author: Spoeeoed, J. Buchanan, J.

text:
    Heirs of Adelaide Bordelon v. Heirs of George Baron.
    The terms “ caused it to be written,? in Arfc. 1574 C. C. mean that the testator must have himself dictated the provisions of a will reduced to writing by another.
    A nuncupative will, written by one who does not understand the language in which the will is dictated, but who receives his instructions from the testator, through an interpreter, is invalid.
    A nuncupative will, under private signature, which has been read, to the testator in a language which he could not comprehend without the aid of an interpreter, is invalid.
    It is necessary to the validity of such a will that the witnesses should understand the language in which it is written and read.
    XX PPEAL from the District Court of the parish of Avoyelles, Ogden, J.

      Barlow S Waddill, for plaintiffs and appellees. Taylor & Lewis, for defendants and appellants.
   Spoeeoed, J.

The appellees, as collateral heirs of Adelaide Bordelon, sue to recover from the heirs of her deceased husband, George Baron, her succession, consisting of the sum of twenty-eight hundred dollars, inherited by her and received by her said husband, and one-half of the estate in community between them, amounting to the further sum of thirty-one thousand two hundred and seventy eight dollars.

The appellants’ title to the property in litigation rests upon the last will and testament, of the nuncupative form, under private signature, made by the deceased, Adelaide Bordelon, on the 9th of May, 1835, and which was admitted to probate on the 17th of February, 1858. The testatrix died in the month of January previous, and her husband, George Baron, in the April following. The testatrix survived her mother and only forced heir living at the date of the will, and at the time of her death had no issue born of the marriage.

The present action has a threefold object: first, to have the nullity of Ma-dmne Bcwon’s testament declared for alleged vices in the confection thereof; secondly, to enforce an alleged compromise between the parties, whereby they are said to have agreed to set aside the will and partake the property in certain proportions; and thirdly, in case the former demands should fail, to procure a judicial construction of the will, which will defeat the pretensions of the defendants under the bequest to George Baron, and leave the property to descend to the plaintiffs as heirs at law. 1

The opinion of the District Judge was favorable to the views of the plaintiffs, on the first and third of the foregoing points; and the defendants have appealed from a judgment overruling their claims under the will.

The testament in question is of the following tenor :

“Parish of Avoyelles, State of Louisiana. In the name of God, amen. I, Adelaide Bordelon, of the parish of Avoyelles and State of Louisiana, considering the uncertainty of this life, and being of sound and perfect mind and memory, blessed be the Almighty God for the same, and in consideration of the love and affection which I entertain for George Baron, my true and lawful husband, and in consequence of my having no children or legitimate descen.-dants, do make and publish this my last nuncupative will and testament, by private act, in the manner and form following, to wit:

“ I do give and bequeath unto my true, devoted and beloved husband, George Barm, the whole of my property that I now possess, and which I may possess at my death, including movables, immovables, slaves, rights and credits. Bat in case there should be, at my death, any heirs whom the few may deem forced heirs, then and in that case I do beq.ueath all that part of my property which by law I may be allowed to dispose of, whether movables, immovables, slaves, rights and credits, unto my beloved husband, George Baron, to have and to hold the same unto the said George Baron, my beloved husband, by the title of donation mortis causa. This donation is made upon the condition that if the said George Baron, my husband as aforesaid, should die without leaving children of the present marriage living at the time of her decease, that then and in that case, the aforesaid property shall revert to and become the property of myself, as if this donation had never been made. Finally, I do by these presents appoint my beloved husband, George Baron, roy sole executor of this my last will and testament, and he is hereby authorized and empowered to take possession and make an inventory of my estate,without the intervention of any court of judicature in this State or any State of the Union.

“In testimony whereof, I have hereunto set my hand this day, by making my ordinary mark, not being able to write my name. Her

“ Signed Adelaide ¡x| Bordelon.

“May 9tb, 1855. mark.

“ The above named Adelaide Bordelon presented this paper, and declared the same to be her last will and testament, in the presence of James Bey, Jr., John P. Sanders, Albert G. Morrmo, Leandre Guillot and Ralph Oushman, all residing in the parish of Avoyelles, who were called upon by the said Adelaide Bordelon to witness the same. The above will was written from her dictation by Ralph Oushman, one of the witnesses, and that she signed the same in our presence, after having been read to the testatrix by Ralph Cushman, one of the witnesses, to the other witnesses, in an audible and distinct voice, before signing.

“ Signed, Rey, Jr., John P. Sanders, Albert G. Morrow, Leandre Guillot, Ralph Cushman.

“May 9th, 1836. . Ne varietur: J. H. Barbin, Clerk.”

Upon the first point, relative to the execution of the will, the proof is that the vernacular tongue of the testatrix was French, and that she could neither speak nor comprehend, in any degree, the English language; that the original, from which the will actually signed was copied, was written by Ralph Cushman, who, at the time, could not speak the French language, and could understand but a few words of it when spoken, so that, without the aid of an interpreter, he was incapable of transacting ordinary business with persons who spoke only French ; that from the projet in his handwriting, his wife copied the foregoing instrument down to the proces verbal of the signing, which he wrote himself in presence of the witnesses; that he read the will in English to the testatrix, in presence of the witnesses; that one of the other witnesses attempted "to make a literal translation of it to the testatrix at the same time, but, from ignorance of one of the languages, or of legal terms, succeeded so badly that another witness occasionally interfered to help him; but there is no proof of the mode by which Cushman was enabled to write a will for a testatrix with whom it was impossible for him to communicate by any language compon to them both ; or of the time when and place where the original draft was made.

A bill of exceptions was taken to the ruling of the District Judge in admitting testimony to show Ralph Cushman's ignorance of the French language. The objection was that such a fact was not put at issue by the pleadings. No surprise at the testimony was averred, and no continuance appears to- have been asked, for the purpose of procuring rebutting evidence.

Wo do not perceive that the eourt erred. An amended petition, filed some time previously, had set forth, as a specific ground for annulling the will, that, from entire ignorance of the English language, the testatrix was absolutely disqualified from dictating her will in the language in which it was written, and further, that the said will was not written by the witness Oushman, as alleged. Now the proces verbal alleged, that “the will was written from her dictation by Ralph Oushman,” and the evidence was competent, as tending to establish the averments of the amended petition.

Upon these facts, we are to pronounce whether the will can stand under our law as a valid will in the nuncupative form under private signature, for it is not pretended, that it meets the requirements of any other form.

The Louisiana Code declares, that such a testament “ must be written by the testator himself, or by any other person from his dictation; or even by one of the witnesses, in presence of five witnesses residing in the place where the will is received, or of seven witnesses residing out of that place; or it will suffice if, in the presence of the same number of witnesses, the testator presents the paper on which he has written his te'stame'nt, or caused it to be written, out of their presence, declaring to them that that paper contains his last will." C. C. 1574.

“In either ease the testament must be read by the testator to the witnesses, or by one of the witnesses to the rest, in presence of the testator; it must be signed by the testator, if he knows how or is able to sign, and by the witnesses, or at least by turn of them, in case the others know not how to sign ; and those of the witnesses who do not know how' to sign must affix their mark.

“This testament is subject to no other formality than those prescribed by this and the preceding Article.” C. C. 1575.

What does the Article 1574 mean by the expression “caused to be written ?” Does it mean merely that the testator may order some person to write a will for him, without intimating what its contents are to be, and then, wfithout understanding what its provisions are, or even the language in which those provisions are couched, may make it his own by declaring it to be his last wi.l in the presence of the competent number of witnesses?

We think not. The very term will implies an independent volition. To make a will at all, the testator is required to have a disposing mind, capable of originating, and which does originate, the plan wdiereby the descent of his property is to be regulated after his death. The term nuncupative also, as applied to this form of wills, is not without a meaning; it shows that the lawgiver contemplated a declaration by the testator of the intentions which he announces from his own mouth, although they may be clothed in a written form by the hand of another. But in all cases the office of the other person who writes the will is that of an amanuensis. If his is the controlling mind, if he originates and prepares the dispositions which are but imperfectly understood by the testator, the W'ill is not the will of the latter but of the former. So also, if he writes from the dictation of another person than the testator. See Heirs of De Bardelabon v. Averett, 11 An.

But we are not left to inference upon this subject. So provident is the law respecting that highest of all the rights of property — the owner’s right 'of directing its descent by a sort of posthumous dominion — so jealous is it of any interference or suggestion on the part of other persons, that it has disclosed, in positive terms, how the thoughts of the testator shall be conveyed into the instrument which must faithfully embody them in order to constitute his will.'

“Testaments, whether nuncupative or mystic, must he drawn up in writing, either by the testator himself or by some other person under Ms dictation, (soit par le testateur lui máme, soit sous sa dietée par toute autre personne.” 0. 0. 1568.

This injunction applies equally to both classes of nuncupative testaments. When, therefore, the subsequent Article 1574 speaks of a will which the testator has “caused to be written,” it means that he must have caused it to be written in the only mode pointed out by the law itself, i. e. by some other person under his dictation. The draftsman who frames the will must take his instructions from the mouth of the testator. To do so he must comprehend the testator’s language. See Gonzales v. Gonzales, 13 L. 105.

