author: Kino, J.

text:
    Carroll v. Miller.
    An affidavit at the foot of a petition for an injunction in these words, " that facts and allegations contained in the foregoing petition are true”, is insufficient, no specific fact, rendering an injunction necessary, being sworn to.
    APPEAL from the District Court of St. Mary, Overton, J.

      Gibbon, for the appellant.

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

Kino, J.

The plaintiff has appealed from, a judgment dissolving an injunction which he obtained, arresting an order of seizure and sale issued at the suit of the defendant. The defendant has prayed that the judgment of the inferior court be amended, by awarding to him interest and damages.

The oath upon which the injunction issued is, ‘ ‘thatfacts and allegations co ntained in the foregoing petition are true.” In arecent case (ante p. 466,) we held an oath in this form to be insufficient, no specific fact rendering an injunction necessary having been sworn to. Upon this ground alone the defendant would be entitled to an affirmation of the judgment appealed from. We have, however, carefully examined the evidence, which has satisfied our minds that the injunction was resorted to for the purpose of procuring improper delay, and that damages should have been awarded to the defendant on its dissolution. The judgment enjoined bears ten per cent interest, and the interest prayed for can not be allowed.

It is, therefore, ordered that the judgment appealed.from be amended, and «.hat the defendant, Catherine Miller, recover of the plaintiff M. IT, Carroll, 5Í170, being toil per cent damages on the amount of the judgment enjoined. In. other respects said judgment is affirmed with costs. The surety on the injunction bond not being before us, no judgment is rendered against him.


source: Caselaw Access Project

author: Eüstis, C. J.

license: Public Domain

text:
    Angelina v. Whitehead et al.
    Wliore a female child, a slave, was sold, while the Code of 1808 was in force, by a written instrument, reeiting that the vendor “ in consideration of a solemn promise made to him by the purchaser to manumit and sot free the said female slave and of a certain sum (the amountof which is stated in the act) bargains, sells and delivers the slave to the purchaser with full power and authority to manumit her," the sale will be considered to have been made to insure her emancipation. The emancipation was an essential condition without which the sale would not have been made, and was to be regulated by considerations of the slave’s own welfare, and the laws of the State. She did not become free on attaining the age of thirty years ; but her right to have her condition adjudicated upon, and her emancipation and that of her children ordered, so far as her owner was concerned, unless there was some lawful impediment, then became complete. Moreau & Carleton’s Partidas, part. 3, tit. H, law 8. C. C. 185, 174. C. P. 103.
    APPEAL from the District Court of Lafayette, Overion, J.

      W. B. Lewis and Porter, for the appellant,
    cited Code of 1808, p. 262, art. 21. Civil Code, art. 1896. 2 La. 215, 340. Brent, for the defendants, relied on Bozzi v. Bose, 8 Mart. 194. Code of 1808, p. 40, art. 25; p. 42, art. 27 ; p. 220, art. £3. 4 Mart. N. S. 464. 7 Ib. N. S. 425. 8lb. N. S. 127. 1 La. 241. 10 La. 90. 13 La. 411. 17 La. 365.
   Th© judgment of the court was pronounced by

Eüstis, C. J.

This is au action for liberty, instituted by the plaintiff for herself and her three children. She was born a slave in the State of Mississippi, in the year 1812, and belonged to the late John R. Holliday, of this State, by whom she was sold to Philander Campbell, then residing in the present parish of Lafayette. She and her children were held as slaves during his lifetime, and, on his decease, by the defendants, who are his heirs, and who assert their right to hold them in bondage. This is the second action instituted by the plaintiff for the same cause. On the trial she was non-suited, and has appealed.

The instrument under which she claims her freedom is as follows:

“ Know all men by these presents, that I, John Robert Holliday, of the State of Louisiana, for and in consideration of a solemn promise made to me by Philander Campbell, of the State aforesaid, that he would manumit and set free from bondage, a certain mulatto girl named Angelina, and the further consideration .of one hundred and fifty dollars to me in hand paid, the receipt whereof I do hereby acknowledge myself herewith fully satisfied, contented, and paid, have bargained, sold, and delivered, and by these presents do bargain, sell, and deliver, unto tire said Philander Campbell, with full power and authority to manumit, set free, and forever release from bondage the said mulatto girl Angelina, in as full and ample manner as I myself could have done before ith.e execution of .’these presents, The said girl is about nine years old. In witness whereof, I imve hereunto set my hand and seal, at Richland, in the State of Mississippi, this 26th day of July, 1820.-

“Jno. R. Holliday. [Seal.]

“ Signed, sealed, and delivered In the presence of “Wm. Yerley.”

