_(;erg . an(j th.en. avers that for a valuable and legal consideration, the said instrument was transferred and assigned to her. This instrument of writing is in the following words :
    “Received of Policarpio Reguillo, four hundred dollars. I have bought at t.he probate sale of A. C. Duncan, this d/iy, a certain tract of land in the parish of East Baton Rouge, about fourteen acres, for a sum. between four and five hundred dollars, which I promise to transfer to Mr. Policarpio Reguillo, when and how he may desire, on condition that he pay to me any balance that may (if any) be due on it after the above four hundred dollars, which is the condition.
    “ JOHN SWIFT.
    “Bayou Sara, 22d March, 1832.”
    [ASSIGNMENT.]
    “ Mr. John Swift: Having assigned over to Manuela Maria Lorente all my right, title and interest to the within, you are hereby requested to make the within named transfer to the said M. M. Lorente. i
    “POLICARPIO REGUILLO.
    “Baton Rouge, 2d August, 1832.”
    This instrument was annexed to the defendant’s answer, and claimed in virtue of the assignment. The plaintiffs’ counsel objected to its introduction in evidence, on the ground that the assignment was a mere nullity, and could confer no' title, there being no price or consideration for the transfer expressed on the face of it. The court overruled the objection, and the plaintiffs took a bill of exception.
    The cause was submitted to a jury, who returned a verdict for the defendant; and from judgment rendered thereon, the plaintiffs appealed.

      R. and JV. A. Ogden, for the plaintiffs and appellants.

      Morgan, contra.
   Bullard, J.,

delivered the opinion of the court.

The assignment and transfer of an instrument of writing, containing a conditional promise by the maker of it, to convey a tract of land on being paid the difference between four hundred dollars and the price for which it was purchased, is valid without any price being expressed on the face of it.

Such an instru- . ment is evidence' of a sum of four hundred dolíais having been received, coupled with a condin1 tional obligation to convey a tract of land.

The plaintiffs, as heirs of Policavpio and Margan (e Reguillo, represent themselves as owners, by inheritance from their said ancestors, of a tract of land of fourteen superficial arpents, by virtue of a sale from John Swift. They complain that the defendant has obtained possession of the original act of sale or conveyance from Swift, and refuses to surrender it to them; and they pray that she may be condemned to restore to them the original act aforesaid, or to pay damages.

The defendant alleges, thatPolicarpio Reguillo transferred to her the written obligation of John Swift to convey the tract of land, and that the same is her property.

The document under private signature in contest, executed by John Swift, purports to be a receipt of four hundred dollars from Policarpio Reguillo, and goes on to recite that he, Swiff, had purchased, at a probate sale, a tract of land of fourteen superficial arpents, for a sum of between four and five hundred dollars, which he promises to transfer lo Reguillo, when and how he may desire, on condition that he pay to Swift any balance which may be due over and above the four hundred dollars.

On the back of the paper is an assignment, proved to have been executed by Reguillo to the defendant, and requesting Swift to make the transfer to her.

Judgment having been rendered in favor of the defendant on this evidence, the plaintiffs appealed.

Our attention has been called to a bill of exceptions in the record, to the admission of evidence of the assignment. It was objected to on the ground that said endorsement was a mere nullity, and could transfer no title to the defendant, there being no price or consideration for the assignment expressed on the face of it.

We think the court did not err. The assignment does not purport to be a sale, but a transfer of a conditional promise to convey a tract of land, on paying the difference between four hundred dollars and the price for which Swift had bought it at the probate sale- The instrument is evidence of a sum of four hundred dollars due by Swift to Reguillo, ’ coupled with the conditional obligation to convey the land. The evidence does not show that either party has a legal title to the land, as it is not proved that the condition has been complied with, either by the plaintiffs or by the defendant.

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


author: ■Bullard, J.,

text:
    INGRAM'S HEIRS vs. STOKES ET AL.
    APPEAL PROM THE COURT OE THE THIRD JUDICIAL DISTRICT, THE JUDGE . OE THE EIGHTH PRESIDING.
    EASTERN DlST.

      June, 1836.
    The District Court has jurisdiction in a suit brought to recover tfie penalty in a curator’s bond, in an action on the bond against the principal surety.
    Where judgment is demanded in the District Court, personally, against the curator of the absent heirs, who is fundus officio, and to compel him to pay the penalty of his bond, it may be discharged by complying with one of its principal conditions: that of rendering an account, and paying over any balance in the curator’s hands.
    This is an action instituted by the plaintiffs, as heirs of Alexander Ingram, deceased, in the parish' of East Baton Rouge, against the defendant and another as principal surety in a curator’s bond ; in which they claim the penalty therein, amounting tc> sixteen hundred dollars. The plaintiffs allege that the defendant, Stokes, obtained the appointment of curator to the absent heirs of said decedent, and has received the property and effects of the estate, and has also-failed to account and pay over the proceeds thereof, and that his bond is forfeited by such failure. They pray judgment for the amount of the penalty of the bond against the principal and surety.