The wisdom of this provision of the law is apparent. Nothing is more evanescent than spoken words, nothing more liable to be changed and warped than such words passing successively from mouth to mouth. By writing under the dictation of the original speaker, an amanuensis may stamp his thoughts correctly upon paper, but by writing under the dictation of another person, who professes to report, from his own memory, the original speaker’s words, there is a double chance for error; and the chances of error increase in geometrical progression with the number of intervening oral reporters. It is partly upon this principle that hearsay testimony is excluded by courts of justice.

But, without going further into the reason of the rule, it suffices that the rule is in the Code, and we cannot swerve from the duty of applying it to the cases that come before us for adjudication. It was manifestly impossible for Ralph Cushman to have written the will in question under the dictation of the testatrix in the sense of the law, although he doubtless thought that he had substantially complied with the directions of the Code ; and, therefore, no imputation is cast upon his good-faith. At the time of the trial in the court below, he was no longer alive to explain the process by which he supposed he had attained to a knowledge of the wishes of the testatrix. But, one person at least must have stood between him and her, upon whose honesty, accuracy of recollection,'and skill in translating French into English, the character of the will must depend. Perhaps more than one person intervened between the maker and the writer of the will. We know not who they were, for this subject is> wrapt in obscurity. However reputable the character and fair the conduct of the parties who do appear in connection with this testament, we are compelled to pronounce its nullity.

If we. once depart from the salutary rule that every will, unless written by the testator himself must be written under his dictation, wo shall render it possible for any sort of a will to be palmed upon a person in extremis.

Without conceding that this radical defect, in drafting the testatment of Madame Baron could be cured by a subsequent compliance with the requisites of Article 1575 of the Code, we may remark that the fact of such compliance is exceedingly doubtful. That Article declares that the will must be read by the testator or to the testator in the presence of the witnesses. This is not an empty form. It is intended to guard against imposition, and to verify the instrument as the real and unchanged will which the testator has writted or dictated. A deaf person cannot be a witness, because he cannot hear this reading and help to verify it. The reading is of no avail if the testator cannot comprehend the language. The reading of this will in English eonveyed no information to Madame Baron, and did not enable it to say that it was her will. The attempted oral translation of it into French by one of the witnesses in her presence, did not enable the witness Cushman to say that she approved what he had written, for he could not know that the same ideas were conveyed by the French interpretation, as were embodied in the English original. The remarks of the court in Herberts Heirs v. Herbert's Legatees, 11 L. 365, seem to indicate that this defect also would vitiate the execution of the will.

It is doubtful, in the present instance, whether the testatrix ever understood the will she signed.

•Having found the first branch of the ease in favor of the plaintiffs, we are spared the necessity of endeavoring to interpret an instrument which is ambiguous, if not incomprehensible upon its face.

Judgment affirmed.

Buchanan, J.

The parties have agreed that the deeree of the eourt rendered at this term and affirming the judgment of the District Court of Avoyelles, should be amended so as to conform to the evidence in the record in relation to the amount of the paraphernal rights of Mrs. Baron.

The petition in the cause states the amount of those rights to be two thousand eight hundred dollars, and judgment was rendered by the District Court for that amount.

The case was argued before us on appeal entirely in reference to the main question of the validity of Mrs. Baron's will, wthout any intimation that the amount of the paraphernal right stated in the petition, and recognized in the judgment, was not in accordance with the evidence.

The judgment was affirmed generally. Since this affirmation it is suggested, in a petition for re-hearing, by counsel of appellants, that the notarial receipt of Mrs. Baron to the administrator of her mother’s estate, given in evidence on the trial of the eause, shows that the amount received by Mrs. Baron from the succession of her mother was $2386 87, instead of $2800.

The connsel of appellees admits the correctness of this suggestion, (which is also apparent from the record,) and has consented that the judgment be amended accordingly, without the formality of a re-hearing.

It is, therefore, adjudged and decreed that our judgment heretofore rendered in this case be set aside ; that the judgment of the District Court be amended ; that the plaintiffs recover of the succession of George Baron the sum of twenty-three hundred and thirty-six dollars and eighty-seven cents, instead of twenty-eight hundred dollars, with five per cent, per annum interest from January 31st, 1853, until paid; that in other respects the judgment of the District Court be affirmed ; that the costs of the District Court be paid by defendants, and those of appeal by plaintiffs and appellees.


source: Caselaw Access Project

author: Merrick, C. J.

license: Public Domain

text:
    J. Calvit, Tutor, &c., v. Mulhollan & Carnal.
    An action will not lie against third parties in possession of lands derived by regular conveyance from plaintiff’s ancestor, without first impeaching, by direct action, the conveyance made by such ancestor.

      XX. PPEAL from the District Court of the parish of Rapides, Chaplin, J.

      A. N. Ogden, jr., for plaintiffs and appellees. Elgee, for defendants and appellants.
   Merrick, C. J.

James Brewster died in July, 1821, leaving the tract of land in controversy in this case, as a part of his separate estate, and seven children his heirs at law. Two of these children, Hazard and Elizabeth Brewster, died without issue in the year 1822, and Nancy Long, another, the wife of William Long, died in the year 1823 or 1821, also without issue.

On the 24th day of January, 1824, (whether before or after the death of Nancy Long, does not appear,) by act under private signatu re duly recorded, Martha Calvit, one of the children of James Brewster, and the mother of the plaintiff, assisted by her husband, Isaac Calvit, acknowledged to have received her portion of James Brewster's estate — “ being all claim on either real or personal property in the following articles, viz: one negro girl named Judy, stock of cattle, fifty head more or less in numbers as may be found, one mare named Durkis and her coltand, in consideration thereof, they granted a discharge in full to Smith W. Brewster, the executor of the said estate.

On the 17th day of October of the same year, 1824, James Brewster, Madison Brewster and Martha Calvit assisted by her husband, by act under private signature recorded in the parish Judge’s office, “relinquished, assigned and set over” to William Long the husband of Nancy Long, deceased, all their right, claim and pretensions to the property of his, then late wife, Nancy Long, deceased. No consideration is expressed as having passed from said William Long.

William Long appears to have considered himself as invested with his deceased wife’s interest in the succession of her father, and on the fifth day of September, 1826, Smith W. Brewster, James Brewster and William Long, claiming to hold three-fourths of the inheritance of James Brewster, deceased, by inheritance and purchase, sold, by notarial act, duly recorded, to Carter Bea-mau three-fourths of the tract of land in controversy. The defendants claim under this deed and a subsequent conveyance of the remaining one-fourth, the interest of Madison Brewster; said Smith W., James, Madison and Martha, who had executed said acts under private signature, being the only surviving children of said James Brewster, deceased.

Martha Calvit was a minor, emancipated by marriage, when she signed the acts under private signature. She was of the age of majority on the 3d day of May, 1827, and was consequently a major for nearly nine years before her death Whether she was in possession of or had sold or disposed of the property which she acquired under the act of 24th January, 1824, during that period, the record does not inform us.

The Judge of the lower court was of the opinion that the last mentioned act was binding upon the plaintiffs notwithstanding the minority of their mother, and as to the estates of Hazard, Elizabeth and Nancy, that prescription had ran against them as vacant successions. The defendants did not introduce anyproof to show that as to these estates no inventory or other mortuary proceedings were had, but left the court to infer that they were vacant for want of proof on the subject. See McCollogh v. Minor, 2 An., 466.

Without expressing any opinion onthe merits of the plea, which case we leave entirely open, we think that so long as the act of 24th of January, 1824, remains unrescinded or not annulled, the plaintiffs are precluded from instituting an action against third parties who hold under it. The plaintiffs should have brought their direct action against the parties to that instrument as well as those who hold under to annul it, and then if it appeared that they were in a condition to return the slave Judy and her increase, and the other property their,mother acquired under said instrument, and it should not be adversely shown that after her majority the said Martha Calvit, either expressly or tacitly, ratified said proceeding, the plaintiff may be entitled to relief unless barred by prescription. 10 L. R. 269; 9 L. R. 305; 1 An. 38; 11 M. 443, and 2 An. 466.

We have already observed that, it does not appear that Nancy Long was dead at the period of said act. We think that the judgment of the court ought not to operate as an absolute bar to further proceedings on the part of the plaintiff.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and now proceeding to pronounce such judgment as ought to have been rendered by the lower court, it is ordered, adjudged and decreed by the court that there be judgment against the plaintiff’s demand and in favor of the defendant, as in case of a non-suit; asd it is further ordered, that the defendants and appellees pay the costs of the appeal, and the plaintiff pay the costs of the lower court.


author: Spoffoed, J.

text:
    J. M. Solibellas v. The Consolidated Association, &c.
    The offspring of slave mothers, born whilst the mothers are affected by a mortgage or privilege, aro born subject to the same mortgage or privilege.
    jKL PPEAL from the District Court of the parish of Rapides, Cushman, J.

      W. B. Hyman, for plaintiff. Elgee and Hyams, for defendants.
   Spoffoed, J.

(Lea, J., recused.) The offspring of slave mothers, born whilst the mothers are affected by a privilege or mortgage, are born subject to the same privilege or mortgage. Bonner v. Mobile, 3 An. 609.