Allen Campbell brought the plaintiff from .the . State of Mississippi, to the residence of his brother, the ancestor of the defendants, at his request, and, with her, was delivered, at the same time, the above bill of sale. His brother read it and retained it until his death, when it passed,to the possession of the defendants. There appears to be no question as to the verity .of the instrument, and the questions raised in the argument of the case relate principally to its validity and effect. As to its evident sense, on a fair and reasonable construction, we think there can scarcely bo any question.

Considering the whole of this instrument together, without going out of its terms, we think that the sale was made by Holliday for the purpose of insuring the emancipation of the plaintiff; tbatthis was an essential condition of the contract, without which it would not have been made., , The slave was of a tender age, incapable of taking care, of herself, and her emancipation was to be regulated by considerations of her own welfare, and the laws of Louisiana, in whicli State both of the parties resided. Such is the true construction, or the greater and most formal portion of the instrument means nothing. If we look to the evidence adduced on the trial, no other construction is possible; and as to the admissibility of any portion of it, as reserved in the bills of exception, it is unnecessary to decide, after the opinion we have expressed on the construction of the .instrument itself, under the circumstances which attended its execution and delivery.

By the plaintiff’s having attained the age of thirty years, she did not become a free person, but her right to be emancipated then became complete, unless there was some lawful impediment to its exercise. The 185th article of the Code provides that, no one can emancipate his slave unless the slave has attained the age of thirty years, and has behaved well at least four years preceding the emancipation. The power of emancipating slaves is vested in the police juries under such conditions as the public interests render necessary. But the right of the plaintiff to have her condition adjudicated upon, and her emancipation ordered, so far as her owners are concerned, we think, is unquestionable, under the provisions of the Code. The instrument under which the plaintiff claims her freedom is dated in 1820, previous to the enactment of our present Code. We have been referred to no authority which impugns the validity of contracts of this description under the Code of 1808, or which would preyent the slave from availing herself of the stipulation of liberty in her favor. On the contrary, we find that in the translation of those laws of the Partidas, which were still held to be in force in Louisiana, made under the authority of the legislature in 1820, this class ¡of contracts for the freedom of slaves is expressly recognized, and the law regulating them is inserted .at length. Vide Translation of Partidas, Partida 3, tit. 2,' law ,8. Provision is made for the enforcement of the right of the slave to emancipation in similar .cases.

It was a common mode of securing the freedom of the .slave for a friend, or patron, to purchase him for his liberty; and we find a .Spanish tribunal in Louisiana enforcing a direct contract for emancipation made between the master and a freedman, who was the father of the slave. Cuffy v. Castillon, 5 Mart., 494.

The Code of 1825, expressly recognizing the right of the slave to make a contract for his emancipation, and giving him an action against his master for his freedom (C. P. 103), seems to us to render clear the right of the plaintiff to avail herself of the stipulation of liberty in her favor, and to claim for herself and her children her emancipation, from the heirs of the owner who acquired and hold her on .that .express condition.

Under the evidence, and the issues tendered in the answer, and the prayer of the plaintiff for gen era!relief, we feel bound to adjudicate on the condition or status of the plaintiff,adversely to the claims set up by the defendants to hold her and her children absolutely as slaves.

It is, therefore, decreed that, the judgment appealed from be reversed, and that the plaintiff:' Angelina, and her three children, to wit, Melinda, a female, aged about seventeen years ; Felix, a male, aged about fifteen years; and an inlant named Maria, a female, aged about two years, mentioned in the plaintiff’s petition, be slaves for years or statu-liberi, and not slaves for life. And it is further decreed that the defendants proceed without delay to emancipate the said plaintiiT, under the laws of this State; and that they, and each of them, do, and perform sucfcfacts as may be lawfully required to effect said emancipation ; and that they pay the costs in both courts.


author: Eüstis, C. L

text:
    Campbell v. Arcenaux et al.
    Wliero a judgment has been rendered against one of two defendants, but in favor of the other, and the former appeals, but, asking no judgment against his co-defendant, does not make him a party to the appeal, and the plaintiff acquiesces in the judgment in favor of the latter by suffering it to become final without appealing therefrom, he cannot have the appeal dismissed on the ground that the defendant, in whose favor judgment was rendered, was not made a party to the appeal.
    The authority of an attorney of record is presumed. It cannot be impugned by a mere suggestion.
    APPEAL from the District Court of Lafayette, Overton, J.

      Brent and Mouton, for the plaintiff.

      Crow, appellant, pro se.

      W. B. Lewis, on the same side.
   The judgment of the court was pronounced by

Eüstis, C. L

In February, 1834, at a judicial sale made by the judge of the parish of Lafayette, of the effects of the succession of Herbert Eastin, deceased, a lot of ground, with the improvements thereon, was adjudicated to the plaintiff, for the sum of $1510, payable one-half in 1835, and the other in 1836.