      The defendants excepted to the jurisdiction of the District Court, because the subject matter in controversy exclusively cognizable before the Court of Probates, &c.
    It appeared from the pleadings and evidence, that the year for which the appointment of the curator had been prolonged, had expired; and that he had not rendered any account of his administration. That he never had been cited to render an account in the Court of Probates, either by the attorney of the absent heirs, or by the heirs present.
    The district judge sustained the exception to the jurisdiction of the District Court. The plaintiffs appealed.
    Elam, for the plaintiff and appellant,
    contended that the District Cohrt has jurisdiction, and was the proper tribunal before which to sue the curator on his bond. If the bond has any binding force, it resolves itself into an obligation to •do, or not to do certain things. Louisiana Code; article 1920.
    2. The term of one year was allowed, in which to perform the obligations of the bond, and within that time the curator was bound to render, his account. After that time we can sue on the bond. Louisiana Code, articles 1179, 1883, 1920.
    •3. The penalty of the bond may be claimed by suit in the District' Court, without ever calling on the curator to account in the Probate Court. 5 Louisiana Reports, 488. 4 Ibid. 539.
    4. The amount of the penalty is prima, facie evidence of the amount due, in an action on a curator’s bond. 4 Martin, JV. S- 481.
    5. The plaintiffs had a right of action against the principal, and surety in the bond, without calling for the rendition of an account in the Court of Probates: hence, the District Court has jurisdiction in this case. 5 Louisiana Reports, 322.

      R. and JL. JV. Ogden, for the defendants.
   ■Bullard, J.,

delivered the opinion the court.

This is an action upon a bond given by one of the defendants, as curator of the absent heirs of Alexander Ingram, deceased, in which both the principal and surety-are sued for the penalty of the bond.

The District •Court has jurisdiction in a suit brought to recover the penalty in a curator’s bond, in an action on the bond against the principal and surety.

Where judgment is demanded in the District Court personally against the curator of absent heirs, who is functus officio, and to compel him to pay the penalty of his bond, it may he discharged by complying with one of its principal conditions: that of rendering an account and paying over any balance in the curator’s hands,

The surety made default, but the principal excepted to the jurisdiction of the District.Court, on the ground that the subject matter of the action is exclusively cognizable before the Court of Probates of the parish, before whom he is ready to account for all the matters and things arising out of the ■curatorship, alleged in the petition. The defendant further excepted to the action, on the ground that all the heirs had not joined in the suit, and that his wife is one of the heirs and no partition had taken place, and that the suit is consequently premature, and brought before a court without jurisdiction ratione materia.

The exception to the jurisdiction of the District Court was .sustained, and the plaintiffs appealed.

That part of the exception which relates to the sufficiency of the petition and the want of proper parties, may be laid out of view; because, if the plea to the jurisdiction be sustained, it is clear the court could not take cognizance of any other question growing out of the case. The court of the first instance having sustained that exception, and dismissed the suit, our sole inquiry is, whether it erred in so doing; and consequently, the arguments which have been addressed to us, to show that no breach of the conditions of the bond has been assigned and set forth in the petition, can have no application to the question presented on the appeal.

This suit is brought to recover the penalty of the curator’s bond, and not to compel him to render an account of his administration. With respect to the surety, the District Court had clearly j urisdiction. It was so decided by this court, in the case of Elliott vs. White, 5 Louisiana Reports, 322.

In the case of Flint vs. Wells, a plea to the jurisdiction of the District Court, in a suit upon the bond of a former curator, was sustained; but it was on the ground that judgment was not asked for the penalty of the bond, but to compel a rendition of account, and for damages for mal-administration, 4- Louisiana Reports, 539,

Judgment is demanded in this case personally, against a curator of absent heirs, who is functus officio, and to compel him to pay the penalty of his bond, which may be discharged by complying with one of its principal conditions, that of rendering an account and paying over any balance in his hands, within a period to be fixed by the court. Among the exclusive powers of the Court of Probates, that of compelling administrators and curators to render an account is mentioned, but not such a case as the present. We are, therefore, of opinion, that the court erred in sustaining the plea to the jurisdiction.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed and annulled; and it is further ordered, that the case be reinstated and remanded for further proceedings, according to law, and that the appellee pay the costs of this appeal.


author: Bullard J.

text:
    ANDERSON’S EXECUTORS vs. ANDERSON’S HEIRS.
    Eastern- Dist.

