text:
    Green McLeroy v. Duckworth and Overby.
    Parol evidence is admissible to explain tlie nature of tlio sale of improvements upon land sold, and tlieir location, extent and value, when there is ambiguity in the act of sale with regard to them.
    Where a person in selling a tract of land sells also his “ entire interest” in all improvements upon public land adjacent to said tract, he makes to Ills vendee only a quit claim of his interest in said improvements.
    APPEAL from the District Oourt of the Parish of Morehouse, Richardson, J.

      McGuire & Ray, for plaintiff.

      Ludeling and Newton & Hall, for defendant and appellant.
   Cole, J.

This action is based upon two promissory notes, payable to plaintiff, their payment is resisted for failure of consideration.

Defendants allege they were given as a part of the pi'icc of a tract of land, known as the J olin B. Eddin’s head right, and the improvement on public land adjacent to the same, npon which improvement there was a gin-houso and mill, and about seventy acres of cleared laud in cultivation ; that this improvement was represented by the plaintiff to be upon public land belonging to the general government ; that the expectation of entering the land upon which tlio improvement had been made materially influenced them to purchase the head-right; but, after the sale, it was ascertained that the improvement was the private property of the heirs of Hemplcin, who acquired a title thereto from a confirmation by Act of Congress.

Defendants farther aver, they have been evicted of the improvement in the suit of Hempkin’s heirs, which was instituted against them, and that respondents have thus been prevented from entering the same.

This case was tried three times; two juries could not agree, but the third rendered a verdict for plaintiff, and from the judgment thereon defendants have appealed.

The deed is as follows :

“ State of Louisiana, Parish: op Morehouse.
Know all men by those presents, that I, Green McLeroy, of Claiborne parish, Louisiana, do this day bargain, sell and confirm all my right, title and interest to the following tract or parcel of land, to wit: known as the John B. Eddin’s confirmation and more particularly known as the Britton place, lying and being on the west side of Bayou Bartholomew, in the parish of Morehouse, and State aforesaid ; also, their entire interest to all improvements on public lands adjacent to the same, unto E. D. Buchoorth and E. P. Overby, of Morehouse parish, and State aforesaid, for the sum of twenty-five hundred dollars, to me in hand paid. I also sell to the said E. B. Duckworth and E. P. Overby the gin-stand and mill and ferryboat on said place, included in the above sale. I also bind myself, my heirs, executors and administrators and assigns, severally and jointly, firmly by these presents.
In testimony whereof we set our names, in the presence of /. B. Duckworth and T. C. Stanifer, this 1st day of February, 1855.
[Signed] G. McLeroy,
“ E. D. Duckworth,
“ E. P. Overby.”

Bills of exception were taken to the introduction of a part of the evidence; these will bo briefly noticed ; it is not, however, necessary to allude to the objections to the introduction of Stanifer's testimony, as it was not considered in the decision of this cause.

It was proper to establish by parol, the nature of the sale of the interest to all improvements” mentioned in the “ act,” whether the vendor only made a quit claim, or the sale of a right warranted to exist, for there is an ambiguity as to this in the “ act.”

Parol evidence was correctly received to explain the location, extent and value of the “ improvements,” for as to these points the “ act” is also ambiguous.

Having thus disposed of the bills of exception, wo would now observe that the vendor in the first part of the “ act” sells all his “ right, title and interest” to the Eddin’s confirmation, and in the second part disposes of his “ entire interest" in all improvements on public lands adjacent to the same.

We are bound to conclude that plaintiff, in the “ act,” made only a quit claim to defendant of his interest in the improvements on public lands, because the act of sale can be so interpreted, and this construction is sustained by the parol evidence.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Cole, J.

license: Public Domain

text:
    John Swilley v. John Low—Same v. Same.
    XI is not necessary to filo an amended petition in reply to, and explanatory of, an amended answer, as tlie testimony in support of its averments is admissable under the issue presented by tlio amended answer.
    Yet such amended petition will be recoived, and when filed, service thereof upon the defendant is unnecessary.
    Amendments should be recoived, whenever required to accomplish the ends of justice.
    APPEAL from tlie District Court of the Parish of Caddo, Creswell, J.

      B. L. Hodge, for plaintiff.

      Landrum Williamson, for defendant and appellant.
   Cole, J.

The causes of action in these consolidated cases, are two judgments alleged to have been paid by plaintiff for the benefit of defendant.

The answer is a general denial.

After numerous continuances, an amended answer was filed, which alleged that plaintiff had received two sums of money from third parties on account of defendant, and the indebtedness of defendant to plaintiff for the amount now claimed, was thereby extinguished ; the answer plead the same in payment and compensation.

Plaintiff then offeree to file a supplemental petition, which was opposed upon the grounds, that it was too late, and that the substance of his demand and the issue in the cause would be altered thereby.

The objections were properly overruled. The amended petition purported to be a reply to the amended answer, and merely detailed a series of debts of defendant to plaintiff, which the latter opposed to the claims of the former in the amended answer.

It made no material change in the issue, and the testimony in support of its averments would have been admissable under the issue presented by the amended answer. Besides, amendments should be recoived whenever required to accomplish the ends of justice.

Art. 421 O. P. declares, that when one of the parties has amended either his petition or his answer, the other party has the right of answering the amendment.

There was no necessity for the filing of the amended petition, as plaintiff would have had the right to have offered the claims therein contained against those in the amended answer, without any amended petition whatever.

It is well settled that all the allegations in the answer are open to every objection of law and fact, inasmuch as replications are not required by our law.

Defendant afterwards moved for a continuance on the grounds, that he was entitled to service of the supplemental petition, and was surprised by its averments. As it was unnecessary to have filed the amended petition, the service thereof was not requisite.

If defendant was unprepared for its allegations, liis application should have been supported by his affidavit.

Judgment affirmed, with costs.


author: Buchanan, J.

text:
    Wright, Williams & Co. v. John Temple.
    A transfer of an obligation of a third person in settlement of a debt, is not a compromise, but a elation en paiement.

    APPEAL from the District Court of the Parish of Morehouse, Richardson, J.
    D. C. Morgan, for plaintiffs and appellants.

      McGuire Ray, for dclendant.
   Buchanan, J.

Defendant, a planter in Morehouse parish, being sued upon two notes given by him in settlement of a balance of account to the plaintiffs, commission merchants in New Orleans, pleads want of consideration, in this, that there was usury aud error in the items which go to make up the account settled.

Plaintiffs insist that the settlement in question amounted to a compromise, and invoke the Article 3045 of the Code, which declares that compromises cannot be attacked for errors of law or lesion.

We are unable to recognize the distinctive features of a compromise in this settlement. C. C. 3038.

In part payment or acquittance of defendant’s indebtedness, the plaintiffs received the obligation of a third person to defendant, for a large amount of money, bearing interest and payable in annual installments of cotton, say 40,000 lbs. of cotton annually, This obligation, on which some fourteen thousand dollars wore unpaid and unmatured at the time of the settlement, was received át the rate of eleven thousand dollars or thereabouts. This was the result of a calculation by defendant and the Olerk of plaintiffs, who represented them in the settlement. The latter, examined as a witness, considered this to be a compromise, because he says the estimate of eleven thousand dollars was in fact several hundred dollars more than the cash value of the cotton obligation transferred. We are unable to perceive very clearly the correctness of this opinion of the witness, for which no data are furnished. This is immaterial, however, to the question. Whether the estimate of the value of the Douglass obligation was too high or two low, it was the estimate agreed upon mutually ; and for that amount, the transfer of the obligation was not a compromise, but a dation en paiement.

The particulars of the account for which the notes in question were given, may, therefore, be inquired into, under the allegation of defendant’s answer, for the purpose of testing the consideration of the notes.

The statement of account made by the District Judge, appears to us to have done justice to the parties, under the evidence.

Judgment affirmed, with costs.


author: Spofford, J.

text:
    Flemming v. Richardson & Smith.
    A notary is not required to have a particular style of seal to give authenticity to his copies.
    APPEAL from the District Court of Claiborne, Egan, J.

      Vaughan §• Vaughan, for plaintiff and appellant.

      J. M. Thompson, for defendant.
   Spofford, J.

The plaintiff has appealed from a judgment rendered against him in a redhibitory action.

Upon the trial in the court below, he offered in evidence a copy of the notarial act of sale by which he acquired the title to the slave in question from the defendant, Richardson. The District Judge rejected the copy, although it was authenticated by the official signature of the notary, upon the ground that there was no seal of office upon the copy, but only a private scrawl in place of a seal.

The copy should have been received. The notary certified that it was a true copy of the original act on file in Ms book of notarial records, and so certified “ under his hand and seal of office.” It is not shown that ho had any other seal of office than a scrawl. We have been referred to no law requiring him to have a particular style of seal to give authenticity to his copies, and we have not been able to find such a law.

The unsoundness of the slave both before and after the date of the sale, is amply proven. Besides, the defendant Richardson’s answer, admits the unsoundness, but avers that the same was declared to the vendee at the time of the sale, and that it was the defendant’s intention to name in the act of sale the redhibitory defect, but that, for the want of experience and by oversight, he failed to have that clause put in, and that he gave the bill of sale in error.

In the act of sale, the vendor, Richardson, expressly guarantied the slave in question, against “ all the vices and maladies prescribed by law.”

After the proof made by the plaintiff, it became incumbent upon the defendant, Richardson, to establish the averment of his answer, that before or at the time of the sale, he declared to the buyer the latent defects which are proved and admitted to have existed in the slave.

There is no proof whatever of such a declaration; on the contrary, there is some evidence which goes to negative the averment.

Nor can we infer, with the District Judge, from the circumstantial evidence, that the defendant was already aware of the nature and extent of the redhibitory defects, and purchased at his own risk. It requires something more than vague inferences to rebut the express warranty contained in the authentic act of sale.

We find no reason to suppose that the slave has suffered in the defendant’s hands from ill treatment or neglect.