The plaintiff alleges that he discovered, in July, 1845, that no title whatever to the property had been conveyed to him by the adjudication; that the defendant Marie B. Arcenaux, the surviving widow of Herbert Eastin, held herself out as administratrix; that, the defendant, Basil C. Crow, acted as her agent and attorney in fact in the mortuary and judicial proceedings of the succession of Herbert Eastin; and that the defendants are bound to make good his title, orto reimburse to him the price which he has paid; that the defendants have intermeddled with the administration of the succession, andaré liable to him in damages. The plaintiff prays for judgment against the defendants, in solido, accordingly. In a supplemental petition it is charged that, if the defendant, Crow, was not in fact the agent and attorney of Madame Arcenaux, he fraudulently led the plaintiff into error, by so representing himself, stating that, the widow was really the administratrix, and that the proceedings relating to the adjudication were regular and in due form, when he knew the contrary; and that, if said proceedings were irregular and contrary to law, the defendants combined to defraud the plaintiff, and to induce him to pay said purchase money to said Crow; that all the proceedings in the matter of the succession were illegal, and that neither of the defendants had a right to receive the price. There was judgment in the court 'below in favor of the defendant Madame Arcenaux, and against the defendant Crow, who has appealed. No appeal has been taken from the judgment against the co-defendant, nor is she a party to this appeal.

It does not appear that the plaintiff has ever been disturbed in the possession of the property, nor that the validity of his title has ever been questioned by the heirs or creditors of the deceased. The interest of the plaintiff in the lot, as well as his right of action in this suit, appear to have been transferred to John 6?. Howard, for whose benefit this suit is still prosecuted. No exception having been mdee to this assignment, we shall examine-the case as it stands in the record between the original parties.

A motion has been made to dismiss this appeal, on the ground that the co-defendant, Madame Arcenaux, has not been made a party to- the appeal. The appellant asks nothing against his co-defendant from this court, and, if the plaintiff considered it material to have her a party to the appeal, nothing prevented him from making her a party. So far from doing this the plaintiff has acquiesced in the judgment rendered in favor of Madame Arcenaux, by suffering it to become final without having taken an appeal from it. The motion, therefore, fails.

The charges against the appellant, it will he' perceived, are vague, and somewhat inconsistent. We are far from concurring in the opinion which the plaintiff appears to entertain, about the invalidity of his title; but our present inquiry is, as to the responsibility of the appellant to him, under the evidence. We are satisfied that the appellant was the authorized agent of Madame Arcenaux, for the settlement of her husband’s succession. He was her attorney at law for the professional Business of the succession, and, for other matters, he was her attorney in fact. Not that he had' any special power for such acts, but we think, that he was employed generally, as attornies at law frequently are employed, to settle the affairs of the succession of the husband. The utter impossibility of any other conclusion, is established by the documentary evidence before us. For instance, there is in evidence a provisional tableau of distribution of the funds of the succession of Herbert Easlin, signed by the appellant as the attorney for the petitioner, Madame Arcenaux, administratrix of the succession, in which she claims its homologation, and the' distribution of the funds under it. It bears date of filing, the 10th of December, 1836, and is signed by the judge of probates. In this tableau the administratrix puts down the sum of §7000, collected by her, and to be distributed.

It is obvious that we cannot permit a party to impugn the authority of the attorney on a mere suggestion, and refuse effect to this formal recognition of the funds of the estate being in the hands of the administratrix. Such a course is repugnant to all sqund rules of law, and to the authority which courts are bound to- accord to their officers. As for as it regards the responsibility of the defendant to the plaintiff, it is quite immaterial whether the administration of Madame Arcenaux was as administratrix, especially so appointed, or as tutrix of her minor children. Bryan v. Atchison, 2 An. 463. If the appellant was not the attorney of the widow for the settlement of the seccession, who washer attorney ? Who transacted the business for her ? or, did she transact it herself? These questions must be satisfactorily answered, adversely to the appellant, or the acts of the attorney performed in her name, about her interests and business, and in matters of moment, aboutwhich she could not be ignorant, must stand asher acts.

The plaintiff, after remaining in undisturbed possession of the property purchased since 1834, the only parties who would have any right to question his title, acquiescing in it — the proceeds of the property, as we are bound to conclude, distributed among the creditors, has, under these circumstances, instituted this suit against the appellant; does not appeal from the judgment rendered against him, in favor of the person, who, if there be any responsibility in the business, would be liable to him as a principal, but insists that Crow, her attorney, is bound to perfecthis title, or to reimburse him his purchase money. Finding that Crow was the attorney of Madame Arcenaux, that he did not exceed his powers, that he never warranted the title, nor was bound to the plaintiff ex contractu, it is clear that Crow can only be responsible to the plaintiff for acts ex delicto. For his acts as attorney he is bound to his clients; but there is no evidence, that we have been able to discover, which establishes any intermeddling, misrepresentation, deception, combination, or fraud,, towards the plaintiff, or any act for which he can lawfully seek redress against him, by a suit at law.