      June, 1836.
    APPEAR FROM THE COURT OP PROBATES FOR TIIE PARISH OF EAST BATON ROUGE.
    Where the will does not give the seizin of an estate to the testamentary executors, in the legal or technical sense of the word, yet when the heirs are absent from the state, and the executors took possession of the whole estate, as they clearly had the right to do, they are entitled to full commissions on the amount of the inventory, after deducting bad debts, Sic.

    In the absence of the heirs, the testamentary executors who are put in possession of all the property, have it under their charge and responsibility, even when there is no express or legal seizin given, and are entitled to full commissions.

      Parole evidence is admissible to show the nature and extent of the possession of the estate by the executors, when there is no express seizin given by the will.
    After the executors have surrendered the estate to the heirs, legatees who are unpaid have a direct, action against the heirs for the amount of their legacies, and must resort to it for redress.
    This is an action commenced in tbe Court of Probates for the parish of East Baton Rouge, by the executors of the late John Anderson, in which they present their account of the administration of the decedent’s estate, accompanied by the proper vouchers, with a detailed statement of the moneys received and disbursed by them. They allege that one of them, as he was authorized by the testator to do, took into his possession the plantation and slaves of the deceased, and administered them from August to October, 1833, when one W. A. Anderson, for himself, and as attorney for the other heirs, caused themselves to be recognized as such, and were put in the possession of said property and estate.
    The executors further allege, that they are bound to see that the provisions of the will are carried into effect; but that the- heirs have refused to do so, especially, to pay a legacy of one thousand dollars, bequeathed to Phebe, a colored woman, and also a negro child, borne since the date of the will, from Louisa, the latter of whom was also bequeathed to Phebe.
    The executors likewise claim the sum of two thousand and twelve dollars, as a commission of two and one half per cent, on the inventory of the testator’s succession, amounting to eighty thousand four hundred and eighty-eight dollars, after deducting two thousand four hundred and eighty-eight dollars, for bad debts.
    ; They pray that they may be allowed and may have decreed to them the several sums and objects specified, and for the purposes alleged; and that the account of their administration be approved and homologated, and that they be discharged.
    The attorneys for the heirs filed exceptions to the petition and account of the executors, and specially deny that they are entitled to commissions of two and one half per cent, on the whole amount of the estate of the decedent, but only on' such part as actually came into their possession, to wit, the. J proceeds of sixty bales of cotton, sold by order of the Court of Probates, the executors not being constituted detainers of the estate by the will. The defendants also except to so much of the executors’ demand as requires the payment of one thousand dollars for the legacy to Phebe, and the delivery of Louisa’s child to. her. They aver that the Probate Court is without jurisdiction of the latter claims, the District Court alone having jurisdiction of such matters. They conclude with a prayer that their exceptions be sustained, and for general relief.
    The will under which the executors acted, is in the olographic form, and contains the following clauses, to wit:

      “I hereby will and bequeath to my brother William Anderson, merchant, in Richmond, Virginia, Helen Anderson and Margaret Young, my youngest sister, both residents of the same city, all my property, real and personal, to be equally divided to each, except the following donations, viz: I leave to Phebe, one hundred acres of land, known by the name of Taguinos Place, with all the improvements thereon, and four negroes, viz : Phil, Jeanny, Big Louisa and Long Frank, and one thousand dollars in cash, to be invested in bank stock. At the death of Phebe, the said land and negroes, and increase, .to become the property of a yellow boy by the name of Alexander, son of Jeanny; and in case of his death, to revert back to my said heirs. This I do for Phebe, for her long and faithful services to me.
    “ I hereby appoint A. Bird, general P. Thomas and major Vail, my executors of this my last will and testament, and earnestly request them' that every thing may be settled amicably between my heirs, and that no law-suit on any account shall be between them. If they cannot agree, let it be settled by arbitration,” &c.
    The testator also annexed a schedule of his estate to the will, estimated by him at one hundred and seventeen thousand and one hundred dollars. The will was duly admitted to probate, two of the executors, Bird and Vail, qualified and acted under it.
    On the trial, the plaintiffs proved by witnesses their possession and seizin of Anderson’s succession. This testimony was excepted to on the ground that no parole evidence of seizin or possession could be received. The will must authorize and show it.
    The judge of probates overruled the exceptions of the defendants. He considered that under articles 1676 and 1652 of the Louisiana Code the executors had a right to the seizin of the estate, and that under the will they had possession and administered the whole property of the testator, and that they were entitled to their commissions on the amount of the inventory as prayed for.
    Judgment was rendered in favor of plaintiffs against the defendants, homologating the accounts of the executors; allowing them their full commissions, and that they recover one thousand dollars to pay the legacy to Phebe, and the. slave child of Louisa, born since the date of the will, and that the defendants pay costs. The latter appealed.

