author: Preston, J. Slidell, J. Rost, J.,

text:
    Cyprien Roy et al. v. Estibene Latiolas et al.
    Where the testator wills property to one for his life, directing that in case the legatfee should die without heirs, the property should return to a third person designated, the legacy is a prohibited substitution and void.
    Property willed to A. for life, and after her death to go to her children, living at the opening of the will, it will be considered that A. has an usufruct for life, and that the naked title to the property vested in the children.
    APPEAL from the Parish of St. Martin, Voorhies, J.

      Albert Voorhies, for plaintiffs,
    contended : The plaintiffs demand the nullity of the last will of Marie F. Roy, deceased, upon the ground that the only two dispositions it contains are substitutions prohibited by law. The first clause bequeaths to Alex. Roy, for his lifetime, a certain sum of money, the testatrix desiring, that in case he dies without heirs, the legacy shall return to Pierre Roy. The second devises land and slaves to J. Roy, for her lifetime, and after her death to L. C. Guidry.

    Whether the legacy to Alex. Roy, for his lifetime be considered as an usufruct for life, gr a donation in ownership, limited only as to its duration, is immaterial. For, in both suppositions, this legatee’s right is coupled with the charge of preserving the legacy for, and returning it to Pierre Roy, in proper time. Had the latter’s right vested immediately after testatrix’s death, and not been made to depend upon the contingency of Alex. Roy's death without heirs, the case might, perhaps, fall under the exception mentioned in- art. 1509 C. C. It is well settled, that where a legacy is made to one in usufruct, and to another in property, the naked property must vest immediately in the second 'donee. Rachel v. Rachel, 1 R. R. 115. Ducloslange v. Ross, 3d Ann. 433. In the present case, how can Pierre Roy's right be said to vest in him immediately, since it depends upon the contingency of Alex. Roy's death without heirs, and may never vest.
    On the other hand, it is contended, that this clause must be interpreted as giving for ever and in full, ownership to Alex. Roy, the legacy under consideration, with- the wish expressed by testatrix, that he may be pleased, when he shall have died without heirs, to make a present of it to P. Roy. This more than ingenious interpretation of a clause, free from doubt and ambiguity, is introduced here for the purpose of proving that there being but “ un simple désir," addressed by testatrix to A. Roy. This latter’s right is not coupled with the charge of preserving it for, and returning it to P. Roy at the given time; in other words, that this is no substitution.
    If Alex. Roy's interest be limited to his lifetime, the testatrix cannot be said to express “un simple désir” that he should, when he Will have died without heirs, and when his interest is expired, transfer to another what has ceased to be his. To get over this difficulty is a sine qua non; the ownership forever must be fixed in Alex. Roy. Clear unequivocal words must submit to interpretation.
    It is confidently asked, Why should the testatrix make a legacy to Alex. Roy for his lifetime, and then give the residue to Pierre Roy, only in case the former dies without heirs ? Do not these words denote her intention of giving the legacy to the former and his heirs ? In answer : Suppose the testatrix had made the legacy to P. Roy, simply to take effect after Alex. Roy's death ; it must be conceded,- according to the argument of the defence, that Alex. Roy's interest is at most a life estate. Does the fact that a contingency is introduced to the taking effect of P. Roy's right benefit Alex. Roy or his heirs in the least? Is a greater right given him, or are his heirs entitled to claim the legacy ? That the testatrix has left Undisposed of the residue bequeathed to P. Roy, were A. Roy to die and leave heirs, is not astonishing. It is a forgetfulness that can be easily imagined in a testatrix dictating her last wishes when stretched upon her death-bed. But this forgetfulness of hers, and the fact she has used the words, “au cas qu’il meure sans héritiers,” do not authorize the conclusion, that the words “je donne et légue á A. Roy, pour sa vie durante,” taken in connexion with the former sentence, mean a donation to him and his heirs. Upon the supposition she did mean a donation to him and his heirs, the defence is not benefitted. For, if the heirs inherit under the will, it cannot change A. Roy’s life estate. They must be the living heirs only; for, if not, the gift would be to persons unborn, in whom it could not vest immediately. If made to the living heirs, the “simple désir" (if addressed at all,) would be to them. They would be requested to dispose of the legacy, before their right would spring in existence; for, it is only in case A. Roy dies before them, that they take the legacy, the said legacy belonging to Pierre Roy if A. Roy dies without heirs. Taking this clause as it is, without shaping its meaning so as to suit the convenience or fancy of the defence, it is a clear donation of property to A.> Roy, for his lifetime, with a contingent remainder for P. Roy. Now, as to that part of the clause “je désire que cette somme retourne á P. Roy." Do these words contain a legacy ? The following questions may be given in answer: Is there any particular expression, any set of words, necessary to be used by a testator in order that his last wishes be of binding effect ? Does not the clear, unequivocal desire expressed by the testator, that his property shall belong to some one, amount to an actual disposition of it ? Must his intentions be couched in the language of command ? Marie F. Roy has bequeathed to Pierre Roy, by her last will, a residuary interest in the legacy to A. Roy, dependent upon the latter’s death without heirs. She has expressed her desire that he should have it in due course of time. It is not “un simple désir,” that A. Roy may be pleased, after his own death, without heirs, to make a present of it to P. Roy; but, she desires, that when the former’s interest is expired, the latter shall take the legacy, upon the fulfillment of the suspensive condition.

      In answer to all the French authorities quoted, besides denying their applicability to the present case, we will merely refer the court to the decision, (Ducloslange v. Ross, 2d Ann. 432,) that they cannot be used in this instance, they being totally at variance upon this subject with our jurisprudence. In a few words, this is a legacy to A. Roy, for his lifetime, with a contingent remainder to P. 'Roy. The bequest to the latter being of binding effect, whether the heirs of A. Roy come under the will, or whether the latter be considered as the absolute owner, is immaterial. For, in both cases, there exists the charge to preserve it for, and return it to P. Roy in due time. 4 L. R. 504. 3 M. R. 485. 1 L. R. 153. Poydras v. Poydras, Interpretation of Wills.
    2. This clause devises land and slaves to J. Roy, for her lifetime, and after her death, to L. O. Guidry. The ownership is given to both, but they enjoy it separately, “ordine successivo.” The same terms, “ Je donne et légue,” are used to convey the gift to both parties: “ Je donne et légue it J. Roy, pour sa vie durante, et aprés sa mort á Guidry.” “Je donne et légue a J. Roy, pour sa vie durante;” and “(Je donne et legue,) aprés la mort de Jl Roy, á L. C. Guidry.” Guidry takes the legacy after the death of Josetie Roy; he must, therefore, survive her, in order that the legacy may vest in him. There being nothing to prevent him from surviving her, she is, therefore, bound to preserve the property for him, in order to return it to him in due course of time.
    Were the expressions used in this clause susceptible of conveying the slightest ambiguity or equivocation, and were it not that they cany with them, not only the substance, but the garb and semblance of a substitution, it might be insisted, that because a person is never presumed to intend a violation of law — this clause should be interpreted as giving the usufruct to J. Roy, and at^the same time, the naked property to Guidry. But, how get over the words “je donne et légue A J. Roy, pour sa vie durante, et (je donne et légue) aprés sa mort á L. C. Guidry ? How can the terms “ je donne et légue aprés la mort de J. Roy,” convey the naked property to Guidry, before the former’s death, immediately after the testatrix?”
    Can clear unequivocal words be divested of their meaning, and a meaning totally at variance be wrung from them, in order to make a legal disposition of property from words containing an illegal one? To conclude, rights of the same nature, are conveyed to Roy and Guidry. The time when these interests spring in existence, and are at an end is fixed. The ownership has vested in J. Roy, to last as long as she lives. She has a right to use it as her own as long as she lives, but not alienate it, since her right (grévé de substitution,) is coupled with the charge of preserving it for, and returning it to Guidry, in whom the ownership will vest “ aprés sa mort,” after Josetie Roy’s death. In a word, they are both entitled to the legacy, but “ ordine successivo,” the true characteristic of a substitution. 5 Toullier, liv. 3, tit. 2, § 24. Merlin’s Rep. verbo Sub. Fid. § 56. Poydras v. Poydras, 1 L. R. 153.

      E. Simon, for defendants,
    contended: The plaintiffs pray in their petition, that the will of their sister, Marie Fanny Roy, be declared null and Void, on the ground that the only two dispositions therein written contain substitutions in favor of the persons therein named.
    1. It seems, the judge a quo, in the reasons he gives for annulling the will under consideration, took at once for granted, that the legatee, under the first disposition, is civilly and legally bound and obligated by the terms of the will to.’preserve the sum of money bequeathed, in order that after his death it may be transmitted to his heirs; and, in case of his dying without heirs, it may be transmitted to Pierre S. Roy. I say no; he is under no such legal or civil obligation; and nothing in the will would entitle Pierre'S. Roy to claim it in a court of justice. This is the whole question.
    • I shall premise, that on the subject of substitutions and the manner in which they are to be established, the two laws — the law of France, and art. 1507 of our code — are the same, and I shall proceed to demonstrate, that under our jurisprudence, as well as under that of France, the disposition under consideration, contains no substitution. The testatrix, after making the legacy to Alexander Roy, goes on to say : “ Et en cas de mort sans héritiers, je désire que cette somme retourne A Pierre Solastie Roy, mon frére.” That must mean, that the legacy made to Alexandre, being absolute, is to go naturally to his heirs, in the ordinary course of succession, but that in case of his dying without heirs, she wishes the amount to return, that is to say, to be given to her brother Pierre. She merely expresses her desire, and nothing else; she does not command; she does not impose any civil obligation on her legatee; and how can it be contended, that it carries with it the obligation to keep and preserve the amount bequeathed, so as to pay it over after his death to the person named in the will? How can it be said that “the donee is bound by the terms of the will to preserve the property in order to transmit it to. others ?” The will, by inference, no more than by its terms, expresses no such thing; and all it may amount to is, that she wishes the legatee, in case he dies without heirs, who would be entitled to inherit from him, to give the amount to, of to dispose of it in favor of Pierre Roy. No system of laws can ever give to the words “je désire ” the same effect as to an obligation imposed by a testator upon his legatee; and under no laws will the mere wish of a donor, be considered as a positive and binding obligation to comply with it. The principle quoted by the judge a quo, from the case of Duplessis v. Kennedy et al., 6 L. R. 245, to wit: “that it is of the essence of a substitution, that the original donee should be bound by the terms of the donation to preserve the property given for, and to transmit it to another person or class of persons, .&c.,” is .certainly correct; far from being disposed to controvert it, I rely upon it to show, that its application to -the present question would clearly warrant .the conclusion that our legacy contains no substitution, and that no legal obligation could derive from it in favor of Pierre Roy.

