text:
    No. 3136.
    J. C. Van Wickle, Executor v. Mary Calvin.

      A. testamentary executor can not sue for tlie nullity of a sale of real property, made by tbe testator, on the ground that the sale is fraudulent and simulated and made for the purpose of defrauding the creditors of the deceased. The testamentary executor only stands in the place of, and represents, the testator; he can, therefore, bring no action; nor stand in judgment in any case where the testator, if alive, could not.
    APPEAL from the Seventh District Court, Parish of Pointe Coupee.

      Miller, J. Thomas HI. Hewes, for plaintiff and appellant.

      W. T>. Winter, for defendant and appellee.
   Howell, J.

The question in this case is whether or not a testamentary executor can sue to set aside, as simulated and fraudulent, an act of sale of real property made by the testator and have the property declared to belong to the succession upon the allegations that said sale was made to hinder and delay the creditors, the executor being one individually; that there are debts .amounting to many thou-sound dollars, and that, although the deceased held a lucrative office, he, the executor, has been unable to find any money or obtain possession of any property whatever, except a small quantity of movables inventoried at about $300.

We are of opinion that this question, as presented in this case, must be decided in the negative.

The plaintiff does not claim to act for, and in the name of, the ■creditors, but simply as executor of the last will and testament of the deceased, and without alleging that by the will he is vested with seizure ■of the property of the estate. In such capacity he can be considered only as standing in the place of the testator, and can only bring such actions as the latter could himself bring, and it is clear that the testator, if alive, could not maintain this action. The sale attacked is just as much the act of the 'deceased as the will through which the plaintiff desires his appointment and authority.

We conclude that the district judge did not err in maintaining defendant’s exception.

Judgment affirmed.


source: Caselaw Access Project

author: Wyly, J.

license: Public Domain

text:
    No. 3181.
    William Silliman et als. v. John Y. Mills et als.—Joseph E. Norwood, Third Opponent.
    Ouo mortgage takes rank over another by the priority of date of registry in tlie office of the Recorder of Mortgages where the property mortgaged is situated. The priority of dato of registry gives the preference over the property mortgaged or the proceeds thereof, if it has been sold without reference to the character of the debt on which the mortgage is founded.
    .All exceptions to the form of the proceedings, if not pleaded in limine litis, are considered waived, if the case has been decided on general and special defenses without any action of the court on the exceptions.
    APPEAL from the Seventh District Court, parish of Pointe Coupée.

      Miller, J. Farrar & Montgomery, for plaintiffs and appellees-

      Collins & Lealce, for defendants and appellants.
   Wyly, J.

This is a contest between mortgage creditors for the proceeds of the sale of a plantation in the parish of Pointe Coupée and a rule to compel the sheriff to complete the sale of the property adjudicated to the plaintiffs, the seizing creditors, on the second day of May, 1868.

The contest for the proceeds is between the plaintiffs and the third opponent, the latter claiming part of the proceeds on the ground that he is a concurrent mortgagee.

The court, deciding that the mortgage of the opponent was inferior in rank to that of the plaintiffs, dismissed the opposition and ordeied the sheriff to complete the judicial sale made on the second clay of May, 1868, and to credit the amount of the bid on the writs of the plaintiffs in execution.

The third opponent has appealed.

It appears from the record that the mortgage foreclosed by the-plaintiffs, and under which the plantation was sold, was recorded in tlie parish of Pointe Coupée, where the plantation is situated, twelve-days prior to the registry of the mortgage of the third opponent in-said parish.

It matters not what may have been the consideration of the mortgage of the third opponent or at what time it was executed, it only-had effect as to the plaintiffs from the day of its registry in the parish of Pointe Coupée, and, this registry being subsequent to tlie plaintiffs’,, the mortgage of the latter is inferior in rank to -the mortgage of the-third opponent. The plaintiffs are therefore entitled to the proceeds of the sale.

We deem it unnecessary to consider the objections which are purely technical, and in which the third opponent is not interested, being a. junior mortgage creditor; and we will not notice the issues raised in the amended answer of the opponent to plaintiffs’ rule, because the-same was disallowed by the court and no bill of exceptions was taken-, to said ruling.

The objection that the sheriff returned the writs of execution after the adjudication without completing his return thereon, can not defeat the rights of the plaintiffs, it being the duty of the sheriff to retain, certified copies on which to make his final returns, and he being presumed to have done his duty. Acts of 1855, approved March 15; C. P. 642.

The exception to the capacity of the executors of Silliman to file the rule to compel the sheriff to complete the sale, should have been pleaded in limine litis before issue joined, and it is considered waived by the general and special defences to the merits on which the case was determined, without any action of the court thereon. C. P. 333; 11 An. 688, 689; 18 An. 206, 207, and authorities cited.

It is therefore ordered that the judgment appealed from be affirmed, the appellant paying costs of appeal.


text:
    No. 3237.
    J. R. Jeffrey & Sons v. W. D. Philips.
    Citation of appeal must be served on the appellee, if be resides in tlie State. C. 3?. 582. Tbe appellee who resides in tlie State, cannot bemad© a party to the appeal by service of citation on the attorney.
    APPEAL from the Seventh District Court,' parish of Pointe Coupée.

      Posey, J. Greaves & Dupree, for plaintiffs and appellants.

      Collinsr & Lealce, for defendant and appellee.
   Wyly, J.

The motion to dismiss this appeal must prevail on the-ground that the defendant, the appellee, was not cited; he being a. . citizen of this State can not be made party to the appeal by service of citation on his attorney. C. P. 581, 582; 21 An. 429.

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


author: Howe, J.

text:
    No. 2475.
    Louis Gagnet v. The City of New Orleans.
    The Supremo Court will not examine the question whether the act of 1858, authorizing the appointment of experts to determine the damages in certain cases, is in conflict with articles ten and seventy-three of the Constitution, which provide that the judicial power of the State shall be vested in certain courts and justices of the peace, if such objection be only urged in the answer, and the report of the experts is allowed to go before the court on the trial without objection. If the experts could not be judges on account of the sole judicial power being lodged elsewhere, still they might be witnesses, and their report, when received on the trial without objection, is entitled to consideration as-evidence in the case,
    APPEAL from tbe Fourth District Court, parish of Orleans.

      Theard, J. John Livingston, for plaintiff and appellee.

      GeorgeS. Lacey, city attorney, for defendant and appellant.
   Howe, J.

The plaintiff, as lessee of the Carondelet Canal and Navigation Company, instituted this suit under the provisions of an act of tlie Legislature, approved March 10, 1858, by which it was provided that, after the expiration of five years from the final passage of the act, the city corporation should be prohibited from draining into the Bayou St. John; and that, if the city should continue to drain into said bayou after the expiration of the term aforesaid, then only upon due indemnity being made for any injury which should be made to appear to result therefrom; said indemnity to be determined by three experts, to be appointed, one by the city corporation, one by the company and one by any of the district judges of New Orleans.

The plaintiff named Ms expert and prayed the court to name another,, which was done. He prayed that these experts, together with one to be selected by the city, might ho ordered to report the damages done to him by the acts of the defendant in draining into the bayou from March 10, 18G8, up to the time of their report, and for judgment therefor and for all such relief as the nature of his demand might require. •

The answer of the defendant was a general denial and a special averment that the act, No. 74 of 1858, under which suit was brought, was null and void, because in contravention of article sixty-one of the Constitution of 1852 and articles ten and seventy-three of the Constitution of 1868, which provide that the judicial power of the State shall he vested in certain courts and in justices of the peace. Witliout waiving this defence the defendant appointed an export as . requested by the petition.

, The experts made a unanimous report, fixing the damages at $500 per month from February 1, 1869, to July 1, 1869, or, in all, $2500, and thenceforward at the same rate so long as the city should continue to use the bayou as a drain. Upon this report-and the other evidence in the case the court a qua gave judgment in favor of plaintiff for $2500, and ordered the city to cease draining into the bayon on the first July, 1869, or in default to pay plaintiff the sum of $500 per month after July 1, 1869, so long as such draining should continue. The city appealed.

The report of the experts was received without objection. There is no bill of exceptions of any Mud in the record. We do not perceive, therefore, the necessity of passing upon the question raised by the .pleadings, whether the act of 1858, providing ior the determination of damages by experts appointed in a certain way, is in conflict with those articles of our fundamental law which vest the judicial power solely in certain courts and justices. The experts could certainly be witnesses if they could not he judges, and their report, .received without objection, has weight as testimony, even if it has no value as a quasi-judicial decision. It helps to maintain the judgment of the court, in which, save in one respect, we see no error.

Several interesting questions of the powers of the State over municipal corporations, of the servitude of drain, of vested rights and of navigable streams, liave been raised by counsel for defendant in this court, but we do not feel authorized to pass ou them in this record.

In one respect the judgment should be amended in favor of appellant, so as to limit the payment of indemnity to the term of the plaintiff’s lease.

It is therefore ordered that the judgment appealed from be amended so as to limit the rights of plaintiff to a monthly payment of $500 to the term of his lease, which expires April 26, 1878; that, as thus amended, the judgment be affirmed, and that appellee pay costs of appeal.

Rehearing refused.


author: Taliaferro, J.

text:
    No. 3174.
    Mary V. Price, for Herself and as Tutrix v. Sarah P. Cummings and James Cummings.
    'Tlie judgment rendered in the court below, without the question of jurisdiction having been raised, is no bar to the action of nullity before the same court for the want of jurisdiction. Hor can the dismissal of the appeal by the Supreme Court for want of jurisdiction be urged as res judicata, against the action of nullity in the lower court for want of jurisdiction there.
    APPEAL from the Ninth Judicial District, parish of Rapides.

      Osborn, J. H. 8. Losee, for plaintiff and appellant.

      It. A. Hunter, for defendants and appellees.
   Taliaferro, J.

