text:
    No. 2447.
    State of Louisiana, ex rel. Nathan Schwab, v. The Judge of the Second Judicial District.
    From a judgment of the District Court suspending the sheriff from office under the act of 1808, No. 123, the party suspended must show by evidence to .entitle him lo a suspensive apijeal that the amount involved is above five hundred dollars.
    In order to obtain the writ of mandamus to compel the District Judge to grant a suspensive appeal from a judgment suspending him from office, the relator must show that he has made the requisite proof of the amount involved before the judge a quo to give the appollato court jurisdiction. Diamond v. Cain, 20 An. 575.
    An affidavit or other proof made in the Supreme Court on the application for a mandamus, will not authorize the issuing of the writ.
    The value of tho boohs, papers, fixtures, and furniture of the sheriff’s office can not be estimated in determining the interest necessary to give the Supreme Court jurisdiction of the appeal from a judgment suspending him from office.
    APPEAL for a Writ of Mandamus. — Parish of Jefferson.

      Preston <& Icibatt and Alex. WaVcer, for relator. Pon A. Pardee, Judge.
   Howell, J.

This is an application for a writ of mandamus to compel tho judge of the Second Judicial District Court for the parish of Jefferson to grant the relator a suspensive apiieal from a judgment suspending hin. from the discharge of his duties as sheriff of said parish, rendered in a proceeding instituted in said court against tho relator under and by virtue of act No. 123 of 1868, entitled “An Act defining more particularly the duties of sheriffs, coroners, constables •and clerks of courts, and providing penalties for their failure to perform their duties and-for contempt of court, and the power of judges over such officers,” for default, refusal and neglect to perform his official duty as sheriff.

T’ p judge, in answer to the rule herein, states the following, among other reasons to justify his conduct, to wit:

“If said proceedings he of a civil nature, or of a nature of which this court could take cognizance, tho amount involved in the cause was not sufficient to confer jurisdiction; the question at issue in said proceedings was, default or no default on the part of relator as sheriff in the performance of his official duties; the suspension from office was a mere sequence’ of tho default, or a penalty imposed for said default; the value of the office from which the relator was suspended by the judgment constitutes no criterion of the right of appeal, as these proceedings are not and were not a contestation for the office itself; no one is claiming the office in these proceedings adversely to the relator.

“No affidavit has ever been filed or proof administered at tho time said suspensive appeal was prayed for or since, in the inferior court, on which to base the right of appeal, so far as amount is concerned.”

In the petition for appeal presented to the judge a quo the relator alleged that “ a final judgment has been rendered suspending him from exercising his office, and by consequence depriving him of his fees and emoluments of office, which amount to a sum exceeding five hundred, dollars; that the original proceeding herein involved a matter in dispute exceeding five hundred dollars, and that the judgment moreover ordered the transfer of personal property belonging to petitioner worth over-five hundred dollars, to his (so-called) successor in office.”

These allegations were not supported by the affidavit of the petition or or other evidence, beyond what was in the record, which shows that the question at issue, the matter in dispute, was whether or not the petitioner had performed his duty as sheriff in the matter before the court. The judge found that he had not, and rendered judgment enforcing the penalty prescribed by the fourth section of said act No. 123, to wit: Suspension from the discharge of the duties of his office until the action of the Legislature be had in the premises according to law; and further, that the said office of sheriff, fixtures and papers thereof, be surrendered instanter to the fficer hereafter to be designated by the court, as provided by said section. The judgment does not order the surrender or transfer of any personal property belonging to the relator, but simply the fixtures and papers / the sheriff’s office (with said office), in which fixtures and papers, as has been held, ho has not such a pecuniary interest as to confer jurisdiction on this court; and there is no evidence that the fees and emoluments of the office, during the suspension, would be worth over five hundred dollars, and there is nothing in the law to inform the judge on this subject. We are not aware of any law or any relation between a judge and a sheriff which would make the former know the amount of the latter’s fees in any given time. Those are matters of proof.

If we look to the matter strictly in dispute in this controversy, it is difficult to see any basis for the right of appeal. If we look to the penalty imposed as a criterion of the right of appeal, there was othing before the judge, at the time the appeal was prayed for, by which the amount involved was established or could be ascertained. The more allegations of the petitioner wore not sufficient, and the judge was justified in refusing the appeal. See State v. Legarde, 21 An. 18; State ex rel. Creagh v. Judge f Seventh Judicial District.

It was in the power of the petitioner and relator to adduce the necessary proof, and having failed to do so, he has no legal ground to complain of the judge in refusing the appeal.

But it is contended that, because the relator has made an affidavit before this court, that the judgment works him an. irreparable injury, involves his right to an offic) worth over five hundred dollars, fees and emoluments over five hundred dollars, and personal property in said office worth over five hundred dollars, and that the matter in dispute exceeds five hundred dollars, this court has jurisdiction, and he is entitled to the writ of mandamus.

This is by no moans a legal sequitar. It is only where appeals have been granted and motions are made in this court to dismiss them for want of jurisdiction as to amount, that appellants have been permitted in certain cases, to establish by their caparte oath that the matter in dispute exceeds five hundred dollars. This rule, however, has never been, and should not be, applied in applications for mandamus to compel the inferior judge to grant an appeal. Non constat that he would refuse if the proper affidavit or proof were presented to him. And it is only when the judge wrongfully refuses an appeal that a mandamus should issue to him. If he had á good reason, at the time, for his refusal, he is not at fault, and we can not sanction the practice of applying to this court for these summary writs, when parties have failed to put themselves right in the inferior tribunals before coming to us. In this case the judge a qiio refused the appeal expressly on the groubd that the record does not show that an appealable amount is involved.

It the case of the State ex rel. Cain v. The Judge of the Sixth District Court, 20 An. 575, the affidavit was presented in the first instance to the inferior judge, and came up to this court as a matter passed on by the judge below. To adopt the rule contended for in this respect, would be to exercise original jurisdiction in this court.

We are constrained to the conclusion that the district judge has stated a sufficient reason to justify his conduct, and that the complaint of the petitioner should be dismissed at his costs, and it is so ordered.

Chief Justice Ludeling and Justice Wyly absent.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 1731.
    The Ursuline Nuns v. John Connelly.—Mechanics’ and Traders’ Bank, and Walter G. Robinson, garnishees.
    Partnership assets pledged to a creditor of the partnership can not be seized by garnishment process for an individual debt oí ono of the partners.
    APPEAL from the Fourth District Court of New Orleans. Théard, J.
    A. Robert, for plaintiff and appellee. Randolph, Singleton & Browne, for garnishees, appellants.
   Taliaferro, J.

The plaintiffs, having a judgment against the defendant, took out process of garnishment against the bank and. Walter G. Robinson. The answers of the garnishees disclosed that the defendant, Connelly, had pledged to the bank a certificate of stock amounting to $5640, as collateral security for the payment of two thousand dollars- loaned to George Connelly & Co. .by the bank, for which it held the promissory note of the firm, John Connelly being one of the partners. Robinson, the president of the bank, stated in one of his answers that at the request of George Connelly, a member of the firm, the certificate was transferred to Robinson, individually, with the understanding that he was to hold the same, and out of the proceeds to pay in the first place the two thousand dollars loaned, and the balance, if any, to be applied, as he understood it, to the indebtedness of George Connelly & Co. to him individually, the amount then owing to him exceeding nineteen thousand dollars. He further stated the firm of George Connelly & Co. is hopelessly insolvent, and that it owes the Mechanics’ and Traders’ Bank, Cruzat, the cashier, and himself nearly, if not quite, one hundred thousand dollars. That he may safely answer that John Connelly, the defendant, individually, owns no part of the scrip pledged; that it belonged to the firm of George Connelly & Co., and was transferred as stated. He claims a privilege upon this partnership asset, which, he avers is superior to'any claim of the creditors of individual members of the firm. Cruzat, the cashier of the bank, answered on the part of the bank, and his answers are in substance the same as those of Robinson. The answers of the garnishees wore traversed. On the traverse John Connelly, the defendant, swore that no transfer by John or George Connelly of the scrip was over made, except the one to the bank; and he connected with his testimony a receipt by Cruzat, the cashier, for the scrip, which sets forth that it was received from George Connelly & Co., and was to be returned to them on payment of their note for the loan of two thousand dollars. Ho added: “ My brother never made any transfer of this certificate, to my knowledge.”

The judgment of the lower court was in favor of the plaintiffs. It decreed a sale of the scrip, and directed that the proceeds should bo applied, first, to pay the debt of two thousand dollars and interest due the bank, the remainder to the plaintiffs’ judgment against the defendant. The garnishees have appealed.

We think the judgment erroneous. The scrip or certificate for §5640 was a partnership asset, and pledged to pay a partnership debt. A very large indebtedness of the commercial partnership of George Connelly & Co. to Cruzat, the bank and Robinson, is shown; and also that the partnership is insolvent. Robinson’s evidence makes it pretty clear that George Connelly, one of the partners, caused the scrip to be transferred to Robinson, in order that ho might be paid on his own individual claim against the firm whatsoever might remain of the proceeds of the scrip after paying the two thousand dollar note. John Connelly, in his testimony, contradicts this statement of the second transfer of the asset pledged, but qualifies it materially in the close of his testimony. The plaintiffs, we think, fail to show that the garnishees have anything in their possession belonging individually to the defendant. The scrip, belonging to the partnership, and pledged for vastly more than its amount for the payment of partnership debts, can not be seized for an individual' debt of one of the partners.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed. It is further ordered thatthe garnishment proceeding taken by plaintiffs be dismissed at their cost.

Rehearing refused.


author: Wyly, J.

text:
    No. 1732.
    L. N. Baldwin v. A. A. Green and Robt. Pitkin.
    If no legal ground is shown for the appeal, the appellant will bo condemned to pay damages for frivolous appeal, when prayed for by the appellee.
    APPEAL from the Third District Court of New Orleans. ■ Théarcl, Ji

      Jlyams & Jonas, for plaintiff and appellee. Miller & Uuniinyton, for defendant and appellant.
   Wyly, J.