As to the defendant, Smith, we concur with the District Judge that there are not sufficient averments in the plaintiff’s petition, to make out a case of liability.

It is, therefore, ordered and decreed, that the judgment of the District Court, as to the defendant, Smith, be affirmed; it is further ordered and decreed, that the judgment, as to the defendant, Richardson, bo avoided and reversed; and it is now ordered, adjudged and decreed, that the sale of the slave Elizabeth from the dofendant, Andrew P. Richardson, to the plaintiff, Edward B. Flemming, passed before Simeon M. Hart, a Notary Public in and for the parish of Natchitoches, on the 11th February, 1857, be avoided for the redhibitory defects with which the said slave was affected at the date of the said sale; that the said defendant recover the said slave, and that the plaintiff recover of defendant, Richardson, the price thereof, to wit, the sum of six hundred dollars, with legal interest thereon, from the judicial demand, and the costs of this suit in both courts.


author: Merrick, C. J.

text:
    Christopher Chaffe v. Steamboat St. Charles and Owners.
    Where a suit was brought against the owners of a steamboat for the value of a slave, alleged to have been carried off oil the boat, and during the pendency of the suit, the slave was recovered by the plaintiff,—Held : That the plaintiff was nevertheless entitled to prove and recover judgmont, for the amount he had expended in recovering the slave.
    APPEAL from the District Court of the Parish of Caddo, Creswell, J.

      Hodge Sf Austin, for plaintiff and appellant.

      Crain fy Nutt, for defendant.
   Merrick, C. J.

Plaitiff alleges that his slave, Have, left his premises without permission on the 29th December, 1856 ; that he believes said slave was carried from Shreveport by the steamboat St. Charles; that he was seen on said boat-on the 5th, 6th and 7th of January, 1857, while lying in the port of New Orleans, carrying boxes, &o., on said boat on the clays last mentioned. He further alleges his fear and belief that said slave had been enabled to escape from the State by being carried away as aforesaid; damages to the amount of $1500, the value of the slave, and prays for judgment for said amount against said boat, with recognition of lien, &c.

The defendants pleaded a general denial, and the court rendered a judgment for their costs.”

The plaintiff having recovered the slave during the pendency of the suit, offered to prove on the trial by a witness the amount of costs, and money expended by him in recovering possession of the slave, and the value of the services of the slave per month. Said testimony was objected to by defendant’s counsel on the ground that the same was irrelevant, and there was no allegation authorizing any such evidence. The testimony was received notwithstanding the objection, but it appears to have been subsequently disregarded by the judge, who rendered judgment in favor of the defendant. We are of the opinion that the district judge did not err in receiving the testimony. The fact proven by the defendant by the cross-examination of the witness Parnell, that plaintiff had recovered the slave since the institution of the suit, justified the introduction of proof of the expenses in recovering the slave, and the value of his services whilst he was absent.

The defendant by the proof, defeats the claim for the principal portion of the damages, but on the recovery of the possession of the slave pendente lite, has not changed the nature of the act charged in the petition, but lessened its injurious effects to defendant, there is no good reason why the proof, should not be received and when received produce its effect. Dufour v. Camfrancq, 8 Martin, 307.

The action is brought for the value of the slave, and not for the fine of $500 given by section 2d of the Act of 1840, p. 90. If the plaintiff had intended to claim the penalty he should have specially claimed it in his petition.

The proof is sufficient to entitle the plaintiff to recover of the defendant the sum of $78 90, the value of the services of the slave while absent and the costs of his recovery.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed and that the plaintiff recover and have judgment against said W. D. Bateman for said sum of seventy-eight dollars and ninety cents and plaintiff’s privilege upon said steamboat St. Charles bo recognized to secure the same. And it is further ordered, that the defendants pay the costs of both courts.


text:
    James H. Stevens et al. v. Sarah A. H. Stevens, Administratrix.
    Under Article 1057 of the Code of Practice, the judge is authorized to order execution against an administrator personally, wlio makes a vague and insufficient answer to a rule, under Articles 1088, 1056, C. I5., taken by creditors whose claims have been fixed by a final judgment upon the administrator’s account.
    APPEAL from the District Court of the Parish of Morehouse, Richardson, J.

      McGuire fy Ray, for plaintiffs.
    /. D. Benton, for defendant and appellant.
   Spofford, J.

A judgment final upon the account of the defendant as administratrix, was rendered in this court, at its last term, fixing the amounts to be paid certain creditors out of funds of the succession shown to have gone into her hands.

Upon this judgment becoming executory in the court below, the creditors in whose favor it was rendered, had the same notified to the administratrix, pursuant to Article 1055 of the Code of Practice. She answered that she had no funds. The creditors then took the rule required by the Article 1056, to compel the administratrix to prove the truth of her declaration, by filing in court a brief statement of her condition with regard to said succession.

Her answer was vague, unsatisfactory and insufficient. The judgment of this court, upon the account of administration, had fixed the amount of the fund in her possession applicable to the claims of the complaining creditors.

Under Article 1057 of the Code of Practice, we think the judge was authorised to order execution against her personally.

The appellant, however, complains that the judge improperly refused to allow her to file an amendment to her answer to the rule. There was no error in this refusal. She sought by that answer to re-open controversies which had been adjudged. She could not plead a newly discovered receipt, existing long before the trial upon plaintiffs’ claims, as an offset to the judgment they had obtained. Her only remedy was by a proceeding to annul the judgment. The payments attempted to be pleaded in this amended answer were too indefinitely set forth to justify any arrest of the proceedings under the judgment rendered by this court in July last.

Judgment affirmed.


text:
    Martha Jordan et al. v. Wm. Saunders et al.
    Wlioro the condition of tho appeal bond for actcvolutivc appeal, is only for payment of tho costs of tho appeal, tho appeal will ho dismissed.
    Tho defect in the original bond cannot bo cured by the substitution of another bond, after motion made to dismiss the appeal.
    APPEAL from the District Court of the parish of Bossier, Drew, J.

      R. J. Looney, for plaintiff.

      Kilpatrick and Fort & Duncan, for defendants and appellants.
   Merrick, C. J.

There is a motion to dismiss the appeal in this case. The condition of the bond, the appeal being devolutive, is as follows, viz :

“Now, therefore, the condition of the above obligation is such that if the said William Saunders shall prosecute his said appeal with effect, or shall pay all the costs of this appeal, then, and in such case, the above obligation to be void, otherwise to remain in full force and virtue.”

It is objected that the law requires the bond to be given to secure the payment of the costs both of the Supreme and inferior court; And so it has been adjudged. Byrne v. Riddell, 4 An. 3; Driggs v. Ballard, 3 An. 135: Code of Practice, 578.

An attempt has been made since the continuance of this case last year to cure this delect. ' It appears by a supplemental transcript presented at the present term, that in August last the appellant applied to the District Judge to present an additional ajipeal bond, which was received by the District Judge by tho following' order, in the case entered on the minutes:

Martha Jordan et al. v. William Saunders et al.—Petition filed by Messrs. Fort & Duncan for a new appeal bond, and asking for a supplemental transcript to the Supremo Court, whiclj was ordered.”

This attempt to cure the defect in the original bond cannot avail the appellant. His appeal must bo tested by the state of facts existing at tho time it was filed, and, his bond being defective, it cannot be cured by the substitution of another. Dunlap, Moncure & Co. v. G. R. Price, 10 An. 155.

The dismissal of the appeal at this late clay, as appellant suggests, may operate as a very great hardship upon him, but the authorities are in point, the motion to dismiss being duly filed at the last term of the court, and wo feel constrained to give them their application in the present case.

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

Spofford, J., having been of counsel, recused himself.


author: Merrick, C. J. Si’opeord, J.,

text:
    State v. Johnson Doyall.
    A District Judge lias no power to summon a jury, at tho timo fixed by law to hold tlic regular probate term of the court.
    APPEAL Horn the District Court of the Parish of Franklin, Barry, J.
    District Attorney, for the State.

      Crawford, for defendant and appellant.
   Merrick, C. J.

By law the probate term of the District Court for the parish of Franklin is fixed for the third Monday of December. Acts 1855, 494. Tho 7th section of the same statute provides, “ That at the jury terms preference shall be given to jury causes, at the probate terms to probate causes. No jury shall be summoned for the probate terms.” Ibid, 492.

The indictment in this case for carrying’ concealed weapons, was found by a Grand Jury, sworn and empannelled for the third Monday of December, 1855, (Dec. 17th,) the day fixed by the statute for the commencement of the probate term of the court. The motion to quash the indictment having' been filed in time ought, it would seem, to have prevailed. But it is objected that there is another statute which allows the District Judges to hold adjourned or special terms whenever they may consider it necessary. This must he construed in such a manner as not to conflict with other positive provisions of law. The law says no jury shall be summoned at a probate term, and fixes the time of the commencement of such term. How can the Judge change a term of the court fixed by law for one particular class of business, and call a Grand Jury, when the statute has expressly prohibited the calling of a jury ?

Being of the opinion that the Grand Jury was illegally formed, and the indictment insufficient for that cause, it is unnecessary to pass upon the other questions raised by the appeal.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that the indictment in this case be quashed, without prejudice to any right tho State may have to renew at a legal term the proceedings in the lower court.

Si’opeord, J.,

dissenting. The same statute which fixed the third Monday of December for tho regular probate term of the District Court in the parish of Franklin conferred the power upon the Judge of that district to hold adjourned or special terms of his court whenever he might find it necessary, at which terms all business, civil and criminal, might be transacted as if it were a regular term ; and, if necessary, to order the Sheriff to summon a jury to attend the court. Sec. 26, Act March loth, 1855, p. 495

Construing all the parts of this statute together, I think there is no reason for quashing the proceedings in this case. The District Judge deemed it necessary to hold a special jury term of his court on the third Monday of December, 1855. It might well have happened, that there were no probate causes in contestation at that time'. At any rate, the District Judge was sole arbiter of the question of tho necessity of holding a jury term then. And, I think, under the statute, he had power to hold a special jury term, instead of the regular probate term, if, in his judgment, the public interest required it.


author: Merrioic, 0. J.

text:
    Vicksburg, Shreveport and Texas Railroad Company v. Thomas L. Terry.
    Whore a contract was alleged to have been made, by which the agent of a company bound himself to a party subscribing for stock, to take it off Ins hands at the expiration of a certain time—Iíéld: that to be binding, such a contract should have been reciprocal so that olther party might enforce it.
    APPEAL from the District Court of the Parish of Claiborne, Richardson, J.