      Brunot for the plaintiffs, contended :
    1. That the executors had the actual possession and the seizin of 'the testator’s estate, as appears from the face of the will itself. It shows that the heirs were all non-residents, and they did not obtain possession for several months after the succession was opened.
    2. In the construction of olographic wills, effect should be given to the intention of the testator, as gathered from all the circumstances of the case, and the relative position and situation of the parties. It is not to be expected, that men unacquainted with the niceties of the law, will execute then-olographic wills with that technical accuracy specified. That seizin was intended to be given to the executors in this case, is evident from the general power conferred on them to manage the estate.
    3. The Probate Court is required to appoint an attorney to represent the absent heirs, which was done in this case, as they were all absent. He is to act until the succession is liquidated and settled, and how could it be settled, if the executors have not the seizin 1 Louisiana Code, articles Í 654-5, 1705-6 and 8.
    4. The judgment homologating the executors’ account, is correct, not having been opposed by the attorney for the absent heirs. So far as any account might be claimed by the heirs, they are precluded in this casé, by the judgment and proceeding putting them into the possession of the estate, which is res judicata. 3 Martin, 481. 9 Ibid., 727. 2 Louisiana Reports, 587. Code of Practice, 1004, 1008, 997.
    5. The part of the judgment decreeing the payment of the legacy to Phebe, and the delivery to her of the slave child, is correct. The executors are required to see the provisions of the will are complied with, and the intentions of the testator carried into effect. Until this is done, the executors are bound to act. Louisiana Code, 1655.

      T. G. & M. Morgan and Turner, for the defendants.

      Elam submitted the following additional points on the part of the plaintiffs.
    1. The judgment of the Probate Court is contrary to law and evidence, and should be reversed.
    2. The executors had not, either by the will or law, seizin of the whole estate, and could not charge commission thereon. See Will, Louisiana Code, articles 1652, 1653. Napoleon Code, 1026.
    3. That part of the will which gives a donation to Phebe, contains a substitution; hence it is null and void. Louisiana Code, articles 12, 1567. 5 Martin, N. S., 302. 6 Louisiana Reports 321. Therefore, the executors could not demand the slave child, nor the investment of the one thousand dollars as a legacy.
    4. There is no proof that, this child is the offspring of Louisa, or that Louisa had any child bom subsequent to the making of the will.

      , does not give the tate'to the^esta-meniary exeen-tors in the legal or technical word, yet when sent^from6 the state, and the possession of the they cieSy had a right to_do, to^uli^ommis-mountof ventory after dedncting- had debts, &c.
   Bullard J.

delivered the opinion of the court.

The executorg 0f the jagt w¡u 0f Anderson having surrendered the estate to the instituted heirs before the year of their executorship had expired, presented their account of administration to the Probate Court, showing a small balance in their hands in money. They pray an allowance of about two thousand dollars for their commissions on the amount of the inventory, deducting some bad debts. They further demand of the heirs to pay the one thousand dollars as a legacy left by the will to a servant, who had been emancipated by the will, and to whom that sum was given to be invested in bank stock, but which the executors had not paid or invested during the time they were charged with the care of the estate. They further demand a young slave, the chii'd of one of the slaves, given as a legacy to the same servant, born after the will was made.

The heirs.made opposition to the account thus rendered, on several grounds, most of which are not now insisted on, but more especially to the amount of commissions, and to that part of the petition which relates t.o the legacy to Pbebe. They deny the jurisdiction of the Probate Court, and the right of the executors to recover of them.

The Court of Probates allowed full commissions asclaimed, and gave judgment in favor of the executors for one thousand dollars, to be invested by them for Phebe, the emancipated gervant, as well as for the young slave : and the heirs . jo ’ appealed.