This is an action to annul a judgment rendered in an injunction suit, brought in the district court for the parish of Rapides in 1869 by the defendant, Sarah P. Cummings, to restrain the sale of certain lands upon which the plaintiff in the injunction suit alleged she was entitled to establish a homestead right. The ground upon which the plaintiff prays the judgment rendered in the injunction suit may be annulled, is, that the amount involved is less than five hundred dollars and, therefore, that the district court which rendered the judgment, was without jurisdiction. The defendant excepted to the petition on the grounds that, a judgment having been rendered in the injunction suit, on the same cause of action, between the same parties, and the present plaintiff having appealed to the Supreme •Court, and her appeal being dismissed, the matters in controversy became res juclieatw; and that the plaintiff alleges in this action causes of nullity which she might have set up in her defense in the injunction suit.

The exceptions were sustained by the court below and the suit dismissed, and from this judgment of dismissal the plaintiff appeals.

There is a motion to dismiss on the same grounds that were set up in the lower court. We do not concur with the judge a quo that the defendant can successfully set up the plea of res judicata. The appeal, taken by the present plaintiff as defendant in the injunction suit, was dismissed by this court on the ground of want of jurisdiction, the amount in controversy not exceeding five hundred dollars. In the' injunction suit the question of the jurisdiction of the district court was not raised. The nullity of the judgment on that ground is. the subject matter of the present suit. If the defendant in.injunction had excepted to the jurisdiction of the district court and judgment had been rendered, as it was, against her, she clearly would have had the-right to her action to annul. The fact that she appealed and the appeal was dismissed for want of jurisdiction in this court, places her in no worse position. We think the court erred in sustaining the exception.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that this case be remanded to the court of the first instance,, to be proceeded with according to law, the defendant and appellee paying costs of the appeal.


text:
    No. 3196.
    New Orleans Canal and Banking Company v. Mrs. Sophia Martin.
    If the ploa of prescription be made for the first time in the appellate court and the record-shows no interruption, the cause will be remanded, on the suggestion of the appellee, with instructions to the judge a quo to try the question whether there has been any interruption or suspension of prescription.
    A clause in the judgment of the court below, which has been confirmed on default, granting* a stay of execution for one year, does not debar the defendant and appellant from urging the plea of proscription in the appellate court.
    APPEAL from the Ninth District Court, parish of Rapides.

      Osborne, J., T. 0. Manning, for plaintiff and appellee.

      JRyan & White, for defendant and appellant.
   Wyly, J.

The defendant has appealed from a judgment confirming a default against her and rendering executory the mortgage securing, the instrument sued on.

She has filed in this court the plea of prescription, which, upon tha. face of the papers, seems to be an effectual bar to the recovery of the demand of the plaintiff. There is no interruption or .renunciation of prescription shown, and we must conclude that the plea is well taken. As the plea has been filed in this court, and as the plaintiff has asked that the case be remanded if the plea should appear to be well taken, we will remand the case for the purpose of having it judicially ascertained whether there has been an interruption or renunciation of prescription.

The defendant is not estopped from pleading prescription in this court, as contended for by the plaintiff, because in the judgment confirming the default there is a clause staying execution for one year. We can not say that a party who lias entered no appearance and against whom a default has been confirmed, has done an act in the progress of a case in the court below estopping him from pleading prescription in this court.

It is therefore ordeied that the judgment appealed from be annulled, and that this case be remanded for new trial, and to be proceeded in according to law and the views herein expressed. It is further ordered that appellee pay costs of appeal.


author: Howell, J.

text:
    No. 3193.
    Lizzie Taylor, Administratrix, v. W. B. Robertson and Wife.
    The stipulation in a note and act of mortgage that the maker could not he required to pay it until a certain judicial mortgage resting on the land was raised, can not he invoked to defeat the plea of prescription after the judgment from which the judicial mortgage springs, has been paid.
    In this case the record shows that an injunction, which had been granted to stay the sale of the property under this judicial mortgage, had been set aside by a decree of the Supreme Court on the ground that the judgment had been paid. This decree of the Supremo Court was, however, not filed in the recorder’s office until after prescription had accrued on the note. Held — That, if the decree of the Supreme Court annulling the judicial mortgage was not of itself sufficient notice to the holder of the note that it was due and exigible, yet it was the duty of the holder of the note and the vendor of the land to have the judicial mortgage on the land erased from the records so soon as the decree of the Supreme Court had declared it voidj and tliorefore, if ho, the holder, failed to have the judicial mortgage erased from the records, he was estopped by his'own laches from invoking the failure to record the decree of nullity to defeat the plea of prescription of the note which had been allowed to prescribe in his hands.
    APPEAL from the Fifth District Court, parish of West Baton Rouge.

      Posen, J- Fuqua <& Callahan, for plaintiff, and Parrot é'Lamon, for defendant, W. B. Robertson, appellee.

      Barrow & Pope, for Mrs. M. J. Robertson, defendant and appellant.
   Howell, J.

This is a suit on a mortgage note, changed from the executory to the ordinary form, against W. B. Robertson, the maker of the note, and his wife, to whom the land mortgaged had been transferred in part payment of her judgment against her husband prior to these proceedings.

The prescription of five years is pleaded by both defendants, and in case this plea is not sustained, the wife abandons the property. Prom a judgment against the husband for |the amount of the note and against both recognizing the mortgage on said land, the wife alone has appealed.

Tile note was due on first January, 1859, and notice of the executory process was given to the debtor on eighth December, 1866. But plaintiff contends that prescription was suspended by a clause in said note and the act of mortgage by which it was stipulated that the maker of said note was not to pay the same anid had the right to withhold the1 payment thereof until a certain judicial mortgage resting on the property was fully canceled and released.

This mortgage, it is contended, was raised by a decree of tlie Supreme Court, offered in evidence, which maintained an injunction against the execution of the judgment operating said mortgage, on the ground that said judgment was paid. This decree was recorded in the lower court on eleventh December, I860. According to an indorsement on it, it was not filed in the recorder’s office until first November, 1866. Plaintiff insists that prescription did not begin to fun until this last date. In this view we do not concur. It was the duty of plaintiff’s intestate, the holder of the note now in suit and the vendor of tlie land for the price of which it was given, to have said mortgage erased, and surely, when he was successful in the suit involving the validity thereof, he was in a condition to clear tlie records of the mortgage, even admitting the judgment of the Supreme Court, when final, did not have that effect, and his delay in doing so could not inure to his advantage on the question of prescription. When the said judgment of the Supreme Court became final, he could demand the payment of the note. The objection of plaintiff that this decree is not shown to be identified with the debt or mortgage referred to in the note, has no force. They seem from the record to be sufficiently connected. But if it were not so, there is yet no evidence that the mortgage is canceled, and, on plaintiff’s theory, she would have no right to enforce- payment in this suit. We think the note was prescribed when these proceedings were instituted.

It is therefore ordered that the judgment appealed from be reversed and set. aside, so far as it affects the'property of appellant, Mrs. Mary Jane Robertson, described in said judgment, and that there be judgment in her favor on plaintiff’s demand for tlie seizure and sale of said property; plaintiff and appellee to pay costs of appeal.


text:
    No. 3246.
    J. V. Sevier v. Succession of Gordon.
    The district courts bare no jurisdiction over tlie settlement of disputes purely probate in character. Tlie parish courts hatfe exclusive jurisdiction over such disputes.
    APPEAL from the Thirteenth District Court, parish of Tensas..

      Hough, J. J. W. Collier, for plaintiff and appellee.

      Farrar & Reeves, for defendant and appellant.
   Howe, J.

The plaintiff, being a judgment creditor, proceeded by rule against the executor of Gordon to show cause why succession property should not be sold to satisfy that judgment. The rule was made absolute April 29, 1870, and the sale of succession property ordered in amount sufficient to satisfy the judgment of plaintiff. The executor has appealed.

The decree of the court below must bo avoided for want of jurisdiction. The matter in dispute was probate in character; it concerned ¡ strictly the “settlement” of the succession and belonged to the parish court.

It is therefore ordered that the judgment appealed from be avoided and annuded and the rule dismissed, with costs.


text:
    No. 3108.
    The State of Louisiana v. Laurent Frank.
    In a criminal trial for a capital offense, the jurors are not permitted to separate j and if a separation takes place, misconduct and abuso will always be presumed and a new trial ordered.
    APPEAL from the. Fourth Judicial District, parish of St. Charles.

      Beauvais, J. John A. Cheevers, District Attorney, for the State.

      B. King Gutter and 3P. 33. JEarhart, for defendant and appellant.
   Wyly, J.

On an indictment for murder the defendant was tried and convicted of manslaughter, and, being sentenced to the Penitentiary ior ten years, he has appealed.

On a motion for new trial it was shown that there was a separation of the jury twice during the progress of the trial.. In capital cases it is well settled, that jurors are not permitted to separate, and that upon a separation misconduct and abusé will always be'presumed. State v. Hornsby, 8 R. 554; State v. Crosby, 4 An. 435; State v. Evans, 27 An. 321.

It is therefore ordered that the judgment appealed from be sot aside and annulled, and that this case be remanded for new trial, and to be. proceeded in according to law.


author: Ludeling, C. J.

text:
    No. 3269.
    State of Louisiana ex rel. M. Scooler v. Wm. H. Cooley, Judge of the Sixth District Court.
    An interlocutory decree, ordering interrogatories against a garnishee in an attachment suit to bo taken for confessod, is not appealable until final judgment has been pronounced in tho main action. A writ of mandamus will not, therefore, issue from the Supreme Court, directing the Judge a quo to grant an appeal from such interlocutory order.
    Application for a Writ of Mandamus.