      McGuire S Ray, for plaintiff.

      J. Young, for defendant and appellant.
   Merrioic, 0. J.

The defendant having been sued for certain installments of stock of said company, cited one S. P. Gee, as warrantor, under the allegation that at the time he subscribed to the stocks Gee acted as the agent of the company, and defendant was induced to subscribe the stock by the false representations of Gee, who promised and bound himself to take said stock off the hands of respondan!” There was judgment against defendant for the installments of stock and interest due the company, and in favor of the defendant on his demand in warranty against Gee. for the like sum and interest. Gee alone appeals.

The testimony on the demand in warranty consists of two depositions. The one contains a detail of a conversation of the defendant Terry, at a time when Gee was not present, and the other of a like conversation with Gee when Terry was not present. This testimony is far from satisfactory. But if it be conceded that it proves what Pool states that Gee admitted, that at the time the stock was subscribed he, Gee, the agent, told Terry that he would take it off his hands at the expiration of twelve months, it will not enable the defendant to recover, for, in order to become a binding contract it should appear that the offer was not only seriously made but was accepted. It should have been reciprocal. A contract which Gee could have enforced as well as Terry. But this is not all, before he could have demanded the price of Gee he should have done all in his power to make a transfer of the stock, and should have made an offer so to do. C. 0. IDOL 1908. The 16th section of the original charter of the company does not dispense with this obligation on the part of Terry. This section seems to look to the interests of the company rather than the effect of contracts as to the stock between the parties.

Whether Gee could in any event under the contract, as alleged to be proven by the testimony of Pool, be held for the interest upon the installments of stock, is a question not necessary at present to decide.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court in favor of the defendant, Terry, and against the warrantor, 8. P. Gee, be avoided and reversed, and that there be judgment in favor of said Gee, as in case of a nonsuit, the defendant, Terry, paying the costs of both courts.


author:
Cole, J.
     Merrick, O. J.

text:
    J. B. Benefield v. T. O. Hines.
    The Police Javy of a parish have the power to impose a tax on drinking houses within the limits of an incorporated town in the parish, although the town by its charter is empowered to grant licenses for that purpose.
    PPEAL from tlic District Court of the parish of Catahoula, Richardson, J.

      Crawford fy ilawldns, for plaintiff and appellant.

      R. H. Cuny, for defend-
    ant.
   Cole, J.

This is an injunction sued out by plaintiff, to prevent the salo of his property, which had been seized and advertised for sale, to satisfy the sum of one hundred dollars, claimed by the defendant, as Parish Tax Collector, to be due the parish of Catahoula by plaintiff, as parish license for the year 1856, as a keeper of a grogshop.

There was judgment for defendant, and plaintiff has appealed.

It is contended by appellant, that the 10th section of the Act of incorporation of the town of Trinity, in the parish of Catahoula, (Sess. Acts, 1850, p. 49,) empowers the authorities of the town to lay and collect taxes upon all grogshops within the limits of the corporation ; that the parish is not authorized to impose a tax on grogshops, because the 12th section of the said Act ordains : “ that said corporation, in all things not herein provided for, shall be and remain subject to the authority of the Police Jury.”

And inasmuch as the Act provides for the licensing of grogshops, the corporation of Trinity is not, as to this, subject to the Legislative power of the Police Jury.

This argument is untenable. The law relative to Police Juries, (Revis. Stat., p. 409, § 18 and 19,) authorizes them to collect a certain amount from all keepers of billiard tables and grog-shops; as then there is no provision for this, in the Act of incorporation, it remains subject to the authority of the Police Jury.

It is also argued by plaintiff, that the power of Police Juries or towns to grant licenses to grogshops, is derived alone from the Act of 1855, relative to drinking houses,” (Revis. Stat., p. 186) and “ that the same section of the Act which bestows this power upon the Police Juries, accords it also to incorporated towns, and that neither, in this respect, can exercise any control over the other; and further, that this Act destroys the right of a Police Jury to license a grog-shoji in an incorporated town.”

This Act grants to the Police Juries of the several parishes, the municipal authorities of the several towns and cities, and the Board of Aldermen and Assistant Aldermen, together with the Mayor, of the city of New Orleans, the exclusive power to make such laws and such regulations for the sale or prohibition of the sale of intoxicating liquors, as they may deem advisable, and to grant or withhold licenses from drinking- houses and shops, within the limits of any city, ward of a parish, or town, as the majority of the legal voters of any city, ward of a parish, or town, may determine by ballot, and the State relinquishes all right to grant lieensos in any town, city or parish, in which it is not granted by the authorities ; but whenever any licenses may be granted, the State shall have power to collect the tax coming- to the State for such licensed drinking- houses or shops.

Tho intention of this Act was to promote the cause of temperance ; it does not deprive Police Juries of the right of collecting the amounts that may be legally due their respective parishes for the sale of ardent spirits, when their sale is permitted within the incorporated limits of a town by a majority of its legal voters.

We would observe, in conclusion, that the question was not raised by appellant in his brief, whether the sum demanded by the Tax Collector exceeds the precise amount of tho per centum extended over the State tax roll for the year 1856, and further, that the evidence does not establish that such was the case. Rev. Stat. p. 410,119. '

Judgment affirmed with costs of appeal.

Merrick, O. J.

I concur in the opinion of my colleagues, that sec. 12 of the Act of incorporation of the town of Trinity, does not exclude the right of the parish of Catahoula to assess taxes upon the ordinary objects of taxation. But in my opinion, the assessment can only be made by extending a certain per centum over the State tax roll, and the Police Jury is deprived of all power to pass a special ordinance upon any subject of taxation, differing from the per centum assessed on such tax roll. Acts 1847, p. 85, sec. 5, 6 and 8,1848, p. 105, sec. 1.

Under the Act of 1855, p. 178, (Revis. Stat., p. 186) the town of Trinity, by the vote which its authorities are obliged to cause to be taken, has the exclusive right to determine whether the sale of spirituous liquors shall be allowed or prohibited. If the Police Jury had the power to tax retailors of spirituous liquors ad libitum, it would bo inconsistent with this exclusive right in the town; for the tax might be placed so high by the Police Jury as to amount to a prohibition, notwithstanding the voters had voted to grant licenses.

But whenever the inhabitants have voted for the sale of spirituous liquors, then the retailers of such liquors become responsible to the State for the' amount of the State tax assessed upon them, and tho per centum of parish tax assessed over tho State tax roll, and which applies to all objects of taxation, including retailers of spirituous liquors in quantities less than one gallon, and keepers of billiard tables.

In this case, it is admitted, it is true, that “ the amount of license assessed by the Police Jury for the year 1856, on retailers of spirituous liquors in less quantities than one gallon, was one hundred dollars; but the counsel appears to use tho terms license and tax as synonimous.

It is not therefore clear, that the sum demanded by the Tax Collector is the precise amount of the per centum extended over the State tax roll for the year 1856. It is therefore the duty of those enjoining the collection of taxes, to show that they are certainly illegal. See Rev. Stat., 460, sec. 3.

On these grounds, I concur in the decree in this case.


author: Srofford, J. Spofford, J.

text:
    Alfred Clarkson et al. v. H. Clarkson, Executor.
    A testator is not allowed by law to bequeath to a stranger a usufruct for life of liis whole estate when he has forced heirs. “No charges or conditions can bo imposed by the testator on the legitimate portion of forced heirs.” 0. 0.1703. “ IÍ the disposition made by donation inter vivos or moriis causa bo of an usufruct, or of an annuity the value of which exceeds the disposable portion, the forced heirs have the option, either to execute the disposition, or to abandon to the donee the ownership of such portion of the estate as the donor had a right to dispose of.” C. C. 1486.
    APPBAL from the District Court of the parish of Ouachita, Richardson, J.

      J. T. Ludeling, for plaintiff.
    C. H. Morrison, and Garrett & Renton, for defendant and appellant.
   Srofford, J.

Elizabeth Clarkson, deceased, wife of Hudson Clarkson, the defendant, by her last will and testament bequeathed one-third of all the property that she might be owner of at the time of her death, to the children of her son, Alfred Clarkson, over and above their legitimate portion, should they be her forced heirs at that time; and the remainder of her property to be equally divided between her legal heirs; provided, however, that should her husband, Alfred Clark-son, survive her, he was to have the possession, use and usufruct of all her estate during his natural life, provided he did not waste the same. She also appointed her said husband executor of the will, and upon her death, in 1856, he assumed that office.

Elizabeth Clarkson left but two forced heirs, her son, Alfred Clarkson, one of the plaintiffs in this suit, and a grandson, Albert Clarkson.

These parties have sued the executor and surviving husband of the deceased, to reduce the legacy to him of the usufruct of the entire estate for his natural life, upon the allegation that it was an excessive donation mortis causa, made in fraud of their rights as forced heirs to one-half of the decedent’s estate. A partition is also claimed. The District Judge fixed the value of the usufruct bequeathed to the surviving husband at $800, and decreed that this legacy, coupled with the bequest of one-third of the estate to Alfred Clarlcson’s children, exceeded the disposable portion, and that they must be reduced pro rata, and the succession partitioned accordingly.

The defendant has appealed.

If the bequest of the usufruct of the whole estate to Hudson Clarkson, and of cne-third of the naked property to the children of Alfred Clarkson, taken together, did not exceed the disposable portion, it is manifest that the judgment reducing the legacies was erroneous.

