text:
    Joseph Joor, Curator, v. D. and J. Sullivan.
    Where a party receives paper which it was his duty to collect, and places the same for suit in the hands of a competent attorney at law, he will not be responsible for the opinions or directions of the attorney.
    APPEAL from the District Court of West Feliciana, Stirling, J.

      Brewer and Collins, for plaintiff.

      C. Ratliff, for defendants.
   The judgment .of the court was pronounced by

Rost, J.

This suit is brought by the curator of the estate of Samuel Dalton against the defendants, on two promissory notes. The claim was admitted, and judgment rendered, subject to a deduction of $150 plead in compensation, and a further sum of $359 36 allowed as a credit on the judgment.

The defendants have appealed, and claim that a further sum of one thousand dollars should be allowed in compensation, being the amount of the principal and interest of a promissory note drawn by George W. Callette, and endorsed by John G. Carney and Daniel Sullivan which note was the property of Daniel Sullivan, one of the defendants, was sued upon for the use and benefit of Samuel Dalton, and the amount of the same was to be credited on the notes for which the plaintiff brings suit. They allege that the note was good at the time against John G. Carney, the endorser, for the full amount and interest.

It is neither alleged nor proved that the proceeds of this note ever came into the hands of Samuel Dalton or his curator. It belonged to Daniel Sullivan, as is proved by the record of a suit of Lewis Sturges, against him and G. W. Callette. He paid it under executions in that suit, and instituted suit .upon it against John G. Carney, the endorser immediately preceding him, for the use of Dalton’s estate. But, defence being made that the note was compensated by claims of Collette the drawer, against him, he dissmissed the suit and gave up the note to Carney, the defendant. The claim cannot be allowed in compensation of plaintiff’s demand. However, as he asks it, the court reserves to him the right, if any he has, to establish his claim in a separate and substantive demand. By an amended answer, the defendants alleged that they placed in the hands of Samuel Dalton, on the 30th of January, 1843, for collection, a note of hand drawn by Mrs. Ann Brister in favor of Daniel Sullivan, and endorsed by him for $571 20, with 10 percent interest from the 1st day of January, 1842; the proceeds to be applied, according to a receipt given by Dalton, to the payment of certain claims in his hands for collection, against Daniel Sullivan, and any balance to be accounted for to him when collected. The defendants allege that Dalton never accounted for the note as he agreed to do ; that he treated it as his own ; sued upon it in the name of Sullivan, for the use of others, without his consent; obtained judgment against Mr.s. Brister; seized her negroes, of a value sufficient to satisfy’ the judgment, interest and costs ; permitted the slaves to be taken from the possession of the sheriff, and to be removed out of the State and thereby lost the whole amount of the debt, interest and costs. By such neglect and mismanagement, the defendants aver that the estate of Dalton has become liable to them for the whole amount of debt and interest due by Mrs. Brister, and plead it in compensation of the plaintiff’s demand.

Dalton received the note of Mrs. Brister from Sullivan, to satisfy claims of Joseph Lovell, John C. Morris and others against him. He might well sue in Sullivan’s name, for their use, as he did, without thereby making or treating the note due by Mrs. Brister as his own. The record shows that'he used due diligence as an attorney, in obtaining judgment and issuing execution. It appears, by the testimony of Lurty, the deputy sheriff, that Sullivan knew that the execution was in his hands, and took an active part in having it executed; lived in the neighbourhood of defendant; knew the parties, and acted as if the claim was his own. Lartigue, another deputy of the sheriff, proves that Mrs. Brister was the sister of Sullivan, and at his house when the slaves were seized.

The plaintiff's attorney ordered the writ to be returned; but we have no evidence that he released the seizure if made. He was of the opinion, as appears by the testimony of Lurty, that he could not seize the negroes, but only .the right, title, and interest of Mrs. Brister in them. They were inventoried as the-property of the estate of George Brister, and were in the possession of his son-in-law. We have no means of ascertaining that the plaintiff’s attorney gave an erroneous opinion or direction to the sheriff; but we are certain that his opinion and direction, right or wrong, ought not to prejudice the estate of Samuel Dalton; and therefore cannot allow this claim in compensation.

The plaintiff and appellant has asked an amendment of the judgment of the district court, by disallowing a credit of $359 36 allowed by the district court on his notes and mortgage. Whether this credit was properly or improperly allowed, the plaintiff assented to it by asking and obtaining a modification of the judgment based upon this credit, by reviving a judgment included in his notes and mortgage.

The judgment of the district court is affirmed, with costs in both courts.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Mary Wright v. Benjamin et al.
    Until the forfeiture of a charter is judicially determined in a suit brought for that purpose by the State, no advantage can be taken of any cause of forfeiture in any collateral action.
    A defendant sued on a note given for the purchase of certain chartered rights, cannot set up as a failure of consideration causes of forfeiture which existed at the date of his purchase.
    APPEAL from the District Court of West Feliciana, Stirling, J.

      U. B. Phillips, for plaintiff.

      C. Ratliff, for defendants.
   The judgment of the court was pronounced by

Rost, J.

The defendant, Benjamin, resists the' payment of a note executed in solido by him and D. Hamilton, on the ground of a partial failure of consideration ; he alleges that the note was given in part payment for the exclusive right and privilege of keeping a steam ferry across the Mississippi river between Bayou Sara and Point Coupée; and also for the steam ferry boat which Hamilton purchased at the probate sale of the succession of Isaac Wright; and that soon after the purchase he discovered that Isaac Wright had failed to comply with the provisions of the charter, and that it had been forfeited anterior to his death; in consequence of which, he contends that he is entitled to a reduction of the price. This defence did not prevail in the court below, and both defendants appealed.

No bond having been given by Hamilton, the appeal, as to him, must be dismissed. The other appellant does not pretend that the forfeiture of the charter has been enforced at the suit of the State; but he alleges that he has shown acts and omissions on the part of Wright sufficient to authorise a decree of forfeiture.

The plaintiff took a bill of exceptions to the opinion of the court admitting testimony to prove those acts and omissions, on the ground that until a forfeiture is judicially decreed, neither the forfeiture itself, nor the cause of forfeiture, can be inquired into in another suit.

We are of opinion that the exception was well taken, and that the evidence should not have been received.

The rule, as settled after mature deliberation in the case of the Atchafalaya Bank v. Dawson, 13 L. R. 497, is, that until the forfeiture is judicially determined in a suit brought for that purpose, no advantage can be taken of the forfeiture itself, or of any-cause of forfeiture by any defendant in any collateral action. 2 Kent Com. 312, etseq. Angell & Ames on Corporations, p. 510 and notes. That rule is decisive of this controversy.

The judgment is affirmed, with costs.


author: Eustis, C. J.

text:
    J. W. Wood et al. v. Tucker Wall et al.
    Where three married women were appellants, and the appeal bond is signed only by the husband of one of them as principal, the appeal will be dismissed upon motion.
    APPEAL from the District Court of East Feliciana, Stirling, J.

      Roberts and Z. S. Lyons, for plaintiffs.

      E. T. Merrick, for defendants,
    contended: In this case there is a motion to dismiss the appeal. The plaintiffs in the action are three married women. The husband of one of them, in his name only, has signed the appeal bond. It is contended by the curator ad hoc, that the bond is insufficient, inasmuch as a married woman cannot bind herself except by her own act and with the authorisation of her husband. Here the husband of one of the plaintiff’s, in his own name, gives the bond. Neither his wife nor the wives of his co-plaintiffs are in any manner parties to it, or bound by it. In 12 R. R. 205, the court says that the names of the appellants must appear in the appeal bond, particularly in a case on appeal by motion in open court, because it must appear that all parties are concurred in the appeal. The reason is much stronger in the present case, because the hushand by his own act cannot bind his wife, neither can she bind herself alone; it requires their joint act; and the condition on which an appeal is granted, is that the appellant shall give- his obligation with a good and solvent surety. C. P. 575.
    The surety is to bind himself for the appellants, and not for the husband of one of them, as in this case. See the case of Sauletv. Trepagnier, 2d Ann. 428.
   The judgment of the court was pronounced by

Eustis, C. J.

A motion has Been made to dismiss this appeal, on the ground that the three plaintiffs are all married women, and none of them have signed the appeal bond. The order granting the appeal required the appellants should give bond with good security, &c. The bond purports to be given by one of the husbands, in his own name, as principal in the bond.

The motion has been seasonably made and must prevail.

The appeal is therefore dismissed, with costs.


author: Slidell, J.

text:
    Elizabeth Hoover et al. v. Mathew B. Sellers.
    A succession inherited by minors may be administered by tutors, and a tutor may relieve an administrator from the further administration of the estate.
    Where a person has acted as tutor, and has been recognised as such by the probate judge, and where it is shown that the records of the court are in a state of great confusion and dilapidation, it will be presumed that he was properly qualified although the usual oath and bond cannot be found.
    Appointments made by decrees of courts of competent jurisdiction cannot be regarded as absolutely void, and attacked collaterally to the detriment of third persons.
    APPEAL from the District Court of Carroll. Snyder, J.

      John A. Collins and Short, for plaintiffs.