The judgment of the District Court is, therefore, reversed; and judgment rendered for the defendant, with costs in both courts.


text:
    Frosard v. The Police Jury of St. Landry.
    On an appeal to a District Court, taken by a land holder from the report of a jury of freeholders appointed to lay out a road, assessing damages for the injury sustained by him inconsequence of the opening of the road over his land under a resolution of the police-jury of the parish, the president of the police jury, being a mere nominal party, is compe tent as a witness. Nor can the members of the jury who laid out the road and assessed the damages be excluded, on the ground that, being proprietors of adjoining lands, they Were interested in the manner of laying out the road, and, consequently, in the event of the appeal. The objection goes only to their credibility.
    APPEAL from the District Court of St. Landry. Overton, J.

      Swayze and Lewis, for the appellant.
   Hallam and Martin, for the defendants.

The judgment of the court was pronounced by

Kino, J.

By a resolution of the police jury of St. Landry, passed in 1846, a jury of freeholders was appointed to retrace and lay out that part of the public road from the bridge over the Coulee Rouge to the bridge over the Coulée de Manne. The plaintiff, over whose land the road passes, appealed from the report and decision of the jury of freeholders to the District Court, complaining that the jury had not awarded to him the damages to which he was entitled .- A judgment was rendered against him in the lower court, and he has appealed.

On the trial of the cause the testimony of Harris was objected to, on the ground that, as president of the police jury, he was a party to the cause. The testimony of the freeholders appointed to retrace the road was also objected to, on the ground that they were the proprietors of lands adjoining those of the plaintiff, and as such were interested in the manner of laying out the road, and consequently in the event of the suit. These objections were overruled, and a bill of exceptions taken to the opinion of the judge.-

The judge did not, in our opinion, err, in permitting the witnesses to testify. Harris was a merely nominal party to the suit, with no further interest in its event than may be felt by any other member of the community. The objection to the commissioners goes to their credibility and not to their competency; They are not shown to have any direct interest in the result of the cause. '

On the merits, we think the judgment appealed from is supported by the evidence. The resolution of the police jury directed-the retracing and laying out of a part of the public road, and, as far as relates to the plaintiff, the acts of the commissioners were in strict conformity to the resolution. The evidence shows that the road retraced over the plaintiff’s land was originally laid out as a public road in 1824, and has ever since been used as such. Two of the commissioners appointed to lay out the road in 1824, were also appointed and served in the same capacity under the resolution of 1846. From their testimony, as well as from the report of the first commissioners, which is in evidence, it appears that the road as recently retraced, as far as regards the lands of the plaintiff, is identically the same originally laid out. One of those commissioners testifies that the plaintiff was present in 1824, when the road was run across his land, and made no complaint. No change having been made in the part of the road fracing the land of the plaintiff, no ground for a claim of damages exists.

Judgment affirmed.


author: Rikü, .T.

text:
    Succession of Mouton.
    The liability of a Surviving wife for the debts of the _successioa of her husband resulting from acts of improper intermeddling, cannot be enforced by an opposition to a tableau of distribution presented by her as bis administratrix; it must be established in a separate action. In presenting a tableau she acts in her representative capacity, and, in the litigation which may arise upon it, she can only be held to a strict accountability for the property confided to her administration.
    A wife has a tacit mortgage on the immovables of her husband for the reimbursement of paraphernal effects alienated by him; and this mortgage is not required to be registered to give it effect against third persons.
    APPEAL from the District Court of Lafayette, Overton, 3,

      Brent and Mouton, for the appellants,
    contended'that the wife’s mortgage for her paraphernal property must be registered to have effect against a third person. • -

      Nicholls, contrá.
    The mortgage of the wife for the security of her paraphernal rights, attaches from the dates at which sums of money are received by the husband, and this without registry., This question can no longer be considered open. C. C. 2367, 3297, 3298. 3 Mart. N. S. 302. Ib. N. S, 544. 7 Ib. N. S. 69. 9 La. 71, 10 La. 303. 6 La. 25. 10 Rob. 159. Fisher v. Fisher, 2 Ann. Rep. 775.
   The judgment of the court was pronounced by-

Rikü, .T.

Eliza Bugas filed a tableau of distribution of the funds of the insolvent succession of her husband, Oi/prien Mouton, of which she is the administratrix, classing herself as a mortgage creditor for the amount of her paraphernal property. The tableau was opposed by Antoine E. Mouton, an ordinary creditor, on several grounds, and among others : first, that the widow had rendered herself personally liable for the amount of his claim, in consequence of acts of intermeddling; and, secondly, that she was in law entitled to no mortgage to secure the reimbursement of her paraphernal effects. The administratrix excepted to answering to that part of the opposition, which charged that she was personally liable for the debts of the succession. The exception was sustained ; and issue having been joined on the remainder of the opposition, a judgment was rendered, in. which the amount of the widow’s claim was ascertained, and her right of mortgage recognized. From this judgment Mouton has appealed.