It is contended by the appellants, that by the will the executors - had not seizin of the property of the estate, and consequently, according to article 1676 of the Louisiana Code, they are not entitled to commissions upon the amount of ^Ie inventory. Admitting that the will by its terms does not confer the seizin in a legal sense of the word, yet the next article of the Code (1677) declares, that “ if the executor has had a general seizin, his commissions shall only.be on the estimated value of the objects which he had in his pos- • . T \ •, , ,, , session, &c. In the present case, it appears that all the heirs wer'e absent from the state, and that the executors proceeded to take, possession of all the property of the estate, as they had clearly, under such circumstances, a right to do. J J ? .-11 The seizin spoken of in the Code is derived from the testamentary law of France. According to the doctrine of Pothier, Such seizin is not incompatible with that of the-heir, for it is not a true possession ; the executor possesses in the name of the heir, and it is the heir who is the real possessor : the executor is constituted sequestrator of the property. Potluer ties Testamens, 90. When seizin is not given by the will, the heirs may retain possession, except so far as it may be necessary to pay debts and legacies. But in the present case, the executors were, in the absence of -the heirs, instituted by the will, put in possession of all the property ; and it was under their charge and responsibility, until the heirs appeared and possession was delivered to them. To show the extent of the'ir real possession, we think the parole evidence excepted , -it,,.. , , . . to was properly received. Believing that the possession of the executors was legal and beneficial-to the heirs, we are of opinion that they are entitled to commissions according to the , article of the Code, just cited. .

in the absence testamentary executors who are of all the proper-Séir’ohmge'a^ e^0”jíen there is no express givei^LiTare ™mnüssíonsfu11

Parole evi-s¿pft0lssh0^m,e nature and extent of the possession of the ecutorsy Ü when there is no express seizin given by the ^1*1'

After the executors have sur-taü^totheheirr legatees who are unpaidnaveaai-rect action a-for theamouiitof ^d^niust^resoii to H for redress,

As it relates to a legacy of one thousand dollars, to be i ■ o ^ j invested in bank stock for Phebe, the executors would have been authorized to retain sufficient funds in their hands to execute that part of the will. But they appear to have sur- . , 1 j \ r reudered the whole without insisting upon that right; and the will being as obligatory on the heirs to deliver the legacy as upon the executors, the legatee v^ho is not j'oined in the present suit, has a direct action.against the heirs, for this purpose. We are, therefore, of opinion, that the Court of Probates erred in rendering judgment against the heirs for that sum and for the child of one of the slaves, bequeathed to Phebe. '

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be reversed and annulled ; and it is farther considered and adjudged, that-thc account rendered by the executors, be confirmed and approved, and that they retain in their hands the balance of five hundred and fifty-eight dollars and twenty-six cents ; and that they recover from the heirs the further sum of fourteen hundred and fifty-three dollars and ninety four cents, with costs in the Probate Court; those of the appeal to be paid by the plaintiffs and appellees.


author: Martin J.,

text:
    PASSEBON vs. HIS CREDITORS.
    Eastern Dist.
    June, 1836.

    A.rPEAL FROM the tarish court for the tarish and city oe NEW-ORLEANS.
    When the Supreme Court, on examining and weighing the evidence on which the verdict is founded, is unable to agree with the jury, and jus- - tice requires it, the case will be remanded for a trial do novo.

    This case has already been before this’ court. See 9 Louisiana Reports, 189.
    On the return of the case to the Parish Court, it was tried ■on the opposition of Brette & Vincent, on a charge of fraud against the insolvent, sworn to by Edward Vincent. The case on this charge was submitted to a jury, with a mass of testimony, taken by the respective parties, who returned a verdict of “not guiltyFrom judgment confirming this verdict, the opposing creditors appealed.

      Morphy and Grailhe, for the plaintiff and insolvent,
    made ■the following points •:
    1. The Supreme Court has no jurisdiction in a case of this nature, there being no specific sum of money in controversy. See the second section of the fourth article of the Constitution of Louisiana.

      2. The jury are the sole judges in a question of fraud, set up against an insolvent. See sections 18, 19, 20 and 21 of the Insolvent Law of 1817.
    3. In this case there is no oath of the proper party at the foot of the opposition, as required by law; no man can swear by proxy, unless expressly authorized by law. See Foucher’s case, 7 Louisiana Reports.
    Where the Su-on'^'examin'inl the evidence'ol which the ver-diet is founded, is unable to agree with the jury, and Justice requires it, the case will be remanded for a taal de novo'

    4. In any event, the verdict of the jury must be maintained, the same being in conformity with the law and evidence adduced.
    5. The Supreme Court will not disturb the verdict, unless rendered manifestly in opposition to the evidence.
    On these points, the appellant relies for the confirmation of the judgment rendered in his behalf.

      Soulé and Murat, for the opposing creditors and appellants.
   Martin J.,

delivered the opinion of the court.

In this case there is a verdict for the insolvent. We have ■carefully examined and weighed the evidence on which it was rendered, and it is impossible for us to concur with the jury. It appears to the court that justice requires a trial J J ■de nOVO.