It is agreed that the whole estate, as inventoried, amounts to $4,340, and that the debts amount to $708. The deceased then was worth $3,632. There, being but two forced heirs, one-half of this sum, or $1,816, was the legitime reserved by law to them, and the other half constituted the disposable portion. O. 0.1480.

As a part of their case, the plaintiffs undertook to prove the present value of the usufruct bequeathed to Hudson Clarkson, the father of one of the plaintiffs and grandfather of the other. The District Judge assumed the highest estimate placed upon it by any of the plaintiff’s witnesses, to wit, $800. Although other evidence in the record would seem to show that this estimate is too high, we may assume it to be correct so far as that matter affects the legal conclusions to which we are driven. The District Judge appears to have added that sum to one-third of the inventoried value of the whole succession, less the debts (to wit, $1,210},) in order to ascertain whether the donations to the prejudice of forced heirs exceeded the disposable quantum. The sum. is $2,010}, or $194} more than the disposable portion.

The error of this calculation consists in the assumption that the testatrix bequeathed one unincumbered third of her succession to her grandchildren, the children of Alfred Clarkson. She only bequeathed to them one-third of her estate, in naked ownership, subject to the usufruct in favor of her husband. If that be rightly appraised at $800, one-third of it, or $266}, must of course be deducted from the inventoried value of the property bequeathed to Alfred Clarkson’s children, in order to estimate the present or real value of the legacy to them. Deducting this sum from $1210}, leaves $944 as the real or present value of the bequest in their favor. Add this sum to $800, the estimated present value of the bequest to Hudson Clarkson, and we have as the sum' total bequeathed away from the forced heirs, $1,744, or $72 less than the disposable portion.

Of course, the same result will be produced by ■ the converse calculation. The legitime of the plaintiffs, as already stated, is $1816. The testatrix has left to them expressly in her will two-thirds of her estate in naked ownership. That proportion of her estate as inventoried would appear to be $2,421}. .But that is subject to an usufruct in favor of Hudson Clarkson for his natural life. If the usufruct of the whole property for that term is worth $800, the usufruct of two-thirds of it must be worth $533}. Deduct that sum from $2,421}, and we have $1,888 as the present value of the property left by the will to the forced heirs, that is, $72 more than the legitime which is of right reserved to them. .

And so the complaint of the plaintiffs, upon their own showing, appears to bo without a legal basis, so far as a reduction of the legacies is claimed.

But we are referred, in the appellee’s printed argument, to the Article 1486 of the Civil Code, copied from Article 917 of the Napoleon Code. “ If the disposition made by donation inter vivos or mortis causa be of an usufruct or of an annuity, the value of which exceeds the disposable portion, the forced heirs have the option either to execute the disposition, or to abandon to the donee the ownership of such portion of the estate as the donor had a right to dispose of.

The weight of authority in France seems to be, that by the “ usufruct exceeding the disposable portion ” referred to in this Article, is meant an usufruct of more than the disposable portion of the revenue. 3 Marcadé, pp. 449, 50.

But, if it be conceded that the donation of the usufruct of the whole estate in this case, is within the prohibition of the law, still the plaintiffs have not signified their readiness to abandon to Hudson Clarkson and Alfred Clarkson’s children one-half of the succession in full ownership, which is required by Article 1486, as the only alternative by which they can escape executing the disposition in favor of Hudson Clarkson. Should they do so, it would then seem that Hudson Clarkson alone would profit by the abandonment, although we do not express a final opinion upon this point. For Alfred Clarkson’s children are not forced heirs. The present value of the legacy to them, as already shown, is $944. No reduction of this sum would be necessary, if the plaintiffs should abandon one-half of the estate. That would leave $872 as the share of Hudson Clarkson in full property, or $72 more than the estimated present value of the usufruct bequeathed to him.

The plaintiffs not having tendered this sum to him, nor abandoned one-half the estate in Ml ownership, no decree upon this branch of the case, as presentee, by the plaintiff’s brief, can be made.

It is, therefore, ordered and decreed, that the judgment appealed from be avoided and reversed, and the suit dismissed, plaintiffs paying costs in both courts. '

Same Case—Ok a Re-hearing.

Spofford, J.

Upon a reconsideration of the facts of this case, and especially considering that the plaintiffs have acquiesced in the judgment of the court benw which ordered the defendant, in lieu of the usufruct bequeathed to him, to take in full property the disposable portion, we have come to the .conclusion that a sufficient abandonment is shown, to entitle the plaintiffs to recover.

Upon the other point, on which a re-hearing was granted, we are of the opinion that the law intended to cast upon the forced heir a certain part of the succession in full property, and that, to allow a testator to bequeath to a stranger an usufruct for life of his whole estate, (when he has forced heirs,) would bo to impair the legitime reserved to such heirs of right. “No charges or conditions can be imposed by the testator on the legitimate portion of forced heirs.” O. 0.1703.

There is great force in the reasons given by French authors for the doctrine which, as already stated, appears to prevail among them, that an usufruct of more than the disposable portion of the revenues is an usufruct “ exceeding the disposable portion,” in the sense of that Article of the Napoleon Code which corresponds to our Article 1486.

It is, therefore, ordered and decreed, that the judgment heretofore rendered in this cause be set aside, and that the judgment of the District Court be affirmed, with costs.


author: Merrick, 0. J.

text:
    State of Louisiana v. W. W. Smith.
    No special legislative enactment is necessary to authorize District Attorneys, cither with or without instructions from the Governor, to bring suits to annul patents granted by the State.
    APPEAL from the District Court of the Parish of Caddo, Creswell, J.

      Hodge, Landrum and Land, for appellee.
   Merrick, 0. J.

Defendant’s counsel states the case for our consideration as follows, viz :

“ This suit was instituted by Hinton Smith, District Attorney, at the instance and request of the Governor, to annul a patent issued by the State to the defendant for a tract of land known as Silver Lake, purchased by him under the Act of the Legislature “ authorizing the Register of the Land Office to sell certain shallow lakes in the State of Louisiana.” See Acts of 1853, p. 257.
“ The defendant excepted to the right of the District Attorney to institute this suit without legislative authority. The exception was sustained, and the suit dismissed. The District Attorney has taken this appeal.”
“ The right af the Slate to sue is not in question. The right of the District Attorney to institute this suit without legislative authority is the question for determination.”

The State of Louisiana, as a sovereign, would be singularly deficient in power, if there did not at all times exist in some of her officers a capacity to institute suits and take out legal measures on her behalf to protect her rights, without awaiting the tardy action of the Legislative department, which is in session only sixty days each year.

Consequently, we might confidently expect to find such power granted by the Constitution and the laws. On looking into the Constitution, wo find the powers of the State distributed into three departments, legislative, executive and judicial. Arts. 1 and 2.

' Article 38 declares that the supreme executive power of the State shall be vested in a chief magistrate, who shall be styled Governor of the State of Louisiana.

As these powers are subsequently defined by the Constitution, it is supposed that Article 55 which declares that “he shall take care that the laws be faithfully executed,” limits his power to a mere execution and enforcement of the laws. To an argument of such extreme nicety it may be replied, that if the laws give the State of Louisiana the land in controversy, it is but an execution of the laws to enforce them, through the intervention of the judiciary.

The Governor, therefore, was authorized to give the instructions to the District Attorney.

And the Attorney was authorized to institute this suit either with or without such instructions. Sec. 8 of the Act of 1855, p. 369, makes it the duty of the District Attorneys to pursue on behalf of the State such legal measures as they may deem expedient, for the recovery of all claims of the State, the recovery of which is not otherwise provided for, and to report their proceedings annually to the Auditor before the meeting of the Legislature.” Revised Statutes, p. 183.

The next section, granting the District Attorney five per cent, on all “ amounts by them recovered and paid to the State,” does not necessarily limit the more general terms used in the preceding section.

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


author: Sposwrd, J.

text:
    John H. Reynolds v. Mayor and Trustees of Shreveport.
    Tlio ordinances of an incorporated town directing work to "be dono upon streets, and not involving tlio necessity of giving out obligations beyond wbat tlio current revenues of the town may meet., are not within the prohibitory Act of the Legislature of March 15th, 1855, which declares that the authorities shall not contract any debt or liability without providiug, in the ordinance creating the debt, the means of paying the principal and interest.
    Whore it is alleged that a municipal corporation has executed alawful power in an injurious and malicious . manner, the presumption will be in favor of the propriety and good faith of the acts of the corporation, and a complainant must make out a clear case of willful oppression to obtain relief from the courts.
    APPEAL from the District Court of the Parish of Caddo, Creswell, J.

      A. B. Levisee and Land S Winans, for plaintiff and appellant.

      Landrum <6 Williamson and J. W. Jones, for defendant.
   Sposwrd, J.

The plaintiff, owner of throe improved lots fronting upon Texas street in the town of Shreveport, sued the town for a large amount of damages alleged to have been sustained by him, in consequence of an ordinance passed by the Mayor and Trustees, in the year 1856, fixing the grade of Texas street; ho averred that, in pursuance of the said ordinance, the street in front of his lots had been dug down several feet, leaving his buildings high above the present level of the street, causing the side-walk in front of them to crumble away, thus rendering them difficult of access, destroying or impairing Ms rents, and making it necessary for him to go to great expenso in excavating Ms lots and lowering his buildings, so as to accommodate them to the new grade.

He alleged that his property had in this manner, been expropriated without process of law, and Ms vested rights violated, and that he was entitled to compensation in damages. .

He also alleged that the grade of Texas street had boon fixed by a previous ordinance of the same corporation, in the year 1846, which was in the nature of a contract, upon the faitli of which, as establishing a permanent grade, he bought the property injured, and that the town was therefore liable to pay him the damages caused by the new grade, in consequence of their breach of contract.

He further alleged that the ordinance of 1856 fixing the new grade, and the works done in pursuance thereof, were an unwise, reckless and useless exorcise of power not legally vested in the Mayor and Trustees, who acted in the promises without due regard to his rights, or to the interest of the public.

The defendants pleaded a general denial. There was a judgment in their favor, and the jfiaintiff has appealed.