      Gotton é Levy, for relator-

      W. 33. Cooley, Judge, respondent.
   Ludeling, C. J.

In this case the relator prays for a mandamus to. compel the judge of the Sixth District Court to grant him a suspensive appeal. The judge, in his answer, avers that the judgment rendered against M. Scooler was upon a rule taken by E. Newman & Co.,, plaintiffs in their suit v. L. D. Cohn on Scooler to traverse the answers of Scooler to interrogatories therein propounded on the ground that Scooler had confessed before three witnesses, that he had .ample property to satisfy the writ and that his answers were false. Respondent farther says, that as the suit was by attachment against a ¡non-resident, it became essential tor plaintiffs to contradict said answers in order to show the «court had jurisdiction over the defendant, and therefore it was impossible legally to try the case as against defendant before it could be shown some property had been attached to vest jurisdiction; that after a regular trial the rule was made absolute, taking the interrogatories for confessed, and it was ordered that such property and effects, as well as such sum as may be due by the garnishee, be subject to satisfy such judgment as may be rendered against the defendant; and respondent avers that this is a conditional interlocutory order and not a final judgment, and therefore not appealable until there be a judgment against the defendant on the debt claimed by the plaintiff.

We consider the answer states sufficient reason to justify respondent’s conduct. C. P. 842.

It is therefore ordered that ike application be dismissed at the relator’s costs.


author: Wyby, J. Wyly, J.

text:
    No. 3207.
    Ansite Roubieu v. John D. Champlin.
    Tlip. written acceptance "by a person appointed "by tlie court as curator ad hoc in a suit brought against an absentee, in the absence of a citation served upon him or any appearance by him in the proceedings, will not serve to interrupt the current of prescription.
    A PPEAL from the Ninth District Court, parish of Rapides.

      Osborn, J, Pierson heaij, for plaintiff and appellee.

      J. Q. White, curator ail lioe.

   Wyby, J.

On ilio eleventh June, 1860, the defendant made his three promissory notes, maturing one, two and three years after date, in favor of plaintiff, for $2000 each, bearing eight per cent, per annum iul crest from date. In order to secure the payment of the same ho also executed a mortgage on his plantation in the parish of Natchitoches.

In 1865 the plaintiff, alleging that the defendant was an absentee, caused a.curator acl hoe to be appointed, contradictorily with whom she closed the mortgage and caused the property to be sold. The proceeds of said sale, to wit: the sum of $6000, were accordingly credited on said demand by the sheriff on tlie sixth April, 1867.

Plaintiff then instituted an attachment suit against the defendant, In the parish of Rapides, making certain creditors of the defendant parties garnishees, and also causing the citation and attachment for the defendant to be posted at the courthouse door and notice thereof given to the curator ad hoc appointed by the court.

The curator ad hoc pleaded, in his answer, the general issue and the following exceptions, viz:

First — That the suit can not he maintained, because it is based on a claim for interest alone, which is alleged to be due on three certain promissory notes held and owned by the plaintiff, when she judicially admits that she obtained a judgment on them on the twenty-first December; 1866, in the parish of Natchitoches.

Second — He pleads the prescription of five years.

The court rendered judgment in favor of plaintiff and the defend•ant appealed.

We will first consider the question of prescription.

The plaintiff contends that the proceeding to foreclose the mortgage in 1866 and 1867 interrupted prescription, and that this suit was instituted within five years thereafter. The defendant was not cited Jn that proceeding, being an absentee; the judgment rendered contradictorily with a curator ad hoc was not a personal judgment, but a proceeding in rem. It did not interrupt prescription because there was neither citation nor notice of the order served on the defendant. ■C. C. 3482, 3484, 3516, 3517 ; 2 An. 927; 6 R. 142.

A citation for the defendant in this suit was posted at the court•house door on the first August, 1868, and on the same day a notice of ■his appointment was served on the curator ad hoc.

There was no suit as to the defendant till the sheriff affixed to the door of the courthouse the attachment and citation. C. P. 254.

The last of the three notes upon which this demand is based matured •on the eleventh June, 1863. All the notes were more than five years past due when the citation was served and the prescription of five .years had accrued. • C. C. 3505.

Entertaining these views it becomes unnecessary to consider the •other ground of defense.

It is therefore ordered that the judgment of the court a qua be annulled and avoided, and it is ordered that there be judgment for the .defendant, with costs in both courts.

On Rehearing.

Wyly, J.

On further examination we find it will be unnecessary in ■this case to decide whether or not citation served on a curator ad hoc, dn a proceeding in rem, is a legal interruption of prescription as to the absent debtor.

The record of the proceeding in rem at Natchitoches in 1865, introduced to prove an interruption of prescription, does not show that ¿citation was served on the curator ad hoc appointed by the court to represent the defendant, then absent. It merely shows that E. M.. Kearney was appointed curator ad hoe and that he wrote under the order these words:

“ I accept the appointment of curator ad hoc to represent the absent-defendant, J. D. Champlin.

(Signed) E. M. KEAENEY.”

The mere acceptance of the appointment of curator ad hoe, in the '■ absence of a citation served on him or any appearance by him in the proceeding, certainly was not a legal interruption of prescription. 2 An. 927; C. C. 3482, 3484, 3517, 35IG; 6 E. 142; 4 An. 509; 12 La. 533; 17 La. 215.

The prescription pleaded is an effectual bar to the recovery of plaintiff’s demand on the notes.

It is therefore ordered that the judgment of the court a qua in favor of the plaintiff be avoided and annulled, and that there be judgment, for the defendant, with costs of both courts.


text:
    No. 3224.
    Jane Mc C. Harrison, Administratrix v. L. B. Dayries, Sheriff and others.
    A owed two promissory notes, secured by mortgage on real estate. After tbe first note was prescribed on its face, tbe administratrix of tbe estate of A paid it. 33, tbe holder of' • botli notes, gave up tbe one wbicb was paid, and resorted to executory process to enforce payment of tbo ofcbor note wbicb was not prescribed. A enjoined tbe sale on tlio ground that, having paid a certain amount to tbe bolder of tbe two notes after tbe first one was prescribed on its face, it became tbe duty of the bolder to impute the payment thus made to the other note, not prescribed, and to enforce payment of which the executory proceedings áre now taken. Hold — That, in a case like this, the burden of showing that the payment was made through error and was inlendod to be applied to the payment of' tbe note that was not prescribed, devolved on the debtor, and not on the holder of tbe note.
    APPEAL from the Seventh District Court, parish of Pointe Coupée..

      Miller, J. Thomas IT. Hewes and Samuel J. J. Towell, for plaintiff and appellee.

      W. D. Winter, for defendant and appellant.
   Ludeling, C. J.

The plaintiff enjoins the sale of a plantation,. helonging to the succession of Caleb B. Chinn, advertised for sale under an order of seizure and sale.

The grounds upon which the injunction is based, are, first, that the-district judge had not jurisdiction to grant the order; second, that there was no authentic evidence of the transfer of the notes to the present holder; and third, that the debt was extinguished by compensation. The first and second alleged grounds are totally unfounded in fact, and they are not insisted on in this court.

The third ground is attempted to be supported by alleging tliat thetntrix (who is now tbe administratrix and plaintiff) paid $7,137 77 to the defendant who gave up one of the notes, then held by her against the estate administered by the plaintiff, and that said note was prescribed at the time of payment, and that, consequently, the sum thus paid should have been (and was by law) imputed to the note due in January, 1861, which forms the basis of the executory proceedings against the property, the sale whereof was enjoined.

The note paid and taken up, on its face, was prescribed in November, 1865, when the first payment was made on it. But we are not prepared to say that it was, therefore, in fact prescribed; non constat, that the course of prescription had not been interrupted. The fact of payment by the tutrix creates, at least, a presumption that it had, for “ omnia prcesumuntur rite esse acta.” This is not a suit brought upon the note against which prescription is pleaded, but the plaintiff, alleging that she has paid money in error, claims the right to require the party who received the money unduly, to apply it to the extinguishment of another note not prescribed. In such a case, it seems, the party alleging this should prove it, and she has failed to establish this fact, even with the evidence received by the district judge. But the testimony which establishes that the only indebtedness of the deceased, C. B. Chinn, to the defendant, Maher, was evidenced by the notes held by her, one of which was due in 1860 and was paid, and one other duo in 1861, which forms the basis of this contest, should have been received. This, if a fact, is susceptible of being proved by parol or any other kind of legal evidence. If this fact, when proved,, wTU enable the court to understand to what debt a written acknowledgement made by the deceased referred, that can not be a reason for excluding the testimony. There is nothing in the act of 1858 which militates against this view. The law provides “that hereafter parol evidence shall not be received to prove an acknowledgment or promise of a party, deceased, to pay any debt or liability against his succession, in order to take such debt or liability out of prescription or to receive the same after proscription has run or been completed; but that in all such cases the acknowledgment or promise to pay shall be proven by written evidence, signed by the party deceased,” etc. Nor is there anything in the case of succession of Heldebrant contrary to the views above expressed. See 21 An., p. 551.

The acknowledgment, relied upon in the case now under consideration, is in writing, and it is signed by the deceased.

In two letters to the defendant’s son, ho acknowledges his indebtedness to her, and promises to pay as soon as possible. In another he says: “Please find a check for $200 in favor of j’our mother, which please credit on my note.” This was dated twenty-fifth November, 1861. In his letter of the fourteenth May, 1861, he proposes to give an order on Estlin & Co. to pay over to her the proceeds of his crop, to the amount at least of one of his notes. These are the promises and acknowledgments which the act of 1858 requires to be in writing and signed. There is nothing in the laws to prevent parol proof to show that no other debt than the one claimed was due by him when he made the acknowledgments and promises to pay.

It is, therefore, ordered that the judgment of the district court be avoided and annulled, and that there be judgment in favor of defendants, dissolving the injunction, with twenty per centum on the amount of the judgment enjoined, as damages and costs of both courts.


text:
    No. 3139.
    Garthwaite, Lewis & Stewart v. F. Seip and A. E. Casson.
    A notary public wlio lias made a protest of a promissory note and given due notice thereof to the indorser, can not be permitted, in a suit to enforce payment against the indorser, to contradict or vary what lie has certified to in the act of protest.
    APPEAL from the Ninth District Court, parish of Rápidos.