    Under the Roman laws, fidei commissa and substitutions were permitted to be established, and even inferred from mere conjectures ; by the jurisprudence of France, and particularly since the code, a contrary and safer rule was adopted. See Toullier, vol. 5, Nos. 25, 26 and 27. In No. 27 he says: “ En un mot, le code caractérise les substitutions prohibées par la charge expresse de conserver et de rendre k un tiers. II faut done que cette charge soit exprimée dans la disposition, ou qu’elle en résulte par -une conséquence nécessaire, &c.,” and he agrees with a decision of the court of Brussels, subsequently affirmed by the court of cassation, who held that the expressions “je prie mon héritier de rendre mes biens á un tel, ne sont plus aujourd’hui suffisantes pour caractériser une substitution prohibée., parce que, n’étant point eonjjues en termes impératifs, elles ne conférent aucun droit á. celui á qui l’héritier est prié de rendre.” So it is with all the expressions used in the Roman law: Rogo, depreeor, cupio, desidero, &c. See also Duranton, vol. 8, nos. 65, 71 and 72. Dalloz, vol. 12, verbo Substitutions, sec. 1, art. 5, § 3, says : “ la cour supréme á décidé que la priére de conserver et de rendre n’emportait plus essentiellement fidei commis obligatoire, et par conséquent ne tombait pas sous la prohibition de Particle 896.” Here, it is not even a prayer; it is not a request; it is a mere desire that the amount bequeathed, should return to Pierre Roy, and that the legatee, in the event of his dying without heirs, should dispose of it (by his will, perhaps,) in favor of her other brother. Surely, your honors will not deem the expressions used by the testatrix as amounting to an absolute command.
    2. I contend, that this second disposition means nothing more than a bequest of the usufruct to Joselle Roy, and the legacy of the naked property to Louis C. Guidry ; and that it is fully warranted by the article 1509 of our code. Indeed, it would be difficult to construe it differently, and it must seem a strange reasoning, when the judge says, in the way of illustrating his idea, “the property does not vest in Guidry, except on the happening of a contingency, the death of his mother, who is charged to preserve the same for him, and which contingency might never happen, as it is not unusual for children to die before their parents.” Such contingency exists in every case of usufruct and naked ownership; the owner of the property may die before the usufructuary; but that is no reason why the latter should not continue to enjoy his usufruct until the expiration of the time allowed by the deed, in order that it be then delivered to the owner if he be alive, or to his heirs if he be dead. As to the obligation of keeping and preserving the property for Guidry: this is the principal obligation of the usufructuaiy; he is bound to do so under article 560 of our code, which says : “ It is the duty of the usufructuary to keep the things of which he has the usufruct, and to take the same care of them as a prudent owner does of what belongs to him.”
    But I deny, that in this case the disposition can be so construed as to make it a substitution; because, forsooth, the legatee of the usufruct is bound to preserve the things bequeated for the legatee of the naked property. Now, what are the expressions used by the testatrix? “ Je donne et légue & Joselle Roy, veuve de feu Louis Guidry fils, ma sceur, ma mulatresse, &c &c., pour sa vie durante et aprés sa mort á son fils Louis Cyprien Guidry.” Do they mean anything else but this: that Josette Roy shall have the enjoyment of the property bequeathed “pour sa vie durante,” and that after her death it shall be delivered to her son. The owner is her son, and it is natural that the usufruct should be given to the mother during her whole life, and that the child should only take the property after her death. There is a principle well settled in our jurisprudence, which I presume this honorable court will consider a safe one in matters of substitutions; it is this: that in cases of doubt, it should always be presumed that the testator intended to do that which was lawful, rather than that which was prohibited by law. So in the case of Cole v. Cole's Executors, 7 N. S. 416, the late Supreme Court said: “Such is the respect paid to the wishes of the owner, that we believe it may be safely stated to be the spirit of the jurisprudence of every civilized country to carry into effect his will, unless it clearly violates the prohibition which the Legislature has established.” In the case of Arnaud v. Tarbe et al., 4 L. R. 504, the same principle was again recognized in the maxim that substitutions and fidei commissa are never presumed; they must be expressed, or result clearly from the sense and signification of the words in the instruments which contain them;” and in the case of Ducloslange, 4 R. R. 409, a case very similar to the present one, it was held, that “unless a clause in a will necessarily presents a substitution, and can be understood in no other manner, it will be sustained.” Such is the jurisprudence of France: Toullier, vol. 5, No. 44, says: “L’esprit général de laloi, celui de la jurisprudence des cours royales et de la cour de cassation, est de n’annuler une disposition faite depuis le code, qu’autant qu’elle présente nécessairement une substitution, et qu’elle ne peut étre soutenue ni interpi’étée d’aucune autre maniere.” See also Nos. 46 and 47. Duranton, vol. 8, No. 5, expresses the opinion, that “Toutes les fois que de 1’ensemble d’une disposition, il resultera que, tout en déclarant donner tel objet á une premiére personne dénommée, pour en jouir pendant savie et rendre la chose it sa mort á une autre personne, le donateur ou testateur n’aura néanmoins entendu donner á la premiere que la simple jouissance et non la propriété, qu’on pourra le supposer sans faire violence aux termes de l’acte, on devra voir, dans cette disposition, le simple don de l’usufruit fait á l’un, et de la nue propriété fait k l’autre.” Here again, the expressions of the testatrix are, that she gives the properly to Josette Roy “pour sa vie durante,” from which it seems to clearly result, that she only intended to give her the usufruct of the said property during her life; and surely such a clause does not necessarily present a substitution, nor can it be said that it can be understood in no other manner.
    Since my arrival at Opelousas, I have had occasion to refer to the case reported in 3d Ann. 432, and, as I thought, found that the difference that is thereon declared to exist between the two codes, only applied to fidei commissa, which are not prohibited in France, and which are absolutely forbidden by our code. But the court says nothing as to substitutions, which are equally prohibited by the! two codes; and the clauses of the will attacked in this suit are so attacked as being substitutions and not fidei commissa. I say again, that, as to substitutions, the two laws are the same, and that we may fairly avail ourselves of the benefit of the lights which we can obtain from the authors and commentators who have written upon the subject. The judge a quo seems to make no distinction between a substitution and a fidei commissum, otherwise he would not have made to this case the application of what the court said, in the case of Ducloslange v. Ross; yet it is quite different, and the different provisions of law upon the two subjects prove them to be so. Again, it cannot be denied that on the subject of substitutions the law of France and our law are exactly the same.
   The judgment of the court was pronounced by

Preston, J.

Marie Fanny Roy made a will containing the following dispositions: X. “ Je donne et légue k mon frére Solastie Alexandre Roy la somme tant en capital qu’en inlérét de l’argent que je lui ai prété, pour sa vie durante, et en cas de mort sans héritiers. Je désire que cette somme retourne á Pierre Solastie Roy mon frére. 2. Je donne et légue k Josette Roy veuve de feu Louis Guidry fils, ma sceur, ma mulatresse nommée Caroline, agée d’environ dix-neuf ana, et son fils Cyprien, agée d’environ deux ans, ainsi que la part indivisée d’une terre situeé dans l’anse du bayou Téche, paroisse St. Martin, pour sa vie durante, et aprés sa mort á son fils Louis Cyprien Guidry."

The heirs of the deceased have attacked these provisions in the will as prohibited by law, and ask that they be annulled by judgment. Our Civil Code declares, that “ every disposition by which the donee, the heir, or legatee, is charged to preserve for or to return a thing to a third person, is null even with regard to the donee, the substituted heir or the legatee.”

Under this law, in the case of Ducloslange v. Ross, a donation, substantially the same with the first disposition in the will under consideration, was annulled by this court. 3d Ann. 432. So a similar donation was declared null by the late Supreme Court, in the case of Arnaud v. Tarbe et al-, and the reasons presented by Judge Mathews for the judgment, and his strong exposition of the motives of public policy which induced the Legislature to prohibit substitutions and fidei commissa, are conclusive upon our minds as to the nullity of the first disposition. 4 L. R. 505. In the disposition under consideration, as well as in both those cases, the title to the property could not vest in the second donee, until it was ascertained that the first left no heirs.