It is, therefore, ordered, adjudged and decreed, that the . . , ... .. , . judgment of the Parish Court be annulled, avoided and reversed ; the verdict set aside and the cause remanded for a new trial; the costs to be paid out of the proceeds of the .ceded property.


text:
    HAYDEL vs. WEBRE’S HEIRS.
    Eastern Dist.
    June, 1836.
    APPEAL FROM THE COURT OF PROBATES FOR THE PARISH OF ST. JOHN THE BAPTIST.
    The certificate of the clerk which only states “that the record contains a true and correct copy of the documents on file, and transcript of all the procedings had in the Court of Probates,” but is silent as to the evidence, of the case, is insuflicient, and the appeal will be dismissed.
    This is an action of partition instituted by Adelaide Webre, wife of U. Haydel, to provoke a partition and division of the estate of her deceased father, the late Jean Webre. The other heirs were all made defendants. A partition was made an(j homogated by a judgment of the Court, of Probates, from which Désirée Webre, one of the defendants, appealed.
    The certificate of the clerk, ■which only states that “therecord contains a true and correct copy of the documents on file, and transcript of all the proceedings had in the Court of Probates,” but is silent as to the evidence of the case, is insufficient, and the appeal will be dismissed.
    The clerk of the Court of Probates certified the record, as follows:

      “ I, Adolphe Sorapurn, clerk of the Court of Probates, in and for the parish of St. John the Baptist, do certify the foregoing ninety-six pages, to contain a true and correct copy of all thé documents on file, and transcript of all the proceedings had in the Court of Probates aforesaid, in the case of,” &c.

      Morphy, for the plaintiff,
    moved to dismiss the appeal in this case, on the ground that the certificate of the clerk was insufficient to enable the court to examine the case on its merits, and cited 7 Louisiana Reports 537.
    No counsel appeared for the appellant.
   Bullard J.

delivered the opinion of the court.

In this case the appellee claims the dismissal of the appeal, on the ground that the transcript contains no statement of facts, and no sufficient certificate of the clerk or the judge, to enable this court to examine the case on the merits.

The clerk certifies that the record contains a true and correct copy of all the documents on file, and transcript of all the proceedings had in the Court of Probates, but is silent as to the evidence upon which the case was decided. This is clearly insufficient, there being no bill of exceptions, nor any assignment of errors.

It is, therefore, ordered, that the appeal be dismissed, with costs.


author: Mathews, J.,

text:
    SAUL vs. MAGEE.
    Eastern Dist.'
    June, 1836.
    APPEAL FROM THE PARISH COURT POR THE PARISH AND CITY OF NEW-ORLEANS.
    When the decision of the case depends solely on matters of fact, and the evidence supports the judgment, it will not be disturbed.
    This is a redhibitory action for the rescission of the sale of a slave, and to recover back the price.
    The plaintiff alleges he purchased a female slave from the defendant, for seven hundred dollars, about nine or ten months ago; and that she had been sick of a pulmonary complaint ever since, which has cost him in nursing and medical attendance, upwards of one hundred and fifty dollars. That that defendant has refused to take back said slave, although tendered ; and that he resides out of the state, but has property and effects within the jurisdiction of the court. He prays for an attachment, and judgment rescinding the sale, and for a return of the price, expenses and interest.
    The defendant pleaded a general denial. During the pendency of the suit, the slave died, and a supplemental petition was presented, stating the fact, and claiming one hundred dollars for funeral charges.
    The case was submitted to the parish judge on the pleadings and evidence, who was of opinion the plaintiff proved the existence of a redhibitory vice, to wit, pulmonary consumption, at the time of sale, and that he tendered the slave to the defendant before suit. Judgment was rendered rescinding the sale, and decreeing the return of the price with interest, and seventeen dollars for funeral expenses and costs. The defendant appealed.

      T. Slidell, for the plaintiff.

      Peirce, contra.
   Mathews, J.,

delivered the opinion of the court.

This is a redhibitory action, in which the plaintiff claims the rescission of the sale made to him by the defendant of a. female slave, and restitution of the price, being seven hundred dollars. The suit was commenced by attachment; and property and credits in the hands of Hagan, Niven & Co.,, were attached, &c.

'When the decision of the case depends solely .on .matters of fact, and the evidence supports the judgment, it will not be disturbed.

Judgment for the plaintiff was rendered in the court below, from which the defendant appealed.

The redhibitory disease is alleged to have been pulmonary consumption, of which the slave died before judgment was rendered, but after the commencement of the suit. Before her death she had been tendered to the seller. The decision of the cause depends solely on matters of fact; and we are of opinion that the evidence supports the judgment of the Parish Court.

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


author: Bullard, J.

text:
    ALLEN vs. PEYTAVIN.
    Easeeiin Dist.