      Osborn, J. It. A. Hunter, for ■ plaintiff's and apimllants.

      T. 0. Manning, for defendants and appellees.
   Ludeling, C. J.

The plaintiffs sue on a note of F. Seip, made to the order of A. E. Casson and indorsed by her. The defense of the indorser is that she is discharged from liability by the failure of the plaintiffs to demand payment of the maker at the maturity of the note.

The note was payable on the second of May and was due aud demandable on the fifth of May, 1870.

The protest recites that “on the fifth of May, 1870, at the request of Messrs. Garthwaite, Lewis & Stewart, the holders of the original note, whereof a copy is on the reverse hereof written, I, William W. Whettington, Jr., a notary public in and for the parish of Rapides and State of Louisiana, duly commissioned and sworn, presented the said note to Mrs. Eliza Seip, the mother of the maker, Frederick Seip, at the •domicile of the said Frederick Seip,” etc. The notary was introduced as a witness to contradict this statement in the protest. “A public officer who has given a solemn certificate in his official character and under his seal, can not be listened to as a witness to prove it false. There is a degree of turpitude in certifying as true what the officer does not know to be true, as well as in certifying what he knows to be false. In either case, whatever may be the palliating circumstances, in foro conscieniice we think the falsity of the certificate ought not to be shown by the testimony of the officer himself.” 14 La., p. 382; ■5 Rob., 200; 7 Rob., 854.

In this case, however, even if we give effect to the testimony of the notary, it is so vague and uncertain as not to rebut the legal presumption in favor of the correctness of the statements in the protest. 2 R. 82..

It is therefore ordered and adjudged that the judgment of the district court be avoided and reversed, and that there be judgment in favor of the plaintiffs against Adelia E. Casson for the sum of fourteen hundred and forty one dollars and sixty eight cents, with interest at the rate of ■eight per centum per annum thereon from the second day of May 1866, cost of protest and costs of both courts


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    No. 2194.
    Robert F. Tietgens, Tutor, etc. v. Succession of Kamper, etc.
    Ho appeal lies from a judgment until it is signed by tlie judge.
    APPEAL from the Second District Court, parish of Jefferson.

      Pardee, J. A. Gasabat and P. Oommandeur, for plaintiff and appellee.

      Henry Hiujué, for defendant and appellant.
   Howe, J.

This appeal purports to have been taken from a judgment rendered December 23, 1868, and signed December 30, 1868.. There were reasons for judgment filed December 8 and December 23, 1868, but not signed. There is no regular judgment in the record— certainly none that is signed.

Appeal dismissed.

Rehearing refused.


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    No. 2215.
    Reeve, Case & Co. v. The Phœnix Insurance Company.

    The insured is bound by all tlie conditions and restrictions clearly written or printed in tlie body of tlie policy. Therefore, if he has kept certain combustibles and inflammable oils stored in tlie building insured, which were specially excepted from risk by the insurers, and fire occurs, ho can not recover the amount, or any portion of tho insurance from the •company. In such a case, the insured will not be permitted to urge that the exceptions were not specially pointed out to him at the time the insurance was effected, nor will the fact that such exceptions are unusual among the insurance companies in the city of Hew Orleans, avail him. Having accepted and taken possession of the policy, he is presumod to be familiar with all its clauses and provisions.
    APPEAL from tlie Fifth District Court, parish of Orleans.

      Beawmont, J. Hornor & Benedict, for plaintiffs and appellants.

      1Í. M. Polien, for defendant and appellee.
    This case was tried by a jury in the court below.
   Howe, J.

The plaintiffs sued on a policy of insurance against fire. The defendant answered by a general denial and by the further allegations that in the body of the policy it was provided that petroleum, rock, earth, coal, kerosene, or carbon oils of any description, whether ■crude or refined, benzine, benzole, naptha, camphene, spirit gas, burning fluid, turpentine, phosgene, or any other inflammable liquid, are not to be stored, used, kept, or allowed on, the above premises, temporarily or permanently, for sale or otherwise, unless with written permission indorsed on this policy, otherwise this policy shall he null and void,” and that some one or more of the above named articles were, during the existence and running of said policy, “stored, used, kept, or allowed on the premises insured, temporarily or permanently, for sale or otherwise, without written permission indorsed on the policy,” and that, by reason of this violation of said provision of the • policy, the same became null and void.

Defendant further alleged that by the said policy it was provided that “camphene, spirit gas, burning fluid, phosgene, or any other inflammable liquid, when used in stores, warehouses, shops or manufactories, as a light, subjects the goods therein to an additional charge, and permission for such use must be indorsed in writing on the policy, otherwise the insurance shall be void;” and that one or more of said articles were used in the premises insured as a light without the payment of an additional charge, and permission for such use was not indorsed in writing on the policy, and that, therefore, the insurance is void.

Tin. caso «as tried before a jury who rendered a verdict for defendant, and from the judgment thereon the plaintiffs have appealed.

The evidence adduced- on the trial satisfied the jury, and made it reasonably certain, that coal oil was “stored, kept, used and allowed” on the premises after insurance and before the fire took place in large quantities, and made it highly probable that the fire was caused by the explosion of a coal oil lamp, and considerably aggravated by the presence of the forbidden combustibles. Indeed, it is not seriously contended by the plaintiffs that these provisions were not violated. But they contend that the insured were not bound by the clauses in question: First, because “they were not usual in this market;” second, because “the agent of the defendant concealed the unusual clauses from them; ” third, because “the attention of the insured was not specially directed to them,” when, “if they had known of such clauses, they would not have effected the insurance in the defendant’s company.”

First — We do not think the unusual character of these clauses in New Orleans, if established, could affect the right of defendant under the circumstances of this case. The policy was accepted by the insured nearly a month before the fire; the assent of the insured to all its provisions is presumed; and to allow the express contract of the company to be varied or impaired by the contracts of other companies in the same city, would be very dangerous.

Second — There is no evidence to establish the serious charge that the agent of the defendant concealed these clauses from the insured. He signed and delivered to them the policy in the usual way. The clauses. in question are printed plainly in the same type as the rest of the body of the instrument, with the first words of each in capitals, and attention called to the paragraphs, respectively, by an index (05°). If the insured did not examine the policy, it wquld seem to have been their own fault. 2 Cranch, 444.

Third — We do not think the rights of the defendant can be impaired by the fact that the attention of the insured was not specially directed to these clauses. As before remarked, the policy was executed and delivered to the insured in the usual way. It is not a long document. It could be read in a few moments. It remained in possession of the insured for twenty-six days before the fire. We think the insured must be held to be fully bound by its terms.

Judgment affirmed.


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    No. 2192.
    Drummond, Doig & Co. v. Steamer Castro and Owners.
    To enable a defendant to recover damages for tbe non-completion of a job of repairing a team boiler within the time specified in the contract, it must be shown by defendant that the fault was with the plaintiff. If the evidence shows that the delay was unavoidable, and that the plaintiff made the defendant acquainted with the causes of the delay, no damages can be recovered on account thereof.
    APPEAL from the Fifth District Court, parish of Orleans.

      Leaumont, J. JBornor <& Benedict and JE. Bearson, for plaintiffs and appellants.

      George L. Bright, for defendant and appellee.
   Howell, J.

Plaintiffs sue for $950 for materials.furnislied and repairs made to the steamer Castro.

The answer presents the general.issue and a plea in reconvention for damages caused by the non-completion of the work within the stipulated time. The correctness of plaintiffs’ claim is not disputed. The contest relates to the alleged damages for which the judge a quo gave judgment. The work was done under a contract in the shape of the following proposal:

“Sir — -We respectfully propose to repair the boiler of the C. Castro, to wit: To cut old head, tube sheet and flues; furnish one new head and tube sheet and sixty new three and one-half inch tubes; place the same properly in boiler. The above materials to be first quality and workmanship on same to be first class for the sum of nine hundred and fifty ($950) dollars.

Should you see proper to favor us with the work, we would require sufficient time to receive the iron from New York, as there is none in the city, which would be about twenty (20) days, and therefore would not be able to complete the work in less than four weeks from the time of commencement. Very respectfully,

(Signed) DRUMMOND DOIG & CO.,

Per Kane.”

So soon as this proposition was accepted, plaintiffs ordered the necessary materials from their correspondent in New York, and when the vessel was delivered to them they commenced .the work, before, however, receiving the ordered materials, and did not complete the work until the expiration of six weeks from that time. It is shown that they used every means to procure the iron from New York, and that, had it been received in the ordinary time for filling such orders, they could have finished the work in the time referred to in their proposal but the iron was not in New York, and their agents or correspondents had to. send to the mills in Pennsylvania to obtain it. This delay was reported to the defendant, and a letter from New York, explaining its cause, was shown to him. Plaintiffs were evidently not in fault. Their importunity with the New York merchants caused the latter to-decline any further orders from them. And, besides, the written proposal of plaintiffs does not fix a positive term. They say: “We would require sufficient time, which would be about twenty days, and therefore would not be able to complete the work in less than four-weeks from time of commencement.” They do not say they would complete it within four weeks. Their object was to inform defendant that a delay was requisite to procure the necessary iron and that the-completion of the job would depend on its reception.

Under the circumstances, plaintiffs were not-liable for any alleged, damages which defendant claims.

It is therefore ordered that the judgment against plaintiffs on defendants’ reconventional demand herein be reversed and annulled, and that there be judgment thereon in favor of plaintiffs, with costs, of both courts.

Rehearing refused.


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    No. 3205.
    George C. Benham et als. v. W. W. Collins, Sheriff, et als.
    A bond taken by tbe sheriff, under an order of the court, for the release of property under-seizure, must contain all the formalities required for the execution of judicial bonds. If' defective in this respect, it is not binding on the sureties. Therefore, if a bond of release of property under seizure be not signed by the principal but be only signed by the sureties, it is not binding on the principal nor the sureties.
    APPEAL from the Thirteenth Judicial District, parish of Carroll.

