text:
    T. & C. Fitzgerald v. Pierre Boulat.
    Where vindictive damages are allowed in the court below if they are extravagant they will be l'ecluced in the Supreme Court to such an amount as is considered by them, sufficient under all the circumstances of the case»
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.
    K F. Cotton, for plaintiff

      Collens & Wooldridge, for defendant, both parties appellants.
   Cole, J.

This action is instituted by the plaintiffs against the defendant for five thousand dollars for damages, predicated upon the allegations in the petition:

1. That of slander and defamation of character of Catherine Fitzgerald.

3. That of assault and battery upon her person.

8. That of forcible entry into plaintiffs’ dwelling house, illegally ejecting petitioners therefrom, and removing their property out of and away from the premises.

4. For malicious and illegal arrest and false imprisonment of Catherine Fitzgerald.

The evidence shows plaintiffs had possession as lessees, of the house of defendant, and on demanding and not receiving four dollars for the monthly rent, he proceeded to eject Mrs. Fitzgerald from the house and threw some of her furniture out of doors.

He also made an affidavit against Mrs. Fitzgerald for a breach of the peace; she was arrested and committed to jail, where she remained some three days, and at her trial she was discharged by Recorder Fabre, because, as he stated in evidence in this case, Boulat informed him that his only object in obtaining the arrest of Mrs. Fitzgerald was to got her out of his house.

The testimony of plaintiffs’ witnesses as to the slander and defamation of character of Catherine Fitzgerald and as to the assault and battery upon her person is positive, but is contradicted somewhat by the witnesses of defendant.

The affidavit of defendant may have been made with the object stated to Mr. Fabre and yet it might have been true she had violated the peace as therein stated, and the witnesses of defendant sustain this view of the case.

This cause was tried before the District Judge, who awarded twenty-five hundred dollars damages.

It would appear from the testimony, that the diffiiulty between the parties was at one time settled, for plaintiffs were afterwards admitted into the house, and remained therein more than three months after the commission of the illegal acts complained of by them.

It appears to us, that twenty-five hundred dollars, the damages awarded in this case, are excessive, and the record shows they have been paid, for the suspensive appeal taken by defendant was ordered by the court, on trial of the iule to set it aside, to be considered as a devolutive appeal.

The damages'allowed would pay the rent of the house over fifty-two years ; plaintiffs, however, ask in their petition for five thousand dollars, which would more than pay the rent of the house for one hundred and four years.

This court cannot recognize any such extravagant claims for vindictive damages, and will not be guided by the Quixotic estimation of damages by plaintiffs who may seek to take advantage of a sudden ebullition of passion, where no great injury is inflicted, in order to enrich themselves at the expense Of the offending party.

The sole charge that appears satisfactorily established Is the entry into plaintiffs’ dwelling house, removing some articles of furniture, nailing up the doors and thus excluding plaintiffs from the house, who were, however, after-wards permitted to again take possession of the house. It appears also, that Mrs. Fitzgerald, one of the plaintiffs, abused defendant and provoked him to act as he did.

We think that two hundred and fifty dollars (§250 00) are sufficient damages to allow plaintiffs, when all the circumstances of this case are considered.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court he avoided and reversed, and that plaintiffs recover of defendant two hundred and fifty dollars (§250 00) and costs of the lower souift, and that the costs of appeal he paid by plaintiffs.


source: Caselaw Access Project

author: Merrick, C. J. Buchanan, J.,

license: Public Domain

text:
    Groves et al. v. C. R. Nutt and Wife.
    it is the duty oi’ the courts of each State in the Union to give effect to eíÍÍ acts, aceite, wills arte; obligations lawfully executed in any other State of the Union Víhen brought in contestation, as-far as can be done without the manifest infringement of the settled policy of the1 State where the contestation arisesi
    A daughter under the Will Of her father, valid by the laws of the State where it ■if'as’ executed/ oh receiving a legacy of money and bank stock executed an obligation to carry out the provisions of the Will, by leaving at her death, if she died withodtissue, the mosey and bunk stock Which she had received to the sbrvivihg Children of the testator. Held : that such an obligation being a valid one by the laws of the State where it was executed, would be enforced by our courts.
    The acceptance of a legacy burdened With a modus Or lawful charge under a Will/ iff itself a contract on the part of the person accepting* obliging him impliedly, at least, to comely with the conditions imposed by the will,
    APPEAL from the Fourth District Court of New Orleans* Reynolds^ J.

      A. T. Steel and It. Ghilton, for plaintiffs.

      G. Hoselius and Mott & M'azer. for defendants and appellants.

      Argument of Counsel for plaintiff:
    In his will, Benjamin Blalte uses these words : “ I give to my daughters, Susan, Gatharine and Adeline, thirty-five shares, each, of Virginia Bank stock, to be held in trust by my trustees hereinafter named, until each of my said daughters arrives to the age of twenty-one years, or marries ; and in the event of either of my said daughters dying without leaving child or children living at the time of their death, the said bank stock, so given to them, is to return back and be considered as my estate, and be divided equally among my other children.”
    He then directs, after the payment of certain special legacies, that all the funds arising from the sale of all his property, real and personal, should be divided equally among his six children — Frances, Susan, Gathamine, Adeline, Benjamin and Jume Louisa — the portion given to the last five named to be held, in trust, &c., “ on the same conditions and limitations as is directed and made with respect to the other devises to them in this my will.”
    Plaintiffs then offered as evidence, an indemnifying and refunding bónd made by Susan E. Blalte, through Gonwwy B. Nutt, her agent, specially empowered thereto, in favor of Dr. Austin Broekenbrough, Executor, &e., recognizing her obligation to comply with the limitations of her father’s will and to return the money and stock received by her from the executor, upon the happening of the contingency provided for.
    Now by the terms of the will of Benjamin Blalte, Susan E. Blalte did not receive the sum of $10,540 85, in full property, but only on condition that if she died childless, it was to be returned to his estate, for distribution among the other legatees ; or she received a title to that legacy, analagous to our usufruct ; she had the use of this money during her life, and at her death it went to her children, if she loft children, if not, it went to the other legatees, under the will of her father.
    This will was made in Virginia, was probated in Virginia, and all the property to be affected by its provisions was in Virginia at the time of Benjamin Blake's death, and the will was actually carried into effect and executed in Virginia. There she received the money and bank stock left her in the will, and there she obtained payment of the money and delivery of the stock, by admitting in an indemnifying and refunding bond, that she was bound to restore it, &c.
    If Susan E. Blake received the money and stock only bjf recognizing the-validity of that will, actually as well as tacitly, and the force of that obligation, and did thus recognize them, and such obligation and recognition was binding there, then the money did not become her property by its receipt; it remained her father’s money, to be returned in case she died childless, she could not change her title to that money and stock, or her obligation to return it to her father’s estate by an act of hers — that is, by removal to Louisiana.
    It does not matter whether this will would have been valid if it had been, made in Louisana: It was not made here; nor was it ever intended to be enforced here. The whole proceedings had with reference to it were in Virginia, and under her laws; there Susan E Blake's title was created, and her obligations were incurred and assumed, and, according to the laws of Virginia alone, must the validity of that will and the force of those obligations be examined.
    If, in accordance with the provisions of those laws, Susan E, Blake assumed, an obligation, or acquired a title of a limited nature, she cannot, by a removal to Louisiana, change the nature of her right and title and make it absolute, or destroy her obligations already incurred.
    In the case of Ilmjden v. Nutt, 4 An. R. G9, (6G to 73,) the Supreme Court examined with groat care the same questions now presented, and upon the-same identical showing of facts; that is, the questions in regard to Susan E. Blake's right to the money derived from her father’s estate; the controversy there was between a creditor of Gonwmj B. Nutt and Mrs. Nutt; her defence was conducted by lawyers, all of whom were familiar with both the common and civil law, and the payment of an immense sum of money (to wit, the whole of Dr. Nutt's liabilities,) depended upon its decision. It was argued ably and elaborately by the defendants, and after a long and patient investigation, the court decided in favor of the plaintiff I refer your Honors to the opinion delivered by Judge Slidell, which I consider to be conclusive in our favor, as to this matter. You will perceive that he reviews the case of Harper v. Stanbrough, which is referred to by the defendants as authority.
    The will of Benjamin Blaise was valid at common law — which is the law of Virginia — as an executory devise, by which Susan Blaise took a fee simple interest in the propei'ty bequeathed, determinable upon her dying unmarried or without issue, upon which event the whole fee was limited over by way of reversion to her surviving brothers and sisters.
    It is true, that as a contingent remainder, a fee cannot be limited over after a fee. 1 Lomax, 409, 417, eh. 1, sec. 1. The reason is, that a remainder requires a, particular estate, carved out of the fee, to support it, and both constitute a whole, being only divided parts of the same inheritance. Therefore, if the whole fee or inheritance is first limited, there can be no remainder. Ibid.
    It is unnecessary to examine into all the subtle distinctions growing out of the doctrine, of remainders, as such doctrine is inapplicable to this case ; and we will proceed to show that, as an “ executory devise,” the will of Benjamin Blaise is valid.
    An “ executory devise” is a limitation, by will, of a future estate in land, which cannot, consistently with the rules of law, take effect as a remainder-. 3 Lomax, 279, ch. 16, sec. 1. And although the common law allowed no remainder to be limited over afterr an estate in fee simple, nor a freehold to be commenced in futuro, yet, indulgence to testators induced judges to dispense with this rule in case of wills. Ibid., 279, sec. 2. ’
    There are three kinds of executory devise: 1st, Where the testator gives the whole fee, but qualifies the dispositions by some future contingency, on the happening of which, the estates shall go over to some other person. 3 Lomax, 280, secs. 3 and 4. Of the first kind is a fee limited after a previous fee has been limited. As where a man devised lands to his second son and his heirs forever; and if his second son died without issue, living his third son; then to such third son and his heirs forever — it was decided that devise was good as an executory devise, though not as remainder. Ibid. So, if he gave to his son B one estate, and to his son 0 another, with a proviso that, if either died before marriage, or before twenty-one years, and without issue of their bodies, then, the share of the one so deceased should go to his surviving brother — it was held good as an executory devise. Ibid, p. 281.
    So, where the devise was to several, with directions that the estate should go to survivors, on the death of one without issue, then living, it was held good as an executory devise. Ibid.
    In consequence of another rule of law, that an executory devise could not be barred or prevented as a remainder often might, by fine and recovery, (8 Lomax, 283, sec. 9,) it became necessary to prescribe certain bounds to this class of devises. It was therefore limited to the period of a life in being. Ibid, 284, And the cases cited in that and following pages, to 288. See also, ibid, sec. 22, p. 295.
    The will of Benjamin Blaise belongs strictly to this class of executory devises, and is valid under all the rules cited by Mr. Lomax, whose Digest relates to the law of Virginia, where Blaise's will was made. See also 2 Grat., 506, 1 ib. 302 ; 2 Leigh, 119, 6 Munford, 453. See also Digest of Virginia .Statutes, p.
    The third class of executory devises embraces chatties, that is, a term of years, or any personal estate. 3 Lomax, 293, 297. Blaekstone concurring in all these positions.
    I do not think a doubt can exist, that we are entitled to have and to recover from Mrs. Nutt four-fifths of the $10,546 85 received by Susan H. Blaise, from her father’s estate or the sum of $8,437 50, and such interest as the law allows.