The defendant, Robert Pitkin, appealed from a judgment against him as indorsor of a promiffeory note made by the defendant, A. A. Green. The defense was a general denial. It appears from the record that the note was duly protested, and notice of dishonor was regularly served on the appellant personally. The appellee has asked for damages for frivolous appeal, and they should be awarded him.

It is therefore ordered that the judgment appealed from be affirmed, and that appellee recover of the appellant one hundred and fifty dollars damages for frivolous appeal.


author: Howell, J.

text:
    No. 1820.
    Citizens’ Bank of Louisiana v. M. Condran.
    A written document on which a suit is based must govern, where there is a variance between it and its description, but the court will not award more than is claimed in the petition.
    In a case where the note draws eight per cent, interest, and the petition only claims six, the Supreme Court will not compute the interest at eight por cent., so as to give it' jurisdiction of the appeal.
    APPEAL from the Fourth District Court of New Orleans. Théard, J.

      Armand Fitot, for plaintiff and appellant. Budd & Grover, for defendant and appellee.
   Howell, J.

The claim in this case, as set out in the petition, is for $380, the amount of a promissory note, and six per-cent, interest from the twenty-first February, 1863. Judgment was rendered for the principal and interest as claimed, from ’ which the defendant has appealed.

The appellee suggests that this court can not entertain jurisdiction, as the sum demanded did not, at the date of instituting the Suit, exceed five hundred "dollars.

In a-nswer to this, the defendant contends that as the note, which is made a part of the petition, bears eight instead of six per cent, interest, it must control the description of it in the petition, and fix the amount in dispute, which, at that rate of interest, exceeds five hundred dollars.

The authorities cited by him sustain the position that a written document, on which a suit is based, must govern when there is a variance between it and its description, and that a plaintiff may avail himself of that fact ; but they do not go so far as to compel the court to- give him more than he asks. In this, case the plaintiff has asked for -only six per cent, interest, which, added to the principal, does not make tin; ■sum demanded, at the institution of the suit, exceed $500. This court is consequently without jurisdiction. See the case of Wolf v. Witherell, just decided, and the authorities there quoted.

It is therefore ordered that the appeal herein bo dismissed, at the costs of the appellant.

Chief Justice Ludeling and Justice Wyly absent.


author: Howe, J.

text:
    No. 1906.
    Kathman v. Walters.
    No action lies to Recover rent for the lease of a house to be used as a brothel.
    APPEAL from the Fourth District Court of New Orleans. TMard, J.

      Oollins <& Wooldridge, for plaintiff and appellee. JB. Bgan, for C. C. Sampson, intervenor, appellee. L. Madison May, for defendant, appellee. McCay é Lusenbnrg, for Ellen Broas, intervenor and appellant.
   Howe, J.

We find no reason to disturb the judgment of the District Court in this case. The allegation that the claim of the intervenor for rent was founded upon a contract reprobated by law — the hiring of a house to be used as a brothel — seems to be sustained by the evidence. The claim for rent was therefore properly rejected.

It is therefore ordered that the judgment appealed from bo affirmed, at the costs of appellant.

Chief Justice Ludeling and Justice Wyly absent


text:
    No. 2463.
    State of Louisiana, ex rel., etc. v. James R. Head.
    The insertion of the name of a judge in a citation whose title to office is in dispute, will not invalidate the petition or citation.
    In a contest for office under the act of the General Assembly of 1868, No. 156, either party has a right to a trial by jury, and if a special term is ordered, the judge may, when required by either party, order a special jury to try the cause.
    APPEAL from the District Court, parish of Bienville. Lewis, J.
    W. J. Sandlin, District Attorney. L. B. Watlcins, for plaintiff and appellee. IT. Gray and B. W. Bearce, for defendant and appellant.
   Howe, J.

This case came before us at the term held in Natchitoches, in August last, and was remanded to be proceeded with according to law. See 21 An. p. 550. It now comes up a second time on appeal from a judgment against the defendant.

The exception of the defendant, “ that the petition was not addressed to a competent judge, being addressed to the honorable John L. Lewis, as shown by the attestation of the citation, who was not judge of the Eleventh Judicial District at the time said citation was issued or at the time -the petition was filed,” was properly overruled. The petition was .addressed “to the honorable judge of the Eleventh Judicial Distinct of the State of Louisiana, holding sessions in and for the parish of Bienville.” The address was sufficient; and we fail to perceive how the insertion in the citation of the name of a judge whose title to the officis in dispute could invalidate the petition. The name of a judge forms no part of a citation, and will be regarded as surplusage. C. P. 179; Hemken v. Farmer, 3 Rob. 155; and it certainly can not be held to modify the terms of a petition.

The exception that the residence of the plaintiff and of the defendant is not set forth in the petition, was equally without merit.

In the view we have felt constrained to take of this case, it is unnecessary to pass upon the other exceptions.

The defendant, in his answer, prayed for a trial by jury, but the judge a quo refused to allow the same. In this we think there was error. The act of 1868, No. 156, under which this action was instituted, no where deprives the defendant of the general right to a jury. It is provided by the thirteenth section “that all the cases coming under the provisions of this law may be tried before a judge of the district in chambers, or at a special term called by said judge, on legal notice-being given the parties interested; and if required by either party the judge may order a special jury, to be summoned according to law, to try such case.” We apprehend the meaning of this section to be that the cause may be tried in chambers if neither party asks for a jury, but if a jury be prayed for, it will be necessary, when a speedy trial is desired, and a regular term is not in session, to appoint a special term, and to summon a jury therefor under the power conferred by the last clause of the section.

Por the reasons given, it is ordered that the judgment appealed from bo reversed, and the cause remanded for a new trial, according to law.

Chief Justice Ludeling and Justice Howell absent.


author: Taliaeekro, J.

text:
    No. 1779.
    Jeannie Douglas v. Ellen Raab.
    In a suit; to recover possession of furniture, evidence is not admissible on tlie part of tbe defendant to show a payment on the furniture to a third party at the instance of the plaintiff, under the plea of dation en payement; nor is evidence admissible to prove that the owner is indebted to third parties for the furniture, where the title is not put at issue by the answer.
    APPEAL from the Fourth District Court of New Orleans. Théard, J.

      Oollens & Wooldridge, for plaintiff and appellee. B. I). JBlossman, Jr., for defendant and appellant.
   Taliaeekro, J.

The plaintiff brings this suit to recover from defendant a lot of household furniture which she alleges the defendant is in possession of and illegally withholds from her. She also claims two hundred dollars from defendant for the use of the furniture.

The defendant, in her answer, pleads a dation en payement, averring that the furniture was givqn to her by plaintiff in discharge of a debt which the plaintiff owed her. The defendant annexed to her answer a detailed account showing various items, amounting to $474 75.

The plaintiff had judgment decreeing the restoration of the furniture, and also for the sum of one hundred and twenty dollars and costs of suit. The defendant has appealed.

There are four bills of exception in the record. We consider it unnecessary to examine more than two of them. One of these was taken to the order of the court sustaining the objection made on part of the plaintiff to the introduction of testimony to show that defendant had paid a third party, at the instance of plaintiff, for a part of the furniture; and that, by consent of the plaintiff, the portion of the furniture so paid for should become the property of the defendant.

The objection was properly overruled. The defendant, by her answer, distinctly acknowledged title in the plaintiff, and only claimed under an express transfer of that title. The plaintiff’s title to the furniture was not in issue. It was immaterial to the defendant from whom the plaintiff had acquired the property, or what she gave for it.

The defendant offered testimony to prove the correctness of the account annexed to her answer, and the indebtedness of plaintiff for the same. This was objected to by plaintiff, and the objection was sustained by the court, and we think correctly. It was irrelevant. The answer raised no question of title, alleged no privilege, and contained no demand for a money judgment, but simply a dation en payement.

We gather from the evidence that the plaintiff rented a room from the defendant and boarded with her a short time. That she left New Orleans for Galveston, and after remaining there about a month, returned to New Orleans. The plaintiff’s furniture was in possession of the defendant when the plaintiff left for Galveston, and so remained until after her return, when this controversy arose.

The nature and character of that possession is the principal matter of inquiry in this case. In her answer the defendant avers ownership under the alleged dation en payement, but the evidence, we think, does not sustain this allegation. In fact, the plaintiff’s own testimony is strongly against it. . The statements of two witnesses, whose opportunities of knowing what passed between the parties were good, are to the effect that Miss Douglas put her furniture with Mrs. Eaab for what she owed her.” One witness said that she heard plaintiff say she wanted Mrs. Eaab to be satisfied and keep the furniture, and that Mrs. Eaab replied she would be satisfied, but would rather have the money. Mrs. Eaab herself several times stated in her testimony that the furniture was placed in her possession until the plaintiff’s bill was paid; that she told plaintiff she should have her furniture back when she paid the debt. Afterwards, when called to the stand a second time, she swore directly to the dation en payement, in direct contradiction of her previous statements. Three other witnesses testified to the defendant’s declaration that Miss Douglas owed her, and that she would give up the furniture when she was paid.

The plaintiff’s own evidence, entirely ignoring the alleged dation en payement, is sustained by that of five witnesses, and this array of proof determines the case in favor of the plaintiff. .

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

Chief Justice Ludeling and Justice Howell absent.


author: Ludeling, C. J.

text:
    No. 1861.
    George D. Pritchett v. Wm. G. Coyle.
    A party claiming property must recover on the strength of his own title, rather than on the-weakness of his adversary’s.
    APPEAL from Fourth District Court, parish of Orleans. Théard, J.

      Cooley <& Phillips, for plaintiff and appellant. J. McConnell, for defendant and appellee.
   Ludeling, C. J.