As to the other point in this case, we are not called upon to decide whether parol testimony is admissible to show a mistake in the age of a slave, as stated in a notarial ac.t of mortgage, for no objection was made to the introduction of the parol evidence in this,case. From the testimony adduced, we are satisfied that th.e slave Haney, for whose proceeds the plaintiff and the intervenors are contending, was included in the mortgage to the defendants.

The judgment is, therefore, affirmed, with costs.


author: Merrick, 0. J.

text:
    G. Figuras v. Administrator of C. F. Benoist.
    An. exception of want of amicable demand will not lie when defendant, prior to being sued, has refused payment of a smaller sum than that claimed in the petition. 0. P. 984.
    'She btatement by an administrator that “ he could not pay a certain claim until he had rendered his tableau,” is not a sufficient acknowledgment of debt to bind the estate.
    Although the witnesses are neither nurses nor physicians, they are competent to prove the value of the services rendered by a nurse.
    APPEAL from the District Court of the parish of Natchitoches, Ghaplin,, J.,

      A. K Pierson, for defendant and appellant.
   Merrick, 0. J.

This suit is brought to recover of the succession of 0: F. Benoist $1029, for services rendered by the plaintiff and his wife as nurses during the prevalence of the yellow' fever in 1858 to the deceased, his family and negroes, and for a small bill of medicines furnished. The personal services were alleged to be worth $1000.

The record furnishes no proof that any medicines were furnished, as alleged. The Judge of the lower court allowed $525 for the services as nurses, and the defendant appealed.

The defendant having filed, a Imáne litis, the exception of the want of an amicable demand under Article No. 984 of the Code of Practice, urges his exception before this court. It is in proof, that before the institution of the suit, the plaintiff presented to the administrator of Beneist's succession his claim for the same services and medicines, but estimated at $500 for the attention in nursing and $29 for the medicine, instead of $1029 for which the suit was brought. The claim presented to the administrator was the same, although there was a difference of the value of the services on the two occasions. O. P. 984. The Judge of the lower court correctly remarks that “ it would be doing a vain thing to present a larger account when the smaller was refused,” As a party does not lose his claim by demanding more than is his due, the amicable demand must be deemed sufficient.

The statement by the administrator in reference to the account of $29, that “he could not pay it until he had rendered his tableau,” is not a sufficient ac* knowledgment by an administrator that the medicines were furnished, or the estate indebted in that sum.

In regard to the services rendered, the proof shows that the greatest consternation prevailed in the neighborhood at the time, and that nurses eould not be obtained at any price. The plaintiff is shown to have been in attendance on the family and negroes thirty-five days. The testimony in regard to his wife is more indefinite. The Judge a quo considered the services worth fifteen dollars per day. When the plaintiff first presented his account to the administrator, he claimed but five hundred dollars. He eould not be permitted to recover more, and we think ten dollars per day, or three hundred and fifty dollars, an ample allowance even in reference to the circumstances under which the services were rendered.

We do not think it important to consider the bill of exceptions as to the testimony of Battier. The admission of his testimony does not in our opinion affect the case materially

In regard to the testimony of sundry witnesses to prove the value of the services of the plaintiff, we think the court did not err in receiving it, although the witnesses were neither physicians nor nurses. It was sufficient that they knew at that time the difficulties in obtaining nurses, and what price such services would at that time readily command. No professional skill is required for this purpose.

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 do recover of the defendant, in his capacity of administrator of said succession, the sum of three hundred and fifty dollars, with five per cent, interest thereon per annum from the 15th day of April, 1854, until paid, and to be paid in the due course of administration; that he be required to place on the tableau of distribution of said succession one hundred and ninety-five dollars of said sum of $850, and interest, as a privilege claim against the succession, to be classed as expenses during the last illness, and that the residue of said sum of $350, and interest, be classed as an ordinary claim against the succession ; and it is further ordered, that the plaintiff and appellee pay the costs of the appeal, and the succession the costs of the lower court.


author: Spoefokd, J.

text:
    H. Levasseur, Curator, v. Auguste Martin, Bishop, &c.
    The power to hypothecate must be express and special. 0. C. 2966.
    The Archbishop of the Cathoiic Church of Louisiana cannot, without authorization, lawfully mortgage or encumber the real estate belonging to the church.
    C. C. 8267, 8269 and 3270.
    APPEAL from the District Court of the parish of Natchitoches, Chaplin-, J.

      TucJeer, for plaintiff and appellant. J. C-. Campbell, for defendant and appellee.
   Spoefokd, J.

The plaintiff proceeded via executiva to enforce a mortgage against a tract of land alleged to be in the possession of the defendant, as Bishop of the Roman Catholic Congregation, for the Diocese of Natchitoches.

By consent, the executory process was converted into an ordinary action, and the defendant answered by a general denial, and by some special averments which put at issue the validity of the alleged, mortgage.

There was a judgment as in case of non-suit, and the plaintiff has appealed. It is conceded that the land sought to be subjected to the plaintiff’s hypothe-cary action originally belonged to one Madmoiselle Frangoise Trichel. She died, leaving a last will, whereby she made the following disposition of this land: “ Je désire que toute ma terre, ma résidence, ainsi que la terre ou est batie Peglise á Campté soit et reste á 1’eglise. Telle est ma volonté.”

Afterwards, Antoine Blame, Archbishop of New Orleans, gave to the Bev. Phillabert Jordain a letter of procuration, empowering him “ to grant a mortgage upon all the land which belonged to him (the Archbishop) at Campté to secure the payment of such sum as the mandatary should have borrowed for the building of the church, but for no other purpose.”

Under the mandate, it would seem that the mortgage in question was executed a few months afterwards by the Rev. Mr. Jordain, in favor of Luvini, (the plaintiff’s intestate,) to secure the sum of eight hundred dollars, acknowledged to be due to him by the Archbishop.

Afterwards the diocese of Natchitoches was established, and the church at Campté fell within its jurisdiction.

Property can be specially hypothecated only by the owner or by some one authorized to act for the owner. C. C. 3267. It cannot be pretended that Areli-bishop Blanc owned the property in question. We are not called upon to interpret the loose and ambiguous bequest of Mademoiselle Trichel any further than to say that it vested no right of property in the Archbishop. She gave her land to “ the Church ” not to the Archbishop. A nd whether we consider that flexible term to have meant, in this instance, the Roman Catholic Church in general, the diocese of Louisiana,' or the particular congregation at Campté, still it is not shown that either of those bodies had empowered AreKbishop Blanc to encumber this property by conventional mortgages, or that he was so empowered by law. The property of minors, of persons under interdiction, of absentees and corporations, cannot be mortgaged in any other form and manner than that directed by law.” C. C. 3269. The power to encumber or hypothecate must be express and special. C. C. 2966.

There might, perhaps, be relief for the plaintiff upon a proper showing under the following Article of the Code: “ An attorney can only hypothecate the property of his principal, so far as he has a special power for that purpose.

Nevertheless, if the attorney, on effecting a loan for his principal, had granted a mortgage, and the latter had received the monqy for the loan, or if it had been usefully employed for his benefit, the principal would be bound to ratify the mortgage, and might be compelled to execute it.” C. C. 3270.

But the pleadings and evidence in this case are insufficient to fasten such a liability upon any party.

The judgment is, therefore, affirmed, with costs.


author: Mbbeick, C. J.

text:
    The State v. Augustus Reeves.
    The court, on a trial for murder, may rightfully reject as incompetent a juror who has conscientious scruples against finding an unqualified verdict of guilty in a capital case, even after he was accepted, both by the State and by the defendant, if he has not been sworn.
    Where the whole of the regular panel of jurors has been exhausted, without securing a single juror, the prisoner has no right to require the service upon him, two days before the trial, of the list of the jury de talilnts which is summoned. In such case the court may proceed with the trial m-stamter.

    APPEAL from the District Court of the parish of Rapides, Ogden, J.

      Hines, District Attorney, for the State. Manning, for defendant and appellants.
   Mbbeick, C. J.

The defendant was convicted of the crime of murder. The jury qualified their verdict, and found without capital punishment. The record contains three bills of exceptions, but in the oral argument addressed to us by the defendant’s counsel, only two of the bills were examined. They raise these two questions:

1st. Did the court err in rejecting a juror who, of his own accord, informed the court that he had conscientious scruples against serving as a juror in a capital case, after he had been accepted by both parties, but not yet sworn?

áícl The list of jurors contained in the regular panel, which was served on. tfche prisoner, having been exhausted, and not a single juror therefrom having 'been sworn upon the petit jury, did the court err in ordering a jury de talibus to be summoned instanter, and in refusing a delay of two days in order to serve ithe 'list of such jury upon the accused?

¡L On the first question, we have to observe that it was settled in the case of the State v. Kennedy, 8 Rob. 590, that where a juror answers on his voir dire, that he has conscientious scruples against finding a verdict of guilty in a capital case, he may be set aside for cause. This principle has been recognized in •one or more recent decisions since the statute of May 29th, 1846, authorizing jurors in capital cases to qualify their verdicts was passed. See State v. Melvin, 11 An.