      Mrs. Nutt received the whole of this $10,546 58, as she herself says, on the 16th day of December, 1839. Equitably, at least, she owes interest from that time on four-fifths of it, and, I think legally also, as I now proceed to show.
    The obligation to pay this money arose in virtue of the provisions of the will of Benjamin Blaise, and of obligations incurred or assumed by Susan E. Blaise, in receiving the legacy left to her in that will, all of which receive their force and effect from the laws of the State of Virginia — those laws are in evidence— by those laws interest is due from the time an obligation is demanded; we had no right to demand this money until the death of Susan E. Blaise, and it was demandable upon her death, and her succession owed interest upon it from the time it was due. We had the right to demand the amount from Mrs. Nutt only, at the time she received it, or, on the 16th day of December, 1839.
    If the document presented by the defendants, as the will of Susan E. Blaise is really of binding force and effect, then, as universal legatee of Susan E. Blaise, Mrs. Nutt would be bound by the obligations of Susan E. Blaise or of' her succession, and would owe interest from the time of her death. Or' if, as we say, that document is not the will of Susan E. Blaise, then, the money at. the time of its receipt was bearing interest at the rate of six per cent, per annum ; and, therefore, by its receipt, Mrs. Nutt incurred the obligation to pay-interest also. C. C. 1933, 2531.
    Now we contend, that Susan E. Blaise made no will. If, however, the-Court is of opinion that Susan E. Blaise did make a will, and that Mrs. Nutt is the universal legatee under that will, then she owes interest at the rate of.' six per cent, per annum on $8,437 50, from the last day of May, 1839, til] paid. If not, then Mrs. Nutt owes interest on the same sum, from the 16th day of.' December, 1839, till paid, at the rate of five per cent, per annum.
    The reasons enumerated above, apply only to the money claimed on account, of the provisions and limitations of Beryjamin Blaise's will, there is, however,, still another reason why interest should be paid by Mrs. Nutt on that money,, and also on the $8,000 from the day it was received by her, that is, from the. 16th of December, 1839, on which day, she says she received it.
    The Code, in treating of quasi contracts, says, O. O. 2279, “ He who receives what is not due to him, whether he receives it through error or knowingly, obliges himself to restore it to him from whom he has unduly received1 it.” C. O. 2289, “If there be any want of good faith on the part of him who. has received, he is bound to restore, not only the capital, but also the interest, on the proceeds, from the day of the payment.”
    Now, the mere taking of the money in her own name, when she knew that it belonged to others, was in bad faith. But there was a peculiar want of good: faith in the receipt of the $8,437 50, (plaintiff’s share of the money which had! been received by Susan E. Blaise, from her father’s estate.) Mrs. Nutt know the source from which it came, and the conditions and limitations attached to-its receipt She herself had received at the same time, the same sum under-the same will, under the same description and limitations, and even by the-same clauses in the will, and was one of those who would be benefited by the; failure of any particular legacy, and she could not have been ignorant of the; limitations of Susan E. Blaise's rights.
    And again, as the pretended universal legatee of Susan E. Blaise, she sentf. the paper, which she claimed to be. her last will and testament, from the Parish of Madison, where she and Susan E. Blaise had lived, and where Susan died, to Carroll Parish, for record and execution; and there, without notice-to any one, without a representative for the absent heirs and in a manner by: no means publie, she obtained an order for its execution, and she did not present it in Madison parish, where alone the court had jurisdiction; where Mrs.. Groves, one of the heirs, must have been notified; and where opposition to the-execution of the said document would certainly have been made. The proceedings in Carroll parish were had, to give a color of authority to the assumptions of defendant, and can have no effect whatever in her favor. The-case is not different from what it would have been, had she laid violent handfe on the money and kept it. She, however, acted fraudulently, and not forcibly. The act of 1839 ; Session Acts, 166, sec. 15, repeals Art. 554, of C. P., and allows interest on unliquidated claims.
    Those articles of the Code which allow interest only from judicial demand, apply only to contracts, and not to obligations of this character, or quasi eontraets.

    We are clearly entitled to interest at 5 per cent, from 16th December, 1839, on whatever sum we may recover, even if we are not entitled to 6 per cent, interest from 16th May, 1839.
   Merrick, C. J.

We think the judgment of the the lower court ought to be affirmed. It is the duty of the courts of each State in this Union to give effect to all acts, deeds, "wills and obligations, lawfully executed in every other State, when brought in contestation, as far as can be done without the manifest infringment of the settled policy of the State where the contestation arises. It is not pretended that the will of BenjaminJBlalce was not legal by the laws of Virginia, where it was executed and the'testator had his domicil, and that it did not operate upon his bank-stock and real and personal effects, which were sold in order to make a distribution 'under his will. Neither can it be denied that the obligation (the bond), which Susan E. Blalce executed for the return of the money at her death, was not valid by the laws of Virginia, nor will it be pretended that it would not be enforced in any other State of this Union, except the State of Louisiana.

The proposition that the courts of Louisiana cannot extend the usual comity of nations to enforce it, on account of the stringent provisions of her laws, involves a degree of singularity, that it behooves us to examine the grounds upon which it rests.

The supposed obnoxious clauses of Benjamin Blalce's will are in these words, viz:

“ I give to my daughters Susan, Catlmñne and Adeline,- thirty-five shares each of Virginia bank-stock, to be held in trust by my trustees hereinafter named, until each of my said daughters arrives at the age of twenty-one years or marries; and in the event of either of my said daughters dying without leaving chiljl or children living at the time of their death, the said bank-stock so given to them is to return back and be considered as my estate, and be divided equally among my other children.”

After the payment of certain particular legacies, the testator directs the sale of all his property, real and personal, to be divided equally among his six children, Frances, Susan, Catherine, Adeline, Benjamin and Jane Louisa Blalce, “ on the same conditions and limitations as directed and made with respect to the other devises to them in this my will.”

The will Wás written in April and admitted to probate on the 19th of September, 1831.

On the 19th of April, 1834, on the delivery of the thirty-five shares of bank-stock and five thousand dollars in cash to Susan Blalce, she, by her attorney-in-fact, under a power of attorney specially authorizing it, executed her bond, under seal, in the sum of $10,000, in favor of Austin Broalcenborough, the executor of the will and one of the trustees, to secure him against future debts of the estate and indemnify him on account of the delivery of the stock and payment of the money, in consideration of the legacies under the will. The bond recites the provisions of the will, and particularly that in case of the death of Susan Blake without issue, that the legacies should revert to the surviving children of said Blalce. The stock was transferred on the books of the bank to Susan Blalce, and sold for $3,605.

Austin Broalcenborough is a party to the suit individually and as authoriz. ing his wife, one of the children of Benjamin Blake. The defendant, Sarah Adeline Blake {Mrs. Nutt) forms against him a reconventional demand, and alleges that the whole of Susan Blake's interest in her father’s estate, has not been paid over to her and that said executor has refused to pay respondent her interest in her father’s, Benjamin Blalce, estate.

In considering the question arising under this state of facts, the point of departure is the receipt of the money and bank-stock by the legatee, the conversion of the bank-stock into money, and the obligation assumed by her expressly or tacitly on those occasions. The will being legal, where made with all its dispositions, is withdrawn from our consideration, except so far as to ascertain how much of it the legatee has failed to execute under her contract.