George D. Pritchett instituted this suit against William G. Coyle to recover certain personal property which said. Pritchett alleges he had purchased from one Thompson.

It is unnecessary to notice all the questions which have been discussed by counsel, or to pass upon all the grounds of defense set up in. the answer.

It suffices to ascertain that the plaintiff has failed to establish any right to the property in question. The title under which he claims is-a fraudulent simulation, conferring no ownership whatever.

The evidence shows that Mrs. Titterton was the partner of Thompson in the coal and wood business; that Thompson bought wood and coa-1 of the defendant, and that, failing to pay, he undertook to secure his debt by transferring the property in controversy to him, subject to certain conditions. It is unnecessary to consider now whether this act was a sale, a dation en payement or pledge, or neither, or whether it had any validity whatever, for the plaintiff must recover on the strength of his own title.

With a full knowledge of all the facts connected with this transfer, the plaintiff took a written act of sale from Thompson to the property in his own name, and gave as the price thereof a note for $8000, which was given to Mrs. Titterton, plaintiff’s wife’s grandmother ; and notwithstanding the note was payable on demand,'payment thereof has never been demanded. Pritchett states he does not know whether the note is in existence or not. He further explains the consideration of the sale: I agreed to give him $8000 as the price of the sale. I was to assume Ms indebtedness to Mrs. Titterton, which was near that sum.” Pritchett states further: “The sale of the twenty-first of' November, 1866, from Thompson to me, was originated by me, but' advised by my counsel. I suggested it to my counsel and he advised it. I can not say that I had spoken to Thompson on the subject, or ■suggested it to him, before I had consulted with my counsel.” * * * I insisted upon his giving me a bill of sale. He said he would do it.” * * * “ I wanted to protect Mrs. Titterton’s interest.” * * * “I .generally attented to Mrs. Titterton’s business.”

The evidence in the record loaves no doubt on our minds that Pritchett’s name has been interposed to try to subserve the interests of his relation cvnd principal, Mrs. Titterton, who was not able to successfully claim the property of the partnership of which she was a member, from the defendant, who was a creditor of that partnership; and that he has no interest in or right to the property in controversy.

The judgment of the District Court was correct, except in allowing damages. The claims for damages were discontinued by consent.

It is therefore ordered that the judgment of the District Court be avoided and reversed. It is further adjudged and decreed that the plaintiff’s demands bo rejected; that the injunction be dissolved; that the plaintiff pay costs of the District Court, and the defendant and .appellee pay the costs of appeal.


text:
    No. 2297.
    Police Jury, Parish of Jefferson, Right Bank, v. J. J. Tardos.
    The act of the Legislature approved February 17th, 18G6, confirming the appointment of a Board of Levee Commissioners which had been previously made by the Governor, and authorizing the appointment of others, when their terms of office expired, repealed all former laws authorizing the parochial authorities to construct levees at the cost and expense of the front and riparian proprietors of the lands leveed.
    .After the passage of the act of seventeenth of February, 18GG, the parish can not force tho front proprietor to pay the cost of the levee which she has ordered to be constructed along his front line.
    The repeal of a repealing clause docs not revive the act repealed.
    APPEAL from Second Judicial District. Olías. B. Singleton, J. ad hoc.

      Bradford, Lea & Finney, for plaintiff and appellant. Fdwcvrd L>. White, for defendant and appellee.
   Taliaferro, J.

The police jury of the parish of Jefferson, right bank, sues the defendant to recover $17,526 60 expended by that parish, as alleged, in constructing a new levee on the margin of the Mississippi river in front of the defendant’s plantation. The plaintiff prays recognition and enforcement of the lien and privilege accorded by law upon the land for the construction and repairs of levees made by the parish at the expense of the proprietor.

The answer denies the right of the plaintiff to require from him payment for the work alleged to have been done in the construction of a new levee on his land. Ho denies the alleged necessity of the work; ■avers that he is not owner of the entire tract of land alleged to have been leveed by tbe parish of Jefferson; that the work was not done in compliance with the requirements of law and the terms upon which .the adjudication of the alleged contract was made.

There was judgment in favor of the defendant, and the plaintiff has appealed.

Prior to an act of the Legislature approved February 17, I860, entitled “An Act to confirm and ratify the appointment of levee commissioners provisionally made by the Governor of the State, and to continue their functions,” front proprietors on the Mississippi river were required to construct the necessary levees and embankments along their front lines on the margin of the river at their own cost; and in default thereof, the required work might be done at their expense by the parochial authorities.

It will bo necessary in the investigation of this case to inquire, whether the act of seventeenth February, 1866, repeals the former laws in relation to the obligation of the front or riparian proprietors to construct at their own cost the necessary levees on their lands; and to consider the question raised by the pleadings, whether the act of February 17, I860, was enacted for a special and temporary purpose, and expired in March, 1867, or whether it continued, and is still in force.

It seems that in 1865 the Governor of the State, appreciating the importance of immediate repairs of the levees, and in some instances of constructing new ones, appointed a board of levee commissioners to superintend the subject. As this act was done under the exigencies of the time, just after the close of the war, during which the levees on the Mississippi had been much broken down and damaged, it was ■deemed necessary for the Legislature, when it assembled, to ratify the Governor’s action in the matter, which was without legal authority.

The act recites (section second):. “ That the said levee commissioners are authorized and empowered to continue their functions until superseded by such levee, commissioners as may be established by law, or until otherwise ordered by the Legislature, provided the term of office ■of said commissioners shall expire at the end of the next regular .session of the Legislature.”

It is contended that this act merely ratified the Governor’s appointment of commissioners, and that it had its effect and expired at the end of the next regular session of the Legislature. On the other hand, it is argued that the act established a continuous board of levee commissioners, the individual members of which might be changed, and their term of office from time to time expire.

This latter view of the question wo are inclined to adopt. The Legislature might, at any time previous to the end of its next regular .session, have superseded the first appointment of commissioners by .appointing their successors, and it does not follow, had it thought proper to do so, that the last appointees would have become functus officio at the time fixed for the expiration of the term of office of the first board. The act declared that the persons appointed by the-Governor should go out of office at a stated time, if not otherwise previously provided for; but it does not declare that other commissioners should not bo appointed and hold their office beyond the term fixed for the duration of office of the first commissioners. 'In this opinion we think we are sustained by the contemporaneous and subsequent construction of the act.

■The Legislature adjourned in 1867 without having taken any action on the subject. Governor Wells, after the adjournment, proceeded to appoint another sot of commissioners. These were removed by order •of General Sheridan, and afterwards other commissioners were appointed by Governor Flanders; with the sanction of the military authority. The act of the Legislature of the twenty-sixth of March, 1867, authorizing the issuing of bonds to the amount of four millions of dollars for levee purposes, prescribes various duties to be performed by “the board of levee commissioners,” recognizing thereby the existence of such a board, and looking to a continuance of a board of that character for an indefinite period. The Legislature was on the evé of adjournment when this act passed. The term of office of the first board expired in a few days afterwards. It was impossible that that board of commissioners was looked to, to perform duties which could only be performed months and years afterwards. It seems clear that the Legislative and executive branches of the State Government, as well as the military commander, looked to the act of the seventeenth of February, 1866, as continuing in force after the adjournment of the Legislature at the end of March, 1867

That act provides that “the said board of levee commissioners shall have the full power to let out the contracts for the building and repairs of all levees in the State which, in their judgment are necessary to protect the alluvial lands from being overflowed. They shall have the entire control and management of the levees let out by them, with the power to prescribe and regulate the dimensions and specifications of the levees to be built,” etc. The eighth and last clause provides: “ That all laws contrary to the provisions of this act bo and the same are hereby repealed.”

By act of the Legislature of March 26,1867, seven hundred thousand dollars were appropriated to defray the expenses of building levees in accordance with contracts made with the levee commissioners.

The former laws, then, requiring the riparian owners to build levees, were repealed by the act of February 17, 1866. Even had that act expired in March, 1867, the laws relating to levees prior to its passage and contrary to its provisions, would not now be in force, unless reinstated by later legislation; for the repeal of a repealing law does not revive the first act. We do not see that any re-enactment of these laws has been made.

The order of General Sheridan, under date of August 30, 1867, in regard to levees, directs the levee inspectors to notify the riparian proprietors to repair and strengthen their levees, and a correct, account' to be kept of all the expenses of repairs of levees and of constructing-new ones, to the end that all work of that kind should be paid for ou^ oí"the proceeds of the levee bonds issued for that purpose. The spirit and true intent of that order appears to' be in consonance with the existing laws of the State, especially in its controlling features, and should not be construed as intending to revive the former laws in regard to the obligation of the riparian owners to build and keep in repair the levees on their lands at their own cost.

The legislation on the subject of levees since the late war has manifestly been framed with reference to the great changes which have been wrought in the condition of the country by the late war. The vast expense formerly imposed upon the riparian proprietors of building the heavy embankments necessary on the Mississippi, and to make continuous repairs upon them, would now, under the altered state of affairs in regard to capital and labor, be utterly ruinous. Hence the policy was a wise one to relieve that class of our people by a change of the laws and regulations in respect to the levee system.

The parish of Jefferson, the plaintiff in this case, appears to have acted in good faith in the matter of constructing the levee on the defendant’s land, and having done a work of public benefit, might reasonably expect to be remunerated for it, but we do not think the law will authorize it to coerce payment of this largo demand from the defendant.

The able and very thorough investigation of the subject by the judge ad hoc (the judge of the district being recused), has materially aided us in arriving at the conclusions we have made, and we concur fully in the judgment rendered by him.

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

Justice Wyly and Justice Howell absent.


text:
    No. 2498.
    State, ex rel. Widow and Heirs of J. H. Pearson, v. The Parish Judge of the Parish of Jefferson.
    Where the heirs have been legally put in possession of the estate, by a judgment of the court, the property can not afterwards be placed under the control of an executor or administrator to be administered as succession property.
    In a case where the property of a succession has been legally transferred to and placed in the possession of the heirs, a writ of prohibition will lie from the appellate court against the probate judge, pending the appeal from an order appointing a dative testamentary executor.
    APPLICATION for Writ of Prohibition. — Parish of Jefferson.