From the proof it is indubitable that the plaintiff has been subjected to some present inconvenience, loss and expense in consequence of the new grade. Whether, on the whole, the projected improvement of Texas street, of which this change of grade is the commencement, will result in ultimate damage to the plaintiff’s interests, is left more in doubt. But, for the purpose of our investigation, we may assume that he is damaged. It is not every act of man, causing damage to another, which obliges the former to repair it, but only every faulty or wrongful act. C. C. 2294; 5 Marcadé, 266; Donovan v. New Orleans, 11 An. 711. If, therefore, this municipal corporation, in changing the grade of Texas street, acted in pursuance of a power vested in them by law, and acted without fault, the plaintiff has no ground of action against them, even if he has suffered a loss. In such case it would be a loss without an injury.

We have, then, first to ascertain the powers of the Mayor and Trustees of Shreveport with regard to streets. They are of the most ample description. That town was incorporated by the Act of March 20th, 1839. Sess. Acts, 200. By the 6th section of that Act the Trustees, or a majority of them, one of whom shall be the Mayor, are empowered “ from time to time to make such by-laws in writing, not inconsistent with the laws and Constitution of this State, or of the United States, as they may deem proper, in relation to public markets in said town, and relative to the streets, alleys and highways therein, draining, filling up and keeping in order and improving the same.” A now Act of incorporation was passed and approved March 16th, 1850, (Sess. Acts, 123,) by the 8th section of which it was again declared that the Trustees, or a majority of them, one of whom shall be the Mayor, shall form a quorum for the transaction of business, shall meet at their own adjournments, shall have powers, from time to time, to enact and provide for the promulgation of such by-laws and ordinances, not inconsistent with the laws and Constitution of the State, and the United States, as they may deem proper, in relation to the public markets of said town, to the landings, streets, alloys and highways therein, and to the opening, widening, draining, filling up, keeping in order and improving the same, to nuisances in general, to the town patrol, to the police of slaves and public houses, and to the assize of bread and meat, and they shall have power generally to made all such other rules and regulations as may relate to the good ordering, government, improvement and the police of the town.”

A power “ to make ordinances in relation to the streets, to the opening, widening, draining, filling up, keeping in order and improving the same,” necessarily implies a power to fix the grade thereof, and to level them to that grade. In a town built, like Shreveport, upon an uneven bluff, the exercise of such a power will naturally leave some lots above and some below the artificial grade. And, if the proprietors of adjacent lots wish to have them upon a level with the street thus artificially graded, the lots must bo excavated or filled up as the case may be. Now, if the town is liable for all damages to adjoining proprietors, in consequence of exercising, no matter how discreetly, its legal prerogative of fixing the grade of a street, it would follow that the town should pay every owner of a lot the cost of raising or lowering it to the level of the grade. We are not aware that such a doctrine was ever contended for. Stripped of all the aggravating accompaniments of expropriation, breach of contract, and wanton abuse of power, the proposition must bo admitted that the town of Shreveport, discreetly exercising its legal right to grade and improve its streets, is not bound to grade and improve, or pay for grading and improving the adjacent lots of private persons, so as to make them correspond with the street. It would require a special law to make a municipal corporation, in the judicious exercise of an undoubted power thus conferred upon it by the Legislature, liable for such consequential losses by individual proprietors. As was said in the case of Radcliffe’s Executors v. Mayor, etc., of Brooklyn, 4 Comstock, 207: “ The opening of a street in a city is not necessarily an injury to the adjoining land-owners. On the contrary, it is in almost every instance a benefit to them. The damage which they sometimes sustain, because the level of the street docs not correspond with the level of their land, is usually more than compensated by the increased value which the property acquires from having a now front on a street. In some instances the land-owner will suffer a heavy loss, and this case may perhaps be one of the number ; but it is damnum absque injurio,, and the owner must bear it. He often gets the benefit for nothing, when the value of his land is increased by opening or improving a street or highway ; and he must bear the burden in the less common case of a depreciation in value in consequence of the work. * * * * * * Whether in cases of this kind the Legislature ought, as a matter of equity, to provide for the payment of such damages as are merely consequential, we are not called upon to decide. It is enough for us to say that a law which'makes no such provision is not for that reason unconstitutional and void.” In the same case it •was said that “ there is a class of cases directly on the point in judgment, which hold that persons acting under an authority conferred by the Legislature to grade, level and improve streets and highways, if they exercise proper care and skill, are not answerable for the consequential damages which may be sustained by those who own lands bounded by the street or highway. And this is so, whether the damage results either from cutting down or raising the street; and although the grade of the street had been before established, and the adjoining land-owners had erected buildings with reference to such grade.” The learned Judge who pronounced the opinion, (Oh. J. Bronson,) after declaring that this doctrine had never been denied in any well considered judgment, cited in support of it 4 T. R. 794; 2 B. & C. 703; 2 Hill, 466; 1 Denio, 595; 3 Barb. 459; 9 Watts, 382; 8 Watts & Sarg. 85; 6 Wheat. 593; 17 Wend. 667.

We find nothing in our law inconsistent with the principle upon which the case of Raddiffe, in 4th Comstock, is grounded. The Article 663 of the Civil Code does not relate to the powers of cities with regard to streets which they are authorized to open or improve.

But their power is not absolute, arbitrary and unlimited. They may not expropriate lands, or divest vested rights, without adequate compensation previously made. But there is no ground ior contending that there was any expropriation or divestiture here. The corporate authorities never entered upon the plaintiff’s lots at all. They have not interfered with his title or his possession. No part of his property has been taken for the public use. The damage complained of is not the result of any divestiture of rights belonging to the plaintiff) but is merely consequential upon the exorcise of a power specially granted by law to the town authorities over a street dedicated to the public, and of which the authorities have the exclusive administration.

The plaintiff, however, contends that the power was exercised illegally in this instance because it was in violation of a tacit contract resulting from a previous ordinance fixing a grade for the same street in the year 1846, which was a finality. No contract between the town and the plaintiff or any of the authors of his title is, however, proven. Nor would the rejected evidence have been sufficient to prove a contract which would bind the corporation not to change the grade of 1846. The grant of power in the legislative Acts already cited is, in its very terms, a continuing power, and not a power to be exhausted as soon as exercised. The Mayor and Trustees are authorized “ from time to time” to make such ordinances relative to streets, etc., as they may deem proper. They did not declare the grade of 1846 to be a finality. And, if they had, the better opinion would seem to be that such a declaration, tying up the hands of their successors in violation of the legislative grant of an enduring power, would be void.

In the case of Goszler v. the Corporation of Georgetown, 6 Wheaton, 593, that corporation, under a legislative grant of power to make such ordinances as they might judge necessary, for the graduation and leveling of the streets, &c., in 1799 exerted the power thus conferred, with regard to certain streets, and, at the same time, further ordained that the said level and graduation “ should forever thereafter be considered as the true graduation of the streets so graduated, and be binding upon the corporation, and all other persons whatever, and be forever thereafter regarded in making improvements upon said streets,”

The plaintiff, Goszler, owned lots upon one of these streets, and made improvements according to the graduation fixed by the ordinance of 1799. Afterwards, in 181G, the corporation passed another ordinance, directing the level and graduation of this street to be altered; and the commissioners appointed being about to cut down the street by the plaintiff’s house, he enjoined them from proceeding, by a bill filed against them and the corporation. Upon a hearing, the bill was dismissed by the Circuit Court, and, upon appeal by the plaintiff to the Supreme Court of the United States, the decree was affirmed. O. J. Marshall, as the organ of the court, declared that the power to graduate the streets was a continuing power, and that the attempt of the corporation, in 1799, to restrain their successors from exercising it again, by holding forth promises to builders, transcended their authority. It is not necessary for ns to go so far, in order to maintain the judgment in the present case.

The plaintiff here has alleged that the action of the Mayor and Trustees was unnecessarily and wantonly injurious to him. A municipal corporation may execute a lawful power in such an injurious and malicious manner, as to justify a claim for damages, as is shown by many precedents. But, when the subject-matter is within the scope of their-corporate powers and duties, the presumption is over in. favor of the propriety and good faith of their conduct, and the complainant must make out a clear case of willful oppression to obtain relief from the courts. See Police Jury of West Baton Rouge v. Bozman, 11 An. 94; Dubose v. Levee Commissioners, Ib. 166-7; Avery v. Police Jury, 12 An. 554.

This presumption is founded in reason, as well as sanctioned by law. For the Trustees of a town are chosen by the citizens for the express purpose of regulating the streets, and have bettor means of judging concerning the wisdom of a proposed improvement, than a court is likely to obtain from the mere opinions of witnesses. Their interests are generally identical with those of the property holders and the public, and they have no motive to act oppressively or unjustly.

The opinions of witnesses in this case as to the best mode of draining and improving Texas street (which seems to have been the main object of the Trustees), are somewhat various and discordant. There is no shadow of ground to suppose that the Mayor and Trustees intended maliciously to injure the plaintiff or sought any other end than the improvement of the town. The evidence is wholly insufficient to enable us to say that the new grade was as alleged, unwise, uncalled for, reckless, and unnecessarily destructive of the plaintiff’s interest. And it is some corroboration of the theory that it was not, to find that the plaintiff has not sustained by any evidence his allegation that he protested against the proposed grade before it was accomplished. This would not, of itself, debar him from claiming damages, but it is a circumstance proper to be considered in weighing the evidence upon this branch of his complaint.

Finally, it is urged in argument, though not alleged in the pleadings, that the town authorities were trespassers ah initio, because their ordinances establishing the grade and ordering the work to be executed, were null and void. They are said to be in contravention of a prohibitory law, because they involved the con-tracking of a debt without at the same time providing the means for paying it. By the 4th section of the Act of March 15th, 1855 (Session Acts, p. 326), it was ■provided, “ that the police juries of the several parishes and the constituted authorities of incorporated towns and cities in this State, shall not hereafter have power to contract any debt or pecuniary liability, without fully providing in the ordinance creating the debt, the means of paying the principal and interest of tho debt so contracted.”