      Sparrow, Ogden and Duncan, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff, Elizabeth Sellers, now the wife of Thomas JR. Hoover, alleges that she is the grand-daughter of John Sellers, who died in the parish of Ouachita, in 1828; and as such, is one of his heirs. That the entire succession amounted to $4766 12¿, That Matthew B. Sellers was appointed administrator of the succession, and took it into his possession. That the share to which she is entitled is one fifth of the above named sum, to wit, $953 22h, with interest on the sum of $76 60 from December 12th, 1830, at ten per cent; a like interest on the sum of $200 from the 1st January, 1832; on the sum of $332 20, from 1st January, 1833; and on the sum of $332 30 from the 1st January, 1834 ; until paid. That the defendant, as administrator, has received and still retains the several sums of money above set forth; and by reason thereof is justly indebted to her in their amount, with interest.

Por a proper consideration of the plaintiff’s claim, it is necessary to state with some minuteness the proceedings which have taken place with regard to the succession of John Sellers, and the affairs of the plaintiff, who was a minor at the time of her ancestor’s death. And in making this examination it is proper to keep in view the grounds of the plaintiff’s action, to wit, that the defendant has received and retains the amounts specified.

The defendant was the brother of John Sellers, and applied for the administration of His estate. He was appointed administrator in 1828. The inventory exhibits as the sole property of the succession, a few movables, four slaves, and a tract of land in the parish of Ouachita. It is not pretended that there was any other property. The only property sold through the instrumentality of the defendant, was the movables. This sale was made in 1829, at twelve months’ credit, for a sum of $383. In the same year' the defendant suggested, in a written communication to the parish judge, his inability by reason of ill health to continue the administration, and that proceedings were in progress to place the affairs of the minors in the charge of tutors. A family meeting was held in the same year, at which W. Cr. Osburn, a son-in-law of the deceased, was nominated as tutor of Elizabeth, the present plaintiff, and other persons as tutors for the other minor heirs. On the 9th may, 1829, a decreee was made by the parish judge, homologating the proceedings of the family meeting, appointing Osburn tutor of the plaintiff, and directing that letters issue upon his giving bond and security, and taking the oath of office. In 1830, Sellers rendered an account of his administration; in which he purports to return the slaves and lands belonging to the succession, and also the notes received from the sale of the movables. He charges no commission. This account was subsequently homologated. That the notes were received by the parish judge is shown; for not long afterwards they were delivered, upon a written receipt, to Childers, a tutor of one of the minors. It is obvious, that after this period Osburn, the tutor of Elizabeth, considered Sellers as no longer charged with the the administration ; for we find him in 1830, on behalf of his wife, an Jieir of the deceased, and also describing himself as tutor of Elizabeth, suggesting, by petition to the court of probates, the necessity of a sale of the remaining property to effect a partition: and praying that a family meeting be convened to determine the terms of sale. Upon this petition the judge ordered afamily meeting, and appointed a curator ad hoc, to represent Elizabeth in the suit for partition." The family meeting recommended a sale of the lands, at a credit of two and three years from the 1st of January, 1831; and of the. slaves, at a credit of one year from the same date. In December, 1830, a decree was made, homologating the deliberations of the family meeting, and ordering the sale. On the 1st February, 1831, the sale was made under this order. The land was sold at the price of $3,383 12i, on a credit of two and three years; and the slaves at the price of $1000, at a credit of one year. And here it is proper to note, that the plaintiff’s claim is predicated upon the sales thus made ot the entire property left by the deceased, the sum claimed in her petition being the one fifth of the total product of the public sale of the movables, lands, and slaves; and the respective dates of the maturity of the purchase money being the dates from which she claims interest, as we have already stated. There is nothing to show that any of the notes of the purchasers ever came into the hands of the defendant. It appears affirmatively, that a portion of them was handed to a tutor of one of the minors.

In 1835, Henry Newman presented a petition to the parish judge, representing that Osburn, the tutor of Elizabeth, had died, and praying to be appointed tutor in his stead. After publication, he was appointed ; took the oath of office ; gave bond, and received letters in 1835. In 1836, a decree was made by the parish judge, discharging Newman at his request, and appointing James Phelan tutor of Elizabeth. He gave bond as such. In 1842, he presented an account as tutor, to the court of probates; in which he debits himself with $1440, as the amount of the minor’s estate, and charges her with her board, tuition, and other expenses. In the same year, a decree was made homologating this account. In 1846, Phelan again rendered an account; in which, as before, he charges himself with $1440, as an amount received in June, 1836, (the date of his appointment,) “it being her interest in the succession of her grand-father, John Sellers." After publication, there was a decree homologating this account, and discharging Phelan from the tutorship, upon his paying the sum of $148 34, the balance in favor of the minor, exhibited by his account, after charging her for boarding, tuition, clothing, &c., during a period of ten years.

It further appears from the evidence, that the plaintiff’s mother died soon after the death of her grand-father, John Sellers. Osburn and his wife took charge of the plaintiff, until Osburn’s death. She subsequently remained under the care of Mr. and Mrs. Phelan, from whom she received a parental treatment. The boarding, clothing, &c., were worth from one hundred to one hundred and fifty dollars a years.

It also appears that the business of the Court of Probates of Ouachita, then a very extensive parish, was conducted with an irregularity, which was in some degree attributable to the extreme difficulty of communication, owing to periodical inundation ; that the records have fallen into a state of confusion, and many papers had been lost.

The case was tried by a jury, who found a verdict in favor of the defendants. The district judge refused to grant a new trial, and the plaintiff has appealed.

It is obvious, under the evidence, that the defendant has not actually in his possession any monies of the plaintiff; and that in point of fact, her estate has gone into the hands of her tutors. It is also a well settled doctrine, that a succession inherited by minors may be administered by their tutors; and as a tutor might originally administer a succession inherited by his ward, he might, so far as his war'd is concerned, relieve an administrator, if one had been appointed, from the further administration of the estate. But the plaintiff seeks to escape from the effect of these principles by questioning the legal capacity of her several tutors to act as such. Osburn, it is said, was not her tutor; because, although he was appointed, it does not appeal' that he had given bond, or taken the oath of office. That he acted as tutor, is proved. That he was recognised as such by the parish judge in subsequent proceedings, is also inferrable. Moreover, we find charges made in 1831 by the parish judge, “for taking bonds.” and by the notary, for “ writing bonds for tutors.” Under the circumstances, the defendant is fairly entitled to the benefit of the presumption, omnia rite acta. This presumption is peculiarly equitable in the present case, considering the state of confusion and dilapidation into which the records of the probate court have fallen. See Gibson v. Foster, 2d Ann. 509.

But again: the position of the plaintiff, that Osburn was not her tutor, is inconsistent with the basis upon which she rests the main portion of her claims. She demands the proceeds of sale of the land and slaves. But that sale was provoked by Osburn as her tutor. By claiming the proceeds of the sale, she affirms the sale; and by affirming the sale, she affirms his action as tutor.

As to Newman and Phelan, who subsequently were appointed her tutors and acted as such, it is said their appointments are void, because they were not preceded by the advice of a family meeting. That the action of the parish judge was irregular, may be conceded. But, that these appointments, made by solemn decrees of a court of competent jurisdiction, can be attacked collaterally to the detriment of third persons and are absolutely void, is a proposition to which we cannot assent. See Lalanne’s Heirs v. Moreau, 13 L. R. 432; and Gibson v. Foster, 2d Ann. 509.

Judgment affirmed, with costs.


text:
    Wm. McCraw, Curator, v. Tomkins and Larche.
    The payee of a note is a good witness for holder against the drawers, where the defence is payment.

      Waters and Petrovich v. Blanchard, 19 L. K,. 584, affirmed.
    APPEAL from the District Court of Carroll, Selby, J. This was an action by the holder against the drawers of a note, to which the defendants pleaded payment. The plaintiff introduced the payee, Gory Hood, as a witness upon this issue. The testimony was objected to, and a bill of exceptions taken to its reception, upon the ground of the witness being interested.

      J. B. Bemiss, for plaintiff.

      Short and Parham, for defendants,
    contended : The petition alleges that the witness assigned the note after it was due. If he did, it was paid, and he stood as the guarantor of the existence of the debt. Why should he be permitted to swear a debt into existence that had no existence, against Tompkins, who had paid it?
   The judgment of the court was pronounced by

Rost, J.

This case is not in a situation that will enable us to pass finally upon it. Some of the witnesses examined have not told the whole truth, and have evaded answering questions which must be within their knowledge. The reasonable expectation that full answers would be made, may have induced the defendant not to procure evidence to trace the note to the possession of the original holder, and thus to show whether it was the one held by the Messrs. Wilson. The truth can, no doubt, be elicited in another trial; and we must have it.

To facilitate the proceedings, we will now pass upon the bill of exceptions of the defendant. We are of opinion that, under the pleadings, Govy Hood has no interest in the controversy, and that he is therefore a competent witness. We adhere to the decision in the case of Waters and Petrovich v. Blanchard, 19 L. R. 584.

It is therefore ordered that the judgment in this case be reversed, and the case remanded for further proceedings according to law; the plaintiff and appellee paying the costs of this appeal.


text:
    John J. Ames v. The People’s Telegraph.
    Where evidence is received in the court of the first instance without objection, and no motion was made to strike it out, it cannot he rejected by the court, upon the ground that tlie witness disclosed the fact that the proof rested upon written orders and papers which were not: produced or called for.
    Where there are mutual accounts, a party who has accepted drafts drawn upon him hy the other party, has a right to be credited with the amount for which he has accepted, the drafts being at the time still outstanding.
    from the District Court of East Baton Rouge, Burk, J.