      Hough, J. J. Edwards Leonard, for plaintiffs and appellants..

      Sparrow <& Montgomery, for defendant; M. Dubose and W. B. Speneer, for Collins, Sheriff, appellees.
   Taliaferro, J.

Lucy Owen; having leased her plantation to Boss-, and Andrews for the years 1867 and 1868 for a large sum, specified in a written instrument, and the lessees failing to fulfill their obligations,, the lessor .brought suit against them and seized provisionally the crop of cotton of 1867 or that part of it which was in the fields and unpicked at tlie time of the seizure and likewise all the stock, work animals, farming utensils, etc. The seizure was released under a bond, conditioned that the property should be returned and made subject to such judgment as might be obtained by the lessor, or that the obligors on the bond should pay $11,000. Benham and McMillen are sureties on this bond with Andrews as principal. Boss and Andrews, it appears, went into bankruptcy, and no active measures have since been taken to prosecute the suit. Under this stato of things the two sureties bring this action against the sheriff and Lucy Owen to annul the bond and release them. The grounds taken are:

Mrst — That the bond of release was not signed by the principals,. Boss and Andrews.

Second — Because there was no law in force at the time the bond was. executed, authorizing property provisionally seized for the payment of' rent, to be released under bond.

The defendant in this suit, Lucy Owen, in her answer denies generally the allegations of the petition; alleges that her lessees and the plaintiffs are liable on the bond, and prays judgment against them in, solido for the amount of the bond. The sheriff answered that on his-personal responsibility he agreed to have the property seized under the lessor’s writ in the hands of Andrews, and took the bond declared upon, with the plaintiffs as sureties; that Andrews converted the property released to his own use, and that through the failure of Andrews and his sureties to return the property to him, a fraud has. been perpetrated upon him; that Andrews received a good and valid consideration in the use and enjoyment of the property; admits his-own responsibility to Lucy Owen, but prays judgment in solido against the plaintiffs for the amount of the bond.

The judge a quo considered the bond defective as a judicial bond and gave judgment against the defendant, Lucy Owen, on her direct demand; but rendered judgment in favor of the sheriff (for the use of Lucy Owen, administratrix) against the plaintiffs, as sureties of Boss, and Andrews, for $7000, on their failure to restore the property released by the bond. From this judgment the plaintiffs have appealed. The bond was signed by Andrews alone and the two sureties. The order of court, allowing the parties to give bond, authorizes Boss"and Andrews-to execute bond with solvent security, etc.

We think the bond clearly defective and not obligatory upon any of the parties to it. See case of King and Gerson v. Baker, 7 An. 571; 16 L. R. 174.

It is therefore ordered, adjudged and decreed that the judgment of' the district court be annulled, avoided and reversed; that the plaintiffs be released from liability on the bond, the defendants paying costs-in both courts.


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    No. 3169.
    Jefferson Wells, Curator v. J. M. Wells, Executor.
    Tlie'exception to the capacity of the plaintiff to stand in judgment must be pleaded in limine litis. If only made at the time the answer is filed and the defendant goes to trial without requiring a decision thereon, it mil be presumed to have boon waived, and will not bo considered thereafter.
    A party defendant, having admitted in the record in the court below that the plaintiff had established a portion of his demand, can not bo allowed to question its correctness on appeal.
    APPEAL from the Ninth District Court, parish of Rapides.

      Osborn, J. E. Forth Gullom, William A. Secnj and K. S. Eosee, for plaintiff and appellee.

      J. Q. White and T. 0. Manning, for defendant and appellant.
   Howe, J.

The plaintiff, as curator of Mrs. Martha L. Wells, an interdicted person, instituted this action against J. M. Wells, executor of T. J. Wells, deceased, to recover one undivided half of a tract of land, one-half of one hundred head of cattle and the sum of $17,850 with interest from judicial demand.

The decedent, T. J. Wells, represented by the defendant, was the ■husband of the insane lady who is represented by the plaintiff. The land, cattle and money are claimed as paraphernal property of the wife, inherited from her father and taken into possession of her husband many years since.

The answer of the defendant was, first, a general denial. lie then denied the capacity of the plaintiff, and then set up-special defenses which will be noticed hereafter.

The exception to the representative capacity of the plaintiff not having been pleaded in limine litis, and the defendant having gone to trial on the merits without having required a decision thereon, the point will not be considered at this stage of the case. 19 L. 429; 3 An. 150; 6 An. 533; 11 An. 688.

First — i'n the merits we find the admission of both parties that the plaintiff, as curator, had established his claims to an undivided half of one thousand arpents of land, and. thus far the judgment can not be complained of. The improvements appear either to have been on the land when inherited by the interdict, or to have been built out of the proceeds of the plantation while managed as her separate property, and under her own administration.

Second — The claim for the cattle seems to be made out.

Third — The claim for money received by T. J. Wells is clearly proved by the recitals in the act from T. J. Wells to Martha L. Wells, of February 20, 1843, and the oral testimony of witnesses in the case. It does not clearly appear that any portion of these sums represents the supposed value of slaves, as alleged in the answer.

Judgment affirmed.


author: Lude ling, C. J. Howe, J.,

text:
    No. 3102.
    The State of Louisiana, ex rel. S. Belden, Attorney General v. H. T. Burgess et als.
    The act of the General Assembly of 1865, No. 52, granting to certain individuals named therein the right to cut a canal through the territory of the State of Louisiana and to use the lands contiguous thereto for the term during which the canal is to be enjoyed by the grantees, after which the lands are to revert to the State, is not a giving of State aid | within the meaning of article 112 of the Constitution of 1864» Nor is the right given the grantees by the act No. 52 of 1865 to acquire the lands drainod by the canal, a giving of State aid. This latter clause, conferring on the grantees the right to acquire the lands drained by the canal, only confers a pre-emption or preference on the grantees over other ' persons to acquire certain lands. This act does not, therefore, violate article 112 of the Constitution of 1864, which was in force at the time it was passed.
    The act of 1865, No. 52, while it confers certain rights and privileges on the individuals named, does not constitute them a judicial person. It is not, therefore, in violation oí article 121 of the Constitution of 1864, which prohibits the Legislature from creating a corporation.
    This act does not violate article 127 of the Constitution of 1864, which declares that the swam}) lands granted by Congress to the State to aid in levying and draining them, otc., shall not bo divertod from the purposes for which they were grantod, because it contains nothing which would indicate a purpose to violate this provision. It simply gives the grantees the right of pre-emption and fixes the price, and gives to them, on condition that they shall cut the canal within a given time, a term of credit. It directs that the proceeds arising from the sale, when due, shall be paid into the treasury, where the presumption is that they will bo applied for the purposes for which the donation by Congress was made.
    filio proclamation of the President of the United States, dated twentieth of August, 1866, declaring that peace existed throughout the United States, is the period at which the late war between tlio United States and the so called Confederate States terminated. There- ¶ fore the work of cutting a canal through the territory of Louisiana, as authorized by the 1 act No. 52, of 1865, which was required by said act to be commenced within four months from the termination of the war which was then going on, .was commenced within the time required, if commenced within four months from and after the date of twentieth of August, I860.
    The State, through the action of her Legislature having thrown obstacles in the way of the completion of the canal which she had authorized certain individuals to construct, can not be permitted to claim a forfeiture of the grant on account of the non-completion within the time.
    The Legislature can pass no law which impairs the obligations of a contract. The power and right of interpreting laws belong to the judiciary alone. Therefore, an act of the General Assembly which assumes to judge when an obligation has been violated or when a right or franchise has been forfeited, is absolutely null, because the Legislature has no power to pass such an act or to sit in judgment in such a case.
    APPEAL from tlie Eighth District Court, parish of Orleans.

      Dibble, J. Simeon Belden, Attorney General, relator, appellant.

      Ootton & Levy, for defendants and appellants.
   Lude ling, C. J.

This suit was instituted to prevent the defendants from acting under a grant made to them by an act of the Legislature of this State in 1865, numbered 52, on the grounds that the act was unconstitutional; that it had been repealed by a subsequent act of the Legislature, and that defendants had failed to commence the work within four months after the termination of the war or to complete the work within three years thereafter.

Mvst — It is contended the law in question is in contravention of articles 112, 121 and 127 of the Constitution of 1864, in force when the : act was passed. Article 112 provides that State aid shall not he giveD to companies, etc. The act No. 52 does not give aid in the sense of the article of the Constitution. It grants a privilege to certain individuals-to cut a canal through, the territory of the State of Louisiana and to-use the lands contiguous to the canal for its benefit for the term during which, by the act, the canal is to be enjoyed by the grantees. But these lands and the canal are to revert to the State after the lapse of fifty years.

Nor is the right, given the grantees to acquire the lands drained by the canal, a giving of aid by the State. It is simply a right of preemption — a right to purchase by preference lands which are supposed to be of little value in their present condition, but which may, and probably will, be rendered valuable, should the canal ever be cut.

The act does not create a corporation. It confers certain rights and' privileges on the individuals named, but it does not constitute them a juridical person; therefore it does not violate article 121. Neither does the act violate article 127, which declares that the swamp lands granted by Congress to the State to aid in levying and draining, in order to reclaim the swamp and overflowed lands, shall not be diverted from the purposes for which they were granted. There is nothing in. the act to indicate a purpose to violate this provision of the Constitution. It gives the grantees a right of pre-emption; fixes the price at twenty-five cents per acre, and gives a term of credit to them cm condition that they shall cut the canal. When the proceeds of these lands-shall have been paid into the treasury, we are bound to presume they will be appropriately applied to the purposes intended by Congress. Besides, it is not unreasonable to suppose, and witnesses in this case have stated, that the cutting of the canal will drain much of the swamp- and overflowed lands through which it is to pass and thus partially carz-y into effect the enlightened and liberal policy of the General Government in making these grants of swamp lands to the State.