In the cases of the succession of Ducloslange, 4 R. R. 410, and of the Heirs of Cole v. His Executors, 7 N. S. 417, these principles were fully recognized by the Supreme Court, but considered not applicable to those cases.

It is urged, however, that in this disposition in favor of one brother, the testatrix merely expresses a desire that the amount bequeathed to him should return to her other brother in the event of the first dying without heirs; that she does not even request, much less direct it. In wills, the desires of a testator are his wishes, and his wishes, if legal and formally expressed and published, are his will, and imperative upon his legal heir or representative.

The defendant’s counsel contends, that the second disposition in controversy in reality gives the usufruct of the property to one, and the naked property to another, and is protected by article 1509 of the code from the nullity declared in article 1507.

The reasoning of the Supreme Court in the case of Rachal et al. v. Rachal et al. 1 R. R. 115, strongly supports his views of the case. The legatees under this disposition are both in existence; are designated by it; the interest of each is clearly pointed out, and made dependent upon no condition ; and we see no reason why the interest of each should not vest at the death of the testator. The interest of the mother would, at her death, descend to her heirs; that of the son to his heirs. There is no substantial difference between a life estate and a usufruct for life vested in a mother, the naked property being vested in her son. The rights and duties of the parties are the same in each case. The property is bequeathed to the mother during life, that is, substantially, she is to have the enjoyment or usufruct of it. Louis Guidry is the legatee of the naked property, that is, the title is vested in him. Should he die before his mother, bis interest would vest in his heirs or representatives, subject to the interest or, in reality, usufruct of the mother.

We think these were the views and intentions of the testator, whose intentions we are bound to ascertain, (Code, art. 1705.) and to interpret his dispositions in such a manner as to give them effect, if it be possible, without departing from the proper signification of the terms of his testament. Code, 1705, 7006. And in cases of doubt, to presume that the testator intended to do that which was lawful, rather than that which was prohibited by law, and to cany into effect his will, unless it clearly violates the prohibition which the Legislature established. Cole's Widow v. His Executor, 7 N. S. 410.

It is therefor© ordered, adjudged and decreed, that the judgment of the district court be affirmed, so far as it annuls the legacy in the will of Mane Fanny Roy in favor of her brothers Solastie Alexandre Roy and Pierre Solastie Roy ; and that it be reversed so far as it annuls the legacy of the testator in favor of her sister Josette Roy, the widow of Louis Guidry, and her son Louis Cyprien Guidry, and that there be judgment in their favor. And it is further decreed, that the plaintiffs pay half the costs in both courts, and Solastie Alexandre Roy and Pierre Solastie Roy pay the other half.

Slidell, J.

With the limited means I have had of examining the subject, I have come to the same conclusion as Judge Preston has adopted, with respect to the dispositions of the will.

Rost, J.,

dissenting. I am unable to distinguish between the two dispositions of the will in this case.

An estate for life is not a usufruct. By the terms of the donation, the son has no title or claim which he could transmitió his heirs if he died before his mother; she is charged to preserve and to return the property. This is one of the substitutions prohibited by law.

I am of opinion that the judgment ought to be affirmed.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Gorge Haydel v. Jackson R. Nixon.
    Until a patent issues the government never so entirely divests itself of title as to he precluded from setting aside an entry which conflicts with private claims; and the court cannot revise the decision of the commissioner of the general land office cancelling a certificate of entry.
    An affidavit for an injunction, in which the affiant states that “the allegations set forth in the foregoing petition are substantially true and correct, according to the best of liis belief,” is sufficient.
    APPEAL from the District Court of St. Mary. Overton, J.

      Olivier, for plaintiff,
    cited, to show that errors in a location might be corrected, 8 N. S. 653; 6 Wheaton 605. That the court could not revise the decision of the commissioners annulling an entry, 2d Ann. 299 ; Courtney v. Perkins, ante p. 216. To sustain the affidavit for the injunction, 1 R. R. 317.

      Splane and Brent, for defendant, cited, to show that the plaintiff acquired no title until his locations were approved, 11 L. R. 5S9. Upon the effect of a compromise, C. C. 3038, 3045. Upon the affidavit for the injunction, they conteded it was so vague and uncertain that the party could not be convicted for perjury, in case he had sworn falsely.
   The judgment of the court was pronounced by

Rost, J.

This is a petitory action, in which the defendant has appealed from the judgment rendered against him. The plaintiff adduces as his title, a commissioner’s certificate of confirmation in favor of the legal representatives of Malachi Hays, bearing date the first day of August, 1811, founded on an order of survey in favor of Malachi Hays, for ten arpents front, by the depth of forty on each side of the river Téche, bearing date the 20th of June, 1781, with proof of possession more than twenty consecutive years previous to the 20th of December, 1803. The land is described in the grant as being situated about half a league below the land of Derohan on the river Téche, and is to have, under the certificate, such form and marks, natural and artificial, as shall be represented in a plat thereof, to be returned by the principal deputy surveyor of the district. He holds under the grantee by a regular chain of conveyances.

The defendant rests his title on the receipt of the receiver of the land office, bearing date the 29th February, 1844, and the register’s certificate issued thereon on the 26th of March following.

It is conceded, that the location of the plaintiff’s land, made in 1845, and approved by the surveyor general, conflicts with the land of the defendant; but he urges, that as far back as 1814, another location had been made and approved, which did not conflict with his entry; and that, as at the time of his purchase the land in controversy was represented on the township map as public land, lie has acquired a good title, and cannot be evicted by the plaintiff.

It is in evidence, that on the 8th of June, 1848, the commissioner of the general land office informed the register and receiver at Opelousas, that the certificate issued to the defendant, having been found to conflict with a confirmed private claim of the representatives of Malachi Hays, had been cancelled as void. He directed them at the same time, to advise the defendant of this disposition of his entry, and that on a proper application the purchase money paid by him would.be refunded.

We cannot revise the decision of the commissioner cancelling the certificate under which the defendant claims. Until a patent issues the government never so entirely divests itself of title as to be precluded from cancelling a sale and setting aside an entry, when the land sold conflicts with private claims. The original grant of the plaintiff having no fixed boundaries, we must take the last location as the true one, and hold the defendant’s title as void, so far as it conflicts with it.

We are of opinion that the affidavit upon which the plaintiff obtained his injunction was sufficient in law.

The judgment is therefore affirmed, with costs.

Slidell, J. I concur in the opinion on the merits, but have doubts as to the sufficiency of the affidavit for injunction.


author: Preston, J.

text:
    Jules Dugas v. Alexander Estiletts, Administrator.
    Where a redhibitory vice appears in a slave within three days after a sale, the presumption that it existed before does not apply to vices of character, such as being a runaway.
    The legal presumption, that where a vice has made its appearance in a slave within a certain time, it existed before, maybe rebutted by testimony. The only legal presumptions which cannot thus be rebutted, are those which annul certain acts or refuse a judicial action.
    APPEAL froin the District Court of St. Martin, Voorhies, J.

      E. Simon, for plaintiff.

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

Preston, J.

This is a suit for the rescission of the sale of a slave, on the ground that he was in the habit of running away when sold. The plaintiff' alleges that this vice of character manifested itself by the slave’s running away within three days after his delivery to the purchaser ; and contends, that this fact affords a legal presumption of the existence of the vice at the time of the sale, and which presumption cannot be rebutted by parol evidence, because it is a presumption of law.

The plaintiff’s counsel has addressed to ns a very able argument to show that the presumplion invoked applies to the vices and character in slaves, and we would possibly yield to his opinion if it were an open question. But the most distinguished of our predecessors have, in two cases, come to a different conclusion, and based their opinions upon those of our earliest commentators on the laws of redhibition. 6 L. R. 288. 2 L. R. 254, 410. In the interpretation of a law, it is a wise rule, “ stare decisis,” and we are obliged to adopt it in this case.

We are, moreover, unable to concur with the counsel in the position that the legal presumption on which he relies cannot be rebutted by proof. This principle extends to those legal presumptions only which annul certain acts or refuse a judicial action. Code, art. 2266. Other legal presumptions may be controverted by testimony.

None of plaintiff’s witnesses show that the slave was a runaway before the sale. Some of them prove that he was a good slave and not a runaway. The defendant has introduced several witnesses who give him the same character. The case is, therefore, clearly with the defendant. C. C. 2508.

Besides, it is well settled, that to maintain an action of redhibition, the slave must be tendered back, unless the tender be excused for sufficient reasons. The plaintiff offers as his excuse, that the slave was killed while a runaway, in attempting to make his escape. We cannot admit this excuse without explanations, which the record does not afford.

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


author: Slidell, J.

text:
    Alexander G. Vincent v. Elam Sanford.

    The statute of 6th of April, 1843, directing the mode of publishiiig advertisements of sheriffs’ sales, is sufficiently complied with by posting one advertisement at the court house door, and two other notices in two public places in the same village.
    APPEAL from the District Court of St. Mary. Vborhies, J.

      Splane, for plaintiff.

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

Slidell, J.

The plaintiff seeks to annul a judicial sale of his property made to the defendant under a writ of jfien facias. The only ground for annulling the sale which is urged in the brief of the plaintiff’s counsel is, that the sheriff’s advertisements were all posted in the town of Franklin, instead of being posted, one there, and the others in two places in the parish other than the town of Franklin. It appears from the evidence, that one advertisement was posted at the court-house, one at the post-office, and one at the store of Smith Sf Harris ; all in the town of Franklin. The court-house and post-office were of course places of public resort; that the store was a conspicuous and frequented place in that village, is also satisfactorily proved, and, indeed, is not disputed.