      J. M. Elam, for plaintiff.

      G. S. Lacey, for defendants,
    contended: It is contended that the amounts paid on Ames’ orders, and the several sums for which receipts were taken, cannot be allowed, because the orders and receipts were not produced upon the trial. The court will bear in mind, those items were clearly and conclusively established by Sheafe, without any objection to the reception of his evidence— without even a motion to strike the same out; hence, the plaintiff is bound by that testimony. In Huey v. Hinkgrave, 19 L. R. 482, this court held, that evidence taken down at the instance of plaintiff, cannot be stricken out upon the cross-examination, on the ground that it contradicted or went to explain a written contract. The motion to strike out came too late; the objection should be made when the testimony is offered. As to its effect, when once taken, the court has frequently held, that it will bind the parties, even in regard to the sale of real property. 1 N. S. 456. 4 L. R. 22, 64.
    It was also argued, in the court a quo, that the defendants cannot be allowed credit for the amount of Ames’ draft in favor of Pratt, accepted by defendants, ($175,) because the drafthad not been paid. The consequence of this position shows its absurdity. The defendants will be compelled to pay to Ames the full amount of his account, as though no acceptance had been made; and, at the maturity of the draft, will be obliged, under their acceptance, to take up the same; in other words, must be subjected to a double payment. It requires no argument to induce your honors to protect us from that position.
   The judgment of the Court was pronounced by

Rost, J.

The plaintiff sues the defendants for wages and monies advanced for their use.

The defendants admit the plaintiff’s account to the amount of $388 13, and claim the sum of $400 90 in reconvention. There was judgment in favor of the plaintiff for a portion of his claim, and the defendants appealed.

The witness Sheafe has testified that the whole amount of the demand in reconvention is correct; but the district court refused to allow several of the items because this witness when cross-examined disclosed the fact, that several of the items charged in the account rested on the evidence of the plaintiff’s written orders and letters, which he stated were in New Orleans. As the plaintiff did not object to the introduction of this evidence, the court erred in raising the objection for him. The plaintiff is bound by it; and we think that it proves the payments alleged. Huey v. Dinkgrave, 19 L. R. 482, and cases there cited.

The court refused to allow the amount of two drafts drawn by the plaintiff on the defendants, and accepted by them, which were outstanding at the time of the trial. In this, also, we think there is error. Whatever recourse the plaintiff may have hereafter against the defendants in case of non-payment of these drafts, it is clear that he has now no claim against them for the amount they have assumed to pay in discharge of his liabilities. His rights to that extent stand transferred to the holders of the drafts.

The account of the defendants contains an item of $20, which the witness Sheafe says was paid to the plaintiff by a third person. On the cross-examination he says, that he did not see it paid, and does not state from what source he derived his knowledge. That evidence is insufficient.

The claim in reconvention is proved to the amount of $380 90. This sum deducted from $388 13, leaves a balance of $7 23, for which the plaintiff must have judgment.

It is ordered that the judgment in this ease be reversed; and that there be judgment in favor of the plaintiff, and against the defendants, for seven dollars and twenty-three cents, With the costs of the district court. Those of this appeal to be paid by the plaintiff and appellee.


author: Preston, J.

text:
    The State of Louisiana v. F. Agudo et al.
    In a prosecution for a violation of the Act to Prevent Gambling, evidence may be introduced showing that the defendants had been engaged in gaming, and playing at other times previous to the day charged in the information.
    The time of the commission of an offence laid in' the indictment ís not material, and does not confine the proofs within the limits of that period. The indictment will be satisfied by proof of the offence on any day anterior to the finding.
    The 1st section of the act of March 14th, 1836, amending the act of 19th of March, 1835, to prevent gambling, merely changes the destination of the fines when collected; and in no ■ manner changes or affects the offence, as declared in the act of 1835. An information "for that offence rightly concluded against the form of the statute.
    APPEAL from the First District Court of New Orleans, McHenry, J.

      W. A. Elmore, Attorney General, for the State,
    contended : The defendant was proceeded against by information, for a violation of the act entitled, “ An act to Prevent Gambling,” approved March 19th, 1835. He was convicted upon the first and third counts: the former charging him with keeping and maintaining a certain gaminghouse and banking game; the latter with aidiüg and assisting in keeping and maintaining a certain gaming house and banking game.
    The record presents two questions only: one upon a bill of exceptions, as to the admissibility of evidence; the other, on a motion in arrest of judgment, alleging that the information is defective, in charging a violation of the statute, instead of the statutes.
    Upon the first point, the bill of exceptions shows that the court permitted the attorney general to “ prove other acts of gaming which had occurred about the time charged in the information.” The correct rule as to time, as it is believed, is laid down by Wharton, in his Criminal Law, page I58y where he says : “The time of a commission of an offence, laid in an indictment is not material, and does not confine the proofs within the limits of that period ; the indictment will be satisfied by proof of the offence, on any day anterior to the finding.” See the authorities there cited. See also Roscoe, page 100. 1st Chitty, 223. Upon the second point, does the information conclude correctly in charging a violation of the statute, instead of a violation of the statutes 1 The information in this case was based upon one statute only : that of 1835. There was no other statute violated ; and no other statute was relied on. No other statute being read to the jury or quoted in the trial of the cause. See case of Kane v. The People, 8 Wendell, 212. Wharton’s Criminal Law, 105. The State v. Berry, 4 Halstead, 376.

      C. Hufour, for appellant, contended: 1. The defendant relies, before this court, first, upon the third ground urged for a new trial in the lower court, which is as follows: The court has allowed the attorney general to travel out of the case, and to introduce evidence tending to show the defendant’s gaming and playing at other days and times, besides the day mentioned in the information ; which cannot be done when not alledged in the information. When the evidence was offered, the objection was urged, but overruled. 2. The defendant next insists upon the ground filed in arrest of judgment, which is as follows : The sentence to be passed in a case like the present, is gathered from and based upon two statutes enacted in 1835 and 1836 ; whilst upon the face of the information, it appears that the present proceedings are founded upon one statute; the defendant being charged with violating the statute instead of the statutes, made and provided to prevent gambling. The two acts are mentioned in the body of the sentence.
   The judgment of the court was pronounced by

Preston, J.

The defendants were convicted of a violation of the act to prevent gambling, and have appealed from the judgment rendered thereon. The grounds on which they rely for a reversal of the sentence are, 1st. That the district court permitted the attorney general to introduce evidence showing that the defendants had been engaged in gaming and playing, at other times previous to the day charged in the information. 2d. That the sentence to be passed upon conviction, depends upon two statutes, one approved in 1835, and the other in 1836 ; whereas the prosecution is based upon one statute, and concludes against the form of the statute.

We think the first ground upon which a reversal of the sentence is claimed, is untenable. Wharton, in his Treatise on Criminal Law, lays down the true rule, as to the proof of the time at which an offence was committed to support a iDrosecution. “ The time of the commission,, laid in an indictment, is not material, and does not confine the proofs within the limits of that period. The indictment will be satisfied by proof of the offence on any day anterior to the finding.” So that the evidence was proper, even if the offence consisted in an isolated act.

But, the defendants were accused of keeping a banking or gaming house. The keeping a banking or gaming house a single day, might constitute the offence ; but, in common acceptation, the keeping a house implies that it has been kept more than a day. It was, moreover, proper for the attorney general under the information- to show that the house was a banking and gaming house. Proof that banking and gaming had been carried on in the house, previous to the time the offence- charged- in the' information was committed, gave the house that character; and proof that the accused had banked and gamed there, before the act and time charged in the information, tended to show the guilty knowledge and intention, which, with the act, constituted the offence charged. See Archbold’s Criminal Pleadings and Evidence, p. 105.

As regards the second ground, the prosecution was for a violation of the act of 1835 alone, which declares the offence, and the penalty incurred by its commission. A subsequent statute passed in 1836, p. 158, directs, “ that the fines specified in the second and third sections of the act to which this is an amendment, shall, when collected, be paid one-half to the informer, and the other half to the use of the charity hospital of New Orleans.” This last act merely gives a destination to the fines when collected, and in no manner changes or affects the offence, as declared in the act of 1835. There is but one statute which prohibits the offence. The information, therefore, very properly concluded against the form of the statute.

The judgment of the First District Court is therefore affirmed, with costs.


text:
    Wm. J Graham et al. v. Wm. Benjamin et al.
    Where the answers to interrogatories propounded to a party in a suit on oath, are manifestly evasive, they may be taken as confessed against the party answering.
    Where the husband holds funds as belonging exclusively to his wife, without any knowledge on the part of the wife of his holding the funds for her, third persons who have a better right to those funds may recover judgment against the husband, but cannot against the wife.

      APPEAL from the District Court of Carroll, Snyder, J.

      H. Short and F. T. Merrick, for plaintiff.

      A. B. Caldwell and J. A. Collins, for defendants.
   The judgment of the court was pronounced by

Rost, J.

Rachel Graham, the wife of William Benjamin, was the sister of the whole blood of Francis W. Graham,, deceased. The brother and sisters of the half-blood claim from her and her husband their share of the succession, which they allege the defendants have received. There was judgment in their favor against the defendants in solido, and they appealed.

To prove that the defendants were in possession of the succession of F. W. Graham, the plaintiffs propounded interrogatories to them. Rachel Graham answered, denying any knowledge of the questions asked. William, Benjamin answered the interrogatories put to him; but the plaintiffs being dissatisfied with his answers, took a rule upon him to show cause why two of the interrogatories should not be taken tor confessed, on the ground that the answers were intentionally evasive, and not responsive to the questions put. On trial, the rule was made absolute, and the defendant Benjamin took a bill of exceptions.