Eor there can be no doubt that the exceptance of a legacy burdened with a modus, or lawful charges under a will, is itself a contract on the part of the person accepting, obliging him, impliedly at least, to comply with the conditions imposed by the will and to acquit the charges upon the legacy which he receives. C. C. 1602, 1606, 1751 No. 4, 1752, 1626, 1696; 3 Sav., sec. 129, p. 233. Then, under the Constitution of the United States, neither the State where this obligation is contracted, nor any other State can, by subsequent legislation, absolve the obligor from such obligation.

That the legacy in this case was accepted with all its burdens is shown by the power of attorney, authorizing the execution of bonds to refund and indemnify, the bond itself, the receipts and the acceptance of the residuary legacy under the will.

Is there anything in this obligation, (by which Susan Blaise assumed to retivrn these moneys at her death to the succession of her father,) which our courts ought to refuse to enforce? Ve think not.

If Susan Blaise had contracted upon any other valid consideration to pay the children of Benjamin Blaise or Austen Broelsenborough, executor, a sum of money, at her decease, in the event she died without issue, it would have been obligatory upon her estate, and would no doubt have been enforced by our courts.

Is it less obligatory because the consideration was a legacy under a valid will of a sister State, although the will might have been considered informal or illegal, if it had been made under our laws ? The rule is, the validity of the contract is to be decided by the law of the place where it was made. If valid there, it is by the general law of nations, jure gentium, held valid every where, by tacit or implied consent. Story’s Conflict, sec. 242, and authorities there cited. Then Susan Blaise made a valid contract by the law of the country where made, to leave at her death, if she died without issue, the money and bank-stock of the Bank of Virginia, which she had received from her father’s estate to his representative. She sold the bank-stock, and thus, by the laws of the country, where she lived (Mississippi), and the country where, the stock was payable and transferrable, she bound herself to account for the price in same manner.

Now, it is said, that our courts cannot enforce this contract, because it is a substitution and fidei-eommissum which are reprobated by our law, and therefore cannot be enforced by our courts.

As it has often been explained by this court, the object of these provisions of the Code is to prevent titles to property from becoming complicated, tied up and encumbered, so that the property cannot at all times be disposed of by the united action of those holding interests in and rights upon the same.

Now, what property is there here which is tied up or encumbered ? The bank-stock ? The domicil of that is Virginia, and having been sold, it is represented by its price, $3,505. But it is said, at her death,. Susan Blaise bound herself to return the money to the estate of her father ? Be it so. She did not promise to preserve it; to keep each identical dollar and return that to her father’s estate. On the contrary, she was to have the use of the money as long as she lived, and she contracted to return as much other coin only in the event she should die without issue. If that is a fidei-corrmissum or a prohibited substitution, then the thing which the depositary receives and promises to preserve and return to the depositor, or the sum of money which my friend receives from me and promises to return in one week or ten years, are fidei-commissa and substitutions. See 5 Toul., No. 24; 3 Marcadé, 460 ; Zacharise, part 2, book 2, sec. 694.

In the matter before us, there is no property tied up, and no estate encumbered so that a good title cannot be made to any immovable, movable or slave, and no promise to preserve the thing. The only encumbrance is a debt, once conditional, now absolute, which can be discharged at any time by payment, release, or any of the modes in which debts are discharged.

But it is said, that the will of Benjamin Blalce was never recorded in Louisiana. It was not necessary. It operated upon property in Virginia and was carried into effect there. There is no more need of its being recorded in Louisiana to enable plaintiffs to recover, than there would have been if plaintiffs were suing to recover slaves given them under the will, and which some person had illegally taken from their possession and removed to Louisiana.

On this branch of the plaintiff’s demand, we see no reason to depart from the conclusions of this court in the case of Hayden v. Nutt, 4 An. 70, although we admit, as contended for by defendant’s counsel, that the judgment in that case has not the force of the thing adjudged between these parties.

On the other branch of this case, wherein the plaintiff’s claim that they are the heirs-at-law of Susan E. Blalce, and that the pretended will under which the defendant holds is a nullity, we are of the opinion that the defence must prevail.

It is objected to the will, that it was admitted to probate in the parish of Carroll, when the domicil of Susan E. Blalce was in the parish of Madison, and, therefore, the Probate Court of the parish of Carroll was without jurisdiction, and the order admitting the will to probate was a nullity. The proof makes it probable that the residence of Dr. Nutt was that oí the testatrix, at the time of her death. It further shows, that the residence of Dr. Nutt was in the parish of Carroll, up to the promulgation of the Act of the Legislature, approved March 14th, 1839, by which that portion of the parish of Carroll, which embraced Dr. Nutt's dwelling, was added to the parish of Madison.

The will was admitted to probate on the 21st day of May, 1839. It was, therefore, the duty of the plaintiff to show that the Act of 14th March, 1839, had been promulgated on the 21st day of May, 1889, in the parish of Carroll. See Acts of 1827, p. 172, and Acts of 1855, p. 341, sec. 2. In the absence of this proof, we are bound to conclude that the Probate Court of the parish of Carroll had not been divested of jurisdiction.

It is not necessary to determine the question whether, if the Act had been promulgated, it would have also been encumbent upon the plaintiff to show that the boundary line had been surveyed or was otherwise well defined and known. In this form of action, plaintiffs cannot raise the question whether the will was admitted to probate upon sufficient proof

The plaintiffs claim interest at the rate of five per cent, on the amount received by Susan E. Blalce from the succession of Benjamin Blalce, from the date of her death, on the ground that Mrs. Nutt received what was not due to her, and that there was a want of good faith on her part, and, therefore she is bound, under Articles 2279 and 2289, to restore the capital and interest from such date.

By Susan M Blalce's will, the defendant was made her universal legatee, Mrs. Suit, therefore, cannot be charged with bad faith in taking possession of the succession of her sister. The claim of the plaintiffs was hat a debt due by the succession, which was required to he presented and liquidated like any other demand, as is evident from what we have already said. There is then no ground upon which to rest a claim for interest on account of bad faith.

The only remaining question to be considered, is the plea of prescription. At the time the action accrued, the prescription applicable to all the plaintiffs except Mrs. Orones, (they being absentees) was twenty years. By the Act of of 14th March, 1848, the prescription was reduced to ten years. This Act was promulgated on the 4th day of April, and was in force in the parish of Carroll on the fourth, or, at the farthest, on the fifth day of May of that year. Consequently, according to the rules of computation established by this court, five years, six months and seven days were needed, in 'order to accomplish the period of prescription, from the 4th of May, 1848. The suit was commenced on the 17th day of June, 1853, just five years, one month and thirteen days from the promulgation of the statute, consequently prescription had not run as to such of the defendants as were non-residents of the State of Louisiana.

As to Mrs. Orones, who resided in Louisiana, prescription did not run. She could not have been, under any circumstances, more than a few months over twenty-one years of age at the date of the institution of this suit. The ten years’ prescription did not run against her during her minority. C, C. 3487, 3508, 3506, 3507.

Judgment affirmed,

Buchanan, J.,

dissenting, Upon the allegations of the petition it is seen, that the case of plaintiffs divides itself into two branches — first, a claim under Benjamin Bla7ce’s will to that portion of his estate devised to Susan; and, second, a claim to the estate of Susan Blake, as intestate.

Upon the first of these claims a serious doubt has arisen in my mind, whether the plaintiff, Mrs. Orones, who was not in esse at the time of Benjamin Blake's death, and who is not a child but a grandchild of Benjamin Blake, can be considered as entitled to any portion of the estate under his will. Mrs. Grove's mother was Catherine Blake, who was a daughter of Benjamin Blake, and was a minor and unmarried at the time of his death. Several years after that event (in 1832 or 1833) Catherine was married to Mr. Dawson, of which marriage she had issue the plaintiff, Mrs Groves, and died in 1885, four years before her sister Susan. If we are to consult alone Benjamin Blake’s intention' in regard to the limitation of his bequest to his daughter Susan we find his expressions to be that the property devised “is to return back and be considered as my estate, and he divided equally among my other childrens

That the objects of the testator’s contingent liberality, were literally children, as expressed, and not children of children, may be gathered from another portion of his will, wherein it appears that the testator had then living a grandchild, the child of a daughter deceased, to whom he bequeaths a legacy, and in relation to whom he says “I do not intend that my said grandson shall ever receive anything more from my estate as heir of either of my children.”

Or if we look beyond the will, into a standard authority for the law of Virginia on this subject, it seems that an executory devise must be limited to the period of a life in being at the death of the testator, Lomax’s Digest, pages 280 to 295. Thereupon the limitation to Benjamin Blake's other children contained in his will, cannot, in my judgment, be construed to extend to issue of those children not in being when the will was made, and my opinion is, that Mrs. Groves can take nothing under the executory devise in question.