The ordinances in question create no specific debt. But if Lespard’s contract for doing the particular work complained of by the plaintiff, be regarded as a part of one of the ordinances, his work amounts only to the sum of $2,300 or $2,400, while the annual revenue of tho town is shown to be about $10,000. The work upon these streets forms a part of the current expenses of the town. Ordinances directing work to be done upon streets and not involving the necessity of giving out obligations beyond what the current revenues of tho town may moot, do not seem to us to be within the meaning of the prohibitory law relied upon by the appellant’s council.

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


author: Spoeeord, J.

text:
    M. J. Wilkins v. A. J. Bobo.
    A surely on a twelve montli’s bond cannot plead discussion.
    'Under tlio Act of March 16tli, 1S54, a person bound as security upon a twolvo montli’s bond, when bo bas paid tlio samo, is subrogated to all tlio rights which tbo original creditor bad at tho time tlio bond was given, or at the time tlio bond was paid by tlio security—when tbo proporty lias boon adjudicated to tbo defendant in tlio judgment, and be is the principal upon tbo bond.
    APPEAL from tho District Oourt of Morehouse, Richardson, J.

      Todd Brigham, for plaintiff and appellant.

      Matthews § IfcFec, for defendant.
   Spoeeord, J.

W. W. Todd, C. L. Norman, Benjamin Temple, J. A. Hollingsworth and Thomas Nosworthy, having obtained judgments against one J. J. Daniels, in the District Oourt for the parish of Morehouse, issued executions thereupon. Under these executions, Daniels gave his twelve month’s bonds with the present plaintiff, M. J. Wilkins, as his surety. These bonds were given in the month of May, 1855. Being unpaid at their maturity, the plaintiffs had executions issued upon them ; Wilkins, the surety, pointed out a certain slave, Edy, worth over eight hundred dollars, belonging to Daniels, upon which the Sheriff, Bobo (defendant herein) undertook, through his deputies, to levy. They proceeded to the plantation, where the said slave Edy was at work; identified her; followed her from the field, to the house where Daniels then was ; served upon him a notice of seizure, and even proceeding into the house to take the slave into actual custody, when Daniels interposed and menaced them with violence, if they attempted to enter. Thereupon they desisted, and made no further attempt to effect an actual seizure. Immediately thereafter, Daniels ran the slave, Edy, out of the Slate and sold her ; and no proporty of his could be found out of which to col-let the twelve month’s bonds before referred to.

Wilkins, the surety upon those bonds, having afterwards paid them, brought the present action against the Sheriff, Bobo, for wrongfully releasing an alleged seizure of the slave Echj, and for negligence in failing to execute the writs of ft. fa., which he had undertaken to execute, thereby obliging the plaintiff to lose the sum of eight hundred and sixty dollars which he was compelled to pay as surety for Daniels.

There was a judgment for the defendant, from which the plaintiff has appealed.

It is true, the plaintiff, who was surety in the twelve month’s bonds, and as such bound in solido with his principal towards the creditors, could not have pleaded discussion. C. C. 3035. And, as the law formerly stood, even upon payment of the bonds, he would only have been subrogated to the rights of the creditors in the bonds themselves, and to no other rights of theirs under their original judgment. Trent v. Calderwood, 2 An. 942; Tardy v. Allen, 3 An. 66; Cole v. Chambliss, Ib. 206; Crow v. Walsh, Ib. 541.

But the Act of March 16th, 1854 (Session Acts, p. 115), made an important change in this respect, in all cases where the judgment debtor himself was the principal in the twelve month’s bond taken under the judgment. As reenacted in 1855, and embodied in the Revised Statutes, p. 543, sec. 4, this statute declares that “ whenever a person bound as security upon a twelve month’s bond, has paid the same, ho shall be subrogated to all Ihe rights which the original creditor had at the time such bond was given, or at the lime the bond is paid by such security ; 'provided, however, that this section shall only apply where the property has been adjudicated to the defendant in the judgment and he is the principal upon such twelve month’s bond.”

Now, at the time the plaintiff, Wilkins, wont forward to pay the amount of these bonds, the judgment creditors who owned them had a right of action against the Sheriff for the neglect of his deputies in suffering property to escape, which was liable to seizure under the writs which those deputies were charged to execute. They knew the property to be liable to seizure and might have seized it. The menaces of the judgment debtor were no excuse to them. In executing the orders and judgments with which they are charged, Sheriffs may enter on the lands and into the house of a debtor, break the doors, &c., and, if resistence be offered, they may require assistance from the neighbors or persons passing by.” C. P., Art. 762.

“ Every Sheriff shall have the power to call for the aid and command the services of every able bodied inhabitant of his parish, to preserve the peace in cases of riot; to execute the process of court in cases where resistance is made or threatened ; and every person so called, who shall refuse to render such assistance, may be punished by fine, at the discretion of the court, not exceeding twenty-five dollars.” Revised Statutes, p. 524, sec. 8.

By neglecting to do their duty, the deputies, for whom the Sheriff is responsible, enabled the debtor, against whom they had an execution, to withdraw from the State Ms only property which they were bound to seize. A right of action thereupon accrued in favor of the judgment creditors for this damage thus occasioned to them, and they were not obliged to wait the possibility of other property being found, or of other persons being made liable for the same debt, before resorting to their remedy against the Sheriff for the amount of their judgments up to the value of the property which his deputies had wrongfully suffered to be withdrawn from their grasp.

To this right of action, then, under the broad terms of the Act of 1854, the surety on the twelve month’s bonds, upon payment thereof, was legally subrogated.

And it is this right of action which ho is hero seeking to exercise. There is a manifest equity, in this instance, in giving him the benefit of the statute ; for it was only by the neglect of the Sheriff’s officers in performing their duty towards the judgment creditors, that this surety has been obliged to pay what his principal might and should have paid.

The Sheriff, upon paying the sums which the surety upon the twelve month’s bonds has been compelled to pay, will be entitled to a subrogation to his rights against Daniels.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed, and that there be judgment for the plaintiff against the defendant for the sum of six hundred and eighty-two dollars and seventy-seven cents, with eight per cent, interest thereon, from the 1st of May, 1855, until paid ; and the further sum of forty-five dollars and thirty-three cents, and the costs of this suit in both courts. And it is further ordered and decreed, that upon payment of this judgment, the plaintiff subrogate the defendant to all his rights as subrogee of William W. Todd, C. L. Norman, Benjamin Temple, J. A. Hollingsworth and Thomas Nosworthy, judgment creditors of J. J. Daniels, against said Daniels, their judgment debtor.


author: Spoeford, J.

text:
    R. P. Davis v. George W. Jelks.
    A party must allege and prove some disturbance or danger of eviction even to require security from Ills vendor,'and much more to stay an order of soizuro and rescind the sale.
    When a party after the sale perfects the title conveyed to him, he is only entitled to receive from Ins vendor a credit upon the price paid him, to the amount which it cost him to perfect his title.
    APPEAL from the District Court of the Parish of Morehouse, Mayo, J.

      W. A. Carpenter and J. W. Boatner, for plaintiff and appellant.

      Matthews c6 McFee, for defendant.
   Spoeford, J.

The plaintiff having bought of the defendant certain lots in the town of Bastrop, the latter procured an order of seizure and sale for the credit portion of the price, after the first installment had fallen due.

The plaintiff enjoined the order upon the allegation that he was defrauded in the purchase, and that the defendant, Jellcs, was really not the owner of the lots, the title thereto being in the parish of Morehouse. lie does not allege any eviction or even disturbance.

Since his petition in injunction was filed, it appears that the plaintiff has pro-' cured a relinquishment of the title of the parish of Morehouse in his own favor, at an expense of eighteen dollars. The District Judge, after giving plaintiff a credit for this sum, dissolved his injunction as to the balance of the defendant’s claim, and the plaintiff has appealed.

Singular as the state of facts disclosed by the record appears, wo are unable to say that the Judge erred. The vague allegation of fraud is only sustained by uncertain inference. And, as it would seem that the plaintiff got possession of the lots, with some valuable improvements, by means of his deed from the defendant, he should have alleged and shown some disturbance or danger of eviction, even to require security from the defendant, and much more to stay the order of seizure and rescind the sale to himself. In acquiring title from the parish of Morehouse, he perfected the title which the defendant conveyed to him, and is only entitled to a credit for what it cost.

An amendment is asked for ■ by the appellee, because under the order of the seizure and sale, the defendant will have the right to retain from the proceeds tho amount of the note for $183 33, due on the 1st March, 1858, which date is now past; by inadvertence this installment seems to have been omitted in the writ.

It is, therefore, ordered, that the judgment of the District Court dissolving the plaintiffs injunction be affirmed. And it is further ordered and decreed, that the judgment dissolving the said injunction be so amended as to order the Sheriff to proceed with the sale of the property seized, not only to satisfy the sum of one hundred and eighty-three dollars and thirty-throe cents, with eight per cent, interest, from 1st March, 1857, till paid, and costs, but also to satisfy tho further sum of one hundred and eighty-three dollars and thirteen cents, with eight per cent, interest from the 1st of March, 1858, with mortgage upon the property seized. It is further ordered, that the costs of this appeal be borne by the plaintiff and appellant.


author: Mebbick, C. J. Spoitoed, J.,

text:
    Parish of Bossier v. L. F. Steele, Sheriff—The State, Intervenor.
    Tho second section of tho Act of tho Legislature, approved tho 19th of March 31857, entitled, <c An Act relative to tho payment of expenses, incident to the prosecution of criminals,” which declares that tho fines and forfeitures to bo collected, for the violations of the criminal laws of the Stale, shall bo paid into the State treasury, is unconstitutional — being in violation of Article 115 of the Constitution, which provides that every law enacted by tho Legislature shall embrace but one object, and that shall be expressed in tho title.
    APPEAL from the District Court of the Parish of Bossier, Brew, J.