The interrogatories thus taken for confessed are the principal evidence upon which the district judge decided the case. The defendants’ counsel admits that when there is a manifest evasion in the answer to interrogatories, the courtis authorised to take them for confessed, as decided in the case of Knight v. Murchison, 1 R. R. 31; but he contends that the defendant Benjamin answered the interrogatories in good faith; and that if his answers are not sufficiently definite to enable the plaintiffs to meet and disprove them, they should have filed supplementary interrogatories requiring more explicit answers.

The defendant Benjamin was interrogated as to facts peculiarly within his own knowledge. He 'admitted some of the facts charged, and manifestly evaded answering as to the others. We are of opinion the district judge did not err in ordering the interrogatories to be taken for confessed. They show that Benjamin holds the sums claimed of him as belonging exclusively to his wife, as the sole heir of Francis W. Graham ; and as he is the master of the personal actions of his wife, this is sufficient to charge him ; but as the funds did not originally come to his hands in right of his wife, and her answers to the interrogatories, stow that she was not apprised of her husbands acts in the matter, we are of opinion that judgment was improperly rendered against her.

It is therefore ordered, that the judgment against William Benjamin be affirmed. It is further ordered, that the judgment against Rachel Graham be reversed, and that there be judgment in her favor. It is further ordered, that one-half of the costs in both courts be paid by the plaintiffs and the other half by William Benjamin.


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    Margaret Posey et al. v. The Bank of Louisiana.
    Where a bond in favor of a bank, secured by mortgage, was taken payable at the bank, it is not necessary that there should be authentic evidence of presentment and demand of payment at the bank, to entitle the bank to executory process.

      The Bank of Louisiana v. Farrar^ 1st Ann. 49, affirmed.

      APPEAL from the District Court of West Feliciana, Stirling, J.

      C. Ratliff and J. A. Patterson, for plaintiff.

      U. B. Phillips, for defendant.
   The judgment of the conrt was pronounced by

Eustis, C. J.

The Bank of Louisiana obtained an order of seizure and sale against a certain tract of land and slaves, on a bond and mortgage executed by the plaintiff and her husband in favor of the bank; the proceedings were enjoined at the instance of the wife on the ,6th October, .1843. A judgment was rendered by the court in May, 1844, in favor of the plaintiff in injunction; which judgment was afterwards set aside on application of the defendant for a new trial. In June, 1848, the case was submitted to a jury, who, not being able to agree on a verdict was discharged. It was submitted to another jury in 1849, who found a verdict, for the plaintiff. The district judge refused to grant a new trial, being of opinion that justice to the parties required that there should be an end to this litigation, and rendered judgment according to the verdict, in order thatthe case might be taken to this court for final adjustment, he being, at the same time, of opinion that the verdict was not in conformity with law and evidence. From this judgment the bank has taken an appeal.

The first objection taken to the validity of the executory proceedings, is that there was no authentic evidence of a demand for the payment of the bond at -the place where it was made payable, nor any allegation to that effect; and the case of Morse v. Burns, 12 L. R. 915, is referred to as sustaining the objection. That case was of a promissory note payable at a particular place, and, we think, that the doctrine in that case has been virtually overruled, by the case recently decided in this court of Ripka v. Pope. The instrument on which the executory proceedings are based, is not a promissory note; it is an obligation to pay back money loaned with interest, and is made payable at the bank itself. The next objection is, that the bank received two notes from the plaintiff, which ought to have been credited on the loan or accounted for by the bank. We think, with the district judge, that it is not satisfactorily proved that the bank ever received these notes, or that they were ever intended to be appropriated to the plaintiffs’ loan. An objection is taken to the right of the bank to proceed against the land, on the ground that the plaintiff had sold it to one Aninas Dunbar, who had ceded it to his creditors ; and that the bank had waived their mortgage on this land, and claimed the proceeds in the insolvent proceedings, the land having been sold by the syndic at the sale of the insolvent estate. This objection we concur with the district judge in considering not supported by evidence; and it may not be out of place here to observe, that the plaintiff having sold the land, the question of the existence of the mortgage upon it might have been with propriety left with the owner of it. This matter afforded no ground whatever for restraining the proceedings with regard to the slaves, which would appear to have been ample security for the debt to the bank.

The objections taken to the validity of the plaintiff’s obligation on account of her being a married woman, are without any foundation whatever. The Bank of Louisiana v. Farrar, 1st Ann. 49.

The judgment of the district court is therefore reversed, the injunction dissolved, and the plaintiff’s petition dismissed, w^h costs in both courts.


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    Adelia Bird, Wife of Laycock v. Nancy Black et al.
    A mere intermeddler with minors’ property is liable for the damages he causes the estate.
    But if his administration has been beneficial, and bebas fairly accounted, be is not liable.
    The mode of calculating interest on the capital to a payment, and then deducting the payment on the aggregate of principal and interest until the next payment, however small the payments, or short the intervals between thorn, is not admissible in a tutor’s account.
    If a tutor invests the minor’s revenues once a year, and only when the surplus exceeds five hundred dollars, he complies with the law.
    Suits of children against parents are not to he encouraged, unless to redress clear and palpable injustice. There are services which parents render to their children, and which it is presumed they perform, until the contrary appears, that money cannot repay. Eilial duty should restrain the child from exposing the faults of its parents, or worrying them with litigation, unless compelled by extreme necessity.
    APPEAL from the District Court of East Baton Rouge.

      G. S. Lacey, for plaintiff.

      C. Ratliff, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff, the daughter of William Bird, deceased, has instituted this suit against her mother to obtain an account of her paternal inheritance. She annexes to her petition a statement specifying several items unaccounted for by her mother, and claims a balance of $11,245. She seeks to render John W. Dawson, the present husband of her mother, liable, for having violated the provisions and spirit of article 272 of the Civil Code, which renders the husband by the second marriage liable in solidum with his wife, to her minor children, if they contract marriage without having her continued as tutrix in the manner provided by the article. The plaintiff claims the same balance from Charles Tessier, on the ground that he intermeddled with the administration of her inheritance, and thus rendered himself liable for the amount claimed from her mother, and step-father. She also claims a legal mortgage against his property, under article 3283 of the code, for having interfered in the administration of her property.

Charles Tessier admits that he charged himself with the investment of the plaintiff’s funds; alleges that he did so in pursuance of a judgment of the Court of Probates of the parish of East Baton Rouge; renders the plaintiff an account; alleges that ho has overpaid her five thousand seven hundred and sixty-four dollars; for which he prays judgment by reconvention, with interest.

Mrs. Dawson and husband contest the plaintiff’s claims. She, moreover, alleges that the community of acquets which existed between her and her first husband has never been settled; and makes a large claim against the plaintiff growing out of that community.

The counsel of the plaintiff has furnished us with the following statement of facts, which by a careful examination of the record we find to be correct. Some time anterior to the year 1826, William Bird entered into a co-partnership with his brothers Abraham, Thwwpson, and John Bird, for the purchase of real estate, &e., and the cultivation of one, or more plantations ; and during the existence of the partnership much landed estate, situated in the State of Louisiana, and many slaves were acquired by the co-partners. On the 5th of June, 1826, William Bird was married to Nancy Black, the defendant, by whom he had two children, the plaintiff in this action, and her brother and co-heir Thompson Bird. ■ William Bird died, and on the 30th of December, 1830, the surviving widow was confirmed as natural tutrix to her minor children above named.

Upon the application of the tutrix, and the recommendation of a family meeting duly convened, a judgment was rendered in the Probate Court of the parish of East Baton Rouge, on the 5th of May, 1831, ordering a partition between Abraham, Thompson, and John Bird and the heirs of William Bird; which partition was made by an act passed before Judge Tessier on the 12th day of May, 1831, and certain property fell to the widow and heirs, as is particularly set forth in the act of partition.

On the 7th of March, 1834, Nancy Black presented a petition to the probate court, stating that it was her intention to contract a second marriage, and prayed that a family meeting might be convened for the purpose of authorising her to retain the tutorship of her children. A family meeting was held, the deliberations of which were not unanimous, and the court upon application ordered her to retain the tutorship, on furnishing security to the satisfaction of the court and the under-tutor. The security was never given.

On the 20th of March, 1834, she married John W. Dawson.

On the 2d of August, 1836, Andrew Black, the under-tutor of the minors, brought suit against Nancy Black and John W. Dawson her husband, to render an account for judgment in such an amount as they might be found to owe, and to compel them to give security for their further administration in conformity to law.

Mrs. Dawson and husband filed an exception and general denial, and a claim upon the heirs for Mrs Dawson’s interest in the community, which she alleged existed between her, and her first husband.

In this situation of affairs a compromise was proposed on the part of Dawson and wife, and submitted in writing to the person representing the minors. It was proposed: “1. That Dawson and wife should pay at the rate of five per cent upon $17,000 for six years, ending the 10th of January, 1837, in lieu of all liability for revenue to the minors since the death of William Bird, in 1830, until the 1st of January, 1837. 2d. Mrs. Dawson is to retain all the revenues arising from the possession or administration of the estate of her deceased husband, or any property acquired by her, or her second husband, from said revenues, which shall be considered the separate property of Nancy Black, in consideration of her renouncing all her claim to the community, which existed between her and her first husband. If the compromise was accepted, the property of the minors was to be sold on the 1st of January, 1837, on such terms and conditions as may be fixed by a family meeting.”