As to the other three plaintiffs, the son and two daughters surviving of Benjamin Blake, senior, my opinion is, that they should have sued upon the refunding bond of Susan Blake ; and not, as they have done, upon the will of their father. The clause of that will upon which they base their claim, contains a substitution which would avoid a Louisiana will, and which this court has refused to give effect to by its decree, when contained in a foreign will. In Harper v. Stansborough, 2d An., 877, it was held unanimously by the court, after full argument, that a will made in another State, by a resident of that State, whereby the testator directed that if either of his two sons, to whom he bequeathed his property, “ should die without a lawful heir, his part, real and personal, should go to the survivor,” created a substitution prohibited by our laws, and could not he enforced in Louisiana, although it might confer a title upon the survivor by the laws of the State where the testator died. The court observed, through its organ, Chief Justice Eustis, — “ Nor does it appear material in relation to the nullity of the substitution as the basis of a title, whether the testamentary disposition acts upon the property within this State at the time of its taking effect, or subsequently, on the translation of the property to this State. It is the operation of the testamentary disposition on property within this State, which the law reprobates,” &c. On the other hand it has been assumed, that the validity of the very testamentary disposition now under consideration has been passed upon, and decided affirmatively, by the same bench which decided the case of Harper v. Stansborough. I think this is a mistake.

The case cited, Hayden v. Nutt, 4 An., 65, was a contest between a creditor of one of the present defendants, and that defendant’s wife and co-defendant herein, relative to the amount of Mrs. Butt's rights for paraphernal property received by her husband. Among the items composing her claim, for which she had obtained judgment in an action against her husband, was her inheritance from her sister Susan Blake. That portion of her claim was held by this court not to be proved with sufficient certainty, and the decree reserved Mrs. Butt's rights as legatee of Susan Blake to be prosecuted by way of third opposition or otherwise. So, that, in fact there was no decision upon the effect of Benjamin Blake's will at all. It is true the court, cw'guendo, supposed the case that the representative of Benjamin Blake's succession, and Adeline Blake, as legatee of Susan, were before it, claiming from Susan Blake's administrator a distribution of her estate. “Adeline Blake" — says Judge Slidell — “would demand the whole estate under the will, and Broekenborough, as the executor and trustee of the children of his testator, would demand the restoration of the amount which had been paid to Susan Blake. It seems to us, that in such a contest Broekenborough would prevail. To the tacit obligation of Susan Blake to respect the condition attached to the bequest, was superadded a new and express contract, at the time of receiving the legacy, that the amount should be restored, if she died without issue. There is no reason to believe that this conditional contract for the payment of a sum of money at a future time was invalid under the laws of Virginia and Mississippi; and it would be straining the policy of our own laws to an unreasonable extent to refuse to enforce it here in a contest between the legatee of Susan Blake and the executor of her father’s will.”

This portion of the opinion delivered in Hayden v. Nutt is already obitur diatu/m. But giving it all the effect of authority, what does it amount to ? Nothing more than that an action could be maintained in Louisiana upon the refunding bond given by Susan Blalce to her father’s executor when he paid over to her her share in her father’s estate under his will; a personal action upon her contract, not an action upon her father’s will. It suffices to say, that the action now before us; is not an action upon the bond in question.

I concur in the affirmance of the judgment of the District Court maintaining the will of Susan Blalce; hut think that it should be reversed in what concerns the claim of plaintiffs under the will of Benjamin Blalce, senior; with a reservation of plaintiff’s right of action upon the refunding bond given by Susan Blalce to her father’s executor.


author: Yooriiies, J.

text:
    Arthur M. Foley v. Louis Bush, Administrator, et al.
    The plaintiff sued to recover the value of wood cut on his land by the defendants. Held: That the action was prescribed as to damages resulting from a trespass which had been committed more than one year previous to the institution of the suit.
    from the District Court of the parish of Lafourche, Roman, J.

      O. Belcher, for plaintiff.

      Beatty & Bush, for defendants and appellants.
   Yooriiies, J.

The plaintiff sues to recover the sum of $1,500, as the value of 1,550 cords of wood, more or less, alleged to have been cut on his land by the defendants, Allen & Robinson, in the summer and fall of 1854 and 1855, for the use of their sugar plantation.

The prescription of one year is interposed as a bar to the action.

The testimony of one of the witnesses proves that there were only 50 or 100 cords of the wood cut, but not hauled away, near the end of the year 1855. “The wood cut in 1855, says the witness, was partly standing and partly cut down before.” It is impossible from the evidence, to arrive at a satisfactory conclusion, as to whether the plaintiff sustained any damages or not resulting from this trespass on his land, for the commission of which the defendants appear to be exonerated from any imputation of bad faith. Indeed, the evidence as to the damages in this respect is so uncertain, that we arc not prepared to say that the Judge a quo erred in excluding them from his assessment. But we think he erred in allowing to the plaintiff damages, resulting from the trespass, which had been committed more than one year previous to the institution of the present suit, as the action was clearly barred by the prescription interposed. The Articles 523 and 524 of the Civil Code, on which the plaintiff’s counsel relies to defeat the exception, are, in our opinion inapplicable to an action for damages, resulting from trespass. See Statutes of 1855, page 133, sec. 33 ; C. C. 3,501.

It is, therefore, ordered and decreed, that the judgment of the court below bo avoided and reversed; that there be judgment in favor of the defendants, rejecting the plaintiff’s demand at his costs in both courts.


author: Spofford, J.

text:
    Elizabeth Thomas v. Tailleu, her husband.
    The rule that ia actions of separation from bed and board both parties should be dismissed when guilty of mutual wrongs has its qualification, that the wrongs shouid be similar in nature and so proportioned in extent as to render it difficult to ascertain which party is mainly in fault.
    APPEAL from the District Court of the parish of Lafourche, Soman, J.

      Beatty & Bush, for plaintiff.

      S. JD. Jordan, for defendant and appellant.
   Spofford, J.

The plaintiff had judgment against her husband for a separation from bed and board, and alimony for herself and children — the husband has appealed.

The decree is abundantly supported by evidence not open to legal objections.

It is shown that the husband is habitually intemperate, which alone would entitle the wife to a judgment of separation. Acts 1855, p. 8*76, sec. 1.

It is also shown that he was guilty of excesses, outrages and cruel treatment towards her, of a kind to render life with him insupportable.

The appellant filed a reconventional demand, claiming a separation himself, for certain faults which were rather vaguely charged against his wife.

His counsel, in this court, has attempted to bring the case under the rule, that both parties should be dismissed when guilty of mutual wrongs.

That rule has its qualifications. The wrongs should be similar in nature, and so proportional in extent as to render it difficult to ascertain which party is mainly in fault.

No intemperance is charged upon the wife. The habitual drunkenness of the husband is not traceable to any conduct on the part of the wife as its exciting cause.

The excesses, outrages and cruel treatment of the husband towards his wife are enormous, as compared with the faults of which she is shown to have been guilty, and were themselves the exciting cause of those faults, not their result.

She retorted upon him one or two of his abusive epithets, when stung by his outrageous treatment, and when driven from his house, took a small pittance of money which is -presumed to have belonged to the community, to keep herself and children from starvation.

It is needless to recapitulate his grave offences, compared with which these sins laid to her charge are but venial faults.

The alimony allowed is moderate under the proof.

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


author: Merrick, C. J.

text:
    Harry Cage v. C. P. Danks.
    Where the United States has parted with its title by a patent legally issued, and upon surveys legally made by itself and approved by the proper department, the title so granted cannot be impaired by any subsequent survey which the Grovernment may make for its own purposes.
    APPEAL from the District Court of the Parish of Terrebonne, Homan, J.

      Goode & Ayeoclc, for plaintiff.

      OonneThj & Bightor, for defendant and appellant.
   Merrick, C. J.

This is an action of bornage. The defendant only has exhibited her titles. The decree of the court awards to the plaintiff a portion of the land lately in her possession and which she has just recovered by a decree of this court in the possessory action.

The District Judge correctly assumed that the original survey referred to in the patent to defendant’s vendors could not be set aside, and disregarded by any recent survey which the Government might make for its own purposes. The United States having parted with its title by a patent legally issued, and upon surveys legally made by itself and approved by the proper department can never impair the title so granted by any subsequent survey. She is no longer owner.

But in the application of this principle to the present case the conclusions of the District Judge are not entirely satisfactory. The plaintiff has not exhibited his title, and the trial of the case appears to have been conducted principally upon a criticism of the lines examined in order to find the calls of defendant’s title. If plaintiff should produce his, and the calls of that were examined, it is probable much light might be thrown on the true boundary.

That which is now doubtful might be made clear. One thing is certion by the decree in this case the quantity of land in section 56, owned by defendant, is diminished, and the plaintiff’s tract, if we refer to the township map, is increased in quantity. Whether defendant’s title covers all of section 65 is immaterial. Plaintiff cannot recover any portion of section 55 under his title to section 56.

Again the proof that the ash tree at B was the corner of the old survey is no more satisfactory than that the post at K was the upper corner of section 55 on the bayou.

We think that justice requires that this case should be remanded for a new-trial in order that the plaintiff may produce his title papers, in conformity with Article 83 of the Civil Code, and that a survey may be made according to the provisions of law. C. C. 830, 831, 837. 4 Ann. 383.

It is, therefore, ordered, adjudged and decreed by the court that the judgment of the lower court be avoided and reversed, and that this case be remanded to the lower court for further proceedings and a new trial, according to law, the plaintiff and appellee paying the costs of the appeal.