The judge did not, In. our opinion, err, in maintaining the exception of the administratrix. If she has rendered herself liable by acts of improper interference, the liability is one personal to herself, which must be enforced in a separate action. In presenting a tableau of distribution she appears in her representative capacity, and in the litigation which may arise upon it, can only be held to a strict accountability for the property confided to her administration.

The evidence shows that the amount of the widow’s claim has been correctly ascertained by the judge. The tacit mortgage of the wife to secure the reimbursement of her paraphernal effects alienated by her husband, has been repeatedly recognized. The registry of such mortgages is not indispensable to give them effect against third persons. Fisher v. Fisher, 2 An. Rep. 774. Cane v. Alley, 2 Ib. 918, and the authorities there cited.

Judgment affirmed.


author: Ring, J.

text:
    Petrie v. Wofford et al.
    A minor, whoso father is dead and who resides with his mother in. another State, is properly rep" resented by a curator ad hoc, in an action in which it is prayed that he may be joined as one of the plaintiffs, when his mother has never been confirmed or sworn as his tutrix, and he is unrepresented here or elsewhere by any tutor or guardian. C. C. 116. Until her confirmation and oath as tutrix, the mother was incapable of representing him. O. 0. 328.
    Where after the dissolution of the community by the death of- the wife, the husband neglects to cause any partition to be made, and subsequently administers the common property, he will be liable for one half of the nett revenues of the community property from the date-of the dissolution of the marriage. Sums due on contracts bear interest from judicial demand though unliquidated; but, in a case like the present, where the judgment includes the revenues to the date of the decree, interest can only be allowed from that date, and not from judical demand. _ '
    After the dissolution of the community by tlie death of the wife, the surviving husband can sell only his interest of one half in a slave belonging to the community.
    APPEAL from the District Court of St. Mary, Overton, J.

      Brent, -and J. W. Walker, for the plaintiff.

      Splane, for the appellants.
   The judgment of the court was pronounced by

Ring, J.

The defendant, W. W. Wofford, intermarried, about the year 1807, •with'Eugenie Lignon. The latter died in 1813, leaving three children, viz t William W., Lewis, and the plaintiff, issue of the marriage, all of whom war® minors. The succession of the deceased consiste'd of separate property received during the marriage or previously owned by her, and of one half of the community. The husband is not shown to have had any separate estate. No inventory was ever made of the succession of the deceased. The entire property of which it was composed remained in the possession of W.W. Wofford, who administered it as his own, and appropriated to his own uses all the revenues derived from it, up to the commencement of this suit. Amongst other property belonging to the community was a slave named George, whom the defendant, W. W. Wofford, sold in 1843, to James N. Wofford, a son by a second marriage. LewisWofford, died, leaving a minor child, who, with his mother, resides in the State of Pennsylvania. William W. Wofford, the remaining heir, died in this State, in 1842 ;and having previously expressed a desire to devise his estate to his sister, the defendant made a renunciation in her favor of the portion to which he was entitled as an heir of his son.

The plaintiff instituted the present action for a partition and settlement of her mother’s succession, claiming the portions which she derived, as well by inheritance, as in virtue of the renunciation made by her father in her favor, and prayed that her father should be decreed to account for the fruits and revenues derived from the property of the succession, of which he had had the administration and enjoyment since her mother’s death. She further claimed the recision of the sale of the slave George. A curator ad hoc was appointed to represent the absent minor co-heir, who joined the plaintiff in her demands against the defendants. The judgment of the-lower court awards to the plaintiff and minor ¡¡>3442, as the full sum to which they are entitled from the succession of their ancestor, with legal interest from judicial demand’ and decrees a partition between them in accordance with their respective rights. The sale of the slave George, was also set aside for an undivided interest of one half; and J. N. Wofford, decreed to pay half the value of his services from the date of the transfer to him, with interest from judicial demand. From this judgment the defendants have appealed. t

The appellants contend : 1st. That the absent minor co-heir was not legally represented by a curator ad hoc. 2d. That the evidence does not support the judgment, for an amount so large as that rendered by the district judge. 3d. That interest was improperly allowed. 4th. That the judge erred in setting aside the sale of the slave George.

I. The minor has, in our opinion, been properly represented in this litigation. It is admitted that he resides with his mother in the State of Pennsylvania. The appellants themselves aver that, the mother has never been confirmed or sworn as his tutrix, and as far as appears from the record, the minor is unrepresented here or elsewhere by a tutor or guardian. Until her confirmation and oath as tutrix, the mother was incapable of representing her child in this action. C, G‘. art. 328. 11 Bob. 503. The minor then stood unrepresented at the inception of this suit; and, in such cases, our laws authorize the appointment of a curator adhoc to defend his interests. C. C." art. 116.