The District Judge did not err in deciding that the juror was incompetent after he had been accepted by both parties. The statement was made by the juror voluntarily, and not having been sworn, nothing prevented the court from ordering the juror to be set aside. He could not impartially try a case in which he was conscientiously opposed to finding an unqualified verdict in favor of the .State under any circumstances, no matter what the proof might be. The Judge violated no right of the accused by requiring the jurors to be free and unbiased, (so to speak,) as well on the part of the State as the accused. Although the bill of exceptions does not expressly state that the juror was conscientiously opposed to finding an unqualified verdict of guilty in a capital •case, yet we understand that to be the meaning of the bill of exceptions, and it was so argued, as we understand, by the counsel for the accused, and is so regarded in his brief.

II. On the second point the court did not err. The statute requiring the list •of the jury which are to pass upon the trial of the accused to be delivered to him, at least two entire days before the trial, was complied with. The regular panel of jurors drawn to serve upon the trial of the accused is that intended by the statute, and it was served upon the accused. But this pannel was exhausted without securing therefrom a single juror. It was as much the duty •of the Judge to order the jury to be impanneled from the bystanders, after exhausting the list served upon the accused,- as it would have been to complete it, had it been partially formed from such list. The very terms of the law, bystanders or jurors de talibus cirewmtantibus, imply that the jury is to be im-panneled from such persons as may be casually present having the qualifications of jurors. All idea of delay to form a list and make formal service is excluded. We see no error in the ruling of the District Judge in this respect.

We understood counsel to say that the other bill of exceptions in this case was abandoned. At all events it presents no serious question and requires no ¡formal notice from us.

Judgment affirmed.


author: Lea, J.

text:
    Appoline Rachel, widow Landry Desloucher, v. Louis B. Rachel et al.
    The tacit mortgage in favor of a minor cannot, be enforced against the purchasers of property of a succession which was sold to pay a community debt, to which the minors’ interest was subordinate.
    The debt due a community creditor is not necessarily’novated by his taking the individual note of the surviving spouse, with mortgage to secure its payment.
    It is unnecessary for the Judge to fix the amount of a suspensive appeal bond, nor is it necessary for the appellant to execute bond in favor of a party who has no interest in maintaining the judgment so far as appealed from.
    il. PPEAL from the District Court of the parish of Natchitoches, Chaplin, J.

      A. S. Pierson, for plaintiff and appellee. TV. J. Mamelón, for defendant and appellant.
   Lea, J.

The plaintiff seeks to subject property in the possession of the defendant, to the operation of her alleged general and special mortgage under the following circumstances:

In 1841 Sylvestre Rachel died leaving a considerable property encumbered with debts.

The evidence does not enable us to say that the estate was absolutely insolvent.

His widow, and partner in community, was appointed, administratrix of the estate and natural tutrix of the minor children, issue of her marriage with the deceased, in whose name the succession was accepted, with benefit of inventory.

The widow, in accordance with the provisions of the Civil Code to that effect, caused to he adjudicated to herself a portion of the community property, including that which is the subject of contestation in this case. Louis Lecarpentier, one of the largest creditors of the community, made an arrangement with the widow by which he took her individual notes for the amount of his debt, taking at the same time, as additional security, a mortgage upon the property referred to. These notes not being paid at maturity, Lecarpentier proceeded by execu-tory process to enforce the payment. The property was seized and sold; and under the title thus acquired, by a subsequent purchase from the vendee, the defendant holds possession.

It is unnecessary to review the proceedings by which the plaintiff in this case has obtained a judgment for $4881 against her mother’s estate, together with a recognition of her mortgage upon the property which belonged to her mother, dating from the 15th November, 1851. In our opinion, the plaintiff (whatever may he her claims against her mother and tutrix) should not he permitted to disturb the possession and title of the defendant.

The property, which was community property, was sold to pay a community debt, and the proceeds enured to the benefit of the minors. If there have been any irregularities in the proceedings they are not such as have operated to the disadvantage of the heirs. The debt due to Lecarpentier, for which the plaintiff as one of the heirs of Sylvestre Rachel was responsible, has been paid at least to the extent of the proceeds of the property in dispute.

In the account, upon which the judgment, now sought to be enforced, was based, this debt due to Lecarpentier formed one of the items, and is there charged as paid.

It is urged, however, that Lecarpentier, by taking the individual note of the tutrix novated the debt, and that all the rights of Lecarpentier upon the new obligation were subordinate both to the legal and special mortgage of the minors. It does not. appear that in taking the individual note of the tutrix, Lecarpentier intended' to abandon his claim upon the succession. Novation will not be presumed “ Without an express declaration to that effect by the creditors, or acts tantamount to such a declaration, it can never be held .that an original debtor is released.” See 4th Annual, 281.

Nothing in the circumstances of this case justifies the conclusion, that Lecar-pentier intended to do more than, as the price of indulgence, to obtain additional security for the payment of his claim upon the succession.

If, then, there was no novation, if the original debt has been paid, or at least liquidated to the extent of the proceeds of the property sold, (and the sale is not shown to have been made at any sacrifice,) it would be inequitable to allow the heirs after having profited by the sale to the full extent of the proceeds realized, to subject the property to the payment of the claims against their tutrix, which was itself subordinate to the claim for which the property was sold.

Our attention has been directed to a motion to dismiss the appeal.

1st. On the ground that the amount of the required appeal bond was not fixed by the Judge granting the appeal.

2d. On the ground that the bond was not given in favor of the party called in warranty.

It is not necessary that the amount of a bond for a suspensive appeal should be fixed by the Judge. The law itself has provided that the bond in such cases shall be for a sum exceeding by one-half the amount for which the judgment is given. C. P., 575.

It was not necessary for the appellant to execute a bond in favor of a party who had no interest in maintaining the judgment so far as appealed from. The motion to dismiss the appeal must therefore be rejected.

It is ordered that the judgment appealed from be reversed, and that there be judgment for the defendant.

It is further ordered that the plaintiff and appellee pay costs in both courts.


text:
    Phœbe, f. w. c., et als. v. F. Vienne, Sheriff, et als.
    An exception to the capacity of plaintiff to sue will be considered as waived by a trial on the merits without any judgment on the exception.
    A defendant in execution is not a competent witness to prove ownership in a third person, of property seized as his own, upon the trial of an issue of fraud or simulation in his transfer of such property.
    Damages will not be awarded against a plaintiff who has seized property belonging to a third party, under an execution against his debtor, where the plaintiff acts in good faith and has reasonable ground to suspect that such property is really the property of his debtor.
    APPEAL from the District Court of the parish of Natchitoches, Ohcvpman, J.

      A. H. Pierson, for plaintiffs and appellants.
   Lea, J.

The plaintiff sues for the recovery of certain property, consisting of lots of ground situated in the town and parish of Natchitoches, with the improvements thereon, also of $345 95 in, gold "and silver coin, seized in execution by the Sheriff of the parish of Natchitoches, at the suit of Taylor, Hart & Co. v. Valery B. Shultz, as the property of said Shultz. The plaintiff asserts title to the property thus seized, and claims restoration of the same, with damages for the alleged illegal seizure and detention.

whom she had been living in concubinage for many years, from the pursuit of his creditors. The exception taken to the plaintiff’s capacity to stand in judgment, must be considered as waived, the case having been determined upon its merits, without any action of the court thereon. The defendants deny ownership in the plaintiff of the property seized, allege that the purchases in her name were mere simulations, made with funds furnished by Shultz, and intended to screen the property of Sehultz, with

The case was submitted to a jury, who found a verdict upon which the judgment of the court was based, decreeing the lots of ground seized on execution to be the property of the plaintiff, and the money to be the property of Shultz. No damages were awarded by the jury to either plaintiff or defendant. The plaintiff alone has appealed.

It is unnecessary to inquire into the correctness of any part of the judgment from which the plaintiff has not appealed. Our inquiry is therefore confined to the claim of the plaintiff for damages, and for the restoration of the gold and silver coin seized by the Sheriff. An examination of the evidence has not enabled us to perceive any error in the verdict of the jury, upon the contested ownership of the gold and silver coin. The issue presented was one of fact, and we think the plaintiff has no reason to complain of the verdict of the jury. The evidence of Shultz himself, (which was properly rejected,) could have had but little weight in the minds of the jury, when considered in connection with the relation which subsisted between himself and the plaintiff, and with the direct interest which, as the defendant in execution, he had in releasing any property from seizure which might belong to him. A defendant in execution is not a competent witness to prove ownership in a third person of property seized as his own, upon an issue of simulation or fraud.

Upon the claim for damages, we think the plaintiff is entitled to no relief at our hands. Those who by their own conduct have created a reasonable belief that property held in their name, is so held for the purpose of screening it from the pursuit of the creditors of another, cannot reasonably ask that the expenses of a litigation which is to some extent invited, should be reimbursed to them as damages. The plaintiff in execution was not a willful trespasser, but evidently acted in good faith.

Judgment affirmed.


text:
    H. B. Kelly v. C. V. Ledoux.
    The defendant who has been sued on his draft, has the right to interrogate plaintiff on facts and articles, to show that the draft was given in error, or without consideration.
    The rule as to exclusion of parol testimony to contradict written agreements, does not apply in such < a case.
    APPEAL from the District Court of the parish of Rapides, Gushman, J.