Second — Have the grantees complied with the conditions of their-grant -by commencing the work within four znontlis and completing it within three years after the termination of the war ?

It is proved that the work was commenced on or about the twenty-seventh day of April, 1866.

The President of the United States issued his peace proclamation on-the twentieth of Azzgust, 1866, and the Supreme Court of the United States has decided that the proclamation fixed the period when tliewar terminated. 9 Wallace, 56.

The work, therefore, was commenced in time.

The Legislature of the State passed a joint resolution on the thirteenth March, 1866, directing proceedings to be instituted by the-Attorney General for the forfeiture of the grant, and in March, 1867, the Legislature passed an act to repeal the law enacted in 1865,, making the grant.

Tlie evidence in the record shows that the passage of the joint resolution and the act of repeal affected the credit of the defendants so seriously that they were unable to carry on the work; and that the failure to complete the canal within the time fixed was owing to the unjustifiable acts of the Legislature. The State should not be permitted to claim a forfeiture of the grant for the non-completion of the canal, when the acts of the Legislature interposed obstacles which íetarded, if they did not actually prevent, the completion. It is a perfectly well settled principle of jurisprudence that no one can take advantage of his own wrong. Pothier on Obligations, No. 212; C. C. article 204 (2035 French text); 19 La. 501; 4 R. 45.

Third — It is now well settled that a Legislature can not impair the obligation of a contract entered into by a former Legislature. 6 Cranch, 87; Flotcher v. Peck, Woodward v. Dartmouth College, 4 Wheaton, 518; 12 La. 352; State v. Bermudez, 6 R. 115; 11 R. 414; Constitution of United States, article 1, section 10.

Tlie act of 1865, granting certain rights or privileges to defendants, was a contract the obligation of which could not be impaired by subsequent acts of the General Assembly. And it is equally clear that the duty of interpreting laws belongs to the judiciary, and it alone lias the power to decide when an obligation has been violated, or when a rig-lit or franchise has been forfeited. The act of the Legislature passed thirteenth March, 1867, and numbered 62, is, therefore, unconstitutional, null and void.

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

Howe, J.,

dissenting. I am constrained to think that the act in question is in conflict with that article of, the Constitution of 1864 which provided that the aid of the State should not be given to companies or associations of individuals in a certain way and under certain limitations. Article 112. I must, therefore, dissent in this case.


author: Lcdeling, C. J.

text:
    No. 3170.
    A. Voinche v. F. Villemarette.
    The collection of a note, tlie consideration of which is sliown to be Confederate treasury notes and money lost in playing cards, can not be judicially enforced. And if judgment bas been given in tlio court below for a portion of tbe note, and the evidence shows that the entire note is tainted with illegality, the Supreme Court will, in the interest of public policy, reject the whole demand.
    APPEAL from the Seventh District Court, parish of Avoyelles.

      Miller, J. Irion, Ovet'ton & Cullom, for plaintiff and appellant.

      S. H. Thorpe, for defendant and appellee.
   Lcdeling, C. J.

This is an action on a note for $1300, with interest. The defense is that the consideration of the note was illegal. There was judgment in favor of the plaintiff for $10 65, and the plaintiff has appealed.

The evidence proves that the note sued on was given to replace three others which had been given for Confederate money and money lost at cards.

The note is tainted with illegality, and courts of justice will not lend their aid to enforce its collection. 1 Parsons on Contrasts, 456; 6 Rob., 115; 21 An. 325; 22 An. 462; art. 127 Constitution.

It is our duty under the law and in the interest of public policy to reject the whole demand. It is therefore ordered that the judgment of the lower court be avoided and reversed, and that the plaintiff’s •demand be rejected, with costs of both courts.


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    No. 3149.
    Succession of P. P. Prudhomme—Opposition of Citizens’ Bank, et als.
    An administrator who lias admitted, the correctness of debts against the succession he represents, will not afterward, on the trial of opposition to tho tableaux he has filed, bo permitted to allego or show, either in his individual capacity or as tho representative oi the succession, that the debts which he has admitted, aro incorrect. Therefore his answer to oppositions filed by the creditors, in which he asks an amendment of the tableaux on the ground that claims which he has admitted to be correct-, are incorrect, should not, be permitted to be filed in the record:
    All successions must he oponed and settled in the parish courts.- Therefore, if an account and tableaux, made out and filed by tho administrator in tho parish court, be opposed by the creditors, such oppositions can only bo disposed of by the parish court, irrespective of tho amount involved.
    APPEAL from Parish Court, parish of Nathitoclies.

      H. C. Myers, Parish Judge. Pierson & Levy, for appellees.

      Ohaplin, Morse & Chaplin, for opponents and appellants.
   Ludeling, C. J.

An account of the administration of the succession of Pierre Phanor Prudhonnne having been advertised, several oppositions thereto were filed by creditors whose claims had been acknowledged by the administrator. These opponents represent that J. A. Prudhomme, Harriet Prudhomme and P. E. Prudhomme are severally placed on the tableau as privileged creditors for large sums, whereas, in fact, they are not creditors, but debtors of the succession; and they further oppose the plea of prescription against the claims of said J. A., Harriet, and P. E. Prudhomme, and pray that their claims he stricken from the tableau, and that the tableau be amended, etc. These oppositions were answered by the parties whose claims were opposed, and also by the administrator, who denied the correctness of of opponents’ claims, notwithstanding- Ms previous acknowledgments.

The administrator, in his individual capacity as a creditor and iu Ids fiduciary character, then filed a plea to the jurisdiction of the parish court on the ground' that the matter in dispute exceeded five hundred dollars.

Having acknowledged the claims of opponents and placed them on his tableau as just debts against the succession, the administrator will not be heard in a court of justice to allege his own malfeasance or to contradict his judicial admissions, when his interests suggest sucli conduct. His answer to the opposition for amendment of the tableau, with the view to deprive the parish court of jurisdiction, was improperly-permitted to bo filed. The contest is between the creditors who alone are interested in the funds to be distributed. As between themselves the controversy, relating to the validity of their respective claims or the rank of their debts, does not concern the succession or its representative, the administrator, who is a more stakeholder, and the succession is not a party to the contest in the sense of article eighty-seven of the Constitution. The Constitution requires all successions to be opened and settled in the parish courts.” To settle a succession, the debts must be known, and the authorization of the court must be obtained to pay them by the administrator. If the funds be insufficient to pay all the debts, the privileged debts must be paid, and a pro rata distribution among the ordinary debts be made with the sanction of tlie court. For that purpose a tableau of distribution is filed. Any contest among the creditors on the tableau, relative to their claims, must necessarily be decided by the parish court incidently to a settlement of the succession. 22 An., Paul O. Hebert, tutor, v. Winn et al.; 22 An., p. 517, Hart, tutrix v. Hoss & Elder; 22 An. 101, succession of Bingay; 21 An. 480, Swan v. Gayle.

It is therefore ordered and adjudged that the judgment of the parish _ court be avoided and reversed. And it is further ordered that the case be remanded to the parish court, to be proceeded with according to law,, and that the appellees pay the costs of this appeal


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    No. 3239.
    Penelope Andrews and Husband v. Henry Ware.
    Movables, acquired subsequent to the dissolution of the marriage by the surviving spouse, do not constitute a part of the community. Therefore, if the survivor has sold a plantation and conveyed with it all the movables and fixtures belonging to the community, the vendor or his assignee may recover from the vendee all the movables expressly reserved in the act of sale, as not constituting a joart or portion of the community, on showing that-they have been acquired since its dissolution.
    APPEAL from the Fifth District Court, parish of Iberville.

      Posey, J. TF. B. Robertson, for plaintiffs and appellees.

      Barrow & Popef for defendant and appellant.
   Wyly, J.

The plaintiff, the transferree of John Andrews, sues the defendant for certain movable property mentioned in the petition, on the plantation sold to him by said John Andrews and which, she contends, was not included in the act of sale.

We find in the act of sale from John Andrews to the defendant the. following clauses, to wit: “ The said plantation above described being-sold, together with all the buildings, improvements and appurtenances thereon being and thereunto belonging, consisting chiefly in a dwelling house, sugar house, sugar mill, steam engine, saw mill, etc., and all machinery and fixtures belonging to said engine and mills, the said purchaser, having well examined the same, requires no further or rnore particular description thereof; the said parties, vendors, intending by this sale to include all the property of whatever nature or kind soever belonging to the community of acquets and gains which existed between the said John Andrews and his deceased wife, and in which his said children and co-vendors are interested; the said John Andrews hereby reserving from said sale all live stock, plantation utensils, agricultural implements, household.and kitchen furniture and utensils, carriages, buggies, and generally all movable articles of any nature or kind whatsoever now on said plantation, which movables thus reserved do not belong- to said community, but are the separate and individual property of said John Andrews.”

It appears that the wife of John Andrews died in 1848, and the movables claimed by the plaintiff were acquired by him since the death of his wife.

The articles claimed, and for which the court gave- judgment in favor of tho plaintiff, are all movables, and are expressly reserved in the act of sale, being- the separate property of said John Andrews.

Whether the arbitration was valid or not, the evidence shows that the plaintiff is entitled to the property for which the court gave her judgment.

Let tho judgment be affirmed with costs.


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    No. 3226.
    George W. Buckner v. Charles Ruston.
    Under tho election law of 1870 tho whole parish, is constituted an election precinct. Therefore votes for ward officers of the parish, such as justices of tho peace and constables, may bo cast at voting precincts outside of tho ward for which the officer is to be elected. A contest for the office of justice of the peace of a particular ward of a parish, predicated on the fact that a majority of votes cast in that ward were in his favor, can not, therefore, he maintained, if his opponent has receivod a majority of all the votes cast for that office at all the voting precincts of the parish.
    APPEAL from the Fifth Judicial District, parish of East Baton Rouge.

      Posey, J. Andrew 8. Herron, for plaintiff and appellee.