      EEornov <& Benedict, for relators. Bruening, Parish Judge.
   Taliaferro, J.

An application was made to this court, by the relators, on the fourteenth December, 1869,- praying for a writ of prohibition to restrain the parish judge, of the parish of Jefferson from proceeding further in the matter of a petition filed in the probate court of that parish by one Zuinglius W. McKay, asking to be appointed dative testamentary executor of John II. Pearson, deceased. The relators set up as ground for this application that the property of the succession had, before this application of McKay was presented, passed into the possession of the heirs by formal decree of the court of probates of the parish of Jefferson; that the parish judge is without jurisdiction, there being no proceeding now of a probate character that can be taken by creditors or others in relation to debts or claims that may have existed against the succession of Pearson. An order nisi was rendered, and the Parish Judge filed his answer in conformity therewith, setting up various reasons for the action taken by him in the premises, and prays that the writ be dismissed. Two questions, only are presented in this case:

First — Where heirs have been legally put in possession of the property of an estate, can the property afterwards be placed under the control of an executor to be administered as succession property 9

Second — Has this court authority to issue a writ of prohibition in this case 9

The facts necessary to advert to in order to a solution of these questions seem to be these. Pearson, a resident of Boston, died in that city in April, 1862. He left a will, which was duly probated in Suffolk county, Massachusetts. In January, 1808, it was presented to the probate court of the parish of Jefferson, in this State, and an order was rendered for its registration and execution. In February following an order by the same court was rendered, putting the heirs into possession of the property of the decedent, situated in that parish. The heirs gave public notice to creditors to present their claims against the succession for settlement. This notice was given by three several successive publications, within thirty days, in the official journal oi the parish of Jefferson, the first insertion having been made November 25, 1868. McKay filed his petition November 19, 1869, praying to be appointed dative testamentary executor of the succession of Pearson, and that an inventory be made, etc. It appears that in 1853, Pearson bought at sheriff’s sale a number of lots of ground in the parish of Jefferson, on which there were mortgages in favor of third parties, and that he retained in his hands a large portion of the price bid to pay the mortgages. To the creditors thus entitled to a part of the proceeds of sale, if any such creditors remained, at the time the heirs were put in possession, was the succession bound, and not to McKay, who it is not pretended is a creditor. The articles 1000, 1001, 1002 and 1003 of the Code of Practice prescribe the course to be pursued when heirs present themselves who are entitled to successions. Article 1003 provides that, If, from the examination of the testimony produced in support of the prayer [that the curator be cited, and required to account for liis administration], tlie judge discovers that the petitioners are entitled to the succession} he shall put them into-possession of it, and shall direct the curator or executor to render an account within a reasonable time, to be fixed by him.”

Now, it is shown that the heirs of Pearson presented themselves, satisfactorily proved their right to the succession, and received the formal order of the court to be put into possession. They further advertised, after being put in possession, for creditors to present their claims.

The fifth section of the second chapter of title third of the Code of Practice details specially the mode of settling successions. The first article under that section (numbered 983) declares that, “all debts in money which are due from successions, administered by curators-appointed by courts and by testamentary executors, shall bo liquidated and their payment enforced by the court of probates of the place where the succession was opened.”

Articles 995 and 996, the last of that section, are in these words r Article 995: What is said in this section in relation to the liquidation of estates only applies where such estates are administered by curators or other persons appointed by a court or by testamentary executors.” And Article 996: “ The case is different when suoli estates are in possession of heirs, either present or represented in the State,, although all or some of these heirs bo minors} for, in such cases, the actions for debts due from such successions shall be brought before the ordinary tribunals, either against the heirs themselves, if they be of age, or against their curators, if they be under age, or interdicted.” Applying the law to the facts of this case, it seems clear that the proceeding taken by McKay and sustained by the Parish Judge, is one not warranted by law.

The probate court of Jefferson had lost all jurisdiction over the succession, which was no longer in esse, after the order of the court putting the heirs in possession. The debts, if there were any, followed the property in the hands of the heirs, and they could be proceeded against only in the ordinary tribunals. Being utterly without jurisdiction in the case, all the reasons assigned by the judge and the arguments presented by his counsel for the appointment of McKay dative testamentary executor, fall to the ground at once. There was no necessity for an executor or an administrator, and there could be none appointed. The property consists entirely of real estate, and the rights'of the creditors, if any, were in no manner placed in jeopardy by putting the heirs in possession. Tlie judgment'putting; them in possession might have been appealed from if the creditors had good grounds for supposing their rights would thereby be endangered. No creditor is complaining. McKay, it is not shown, or even pretended, is a creditor. His pretensions are backed up by references to authorities to show that an individual not a creditor, and without interest, may sometimes be appointed an executor or administrator— authorities wholly out of place and having no applicability to the present case. If it can not be said of him eertat de hiero captando, it may at least be remarked that he evinces a rather unusual interest in desiring the executorship of Pearson’s estate, an interest which it is not easy to perceive.

The second inquiry is, whether -in this case this court can issue a writ of prohibition ? It is contended that the only appeal which the relators are entitled to, is a devolutive one. That, by Article 580 of the Code of Practice, the judgment of the Parish Court, appointing McKay dative testamentary executor, must be provisionally executed, notwithstanding an appeal be taken. The provisions of that article are founded upon the assumption that injury would result from the want of a tutor to minors, of a curator to absent or interdicted persons, or of a succession, or of a syndic of creditors, if a judgment appointing these representatives wore not executed provisionally, and hence they form exceptions to the general rule in-regard to suspensive appeals. But these exceptions do not apply where no injury would result if no appointment were made iu any of the cases enumerated. We see no possible injury that could result to any party if the order appointing a dative testamentary executor, in the case before us, were not provisionally executed. We have been shown that the legal and rightful heirs are iu possession of the property by a formal judgment of the proper court; that these heirs filed a peremptory exception to the jurisdiction of the court; that this exception was disregarded and a suspensive appeal denied. The appeal in this casé involves not only the appointment of a dative testamentary executor, but the right of the court to appoint an executor at all. We think that a suspensive appeal should have been granted, and that it is necessary in- order to the efficacy of the appellate jurisdiction of this court.

It is therefore ordered that the writ of prohibition in this case be made peremptory; and that the judge of the'Parish Court of the parish of Jefferson be ordered to grant the relators in this case a suspensive appeal, returnable according to law.

Justice Howell and Justice Wyly absent.


author: , Howje, J.

text:
    No. 1873.
    Robert Moore v. A. Britton.
    Tbe fact that'the holder of a promissory note fails to bring suit promptly will not discharge the indorser, provided notice of non-payment is given at maturity.
    Demand of payment of a promissory note must bo made at the place of payment. Demand at any other place will not bind the indorser.
    APPEAL from Fourth District Court of New Orleans. Théard, J.

      JEEyams & Jonas, for plaintiff and appellant. Given Campbell„ for defendant and appellee
   , Howje, J.

T.lie defendant, who was sued as indorser of a promissory note, claimed that he was discharged :

First — By an extension of time granted to the maker without his consent; and, ,

Second — Because he was never duly notified of the non-payment of the note, nor was demand of payment made on the day the note matured.

It appears from the evidence that the plaintiff exercised great1 forbearance towards the maker of the note; but ho does not appear to have given time, so as to. preclude himself from suing, or to suspend the recourse of the indorser, in case the latter had chosen to pay and bring suit himself. The defendant can not, for this reason, complain or be exonerated. Fortineaud v. Bossiere, 18 L. 471.

Upon the second ground of defense, it appears that on the day the note fell due it was presented at the Canal Bank, in New Orleans, where it was by its terms payable, by the notary, and payment-demanded and refused, there being no funds there to meet it. The presentment and demand were duly made. The bank was open, its employes-attending to business, and we- are not aware of any rule of law which would render this demand undue because it was made after three o’clock p. 3i. We can not presume that the bank was closed at three, when the evidence shows that it was open after that time.' It appears that before three o’clock 'the maker of the note came to the Canal Bank; inquired if the note was there; was told it was not; seemed anxious to pay it; offered to deposit the money with the note clerk if the latter would give a receipt, which was refused; and then went away, leaving an address where he could be found. The notary who afterwards made the demand at the Canal Bank, being furnished by the note clerk with this address, declined to go to the place to which he was thus directed, and, we think, properly. The note was payable at the Canal Bank, and1 no demand at any other place would have justified a protest and notice of dishonor. It was the duty of the notary, then, to present it at the Canal Bank; and we are at a loss to know on what principle it can be contended that the giving of an address by the maker to the note clerk, or by the note clerk to the notary, could impose any additional legal duty on the latter.

We are constrained to think that the judgment in favor of the defendant was erroneous.

It is therefore ordered and adjudged that the judgment appealed from bo avoided and reversed, and that the plaintiff, Robert Moore, recover of the defendant, A. Britton, the sum of ¿one thousand arid five dollars and eighty-six cents, with interest at the rate of eight per cent, per annum from March 16, 1867, and costs in both courts.


text:
    No. 2494.
    J. M. Davis v. Thomas L. Maxwell.
    The act of October 18,1868, relative to elections, etc., No. 164, has no application to elections held before its passage. Under the acts of 1855 and 1856, a party, wishing to contest the election, must give the opposite party notice within ten days after the close of tho election. This notice would be in time if given within ten days after proclamation of the result.
    APPEAL from Fifth District Court of New Orleans, Beaumont,,3,

      J. Fislc, for plaintiff and appellant. Breaux c6 Benner, for defendant and appellee.
   Taliaferro, J.

The plaintiff alleges that he was duly elected sheriff of the parish of Orleans, at the general election held on the seventeenth and eighteenth of April, 1868, but owing to the fraud, malpractices and chicanery used in the counting of the votes east, and in the returns and reports made of the election, his competitor, the defendant, was returned as elected, and that he was wrongfully and illegally commissioned as sheriff, and exercises the duties of that office contrary to the true intent and meaning of the constitution and laws of the State. He prays judgment in his favor, decreeing that he bo declared the duly elected sheriff of the parish aforesaid, and that ho be put in possession of the said office accordingly, and that he recover from the defendant twenty thousand dollars, the amount of income from said office, of which he has been deprived.