      M. Campfield, for plaintiff and appellant. M. Ryan and W. B. Hyman, for defendant.
   Lea, J.

The defendant is sued upon a protested draft, payable at sight, of whieh he is the drawer, and of which he resists the payment, on the ground that it was given in error, the consideration being (as he alleges) a contingent fee for services to be rendered as counsel in the prosecution toa final judgment and actual collection of a debt due by Monaghan to the defendant. It is proved that at the inception of this suit, the amount due had neither been realized nor had the suit been prosecuted to a final judgment.

The defendant propounded interrogatories to the plaintiff, tending to establish his defence, to the answering of which, the plaintiff, by his counsel, excepted, on the ground that the matters sought to be established in the answers were inadmissible, as tending to show a contemporaneous parol agreement contrary to ¡the tenor of the draft sued upon.

We think the District Judge was wrong in maintaining the exception. Assuming the rule of evidence to be such as is contended for by the defendant’s counsel, it could not operate to the exclusion of the right conferred by the Code of Practice upon a party litigant to probe the conscience of his opponent; nob does the rule of exclusion apply cither in reason or principle to evidence of .this character.

But even assuming that the plaintiff’s answers to the interrogatories propounded by the defendant would have been in the affirmative, we think that the evidence fails to show that the draft sued upon was given in error.

Admitting that the draft sued upon was “given as a contingent fee in the suit of Ledoux v. Monaghan,” and that it was the original agreement that the fee should be paid only when the money should be collected and the suit finally decided, At nevertheless appears from the testimony of Mr. Caldwell, who was introduced as a. witness by the defendant, that the defendant was perfectly aware at .the time of giving the draft, that the suit had not been finally determined, and that he expected that an appeal would be taken from the judgment which had been obtained in his favor. It was distinctly intimated to him also, that the plaintiff considered himself entitled to immediate payment for his services, as he (the plaintiff) had been superseded by the employment of other .counsel. Under these circumstances, however well founded may have been an objection on the part of Ledoux to the drawing of the draft, it is clear that at the time of so doing he was not laboring under any misapprehension of tlie facts as they actually existed. It is unnecessary to inquire into the admissibility of the testimony of Miltenberger and Eennen; their testimony, if admitted, would prove no more than would have been established by an affirmative answer of the plaintiff to the interrogatories propounded to him, the effect of which we have already considered.

The equitable interest in the estate of Halsey to a porlion of the proceeds of the draft when paid, is no bar to a recovery by the holder and payee, in the absence of any defense as against the representative of Halsey's estate.

It is ordered, that the judgment appealed from be reversed, and that the plaintiff, Henry BL Kelly, do have and recover of the defendant, Charles V. Ledoux, the sum of seven hundred dollars, with interest thereon at the rate of five per centum per annum, from the 23d day of December, 1853, till paid, with costs of protest, and costs of .suit in both courts.


author: Merrick, G. J.

text:
    Patrick Henry v. Mrs. E. M. Bryce.—Wells and Wife, Garnishees.
    A married woman, cited as garnishee, must answer the interrogatories propounded, though she be? not authorized by the court or her husband, under penalty of having them taken pro con/esso.

    XA. PPEAL from the District Oourt of the parish of Rapides, Gushm&n, J.

      M. Canfield, for plaintiff. A. M & 0. N. Ogden, for defendant and appellant.
   Merrick, G. J.

The plaintiff having obtained judgment against the defendant, caused an execution to issue, and propounded interrogatories to J. M, Wells and wife, Mary Ann Wells, as garnishees, under the Acts of 1889, p. 166,. and 1840, p. 48. Both were cited, and having neglected to answer the interrogatories within the delay, the same were taken as confessed, and judgment rendered against them severally for the amount of plaintiff’s demand. The defendant, Mrs. Wells, appealed, and it is assigned as error that she was rfot authorized to defend the suit either by her husband or the Judge, and that the-judgment is, therefore, erroneous.

By Art. 264 of the Code of Practice, which is also applicable to this sort ®f garnishment, it is provided that: “If the garnishee, to whom interrogatories have been put, refuse or neglect to answer the same, under oath, in the delay of the law, such refusal or neglect shall be considered as a confession of his having in his hands property belonging to the debtor sufficient to satisfy the demand made against such debtor, and judgment shall be rendered against him for the amount claimed by the defendant, with interest and costs.”

In the case of Sturgis v. Kendall, 2 An. 566, it was held that the mere neglect to answer the interrogatories is considered as a confession, and that no formal entry of a judgment by default is required, nor are the garnishees entitled to notice of plaintiff’s intention to render them liable upon the confessions which the law infers from their silence. It seems, therefore, to us that the neglect or refusal to answer the interrogatories within the time prescribed by law is equivalent to an actual default in other cases. There is also reason in this conclusion, for in general nothing more is expected of the garnishee by way of appearance in the suit than his answers to the interrogatories. It is only when his answers are traversed and denied that the suit partakes properly of the character óf a legal controversy between the parties.

There is nothing, therefore, in the first step in the proceeding of garnishment which requires the wife to he authorized. She is called upon as a witness to testify the truth with a penalty only in the case of a refusal to answer. Now it has been held in the cases of Stone, Syndic, v. Tew, 9 Rob. 195, and Gilmore v. Gilmore, 9 An. 204, that the tacit issue formed by the default against both husband and wife in an ordinary action is a sufficient authorization of the husband to the wife to defend the suit. Much more may, we presume, (if needed,) the authorization of the husband to the wife to answer interrogatories when a favorable answer, if true, will relieve her estate from liability and herself from further trouble with the suit.

We see no error in that part of the judgment of the lower court of which complaint is made.

Judgment affirmed.


author: Sfofford, J.

text:
    Gabriel Guzman v. P. A. Walker.
    Decision in the case of Holmes v. Witte affirmed.
    APPEAL from the District Court of the parish of East Baton Rouge, Robertson, J.
    Burk, for plaintiff and appellant. Joor, for defendant.
   Sfofford, J.

On the 10th March, 1854,, the Governor of the State issued a commission in favor of the respondent Walker,- appointing him a Notary Public, in and for the parish of East Baton Rouge.

The respondent was qualified and is now in possession of the office.

On the 15th February, 1856, the present Governor of the State issued a commission in favor of the relator Gusman, appointing him “ a Notary Public in and for the parish of East Baton Rouge, vice JP. A. Walker, whose term of office has expired.”

The relator having applied to Walker for his notarial books and papers, under the pretence of being his successor in office, (a pretension that was denied by the latter, who insisted that his term had not expired,) procured a mandamus nisi to comp'd a delivery of the books and papers in question. Upon a hearing the mandamus was dismissed and the relator has appealed.

It seems to be conceded that the defendant Walker was duly appointed and qualified in 1854.

His term of sevice, under the old law of 1813, was during good behavior, It was reduced to four years by the Act of March 14th, 1855, unless, indeed, his office was abolished and a new one created in its place by that statute.

It is contended that, such was the legal effect of the statute of March 14th, 1855, “ Relative to Notaries Public — Session Acts, p. 322. This Act forms one of the series of “ Revised Statutes” adopted in 1855, and contains the repealing clause whieh was the subjeet of judicial interpretation in the late ease oi Holmes v. Wiltz.

By reference to the projet printed in 1855, and prepared by the commissioner, Mr. U. B. Phillips, under the direction of a joint committee of the Legislature, it will be seen that the statute in question is hut a digest (with some slight alterations) of pre-existing laws concerning Notaries Public passed in 1805,1807, 1808,1809, 1818, 1821,1822,1827, 18S8,1845 and 1853.

For the reasons given in the case of Holmes v. Wiltz, we are of- the opinion that it was not the intention of the Legislature, in adopting the statute of March 14th, 1855, “ Relative to Notaries Public,” to abolish all the notarial offices then existing, and to- create new and different offices in their stead.

The term of the respondent, therefore, had not expired when the relator was appointed in his place. If he had acquiesced in the appointment of Guzman as his successor, by giving up the office or otherwise, his conduct would have amounted to a tacit resignation. As he has always resisted the construction of the law which seems to have been placed upon it by the relator and the Governor who appointed him, we -think the District Judge did not err in discharging the mandamus.

Judgment affirmed.


author: Spoffokd, J,

text:
    Succession of Emilie Peyran, f. w. c.—Marie Louise alias Petronne Montmain, Applicant.—Maria Lorenza alias Herminie Peyran, Intervenor, Appellee.—Simon O. and Etienne G. St. Herman, Intervenors, Appellants.—State of Louisiana, Intervenor.
    The intervenors S. O. and E. G. St. H., having, by the evidence adduced to show their maternal descent, shown also their paternal origin, it was competent for the other parties in interest to show that the connection, of which the intervenors thus declared themselves the offspring', was an adulterous connection.
    The avowed father having been, at the time of the conception of said intervenors, the husband of another woman and not of their mother, they fall within the prohibition of Art. 914 O. O., and their claim to the succession of their mother was rightfully repelled. C. 0. 201.
    APPEAL from the Second District Court of New Orleans, Zea, J.