      B. W. Knickerbocker, for defendant and appellant.
    This case, was tried by a jury in the court below
   Ludeling, C. J.

The plaintiff contests the election of the defendant to the office of justice of the peace for Ward No. 2, in the j>arish of East Baton Rouge.

There was a verdict of a jury in favor of the plaintiff, and the defendant has appealed. The evidence shows that the plaintiff received a majority of tlie votes cast in the box or voting precinct beld in the Second Ward, but that the defendant received a large majority •of the votes cast for the office of justice of the peace for Ward No. 2 .at the various polls in the parish. It appears from the evidence that an agreement was entered into between the mayor of the city and the supervisor of registration that the colored voters should vote at the •courthouse and Murphy’s school and the white voters should vote at •the polls in Ward No. 2, and that said agreement was observed by the •voters. It further appears that there were six polls opened in all the parish and that there are twelve wards in the parish.

The only objection urged to the election of defendant is that a majority of those who voted for him did not cast their votes at the poll in Ward No. 2. After the agreement already referred to, it would he unfair to claim the office on this ground; but the act of 1870 seems ■■to have conferred the power on the supervisor of registration to •declare where polls should be opened, without reference to the territorial limits of wards, and it declares the whole parish was one election precinct. Acts of 1870, No. 100, p. 145. It would seem, therefore, that votes for ward officers, such as justices of the peace and constables, may lawfully be cast at polls outside of the ward for which the •officers are to be elected.

The consequences resulting from this law may be deplorable, but we ■are not at liberty to disregard the plain provisions of the law.

It is therefore ordered and adjudged that the verdict of the jury be .set aside'; that the judgment of the district court be reversed; and that there be judgment in favor of the defendant, rejecting plaintiff’s •demand, with costs in both courts.


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    No. 3179.
    Sarah H. Loyd’s Executor v. James D. Loyd’s Executor.
    Tn a suit for partition of a body of land belonging to a succession tlie court appointed experts who reported that the land could not be divided in kind without great injury. Both parties assented to the report and desired a sale in block. The court a, qua refused to homologate the report and decreed a division in kind. The plaintiff appealed, and the defendant admitted, in the appellate court, that the property could not be divided in kind without serious injury to all parties.
    ‘Held — That the judge a quo should have decreed a sale in order that a partition of the proceeds might be made, but that in making the sale the provisions of article 135 of the Constitution must be observed, and that the lands must be sold in lots of not less than ten nor more than fifty acres each.
    APPEAL from tbe Niutli District Court, parish of Rapides.

      Osborn, J. T. O. Manning, for plaintiff and appellee.

      H. 8. Zosee, for defendant and appellant.
   Howe, J.

This is an action for partition. Tbe succession represented by plaintiff was opened in 1870. Experts reported that tbe ^plantation could not be divided in kind without great injury. Tbe defendant assented to this view and both parties desired a sale in block with division of the proceeds. The court refused to homologate the report and decreed a division in kind. The plaintiff appealed and the defendant admits the correctness of the views expressed in the appellant’s brief in regard to the injurious effects of a division in kind. The judgment should be reversed and the property ordered to be sold with reference to a division of the proceeds.

But, as intimated in the argument, the succession having been opened in 1870, the sale thus made must be conducted in accordance with article 132 of the present Constitution, which requires that for the purposes of this sale the land shall be divided into tracts of from ten to fifty acres. This provision is positive, and the act of 1870, No. —, provides a method of carrying it into effect.

It is therefore ordered that the judgment appealed from be avoided and reversed; that there be judgment in favor of the plaintiff, as prayed for, decreeing a partition of the plantation described in the petition ; that the report of experts adverse to a division in kind be homologated; that the said land be sold at public sale in accordance-with law to effect a partition; and that the appellee pay the costs of appeal.


author: Taliaferro, J. Howe, J.

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    No. 2573.
    Emile L. Breaux v. The Parish of Iberville.
    The police jury of a parish have no authority, growing out of their general powers, to enter upon schemes of finance by executing and putting upon the market bonds or notes of the parish they represent, for the purpose of raising money for any purpose whatever. Therefore the holders of bonds or notes of the parish which have been executed by the authority of the police jury, or notes signed by the president and treasurer of the police-jury, who themselves had no authority from the Legislature to make such bonds or notes, can not enforce tbeir payment against the parish. Such bonds or notes, having been given or authorized by the police jury without any authority of law, are null and void and of no binding force or effect against the parish.
    APPEAL from Fifth Judicial District, parish of Iberville.

      Posey, JBarro-w & Bojpe, for plaintiff and appellee.

      Zenon Bebmwe, for defendant and appellant.
   Taliaferro, J.

There is a motion to dismiss the appeal taken in this case on the grounds :

First — That it does not appear that the judgment appealed from has ever been entered upon the minutes of the court.

Second — That the defendant did not before appealing exhaust all his. remedies by law in the lower court, not having moved for a new trial. Third — There is no order granting an appeal.

The third ground stated is the only one we deem it necessary to examine. We find by the minute» oí the court, under date of twenty- ' third of September, 1869, an order in me usual form, reciting that "on motion of counsel for defendant it is ordered that an apneal be granted,” etc. It appears that the signature of the appellant’s counsel is affixed below the order. This has no effect whatever upon the order, which must be taken as the act of the court. We think the objection has no force, and therefore overrule the motion to dismiss.

The parish of Iberville, through its police jury, is sued on a promissory note for $1518 20, with eight per cent, interest from the ninth of January, 1867. The instrument sued upon is in these words:

“$1518 20. Iberville, May 15, 1866. The parish of Iberville will pay fifteen hundred and eighteen dollars 20-100 to the bearer on the ninth day of January, 1869, at the office of the recorder of the parish of Iberville, with interest thereon at eight per cent, per annum from maturity until paid

(Signed) A. DUPUY, Treasurer.

(Signed) J. A. DAHDENNE, President.

Indorsed — Presented and registered January 9, 1866.

(Signed) A. DUPUY, Treasurer.”

The defense is that the instrument sued on was issued without warrant or authority of law, and is null for that reason and for the further reason that it was issued in renewal of an original obligation which was executed for the payment of the price of slaves j that upon the issuing of the instrument the police jury made no provision for the payment of it as required by law; and, lastly, .that the individuals, composing the police jury at the date of the obligation, were not legally members of that body, and their acts on that account are null.

Judgment in the court below was given in favor of the plaintiff, and the defendant has taken this appeal.

It appears from, the record that in 1859 the police jury oí the parish of Iberville, for the purpose of constructing a work of considerable magnitude and of great public importance to the people of the parish, that of a levee to protect a part of the interior portion of the parish from overflow and to serve also as a public road to facilitate intercommunication, appropriated $25,000 by ordinance passed on the -twelfth, of April, 1859, to which was added by another ordinance, passed on the sixth of June following, the sum of $10,000. This aggregate of $35,000 was directed to be invested in slaves, to be purchased for the parish to perform the labor. Slaves were accordingly purchased in September of the' same year by commissioners appointed for that purpose. It seems that $30,450 in cash were expended in the purchase of a number of slaves, and that parish bonds had been issued and sold to raise the money. In January, 1866, on the application of the holders of these bonds, the police jury of the parish renewed them by a new issue of obligations, of which the promissory note on which suit is brought in this case, is one.

A bill of exceptions was taken by the defendant to the ruling of the court, by which it ordered upon the plaintiff’s motion, after the defendant’s counsel had closed his evidence, two documents introduced by the latter, viz:

First — The ordinance of the police jury appropriating ten thousand dollars additional to the appropriation of January, 1859, and directing the purchase of slaves with bonds of the parish to be issued for that purpose.

Seeonclr — 'The act of sale of the slaves by Gilberth to the parish of Iberville. The objection to this evidence of the defendant is based on the claim of the plaintiff that he is the bona fide holder of the negotiable instrument sued upon for value before maturity and without notice of equities or defects in the instrument.

We think the court erred. These acts, it seems, were received without objection; they appertain to the whole transaction and should not have been excluded. 12 An. 12; 13 An. 445. The article 128 of the State Constitution and the construction given to it in a late decision of this court establish that notes executed for the price of slaves form an exception to the rule invoked by the plaintiff; the constitutional provision limiting in that respect the commercial law. See case of Groves v. Clark et al., 21 An. 567.

Police juries are corporations whose powers are limited and clearly defined by the Legislature. We think it well established that whenever the interests and wants of a parish require local legislation, which the police jury is not clearly empowered to establish, a delegation of the power to adopt such legislation must first be obtained. Such has been the usage especially in regard to the issuing and selling bonds. Frequent instances of this usage occur. The act of 1859, numbered 177, authorizes the police jury of the parish of Jefferson to issue and sell bonds to construct two shell roads. Act No. 185 of acts of 1854 authorizes the police jury of Pointe Coupée to issue bonds to pay debts. Acts of 18C9, No. 35, authorizes the police jury of St. James to issue bonds to build a court house and jail. and to pay debts. Acts of 1869, No. 49, authorizes the city of New Orleans to issue bonds. Other instances might be cited where powers have been delegated, to those bodies to perform other acts which they are incompetent to do under their general powers. The powers of these corporations must be construed strictly. Tlie issuing and putting into circulation of bonds or other instruments, creating obligations against a parish, are the exercise of an important, not to say a dangerous, power and one certainly not given to police juries by the general law organizing those bodies. For parochial purposes they are authorized to levy taxes, and they are prohibited (Eevised Statutes, p. 411, sec. 23) from contracting debt or pecuniary liability without fully providing in the ordinance creating the debt the means of paying principal and interest.

In the case we are considering, it is shown that the works contemplated were of great public utility, and that the people of Iberville desired them to be completed. These reasons, however strong, do not justify a disregard of law in the proceedings to accomplish the object desired. It is 'not important in this case to inquire into the legality of the several ordinances passed on this subject, so far as that legality is questioned on the ground that the means for discharging the indebtedness were not provided in the ordinance making the appropriation.