The defendant filed a peremptory exception in bar1 of plaintiff’s action on the following ground, viz:

First — That plaintiff has not, as required by law, given notice within ten days after the close of the election, of Ms intention to contest the election; and did not, within the required time, specially set forth the grounds of contestation, nor has he offered proof of having given such notice, nor has he even alleged it. The exception was sustained and the suit dismissed. The plaintiff has appealed.

Tho plaintiff’s petition was filed on the second of April, 1869, and citation served on tho defendant on the nineteenth of April of the same year, being one year and a day from the time the election took place. The plaintiff holds that the act of tho Legislature of eighteenth of October, 1868, relative to elections, No. 164, page 218, repeals all former laws in regard to the manner of contesting elections subsequent to tho adoption of tho State constitution of 1868. He shows further, that proclamation of the result of the election was not made until the fifth of June following, forty-five days after tho election, and therefore it was impossible to give tho notice' required, file the petition, and within ten days from the close of the election, according to the acts of 1855 and 1856, even if these acts were in force.

We conclude the provisions of the act of eighteenth of October, 1868, are prospective only; and that the laws previously in force, prescribing the proceedings to be taken in contested elections, governed in all matters of that character prior to the passage of the act of eighteenth of October, 1868. As the plaintiff could not, under the circumstances, have commenced proceedings prior to the official promulgation of the result of the election, there was nothing in the way of his doing so within ten days afterwards. Wo think he has failed in using due diligence.

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


author: Lhdeling, C. J. Howell, J.

text:
    No. 1669.
    E. R. Beckwith v. G. M. Peirce et al.
    Parties residing on opposite sides oí tlie lines of military occupation during the late war were prohibited from carrying on trade and commercial intercourse with each other, and all contracts or obligations resulting from such trade or intercourse are null and void, unless it is shown that such trade or intercourse was specially authorized by the trade regulations prescribed by the Secretary of the Treasury* of the United States.
    Where judgment has been rendered against the intervenor in the lower court, and no appeal is taken therefrom, and the other parties do not make the intervenor a party to the appeal, the appellate court will not interierc with the judgment of‘ the court below on the intervention.
    APPEAL from Eifth District Court, parish of East Baton Rouge,

      Posey, J. White & Robertson, for plaintiff and appellee. Dimn & Herron, for defendants and appellants.
   Lhdeling, C. J.

The plaintiff sued for the balance duo on an account for supplies furnished, during the year 1865, for the use of the plantation of the defendant; and ho claimed a privilege upon the crop raised on the plantation in that year. At the instance of plaintiff, the cotton on the place, and twenty bales of cotton, found in the possession oí Jackson & RosenfLeld, were sequestrated.

The defendant, Peirce, filed a general denial and a plea that he and plaintiff lived on different sides of the lines of military occupation at the time the trading is alleged to have been carried on, and the trading was prohibited.

Jackson & Rosenfiekl allege that they were the owners and possessors of the twenty bales of cotton at the time they were sequestered, and that said cotton was not raised on defendant’s plantation. Mrs. Peirce, the wife of the defendant intervened and claimed that the property on the plantation which was sequestrated, belonged to her.

There was judgment in favor of Jackson & Rosenfield, dissolving the sequestration as to the twenty bales of cotton claimed by them, and against the plaintiff for sis hundred dollars damages.

There was judgment against the intervenor dismissing her intervention, and in favor of the plaintiff against her for the sum of five hundred and eighty-four dollars and twenty-four cents, with interest at the rate of five per cent, per annum from the second day of November, 1865.

There was also judgment against the defendant for three thousand and thirty-two dollars and seventy-six cents, with five per cent, interest thereon from second of November, 1865, with privilege, to secure pajrment of the judgments against the defendant and intervenor on the cotton raised on the “ Wilderness Plantation.” The defendant and the plaintiff have appealed.

. The intervenor has not appealed; neither has she prayed for any amendment of the judgment against her. We can not therefore interfere with the judgment against her.

The evidence establishes, beyond doubt, that the twenty bales of cotton, seized in the possession of Jackson & Rosenfield, belonged to them, and were not raised on the defendant’s plantation. We think the proof sustains the judgment of the lower court in favor of Jackson & Rosenfield.

The testimony in the record shows that the account sued on was, in part, made during a time when trading between the plaintiff and defendant was prohibited by law, as the former resided within the Federal lines, and the latter lived within the insurrectionary district. The testimony offered to prove that the trading between the parties was carried on under -permits, in accordance with the regulations of the Secretary of the Treashry of the United States, does not satisfy us of that fact.

Doyle, one of the clerks of plaintiff, says: “Before the surrender it was necessary to obtain permits before they could take out goods. Mr. Beckwith ivas not in the habit of allowing goods to leave his store without the necessary permits.” ■

Another witness says: “These permits were generally produced, stating that the goods were for plantation supplies.”

D; W. Lucas says : “I was connected with the Treasury Department. To obtain permits the parties were to -live within ten miles of town. They were allowed enough for their families. In obtaining permits, parti -s were required to make affidavit that the supplies were for their families and not to be transferred. Mr. Beckwith frequently brought list of goods that he wished to send out, that xvere over the amount, and tolling us it was to his advantage, would persuade us to give the permits, saying he would be responsible that it was all right.”

E. Purnell says: “ Mr. Peirce received a great many shoes, a bale of cotton, wine and liquors. He received no salt. . The shoes he received were fine shoes — morocco—the greater part women’s shoes. There were a good deal of calicoes. These goods were sent out by Mr. Beckwith and traded off. At the cessation of hostilities many of these articles were left on the hands of Mr. Peirce.” •

It is not proved positively that the permits obtained were for any of the goods charged in the account sued on; much less does the testimony jirove that permits were obtained for all the goods. Beside the testimony of Lucas, au employe of the Treasury Department, and the testimony of Purnell show that the goods were sent out of the lines in violation of the regulations of the Treasury Department.' See the case of the Sea Lion, 5 Wal., 630. ■

Besides this, the plaintiff has failed to establish the correctness of the following items of the accoput sued on, to wit:

Cash paid to defendant on third of January, 1865..............$2,000

Cash to G. M. Peirce, January 7........-.................... 2,000

Cash to Gr. M. Peirce, January 12............................. 800

$4,800

This exceeds the balance of the account sued for.

It is therefore ordered, adjudged and1 decreed, that the judgment of the District Court against the defendant, G. M. 'Peirce, be avoided and reversed, and that there be judgment against the plaintiff, as in case of nonsuit.

It is further ordered that the judgment in favor of Jackson & Rosenfield against the plaintiff, and the judgment in favor of the-plaintiff against the intervenor, Mary C. Baker, wife of G. M. Peirce, be affirmed; and that the plaintiff pay all the costs of the lower court,, except those created by the intervention, and, that ,the plaintiff pay the costs of this appeal.

On Rehearing. .

Howell, J.

A rehearing was granted in this case only so far as relates to the items of the account sued on charged subsequently to the twenty-fourth of May, 1865, the date at which the prohibition against trading between the parties ceased. The right to recover for such items was recognized in the case of Williams v. Gay, 21 An. 110. The balance due’on the portion of the amount subsequent to said date is $1615 98, from which should be deducted the sum of $584 24, amount of the judgment affirmed against Mrs. Peirce, leaving the sum of $1031 74 due by the defendant, G. M. Peirce, and for which judgment should be rendered against him.

It is therefore ordered that so much of our former decree as reverses the judgment of the court a qua against the defendant' and gives-judgment against plaintiffs, as of nonsuit, be set aside, and that plaintiffs recover of defendant, G. M. Peirce, the sum of $1031 74 (instead of $3032 76, allowed by the court below), with legal interest thereon from November 2, 1865', and privilege 'on the cotton raised on the Wilderness plantation in 1865,' and sequestered herein, to be seized and sold to satisfy this decree against defendant; and that as thus amended our former decree remain undisturbed.


text:
    No. 2649.
    Owners of the Steamer General Quitman v. John Q. Packard.—Ober, Atwater & Co., Intervenors
    Tlio factor or commission merchant has a lien and privilege on the crop for moneys advanced to aid in making it. Acts of 1867, p. 351.
    Where the appeal is taken for delay only, damages will ho awarded the appellee for frivolou3 appeal.
    APPEAL from Thirteenth District, Parish of Tensas. Sough, J.

      Farrar & Peeves, for plaintiffs and appellees. Julius Aroni, for intervonors and appellants.
   Wyly, J.

The intervenors have appealed from a judgment in favor of the plaintiffs and against the defendant, recognizing their privilege on the crops sequestered for the cash and supplies furnished to produce the same during the year 1868.

The evidence shows, beyond doubt, the correctness of the plaintiffs’ demand, and that they have a privilege on the crops seized, superior to the intervonors, who show no privilege whatever.

The case of Willis Wood, administrator, v. L. C. Calloway—H. K. Carter, third opponent, 21 An. 471, relied on by the intervenors and appellants, to show that no privilege is allowed on the crop for money advanced to the planter, does not sustain their position in this case.

At the time that case arose, which was prior to the act of twenty-eighth of March, 1867, the law allowed no privilege for cash advanced to produce the crop ; but in the case before us, an account is sued on for money advanced and supplies furnished to produce the crop of 1868. Under the statute of 1867, referred to, the privilege exists as well for cash actually advanced, as supplies furnished to make the crop. Acts 1867, p. 851. . The evidence fully refutes the charge of collusion and fraud between the plaintiffs and the defendant. The plaintiffs have prayed for damages against the intervenors for taking a frivolous appeal, and we think they should be awarded them.