There was judgment in favor of the defendant, and the plaintiff has appealed. The plaintiff relies, in argument, upon the case of Pumphry v. Delahoussaye, 9 R. R. 42. That case was not overlooked in deciding the case of Fox v. Tio, in which we were called upon to interpret the statute of 6th April, 1843, and declined to adopt the construction given by our predecessors. We thought then, and still think, that the requisitions of the statute are satisfied by posting the advertisements at the court-house door and two other conspicuous and publicly frequented places in the parish, even though two or all of those places be in the same village. That this interpretation does no violence to the language of the act, we think is clear; and it was a grave consideration with us then, as it is now, that the public officers charged with the duty of making judicial sales, had repeatedly acted upon that construction, and rights had been extensively acquired under that practice. Although we entertained great deference for the opinion of our predecessors, we had less reluctance in dissenting from it and following our own, when we considered that the latter tended to quiet, and the former to disturb, titles acquired in good faith under the actions of public officers.

For a more full consideration of the terms of the statute we refer to our former opinion. 1st Ann. 335.

The judgment of the district court is therefore affirmed, with costs.


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    Emily R. Davis el al. v. John Davis et al.
    The heir who owes a debt to a succession is entitled to collate it, and cannot be sued for the debt without proof of the insolvency or indebtedness of the succession, and the necessity of his paying. C. C. 1214, 1271, 1272, 1265.
    APPEAL from the District Court of St. Landiy, Overton, J.

      Lewis and Porter, for the plaintiff,
    contended: The only question is, as to the right of the plaintiffs to sue before a final liquidation and settlement of the estate. Now, it is true, that art. 1265 L. C. provides, “ that an heir who purchases at the sale of the hereditary effects is not. obliged to pay the surplus of the purchase money until the portion coming to him be definitively fixed by a partition.” But to make this article of universal application to all cases of indebtedness on the part of those who may chance to be heirs, would place the effects of all successions entirely at the mercy of any dishonest person who happens to be heir to an estate; for it would be easy to suppose cases where, from the tardy process of our courts, the whole assets of an estate might be squandered by an unfaithful heir before it would be possible to obtain a definitive partition; and perhaps a stronger case could hardly be put than the one now before the court. But suppose the article to be universal in its application, does it forbid a judgment liquidating the claim ? Cannot a court pronounce on the validity of the claim, and suspend the execution of its judgment to await a partition among the heirs ? Shall I be compelled to stand by and suffer my debt to be prescribed, because the law provides that my co-heir shall not be obliged to pay until a partition is had ? Would not this doctrine forbid a judgment of partition itself?
    This article, with others, must, receive a reasonable construction, and we think the only fair construction is, that it confers a privilege of postponing the payment of any balance that may be due by an heir until a final partition; but it would be manifestly unjust to permit a faithless heir to taire advantage of this privilege to defeat the ultimate recovery of a just debt by a fraudulent transfer of his property. Thus we say, that we have a right, notwithstanding this provision of the code, even if applicable to this case, to have our claim liquidated by a judgment of the court, and further, to annul any contract made in fraud of our rights.
    This case should form an exception to the rule contained in the article under consideration. But should it not be considered an exception, this law has had a construction put upon it in the case of Rills v. Questo, 2 L. R. 250, where the learned judge well remarks, that “ whatever right the defendant may have on the estate, he cannot avail himself of it to avoid paying for the property he bought at the sale of the estate,” (“a fortiori,” a debt due to his deceased ancestor,) and adds, “ there may be debts of the deceased to pay, and the estate must be liquidated before any heir may claim any part of it.”
    But defendant refers to the case of Rachal v. Rachal’s Heirs, 10 L. R. 454. If that case has any application to the issues in this case, it sustains our action, because in this, as in that case, we are seeking a judgment for a sum of money in the hands of a third person, viz : the defendant; and, according to that case, we are entitled to a judgment each for his virile share as well as the defendant, who is also an heir, and the whole estate is sold and consists in a sum of money, and is not susceptible of partition, but is of division, to use almost the very language of the learned judge. Should the exceptions be sustained, and the plaintiffs defeated in their honest endeavors to secure the interest of the creditors and heirs of the estate, then we shall truly be placed in the unfortunate situation of creditors having claims undoubted and undisputed, yet unable to take any steps through the courts of the country to protect ourselves against the fraudulent misconduct of our debtor; and this, upon a rigid construction of a single article of the code, in its spirit (with this construction) contradictory to numerous other provisions of the same code intended to protect creditors against just such conduct as is complained of in this case.

      Swayze and Moore, for defendant,
    contended: If John Davis be an heir, he with the other heirs are undivided proprietors of the effects of the succession of their common ancestor, Major Davis, deceased; and if so, he is an undivided proprietor of the very claim for which plaintiffs are seeking to recover a judgment against him. Debts due to a succession form as much a part of that succession as land and slaves do. See L. C. 1214,1215, 1216, 1252, 1254, 1255, 1256, and 10 L. R. 454. If an heir owes the succession, the debt forms a part of the successional effects which forms the subject of partition. See L. C. 1271, 1272.
    An heir cannot be made to pay a debt due by him to the estate of his deceased ancestor, until a final partition has been made and the amount due by each heir definitively ascertained. How can the share of each heir be ascertained on the amount due by him definitively, until it is done by a partition effected in the mode pointed out by law ? Although an heir may be a debtor of an estate, the same heir may prove to be a creditor on final settlement, for his co-heirs may happen to owe, in the shape of advances, more than he. But the debts of the succession are unpaid, and its credits uncollected. How is the nett balance to be struck which is to be divided ? What claims presented against the estate will be allowed? What rejected? What amount of credits due the estate will proveto be good ? What bad ? Can the court go into the consideration of all these questions in this form of action? No! Because the parties that would be affected by it are not before the court. Or should the court make an approximate estimate in order to arrive at the nett balance ? For some result must be arrived at, either certain or uncertain. John Davis is an heir of the estate and, consequently, a creditor of Ms indebtedness to the estate. The qualities of debtor and creditor are united in the same person, which creates that confusion of right which extinguishes the two credits. John Davis is an undivided proprietor of the successional effects; he is sued as a debtor to that succession of which he is an heir, and is therefore made to sue himself, which is absurd.
    Again, if one heir has a right to sue his co-heir for a debt due a succession, the latter possesses an equal right. Would this not lead to that circuity of action and multiplicity of litigation which the law abhors? Would it not lead to a species of cross-firing which would, in the end, prove most disastrous to the combatants? What is the remedy? The lawgiver foresaw the evil consequences that would flow from that course of action in the enforcement of right by heirs, which the plaintiffs are now pursuing, and provided an effectual remedy in the action of partition. Each heir can resort to this remedy. No one can be compelled to hold property with another unless the contrary has been agreed upon. The heir who owes a debt to a succession may be made to collate it. L. C. 1275, 1276, 1277, 1278, 1305 and 1326.
    If, in the course of a partition, difficulties should arise, the proceedings are suspended and referred to the judge. By this means all controversies among heirs in relation to community property are finally settled by one suit. L. C. 1290, 1296 to 1299. The sums which each of the co-heirs owe to the deceased are divided. L. C. 1271 and 1272. The co-heirs to whom the collation is due, have a right to require and obtain an order that the property subject to the collation be a¡5praised, in order that it may be included among the effects to be divided for the sum at which it is appraised. L. C. 1257, 1276 and 1278.
    This suit is premature. If a judgment is rendered against the defendant Davis, itwould deprive him of a privilege accorded him by law. Now, ifthere be not sufficient effects in the succession to satisfy the heirs to whom the collation is due, the amount of the collation, or the balance of it, shall be paid them by the heir who owes the collation. This heir shall have one year to pay the sum thus due by him, if he furnish his co-heirs with his obligation payable at that time with ten per cent interest, and give a special mortgage to secure the payment thereof, either on the real estate subject to the collation, if it is in his possession, or in want thereof, on some other immovable property which may suit the co-heirs. See L. C. 1355 and 1356. It may however be urged, that these articles are not applicable to the case at bar, because the claim sued upon is not real property. But the result is the same, whether it be a credit or real property which is collated.
   The judgment of the court was pronounced by

Slidell, J.

This action is brought by Hannah Crosthwaile, as administratrix of the succession of Major Davis, and in her own right as his widow, and' by Emily Davis and others, children and heirs of the deceased, against John Davis, who is also a child and heir of the deceased, to recover from him a sum of about $1600. 'The claim is based upon two judgments obtained in Alabama by D. Gurley, for the use of Major Davis against John Davis. The prayer is, that the petitioners do recover and have final judgment against John Davis for the sum claimed. The petitioners also allege that John Davis had made a fraudulent and simulated sale of certain lands and slaves to A. G. Burrows, in order to defraud his creditors. They pray that Burrows be cited, "and that the sale be adjudged void. The petition contains no allegation that the succession of Major Davis is insolvent, nor that the share of John Davis in the succession, as heir of deceased, is not equal to the debt due by him.

To this proceeding the defendant’s excepted; the exception was maintained by the district judge, and the plaintiffs have appealed.