      T. M. & B. F. Fort, for plaintiff.

      J. B. Watkins S Loony, for defendant and appellant.
   Mebbick, C. J.

The answer of the appellees, to the appeal, waives the motion to dismiss.

In March, 1857, judgment was rendered against McKeown, and his sureties, in his appearance bond, in a criminal prosecution, for $5000. This judgment was affirmed in July, 1857, hy the Supreme Court. In August, 1857, the money was made on execution, and the present suit is a controversy between the State and the Parish of Bossier for the fund in the hands of the Sheriff. By the judgment of the court below, the Sheriff is directed to pay the money over to tho parish, and the State appeals.

The constitutionality of the Act of the Legislature, approved 19th March, 1857, entitled, “ An Act relative to the payment of expenses incident to the prosecution of criminals,” is brought in question by this appeal. See Act, p. 187. It is eon-tended that the statute violates Article 115 of the Constitution, which provides that: “ Every law enacted by the Legislature Shall embrace but one object, and that shall be expressed in the title.”

The Act in question embraces two sections. The first provides for the payment of all expenses incurred in criminal proceedings by the State, on the certificate of the clerk and presiding judge.

The second section declares : “ That the fines and forfeitures to be collected for the violation of the criminal laws of the State, shall be paid into the State Treasury : provided that nothing contained in this section shall be so construed as to affect, in any manner, the process for collecting fines and forfeitures.”

Heretofore the subject matter of the statutes has been provided for under two or three different heads, and by four different statutes. In 1852, the legislature treated the object embraced in the first section under the title.of “ An Act to change and regulate the expenses of criminal prosecutions throughout the State.” Acts of 1852, p. 188.

In 1853 the object of the second section was provided for, by an Act entitled : “ An Act to give to the parishes the fines and forfeitures collected hereafter for violations of the criminal laws.” Acts, p. 295. In 1854, the same subject was revised by the Act entitled, “ An Act concerning forfeited bonds, recognizances, and fines in criminal prosecutions throughout the State, (the parish of Orleans excepted) ; ” and in 1855 by the seventy-first section of the Act relative to criminal proceedings. Acts, 1854, p. Ill, and 1855, p. 162,151.

It is, therefore, clear, that the statute of 1857 embraces matters divisible into two distinct objects, for it has been so considered and treated by the legislature in the several Acts above referred to. The question then arises—can the Act, (considered as a whole,) be construed to have a single object of a more general nature which is embraced in its title, and which fairly includes the separate subjects of the two sections ? It may be said that, inasmuch as the title of the Act is relative to the payment of the expenses incident to the prosecutions of criminals, that it fairly embraces any provision which tends to reimburse the State treasury the expenses, or to provide the State with money to pay the same. But this reply is not satisfactory ; for if it is so, the legislature might have passed the entire revenue laws, under the title of an Act relative to the payment of the expenses incident to the prosecution of criminals.

Again, suppose a citizen wished to ascertain what disposition the laws make of judgments, in favor of the State, for fines and on forfeited bonds, in criminal proceedings. Would the title of the Act in question give him any clue to the subject ? Could he reasonably expect to find the subject treated of under the head of the payment of costs or expenses ? If he could not, it is clear that the intention of the people, as expressed in convention by Article 115 of the Constitution of T852, has not been carried out by the second section of the Act of 1867, and the same is unconstitutional.

We are forced to the conclusion, that the title to the Act in question does not furnish any fair index to the subject matters of the second section of the same, and that the second section of the statute must either be declared unconstitutional, or Article 115 of the Constitution held to be a dead letter, and that it is impossible to carry its provisions into effect.

Hitherto this court has not faltered in enforcing its requirements, and this case cannot be made an exception to the uniform practice of the court. State v. Hackett, 5 An. 92; Duverge v. Salter et al., ibid. 94; 4 An. 297; State v. Harrison, a slave, 11 An. 722.

It is said by the counsel for the intervenor, that the Act of 1855, relied upon by the opposite counsel, is subject to the same objection as the Act of 1857. It does not so appear to us, and if it were so subject, it would leave in force the statutes of 1852, 1853, and 1854, which are equally favorable to the appellee.

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

Spoitoed, J.,

concurring. I concur in the decree, but not in the reasons given for it.

The Act of March 19th, 1857, (p. 187,) “ relative to the payment of expenses, incident to the prosecution of criminals,” only provides, in its second section, the means of carrying out the provisions of the first section. By the first, the State is directed to pay all the expenses attending criminal prosecutions in the different parishes of the State, (except the pay of jurors,) and by the second, the State is to receive the fines and forfeitures resulting from such prosecutions. The two sections are so interwoven, and relate so naturally to the one main object of the Act, which is to provide for “ the payment of expenses incident to the prosecution of criminals,” as expressed in its title, that I think it requires too subtle an analysis, to bring it into conflict with Article 115 of the Constitution.

But I concur in the conclusion of the district judge, because it seems to me that the Act of March 19th, 1857, must have a prospective operation only, in all its parts and clauses. The view of the legislature obviously was that the old policy, which required the several parishes to pay the expenses incident to criminal prosecutions, within their respective territories, and to receive, as a fund for doing so, the fines and forfeitures growing out of such prosecutions, should be changed in tato, so as to put the State, in lieu of the parishes, as the disburser of such expenses and the recipient of such funds. The duty to pay, and the right to receive, were intended to bo correlative and to go pari passu. It seems to me that the only sound construction of the Act is, that the State shall pay only the expenses of such prosecutions as might be commenced after the promulgation of the Act, and receive only the fines and forfeitures accruing from such future prosecutions.

This construction frees the present case from all difficulty. The prosecution of McKeown was had, and the forfeiture accrued before the law in question wms promulgated ; the parish of Bossier paid, or is bound to pay, the expenses incident thereto. She is entitled to the resulting forfeiture as well; otherwise, the law would have a retrospective effect, which is ever to be avoided, if possible, and never to be presumed.


text:
    A. Wesson & Co. & A. W. Marshall.
    Tho decision in tho caso of Amis v. The Bank of Louisiana, 9 Rob. 350, ro-affinncd, to tho effect that a residence in tlio State for a sufficient timo to acquire a political domicil, is not required to protect a person’s property from attachment, who is an actual resident of the State.
    APPEAL from the District Court of the Parish of Caddo, Creswell, J.

      Landrum, & Williamson, for plaintiff and appellant.

      Land, Hodge and Austin, for defendant.
   Buchanan, J.

The facts of this case áre identical with those of Winter Iron Works v. Toy, 12 An. 200. In that case we held, that a full uninterrupted twelve months residence in the State, is not required to protect defendant’s property from being attached under the second paragraph of the 240th Article of the Code of Practice; and that the statutes of 1816 and 1818, relate to the acquisition of political rights in this State, by immigrants from other States. This decision followed that of Amis v. Bank of Louisiana and others, 9 Rob. 350, in which a defendant, originally from Mississippi, who had made three crops on land belonging to himself in the parish of Madison, and had passed the greater part of the time in that parish while the crops were growing, was held not to be suable in the parish of Orleans, although there had not been in his case that uninterrupted residence of a year in Louisiana necessary, says the court, to the acquisition of a political domicil.

The decision in Amis v. The Bank, quotes as authority the case of Boone v. Savage, 14 La. 169, from which we may infer, that Judge Bullard, the organ of the court, did not consider the latter case, in which also he had taken part, as inconsistent with the doctrine which he was enouncing.

The facts of the case of Boone v. Savage, are materially different from those of Amis v. The Bank, and from the case at bar. The animus manendi could not possibly be presumed in favor of Savage, for he never removed at all, with his family, to the State of Louisiana, as both Briscoe and Marshall did. It is true, the court quoted the Acts of 1816 and 1818 respecting' residence, but the quotation seems to have been superinduced, by the attempts on the part of the defendant to establish a fictitious domicil in Carroll parish, by making a formal declaration before the parish Judge that he elected that parish as his domicil and future residence. The court remarked that the Articles of the Civil Code under which that declaration was made, apply only to a change of domicil from one parish to the other, by a person already a resident of Louisiana ; and went on to observe, that the only enactments in our statute book, on the subject of the acquisition of a residence in this State, by one who has resided previously in another State, were the Acts of 1816 and 1818. Bullard & Curry, 286, 287.

But the quotation was not at all necessary, for tho decision of the question of Savage’s residence. For his acts being altogether irreconcileable with his declaration, the latter should have gone for nothing, as only intended to defraud the law. See Yerkes v. Broom, 10 An. 95.

In the case of The State v. The Judge of the Court of Probates, 2 Rob. 449, which is one of those relied upon by tho counsel for appellant, the Acts of 1816 and 1818 constitute the basis of the decision, and it must be admitted that those Acts are there made the unqualified tost of tho meaning of the word “ residence,” in every case in which that expression is used in our statutes. A party was there held to be an insufficient surety upon an appeal bond, for want of residence, who had been many years established in business in New Orleans, but whb absented himself every year during- the summer season.

This decision professed to be founded upon that in 14 La., but it clearly went much further, and may be considered as distinctly overruled, as well as that of Rist v. Hagan, 8 Rob. 106, by the case of Amis v. The Bank of Louisiana.

We adhere to the doctrine enunciated in that case.

Judgment affirmed, with costs.


author: Merrick, O. J.

text:
    John R. Marshall & Co. v. Thomas R. Simpson, Sheriff, et als.—Peet, Simms & Co. v. Same.—Consolidated Cases.
    In pointing out property to a Sheriff to seize, it is sufficient to inform him where the property is.
    A bare suspicion that there might ho some difficulty with regard to the title to property pointed out, docs not justify the Sheriff in refusing to seize—his neglect to seize is at his own peril.
    ■Where a party has suffered from the neglect of the Sheriff to make tho seizure, he is only entitled to recover from the Sheriff, and his sureties, the exact amount he would have received, if the Sheriff had done his duty.
    APPEAL from tbe District Court of tbe Parish of Oaddo, Creswell, J.