It is therefore ordered that the judgment appealed from be affirmed? with costs; and it is further ordered that plaintiffs recover of the intervenors one hundred and fifty dollars damages for frivolous appeal.

Rehearing refused.


text:
    No. 2587.
    J. C. Van Wickle v. Charles Poydras.
    A party having laid the foundation for the introduction of secondary evidence, by showing the loss of the original documents sued upon, is not required to prove that the original note or documents had affixed to them the required internal revenue stamps,before evidenco can be received of their contents.
    APPEAL from the Seventh District Court, parish of Pointe Coupée.

      Miller, J. Thomas S. Sewes, for plaintiff and appellant. Z7. JB. Phillips, for defendant and appellee.
   Wyly, J.

The plaintiff has appealed from a judgment rejecting his demand against the defendant, based on a promissory note, which, together with the original pleadings, was lost or stolen from the clerk’s office, prior to the trial.

The judge decided to admit secondary evidence, hut rejected the copy of the lost note and the evidence of the witnesses supporting it, because it did not appear, and the plaintiff failed to prove, that the lost note had affixed to it the proper internal revenue stamps, the court holding that it was incumbent on the plaintiff so to prove. Thereupon the' counsel of the plaintiff offered to affix the necessary stamps to such papers as remained in the case, which offer being rejected, he took a bill of exceptions to the ruling of the court.

It appears to us the judge erred. The note and the original pleadings in the case having been lost, the necessary steps were taken to permit the introduction of secondary evidence, which the judge decided to receive.

Whether the lost note had the internal revenue stamps affixed or not is quite immaterial; that note was not offered in evidence of the debt; other evidence, which, under the circumstances, was admissible by our laws, was offered, and should have been received.

Without expressing any opinion as to the constitutional authority of Congress to enact laws relative to the competency of evidence in State •courts,' or its authority to declare a note inadmissible as evidence of a debt in a State court unless certain internal revenue stamps are affixed to it, we will remark that there is no act of Congress that we are aware of requiring stamps before a debt can be established by secondary •evidence. We know of no law forbidding the introduction of secondary evidence, otherwise admissible, because the party offering it may bo unable to prove that the lost note was duly stamped.

The other objections to the introduction of the'evidence are unworthy •of consideration. Plaintiff’s bill of exceptions was well taken.

It is therefore ordered that this case be remanded for now trial, and to be proceeded in according to law, and that appellee pay costs of this appeal.


text:
    No. 2652.
    Andrew R. Hynes v. Police Jury of Madison Parish.
    An acknowledgment or waiver by tbe parish treasurer, of a warrant or claim against the parish, will not operate an interruption of prescription, unless it is shown that ho was duly authorized to make such waiver.
    An ordinance of the police jury, authorizing the president to waive prescription of debts against the parish, will not protect the holder of a warrant against the plea of prescription, although it has been duly acknowledged by the treasurer. Under such an ordinance, the president alone is competent to make the waiver.
    APPEAL from the Thirteenth Judicial District, parish of Madison.

      Hough, J. H. I). Farrar, for plaintiff and appellant. G. F. Deivees, parish attorney, for appellee.
   Taliaferro, J.

This suit is brought on five parish warrants. The plea of prescription is made. Eour of the five warrants are admitted to be prescribed. The contest is only as to one of them, in regard to which the plaintiff aims to show prescription is interrupted. The warrant reads thus:

'“No. 859. — The State of Louisiana, parish of Madison.

? $750. The treasurer of the p'arish aforesaid pay the order of A. It. Hynes, for bridge across Joe’s bayou, seven hundred and fifty dollars and-cents. Ordinance at April session, 1870.

“JOSIAH STAMBOROUGH,

“President of the Police Jury.

“Attest: John T. Mason, Clerk.

Richmond, La., June 7, 1861.”

Across the instrument is written:

“Not paid for want of funds. December 26, 1862.

“A. E. ADAMS, Treasurer.

“Indorsed: R. Hynes. Presented September 13, 1867.

“E. B. TOWN, President. Police Jury.”

It is shown that since the late war the police jury of the parish of Madison, in order to avoid costs and expenses that might arise from the bringing of suits against the parish, authorized its president to waive prescription on all obligations against the parish, not already prescribed; and Town, at that time president, testifies that his indorsement on the warrant, at the time it was presented, was made for the purpose intended by the ordinance. The question now arises, what bearing has the treasurer’s act in relation to the plea of prescription 1 The warrant bears date June 7, 1861, and on the twenty-sixth of December, 1862, he writes across its face, “Not paid for want of funds.” If this is to be considered an acknowledgment of the validity of the claim that is binding on the parish, then, five years not having-intervened between the twenty-sixth of December, 18G2, and the thirteenth of September, 1867, the obligation is not prescribed. But there is no authority shown in the treasurer to acknowledge claims against the parish. His duties are defined and specific; and the authority to acknowledge debts against the parish, or to waive prescription is not, so far as shown, among them. The fact that the police jury, by formal ordinance for that purpose, empowered the president of that body to make such acknowledgment and waiver, indicates that, in the opinion of that body, its treasurer had not the right. An agent’s acknowledgment of a debt will interrupt prescription, if his authority -be express or fairly implied from the character of the agency. We think such authority in the parish treasurer is not to be inferred from the nature of Ms functions. Wc conclude, therefore, that the plea of prescription must prevail.

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

Rehearing refused.


author: Wyxy, J.

text:
    No. 2646.
    Parham & Blount v. Estates of V. E. & E. K. Ogle.
    In the absence of proof to the contrary, the Supreme Court will presume that the judge a quo required proof of the signature of letters before receiving them in evidence.
    The testimony of one witness, corroborated by letters of the debtor, is sufficient to establish a claim above five hundred dollars.
    APPEAL from Thirteenth District Court, parish of Tensas. Hough, J.

      Thomas P. Olinton and Wm. P. Mellen, for plaintiffs and appelleesPeeve.Lewis, for defendant and appellant.
   Wyxy, J.

The defendants have appealed from a judgment on default made final against them on an account for $1480 38, with five per cent-per annum interest thereon from the first day of January, 1867.

The objection urged in this court is, that the account was only proved by the evidence of one witness; also, that the signatures to the letters adduced in evidence were not proved, and were therefore improperly received by the judge a quo.

We find in the record no note of evidence; but it appears that the district judge admitted the letters in proof. In the absence of proof to the contrary, we will presume the judge did Ms duty, and required proof of the signatures before receiving the letters in evidence.

The evidence of the witness, corroborated by the letters, establishes beyond doubt the correctness of plaintiff’s demand.

It is therefore ordered that the judgment appealed from be affirmed,, with costs.

Rehearing refused


text:
    No. 2341.
    P. F. Thomas v. C. L’Hote et al.
    If a contract of building bas been dissolved by tbe death of the undertaker, and the proprietor accepts tbe work done and materials furnished, he must account to the heirs for their value in the proportion they bear to the price agreed upon for the construction of the entiro building.
    APPEAL from the Fourth District Court, parish of Orleans. Théarcl, J.

      Saucier c6 Michinarcl, for plaintiff and appellee. H. Schmidt, Samhola c& Hueros, Murphy & Lambert and Hyman, Wallace <& Handlin, for defendants and appellants.
   Howe, J.

The plaintiff alleges that on the .twentieth of September, 1867, he made a written contract with Charles Crampon, whereby the latter bound himself to build for the former a house and dependencies, for the price of $7000; that Crampon, who had delayed the work, and failed to deliver the house at the stipulated date, died in February, 1868; that Ms wife and heirs, declining to complete the work under the contract, and making no claim thereunder, he, the plainniff, kept the work which had been done, and such portion .of the materials as had been actually used toward the erection of the buildings, and completed the work according to the contract after an estimate of the probable cost; that previous to Crampon’s death he had paid him $3000; and that in completing the buildings he, the plaintiff, had expended on account of ■the balance of the price the sum of $3300, and was entitled also to a further credit of $25 for a cistern not furnished as stipulated; leaving thus the sum of $675 duo on the contract of $7000.

He further alleged that after Crampon’s death he received attested accounts or notices of claims for work alleged to have been done and materials furnished during Crampon’s lifetime, by a number of persons, whose names are set forth, and who are made defendants herein; and, denying any personal liability, he deposited the sum of $675 in court, in order that the defendants might, contradictorily with each ■other, establish their claims and their several pro rata shares to this fund.

The principal allegation of tho defendants is, that the amount of the work done by Crampon, and of materials furnished and prepared at the instance of plaintiff for tho building, was worth, at tho time of ■Crampon’s death, fully $4500, relatively to the price of $7000 stipulated for tho whole building; and that the balance of the work to bo done and materials to bo furnished could and should have been done and furnished, conformably to the specifications of the contract, for the sum of $2500, so that the amount which the plaintiff should have hold for -distribution should be decreed to be $1500, instead of $675.

There was judgment in favor of tho plaintiff as to the amount duo by him, $675, which was ordered to be distributed pro rata among the ■defendants. Prom this judgment the defendants, L’Hote, Demoruellc, Hacker, Mahoney, Stucke, and Lagrange have appealed.

The question to be solved in this case is conceded to be correctly stated in the defendant’s brief, and is this:

“What was, at the time of Crampon’s death, the value of the work already, done by him, and of tho materials already prepared, and which were used by Thomas, relatively to the price of $7000 stipulated in the contract"? ”

Article 2738 of the Civil Code provides that, in case tho contract is •dissolved by the death of the workman; architect or undertaker, the proprietor shall be bound to pay to the heirs of the latter “the value ■of the work that has already been done, and of the materials already-prepared, proportionally to the price agreed on, in case such work and materials may be useful to him.”