There is no error in the judgment. John Davis is himself an heir, and has, with the plaintiffs, his co-heirs, an undivided interest in the property of the succession. There is neither allegation nor proof that the succession is insolvent; and it may well be that, after payment of the debts of the succession, the share coming to the defendant may be larger than his indebtedness to the succession. The heir who owes a debt to the succession is entitled to collate it. As regards the action of Mrs. Orosihwaite, in her capacity of administratrix, there may be cases in which an administrator may sue an heir who is a debtor to the succession, and compel him to bring the money into court. But such a proceeding ought not to be permitted, where there is no suggestion nor proof of its necessity for the purpose of paying the debts of the succession. So far as we can form an opinion from the documentary and other evidence in the cause, more particularly the proces verbal of a succession sale and account of debts and assets prescribed by the former administrators, the succession is amply solvent, independently of the alleged amount due by the defendant, and will leave a large surplus for distribution among the heirs. See Civil Code, arts. 1214, 1271, 1272, 1265, &c. '

The claim to annul the sale to Burrows is incidental to and dependent upon the principal demand against the defendant, John Davis, andas the latter cannot be maintained, the former must be dismissed with it.

It is therefere decreed, that the judgment of the district court be affirmed, with costs.


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    Benjamin McCleland, Administrator, v. H. Bideman.
    The forfeiture of the right to act as administrator, contemplated by the act of 13th of March, 1837, does not take place ipso facto by the omission to file an account. It is a matter to be acted upon in the matter of the succession, and cannot be inquired into collaterally in a suit brought by the administrator against a debtor of the succession.

      Where the prayer of the petition asks that the property be sold for cash to pay one installment, and the balance of the price on a credit to meet another installment not dne at the time, and the last installment falls dne before the case is disposed of, the court may order the sale to be made for cash altogether.
    APPEAL from the District Court of St. Landry. Overion, J.

      Lewis and Porter, for plaintiff.

      Swayze and King, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff having been appointed administrator of the succession of Sarah Andreivs, deceased, wife of Henry Bideman, caused an inventory to be made, and subsequently, in 1847, a sale to be effected. At this sale a slave was adjudicated to the defendant at the price of $1065, payable in two installments: one due in April, 1849, and one in April, 1850. In the inventory, as well ns in the proces verbal of sale, the slave is described as the property of the succession of Sarah Andrews, and the latter is signed by the defendant. It also appears from the evidence, that the slave did not belong to the community, (if one existed between Bideman and his wife,) but was her separate property, being the issue of a female slave owned by her before her marriage with Bideman, which took place after the Code of 1808 went into force.

The defendant excepted, in the first place, to the right of the administrator to sue, because he had not rendered an account of his administration within the year after his appointment, nor within the last year; and has thus, it is alleged, lost the administration. It appears from the evidence, that the plaintiff filed an account, which seems deficient in minuteness and detail, on the 2d May, 1849, shortly before the defendant answered in this cause. No opposition has been filed to it, and there has been no proceeding in the matter of the succession to oust the administrator. The forfeiture contemplated by the act of March 13, 1837, does not take place ipso facto by the omission to file an account. It is a matter to be acted upon by the court in the matter of the succession, and cannot be discussed collaterally in a suit before a court exercising its ordinary jurisdiction by the administrator against a debtor of the estate. We do not mean to say, that the court might not have ord.er.ed the sum to be deposited in court, and not to go immediately into the hands of the administrator on a showing that (he sum would be in danger, even before a formal proceeding to oust the administrator had been determined. But no such showing has been made in the present case.

It is next pleaded that the plaintiff cannot maintain his action, because the defendant was in community with the deceased, and there has been no settlement of the community, his share in which he alleges to be more than the amount now claimed for him.

We have already stated that the property sold was unquestionably the separate property of the deceased, in which the husband had no interest whatever; and it was adjudicated to him at the sale as such. In accordance with the principles recognized in Robin v. Castille, 7 L. R. 295, we think the defendant has no right to retain the price until the community is settled.

It is said, the judgment is erroneously given for both installments ; when the suit was brought, but one installment had matured. The plaintiff’s prayer was that the slave be sold for so much cash as would pay the matured installment, and on a credit for the residue, according to the maturity of the second. This decree the plaintiff properly asked. He also asked a personal judgment for the whole price. As no exception was made on the ground that the last installment was not yet due, and as it had matured before the cause came ti. trial, we see no reason to disturb the judgment.'

The judgment of the district court is therefore affirmed, with costs.


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    Elodie Gonsoulin et al. v. Salvador Migues et al.
    Where a tutor neglects to give bond, it is his own fault, and cannot exempt him or his property from liability for his administration as tutor.
    A tutor owes interest on the balance due to minors from the day his accounts were closed. C. C. 353.
    APPEAL from the District Court of St. Martin. Voorhies, J.

      E. C. Brent, for plaintiffs.

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

Preston, J.

On the 23d of June, 1838, Salvador Migues was duly appointed dative tutor of the plaintiffs, Elodie, Hersilie and Malvina Gonsoulin. He took his oath as tutor, but did not give security as required by law. This being an omission of his own, does not diminish his responsibilities. He was the administrator of the succession of their grand-father, and liquidated their interest in the same at $1021 17¿; he received for them on the liquidation of their grand-mother’s estate, $133 12¿_; and in right of their mother, $300: making $1454 30.

The district court has allowed five per cent interest, in favor of the minors against the tutor, on these sums, from the date of their receipt. We cannot disallow it, as the tutor has rendered no account of the expeditures for the minors. The aggregate amounted, on the 30th September, 1849, when the balance was liquidated, to $1918 32, for which judgment was rendered, with five per cent interest from that date until paid. Code, 353.

The defendant submitted to a judgment and forced alienation of his property at the suit of his wife, on the 18th January, 1844, which the plaintiffs attack as simulated, and intended to defraud them of their rights. They have a legal mortgage to secure their rights from the date of the appointment of their tutor, on the 23d June, 1838. The sale is therefore immaterial to them, especially as the wife of the tutor shows no privilege, and her mortgage, if real, is posterior in date to the plaintiffs’.

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


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    Marguerite A. Mouton v. Cameau’s Heirs.
    The formalities prescribed by art. 1571 C. C. for nuncupative testaments must be strictly complied with, and although the notary’s certificate states that the legal formalities were observed, this may be contradicted by parol proof.
    APPEAL from the District Court of Lafayette, Overton, J.

      E. C. Brent, for plaintiff.

      C. H. and E. Mouton, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff claims from the heirs of Cameau a sum of $3000¶ in usufruct under a will of the deceased. In their original answer, the defendants pleaded a general denial, and also pleaded as follows: “ They specially deny any rights to the plaintiff in and by virtue of the pretended 'will set up in her petition, which they say is not a valid will, and can give to the plaintiff no right whatever. "Wherefore they pray that the will may be declared null and void,” &c. The cause being brought to trial, and the plaintiff having closed her testimony, the defendants offered witnesses to prove that the formalities required by law were not fulfilled by the notary in making the will of the deceased. To this testimony the plaintiff' objected, on the ground that all the formalities required by law appeared, from an inspection of the will, to have been complied with, and that there was no other issue made by the pleadings than whether or not the will was good and valid on its face, and whether in its enunciations of form it complied with the requirements of the law. There is a second ground of objection stated in the bill which need not be noticed, it not being relied upon by counsel here. Thereupon, the defendants tendered an amendment of their answer, in which they set forth that the will was not dictated in the presence of the subscribing witnesses, although upon its face it seemed so to have been done, and that other formalities which seemed to have been, on the face of. the will, complied with, were in fact omitted. To the filing of this amended answer the plaintiff objected, that it came too late, the plaintiff having closed his testimony, and that it changed the issue and set up new matters of defence. But the district judge being of opinion that the validity of the will was already in issue by the pleadings, and the effects of the amendment was only to notify more specifically the grounds of objection relied upon by the defendants, permitted the defendants thus to amend. The bill concludes as follows: “The court, at the same time, allowed the plaintiff time to prepare for the trial, and the case was postponed until the following day, when the parties proceeded to trial.”

"We do not deem it necessary to express an opinion, whether, under a rigorous construction of the previous pleadings, the testimony offered was admissible. But we are satisfied that this was not such an exercise of the large discretion in such matters vested in district judges, as this court, on appeal, should refuse to sanction, and thus shut out the investigation of truth. It is proper that this court should be more reluctant to reverse the opinion of a district judge where he has allowed an amendment, than when he has refused it. The former is much less likely to do injustice than the latter. In the present case, it cannot be said that the plaintiff was taken by surprise, and unprepared. The court postponed the cause to the following day; and the plaintiff then proceeded to trial, without any application for a further postponement.

Upon the merits, we concur in opinion with the district judge. The code prescribes the following formalities for a nuncupative will by public act, art. 1573 ; “The nuncupative testaments by public act must be received by a notary public in presence of three witnesses residing in the place where the will is executed,, or of five witnesses not residing in the place. This testament must be dictated by the testator, and written by the notary as it is dictated. It must then be read to the testator in presence of the witnesses.” Express mention is made of the whole, observing that all those formalities must be fulfilled at one time, without interruption, and without turning aside to other acts.

Thus we see that the law requires, in a will of this kind, that the testator should dictate, as well as hear and subscribe the will.

The will was made before the recorder of the parish of Lafayette, in which-the cause was tried, and three witnesses residing in that parish, R. M. Stevens, P. Landry fils, and J. M. Melangon. Landry testifies that he saw the recorder write, he being seated. Witness did not hear the testator speak a woid to the recorder. “Witness states also that the testator did not dictate any thing to the recorder in his presence. Cameau was present and seated in his bed when the will was read, and was not too ill to be able to pay attention to what was going on, and believes the testator heard the reading of the will. Melanpon says he was sent for to sign the will, and when he arrived found the recorder at the foot of Cameau's bed in the act of writing; did not hear the testator dictate any thing to the recorder; did not dictate any thing to the recorder in his (witness) presence; heard him read aloud the will to the testator, and thinks from the language of the testator he knew what was going on around him. Stevens testified that not a word was dictated to the recorder by the testator in his presence.