On the 8th of October, 1836, the compromise was accepted by a family meeting, and the property consisting of lands, slaves and personal property, (almost, if not the entire, property falling to the heirs under the partition above mentioned,) was recommended to be sold at public auction on 1, 2, 3, 4, 5 and 6 years’ credit. The proceedings were homologated by the court on the 20th of October, 1836, and the property was decreed to be sold. It was sold to General Joseph Bernard for $69,200; half of which amount, with the interest thereon, belonged to the plaintiff, and the other half to her co-heir Thompson Bird.

On the 20th of January, 1837, the under-tutor, Andrew Black, filed a petition, praying for a judgment to the amount fixed upon by the compromise, to wit, for $5100, being 5 per cent on $17,000, from the 1st of January, 1831, to the 1st of January, 1837. The petition also set forth the sale of the property for the sum of #69,200; and alleged that the monies and moveable effects of the minors, subject to the control and administration of defendants, would amount to #74,300; and concluded by praying that Nancy Dawson and husband be ordered to furnish security to that amount, pursuant to article 330 of the Louisiana Code; otherwise, that they be destituted.

On the 21st of April, 1837, judgment was rendered against Dawson and wife for #5100. It was furthermore ordered, adjudged and decreed, that they be destituted of the tutorship, so far as it concerns the administration of the property of the minors. It was further ordered, that the notes given for the minors’ property be held subject to the further order of the court.

On the 24th of March, 1838, upon application, a family meeting was duly assembled, and the members thereof recommended that Nancy Dawson be appointed tutrix, but with reservation of the administration of the funds belonging to said children, except what may be sufficient for their decent support and education. That the proceeds of the sale of the estate belonging to the children be invested on mortgage of unincumbered property, under the control of the probate court, with the assent of the under-tutor, and for said minors. And whenever said Nancy Dawson will be able to furnish such security, or mortgage 'on real estate, the funds and means of her said children be placed into her hands, and under administration by the competent court, and according to law. The same day the proceedings of the family meeting wer’e homologated.

On the 29th of September, 1838, execution was issued in the case of Black, under-tutor, against Mrs. Dawson and husband for #5100; and on the 26th of November, 1838, the sheriff made #1836 60 by the sale of two of theirnegroes, and some personal property belonging to their plantation.

On the 9th of January, 1840, Nancy Black and J. W. Dawson, co-tutors, presented an account against the minors, amounting to #3019 61, and prayed for judgment, which was rendered on the 17th of July, 1843, for #2857 61.

Mrs. Dawson never gave the security required by the decree of the 24th of March, 1838, nor regained the administration of her childrens’ property. Judge Tessier kept possession of the notes given by General Bernard for their property; collected a part thereof; reinvested a part of what was collected ; paid a portion of the funds on account of the minors’ expenses ; and in 1845 and 1846 appears to have handed over to Nancy Dawson and the children, what he supposed to be due to them.

The parties offered in evidence much documentary and verbal testimony, and especially accounts and vouchers; and their counsel have argued the case fully and ably in this court.

The district court rendered judgment for the defendants, but dismissed their claims in reconvention. In his reasons, the judge states, that the details of the case are infinite and perplexed; and he laments that a master in chancery, or other functionary, provided by other systems for the digestion of similar details, is denied under ours; and that accounts and counter-accounts, requiring adjustment upon diversied principles of calculation, a computation of interest, sometimes conventional, sometimes legal, and all running through a number of years, and through a number of hands, and sometimes through no hands at all, should have been submitted for his adjustment on sucha mass of pleadings, documents, accounts, written and verbal testimony, as the record presents.

We feel fully the force of these observations, and as the cause required “the investigation of long and intricate accounts,” we think the court should have appointed auditorsto have examined the accounts, and stated the same in a report to the court, as authorised by the 443d article of the Code of Practice. And we should have remanded the cause for that purpose, but from a desire to terminate this litigation between a mother and her daughter.

'We have no doubt, from a careful examination of the record in the case of Andrew Blade, under-tutor of the minors, against Nancy Dawson and husband, the pleadings, deliberations of the family meetings, and terms of the compromise homologated and made the judgment of the court on the 20th of October, 1836, that the plantation, slaves and stock sold in pursuance thereof to General Bernard, and thereby reduced to his notes secured by mortgage, and the judgment for $5100 against the mother, was established by these proceedings to be the separate property of the minors; and that all the revenues arising from the possession, or administration of her deceased husband’s estate, and any property acquired by her, or the second husband, from said revenues were considered and settled by the judgment to be the separate property of the mother. The plaintiff insists upon the judgment in this case as settling the community; the settlement was proposed by the defendants, and was reduced to a judgment, no doubt, by their consent. We have no power to open the judgment, and cannot examine any accounts between the parties previous to its rendition.

The claim of Mrs. Daioson, for another settlement of the community of acquets with her first husband is therefore rejected. So also the claim of the plaintiff for money received by her mother in the partition of her fathers’ estate with his brothers, in 1831; also for the value of horses, and the proceeds of sugar then received, is inadmissible. It was all evidently money, and property arising from the possession and administration of the estate of her deceased husband, and which was to be considered by the compromise the separate property of Nancy Blade, in consideration of her renouncing all claim to the community which existed between her, and her deceased husband. It will not therefore be taken into our consideration of the account between the parties.

By the judgment of the probate court rendered on the 24 th of March, 1838, in pursuance of the advice of a family meeting, Mrs. Dawson was divested of the administration of the funds belonging to her children, except what was necessary for their decent support and education ; and it was ordered, that the proceeds of the sale of the estate belonging to the children should be invested in mortgages of unincumbered property, under the control of the probate court, with the assent of the under-tutor, for the minors.

There is no doubt Judge Tessier believed that he was charged by this decree with the investment of the proceeds of the sale of the minors’ property, and acted in good faith in taking the charge upon himself.

The sales of the property amounted to $69,200, payable in six annual instalments of $11,533 33 i each, payable the 2d of January, 1838, 1839, 1840, 1841, 1842 and 1843.

The interest on General Bernard’s notes, calculated to the 2d of January, 1846, allowing 10 per cent'on each note from the time it became due, amounts to $15,570. Add the principal $69,200, and we have an aggregate of $84,770.

The plaintiff married in the latter part of 1845, and Tessier accounted for and paid over to her mother, and her, more than half the above sum. We are not satisfied by the evidence, that Judge Tessier received more than 10 per cent interest on General Bernard’s notes from the time they became due, respectively, to the 2d of January, 1846, considering the advance from time to time of upwards of $7000 for the support and education of the children, and the probability that he paid out of the revenue two considerable claims which we will notice hereafter.

If Tessier be regarded as a mere intermeddler with minors’ property, as charged by the plaintiff, he would be liable for the damages he caused the estate. Had he not so meddled, the mother and her husband would have been charged with the consequences of their mal-administration, under article 272 of the code invoked by the plaintiff’s counsel for having married a second time, without having been previously continued as tutrix of her minor children. They would have been accountable for five per cent upon the minors’ revenues, deducting their expenses for not reinvesting them when they amounted to five hundred dollars. Civil Code, art. 341, amended by an act of the Legislature, in 1845, p. 158.

The minors’ property thus administered would have produced $78,138, on the 2d of January, 1846. The plaintiff’s share would have been upwards of $39,000. Upwards of $40,000 was accounted for and paid to her.

The plaintiff has made out a long and minute account against Judge Tessier, and brings him in debt about ten thousand dollars. The mode adopted of calculating interest on the capital to a payment, and then deducting the payment on the aggregate of principal and interest until the next payment, however small the payments, or short the intervals between them, is not admissible in a tutor’s account. 2 Toullier, 385, No. 1217. If he invests the minor’s revenues once a year, and only when the surplus revenues amount to more than five hundred dollars, we think he complies with the spirit, if not the letter of our law.

We are satisfied, as already stated, that Tessier acted in good faith, believing he was bound by the decree of the court of probates to superintend the administration of the property of the minor children of Wm. Bird, until a tutor was qualified upon giving good security; and therefore will only require him to account as a tutor so qualified. The mode of calculation adopted by the plaintiff might work great injustice to him, as it is not proved that he did, or could have safely invested the funds of the minors, as soon as received, especially at ten per cent interest, which seems to have been the rate he adopted for their investment.

Judge Tessier, on the 24th of July, 1845, when the plaintiff was about to be married, rendered an account to her toother, and handed over assets of the minors to the amountof $76,196 66, interest being calculated to the 2d of January, 1846. He handed over her receipts and other vouchers for money paid at diffex'ent times for the support, education and expenses of the minors, to the amount of $7379, and two claims he alleged to have paid for their estate, amounting to $1380: — amounting in the aggregate to $84,955 66.

As the plaintiff and her brother, on the 16th of December, 1846, divided these and other assets between them, we think it was incumbent on her to show error in these settlements to her prejudice.

There was no material error to her prejudice, as the following statement will show.

On the 24th of July, 1845, Judge Tessier handed over to Mrs. Dawson, for her children, the three last notes of General Bernard for $34,600, with all the interest due upon them. It was incumbent upon him to account for the three first notes of General Bernard, due, respectively, the 2d of January, 1838, 1839 and 1840, with all the interest received upon them. It is proved, that he had received from General Bernard, at different times, on these notes $42,275 97 in cash. Of course, $34,600 was received for the principal of the notes, and $7675 97 Was received for interest; or the revenues of the minors. For this revenue he produces Mrs. Dawson's receipt, for money paid for the support, education and expenses of the children, for $7379, leaving less than $300 unexpended. The objections to the vouchers 17, 45 and 50 are not well founded. The memoranda filed as voucher 34, for $73, we do not understand; but Mrs. Dawson took it from Judge Tessier for that sum. He must be discharged and Mrs. Dawson charged with it, who we shall see has a larger claim against the plaintilf.