Spoitord, J., took no part in the decision of this cause.


author: .Mekbick, C. J.

text:
    Boykin & Lang v. W. A. Shaffer.
    The Act of Congress admitting Louisiana into the Union which provides, that It shall be a condition upon which said State is admitted into the Union, that the river Mississippi and the navigable rivers and waters leading into the same and into the Gulf of Mexico shall be common highways, and open to the inhabitants of the States and Territories of the Union, was not intended to apply to streams only capable of an imperfect navigation in time of floods and very high water.
    The right to charge toll for the use of a lock on a water course is a franchise which the sovereign alone can confer.
    The Act of the Legislature approved May 25th, 1856, entitled “ An Act providing for the separation of the Lafourche and Terrebonne Navigation Co. from the Barataría Canal Co., and determining the condition of said separation” is unconstitutional and void.
    There is no law which prevents a corporation from causing some of its works to be built with an understanding with the contractor that he shall be permitted to reimburse himself by the receipt of the toll arising from the same.
    APPEAL from the District Court of the parish of Terrebonne, Roman, J.

      Goode & Ayeoelc, for plaintiffs.

      Gonnelly & Rightor, for defendant and appellant.
   .Mekbick, C. J.

The plaintiffs allege that they are the owners of a sugar plantation on Bayou Black, on which they usually make 250 hogsheads of sugar and 450 barrels of molasses ; that Bayou Black has always been a navigale stream, and used by petitioners in transporting to market their crop and in receiving supplies, and the only stream on which their crop can be shipped or their supplies received, and it is indispensable to petitioners it should be kept open and forever free to all persons whomsoever, the public having the sole and exclusive property therein ; that the defendant, William A. Shaffer, has constructed two locks in said bayou, one of which is in front of the plantation of Hatch & Grinage, and the other in front of the plantation of Tobias Gibson, both being below the plantation of petitioners ; that said locks which are unauthorized by law are a total obstruction to all free navigation of the bayou; that petitioners understand that it is the intention of said Shaffer to charge tolls for all vessels and freight passing through said bayou, at the rate of thirty cents per hogshead for sugar, and fifteen cents per barrel for molasses, which petitioners are unwilling to pay ; that petitioners have demanded the removal of the locks; that petitioners have had for several days past a boat load of molasses in the bayou at the upper lock ; that said Shaffer and his agent have refused to open the lock and let petitioners pass, and that petitioners’ said molasses is still exposed in said boat, and that by said unlawful act of defendant petitioners are prevented from sending their crop to market and they have sustained damage in the sum of five hundred dollars, and will suffer irreparable loss if said locks are kept closed.

Petitioners pray for a writ of injunction to restrain said Shaffer from obstructing said bayou and demanding any toll from petitioner; that the Sheriff be ordered immediately to open said locks ; that judgment be rendered against said defendant in the sum of five hundred dollars; that the injunction be made perpetual, and said Shaffer he ordered to remove said locks and all other obstructions by him placed in said bayou, and on his failure to do so that they he done at his expense.

“ The defendant answered by denying that the bayou is or over has been a navigable stream according to the ordinary or legal import of the terms. On the contrary, he avers that said bayou was originally so choked up by logs brushwood, &c., as not to be navigable for the smallest water craft. That from time to time, since 1840, improvements in the bayou have been made, with the view of rendering it navigable, but as soon as the logs and other obstructions were sufficiently removed to admit of-the passage of boats, the water drained off so rapidly and completely as to leave all that portion of it above the locks constructed by respondents almost entirely dry, and that said portion is not now susceptible of being navigated without the aid of those locks. Defendant further answers, that by a contract entered into between himself and the Barataría and Lafourche Canal Company, he engaged to build the two set of locks in question, and to receive in compensation therefor the right to levy toll on boats passing through the same; said right being stipulated for the term of seven years. That the company was and is authorized by its charter, by various legislative Acts, and by contracts with the State authorities, to improve the navigation of the bayou and to levy toll on it.”

Defendant also excepts to plaintiffs’ right to institute this action.

This exception was properly overruled. See 11 M. R., 621; 2 N. S., 317; 7 Rob., 442; 2 An. 770; 10 An., 431.

The testimony shows, that many years ago the Bayou Black had much more water in its channel than at present, but, that, then it was unnavigable except in high water for pirogues, which were enabled to get up the bayou by hauling them over the logs, rafts and other obstructions, and that since 1840 these obstructions have been removed, but, as a consequence, the water having' nothing to retard the current flows out of the bayou and leaves it completely dry; that since these improvements by the State the bayou can be used for navigation only after high water occasioned by heavy rains, and then only for short periods. The proof is unanimous and clear, that the two locks are a positive advantage to the bayou and that without them the bayou would be comparatively unnavigable. The proof further shows, that Lang, who had the principal control of plaintiffs’ plantation before these locks were built, was* desirous that- the defendant should build them, and was active in procuring favorable influences to act upon the defendant to build the locks.

The right of the State'of Louisiana to authorize the building of these locks, has been questioned. We have no hesitation in saying, that in our opinion the Act of Congress relied upon by plaintiffs’ counsel was not intended to prevent the State from improving and rendering navigable bayous and other streams of the character of the Bayou Black.

Louisiana was admitted into the Union with this proviso, viz: “ Provided, that it shall be taken as a condition upon which said State is incorporated in theUnion, that the river Mississippi and the navigable rivers and waters leading into the same and into the Gtulf of Mexico, shall be common highways, and forever free, as well to the inhabitants of said State as to the inhabitants of other States and Territories of the United States, without any tax, duty, impost or toll therefor, imposed by said State, and the above condition and also all other conditions and terms contained in the third section of the Act the title whereof is hereinbefore recited shall be considered, deemed and taken, fundamental conditions and terms upon which the said State is incorporated in the Union. Stat. at large, vol 2, pp. 642 and 703.

Without undertaking to construe the effect of the enactment upon the power of the State to charge tolls for improvements made by overcoming the natural obstacles of navigable streams it suffices in this case to say, that this statute was never intended to apply to streams only capable of an imperfect navigation in time of floods and very high water. Such streams or dry bayous must be considered as under the entire control of the State. Were the mere fact that a steamboat or flatboat had been a short distance up a stream or bayou in high water a sufficient ground for declaring it a navigable stream, every slight depression of the soil on the banks of the Mississippi would then become a navigable stream and should be opened for the benefit of rafts and boats, and the convenience of a few persons, to the total destruction of the planting interests on the banks .of the river. It is well known that the State has for a number of years been closing the small bayous making out of' the principal rivers and bayous, and thus redeeming large and valuable tracts of land. These bayous, which are of no value to the public, in high water might have been navigated by steamboats and other craft had it been the pleasure of the owners of such crafts to have employed their time in a navigation which would have been without profit to themselves or advantage to any one else.

Now the Bayou Black takes its rise in the vicinity of the residence of the plaintiffs, and it is shown that the locks placed upon it by the defendant so far from being an obstruction give the bayou all its value as a navigable stream. Assuming that the locks were authorized by the State, they advance the objects contemplated by the Act of Congress and furnish a permanent navigation alike open to the citizens of other States and the citizens of Louisiana, subject only to the payment of a reasonable remuneration to those by whose industry and means the navigation has been created. See the case of State v. Orleans Navigation Co., 11 M. R., 324.

Now, if the locks are no obstruction to the navigation of the bayou, (the use to which the plaintiffs demand that the bayou shall be held exclusively subject,) they cannot demand that the locks shall be destroyed although it may not be shown that they have been erected under the authority of the State: all that plaintiffs could claim would be, that they should be allowed to use the bayou in its improved condition without paying toll. •

We, therefore, come now to consider the question whether the defendant can charge toll. For it must be considered that the defendant could not without authority charge toll for the use of a lock which he had erected. Such a right would be a franchise which the sovereign alone could confer. If a private person should choose to repair a bridge upon a public highway, or if in the place of a dangerous bridge he should at his own cost build a substantial and safe one, he could not be prosecuted for obstructing the highway, but it would not follow that, because he had done no injury to the public way, he should be indemnified for what he had expended without being authorized by law to make such improvements.

If the defendant is authorized to charge the plaintiffs with toll, it is because the Legislature has authorized such levy of toll, or because the plaintiffs have authorized the construction of the locks, and have promised to pay toll for the use of the same.

Although one of the plaintiffs who had the principal management of the plantation, used his influence to induce the defendant to build the locks, it does not appear that he expressly promised to pay toll, or that he contemplated anything more than a donation in money, for what he considered his advantage from the building of the locks.

The case, therefore, rests exclusively upon the action of the Legislature. This compels us to glance at the legislation on this subject.

On the 6th of February, 1829, the Act of the Legislature was approved, incorporating the Barataría and Lafourche Canal Company, for the purpose of making a canal from the Mississippi to the Bayou Lafourche. This statute has no provision in relation to the Bayou Black.

The next day, February 7, 1829, an Act to incorporate the Lafourche and Terrebonne Navigation Company, was approved. This Act conferred powers upon the latter company by reference to those of the Barataría and Lafourche Canal Company.

The second section, however, is special, and provides that the operations of said Lafourche and Terrebonne Navigation Company shall extend to the improvement of the navigation of the Bayous Terrebonne, Black, Carpe and De Large, and for establishing a water communication by means of a canal or canals, from Bayou Lafourche to the Bayou Terrebonne, and from thence to the Bayous Black, Carpe, Oaillou and De Large, and from one to the other, and through Bayou Black to Berwick’s Bay ; provided, thatthe provisions of this Act shall not be so construed as to prevent the Barataría and Lafourche Canal Company from cutting a canal across the said water courses to communicate with Berwick’s Bay, if the said company should find it convenient to cut such canal; and all necessary powers are hereby granted to said Barataría and Lafourche Canal Company to increase their capital for the above object, and in case the said Barataría and Lafourche Company should not avail themselves of the privilege hereby granted, it shall be lawful to grant the same privilege to anyother company.