      Eoulhouse, for appellee. Seghers, for appellants. Filleul, for the State of Louisiana.
   Spoffokd, J,

The intervenors, Simeon Oscar and Etienne Gústame St. Herman, having, by the evidence adduced to show their maternal descent, shown also their paternal origin, we are of opinion that it was competent for the other parties in interest to show that the connection, of which the interveners thus declared themselves the offspring, was an adulterous connection.

The evidence is clear that their avowed father was, at the time of their conception, the husband of another woman, and not of their mother.

They., .therefore, fall within the prohibition of Article 914 of the Civil Code, •and the District Judge did not err in repelling their claim to the succession of Emilie Peyran. C. C. 201; Succession of Fletcher, 11 An.

The judgment is not complained of by any other party. It is, therefore, .affirmed, with costs.


author: Buchanan, J.

text:
    Claudius Redon v. Charles Caffin.
    the damages which a tenant has the right to recover from his landlord, under Art. 2665 0. 0., are those which are the immediate result of the defect in the thing leased. The plaintiff claimed as damages, not only the price of his fixtures, which he lost in consequence of being obliged to abandon GafltrOs house, by the defect of its construction, but, also, the difference in the amount of his profits in the store rented of defendant, and in that to which he removed. JTeld: That plaintiff cannot under his contract recover consequential damages of this latter sort.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Roselius and Philips, for plaintiff. Niles and R. R. Taylor, for defendant and appellant.
   Buchanan, J.

The damages which a tenant has the right to recover of his landlord, under Artiele 2665 of the Civil Code, are those which are the immediate result of the defect in the thing leased.

Redon hired of Coffin a house and store at the corner of Customhouse and Chartres streets, for the term of five years. The lease was annulled at the demand of the lessee, by decree of the Supreme Court rendered in May, 1851, (6 Ann. 487,) on account of a defect in the construction of the house, which threatened ruin, and rendered it unsafe to inhabit it. Redon, previously to the rendition of that judgment, to wit, on the 1st of November, 1850, had hired another store, to which he removed.

Redon’s business was that of a jeweller, and he had fitted up the store which he hired of Coffin, at an expense of more than three thousand dollars. These fixtures were nearly a total loss to him, in consequence of being obliged to abandon Coffin’s house, by the defect in its construction.

In February, 1853, Redon instituted this action, claiming as damages, not only the price of his fixtures, but the difference in the amount of his profits in the store rented from Coffin, and in that to which he removed.

We are of opinion that plaintiff cannot, under his contract, recover consequential damages of this latter sort. But as the verdict of the'jury, twenty two hundred and fifty dollars, does not appear to exceed the amount lost by the plaintiff in fixtures of tbq store, which loss was a direct result of the defect in the construction of the house leased to him by defendant, we do not feel called upon to disturb the verdict as excessive.

The defendant applied for a new trial in the court below, on the ground of misconduct of the jury. But we agree with the District Judge, that the evidence of the alleged misconduct is not satisfactory.

Finally, the appellant’s counsel, in his printed brief, argues that the plaintiff's claim is barred by prescription. But no plea of prescription appears to have been pleaded either in the District Court, or in this court.

Judgment affirmed, with costs.


author: Voorhies, J.

text:
    State of Louisiana v. The Judge of the Fourth District Court of New Orleans.
    la cases in -which a party has an adequate remedy by appeal) this court will not listen to an application for a writ of prohibition.

      MX. PPLTOATION for a Prohibition.

      G. L. Bright, for application.
   Voorhies, J.

This is an application by Jesse Earlam for a rule nisi on the Judge a quo to show cause why a writ of prohibition should not be issued forbidding him from taking any further cognizance of a cause in which James A. Kelly is plaintiff and the relator defendant.

James A. Kelly, it appears, instituted an action against the relator in the Fourth District Court of New Orleans, for the recovery of $2800, besides interest. The relator excepted to the jurisdiction of the court, on the ground that his domicil was in the parish of Franklin, Louisiana, where he was suable alone. He complains that his exception was improperly overruled and the action sustained against him in favor of Kelly.

In cases in which a party has an adequate remedy by appeal, this court will not listen for a moment to an application for a writ of prohibition or mandamus. 8 A. 92, 288. In the case at bar vve think the relator will, if injured by the overruling of his plea, have an adequate remedy by appeal from such final judgment as may hereafter be rendered against him in the case.

It is, therefore, ordered, that the rule prayed for be refused, at the applicant’s cost.


author: Merrick, C J.

text:
    Mrs. Charles Levistones v. Thomas R. Brady et al.
    Although it may be true, that when creditors of the husband attack a judgment of separation, it is incumbent on them to allege and prove that they were creditors at the time of its rendition, and further, that it was obtained by fraud and collusion in order to defeat their recourse on the husband’s property, yet this must be held to apply to a case where the judgment is ostensibly valid, and not to a case which does not appear to have dissolved the community.
    The judgment offered in evidence was “ that M. de M., wife of L., have judgment against her said husband, decreeing a separation of property between her and her said husband, and granting to her the administration of her private and individual property,” &c. No other part of the record of said suit was before the court. Held.: that the judgment, as it reads, creates a strong presumption that it was a consent judgment — a voluntary separation of property which did not dissolve the community. O. 0. 240 L, and besides, there being no publication, as required by Arts. 2402 and 2408 0. C., that the creditors of the husband were justified in making a seizure of property apparently belonging to it.

      MX. PPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      L. Eyma, for plaintiff and appellant. Wolfe & Singleton and Mix, for defendant.
   Merrick, C J.

The marriage settlement, produced in evidence by the plaintiff, renders it probable that the wife had, at the time of her marriage, a joint interest in certain property, slaves and movables in Georgia, where the parties appear to have resided at the time of the marriage.

There is nothing, however, to show that this property was brought to Louisiana, or that the same has been disposed of by the husband to the prejudice of the right of his wife.

It may be true that, where creditors of the husband attack a judgment of separation, it is incumbent on them to allege and prove that they were creditors at the time of its rendition, and further, that it was obtained by collusion in order to defraud them of their recourse upon their husband’s property. See Morris v. Williams, 6 An. 392, and Brosac v. Ducross, 4 Rob. 336. But this must be held to apply to a case where the judgment is ostensibly valid, and not to a case which does not appear to dissolve the community.

The judgment presented to us in this case is separated from the pleadings, and all we have in the record of the suit of separation is the judgment, which is in these words, viz:

Melanie De Mestre, wife of Charles Levistones, v. Her Husband.

“ In this case, the court considering the admission of the defendant, and the evidence on file, it is ordered, adjudged and decreed, that the plaintiff, Melanie Be Mestre, wife of Chas. Levistones, have judgment against her said husband decreeing a separation of property between her and her said husband, and granting to her the administration of her private and individual property, and it is further ordered that the defendant pay the costs of this suit."

Now, it occurs to us that the plaintiff would have produced the whole record of her suit of separation, had it not been that her counsel thought it would be more unfavorable to her than the judgment alone. That judgment, as it reads, creates a strong presumption that it was a consent judgment — -a voluntary separation of property, which did not dissolve the community. C. C. 2401. Jones v. Morgan, 6 An. 632.

In addition, there is no evidence of its publication or execution, as required by Article 2402 and 2403 of the Civil Code.

We are of the opinion that the judgment of separation produced does not appear in itself to have dissolved the community, and the creditors were justified in making a seizure of property apparently belonging to it.

Judgment affirmed.


author: Merkick, C. J.

text:
    Same Case on a Re-hearing.
   Merkick, C. J.

A re-hearing -was granted in this case on the question whether the allowance of one thousand dollars special damages for counsel fees was not too much. As the judgment allows the highest rate of conventional interest, and damages at the rate of ten per cent on the amount injoined, we think the special damages as counsel fees should be reduced.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be amended, by reducing the special damages therein allowed for counsel fees from the sum of one thousand dollars to the sum of three hundred dollars, and that the judgment of the lower court, so amended, be affirmed, and that the appellees pay the cost of appeal.


author: Vooehies, J.

text:
    Ship Rappahannock v. John O. Woodruff & Co.
    Where hay was shipped, according to the bill of lading, in good order and condition, and on its delivery, at the place of destination, was damaged, it is incumbent on the owners of the vessel, to show that the damage was not caused by bad stowage or want of care.
    C. 0. 3.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Durant & Kornor, for plaintiffs. Wolfe & Singleton, for defendants and appellants.
   Vooehies, J.

The plaintiffs seek to recover the sum of $633 21, for freight and primage on 1500 bales of hay, carried by the ship Rappahannock.

The defendants set up a demand, in reconvention, alleging that the hay was shipped in good order and condition; that whilst in the custody of the plaintiffs, 522 bales of it, weighing 142,750 pounds, were stained and injured to the extent of $7 per ton, and 24 bales, weighing 6330 pounds, were damaged to to the extent of $14 per ton, making an aggregate of $543 93, which damage was caused by the negligence and carelessness of the plaintiffs, who are consequently responsible, in solido, therefor.

The hay, according to the bill of lading, was shipped in good order and condition. On its delivery at the place of destination, the evidence shows that a part of it was damaged. Under the circumstances, it was incumbent on the plaintiffs to show that the damage was not caused by bad stowage or want of care. However, we consider the evidence entirely too loose and vague to enable us to ascertain with sufficient certainty the extent or amount of the damage which the appellants have sustained.