II. III. ¥e thjnk that the sum-ascertained to be due by the judgment is fully sustained by the evidence. The amount is composed not only of the value of the separate property of the wife, and of her half of the community, but also of one half of the nett revenue .derived from the latter since the dissolution of the marriage, and for these revenues, by our well settled jurisprudence, the defendant, W. W. Wofford, was answerable in consequence of his failure to provoke a partition of his wife’s succession at her death, and of his subsequent administration o'f the common property. Broussard, v. Bernard, 7 La. 224. The decree for interest from judicial demand, however, is, in our opin-. ¡on, erroneous. We have hitherto held that sums due on contracts bear interest from judicial demand, although unliquidated. 2 An. 878. But, in the present instance, the judgment includes the revenues derived from the property which forms the subject of controversy, up to the date of the decree, The effect of the judgment is to award both revenues and interest from the default. In this respect the judgment must be amended.

IV. The sale of the undivided interest of one half of the slave George, was properly annulled. This slave formed a part of the community, and the defendant could only validly alienate the interest of one half which he owned.

It is, therefore, ordered that, so much of the judgment appealed from as decrees that the defendant, W. W- Wofford, pay five per cent interest from judicial demand on the sum of $3442, and that James N. Wofford, pay like interest from judicial demand on the sum of $315, be reversed. It is further .ordered that, the said W. W- Wofford and James N. Wofford, pay five per cent interest from the 16th day of June, 1848, on the aforesaid sums by them respectively due. In other respects, the judgment appealed from is affirmed, the appellants paying the costs of the court below, and the appellees the costs pf this appeal,


author: Existís, G. J,

text:
    Le Blanc v. Guidry et al.
    Where a wife sues her husband for a separation of property, and restitution of her separate estate, commencing her proceedings by attachment, and judgment is rendered in favor of the husband, the community of property and conjugal relations being left jn their integrity, no action can be maintained by the husband against the surety ,on the attachment bond, for .damages.
    APPEAL from the pistrict Court of Layette, Overton, J.

      Mouton, for the plaintiff.
    It is contended that the attachment bond being ¡void as to the principal, cannot be enforced against the surety. According to the general principles..of law, this would be correct; but this case is an exception. It }s true that suretyship can only be given for the performance of a valid contract; but one may become surety for an obligation from which the principal debtor might get a discharge, by an exception personal to him, such as that of being a minor or married woman. C. C. 3005. Art. 3029 of the Code says that, the surety can oppps.e to the creditor all the exceptions belonging to the principal debtor, and which are inherent in the debt; but he cannot oppose exceptions which are personal to the debtor. Pothier says: “La nullité de I’obligation passé.e par la femme, n’étant aujourdhui que relative, celie du fidejusseurdoit étre yalable.” Pothier, Obligations, vol. 1, no. 194. Toullier is of the same opinion. Vol. 6, no. 393, 394. But this question has already been .decided in the case of Leckiey. Scott et al, 10 La. 416.

      Nicholls, for the .appellant.
    The policy of our law declares the wife and husband incapable of contracting with one apother .except in certain cases. A .contract of this kind would be destructive of domestic peace and contrary to good morals. The law, so long .as the community exists, regards the husband and wife as one, apd as possessing a common interest. The obligation contracted by the wife in favor .of th.e husband, was one reproved by the law, and .to which the surety could not accede. Any damages.recovered against the surety formed a part of the community of acquets. .0. C. 1784, 2214, 3215.
    Pothier, on Obligations, in defining the rights of sureties says: “As the ¿obligation of sureties is, according to our definition, an obligation accessory to that of a principal debtor, it fojlotys that it js of the essence of this obligation that, there should be a valid obligation of a principal debtor; consequently if the principal is not obliged, neither is the surety, as there can be no accessory without a principal obligation; the rule of law being: ‘ Cúm causa principalis non consistit, ne ea quidem quse sequuntur, iocumhabent.” ’NTo. 367. He states that surety cannot make a valid accession to the obligation of a woman, who obliged herself contrary to the prohibition of the Senatusconsultum Velleianum ; that, the obligation being contracted contrary to the prohibition of the law, is, in point of law, regarded as null, and, consequently, cannot serve as .a foundation to the obligation of a surety.” No. 395. Also, that, the engagement of surety on an obligation contracted by a married woman without being authorized, is n,ull and void.
   The judgment of the court was pronounced by

Existís, G. J,

Thjs is a suit brought by the plaintiff,on an attachment bond, in which he claims damages against his own wife, who" is made a defendant, with her surety, J. B. Guidry, for the wrongful suing out of this writ. This writ was obtained at the instance of the wife, -in a suit which she had instituted against the plaintiff, her husband, for a separation- of property, and a restitution of her separate property. In this suit she completely failed in making out a case against her husband, and final judgment was rendered in his favor. The district judge rendered judgment against the surety; Guidry, for the sum of Si>335, with interest and costs, dismissing the suit as to the wife of the pjaintiif. Guidry has appealed.