As we have seen, he handed over to Mrs. Davison assets to the amount of $76,196 66. Of this sum there was handed over as interest $20,385 52; and, of course, as capital $55,811 14. ilírs. Laycoc7c was entitled to her whole capital $34,600.

She received in the partition with her brother, the capital of General Bernard's note, due the 2d of January, 1841, $11,533 33; and of the capital of his last note, $9243 23. She received the bond of her husband $992; do. do. $1040; Combs' bond $1500; do. 1406 ; Byrd Haraldson’s bond $600 ; Morgan’shonA, as cash, $2363 ; Michael Chambers' bond $1100; the sale of Gates' house, as cash, $2000; Duplantier's bond and property mortgaged, she received in the partition as $2300; but we believe she should have been charged with but ($1760) the amount of principal and interest then due, $1760; she afterwards received M. K. Haden’s bond, $1100. Total $34,637 56.

She thus received in capital a small amount more than was due to her. But there was handed over to her mother, as interest or revenue, $20,385 52. We think there should be added interest, which had then accrued on Mr. Chamber's note, to the amount of $-440'; making an aggregate of $20,825.

On an administration so favorable to the minors from its beginning to its termination, as that which we have had under consideration, we think ten per cent on the whole amount of the revenues received and accounted for, allowable by law, are but a reasonable compensation. The whole revenues accounted for amounted to $28,500 ; ten per cent on this amount $2850; which leaves to be accounted for or paid to the minors, $17,975.

The two items which Judge Tessier claimed to have paid, in his account rendered to Mrs. Dawson, we think should be allowed. They consist of $680, said to have been paid to raise a mortgage on property mortgaged by Duplanlier to the minors, probably paid, being the first mortgage, to make the minor’s second mortgage good. Mrs. Dawson allowed it, and, indeed, Mrs. Laycoclc took Duplantier’s mortgage, in her partition with her brother, at $2300, although but $1760 was then due on the mortgage. This transaction is not clearly explained by the evidence; it is the plaintiff’s fault, who might, in strictness, be charged with the $2300, especially as through Duplantier's bond she afterwards became owner of the mortgaged property. But we have charged her with $1760, and suppose the mortgage to have been paid out of revenues in Tessier's hands. The other item is $700, stated to be Brunoi’s mortgage, taxes, &c., accredited by Mrs. Davison, and supposed by us to have been paid out of the revenue. Deduct them from the revenue, $1380, it leaves to be- divided between the plaintiff and her brother $16,595. Mrs. Laycock's share is $8297 50.

She received interest on General Bernard’s first note; which interest was due the 2d January, 1846, $5766 66; interest on her husband J. C. Dawson's bonds, $708 80; interest on Comb’s bonds, $674; interest on Haden's note, less $90 received by her brother, $460 ; interest on Haralclson’s note, $120; interest on M. Chambers' bond, $440. Total $8169 46. Leaving a balance due to her of $126 04. If we add to this balance the half of $296 97 of interest received from General Bernard on this three first notes, and unexpended in the support and education of the children, $148 48, there would be a balance in her favor of $274 52. We might reverse the judgment, and render a judgment for the plaintiff against Tessier for $274 52, and subject him to the costs of this expensive litigation, especially as he might and should have rendered an exact account, on which he and his counsel should have relied without stating, as done in his brief, “that the question involved being simply one of calculation of interest, addition and subtraction, this court will rely on its own calculation, and not that of counsel.” But we think, on the whole case, that Judge Tessier has done full justice to the plaintiff, and do not feel ourselves authorised to reverse the judgment for so small a supposed balance, growing out of an account amounting to upwards of $80,000 ; and which balance is based upon data which we know to be uncertain. This would be peculiarly improper, as the plaintiff settled Duplantier’s mortgage with her brother as worth $2300, and we charge her with but $1760, whilst this difference is unexplained.

The plaintiff next claims a judgment against her mother. We lament the litigation in which this lady has been involved, on account of her children. It commenced when they were infants, and is not terminated now that she it far advanced in old age. In 1831, she settled her first husband’s succession, and hadan estate for herself and two children worth about $27,000 entirely free from debt. The children’s share appears to have been $17,000. She married again, in 1834, but still managed the estate of herself and children so prudently and successfully, that on the 2d of January, 1837, the fortune of the children alone was upwards of $60,000 without owing a dollar; or had more than tripled in value in six years. Their estate was then sold by the court of probates, notwithstanding her strenuous opposition to the proceedings which led to it; and she and her children were turned out of their paternal estate, to prevent her mismanagement of it. The estate of the minors prospered in the hands of strangers, whom the plaintiff styles intermeddlers, who, however, rendered her full justice, as has been shown by the examination of the case against Judge Tessier.

During the nine years that the mother was deprived of the administration of her children’s property, she drew from theirfunds $7379 for their decent support, education and expenses; and besides, was found indebted to them, in 1837, in the sum of $5100, subject to the payment of the expenses of the very long and expensive litigation by which it was established. For the half of these sums she is bound to account to her daughter. The plaintiff has presented us a very minute and detailed account of principal and interest, commencing on the 13th day of May, 1831, and resulting, on the 31st of December 1846, in abalance of $2267 against her mother. We think, for the reasons already given in examining the compromise between them, that the account should have commenced on the 1st day of January, 1837, with half the judgment for $5100 againstfthe mother. As the judgment was given entirely for interest, as by its terms it did not bear interest, and as nearly half of it was collected by the sale of the mother’s negroes, horses, ox and waggon, under execution, evidently to pay the expenses of the litigation by which it was obtained, and to which it was subjected, we are not satisfied that any part of that judgment should bear interest. We are certain that the small sums received from time to time, during the course of nine years, to defray the expenses of the support and education of the children, should not be charged with interest, nor a larger sum of $1000 drawn at one time, shortly before the plaintiff's marriage, and drawn probably to prepare for that event.

The disbursements are admitted, and, indeed, they are minutely proved, for while there is a voucher for $400 for a piano, there is a receipt for thirty cents paid for a boquet for her daughter. Commencing the account at the proper time, rejecting the charges for interest, and crediting the mother with the disbursements, the plaintiff falls in debt to her more than a thousand dollars. In a word, her mother held for the plaintiff less than eight thousand dollars at the death of her father, during her infancy. For after realising a crop her paternal fortune was fixed at $8500, as of the 1st of January, 1831, by a compromise to which she adheres with tenacity, whilst her mother is anxious to open it. The mother gave her the best education which could be obtained in this and a sister State; afforded her all the rational pleasures and indulgencies of youth; and when she was married, at the early age of sixteen, placed her in possession of afortune of forty-two thousand seven hundred and seventy dollars, or more than five times her paternal inheritance. Had she administered this fortune as well as its administrators, either legal or intermeddlers, did during her minority, it is not probable this suit would have been instituted against her mother.

The decisions of this court have not encouraged suits of children against their parents, unless to redress clear and palpable injustice. There are services which parents render to their children, and which it is presumed they perform until the contrary appears, which money cannot pay; and filial duty should restrain the child from exposing the faults of its parents, or worrying them with litigation, unless compelled by extreme necessity.

We are of opinion, that the judgment of the district court should be affirmed, with costs. The judge might have rendered judgment against Tessier for a very small sum; as he did not, we have not the means of determining with certainty-thnt he was wrong.

It is therefore ordered, that the judgment of the court below be'affirmed, with costs.


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    M. A. Dickason and Husband, Adm’rs., v. M. D. Smith, Adm’x.
    Where a mother of minor children deals with a person as tutrix in mattei'S relating to the estate, signs a receipt in her own name simply without adding as tutrix, it will be pre- • sumed that she acted as tutrix in signing the receipt.
    APPEAL from the District Court of West Feliciana, Stirling, J.

      C. Ratliff, for plaintiff.

      U. B. Phillips, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, as administratrix of the succession of her former husband, Benjamin R. Smith, sues the succession of Philander A. Smith. She alleges that soon after the death of her husband, she was confirmed as natural tutrix to her minor children; that Philander A. Smith was appointed under-tutor, and undertook, as her agent and friend, the management and settlement of the succession of Benjamin R. Smiih; and that he received cash, collected debts, and drew from her factors in New Orleans various sums of money, and received the crops belonging to the succession; that he paid some of the debts of the succession; leaving a balance due by him of $1199 92, which she now claims.

The answer admits, that Philander A. Smith was under-tutor, and that he acted at times as the agent of the plaintiff, in receiving and disbursing monies for her; but avers that Philander A. Smith, before his death, had a full and final settlement with the plaintiff; in which he accounted to her for all monies received by him on her account, or on account of the succession of Benjamin R. Smith, and delivered up to her all the accounts of sales, accounts current and vouchers of every description. There was judgment for the defendant, and the plaintiff appealed.

The allegations of the defence are fully made out. The accounts filed in court by the plaintiff herself in her capacity of tutrix, the petitions to which they are annexed, and other balanced accounts in the possession of the defendant as administratrix, show most conclusively that Philander A. Smith faithfully accounted for all the monies that came to his hands.