We are inclined to think that the common construction heretofore given to the powers of police juries in regard to their issuing bonds or obligations of the sort in question, and which ignores the existence of such a right, is the correct one. We can ñnd no warrant for the exercise of such power under any of the enumerated powers granted to those bodies by statute. Having the power granted to levy a tax to defray the cost of any such public works as they are authorized to do, there is no need of resorting to other means under the pretense of exercising implied powers. Under the general powers granted, and they are express, specific and well defined, they seem clearly without right to adopt schemes of finance and make investments of parochial funds, as the police jury of Iberville has done in this case. For these reasons we think their proceedings null. Entertaining these views in regard to the issue of the bonds, it becomes unnecessary to examine the other grounds of defense.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that judgment be rendered in favor of the defendant, the plaintiff and appellee paying costs in both courts.

On Application eor Behearing.

Howe, J.

An application for rehearing has been made in this case, supported by an elaborate brief. We apprehend that the point in dispute can bo settled by a reference to the articles of the Civil Code in relation to political corporations and the construction given by this court to those articles.

This is not an action for work done or supplies fnrnished to the parish of Iberville, of the value of which the note in suit is merely sought to be used as evidence. It is an action on a promissory note made by J. A. Dardenne, President of Police Jury, and A. Dupuy,, Treasurer, and it is claimed by plaintiff that the parish is bound by these signatures of its official agents. The defendant denies the authority of these its agents to make for it a promissory note.

Article 420 of the Civil Code, 1825, declares that political corporations are those which have principally for their object the administration of a portion of the State, and to whom a part of the powers of government is delegated to that effect.

Article 429 recognizes the fact that a corporation can act only through agents, “under the name of mayor, president, syndics, directors or others, according to the statutes and qualities of such corporation.”

Article 430 declares that these attorneys in fact or officers, “ by contracting, bind the corporations to which they belong in such things as do not exceed the limits of the administration which is intrusted to them; their act is supposed to be the act of the corporation;” and “if the powers of such attorneys or officers have not been exiiressly determined, they are regulated in the same manner as those of other agents.”

Article 2966 declares that the power of an agent to draw a promissory note must be express and special. Such express and. special power could only be conferred on a police jury or its officers by statute, and no such statute exists in this case.

It seems clear then that the officers who signed the note in suit had no legal authority to bind the parish in that form. Such was the doctrine recognized by this court in Louisiana State Bank «. Orleans Navigation Company, 3 An. 294, in which the validity of an indorsement and guaranty of bonds or notes by the First Municipality of New Orleans was drawn in question. And this rule is not merely technical. It is in harmony with the spirit of the Roman law in regard to communities, the articles of our code above cited having been imp®rted with little change from that system of jurisprudence. Domat., part 1, lib. 2, tit. 3. It is in harmony also with the jurisprudence of the United States, as settled by the highest authority. Mr. Kent says, vol. 2, p.298: “The modern doctrine is to consider corporations as having such powers as are specifically granted by the act of incorporation or as are necessary for the purpose of carrying into effect the powers especially granted, and as not having any other. The Supreme Court of the United States declared this obvious doctrine, and it has been repeated in the decisions of the State courts. 2 Crunch 167; 4 Wheaton 636; 4 Peters 163; 13 Peters 587 ; 14 Peters 122; 12 Wheaton 68.”

Rehearing refused.


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    No. 3143.
    John C. Irving and Amanda Irving, Administrators, etc. v. Asman Gaines, etc.
    3*0 appeal is allowed from tlie parish court to the Supreme Court, except in probate matters where the amount involved is above five hundred dollars.
    APPEAL from the Parish Court of Rapides.

      J. B. 0. Barlow, Parish Judge. W. B. Byman, for plaintiffs and appellees.

      R. A. Banter, for defendants and appellants.
   Howe, J.

This court has no jurisdiction of appeals from a parish court except in probate matters, where the amount in dispute shall exceed five hundred dollars. Constitution, article 88; 22 An. 465.

Appeal dismissed.


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    No. 3233.
    Nancy Draughon et als. v. Avery B. Quillen et als.
    The same person can not be tlio agent of two parties in the same transaction, when tbei^ interests are conflicting nor when the agent has a personal interest in the transaction adverse to either of them. Therefore, if a party has signed an obligation as surety for another, who afterward dies before its payment, and the surety becomes the administrator of his estate under appointment by the court, and by an agreement with tho heirs ho is appointed to compromise and pay the debts of the succession, such person, holding representative positions of different parties who have opposing interests in tho succession, can not represent them both in a compromise with one of tho creditors of tho succession he represents.
    The transferreo of a judgment against a succession, who holds it by virtue of a transfer made by the agent of the heirs and administrator of the estate, which said agent acquired the judgment by compromise with tbe creditor, can only recover from tlio succession, on such judgment, the amount which the agent and administrator paid the judgment creditor for it.
    APPEAL from the Sixth District Court, parish of St. Helena.

      milis, J. Face, Foster & F. T. Merriclc, for plaintiffs and appellees.

      W.F. Kemp and Julius F. Wilson,, for defendants and appellants.
   Ludeling, C. J.

On the twenty-fourth day of November, I860, Francis Quillen acquired by purchase a certaiu tract of land, with tbe improvements thereon, consisting in part of a saw mill, grist mill, etc., for tbe sum of $4400, payable in four equal installments, for which he gave his notes, with A. B. Quillen, his father, as security, and a mortgage and the vendor’s privilege were retained to secure tho punctual payment of the price. The purchaser died in 1863 and A. B. Quillen was appointed administrator of the succession. Tho heirs of Francis Quillen are his brothers and sisters and his father, A. B. Quillen. It appears from, the evidence in the record that arrangements were being made to compromise the debts and that A. B. Quillen was intrusted with tbe duty of effecting a settlement of the affairs of tho succession, and to that end he was empowered by a special power of attorney to cancel mortgages in favor of the heirs and to mortgage certain portions of the lands of the succession.

One of the notes given for the price was acquired by C. T. Buddecke, and be obtained a judgment against the succession and A. B. Quillen in solido for the amount, $1100, with eight per cent, interest from its maturity, in November, 1868. In November, 1869, A. B. Quillen proposed to the attorney of Buddecke to pay $600 and costs of suit in full satisfaction of the judgment. This proposition was communicated to Buddecke who instructed the attorney to accept the offer, provided the money was paid within fifteen days. Within that space of time Quillen paid the money, and the attorney, at the request of the said Quillen, agent and administrator, made a transfer of the judgment to Mrs. Quillen, the wife of said A. B. Quillen, who had an execution issued and caused to be seized and to be advertised for sale tbe land and improvements belonging to the succession. This salo was enjoined by the plaintiffs in this suit. There was judgment in favor of the plaintiffs, reserving to Mrs. Quillen her rights to recover the money paid by her husband in satisfaction of the judgment, as the money so used was her separate property.

The judgment appealed from is correct. The attorney who signed the transfer had no authority to sell but to compromise the debt by receiving a part thereof in full satisfaction. This is what Quillen proposed and what Buddecke accepted. And he could not alter the nature of the contract by the mere form of the receipt which he took from the attorney.

If Quillen was acting as the agent of his wife in the matter, while he was the administrator of the succession and the agent of the heirs, his conduct was obnoxious to censure.

The same person can not be the agent of two parties in the same transaction when their interests are conflicting, much less when he has a personal interest adverse to that of one of them. The law exacts of those acting in a fiduciary character the utmost good faith.

It is therefore ordered and adjudged that the judgment of the district court be affirmed, with costs of appeal.


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    No. 3195.
    James A. Holmes v. Paulin Deplaignd
    It is not necessary that tlie answer, setting up the plea of payment, should specify tlio amount paid and every circumstance of the time and place of payment. Therefore evidence is admissible under the general allegation of payment to show the amount paid and the time and circumstances of the payment.
    APPEAL from the Seventh District Court, parish of Pointe Coupée.

      Miller, J. Thomas H. Hemes and Samuel J. Powell, for plaintiff and appellee.

      A. L. Mahoiulean, for defendant and appellant.
    This case was tried by a jury in the court below.
   Wyly, J.

The plaintiff sues to recover $1000, the amount which he alleges is due him on a verbal contract to take down certain machinery which the defendant purchased from Mrs. L. J. Port in the parish of West Peliciana, and to put it up on the plantation of the defendant in the parish of Pointe Coupóe, and to serve as the engineer of the defendant in taking off his crop of 1869. He also sues on the account, made part of the petition.

The defendant pleads the general denial, and, further answering, admits that in the month of September, 1869, he made a verbal contract with the plaintiff, by which the latter obligated himself to take down and to do all necessary work to put up again on the plantation of the defendant the machinery purchased by him, mentioned in the plaintiff’s petition; that the price for said work, including all the items charged in the account annexed to the petition, was fixed at $1000, without any kind of extra charges for work to he performed by the said plaintiff. He admits that he purchased from the plaintiff certain lumber worth about $20. He further represents that through error he paid to the said plaintiff the sum of $155 50 “ over what was due him, to wit: $1000, which he has a right to claim and does hereby claim in reconvention.”

The court gave judgment on the verdict of a jury for $1400 against the defendant, and he has appealed.

Our attention is directed to a bill of exceptions taken by the defendant to the ruling of the court refusing to permit him, after (by motion) withdrawing his demand in reconvention, to introduce proof that he had paid the plaintiff $1000 “on the ground that the answer did not specify any particular amount paid and every circumstance of time and place.” 1

It was not necessary, in the implied plea of payment in the defendant’s answer, to specify the amount paid and every circumstance of the time and place of payment. The bill of exceptions was well taken.

It is therefore ordered that the judgment of the court a qua be avoided and annulled, and it is now ordered that this cause be remanded for new trial with instructions that the defendant be permitted to introduce proof in support of his plea of payment of $1000. It is further ordered that appellee pay costs of this appeal.