It is clear, therefore, that under the article of the code, the will is invalid. The point was also so held in Langley’s Heirs v. Langley’s Executors, 12 L. R. 117, and in Knight v. Smith, 3 M. R. 167. The latter case was under the Code of 1808, which is similar in this respect to the Code of 1825.

Judgment affirmed, with costs.


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    Succession of Allen J. Key.
    The acknowledgment of the correctness of an account is not conclusive against the correction of gross errors in fact, or mistakes as to the legal rights of the parties.
    An executor who is also an attorney at law will not be allowed to charge for his services as attorney, nor can he obviate this by charging the fees as due to other lawyers who never in fact attended to the business.
    APPEAL from the District Court of St Mary. Voorhies, J. The judge of the district court decided as follows: “ Thomas E. Bowles was formerly appointed executor under the will of Alien J. Key, deceased, whose succession was opened in the month of March, 1844. A judicial sale of all the property of the succession was made on terms of credit during the executorship of Bowles. Previous to the maturity of the last term Bowles died without having rendered any account of his administration. On the 3d of September, 1841, Thomas Maskell was appointed curator. On the 2d of July, 1849, he was dismissed from his office as curator, and ordered to render an account of his administration. The opposition of the heirs to the account rendered under this order, constitutes the subject matter in litigation.
    “It is proper in the first place to notice some of the acts of the curator preceding the rendition of his account. On the trial, he has introduced an account certified to be correct by John B. Conrad, as attorney of the absent heirs. The certificate of Conrad bears no date. The following memorandum appears in the body of said account. “ These credits are allowed as per agreement between me and some of the heirs as per contract of settlement made and signed in triplicate, at Franklin, April 20th, 1844.” Hence, it is obvious that the certificate must have been given subsequently to the 26th of April, 1844, the date of the agreement; at all events there is no evidence to the contrary. The account could not, therefore, have been the basis of the agreement. But be this as it may, it is nevertheless ti-ue that the sum of $2299 61, specified in said agreement, which has also been introduced in evidence, for debts, charges and expenses, corresponds precisely with the aggregate of the debts, charges and expenses detailed in said account, and also constitute the same items now in controversy. The curator was authorized, under said agreement, to retain in his hands the sum of $1240 41, until the adjudication of the court on Polly Bed-good’s right of heirship, which was contested on the ground of her illegitimacy; and also the sum of $500, the legacy in favor of the emancipated slaves under the will of said Key. The right of heirship of Polly Bcdgood appears to be still unsettled. The legacy has never been paid over to the legatees. Since the removal of the curator Henry C. Wilson has been appointed dative testamentary executor. The charges and expenses embraced in said sum of $2299 61, constitutes the main, if not the only matter in controversy. It is, however, contended by the curator, that the agreement of the heirs in relation to said items is conclusive against them. I do not think so. The acknowledgment of tire correctness of an account is not conclusive against the correction of gross errors in fact, or mistakes as to the legal rights of the parties. 6 L. R. 204.
    “I shall now proceed to examine the various grounds of opposition in the order presented in said opposition.
    “1st. The correctness of all the items, except such as are to be specially noticed hereafter, has been satisfactorily established by the evidence.
    “2d. The claim of John B. Conrad, for services rendered as attorney of the absent heirs, being liquidated by the judgment of a competent tribunal, the payment of the same is, therefore, legal, and cannot be questioned in this cause.
    “3d. The claim of the curator for counsel fees, amounting to the sum of $1563, is resisted, on the ground that the same is exhorbitant and illegal. The services were rendered by the curator, and not by Simon and Maskell, as specified in the account; he alone claims the benefit of said fees. It was admitted on the trial by the curator, that Judge Simon had never been employed in any of the cases in which said fees are charged. In the case of Baldwin’s Executor v. Carleton, 15 L. R. 399, the couit virtually adopted the English rule, that an executor who is also a professional man, and renders legal services to the estate he administers, is not entitled to any separate compensation, The reason of the rule is that the best counsel should be selected and employed on the best terms. Judge Martin, in delivering the opinion of the court, remarked, that it was the duty of the executor to make such selection; “but it was his interest in this case that he should be employed at all events, and, as his conduct has shown, on the very highest terms. In our opinion, he succumbed to the temptation.” It is urged by the curator, that no action lies to recover what has been paid or given in discharge of a natural obligation. This is conceded. But it can hardly be contended, that the funds retained in his hands as curator, in compensation of his claim for counsel fees, can be considered as a payment. Hud the heirs received the funds, and then made the payment to the curator, the principle contended for might be applicable. The claim of the curator for counsel fees must therefore be rejected.
    “4th. This ground of opposition has already been settled.
    “5th. The curator is only entitled to commission on $11318 35, the amount of the inventory made on the 3d of September, 1841. Instead of $294 41, his commission must therefore be reduced to $282 94. C. C. 1062. '
    “6th. The share of each of the heirs can only be ascertained after the f mu liquidation of the succession, fixing the nett amount of the funds to be liv. ■<, among them. Nancy L. Key, the nieceof the testator, is entitled to aim - ¡ blunder the will. Polly Bedgood, a sister by the half blood of the te-'- ■ . ■- represented to be illegitimate, and not entitled to inherit. Her portion must therefore be reserved, and paid over to the dative testamentary executor, subject to the further action of the court. Her portion must be fixed according to the provisions of article 909 of the Civil Code — to wit, one fourteenth of the nett amount of the active mass, there being six roots, including Nancy L. Key, of the paternal and maternal lines. The amount received by each of the heirs from the curator, must be deducted from their respective shares thus ascertained; and in case said curator shall have overpaid any of them,- he shall be accountable for the surplus as having paid the same without any legal authority.
    “7th. The principles laid down in the 6th ground of opposition are applicable to this.
    “8th. The curator is bound to account for and pay over to the heirs the amount of their respective share’s, deducting therefrom what he has already, paid over to them, and to account for and pay over to Henry C. Wilson, as dative testamentary executor, the sum of $500 — the amount of the legacy in the will, and the amount reserved to meet the contingent shares of said Polly Bedgood.

    “9th. For ought that appears to the contrary, the curator has given credit for all the funds to which the succession is entitled.
    “10th. The curator must allow interest on all sums in his hands, according to the decree of the 2d of July, 1849. ■
    “It is therefore ordered, adjudged and decreed, that the'account thus rendered, with the foregoing modifications and amendments, be and the same is hereby homologated.”

      Thomas Maskell, for appellant. W. C. Dwight, for appellees.
   The judgment of the court was pronounced by

Slidell, J.

In this case the district judge has given at length the reasons for his decree, and we fully concur in the conclusion to which he arrived. We are clearly of opinion, that the heirs ought not to be held to the settlement made in ignorance of the time state of facts. And we deem it our duty to remark, in addition to the fact that Mr. Simon was not professionally employed, (as was represented by the curator to the heirs,) that a portion of the charges illegally made by the curator in his own favor, under the name of Simon and Maskell, appears to us exhorbitant.

' Judgment affirmed, with costs.


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    Dunlop, Moncure & Co. v. Nancy Tarkington.
    In the absence of any proof of an agreement as to the manner of imputation, a payment must be imputed to the debt -which the debtor had the greatest interest in discharging at the time. O. C. 2161, 2162.
    APPEAL from the District Court of St. Mary, Voorhies, J.

      Maskell, for plaintiffs.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiffs became, in the spring of 1846, the holders of two notes of the defendant, each for $2000, one due 1st April, 1846, the other due 1st April, 1847, both bearing interest at ten per cent after maturity, and secured by mortgage of a plantation belonging to the defendant. On the 3d of March, 1847, the plaintiffs advanced to her a sum of $1420, and on the 7th May a further sum of $300, at six per cent interest. In the years 1846, 1847 and 1848, the defendant made shipments of sugar to the plaintiffs, the nett proceeds of which were sufficient to pay the mortgage notes and interest, if applied to them, and not to the total amount of the defendant’s indebtedness. The question is whether the defendant has a right to have the imputation made to the mortgage notes.

We have no evidence before us showing under what agreement, as to the application of proceeds, the sugar was shipped, nor that the defendant has ever expressly or impliedly assented to any other imputation than that which she claims. If there was any such agreement, either express or resulting from the correspondence or course of dealing of the parties, it should have been proved. In the absence of such proof, we consider the case as controlled by the text and spirit of articles 2161 aud 2162 of our code. “When the debtor of several debts has accepted a receipt, by which the creditor has imputed what he has received to one of the debts specially, the debtor can no longer require the imputation to be made to a different debt, unless there has been fraud or surprise on the part ©f the creditor. When the receipt bears no imputation, the payment must be imputed to the debt which the debtor had at the time most interest in discharging, of those that are equally due, otherwise to the debt which has fallen due, though less burthensome than those which are not yet payable. If the debts be of like nature, the imputation is made to the less burthensome; if all things are equal, it is made proportionally.”

The judgment of the district court is therefore affirmed, with costs.


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    Alexander Lewis v. Wm. Q. Gordy et al.
    Where the plaintiff in execution appoints an appraiser of the property to be sold under it, this amounts to a waiver on his part of any error in the advertisement The role that the formalities in forced alienations are to be strictly observed, is intended rather for the benefit of the defendant and purchaser.
    APPEAL from the District Court of St. Mary, Voorhies, J.