In addition to this evidence, the defendant has produced the following receipt:

“ West Feliciana, February 3, 1846. Received payment in full of P. A. Smith for the crops of the estate of B. R. Smith, for 1844 and 1845. (Signed,) Mary Ans Smith.”

It does not appear that P. A. Smith received other monies than those arising from the sale of those two crops. Under the state of facts thus presented, her counsel submits to us the question whether this receipt given in her individual name, before she was appointed administratrix, and stating no amount, is a bar to her present action? The counsel has favored us with no reason why it should not be supported, as it is conclusive evidence of its correctness. As tutrix of her minor children, she was competent to administer the succession, so long as the creditors did not object. Bryan v Atchison, 2d Ann. 462.

The record shows that Philander A. Smith acted for her, and accounted to her in her capacity of tutrix, and her receipt .must be considered as having been given in that capacity : she being without authority to administer in any other.

The plaintiff’s claim is unfounded, alike in law and equity.

The judgment is therefore affirmed, with costs.


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    William Robertson, Trustee, v. Samuel Wood et al.
    An agreement under private signature, not recorded, between A. and certain other persons, that lands purchased by him in his own name are to be conveyed to them, can have no effect against third persons. The apparent title being in A., the property is bound for judgments recorded against him.
    The receipts of receivers of public moneys for the price of public lands, are sufficient basis for a petitory action, and vest such a title in the owner to subject .the lands to the mortgage resulting from the recordation of a judgment against him.
    APPEAL from the District Court of Concordia, Farrar, J.

      Thomas P. Farrar for the plaintiff,
    contended : “ The land was entered by Rowley, and in his name, and was paid for by him ; it was, consequently, his property. True, he may have signed a written promise, that upon a partition of the land, he would convey to R. N. Wood and J. B. Moore, the one-half of it, upon their paying the original cost. This article was not signed by either Wood or Moore, and of course, was not binding upon them, unless they chose to avail themselves of it. The land, then, by the very terms of the articles, was to remain the property of Rowley, until such time as the partition should take place. If Wood and Moore then chose to avail themselves of this promise of Rowley, and to pay the price, they could compel him to divest himself in their favor of his title to one-half of it. These were, however, potestative conditions, entirely in their power, and under their control. We may admit that a person, fully cognisant of this promise of Rowley, could not, by combining with him, defeat the contingent rights of Moore and Wood, resulting from it. Those rights were purely contingent. The article was not signed by them ; they were not bound by it. If they had refused to accept it, or to pay the price, he would have no power to enforce it against them, and the land would have continued to belong to him. They had until the partition should take place, to decide. In 1840, Rowley placed his title upon record. A few days after, he mortgaged this same land as his property, Suppose the mortgagee to have been ignorant of this written promise of Rowley, can the validity of his mortgage be doubted 1

    There is no pretence that either the officers of the commercial bank, or the plaintiff, were aware of the existence of this pretended promise of Rowley. In 1841, when they obtained and recorded their judgment against Rowley, the records of the parish showed this land to be his property, not only by the registry of his title, but by the dispositions he had made of it as his property. The first public intimation that any other person had any right or interest in the land was given the 6th September, 1842, by the conveyance from Rowley to Samuel Wood, more than one year after the plaintiff’s judgment against Rowley was recorded.
    We contend, that this pretended promise of Rowley, which may be regarded as a counter letter, can have no effect against the plaintiff, because the bank was a third party. C. C. art. 2522, No. 32. And this promise or counter letter, having never been recorded, was null and void, as to all persons acquiring rights upon the property of their debtor, Rowley. C. C. arts. 2236, 2242, 2417. 4 R. R. 338. In the suit of StocJclon v. Briscoe, 1st Ann. 250, the court decided, that “the plaintiff might have taken advantage of the non-recording of the act, when the property belonged to the party who may be considered in default in not recording his title.” Also, 2 Ann. 598, 787.

      H. B. Shaw, curator ad hoc, for defendants,
    contended : That Rowley was only a trustee to the use of Wood and Moore, and for a temporary convenience. Rowley was at that time the owner of very large property, and no apprehensions were entertained of any such result as this, by having the certificate issue in his name. The patent for this land had not issued, at the time of the transfer made in pursuance of the original agreement. Rowley then had no title to the land, other than an apparent equitable title as against others, the legal title was in the United States Government, and, according to decisions of this court, his entry was liable to be cancelled at the pleasure of the Government. The real equitable title to one undivided half of that section was in Wood and Moore, from whom it was transferred to defendants. There is no pretence of fraud in this transaction, unless the italicized word “ pretended,” which figures so conspicuously and so often in plaintiff’s brief, be taken as a charge. The defendants contend that there was never in Rowley such a title to this tract of land, as subjects it to the judicial mortgage of plaintiff, and ask that the judgment of the district court, which was rendered after long deliberation'; be affirmed.
   The judgment of the court was pronounced by

Eustis, C. J.

The object of this suit is to subject to a judicial mortgage, the North-East half of section 35, township No. 9, range 9 East, in possession of the defendants. The judgment from which the mortgage results, was rendered against Charles N. Rowley, on the 25th of June, 1841, and was duly recorded in the parish of Concordia, where the land was situated.

On the 16th of December, 1839, C. N. Rowley entered the land at the land-office, in Ouachita, and paid for it, taking the usual duplicate receipt in his own name, which he recorded in the parish of Concordia, on the 24th of November, 1840. He afterwards, jointly with his wife, mortgaged this land by an authentic act. On the 6th of September, 1842, Rowley appears to have sold his interest in one-half the land to Samuel Wood, under whom the other defendants claim. This sale could not defeat the judicial mortgage previously recorded against Rowley.

But, it is contended by the counsel for the defendants, that in the purchase from the United States, Rowley was merely the trustee of Wood and another, for one-half the land, it having been purchased by Roioley, on their joint account, and Rowley binding himself to convey the half to them, on an amicable partition, and on their refunding Rowley their share of the purchase money. It is sufficient to say, that the evidence by which the interest of Wood and Moore, his associate, is supported, is under private signature, aided by verbal testimony, and can have no effect against third persons. The apparent title of record was in Rowley, and the property was bound by judgments recorded against him. Stockton v. Craddick, 4th Ann. 283. Hyams v. Richardson, 1 Ann. 286.

It is also contended by the counsel, that at the time of the transfer of the half of the land to Wood, which was in pursuance of the original agreement, the patent for the land not having been issued, Rowley had no other than an equitable title; the legal title being in the United States, and his entry being liable to be cancelled. It is true, that, under the jurisprudence of the United States, until the patent is issued, the fee of land is considered as being in the Government, But this constitutes no objection to the recognition by courts of other evidence of tide from the Government, as sufficient ground for recovery in an action for the land, or as proof of a right of property. Bagnell et al. v. Broderick, 13 Peters, 436.

Lands held under instruments like those exhibited as the title of Rowley, are considered as entering into the domain of private property, and may be liable to taxation. Carrol v. Safford, 3 Howard, 461. The formal receipts of the receivers of public moneys for the price of public lands, have always been held by our courts sufficient basis for a petitory action, in which the land itself could be recovered. McGill v. McGill, 4 Ann. 265.

We therefore conclude, that, under our jurisprudence, the title by which Roioley held the land, to wit, the receipt of the receiver, was sufficient to make the land his property, so as to subject it to the judicial mortgage resulting from the judgment against him. We think the district court erred in rendering judgment against the plaintiff.

It is therefore decreed, that the judgment of the district court be reversed, and that the North-East half of section 35, township No. 9, and range 9 East, according to the plan on file, be subjected to the mortgage resulting from the recording of the judgment of tlie commercial bank, against Charles N. Rowley, of date the 25th June, 1841, the defendants paying the costs in both courts.


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    Succession of George Langley.
    Legatees under an universal title are bound for the debts and charges of the succession. C. C. 1604, 1606.
    Legatees under a particular title are not liable for the debts and charges against a succession, unless made so expressly by the will. C. C. 1379, 1380,1393.
    APPEAL from the District Court of East Baton Rouge, Burk, J.

      J. M. Elam, for appellees.

      J. M. Brunot, for appellants.
   The judgment of the court was pronounced by

Rost, J.

George Langley having no forced heirs, bequeathed to his executors some of his slaves in full property, and others until they attained their thir* tietla year, after which they were to be emancipated, He ordered the slaves no(. disposed of, with the exception of Scipio who was not paid for, to be emancipated immediately after his death, and bequeathed to five of them all his personal estate, after payment of his just debts.

These last slaves were emancipated several years after the death of Langley, and now call on Thompson L. Bird, the acting executor, to account for the personal estate, or pay over to them the proceeds thereof.

The defendant filed an account of his administration, showing a largo balance in his favor, after absorbing all the personal estate left by the testator. But the court refused to allow any portion of it, except the items due by Langley in his lifetime and those for funeral expenses. The account thus settled left in favor of the plaintiffs a balance, for which the district court gave judgment in their favor. The defendant appealed.

We concur in the opinion of the district judge, that the account of the executor is not fairly stated, and that his conduct is obnoxious to censure. But deducting all items not properly charged, and allowing all charges authorised by the evidence, a balance in his favor, more than sufficient to absorb the personal estate, will still remain; and as there is no property but that disposed of by the will, the question is, which of the legatees are to pay the charges of administration and the counsel fees, during a litigation of seven years, carried on by the heirs at law of the testator against his executors, for the purpose of setting aside the will, and of reducing the slaves to their possession ?