      Land § Winans, for plaintiffs.

      H. B. Levisee, for defendant aud appellant.
   Merrick, O. J.

“ Tbis is au appeal from a judgment against tbe Sheriff of Oaddo Parish, and bis securities, upon bis bond, for tbe misfeasance of the Deputy Sheriff in not executing two writs of fi. fa., placed in bis hands by the plaintiffs. Tbe judgment is for the value of two slaves, tbe property of Waddill, one of tbe judgment debtors of plaintiff, which bad been pointed out for seizure to tbe Deputy Sheriff, and were,” it is alleged, “ spirited off, in consequence of bis failure to seize.”

The judgment was in favor of the plaintiffs for $2,200, tbe value of tbe negroes, and tbe defendants appeal.

It is contended that tbe property was not properly pointed out by tbe plaintiffs counsel, and, therefore, the Sheriff was not liable for bis failure to seize.

The testimony shows that tbe negroes bad been hired out by an agent of the debtor in execution to W. W. Harper, and that plaintiffs’ attorney directed the Deputy Sheriff to go immediately aud seize tbe two negroes, aud informed him that they would be pointed out to him by Mr. Harper, or bis overseer, who were expecting him.

This was sufficient. It was not necessary that tbe plaintiffs’ attorney should accompany tbe Sheriff to point out the property. It was enough that he had informed the Sheriff where the property was. It then became the duty of the Sheriff to mate the seizure. “As soon as the Sheriff has received the writ, he must execute it, without delay, by seizing the property of the debtor, which he shall find in his parish.” 0. P. 643. Instead of seizing the property without delay, the Deputy Sheriff, it would seem, informed the father of the defendant in execution, that they?, fa. had issued, and in consequence of this information, and the delay in seizing, the defendant in execution was enabled to remove the slaves.

It is further contended that there was doubt as to the title of the property-pointed out, and, therefore, the Sheriff was not bound to seize the property. When the Sheriff was charged with the writ, and directed to seize, it does not appear that he made any objections on account of the title. A bare suspicion that there might be some difficulty in regard to the title, did not justify him in refusing to seize. If he would justify his conduct, under the circumstances of this case, he should show clearly, that the defendant in execution was not the owner of the property. His neglect to seize was at his own peril.

Inasmuch as there wore concurrent judicial mortgages, and the negroes could not have been sold without the costs and expenses incident to the Sheriff’s sale, it is contended by the defendant’s counsel, that the judgment of the lower court is erroneous in allowing the plaintiffs the full value of the slaves.

We think this objection well taken. The Sheriff and his sureties are sued for the acts of the Depúty Sheriff. The plaintiff is only entitled to the exact amount of damages he has sustained. He cannot recover more than he would have received if the Deputy had done his duty. 1 Rob. 292, Bonnabel v. Bouligny; 5 N. S. 126; 9 An. 174.

Plaintiff alleges that he informed the Sheriff that the property indicated, was all the property the defendant in execution possessed in the parish, and it is quite clear, on the facts disclosed in this case, that had the slaves been seized, the creditors holding the concurrent judicial mortgages, would have claimed the application of their portion of the funds (as they did in the case of the slave Fanny) to their own executions and judgments. 16 L. R. 170; 5 An. 313; C. P. 710.

Moreover, had there been a sale of the property, the costs of the execution, made in effecting it, would also have been deducted. In this instance it would merely have been commissions on the amount of sale, as other property had been seized, and the notices and advertisements would have occasioned no additional expense. Making the proper deduction, and allowing plaintiffs their pro rata of the residue, they are entitled to recover $1,853, to be divided between them also pro rata. There is no complaint as to the allowance of interest, and we will render the judgment in the same form as that appealed from.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed ; and it is now ordered, adjudged and decreed, that said John R. Marshall Co. have and recover of the said defendants Thomas R. Simpson, John P. Hailey and Henderson Markham, in solido, the sum of one thousand and fifty-four dollars and twenty five cents, with five per cent, interest thereon, from the 2d day of January, 1857, until paid ; and that Feet, Simms <& Co. also recover of the same defendants, in solido, the sum of seven hundred and seventy-eight dollars and seventy-five cents, with like legal interest thereon, from said 2d day of January, 1857, until paid ; and that the said defendants pay the costs of the lower court, and the said plaintiffs the costs of the appeal.


text:
    Succession of John Boyd, deceased.
    A creditor of an estate, whoso debt operates as a judicial mortgage, and is in a twelve months bond executed by the deceased, cannot cause the property of the succession to be sold for cash, without the benefit of appraisement, to satisfy his claim.
    APPEAL from the District Court of the Parish of Morehouse, Richardson, J.

      Matthews t)- McFee, for plaintiff.

      McGuire Ray, and S. G. Parsons, for appellant.
   Merrick, 0. J.

The appeal is taken in this case by Joseph P. Crosby, a creditor holding a twelve months bond executed by the testator, John Boyd. The question for our solution is thus stated by the appellant’s counsel, viz, “ Has a creditor of an estate, whose debt operates as a judicial mortgage, and is in a twelve months bond executed by the deceased, a right to have property of the succession sold for cash at the first offering, unless it brings the amount of the appraisement on the inventory, according to the Article 990 of the Code of Practice ? ” He contends for an affirmative answer. Although there is much force in the argument that the obligation of the testator to submit his property for sale at the expiration of the twelve months bond for cash, without the benefit of appraisement, devolves upon his heirs, and legatees, and that it is unjust to compel the creditor to await a second sale on a twelve months credit, yet we think that the law has not accorded to such creditor, by a proceeding against the executor, the faculty of causing the property of the succession to be sold for cash, without the benefit of appraisement, for these reasons : the twelvo months bond was the bond of John Boyd. Had he been alive at its maturity, his property could have been sold without the benefit of appraisement; but John Boyd died, and his estate was cast by the operation of law upon Ms heirs, executors and legatees, persons who were neither parties to the judgment, nor the twelve months bond. The judgment could only be made executory against the heirs by a new proceeding, which was likewise necessary to compel the executors to pay the twelve months bond. The heirs and legatees had rights also in the property of the succession, which were to be divested by the sale. Hence, the provisions of the Code of Practice for the sale of the property of successions, became applicable in order to protect the interest of the creditors, heirs and legatees, and the rules in regard to the sale of property under executions cottld not well be applied; for it Was no longer a proceeding between the debtor and creditor, but one in which several persons were interested, none of Whom were parties to the original suit.

Again, suppose a sale should be ordered, at the instance of a creditor, upon a twelve months bond, as prayed for in this case, and property were sold at his instance sufficient to pay his debt. The money then would be paid into the hands of the executor or administrator, and the latter would file his tableau of distribution. Now, the Code does not give the creditor upon a twelve months bond, any privilege upon the property of the deceased, and the money made with so much care would go to the payment of privileges and superior mortgages, if there were any.

As the legatee by particular title, is not liable for the debts of the succession, except in certain cases, it would seem that he must have (as a consequence) the right to protect his legacy from the claims of the creditors, and force them to provoke the sale of other property, except in the cases specially provided. The law in reference to ,a twelve months bond between plaintiff and defendant would not therefore apply, and the party would be driven to demand of the Judge a decree for the sale of such property as might be subject to be sold. C. C. 1626, 1627, 1628, 1635.

The District Judge did not therefore err in ordering the property to be sold, subject to the appraisement, according to Article 990 of the Code of Practice. Neither do we see any error in the decree directing it to be sold, subject to the lease made bj' the executor. It is conceded that the estate is solvent, and there is no doubt but a sale of a small portion of the property, in this form, will bring sufficient to pay all the debts. The incumbrance docs not seem calculated to prejudice the creditor for so small a debt, and no other parties make objection to the same.

It is impossible always to ascertain what amount of property will be required to be sold for the payment of the debts. This can only be judged of by approximation, and it must of necessity be abandoned to the prudence of the Judge in each in individual case. He does not necessarily err when he orders enough to be sold to'pay the debts and meet probable contingencies.

Neither can the residuary legatees or heirs complain, if, after having ordered the movables to be sold, which are insufficient to pay the debts, or are unreasonably delayed in their collection, he orders slaves to be sold. 0. 0.1154.

They can relieve themselves from such order by paying the debts themselves.

We think the District Judge has exercised the discretion vested in him by law in a judicious manner in this case, and that the judgment of the lower court ought to be affirmed. We do not deem it important to consider separately the other points made in this case.

This decision must not be considered as in any manner affecting the decisions of this court, in reference to the executory process on special mortgage, where the mortgagor is deceased.

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


author: Spopitord, J.

text:
    Henry Phelps v. James C. Coggeshall et als.
    Where an attachment has wrongfully issued, the party whose property was improperly attached is entitled to recover the amount of Attorney’s fees, which he has paid to have the attachment dissolved, and all other actual damages which he may prove.
    APPEAL from the District Court of the Parish of Morehouse, Richardson, J.

      McGuire & Ray, for plaintiff and appellant.

      8. G. Parsons, for defendant.
   Spopitord, J.

The plaintiff sues the defendants upon an attachment bond for damages alleged to have been sustained by reason of the wrongful suing out of an attachment process.

The attachment was dissolved, the plaintiffs therein having failed to sustain their averment that the defendant in attachment (the present plaintiff) was about to leave the State permanently.

There was judgment in the present suit, in pursuance of a verdict, for three dollars damages and costs.

It being shown that the attachment wrongfully issued, the party whose property was improperly attached is entitled to recover the actual damages proven.

He has shown that the services of an Attorney, in dissolving the attachment, caused him an expense of one hundred dollars. This should be added to the sum awarded by the jury. Littlejohn v. Wilcox, 2 An., 620; Penny v. Taylor, 5 An. 714.

The want of amicable demand was pleaded in limine litis; but the demand was resisted. There is no occasion, therefore, to charge the plaintiff with costs. It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed, and that there be judgment for the plaintiff against the defendants in solido for the sum of one hundred and three dollars, and the costs of suit in both courts.