      Thos. Maskell, for plaintiff.

      Cook and Splane, for defendants.
   The judgment of the court was pronounced by

Preston, J.

On the 12th of April, 1844, Alexander Lewis sold to David D. Jarvis a tan-yard, in the town of Franklin, with the buildings and improvements, for $682, payable in notes at one, two, three, four and five years after date, bearing eight per cent interest and secured by mortgage. Jarvis left the State without paying any part of the notes ; and in September, 1846, the plaintiff issued an order of seizure and sale against the property, praying that it might be sold on terms corresponding with the installments of the price; which the judge ordered. The clerk issued a writ of seizure and sale, conforming substantially to the prayer of the petition and order of the judge.

The sheriff advertised the property for sale on the 2d of January, 1847, for cash. He was authorized by the plaintiff’s attorney to postpone the sale to the 6th day of February, 1847, and again advertised it for sale on that day. It was on that day appraised by an appraiser appointed for the plaintiff, and one appointed by the sheriff for the defendant, and adjudicated for two-thirds its appraised value to H. C. Dwight, the money paid and the writ returned so far satisfied.

The sale was treated by the plaintiff as a nullity; and lie subsequently obtained another order of seizure and sale, caused the property to be sold, and purchased it himself. He now sues to annul the sheriff’s adjudication under the first order of seizure and sale. The cause of nullity set forth in his petition is, that there was but a pretended order of seizure and sale which was an absolute nullity. So in his brief the plaintiff specifies as the cause of nullity that the order of seizure and sale issued by the clerk, did not follow the terms and conditions of the sale as granted by the judgment.

The petition for .the order of seizure and sale prayed that the property might be sold “for cash, for the sum of $154, with eight per cent interest thereon, from the 12th April, 1844, till paid; $145 20, with like interest, from the 12th April, 1846, and on a credit as follows: for the sum of $130 40, payable the 12th April, 1847 ; $127 60, payable the 12th April, 1848, and $118 80, payable the 12th April, 1849 ; which three notes are to bear eight per cent per annum interest from the time they respectively become due; which was ordered by the judge.

The writ of seizure directed the sale “ to satisfy a demand set up by Alexander Lewis against David D. Jarvis for the sum of $682, payable as follows : $150, payable one year afterdate; $118 80, payable five years after date;-$130 40, payable three years after date; $145 20, payable two years after date, and $127 60, payable four years after date, to secure the payment of which sum of $682 said Jarvis gave his promissory notes, all dated the 12th April, 1844, and payable as above stated, each note bearing eight per cent per annum interest from the time they respectively become due. So that the terms and conditions of the sale in the order and in the writ of seizure and sale are the same.

W e perceive by the sheriff’s return, although it has not been formally brought to our notice by the pleadings nor by the plaintiff’s brief, that the sheriff advertised the property for sale for cash, and it does not appear that he advertised the terms of credit. This error of the sheriff, if it existed, has not been sufficiently proved, to require us to express an opinion with regard to its effect. It may be observed, however, that within about sixty days of the sale a second installment of the price was to fall due, making with the costs a greater amount of cash than the two-thirds of the appraised value of the property at either the first or second sale. The error in the advertisement did not, therefore, cause the plaintiff any material injury. It is to be observed also, that the attorney of the plaintiff, about the day of sale, caused the property to be appraised for sale, although perhaps erroneously advertised, and thus appeared to waive the error. And it was the duty of the plaintiff and his attorney to see that the proceedings were conducted according to the requisitions of law; and as neither the defendant nor purchaser complains, the plaintiff should not be heard. The strict observance of the formalities of law in forced alienations is required rather for the defendant and purchaser of the properly than of the plaintiff. They, for all that appears, are satisfied with the legality qf the sale, and we cannot see sufficient reason for entertaining the complaint of the plaintiff.

The judgment of the district court is therefore affirmed, with costs.


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    Lisima Provost v. Paul Provost.
    The law forbids the transfer of paraphernal property by the wife to pay the debts of the husband, or the debts of the community which he was bound to pay.
    APPEAL from the District Court of St. Mary, Vomhies, J.

      Olivier, for plaintiff,
    made the following points: 1. An obligation without a cause, or with a false or unlawful cause, can have no effect. C. C. 1887. And the cause is illicit when it is forbidden bylaw. C. C. 1889. Consequently, the agreement or transaction bas.ed upon such a cause is void. C. C. 2026. 2. Individuals cannot, by their conventions, derogate from the force of laws, and whatever is done in contravention of a prohibitory law is void. C. C. 11 and 12. 3. The wife, whether separated in property from her husband or not, cannot bind herself for him, nor conjointly with him, for debts contracted by him before or during marriage. C. C. 2912. 4. The wife is not bound if the consideration of the contract be not for her separate advantage, and not something which the husband was bound to furnish her with. 7 N. S. 65. 7 M. R. 465. 2d Ann. 579. 4th Ann. —. And the burthen of proving that the transaction enured to her benefit, is upon the defendant. 4 R. R. 509. 1st Ann. 428. The husband is b.ound to furnish the wife with whatever is required for the necessities of life. Q. C. 122. 5. The transfer by the plaintiff to the defendant of her rights in the succession of her father, to secure the payment of her husband’s debts recited in the act, is null, because it is in effect a contract of suretyship, or assumpsit, by which the plaintiff was made to divest herself of her rights to secure the payment of her husband’s debts; and that this transaction, far from enuring to her benefit, will wrest from hpr every means of support, should the judgment of the inferior court be reversed, is abundantly shown by the evidence in the record. 6. When the law incapacitates persons from malting contracts of a particular kind, its provisions cannot be evaded by giving to those contracts a different form from that forbidden by law, when in substance the contract is that prohibited. 5 N. ¡3.54. 7 N. S. 343. 5 N. S. 431. 4 R. R. 509. 1st Ann. 428.

      Brette and Tucker, for the defendant,
    contended: 1. To the proposition that the wife cannot bind herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage, we yield a ready assent, for it is a positive enactment of the code; but we insist that the contract under consideration does not come within this prohibition. That the contract of the wife, in order to be binding upon her, must inure to her own benefit and advantage, is a proposition that has been too often established by the decisions of this court to admit of a question; and in insisting upon the validity of the contract of the plaintiff in the case at bar, this proposition may be admitted to its fullest extent. For, by a simple inspection of the authentic act itself, it will be found pregnant with evidence that the contract inured to the benefit and advantage of the plaintiff, and that, too, by her own sojemn acknowledgment; to contradict which there is not a particle of evidence in the case, but the evidence of A. Picol, to coroborate it.
    The district judge erred. This will be apparent from a mere inspection of the authentic act. The authorities invoked by the counsel of the plaintiff to support her cause, do not embrace the pase at bar, and are not at all decisive of it; which will clearly appear by looking to the facts on which those authorities rest.
    In none of the cases where the Supreme Court have absolved the wife from her engagements, did the contract in any way inure to her benefit or advantage; but it was either directly or under disguise to pay the debts of the husband. The very facts wanting in them to make the contract binding are manifest in this case.
    But the case of Dickerman, v. Reagan, 2d Ann. 440, embraces this case, and is of controlling authority, on the point under consideration, in favor of the appellant. There, an action was brought to render the wile liable., for articles of merchandise, alleged to have been furnished for the use of herself, family and plantation, during the existance of her marriage. The defence was, that the property of the defendant was all paraphernal; that it was under the administration and control of the husband, between whom and herself there existed a community of acquets and gains, at the time the account was contracted; and that the debt was due by the community, and not by the defendant. The issue of fact was proved as laid. The husband appeared to have no pecuniary means. Some of the witnesses stated that he had the exclusive control of the defendant’s property ; others, that he managed her affairs as her agent. This court says : “ Whatever may have been the character of his authority, the defendant could not, by surrendering to him either the partial or entire administration, exonerate herself from liability for debts incurred for her individual use, or for the purpose of rendering her separate property productive, or in supporting those marriage charges which she is bound by law to bear. It is true, that- debts contracted during the marriage enter into the community of gains, and must be acquitted out of the common fund. C. C. 2372. But this provision applies to the parties ¡done, and regulates their rights between themselves, upon the settlement of the community at its dissolution. It has no application to creditors, and cannot deprive them of their recourse against the wife during the marriage, for debts contracted for her separate advantage, and for which she is individually liable.” See also 2 L. R. 89.
    2. This action, as brought by the plaintiff, is the action condictio indebiti to which the wife was entitled under the senatus consultwm velleianum, to recover back properly sold by her to her husband’s creditors in discharge of his debts. 16th law of the 1st title of Pothier’s Pandects. And being a branch of the general action sine causa, by which all that has been paid or given without real motive may be reclaimed; it is therefore sufficient that there be a cause, real or probable, for paying, to defeat the plaintiff at bar.
    It will not be denied, we trust, that the authentic transfer was a payment of what was due to defendant by "the plaintiff, or her husband, or the community. So true is this, that the transfer has made a transposition of the parties. Heretofore defendant was the creditor, but no sooner was the transfer perfected, than he became the debtor. He obligates himself to restore to plaintiff-any surplus there may be.
    3. Plaintiff' says that the veritable debtor is her husband. Were that true, she is, nevertheless, precluded from recovering here, as payment made for a debtor by any person whatever is good, and extinguishes the obligation. “ Repetitio nulla est ab eo qui suum recepit tametsi ab alio quam a vero debitore solutum est.” Poth. vol. 5. p. 108. C. C. 2126, 2127.
    4. Even admitting that plaintiff’s obligation was merely a natural one, and could not have been enforced by action, yet it has the following effect, viz : that no suit will lie to recover what has been paid or given in compliance with such natural obligation. C. C. 1752, 2129, 1840, 2280.
    If our laws do not permit the enforcement of natural obligations by action, it is because of the uncertainty of their being legitimate. Payment shows that the suspicion of the law was not founded. The plaintiff’s obligation to pay for what she bought at the defendant’s store to support herself and family, is a natural obligation of the strongest kind, founded on equity. “Neminem aequum est cum alterius detrimento locupletari.” Plaintiff’s husband was a poor man, without trade, profession or shelter. She got bread and clothes from defendant, who supported her and family for a long time. Can it be said that her’s is not a natural obligation ? C. C. 243. To bring the action condictio indebiti with success, the thing sought to be recovered should not have been given in consequence of any natural obligation. Poth. vol. 5, p. 108, 109.
    The plaintiff obtained credit with Provost, the defendant, by her repeated promises to pay him with the share of her father’s estate, as the two transfers will show. The language of Judge Bullard in the case of Ailing v. Eagan, 11 R. R. 246, is applicable here. He says: “ It is hardly necessary to say, although it does not appear to be universally known, that married women are as much bound to be honest as their husbands, and that it is equally incumbent on them to come into court with clean hands.”
    This Supreme Court has held that the law will secure, honestly and fairly, the rights of the wife without convex-ting it into a weapon to strike down the rights of her ereditox-s. “ Deceptientibus mulierebus senatus consultum auxilio non est.” Ulp. book 29.