In the third section is a dause authorizing the company, after the completion of certain works designated, to demand and receive such additional toll-as may be deemed advisable, not to exceed fifty cents per ton for each and ev&ry lode that may be absolutely necessary to construct on such canal or improvement; these tolls, however, being subject to a reduction whenever they should exceed fifteen per cent, on the capital paid in ; and it was further provided, that said compcmvy shall be responsible for any damages that may be sustained in consequence of the want qf sufficient erribanhnenis or lodes on or in any canal or canals, bayou or bayous, opened or improved.

The character of the improvements contemplated by the Legislature, was a continuous water communication from the Mississippi river to Berwick’s Bay. The power was gi-ven to the Barataría company to complete the whole line, if they saw fit. But the Terrebonne and Lafourche Navigation Company also had the power of extending this line of improvements, for they were not only to improve the Bayous Terrebonne and Caillou, which are almost at right angles with the contemplated improvements of the Barataría company, but they were also to be permitted to connect the Lafourche with the Terrebonne, and these again with the Bayou Black and Berwick’s Bay.

In 1883, the Legislature extended the charter of the. Barataría Gompatiy six. ty-eight years; it gave them the exclusive privilege fortwenty years of digging canals, to open one or more ways of communication by water between the Mississippi river and Lafourche, and the lakes and intermediary bayous. See Act of 1833, p. 3.

In 1835, another Act of the Legislature was passed, by which the Treasurer of the State was directed to subscribe five hundred shares to the capital stock in the Barataría and Lafourche Canal Company. The Board of Internal Improvements was directed to employ one-third of the slaves owned by the State, on the Barataría and Lafourche Canal, and the union of the two' companies was declared in these words:

Sec. 10. Be it enacted, Sc., That a union of the Barataría and Lafourche Canal Company, together with the Lafourche and Terrebonne Navigation Company, be and is hereby authorized and effected, according the conditions stipulated in the articles of agreement signed by the President of each company, and deposited in the office of Jules Mossey, a Notary Public in the city of New Orleans.” Act 1835, pp. 149-151. The importance of this act of union and consolidation is apparent, from the consideration of the fact, that the course of Bayou Black is in a westerly direction, and its channel might, it was then supposed, be made available for purposes of navigation.

After the consolidation of the two companies, the powers of both appear to-have been exercised under the single title of the Barataría and Lafourche Canal Company, for, in 1843, we find the Legislature regulating the amount of fees which this company might receive over the line of the Lafourche and Terrebonne Navigation Company. The Act declares: “ That Barataría and Lafourche Canal Company shall have power to levy and collect a toll on all vessels, boats or other crafts, of any description whatever, that may navigate between Houma and Thibodeaux ville, on the Bayou Terrebonne or Canal near Thibodeauxville, which toll shall never exceed the following rates : on all vessels, boats, or any other crafts of any description whatever, eight cents per ton for every mile they shall navigate on said bayou and canal; provided said toll shall not exceed one dollar per ton, or seventy-live cents for crafts measuring less than one ton.

The next Act of the Legislature is the Act of 1846, relied upon by the plaintiff. We will consider this Act, after We have examined the remaining acts- of recognition of the Barataría and Lafourche Canal Company, on the part of the State or its authorities.

In the month of July, 1850, A. D. Wooldridge, the State engineer, entered into a contract purporting to be with George May, President of the Barataría and Lafourche Canal Company, acting in his said capacity, by virtue of a resolution of the Board of Directors of said company, by which said engineer, on behalf of the State, in consideration of the Sum of $55,000, in order to enable said company to complete the Barataría and Lafourche Canal contracted to build two locks on the Mississippi river; two on the oast side of Bayou Lafourche; one lock on the west side of Bayou Lafourche; one lock between Bayou L’Eau Bleue and Terrebonne, and place a culvert under the canal between Bayous Terrebonne and Black, and to secure the State the repayment of said 3üm, the said company mortgaged “ the canal of said companji, in its whole extent, beginning at a point on the Mississippi1 river, about six miles above the city of New Orleans, thence running in a course westerly or south west, through the parishes of Jefferson, Lafourche Interior and Terrebonne, until it strikes Baybu Black in the parish of Terrebonne, with all the land lying alongside,” &c.

it will thus again he Seen, that the work here contracted to be done, as well as a portion of the canal mortgaged to the State, was within the original franchises of the Terrebonne and Lafourche Navigation Company.

This contract was entered into in virtue of two Acts of the Legislature; one approved December 20, 1848, to authorize the State Engineer to contract with the Barataria and Lafourche Canal Company “ for the completion of said canal,” and the other approved 20th of March, 1860, “ to make further provisions for the completion of the Barataria and Lafourche canal.” See Acts of 1848, p. 54; 1850, p. 188.

The contract itself, .thus embracing a part of the line originally within the powers conferred on the Lafourche and Terrebonne Navigation Company, was expressly ratified by the Act of the Legislature, approved March 17, 1852, See Acts, 1852, p. 162. This Act made an appropriation of $12,000, in addition to the unexpended balances, “for the purpose of completing the Barataria and Lafourche Canal, in conformity with the contract of the State with said company, bearing date the first day of July, 1850.”

On the thirtieth of April, 1853, another Act of the Legislature was approved, by which it was provided, that three Commissioners should bo appointed on the part of the State, with full powers to alter, modify and render conformable to the Act of 20th of December, 1848, the contract between the State and the Barataria and Lafourche Canal Company; twenty-three thousand dollars more was appropriated for the purpose of completing the Barataria and Lafourche canal, in compliance with the provisions of said Act, which sum, however, was not to be drawn from the Treasury in the event of a failure of the commissioners. See Acts of 1853, p. 296.

The three Commissioners appointed under this Act entered into a further agreement, by notarial act, with the Barataria and Lafourche Canal Company, by which said company acknowledged its indebtedness for the $55,000, and interest mentioned in the former act, and in consideration of the $23,000 to be paid the company, by the State as well as all the former unexpended balances of appropriations, the company agreed to relieve the State from the completion of the works undertaken by it, and engaged to do the work itself, with the additional works specified in said contract, viz:

First. To make the lock on the east side of Bayou Lafourche.
Second. To make and complete a lock on the Mississippi river, similar to the one now constructed on the Lafourche; and
Third. To make and complete a lock on the Bayou Black; a lock on the Bayou Caillou, and a lock on the Terrebonne; the lock on the Terrebone to be with three ways, with double gates, at the entrance of the canal — all of said locks to have double gates; to complete all dredging and excavating necessary to place the canal in good manageable order, to a depth of five feet. To secure the performance of the above, the company executed a bond in favor of the Governor of the State in the penal sum of $30,000.

The contract contained the further stipulation, that the locks on the Oaillou and Terrebonne are to be so constructed, as not to injure or interfere with the owners of property on said bayous, but to improve the navigation.

A careful consideration of these statutes and Acts of the State, through its officers, as well as the Act of 1846, which will be mentioned in another place, shows that since the union of the two companies, the Barataria and Lafourche Canal Company, has been considered as invested with and acting for both of said companies, and that it was the object of the State, through the franchises granted the two companies, and which were managed under the name of the Barataria and Lafourche Canal Company, to carry through a line of water communication 'from the Mississippi river to Berwick’s Bay. This company, then, acting for itself and the Navigation Company, had the right to improve the navigation of Bayou Black, on the line of this water communication, by building locks and to charge tolls for the same, if we are guided by the statutes and acts above recited.

But there is another important statute in entire contrast with the preceding, and, if obligatory, the defendant must be enjoined from collecting tolls for the passage of the locks upon Bayou Black. This is the Act, approved May 25, 1846, entitled “ An Act providing for the separation of the Lafourche and Terrebonne Navigation Company from the Barataría and Lafourche Canal Company, and determining the condition of said separation.”

This Act the defendant contends was unconstitutional, and did not deprive the Barataría and Lafourche Canal Company of any of the franchises which it was exercising on behalf of the joint company.

The first section of the Act decrees that the Lafourche and Terrebonne Navigation Company be, and the same is hereby separated from the Barataría and Lafourche Canal Company as herein conditioned and defined: Provided, said separation be not objected to by a majority of the stockholders of either of said companies assembled for the purpose of deliberating on said separation, the-voting- of said stockholders on said subject being in conformity with the provisions of their respective charters, within twenty days after the promulgation of this Act.

It is contended by defendant’s counsel that it was not in the power of the Legislature to decree a separation without some act on the part of the companies actively manifesting their assent to the sopartion. We are of this opinion. The two companies, two intellectual persons, having united their means and franchises under the sanction of the Legislature, had acquired certain joint rights which the Constitution permitted them to enjoy together; the two companies, and the stockholders of both companies collectively, had the right to continue their common affairs as long at least as it was their interest. The act of separation of the interests and property of these companies, like the separation of the interests of private persons, was a partition. The power to decree a partition and regulate the same is a judicial power, and does not belong to the legislative department of the Government. To establish this it is sufficient to refer to the uniform practice of the courts and the minute rules prescribed by the Civil Code for such proceedings, and the fact that, with the exception probably of the present instance, the Legislature has never-attempted to exercise the power.