But it is insisted by the appellants, that damages in regard to such cargoes are regulated by the custom in this city, as established by merchants, by classing all bay as stained when the damage it has received does not amount to 25 per cent., and as damaged whenever the damage exceeds that amount.

A classification of the damaged hay in this case was made under the alleged custom, and the appellants rely on it in support of their claim. The estimate thus made of the damage to the hay appears to us to be altogether conjectural and arbitrary, even supposing such a custom to prevail. The witness who made it says: “ Stained hay is one-fourth off, and damaged or cropped one-half. This is the usual custom between buyer and seller. No difference is made upon stained hay if damaged 5 per cent, or 25 cent.; it is all stamped as stained hay.” We do not think there is sufficient proof of such a custom. Admitting that it prevails between buyer and seller, it would be extremely doubtful whether it could have any binding force upon the plaintiffs, or others not parties to it. C. C. Art. 3; 7 L. R. 524; 11 ibid, 523; 4 R. R. 881.

We do not think the court below erred in giving judgment against the appellants as in case of non-suit.

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


author: Buchanan, T.

text:
    Heirs of Delord v. City of New Orleans.
    The course of the side lines of property, in front of which alluvion is formed, is of no consequence in the division of the alluvion formed subsequently to the conveyance or grant. The line of such division must he drawn in such manner, as that each of the contiguous riparian proprietors shall have such proportion of the alluvial soil as the total extent of his front line bears to the total quan - tity of the alluvial soil to he divided. C. 0. §08.
    The mere omission to figure on the plan of the Delord estate the alluvion that may have existed in front of it, and to divide it among the heirs, cannot he construed into an abandonment of the ownership in favor of the public. ,
    Decision in Kerwiedy v. Municipality Mo 2,10th A; Rermj v. The City; and Hews of Gamnié v. The Same% 11th A. affirmed.
    APPEAL from the Sixth District Court of New Orleans, GoUon, J.

      Jarán & Griffon, for plaintiffs. Livingston, for defendants and appellants.
   Buchanan, T.

The plaintiffs, heirs of Madame Delord Sarpy, claim in right of their ancestor a portion of the alluvion or batture in front of the faubourg Delord, from the defendants who are in possession of the same. The defence turns upon three points:

1st. That the division line of the alluvion in front of the faubourg St. Mary and Delord should be a prolongation of the line of division of those faubourgs; which mode of running the line, would exclude the land in contest from the share of the Heirs of Delord in said alluvion.

2d. Dedication of the property to public use by the Heirs of Delord.

3d. Prescription.

I. The mode of dividing the alluvial deposit on the banks of the river of Louisiana between contiguous proprietors, whose titles call for a front on the river, is clearly and concisely prescribed in Article 508 of the Civil Code: “ If an alluvion be formed in front of the property of several riparian proprietors, the division is to be made according to the extent of the front line of each, at the time of the formation of the alluvion.” The judgment of the District Court has followed this plain rule of law in awarding the land in contestation to the plaintiffs. A prolongation of the division line of the faubourgs would cross the bat-ture in front of them obliquely up the river, and in course of time would exclude the plaintiffs from the river altogether. This mode of division of the batture is contrary to the spirit as well as to the letter of the law. The title by accretion, or right of accession in relation to land, is a sort of legislative donation of what would, without such donation, be public property. It is a pure gratuity by the State to the riparian proprietor. For there is no reason whatever, in the nature of things, why the purchaser or grantee of an arpent of land extending to the river bank should become, without any price paid or consideration passing, the owner of another arpent of land added to the first arpent by the effect of alluvial deposit. His title to the second arpent is not the conveyance which he holds of the first; but it is the law. ' This legal title refers, it is true, to one of the lines of the riparian proprietor’s original title, as the measure of his right of accession in the alluvial accretions of soil. But the line so referred to is not the side line of the original conveyance or grant. It is its front line, and the front line alone. The course of the side line is a matter'of no consequence in the division of alluvion formed subsequently to the conveyance or grant. The line of such division must be drawn in such manner as that each of the contiguous riparian proprietors shall have such a proportion of the alluvial soil as the total extent of his front line bears to the total quantity of the alluvial soil to be divided.

There is no case in our Reports of any decision upon the construction of Article 508 of the Code; an indication that the understanding of the community and of the profession has been unanimous upon the subject. There is a case in 17th Louisiana Reports, page 573, somewhat analogous, in which a pretention of the First Municipality of the'city of New Orleans to prolong one of its wharves so as to interfere with the wharves of the Second Municipality, was rebuked by the Supreme Court. But, that case turned upon the construction of the Act of 1836, dividing the city of New Orleans into three Municipalities.

II. The answer pleads that plaintiffs are estopped in law; for, by their silence and inaction, they have assented to the mode in which the batture has been laid off into squares and streets, and to the prolongation of the side lines of the fau-bourg across the batture.

In argument, this plea is amplified into one of the locus in quo by the plaintiffs to public use. In support of this view of the subject, defendants have given in evidence an act of partition between the heirs of Madame Delord Sarpy, on the 7th April, 1827, and the plan attached thereto. The argument is, that inasmuch as the land now claimed does not figure upon that plan, and as the plan and the act profess to represent and to divide all the real estate of Madame Delord's succession in New Orleans, therefore it must be inferred the heirs of Madame Delord have renounced all right of property in the locus in quo, if they ever had any, and have dedicated it to public use. And the learned counsel of the city relies upon the decision of this court in Sarpy v. Municipality No. Two, 9th An. 597, in which these same plaintiffs claimed the Tivoli Circle, and the same act of partition and plan were in evidence, and were commented upon by the court as acts of the plaintiffs, which, taken in connection with other acts in evidence, established a renunciation of the proprietorship of Tivoli Circle by the plaintiffs, and a dedication of the same to public use.

The two cases are not analogous. Without going into a review of the points of difference between them, it is sufficient to say that the existence of alluvion susceptible of private ownership outside of New Levee street, in the faubourg Delord, in 1827, is not proved; and if it were, the mere omission to figure it on a plan as part of the Delord estate, and to divide it among the Delord heirs, could not be construed into an abandonment of ownership in favor of the public. This would be pushing the doctrine of estoppel to an extent that none of the authorities warrant. In fact, the Heirs of Delord might very well have supposed in 1827 that the batture did not belong to them. Two years later the Supreme Court decided the case of Cochrane v. Port, (7 N. S., 622,) adversely, to a claim of batture by the riparian proprietor, within the limits of the city. It is well known that the late Ohief Justice Martin, to the end of his career, maintained the right of the city to such batture; and the contrary doctrine was only finally settled, in the face of his dissenting opinion, in the Orleans Cotton Press case' in the year 1841. 18th La. Rep.

III. The plea of prescription set up by the city rests upon the same foundation as that pleaded and overruled in Kennedy v. Municipality No. Two, 10th Annual, 54, a decision subsequently twice affirmed in the case of Remy, and -of the Heirs of Gaiennié v. the City, in 11 Annual.

An error has been committed by the District Court in the amount of the judgment rendered against the city upon the call in'warranty of its co-defendant George May. The city is only bound to refund what it received from its vendee Holt; and, although Holt afterwards received an advance upon what he had paid, from Ms vendee May, yet the latter, who, as he was authorized to do by the terms of his deed, has exercised Holt’s right of warranty against the city, can evidently only do so to the same extent that Holt himself might have done.

It is, therefore, adjudged and decreed, that the judgment appealed from, be reversed, by reducing the amount awarded in warranty, from $8000 to $7350, for which sum judgment is hereby rendered in favor of George May (in restitution of eash and notes) against the city of New Orleans; that, in other respects, the judgment appealed from be affirmed, and that the costs of the court below be paid by all the defendants, and those of appeal by the defendant May.


text:
    William Sullivan v. Mrs. Urilda Smith.
    The fact that the plaintiff was indemnified by the insurance company for his poi'tion of the wall damaged by the fire, does not impair his right to recover from defendant, reimbursement, to the extent of its value, of that portion of the wall which he had rebuilt, and which he was not paid for by the company, and which was not protected by the policy of insurance, and which defendant had used.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Oliver, for plaintiff. Labatt, for defendant and appellant.
   Lea, J.

The plaintiff and defendant were "owners of adjoining stores on Magazine street.

A fire having destroyed the store of the defendant, the division wall, which was also a wall in common, was injured to such an extent as to make it necessary that it should be demolished and rebuilt. This was done by the plaintiff, who contracted for the rebuilding of the wall, and paid for it. The defendant at the same time, and while the party wall was being rebuilt, commenced rebuilding her own store, and used the party wall for the purpose of supporting the building.

The plaintiff sues for the value of that portion of the wall used by the defendant, which is shown to be worth the full amount claimed in the petition. The fact that the plaintiff was indemnified by the insurance company for Ms portion of the wall damaged by the fire does not impair his right to recover from the defendant reimbursement, to the extent of its value, of that portion of the wall for which he was not paid by the company, and which was not protected by the policy of insurance, and which the defendant has used. It is shown by the evidence that a wall has been built by the plaintiff, which supports the store of the defendant, and that the defendant has not paid for it.