      June, 1836.
    APPEAL FROM THE COURT OF THE SECOND JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING. ,
    Where the defendant assigned for error, that the ease was taken up and tried ex parle, without notice to him, and without it appearing to have been fixed for trial during term time: Held, that it is to be presumed the court proceeded according to law, and its rules of practice, until the contrary is shown.
    The reasons given for a judgment, that “ the law and evidence are in - favor of the plaintiff,” are sufficient to make it valid and constitutional. No particular law is required to be cited.
    The defendant cannot complain that the judgment does not conform to the prayer of the petition when it is given for a less sum than was asked. Such a complaint would come with a better grace from the plaintiff.

      Where the defendant assigned for error, that the case was taken up and tried ex parte, without notice to him, and without it appearing to have been fixed for trial during term time : Held, that it is to be presumed the court proceeded according to- law and-its rules of practice, until the contrary is shown.
    The reasons given for the judgment, that the law and evi-denceare in fa-tiff aresafimt to make it valid and constitu-tionai. No par-quiredlatoISIbe

      This is an action on an account, annexed, for professional services in the capacity of an attorney at law. '
    The plaintiff alleges that the defendant owes him the sum of fifteen hundred and'ten dollars for professional services rendered during the three preceding years, in the courts of the two parishes of Ascension and Assumption. He prays judgment for said sum.
    The defendant denied generally the allegations in the petition.
    There is no evidence in the record, except the pleadings. The district judge decided that “ the plaintiff having proved the allegations in his petition, and the law and evidence being in his favor,” he is entitled to judgment for thirteen hundred and twelve dollars and costs of suit.
    The defendant appealed from this judgment, and assigned matter for error as apparent on the face of the record, as stated in the opinion of the court.

      Roselius, for the appellant.
    No counsel appeared for the appellee.
   Bullard, J.

delivered the opinion of the court.

The appellant claims the reversal of a judgment rendered against him on errors assigned by him as apparent, on the face of the record.

1. That the case appeal's to have been taken up and tried ex parte, without notice to the defendant, and it does not, appear that it was fixed for trial during term time.

2. That no law was cited by the judge, nor sufficient reasons given for a judgment rendered contradictorily.

3. The judgment is not in conformity with the conclusions and prayer of the petition.

I. With respect to the first assignment of errors, we are of opinion, that we cannot presume that the trial took place out of term time. The case was at issue, and the judgment is regularly signed by the presiding judge. It is to be presumed that the court proceeded according to law, and its rules of practice, until the contrary is made apparent.

, - , cannot complain ment1 doesUnot conform to the prayer of the pe-tUion,„when it is given for a less turn than was asked. Such a complaint would come with a better grace from the plaintiff.

II. The reason given for the'judgment is, thát the law and tbe evidence are in favor of the plaintiff. It is true no particular law is! cited by the judge, and this court' has often l'u^ec^ ^lat reference to a particular law is not essential to the validity of a judgment; but it would be difficult to imagine a better reason for condemning the defendant, than that the ^aw an<^ evidence are both against him. 4 Martin, 463, 316. 5 Ibid., 202.

III. The plaintiff sued for a larger sum than that for which judgment was rendered ; and the appellant lasllycomplains that the iudgment does not conform to the prayer of the J ° i j petition. Such a complaint would come with a-better grace £ ,, from the plaintiff.

It is, therefore, ordered, adjudged and decreed, that the 7 7 7 J 3 7 judgment of the District Court be affirmed, with costs.


text:
    BANKS vs. BOTTS.
    Eastern Dist.

      June, 1836.
    APPEAL FROM THE PARISH COURT FOR T11E PARISH AND, CITY OF NEW-ORLEANS.
    In a redhibitory action, where the evidence failed to satisfy the jury that the disease of which the slave died, made its appearance within three days after the sale, the plaintiff cannot avail himself of the legal presumption in such cases. 1
    When the presumption of a redhibitory disease ceases, the buyer may still prove the fact that the disease existed at the time, or within three days after the sale.
    Where the matter in contest is left doubtful by the evidence, and the question is one of fact, the verdict of the jury will not be disturbed.
    This is a redhibitory action, for the rescission of the sale and return of the price and expenses of a slave, which is alleged to have died of a redhibitory disease.