The plaintiffs are legatees under an universal title, and bound as such for the debts and charges of the succession, &c. C. C. 1604, 1606. The executors are legatees under a particular title, not liable for the debts and charges, unless they are expressly made so by the will. C. C. 1379, 1380, 1393.

The district judge was of opinion that the testator intended the charges to be paid by the executors out of their legacies. There is nothing in the will to justify that inference ; and the fact that the other executor was willing to settle on that footing cannot affect the legal rights of the defendant. It has been urged that the plaintiffs had worked seven years for the defendant, and that he should be made to account for their labor. The record contains no evidence either of the rendition or of the value of the services alleged.

It is therefore ordered, that the judgment in this case be reversed; and that there be judgment in favor of the defendant, Thompson L. Bird, with costs in both courts.


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    James Pepper et al. v. R. G. and H. W. Dunlap.
    The reasoning and the opinion of a court upon a subject on the evidence there adduced, does not have the force and effect of the thing adjudged, unless the subject matter is definitively disposed of by the decree of the court.
    If the vendee buys up a better title than that of the vendor, and the vendor was guilty of no fraud, he can only be compelled to refund to the vendee the amount of money he paid for the better title. Equity treats the purchaser as a trustee for the vendor, and acts done to perfect the title by the vendee in possession enure to the benefit of the vendor.
    APPEAL from the District Court of Madison, Selby, J.

      Stockton and Steele, for plaintiffs.

      J. Thomas, for defendants.
   The judgment of the court (Eustis, C. J., being absent) was pronounced by

Slidell, J.

This litigation has been pending between the parties for ten years, and now appears before this court for the fourth time. For the purpose of considering the questions which are at present to be disposed of, it does not become' necessary to give a full statement of the pleadings and facts of the cause. It will be sufficient to state, that the plaintiffs conveyed to R. G. Dunlap a tract of land, together with a number of slaves, and reserved a mortgage to secure the payment of a part of the price. That H. W, Dunlap and wife, who subsequently acquired the property, are resisting an order of seizure and sale obtained by the plaintiffs, on the' ground, among many others, that the latter were without title to a large portion of the land conveyed, and ask that the sale be annulled as to those portions, and that they be allowed $50 per acre for the land, the title to which is alleged to have failed. For a more full histoiy of the case we refer to the opinion rendered when it was last before the Supreme Court. 9 R. R. 283; and also to 16 L. R. 163, and 19 L. R. 491. The defences set up were sustained in the court below, and the plaintiffs have appealed.

When this cause was last before our predecessors, they said- that it presented three questions, each of which was considered. They held : 1st. That the plaintiffs had the right to proceed against the defendants by an order of seizure and sale. 2d. That the defendants had the right, under the terms of the sales to them, to exercise their recourse in warranty against the plaintiffs, and any action resulting from a failure-of title of the property sold. As regards the last point, they said: “ The third and last question remains, to wit, whether the evidence shows such an eviction of the lots No. 22 and No. 52, or such a total failure of right in relation thereto as entitles the plaintiff in injunction to the right asked for at our hands.”

The titles to these were'examined, and the court considered that the plaintiffs had never had title to the lot No. 22. That the entry of the lot No. 52 was vacated by the commissioner of the land office, in the exercise of a power which' he possessed by law, to avoid entries irregularly made, and that the entries of other portions of the land had also been cancelled by the same authority. After which they proceed as follows: “ The lands conveyed and warranted, in addition to sections 22 and 62, were fractional sections 23, 24 and 25, and lot 3 of section 54. Eighteen slaves also were sold, and the price of the whole was $130,000, of which $91,000 is acknowledged to have been paid in hand. The whole was sold in globo, and we are not enabled to say how much was given for the land, and how much for the slaves. But it appears to us clear, that there is a total failure as to a great part of the land conveyed, as set forth in the previous part of this opinion, and that the plaintiffs in injunction to that extent are entitled to relief. But the evidence does not enable us to decide finally upon the rights of the parties, and especially upon the amount which the defendants are-bound in equity to refund. "We have, however, no doubt that as to a great part of the land, it is shown to bo public, and that the vendors were without title. In such a case, a regular eviction by judicial authority is not required to entitle the purchaser to relief. The sale of another’s property is null and void. It is therefore adjudged and decreed, that the judgment of the district court be avoided and reversed; and it is further ordered and adjudged, that the case be remanded for further proceedings according to law, and in conformity to the opinion herein expressed.” P. R. 159 to 163. 9 R. R. 283.

During the pendency of the suit, the title of the plaintiffs to the lot No. 52, which our predecessors considered invalid, was confirmed by an act of Congress ; and it is admitted that the confirmation enures to the benefit of the vendors, The controversy in relation to title is therefore narrowed down to the lot or section No. 22. That lot was declared by the commissioner to be vacant. Four different persons subsequently acquired preemption rights upon it, in virtue of which it was entered.

When this cause went back to the lower court, the plaintiffs offerred to amend their pleadings by averring that these four persons were the agents of Dunlap in entering the land; that they acquired it for his benefit; paid for it with money advanced by him for the purpose, and have since transferred it without consideration to McKeernan, to be held for the benfit of Dunlap and wife ; that the object of Dunlap was to perfect a title adverse to that of his vendors, and that the title which he has thus acquired enures to the benefit of the plaintiffs. Permission to file this amendment was refused, on the ground that the question of the plaintiffs’ title to the land had been finally determined by the Supreme Court, and that the only purpose for which the cause had been remanded was to ascertain the value of the land, the title to which had failed. To this ruling a bill of exceptions was taken. On the trial, the plaintiffs offered to prove these allegations, and also to prove that Dunlap, acting through his counsel, caused the section No. 22 to be declared public and subject to preemption. The testimony Was excluded upon the same ground; and bills of exception were taken to the opinion of the judge.

The district judge, in our opinion, erred in rejecting the amendment offered by the plaintiffs, and the evidence in support of their allegations.

The decree of the Supreme Court determined nothing finally in relation to the sections No. 52 and 22. They are not referred to in the decretal part of the opinion. The court only declared the law applicable to the several questions considered, and as we think correctly. The reasons are assigned for considering that the plaintiffs were without title to two of the sections of the land sold; and their conclusions are supported by the evidence then before them. But they declined deciding definitively upon the controversy in relation to the lands ; and, on the contrary, expressly declared, that “the evidence did not enable them to decide finally upon the rights of the parties, and especially upon the amount which the plaintiffs are in equity bound to refund.”

This case differs widely from that of Kellam v. Rippey, 3d Ann. 202, in which we held the decision of our predecessors to be final. In that case the court passed definitively upon the titles of the parties, and decreed the land to the plaintiff, but remanded the cause for the purpose of ascertaining the value of the improvements, &c. See 3 R. R. 138. 12 R. R. 44.

It also differs from the case of Durnford’s Succession, 1st Ann. 92, in which the Supreme Court had previously rendered a definitive decree in relation to an item of an account. See 11 R. R. 189.

But in the present case there was no decree in relation to the titles of the lands which were directly in issue. The only decree rendered reverses the judgment of the lower court, and remands the cause for further proceedings according to law. From the reasoning of the court, in which they express the opinion from the evidencee then before them, that the titles to certain portions of the land had failed, it is to be inferred that the object of remanding the cause was to enable the defendants to show the amount of loss which they had sustained. See Thompson v. Mylne, 4th Ann. 206. But there is nothing which precludes the plaintiffs in the prosecution of that enquiry from showing that their titles had been perfected and that the defendants were entitled to no diminution of the price. This they have, shown, as it is admitted, as far as relates to the section No. 52, the title to which, as we have seen, has been confirmed by act of Congress. They desired further to show, that the title to the section No. 22 had been perfected under such circumstances that it enured to the benefit of the vendors ; and this they had clearly the right to do.

In the case of Galloway v. Finley et al., 12 Peters, 294, the Supreme Court of the United States recognised the rule : “That if a vendee buys up a better title than that of the vendor, and the vendor was guilty of no fraud, he can only be compelled to refund to the vendee the amount of money paid for the better titleand cite the cases of Leary v. Kirkpatrick, Cook’s Tenn. Rep. 211; Mitchell v. Bang, 4 Hayne Tenn. Rep. 136. The court further say: “ In reforming the contract, equity treats the purchaser as a trustee for the vendor, because he holds under the latter; and acts done to perfect the title by the former, when in possession of the land, enure to the benefit of him under whom the possession was obtained, and through whom the knowledge that a defect in the title existed was derived. The vendor and vendee stand in the relation of landlord and tenant: the vendee cannot disavow the vendor’s title.” 3 Peters, 48. 2 Marshall’s Ky. R. 242. 5 Yerger’s Tenn. R. 398.

We have been urged to determine this controversy finally upon its merits, as all the evidence offered and excluded in the court below, is now before this court. But as the defendants found it unnecessaiy, in consequence of the rulings of the district judge rejecting the plaintiff’s testimony to offer rebutting evidence, which may have been in their possession, justice requires that the case should be remanded-

It is therefore decreed that the judgment of the district court be reversed; and that the cause be remanded for further proceedings according to law, with instructions to the district judge to permit the amended pleadings offered by Pepper et al. to be filed, and to receive evidence pertinent to the issues presented by those amended pleadings and by the intervention of Mrs. Dunlap. It is further decreed, that the appellees pay the co.sts of this appeal.