The Constitution of 1845 prohibited the Legislature from exercising judicial functions. Arts. 1 and 2. The Act referred to not only decrees the separation of the companies, the partition of the joint interests, but also assigns to each what each company shall take of the common effects. It decrees that the Lafourche and Terrebonne Navigation Company shall have the entire control of and power to improve the navigation of the canal connecting the Bayou Terrebonne with the Bayou Lafourche, from said canal to the point of intersection of the Barataría and Lafourche Company’s canal near Houma with said bayou; that the Lafourche and Terrebonne Navigation Company shall exercise and enjoy within said prescribed limits all the rights and privileges and immunities granted by its original act of incorporation, and the Barataría and Lafourche Genial Company shall cease to have any rights or exercise any authority what ever within said limits; that the stock of the Lafourche and Terrebonne Navigation Company shall consist of stock subscribed for and paid in its original books before the junction of the two companies by the State and individuals, and also stock subscribed in 1838 for the improvement of the navigation of Bayou Terrebonne between Thibodaux and Houma, which last mentioned subscription is 123 shares, and that the slaves, the dredging machine and town lots in Thibodaux now under the control of commissioners appointed in compliance with the contract of union of the two companies shall revert and belong to the Lafourche and Terrebonne Navigation Company, and each company shall be bound for the payment of its respective debts, and it requests the President and Directors of the joint company to furnish to the Directors to be elected by the Lafourche and Terrebonne Navigation Company a statement of the amount of money received and disbursed since the union, and provides that the company which shall prove the debtor of the balance found, shall pay the same to the other company within a year, &c.”

From this recital of the provisions of the act it is apparent that the Act of the Legislature decrees a partition, and assigns a part of the property held in common to one of the partners in full property. This Act of the Legislature has some analogy to the Act of 1841 by which the Legislature declared the Clinton and Port Hudson Railroad with all its fixtures, slaves, and appertenanees, &c., forfeited to the State, on account of the non-payment of the interest on the bonds issued by the State. This court held that tho decree of forfeiture was a judicial act, and the Act of the Legislature was in that respect unconstitutional. It is not less a judicial act to settle by proper evidence the rights of parties to state their accounts, charge either with the paymont of debts,, and allot to each his just portion of the common effects, and to decree each ta be the owner of the part assigned him in full ownership. See Perry et al. v. The Commissioners of the Clinton and Port Hudson Railroad Company, 11 Rob. 413.

If that portion of the Act of 1846 making a partition between these companies is unconstitutional, all of the residue of the same which takes from the companies any of the franchises, and particularly that part which takes from the companies the right to construct locks and receive toll upon Bayou Black is unconstitutional as impairing the obligation of a contract. Montpelier Academy v. George, 14 L. R. 395.

The conclusions to which we have arrived in regard to the Act of 1846 are in accordance with the subsequent action of the Legislature and executive departments.

There is nothing to show that the Lafourche and Terrebonne Navigation Company ever attempted, after the union of the two companies, to exercise any of its franchises other than through the Barataría and Lafourche Canal Company, the officers of which appear to have been elected as the agents of both companies. And so it was understood in 1846, as we have already shown, for the Legislature attempted in that Act to provide for a separate election of officers for the Lafourche and Terrebonne Navigation Company and to reinstate that company as a distinct corporation. See 4th sec. of Act of 1846. If so the board of Directors elected under the title of the Barataría and Lafourche Canal Company were at that time exercising the functions of officers of the joint company.

This brings us to the consideration of the last proposition of plaintiffs counsel, viz., that the Barataría and Lafourche Canal Company did not and could not transfer the right to build locks and levy tolls on Bayou Black to the defendant.

We know of no law which prevents a corporation from leasing portions of its works or even causing some of its works to be built with an understanding with the contractor that he shall be permitted to reimburse himself by the receipt of the tolls arising from the same. The contractor in such case becomes the agent of the company, and it is responsible for his acts. Rabassa v. Orleans Navigation Company, 5 L. R. 462.

On the question whether the Barataría and Lafourche Canal Company did actually authorize the defendant to build the locks and collect tolls, the proof is meagre, but we think this issue also, under the peculiar circumstance of this case, ought to be determined in favor of the defendant.

The company is cited in warranty by the defendant, and it has not repudiated his acts. The works done by him on the line of the improvements of the company are so considerable, and so obvious, that it cannot be supposed that they were done without the knowledge and consent of said company. Moreover Rang, one of the original plaintiffs in' this suit, whilst he had the principal management of their joint plantation, took such an active interest in inducing the defendant to undertake these heavy works and make these large expenditures, that plaintiffs ought not, in the absence of all proof to the contrary, be permitted to deny that the defendant was authorized by the proper authority to build the locks.

We do not understand the plaintiff to complain that defendant charges a higher rate of toll than allowed by the acts of incorporation, but to contend that he is not entitled to maintain the locks which he has built nor collect any tolls.

It is, therefore, ordered, adjudged and decreed by the court that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of the defendant, with cost of both courts, reserving to the plaintiffs and appellees the right, if any they have, to contest the legality of the tolls charged by the defendant.


author: Spoefobd, J.

text:
    L. H. D’Armond v. J. W. Pullen.
    The District Court has jurisdiction of an appeal from a Justice’s Court, in a proceeding under the landlord and tenant law, to expel a contumacious tenant, although the price of the lease is under $10.
    A claim by defendant in reconvention for the value of buildings erected by the tenant, being not properly connected with the main action, is not admissible in such a proceeding.
    APPEAL from the District Court of the Parish of Concordia, Oooley, J.

      Stacy & Spa/rrow and Snyder & Shaw, for plaintiff.

      A.. N. Ogden & Stansbury, for defendant and appellant.
   Spoefobd, J.

It has been held, under the various laws with regard to the expulsion of contumacious tenants, that a Justice of the Peace has jurisdiction, irrespective of the price of the lease, of the value of the property claimed by the lessor, and of the value of improvements claimed by the lessee. See Walker v. Van Winkle, 8 N. S. 563 ; Kennedy v. Downing, 2 Rob. 284; C C. 2683; Acts 1819, 3d March.

The existing laws gave the Justice of the Peace original jurisdiction in the present cause, for the monthly rent, or the lease held, did not exceed one hundred dollars. Revised Stat., p. 308, sec. 2. The next section of said statute recognizes a right to appeal from such judgments, but places certain restrictions upon the right of a suspensive appeal. Sec. 3.

If the defendant has a right to appeal from the District Court to this court, a fortiori, had the plaintiff a right to appeal from the Justice’s court to the District Court.

There was no error in striking out the claim in reconvention for the value of the buildings. That was a distinct demand, not properly connected with the main action; and, by consequence, there was no error in refusing to admit evidence of the value of such buildings.

The fact that no price had been paid for the lease was immaterial, for one was stipulated in writing, and proof that none had been paid could not change the character in which the defendant held possession of the premises under his written contract.

It is immaterial to inquire whether the court erred in its charge to the jury, as the evidence is wholly insufficient to establish any imposition by the plaintiff upon the defendant in procuring his signature to the lease.

Judgment affirmed.

Mr. Justice Cole took no part in this case.


author: Buchanan, J. Mbkrick, C. J.

text:
    Heirs of Mary Clark v. Myra Clark Gaines.
    It is a sufficient ground for the institution of a suit in a State Court to avoid a will and the probate * of the same on proper allegations, that, under the established and settled jurisprudence of the Supreme Court of the United States, the United States Courts will not entertain enquiry into the validity of the will after the probate thereof in a State Court, and that the party causing the will to be probated is fradulently endeavoring to evade the examination of all questions touching the Validity and existence of the will by suits instituted in the Circuit Court of the United States.
    In all cases an action to set aside a will which had been probated, involves the reversal of the decree of probate, the probate being merely ancillary to the will.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      J. Livingston, for plaintiffs and appellants.

      Smiley & Perin, Mo'ise & Randolph and P. & Bonford, for defendant.
   Buchanan, J.

The plaintiffs, who are all residents of other States of the Union, and of foreign countries, allege themselves to be the representatives of the late Daniel Clark's mother, who was his instituted heir under a will admitted to probate and execution, many years ago, as his last will; that the defendant has lately caused another will, which she alleged to be lost or destroyed, to be probated by judgment of this court, as Danial Clark's last will, whereby the plaintiffs’ rights are injuriously affected. Plaintiffs allege that 'the proceedings of the defendant in the premises were fraudulent; that Daniel Clatrk left no will posterior to the will of 1811, which instituted his mother as his universal legatee ; that said Clark was never married, and that defendant is not his legitimate child, as asserted in the pretended lost will of 1813, which she has caused to he probated; that Daniel GlarWs mother was not only his testamentary heir, but his forced heir; and that the defendant is fraudulently endeavoring to evade the examination of these questions touching the existence and validity of the pretended will of 1818, under which she claims, by instituting suits, (since the rendition of the judgment of this court, ordering the probate of said will,) in the Circuit Court of the United States for this district ; in which suits defendant claims all the property that belonged to Daniel Clark in his lifetime, from parties now in .possession of said property; the said Circuit Court of the United States being a court which, under the established and settled jurisprudence of the Supreme Court of the United States, cannot, and will not entertain any enquiry into the validity of the pretended will of 1813, as the last will of Daniel Clark, after the probate of the will in the State Court. And plaintiffs charge these proceedings in the Federal Court to be a fraud upon the decree of this court, which reserved specially to any one who had or has an interest in contesting the said will of 1813, the right to do so, notwithstanding the probate of the same. Plaintiffs allege further, that they are forced to institute suit in the State Court to avoid the pretended will of Daniel Clark and the probate of the same, inasmuch as they cannot appear in the Circuit Court of the United States and set up any answer or exception to the chancery suits there pending as aforesaid. The petition of plaintiffs concludes by praying that defendant be cited, and after due proceedings that the decree admitting to probate the will of Daniel Clark of 1813, under which defendant claims, be annulled and avoided, and for all other relief that the nature of the case may require, and law and equity will permit.