      The plaintiff alleges, that he purchased a slave, named William, from the defendant, by public act, dated the 23d of June, 1835, for six hundred dollars, warranted free from all redhibitory defects and vices; that within three days after the sale, the said slave fell sick of the small pox, and soon afterwards died. He prays for the recission of the sale, the return of the price, together with seventy-five dollars, expended for medical attendance, &c., and an attachment against the defendant’s property.
    The defendant pleaded.a general denial; and specially denied that the slave was diseased at the time, or within three days of the sale, as alleged, but that he was sound and healthy.
    Upon these issues and pleadings, the cause was submitted' to a jury, on the evidence produced on both sides, who returned a verdict for the defendant. From judgment rendered thereon, the plaintiff appealed.

      T. Slidell for the plaintiff.
    1. The disease of which the slave died, discovered itself within three days, subsequent to the sale, and hence the plaintiff is entitled to the action of redhibition.
    2. But even if the court should not, be satisfied that the disease made its appearance outwardly, or by clear and manifest symptoms, within three days after the sale, yet it is clearly shown by. the testimony of physicians, that judging from the time when the external symptoms of pustules appeared, the disease must have certainly existed in the -system of the 'slave anterior to the sale. The testimony of medical men, when unequivocally given on a medical point, and when uncontradicted, is as admissible and binding as the testimony of an eye witness to a fact. \Starkie on Evidence, part 1, section 50. Cuilibet in a(te sua credendwm est. Also, 5 Louisiana Reports, 276.
    3. The second clause of the article 2508 of the Louisiana Code, raises the presumption that the disease existed before the sale, if within ^three days it has made its appearance ; but this does not debar the party from showing its previous existence, if it has made its appearance after the three days. Landreaux vs. Campbell, 8 Martin, JV- S., 479.
    4. There is some conflict in the testimony as to what boat the slave was sent in, to the plantation of plaintiff; but any difficulty on this subject is removed by the admission on record of the defendant, of the identity of the slave who died with the one sold.

      Preston for the defendant.
    1. This case turns on mere questions of fact, and the evidence fully justifies the verdict of the jury.
    2. To maintain the redhibitory action, it must be proved that the disease existed before the sale. Louisiana Code, 2508.
    3. If it is shown to have appeared within three days after, the case raises -the presumption that it existed before the sale. But in this case it is not proved that the disease appeared within three days; and if it were, the testimony of several of the witnesses is positive, that the slave was perfectly well when he was sold. This destroys the presumption of law.
    4. The testimony shows, that the slave took the small pox on his way up the river on a steam-boat to the plantation of the plaintiff. This is a sudden disease, but it is not incurable ; and even if it had existed at the time of sale, it is not a ■ground of redhibition.
    5. The death and loss of the slave was therefore not occasioned by the incurable character of the disease, but by exposure and accidental circumstances over which the defendant had no control, and for which he is in noway liable.
   Bullard, J.

delivered the opinion of the court.

'This is an action in which the plaintiff sues the vendor to recover back the price of a slave, who, he alleges, died shortly after the sale of the small pox, which disease he had contracted previously to the purchase.

In a redhibito-the"5 ^evidence (he juryth^t'fte disease of which the slave died, made its appear-days'"iftei^'the sale> ,the cannot avail himself of the legal sueleases?"

When the pre-redinhitory°dis-,ease ceases> the buyer may still prove the fact ((¿¡¡ted6 at^the j;™®e ¡^¡Tafter the sale.

where the “^left'doubtfui tythe evidence, hone of t'acqthe °(ot disturbed,

The defendant denied, in bis answer, the existence of the disease at the time of the sale, and alleged that the slave was then sound and in good health.

This issue was submitted to a jury, whose verdict was in favor of the defendant, and the plaintiff appealed, after an ineffectual motion for a new trial.

The evidence did not satisfy the jury that the disease of Avhich the slave died, made its appearance within three days after the sale, and consequently the plain tiff cannot avail hini-self of the legal presumption established in such cases. But 1 \ , . we accede to the proposition advanced by his counsel, that this does not preclude him from furnishing evidence that in point of fact the disease did exist at that time. On this L t point much evidence was given on both sides. On the part of the vendor it is shown, that the sale took place on the 23d of June, and that the slave remained at the house of Mr. Jacobs until the 25th, when he was put on board a steam-boat, to be sent to Lafourche; that during the time ’ ’ ° he remained at Jacobs’s, he exhibited none of the symptoms of small pox, and that no cases of that disease had occurred at his establishment for two months. On what day the disease made its appearance, is not very clearly established, It was during the voyage to Lafourche, and he died on the 10th July. According to the opinion of medical men, the slave may have caught the infection after the 25th of June, or it may have existed in the system at that time. The matter is left doubtful by the testimony in. the case. The question is one of fact, and on a careful examination of the evidence submitted to the jury, we are unable to discover that it preponderates so decidedly in favor of the plaintiff, as to authorize us to disturb the verdict.

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