It seems to us thatthe defendant is bound to'indemnify the plaintiff for damages sustained by him in consequence of the unlawful issuing of the writ, inas? much as he bound himself by his bond so to do, and the contract is certainly a valid one, and can be enforced in law, so far as the surety is concerned. Had a separation from bed and board been decreed between' these parties, the right of the plaintiff would have been definite and distinct; nor are we aware of any impediment to its being enforced. But the community of property, and the conjugal relations, subsisting between the plaintiff and his wife in their integrity, we think the institution of this suit is in direct conflict with the latter. It is a mode of chastising the the wife over the back of her surety, which is not consistent with the duty which the law imposes on the husband towards his wife. In this c&se the damage sustained is far below, in amount, the sum fixed as the minimum of the jurisdiction of the District Court, and the interests of the family require, that matters of this kind should not be made the subject of public recrimination and accusations against the wife, for the purpose of putting money into the pocket of the husband. >

The judgment of the District Conrt is, therefore, reversed, and judgmeqj; rendered for the defendant, with costs in both courts,


author: Sx.idf.lIj, J.

text:
    Succession of Bernard.
    The appointment of a legatee as dative testamentary executor, in compliance with the desire of all the other heirs except one who is silent, where the evidence suggests no doubt as to Ms fidelity, capacity, or fitness, will be considered as a proper exercise of the discretion vested in the judge by art. 1671 of the Civil Code.
    APPEAL from the District Court of St. Martin, Voorlúes, J.

      Brianl and Be Blanc, for the appellant.
    Heard,"contri."
   The judgment of the (court was pronounced by

Sx.idf.lIj, J.

The testatrix survived the executor named in the will; and, under article 1671 of the Civil Code, the appointment of a dative testamentary executor devolved .upon the court. The Codeis silent as to the formalities which are to precede, and the considerations which .are to guide the judge in making, the appointment. We are not prepared to say that courts, in such eases, may not properly consult the analogy of the provisions of the Code upon the subject of administrators and curators.

The imperative language of article 1116 of the Code, which commands the judge, where there are several claimants, to appoint two, (if otherwise applicable,) cannot control the present case, because the estate appears from the inventory to be worth less than $3000. Article 1q36, which treats of the administration of estates where the heirs are present, seems more pertinent to the present case, than provisions textually applying to vacant successions. It authorizes the judge to select one or two from among the beneficiary heirs of age and present in the State.

We recognize the correctness of what is said by the counsel, that where discretion is vested by law in the judge in a matter of this sort, it contemplates a sound legal discretion, and not a purely arbitrary one. The question then is, has the discretion been improperly exercised in this easel We are not prepared to say so. It is true that the appellant is the legatee for one-third of the estate. But, on the other hand, all the other heirs, exeept one, who is silent, had expressed their desire'that the person whom the judge has chosen should be appointed ; and we find that the estate is a small one, consisting merely of landed property. There is nothing in the evidence to suggest a doubt as to the fidelity, capacitj, or fitness of the person appointed.

Judgment affirmed.


author: Existís, C. J.

text:
    Houston v. The Police Jury of St. Martin.
    Damages may be recovered against a police jury for injury sustained in consequence of any illegal obstruction to the navigation of a river, resulting from neglect in the management of a draw-bridge by persons for whose acts the jury were responsible. '
    ÁPPEAL the District Court of St. Martin, Voorhies., J.

      Brent, for the plaintiff.

      MagilL and Simon, for the appellants.
   The judgment of the court was pronounced by

Existís, C. J.

This suit was instituted by the plaintiff, who was the proprietor of a large boat, fitted up for the exhibition of wax figures and theatrical performances, and also for the sale of goods, and the residence of the family of the petitioner. She alleges that she followed her business, and gained her livelihood by the means that this boat afforded, upon the different navigable streams of this State ; that, for this purpose, she ascended the river Teche as far as the town of St. Martinsville, but was prevented from proceeding higher up the river, where she intended to go, by a bridge constructed across the river by the police jury of the parish of St. Martin, and that, after her boat was permitted to pass the bridge, it was obstructed and detained on it its way down. She claims of the parish of St. Martin the sum of $1,700 damages, suffered by her in consequence of this obstruction. There was a verdict in favor of the plaintiff for $600, and the parish of St. Martin has taken an appeal.