It is not, therefore, the real, but the relative value of the work and materials that must be compensated. If the contractor, for example, should have made an advantageous bargain, and completed half tho work at a cost less than half the contract price, tho proprietor would ■owe his heirs more than the cost of the labor and materials. If, on tho contrary, the contractor should have made an improvident agreement, and completed half the work at a cost greater than the half of the contract price, the. proprietor would, owe his heirs less than that cost. In the former case the heirs reap the benefit of their ancestor’s prudence; in the latter they suffer the injury arising from his rashness.

In the case at bar, it seems that Crampon did not make a wise bargain. He agreed to do work for $7000 that was well worth $8000. The amount due by the plaintiff is somewhat less than the real value of the work and materials. A review of the evidence does not satisfy us that the judge a quo erred in fixing the amount at the sum alleged by plaintiff. We think, however, that the claims of the defendants, J. Lincoln & Co. and C. Aiken, should have been disallowed, there being no evidence to support them.

It is therefore ordered that the judgment appealed from be amended by striking therefrom the names of J. Lincoln & Co. and C. Aiken as j>arties entitled to share pro rata in the distribution of the fund, and that in other respects, and as thus amended, the judgment be affirmed. Costs of appeal to be paid by appellees.


author: Wyi.y, J.

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    No. 1774.
    Boston Belting Company v. J. S. Simonds.
    Tlie pica of general denial, and tlie further special plea that the goods purchased, for which the note sued on was given, were rotten and worthless, admits the capacity of the plaintiffs to stand in judgment.
    APPEAL from Fourth District Court of New Orleans. Théard, J.

      William H. Hunt, for plaintiff and appellee. Bentinclc Bgan, for defendant and appellant.
   Wyi.y, J.

This-is a suit on a promissory note.

The defendant pleaded “ a general denial, and for further answer denies specially the existence of any such company as that of plaintiffs in this suit, or that they have any right to sue or stand in judgment, and for further answer respondent denies that he ever received any consideration for the note sued upon ; and for further answer alleges that said note was given by him to plaintiffs for a quantity of India rubber hose, and said hose' was represented by plaintiffs to him to be good and sound, when, in truth and in fact, it was rotten and badly made, and perfectly worthless, and could not be sold for any price, which defects respondent did not discover until long after the date of the note sued upon.”

The case was tried by a jury, and on their verdict judgment was rendered in favor of xfiaintiffs, and defendant has appealed.

The only serious question presented in this case is the capacity of tlie plaintiffs to sue, which is disputed in the answer.

The petition begins thus: “ The petition of the Boston Belting Company, a corporation under the laws of Massachusetts, domiciliated in Boston, Massachusetts, respectfully shows,” etc.

The answer of the defendan . after • denying the existence of any such company, substantially admits it; thus, the defendant “for further answer alleges that said note was given by him to plaintiffs for a quantity of India rubber hose, and said hose was represented by plaintiffs to him to be good and .sound, when, in truth and-in fact, it was rotten,” etc.

If the plaintiffs did not exist, it is difficult to perceive how the defendant, Simonds, bought from them India rubber hose, which they represented to Min to be sound, and for which he gave them his note.

In effect, the answer says to the plaintiffs : I deny that you are anybody, but I have traded with you: have given you my note for India rubber hose, which you represented to me to be sound and good, whereas they are rotten and worthless.

We think the answer substantially admits 'the capacity of the plaintiffs.

It is therefore ordered that the judgment appealed from be affirmed, with costs.

Rehearing refused.


author: Taliaeerro, J.

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    No. 2592.
    Jacob C. Van Winkle v. The Police Jury of the Parish of Pointe Coupee.
    A written obligation, signed by tbe auditor of parish, accounts, styled a certificate of indebtedness, is proscribed.by tlie lapse of five years. O. C. 3505.
    APPEAL from the Seventh Judicial District, Parish of Pointe Coupée.

      Cooley, J. Cooley & Phillips, for plaintiff and appellee. John Yoist, for defendant and appellant.
   Taliaeerro, J.

The plaintiff sues the' parish of Pointe Coupée to recover the amount of four written obligations, styled “ Certificates of Indebtedness.” Three of these instruments, each for one thousand dollars, are dated March 2, 1860, and signed by the auditor of parish accounts, and indorsed by the holder of the claim against the parish. They are numbered, respectively, 618, 619 and 620, and read as follows:

“ Pointe Coupée. This is to certify that the parish of Pointe Coupée owes to Mr. Richard Ilanahan, or order, one thousand dollars, with interest at the rate of eight per cent, per annum from this date, for building the Colomb levee.

“Pointe Coupée, March 2, 1860.

(Signed) “JOHN YOIST,

“Auditor of Parish Accounts.

“Indorsed: Richard Hanaiian.”

The other, act, dated June 23, 1863, is drawn in the same manner for the sum of five hundred dollars, with like interest from date, and expresses the consideration to be a balance due the district surveyor. The main grounds of defense are:

First — Prescription.

Second — That no provision was made at the time the indebtedness was created to discharge it.

The plaintiff obtained judgment in the lower court, and the defendant appeals. ■

We think the certificate sued upon comes within the large class of instruments contemplated by the article 3505 of the Civil ■ Code, and the prescription of five years, plead in defense, must prevail.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided apd reversed It is further ordered that there be judgment in favor of the defendant and appellant, and that the plaintiff pay costs in both courts.

Rehearing refused.


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    No. 2089.
    The State v. William Davis.
    Tlie statute of tlie State of Louisiana of 1805, adopting the common law of England as the basis of its criminal jurisprudence, is not affected by any enactments of that kingdom subsequent to that date.
    The statute of 21 George III., chap. 68, enacted prior to the year 1805, by which the taking oí certain things attached to the realty is declared to be a felony, does not affect the definition of the word “larceny,” as used in the twenty-eighth section of the act of March 14, 1855.
    The term larceny, as used in this statute, means the felonious taking and carrying away of the personal goods of another, without his consent, and with’ intent to convert them to the use of the taker.
    APPEAL from tlio District Court, Parish of East Baton Rouge.

      Fosey, J. Iff. A. Fstevan, District Attorney, for the State. Fead & Ooodale, for defendant and appellant.
   Howe, J.

The defendant has appealed from a judgment rendered upon the verdict of a jury finding him guilty of larceny. It appears from the bill of exceptions that the copper pipe, alleged to have been the subject of the larceny, was permanently affixed to an engine, which was itself permanently affixed by bricks and mortar to a sugar house; and that the counsel for the accused requested the court to charge the jury as follows:

1. That larceny can not be committed of things that partake of the realty.

2. That copper pipe affixed to an engine, which is affixed by masonry to a building, does partake of the realty, and that larceny can not be committed thereof.

The court refused these instructions, and, on the contrary, charged the jury that the statute of T805, by which the Legislature of Louisiana adopted as the basis oí the caminal jurisprudence the. common law of England, should be intended and construed as embracing the statute of 7 and 8 George IV., chap. 29, by the forty-fourth section of which the stealing or feloniously removing of metal from a building was made a felony; and that the effect of this statute upon the laws of Louisiana is such as to include within the definition of larceny, such crimes as. stealing or feloniously removing some things that do partake of the realty, such as copper pipe when affixed to buildings and the like.

We are constrained to think that this ruling was erroneous. Whatever may have been the effect of our statute of 1805, it could not have embraced the statute of 7 and 8 George IV., chap. 29, inasmuch as the latter was not enacted until after the accession of that monarch in the year 1820. We presume the learned judge a quo had in mind the statute of 21 George III., chap. 68, by which the taking of certain things-, attached to the realty was declared to be a felony; but we do not think that the enactment of this statute, prior to 1805, should be held to> affect the definition of the word “larceny,” as used in the twenty-eighth section of the act of March 14, 1855, under which this prosecution was instituted. The offense denounced by that section is larceny at common law — pure and simple — the felonious taking and carrying away of the personal goods of another, without his consent, and with intent to convert them to the use of the taker.

It may well be, however, that the State can yet establish, under the pleadings heroin, a case of larceny; and

•It is therefore ordered that the judgment appealed from be avoided and reversed, and the verdict of the jury set aside, and the cause-remanded for a new trial.


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    No. 2712.
    B. and A. Soule v. M. Worsham.
    A judgment creditor can not proceed by rule to make tlic sureties of the sheriff liable for-money collected by him on a writ of fieri facias.

    APPEAL from Fifth Judicial Court, parish of East Feliciana, Posey, J.

      Kernan <& Lyons, for plaintiffs and appellees. Gross <& Hardee, Me Vea & Kilbourne, and Pace, Foster & F. T. Merrielc, for defendants and appellants.
   Howe, J.

In this case the plaintiffs caused a writ of fieri faeias to-be issued upon their judgment against the defendant, and certain property to be sold by A. S. Norwood, then sheriff of East Feliciana, and now deceased. As the foundation of the proceeding -now before us they afterwards took a rule upon the' administrator of the late sheriff, and upon his sureties, L. G. Perkins, Thomas W. Robins and J. R. Jackson, to show cause why judgment should not be rendered against them in solido, for a sum alleged to have been received by Norwood, sheriff, as proceeds of the sale above mentioned, and which he had neglected to pay over.

The administrator answered by pleading the general denial, and the prescription of two years. The sureties excepted to the action on the ground that they could not be proceeded against thus summarily by rule. Their exception was overruled, and they filed an answer to the merits. The court a qua gave judgment against the defendants. in solido for the amount claimed, the sureties appealed.

We are of opinion that tho court erred in not maintaining the exception of the appellants. The right-to - proceed against tho sheriff" or his succession, by rule, does not necessarily include tho right to. proceed in this summary manner against his sureties. In the absence of special provisions of law, permitting tho summary, process, the proceeding should be initiated by petition and citation. Weiser v. Smith, lately decided; 6 Rob. 435; 3 Art. 206, 434; 12 An. 201; 14 An. 390.