To this petition defendant has filed the following exceptions :

1st. That the District Court is without jurisdiction to annul the decree admitting the will of Daniel Clark, of 1813, to probate.
2d. That the petition discloses no cause of action.
3d. That the allegations of the petition are vague and uncertain.

I. The first exception is based upon the fact, that the decree in question was not a judgment of the District Court in which the action of nullity was instituted, but a decree of the Supreme Court on appeal from a judgment of the District Court, and which reversed the judgment of the District Court. Without going into the enquiry of the admissibility of such an action in general, it suffices on the present occasion to say that the decree of the Supreme Court, which ip is the object of this suit to annul, is one which upon its face invited contestation ; for it reserved, by its terms, the right to attack the will probated, not only to all persons who were not parties to the proceedings for the probate of the will, but even to one who was a party to those proceedings, opposing the same. The words of the decree were, “ reserving to the said Richard Relf the right, if any he have, to oppose said will in any manner allowed by law, as fully as he could have done had he not been a party to these proceedings.” 11th An. 135.

And in this case the proceedings to probate the will cannot be separated from the will itself.

For the will probated was a will lost or destroyed; a will which is not in existence, and of which the only record is in the testimony of witnesses as to its contents, and the decree rendered upon such testimony in the proceeding in question. In all cases the action to set aside a will, which had been probated, (an action of which the admissibility cannot be questioned, and of which we decided one, Graves v. McGehee, a few weeks since,) involves the reversal of the decree of probate — the probate being merely ancillary to the will; but in this particular case it so happens that the will and its probate are simultaneous and co-existent. To refuse, therefore, to the plaintiffs the right of action to set aside the probate of this lost will, would be in fact to deny them the remedy which the very decree of probate purported to secure to them. It is not in this court that such an argument should meet with any favor. Our decree in the case of the Succession of Clark, 11th An., meant what it expressed. Our reservation of the rights of all parties in interest was substantial, not illusory.

II. The allegations of the petition which we have copied above, disclose, to our apprehension, a cause of action.

III. Those allegations are sufficiently explicit to put the defendant upon her defense. Certain facts are categorically stated, the non-existence of a will of Daniel Glao'h subsequent to that of 1811; the illegitimacy of defendant; the institution of suits by defendant in the Circuit Court; the impossibility of contesting the will under which the defendant claims in that court; the fraudulent purpose of defendant in the institution of the suits in the Circuit Court; the inability of these plaintiffs to become parties to those suits: all of which must be taken for true, for the purpose of deciding upon these exceptions.

It is, therefore, adjudged and decreed that the judgment of the District Court be reversed; that the exceptions of defendant to the actions of plaintiffs be overruled; that this cause be remanded to the District Court to be proceeded in according to law, and that the appellee pay costs of appeal.

Mbkrick, C. J.

The plaintiffs in this action were not parties to the proceeding in which the will of 1813 was admitted to probate! They are, therefore, not only not concluded by the decree, but their right to contest the will in a direct action was expressly conceded in the opinion and reasoning of the court in that case, 11 An. 131. The only advantage the defendant gained by the decree, as between these parties, was the status of universal legatee, which throws the burden of proof upon the party seeking to deprive her of her position as sueh.

On looking into plaintiff’s petition in order to ascertain whether the allegations therein are sufficient to maintain the action if established, I find, among much vagueness and irrelevant matter, the direct averment that Daniel Glai'Tc left no will posterior to the will of 1811. This averment can be established by showing that the supposed will of 1813 was a forgery, or that the testimony of the witnesses on which the same was admitted to probate was false. This proof the plaintiffs are entitled to administer, and their action ought to have been entertained in order that they might produce it if they are able, and the action be proceeded in as in other cases.

Holding these views, I concur in the decree.

Mr. Justice Cole concurred in this opinion.


author: Oole, J. Spofford, J.,

text:
    J. McClure v. Robert King.
    Although it is not a good objection to the competency of a witness that he is a creditor of the party for whom he is called to testify, yet the fact may be shown as affecting his credibility.
    "Where it does not appear that a party was aware at the time of crossing his adversary’s interrogatories that the witness had an interest in the event of the suit, the objection may be made, although not reserved.
    APPEAL from the District Court of the Parish of Tensas, Farrar, J.

      K. B. Shaw, for plaintiff.

      Farrar & Beeves, for defendant and appellant.
   Oole, J.

This is a suit on a contract by which plaintiff undertook to build ten double negro quarters for defendant, for the price of $5000 according to certain specifications. Plaintiff further claims to recover of defendant $1045 for what he terms “ other” and “ extra” work.

Plaintiff annexes to his petition his account, which he credits with $2937 60.

The answer admits that the contract was made, but avers it was violated in almost every particular by plaintiff, and claims judgment for damages to the amount of $6668 63, in reconvention of plaintiff’s demand.

This case was submitted to a jury, who rendered the following special verdict: “We, the jury, find as follows, viz., that the plaintiff be allowed full compensation as per contract, and that all extra charges be deducted in lieu of damaged lumber and upon this verdict a judgment was rendered against defendant for $2062 37, and costs.

It appears to us that this verdict is not sufficiently precise and lucid, for, according to the contract, each cabin was estimated at five hundred dollars, and the jury do not inform us whether all the cabins were finished or only a part.

But besides this objection to the verdict, there is also an error in the ruling of the lower court, which must cause this case to be remanded.

The depositions of Follcwábee and Yeultle, taken by commission, constitute the whole of plaintiff’s testimony.

Follansbee's deposition was objected to, oh' the ground that he was an interested witness — he having sued plaintiff by attachment, and garnisheed King, and defendant excepted to the opinion of the court rejecting the admission in evidence of the suit of Follansbee v. McClure and R. King, gwnishee, which was offered for the purpose of showing that the said Follansbee was an interested witness in this cause.

It is true that a creditor of a party is not necessarily incompetent as a witness for him, but we think that defendant ought to have been permitted to have offered in evidence the suit of Follansbee v. McClure, in order to give the jury the knowledge of the position of the witness as affecting his credibility.

It is objected that interrogatories to Follansbee were served on the defendant, and crossed by his counsel, and no objection made to his competency, and no reservation made of any objections whatever; it does not appear, however, that the counsel of defendant was aware at the time of crossing the interrogatories of the interest of Follansbee in the event of this suit.

It is, therefore, ordered, adjudged and decreed that the verdict of the jury, and the judgment of the court thereon, be avoided and reversed, and that this cause be remanded for further proceedings, according to law, in the lower court, with instructions to the judge a quo to permit defendant to offer in evidence the suit of Lambert T. Follansbee v. James McClure; and it is ordered that plaintiff and appellee pay the costs of appeal.

Mi\ Justice Voorhies took no part in this case, on account of indisposition.

Spofford, J.,

dissenting. I do not think it necessary to remand the cause for evidence which is already in the record.

The suit of Follansbee v. McClure, which the defendant offered for the purpose of “ impeaching” Follansbee's testimony, whom he had previously cross-examined without making or reserving any objections, is attached to the bill of exceptions. It appears to have been instituted after the witness gave his testimony, and only shows that he claimed to be a creditor of MeGlure. This is not sufficient to impeach the witness; nor, in my opinion, would the conclusions of the jury upon the evidence have been changed had the court ruled differently.

The verdict appears to me sufficiently intelligible.

The contract price for building the ten cabins was $6000. The bill for other work and lost lumber, not embraced in the contract, was $1045.

The defendant pleaded an extravagant demand of $0668 63 for damages in reconvention.

The jury found “that plaintiff be allowed full compensation as per contract” (that is $5000), “and that all extra charges be deducted in lieu of damaged lumber that is, they found that extra work was done and lumber lost to the amount of $1045, as charged, but damages were found to that amount upon the reconventional demand, which two claims were to off-set each other.

This verdict authorized the Judge to give the plaintiff'a judgment for $2062 40, as he did, that is for $5000, the contract price, less $2937 60 already paid, as admitted by the plaintiff.

The evidence of defendant’s own witnesses show that this judgment has done him no injustice. His overseer says that “if the lumber were good, the houses were built very well.” Another of his witnesses, Mr. Grant, says that one or two of the quarters had damaged lumber in them, the others were of cypress and of good lumber. Merely for the inferiority of lumber thus used in one or two of the cabins, the defendant has been allowed over $1000, by way of damages: that is more than the whole contract price for two cabins, materials and all. I' think he, at least, has no right to complain of the verdict rendered by his neighbors, a jury asked for by himself, and who appear to have given the case a careful investigation. The Judge who presided refused a new trial, and, I think, we should affirm the judgment, and end this litigation.