      5. Art. 2412 of the Civil Code was intended for the protection of the wife •, but if it be held to prohibit her from binding herself under circumstances like these, the humane intenlion of the law is defeated, and this provision is converted into an instrument of oppression to her, by withholding from her that credit which is so often, as in this case, indisponsible for her own comfort and that of her family. Such a construction cannot be correct.
    A judgment so subversive of the principles of law and moral honesty cannot, We are confident, receive the sanction of the Supreme Court, but will be reversed. But should this tribunal be of a different opinion, then the defendant will at least be entitled to have the case remanded, with permission to the plaintiff to show what part of the consideration for the transfer was received by her husband and did not inure to her benefit. The onus probandi- devolves on her, and she must establish her case by proof, or the authentic act will be held binding on her to its full exteut. Hughs v. Harrison, 7 N. S. 251.
   The judgment of the court was pronounced by

Slidell, J.

This is an action by a married woman to annul an authentic act executed in March, 1849, whereby she transferred to the defendant her interest in the estate of her deceased father. The consideration stated in the act is : 1. That the defendant had at different times advanced to the plaintiff a quantity of goods and articles of divers kinds, which she acknowledges, in the act, she had employed for her personal use and the support of her family. 2. That the defendant had, on the 31st March, 1848, paid to Jl. Laban a promissory note made by her husband in 1847, being for the first installment of the price her husband had bound himself to pay for a negress slave and her child, which the plaintiff acknowledged she had in her possession, and which she needed for the use of herself and family. And lastly, that the defendant, in July 1847, received another promissory note of her husband, being for value received in inerchandise, which the plaintiff acknowledged to have used for herself and family. The act obligated the defendant to surrender to the plaintiff any surplus there might be after applying the money which might be realized from the interest assigned to the payment of the enumerated debts.

Mrs. Provost does not appear to be separated in property from her husband. All the debts were, in their origin, debts of the community. The credit was given expressly to the husband in the case of the two last items, and there is nothing but the wife’s acknowledgment in the act to show that the goods mentioned in the first item were furnished to her. The act itself does not purport to declare that they were given upon her separate credit. Under the evidence, there is no doubt that the assignment was an attempt to apply the separate property of the wife to the payment of debts of the husband, which the law forbids. C. C. 2412. See also Patterson v. Thayer, and the cases there cited.

The judgment of the district court is therefore affirmed, with costs.


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    D. C. Sittig v. James Morgan.
    Where a sheriff has made a seizure on two executions, and there was a prior judicial mortgage to which he applied a portion of the proceeds, the property seized not having sold for enough to satisfy the writs, the only interest the judgment debtor has is to see that the proceeds of the sale be applied to the executions. He cannot sue for the money.
    The principle that there can be no sale on aji.fa. unless the price bid exceeds the amount of prior mortgages, does not apply to judicial mortgages.

      APPEAL from the District Court of St. Landiy, Overton, J. This was an action brought against the sheriff for the misappropriation of the proceeds of the sale of the plaintiff’s property made on two executions. The property did not sell for enough to pay the two executions. The sheriff applied a portion of the proceeds to the payment of a prior judicial mortgage.

      Linton and Martel, for plaintiff. Swayze, for defendant.
   The judgment of the court was pronounced by

Rost, J.

We concur with the district judge in this case, that the plaintiff has no claim against the defendant. If it be true that the defendant had no right to apply the proceeds of the judicial sale of the two slaves seized to the oldest judicial mortgage existing upon them, and there were no privileges or conventional mortgages, those proceeds should have gone to the seizing creditors; and as they were not sufficient to satisfy the judgments under which the sale took place, the only right which the plaintiff can have is to see that they be thus appropriated; he cannot recover them himself unless he shows that those judgments have been satisfied. He alleges that the judicial sale was null because the price of adjudication was less than the amount of mortgages affecting the properly. We are of opinion that the rule does not apply to judicial mortgages; but if it did, the plaintiff has not made the purchasers parties to the suit, and has besides validated the sale by claiming the proceeds.

The judgment is affirmed, with costs.


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    George W. Smith v. William J. Nash.
    Where the plaintiff had alleged a contract for making three hundred thousand bricks, and on the trial offered in evidence a contract for the making of two hundred thousand, and as the defendant was not taken by surprise and could suffer no injury from the admission of the contract in evidence, it was improperly rejected by the lower court.
    Where the opposite party is not taken by surprise, a correction in the pleadings of the date of a note annexed, or in the name of a party, or the errors of an attorney, may be corrected on the trial.
    APPEAL from the District Court of St. Mary. Voorhies, J.

      Cook and Sjplane, for plaintiff.

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

Preston, J.

The plaintiff brought suit on a written contract between the parties, dated the 21st of April, 1848, to make and burn, as he states, 300,000 bricks. He alleges that the defendant violated the conditions of the contract, and after he had progressed towards its completion, and was willing to complete it, the defendant discharged him without any cause whatever. He prays for damages, and that the defendant may be condemned to pay him according to the contract.

The contract was admitted in the answer, and the defendant plead that the plaintiff had failed to comply with his part of the contract within the time specified in it, and averred that he had faithfully complied with his covenants, and that it was through plaintiff’s fault that the contract had not been consummated; by which he had suffered damages to the amount of $1000, for which he sued in reconvention.

The plaintiff, through error, stated in his petition, that he was to make and burn 300,000 instead of 200,000 bricks. When the contract was offered in evidence, it was objected to by the defendant, and rejected by the court, on- the ground that the quantity of brick specified in the contract differed from that stated in the petition.

The existence and execution of the contract was not disputed; and the quantity of brick specified in it was less than the quantity upon which the plaintiff, through error, had claimed damages in his petition. The greater the quantity, the greater the damages to which the plaintiff was entitled if his allegations were true. The defendant could therefore have suffered no injury by correcting the error in the petition, or admitting the contract in evidence.

The defendant was not taken by surprise by offering the contract in evidence, as it was manifestly referred to in the petition, as he had a duplicate and no suggestion was made that there was another contract between the parties. In the case of Tio v. Gordon, the notes sued upon were executed in 1838, but described as dated in 1837. They were annexed to the petition, and the defendant was not taken by surprise. Therefore, the court admitted the amendment of the petition on the trial, and the Supreme Court approved it. 14 L. R. 419. So as to the correcting of a name in the pleadings. Lallande v. Terrell, 12 L. R. 9. A similar amendment in the case of Tucker v. Liles, was made on the trial, and properly, as decided by the Supreme Court. 4 L. R. 298. The case of Chalmer v. Stowe, to the contrary, depended upon a special rule of court. 3 N. S. 309.

At all events, the court should have granted a new trial, and, in furtherance of justice, have allowed the correction of an immaterial error, which may be done at any time if the opposing party suffers no injury thereby. 1 M. R. 182, 183. Astor v. Morgan, 1 N. S. 583. 1 L. R. 433, 434.

The amendment did not change the nature of the action or issue, and therefore should have been admitted. Code of Practice, 419. 8 N. S. 438. The amendment required no answer, because issue was joined on everything material in the suit. 3 M. R. 398, 404. The only questions at issue were, which of the parties had failed to comply with the stipulations and conditions in the contract, and what damages had thereby been occasioned to the other. These being the only questions presented by the pleadings, and a contract being admitted, it should have been received in evidence, to show what were the conditions and stipulations of each party; also to show, that even if the defendant had violated its conditions, the plaintiff had not suffered the extent of damages which his attorney by error had claimed. The errors of an attorney may be always corrected, if the correction be not injurious to his adversary. The Ursuline Nuns v. Depassau, 7 N. S. 647. A cause may be remanded to correct the oversight of an attorney, if justice requires it. 10 L. R. 409.

It is therefore adjudged and decreed, , that the judgment of the district court be reversed, and that this case be remanded, with instructions to the judge to permit the plaintiff’s attorney to correct his petition, and to admit the contract between the parties in evidence on the trial of the cause; and that the appellee pay the costs of this appeal.