It is therefore ordered that the judgment appealed from be, as to the appellants, avoided and reversed, and the rule as to them dismissed, with costs.


author: Taliaeeeeo, J.

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    No. 2698.
    Adeline C. Taylor and Husband v. Boedicker & Badenhausen.—S. D. Moody, Intervenor.
    In all cases where an intervention is allowed, the intervenor is entitled to the delay necessary to- • cite the parties against whom it is directed. This rule applies whether the intervention-has been filed before or after issue joined-
    An intervenor having his remedy by direct action, is required to be always ready to plead or’ exhibit his testimony.
    APPEAL from Fifth Judicial District, parish of East Feliciana. Posey,

    J. Mb Vea & Punter, for plaintiffs and appellees. Eernan & Lyons, for intervenor, appellant.
   Taliaeeeeo, J.

The plaintiffs in 1866, sold to tho defendants a tract of land lying in the parish of East Feliciana, for the price of $12,430, of which a part was paid in cash, and a term of credit granted for the remainder, for which notes were executed and secured by a. mortgage and the vendor’s privilege. Tho vendees subsequently sold this property to the intervenor.

On one of the notes (for $7430) executed by the defendants for apart of the price, the plaintiffs instituted this action, via ordinaria, praying judgment recognizing- their privilege and mortgage, and that tho mortgaged property be seized and sold to pay tho amount of the note. The mortgage contains the pact de own alienando. The note is a joint- and several obligation. Judgment by default was taken against. Boedicker, and afterwards made final before citation was served upon-the other defendant. In the interval, between tho rendition of judgment by default and the final judgment, Moody presented his, petition of intervention, setting forth that he was interested in the event of the suit, having become the purchaser of the property, and having the same in possession. lie also alleges that plaintiffs have no mortgage securing the payment of the note sued on. The judge a quo refused to allow the intervention, on the ground that it came too late. Judgment being rendered against one of the defendants, the intervenor, having reserved a bill of exceptions to the ruling of the court refusing to allow his intervention, took this appeal. The correctness' of the action of the lower court, in regard to the intervention, is the only question presented for the consideration of this court.

Article 391, of the Code of Practice, gives the right to intervene either before or after issue joined, provided the intervention do not retard the principal suit.” Article 393 provides that the intervention must bo formed by a petition, which must be served on the party against which it is directed, in order that he may answer to the same in the delay given in ordinary suits.

The right to intervene being granted, all the means requisite for the exercise of that right are necessarily granted also. In declaring that the intervention shall not retard the main action, the lawgiver intended that no delay shall be allowed beyond what is strictly necessary to enable the intervenor to litigate Ms claims in the suit in which he intervenes. He has the right to have his petition served upon either or both the parties against whom he proceeds, in order that they may answer within the delay given in ordinary suits. It is plain that an intervenor is not entitled to all the rights which the original parties have in relation to the mode of conducting the contestation. The exercise of these rights often involves much delay in procuring evidence, the calling in of warrantors, and other acts necessary to a final decision of the cause. The intervenor is required to be always ready to plead, or exhibit his testimony, because he has always his remedy by a separate action to vindicate his rights. If he chooses to proceed by intervention, he can not retard the adjustment of the rights of others to any greater extent than the necessity of the circumstances, require in order to obtain his own.

The purport of the several articles which treat of intervention, taken in their connection and relation to each other, is sufficiently clear to leave no doubt of the purpose and meaning of the lawmaker in enacting them. It is likewise apparent, that in the application of these articles to cases as they are presented, there must necessarily frequent occasions arise where a sound legal discretion must be exercised by the judge. In the case before us wo think the judge erred in refusing the intervention. It seems that it was presented after issue joined, but before the trial of the case had commenced. It does not appear that the intervention would have caused a greater delay in the progress of the cause than the intervenor was entitled to produce — that of having his petition served upon the original parties.

It is therefore ordered, adjudged and decred, that the judgment of the District Court he annulled, avoided and reversed. It is further •ordered that this ease he remanded to the lower court with instructions to allow the intervention prayed for, and to proceed with the ease •according to law, the plaintiff to pay costs of this appeal.

Rehearing refused.


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    No. 2734.
    Heirs of B. T. Chaney v. Daniel Williams, Adm’r.
    'The parish court is without jurisdiction rations matci'ica in a suit on a moneyed demand, where the amount involved is above five hundred dollars. 21 An. 478, 481.
    ■Where a suit has been transferred from the district court to the parish court, and dismissed by the parish court for want of jurisdiction, andan appeal is taken therefrom, the judgment of the parish court will be reversed, and< the cause remanded to the district court, to be proceeded with according to law.
    APPEAL from the Parish Court of St. Helena. George, Parish Judge.

      Gross & Hardee, for plaintiff and appellee. Huse & Garter, for •defendants and appellants.
   Howe, J.

This action was brought in the district court of the parish of St. Helena to recover the sum of $3004 66, alleged to he duo from the succession of Hiram Williams, deceased. Upon the exception and plea to the jurisdiction filed by defendant, the cause was, in April, 1869, transferred to the parish court of St. Helena and upon exceptions thereafter filed, was dismissed. The plaintiffs have appealed.

The parish court was without jurisdiction ratione material. Swan v. Gayle, 21 An. 478; Swan v. Bry, 21 An. 481.

It is therefore ordered that the judgment appealed from he annulled and the cause remanded to the district court for the parish of St. Helena, there to be proceeded with according to law, the appellee to pay costs of appeal.


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    No. 2248.
    Mary Ann Leatt v. Heirs of Benjamin Williams.
    Tiie plea of res judicata will be maintained wbore the evidence shows that the title to the property in controversy has been finally adjudicated upon in a suit between the same parties.
    To enable the second'husband to recover on behalf of his minor children, issue of the marriage, one thousand dollars irom the succession of the first husband, the evidence must show that the deceased wife was in-necessitous circumstances at the death of her first husband. The fact that her child by a second marriage is in necessitous circumstances, gives it no claim against the succession of her first husband.
    APPEAL from Eighth District Court, parish of Livingston, Ellis,- J.

      A. Derail, for plaintiff and appellee. H. Duncan, for defendant and appellant.
   Wyly, J.

The plaintiff enjoined the sale of certain property in the succession of Benjamin Williams, claiming to be the owner thereof.

The defendants denied the allegations of the petition, and alleged .that the ownership of the property claimed by the plaintiff was settled adversely to her by a judgment of this court, rendered in April, 1860, in the suit of the heirs of Benjamin Williams v. Mary Ann Hardy or Williams (the plaintiff herein), reported in 15 An. 286. They also pleaded the exception of res judicata, the matters in controversy being settled in said judgment; and they asked that the injunction be dissolved, with damages, and that the sale of the property be proceeded with.

The plaintiff having died, her second husband, Samuel Lcatt, as natural tutor of his minor child, appeared and amended the pleadings, claiming in behalf of his deceased wife, from the succession of Benjamin Williams, $1000, under the act of seventeenth of March, 1852.

The evidence in the record shows, beyond doubt, that the property in controversy was decided to belong to the succession of Benjamin Williams in a suit between the same parties, reported in 15 An. 236. The exception of res judicata was well taken.

As to the claim for $1000, we are of the opinion that the proof fails to establish the fact that Mary Ann Leatt, formerly the widow of Benjamin Williams, was in necessitous circumstances at the time of his death. That her child, by a second marriage, is in necessitous circumstances, gives it no claim against the succession of her first husband.

It is therefore ordered that the judgment of the court a qua be annulled, and it is ordered that there be judgment for the defendants, that the injunction be dissolved, and that plaintiff pay costs of both courts.


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    No. 2656.
    N. D. Fuqua v. H. S. Dawson et al.
    Anuncuplüve will under private signature, passed in tlie presence of tlirce witnesses, when a greater number might have been obtained, is null and void.
    APPEAL from the District Court, Parish of Madison. Farrar, J.

      Bgarrow & Montyomery, Bush & Good, for plaintiff and appellant. Ityams & Gordon and H. It. Bradford, for defendants and appellees.
   Howe, J.

This action was brought by the plaintiff claiming to be nearest of kin and sole heir of his deceased niece, Mrs. Sarah Montgomery, to obtain recognition of his heirship and possession of the estate.

It has been admitted by the counsel of the defendants that the nuncupative will under private signature, in virtue of which the defendants claim the property, is null and void. It was passed in the presence of but three witnesses, when a greater number might easily have been called in. C. C. 1576, 1588.

The verdict of the jury for defendants was rnanifestlj' erroneous.

It is therefore ordered that the judgment appealed from by plaintiff be avoided and reversed. It is further ordered that there be judgment in favor of plaintiff and against the defendants, decreeing the plaintiff to be the sole heir of Mrs. Sarali Montgomery, late of the parish of Madison, deceased; that he be put in possession of her estate and quieted in his title thereto, and that the defendants pay costs of both courts. It is further ordered that the claim of the plaintiff for fruits and revenues be dismissed, as in case of nonsuit.


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    No. 2037.
    Succession of S. W. W. Sanderson.—On Petition of creditors for account and additional security.
    The certificate of the clerk, that the record contains all the evidence adduced and filed in the matter, is defective, and the appeal will he dismissed on motion.
    APPEAL from the District Court, parish of Concordia. Sanders, J.

      Farrar & Beeves, for appellant. Mayo & Spencer, for appellees.'
   Howe, J.

A motion has been made to dismiss this appeal, on the ground that the certificate of the clerk, attached to the record, is illegal and insufficient. The certificate states that the transcript is a true and correct "transcript of all the pleadings, orders and decrees, of all the proceedings had, and of all the evidence adduced and filed in the matter,” etc. The motion must prevail. In order to pass upon such a case, we need all the evidence adduced, and not merely that which was both adduced and filed. The appellant having taken no steps to correct this error, can not invoke the statute of 1839, if it apply. Succession of Kemp, 9 An. 190; C. P. 896.

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