We think she is liable for the value of her share of the common wall. We are not prepared to say that the case is one which justifies damages as for a frivolous appeal.

Judgment affirmed.


author: Vooitnuss', J.

text:
    O. Wickham v. Charles Levistones et al.—Hunneville, Hill & Co., Intervenors.
    Ships and vessels are classed, by Art. 3256 C. 0., among the objects susceptible of mortgage,but this is modified by Art. 3272, which declares that hypothecations of ships and other vessels are made according to thelaws and usages of commerce.
    The only privileges which exist on vessels, are those which are expressly recognized and enumerated in the Code, Art. 8152. The extreme term of the duration of privileges on steamers, when engaged in making voyages between this port and those of other states, is sixty days.
    Where the owner of a vessel makes a contract, by which he stipulates, m consideration of advances to be made by the other party, to give him the entire management and control of the vessel, with the right and authority, to employ all the officers a/nd crew necessa/t'y to navigate it, and to hold the vessel as security u/niil the rdmbwsetneni of the whole amount of said advances, &c. — Held: That such a contract cannot b e construed as having the effect of a pledge on the vessel, nor can it be looked upon as creating a privilege on the vessel or its proceeds. Such a claim not being recognized as a privilege in Art. 8204 C. C.

      ■IX. PPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Wolfe & Singleton, for plaintiff. Emerson & Huntington, for intervenors and appellants.
   Vooitnuss', J.

The object of this suit is to distribute between the creditors of the defendant, all of whom claim to be paid by preference on account of their respective privileges, the proceeds of the sale of the steamship Cincinnati, in the hands of Harris & Morgan, as garnishees.

The intervenors, Hunneville, Hill & Go., are the only appellants from the judgment of the court below; none of the appellees have filed an answer in this court, praying for its reversal.

The appellants sued the defendant, Oliarles Levistones, for the sum of $940 50, with six per cent, interest thereon from the 1st of October, 1851, for money advanced to supply the steamship Cincinnati, which amount, it is alleged, is secured by mortgage on said vessel in accordance with the laws of the United States, and the usages of admiralty. The defendant on purchasing the vessel, assumed the payment of this claim.

Ships and vessels are classed by the Civil Code, Article 3256, among the objects susceptible of mortgage; but this is qualified by the Article 3272, which declares that hypothecations of ships and other vessels, are made according to the laws and usages of commerce. In the case of Malcom v. Schooner Henrietta, 7 L. 490, it was held, that this was a restriction on mortgages of ships to cases in which such hypothecation would be considered as valid by the usages of commerce or the commercial law.

The mortgage set up by the appellants, does not fall under the denomination of any of the different species of hypothecations known in the commercial world. It was given on the steamer Cincinnati, whilst in port, sometime before leaving on a contemplated trip to California; and its object was to secure the payment of a sum of $1000, advanced by the appellants to the then owners of the vessel. It was stipulated, that if the latter paid or caused to be paid a certain bill of exchange, therein fully described, and payable nine months after date, then the act of mortgage should be void, otherwise to remain in full force and virtue. Such a mortgage is not recognized by our laws, and consequently cannot be enforced by our tribunals. 7 L. 490; 4 Ann. 310.

There was a consent judgment in favor of the appellants against Levistones, for the sum of $940 50, with privilege on the steamer and on the proceeds of the sale thereof. The judgment was signed on the 6th of June, 1852, and on the same day, the proceeds of the vessel were attached in the hands of Harris & Morgan. The effect of this garnishment was to give the appellants a privilege on the proceeds from its date, unless the debtor had previously become bankrupt. O. P. 722. But it would seem that the vessel had already been levied upon at the suit of J. C. Shannon v. O. Levistones et als. It is clear that the judgment rendered in that case, and which is classed as a privilege in the name of G-. W. Spratt, the transferree of the plaintiff Shannon, cannot be disturbed at the instance of the appellants.

It is contended, that the item of $2,106 56, for claims paid by R. B. Syhes, was erroneously classed as a privileged claim by the court below. Sylees is not a party to this suit, but was employed as an auctioneer to sell the steamer Cincinnati. This amount was settled and paid over by Harris & Morgan, previous to the service of the garnishment on them; hence, they can be made responsible as garnishees only for the amount which they then had in hand, subject to the appellants’ claim. This item, apparently for the benefit of Syhes, was in reality a deduction allowed on the total amount which Harris & Morgan had in hand for the defendant, previous to the garnishment.

We think the court below erred, as urged by the appellants, in allowing the respective claims of Salter & Marey, H. & J. Watson, H. Seibreeht, J. M. Self & Go., John Armstrong, F. Fvans, Thomas B. Brady, and the Orescent Insurance Company, as privileges. The only privileges which exist on vessels, are those which are expressly recognized and enumerated in the Code. Art. 3152; 2 Ann. 602. The extreme term for the duration of privileges on steamers, when engaged in making voyages between this port and those of other States, is sixty days. Prior to the respective oppositions of these creditors, their privileges had already ceased to exist, by the lapse of more than sixty days. Hence, it follows that their claims must yield to that of the appellant.

The plaintiff, O. Wiehham, whose claim for the sum of $8,744 91, was allowed as a privilege on the residue of the proceeds, asserts a right of pledge under a contract entered into between him and Levistones, on the 8th of January, 1852, whereby the latter stipulated, in consideration of sundry advances to be made to him, not exceeding the sum of $6,500, to give to the former the entire management and control of the said steamship, with the right and authority to employ all the officers and crew necessary to run the said vessel for the period of six months, and to hold her as security until the reimbursement of the whole amount of said advances, with eight per cent, per annum interest thereon, from the date of making the same until paid, to be effected at the expiration of the six months, provided the earnings of the steamer should be insufficient to effect that purpose. It was also stipulated that the plaintiff should be entitled to receive, as compensation for his services in managing the business of the steamer, jive per cent, commissions on the gross amount of her earnings. The act concludes with the stipulation, that the earnings shall be applied, first, to the payment of the necessary expenses to run the steamer; secondly, to the reimbursement of the advances to be thus made by the plaintiff; and lastly, the balance, if any, was to be subject to the order of the d fendant.

It appeal’s to us that such an act cannot be construed as having the effect of a pledge on the steamer; for it could, at the most, secure to the plaintiff only the right to apply her net earnings to the reimbursement of his advances. Nor can it be looked upon as creating a privilege on the vessel or its proceeds, for the claim set up is not one of those recognized as a privilege to which ships are subject under the Code. Art. 3204. It may be true that the advances were made to pay debts due by the steamer, and which were secured by privilege on her; but, if such be the fact, there is no evidence that the plaintiff was legally subrogated to the rights of such creditors. His claim allowed by the court below as a privilege, must therefore yield to that of the appellants.

It is therefore ordered and decreed, that the judgment of the court below be amended in favor of the appellants, Hunneville, Hill & Go.; that said appellants, in the distribution of the proceeds of said steamer Cincinnati, be ranked f or the whole amount of their claim, as a privilege to be paid in preference to the claims of said appellees, Salter & Mao'ey, B. & J. Watson, H. Seibreeht, J. M. Self & Go., John Armstrong, F. Mans, Thomas B. Brady, and Crescent Insurance Company ; the said appellees to pay the costs of this appeal; and that in every other respect said judgment be affirmed, w


author: Spoefobd, J.

text:
    James F. Boyd v. Joseph H. Estis et al.
    Gratuitous bailees are not liable, except for losses occasioned by their fraud or gross negligence.
    A package of bank notes was delivered by the agents of plaintiff on board a steamboat for transportation, the amount of which was specified on the face of the package and the attention of the officers called to its value — i&Z# .• That gross negligence is fairly to be inferred, from the fact that the officers of the boat could give no account whatever of its disposition.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Bonford, for plaintiff. Singleton, for defendants and appellants.
   Spoefobd, J.

The plaintiff seeks to recover the sum of $2,8SO, from the defendant, it being the amount of a package of bank notes alleged to have been delivered by his agents on board the steamer Prank Lyon, of New Orleans, for transportation to Lake Providence, but never restored to him or carried to its destination.

The answer of the defendants was a general denial, and they have appealed from a judgment rendered against them upon the verdict of a jury.

They contend that the package was never received by any officer of the Prank Lyon, for the purpose of carrying it to Lake Providence.

Upon this point, there is the positive testimony of two witnesses in favor of the plaintiff’s assertion, witnesses who were deemed credible by the court and jury before whom they were examined.

We find no evidence in the record, which countervails this positive testimony.

But the defendants further say, if they did receive the money, they charged nothing for its transportation, and, therefore, cannot be responsible for its loss, except upon proof of gross negligence on their part, the burden of proving which devolves upon the plaintiff

This line of defence is not quite consistent with the first position they assumed, to wit, that there was no bailment.

The general rule is, that gratuitous bailees are not liable except for losses occasioned by their own fraud or gross negligence.

But we think that gross negligence in this case is fairly to be inferred from the fact, that the defendants can give no account whatever of the disposition of the package after they received it. The amount of money inclosed was snecified on the face of the letter, and the attention of the officer who received it was called to the fact of its value. In the exercise of even slight diligence, he should have put it away immediately in a safe place.

Judgment affirmed.