It does not appear that the defence assumes any right on the part of the defendants to interfere with or obstruct the navigation of the river. The obligation of having the draw of the bridge opened, whenever it is necessary to enable a boat to pass, is recognized. This bridge has been constructed for many years. If it was a nuisance, or if the rights of the public were injuriously affected by it, the grievance has escaped the attention of the authorities of the State, and the grand juries of the parish.

The enquiry, in this case, seems to be confined to the particular neglect on the occasions stated in the petition, in not opening the draw for the passage of the plaintiffs’ boat, and the damage suffered in consequence thereof.

From an examination of the evidence we have come to the conclusion, that there was neglect on the part of those for whose acts the parish is responsible, and that the parish is bound to repair the damage caused thereby. But the damages allowed by the jury we consider as excessive, and entirely unauthorized by the facts of the case. $100 is the maximum which, under the whole evidence, a court ought to sanction.

The bills of exception taken by the counsel for the defendants, we have not noticed, as we have preferred to close the case by a judgement on its merits.

The judgment appealed from is, therefore, reversed ; and judgment rendered for the plaintiff for the sum- of $100, with costs,- the plaintiff paying the costs of the appeal.


author: King, L,

text:
    Miller v. Thompson.
    Wherever a tract ofland is entirely surrounded by other estates, whether they belong to one or more proprietors, and there is no way from it to a public road, the law gives the owner an absolute right to a servitude of way, which must be generally taken on the side nearest to the public road- (O. O. 696, 697); and this rule should only be departed from for weighty considerations. But the most direct course may be deviated from in the construction ofthe road, with a view to render the servitude less onerous to the land over which the road is laid out; and the proprietor of the land over which it passes is entitled to indemnity for the injury sustained by him from its construction.
    from the District Court of St. Mary, Voorhies,- J.

      Nickolls and Brent, for the plaintiff.

      Magill andi Gibbon, Sor the appellant.
   The judgment of the court was pronounced by

King, L,

The plaintiff has instituted this action to compel the defendant to grant him a right of way over his land to the public road. The jury to which the cause was submitted gave a verdict in favor of the plaintiff, granting him the right of way claimed, and awarding $460 as the indemnity to be paid to the defendant, From the judgment rendered upon this verdict, the defendant has appealed. The defendant resists the plaintiff’s claim: first, on the ground that his lands do not enclose the plaintiff’s on all sides; secondly, that the plaintiff may procure, elsewhere, a way equally convenient to himself, and less injurious to other proprietors; and thirdly, that the plaintiff has failed to show a necessity for the right of way claimed. The plaintiff prays that the judgment may be amended, by granting him a road still more direct, and by reducing the damages.

The laud of th8 plaintiff, for which the right of way is asserted.is entirely surrounded by lands of other proprietors, rendering access either to the public road or to the bayou Teche impracticable, without passing over the lands of his neighbors. It is true that the defendant is not the proprietor of all the surrounding tracts. But neither the text, nor the spirit of the articles of the Code involved, require that the proprietor, from whom the right of passage is claimed, should be the owner of all the lands which enclose the estate claiming the servitude. This is clear from article 6'9G, which provides that, ‘1 the owner of the estate which is surrounded by other lands, has not the right to exact the right of passage from which of his neighbors he chooses,” evidently contemplating that the right may be claimed for an estate enclosed by several different proprietors. The terms of the succeeding article, (G97) leave the point equally free from doubt. The reason and policy of the law in both cases are the same, and would require this interpretation even if the language of the text were less explicit.

The right of the plaintiff to the servitude claimed, depends, as has been correctly urged, on its being made to appear that a necessity exists for a way to a public road. That necessity is established when he shows, as has been satisfactorily shown by the evidence, that he is enclosed by other estates, and has no exit to the public road. These facts appearing, the law grants absolutely the right, and prescribes the manner in which it is to be exercised. The 696th article of the Code declares that, “ the passage shall be generally taken on the side where the distance is the shortest from the enclosed estate to the public road 5 nevertheless, it shall he fixed in the place the least injurious to the person on whose estate the passage is granted. Toullier, commenting upon the corresponding articie of the Napoleon Code, says, the rule which grants the shortest road ought only to be departed from for weighty considerations. The evidence shows that the nearest point of the plaintiff’s land to the public road is about a mile and an half distant. The road, which the defendant insists shall be given, is three and three-quarters miles in length, passing over the lands of various proprietors, not parties to this suit, but subjecting the defendant to less inconvenience. The jury established the right of way upon the former, deviating slightly from the most direct course, with a view of rendering the servitude less onerous to the defendant, and we are not prepared to say that they erred. If they had indicated the longer road, the plaintiff would have been driven to claim a right of way from other proprietors whose land it traverses, who would probably have resisted his demands, and we are not prepared to say unsuccessfully, on the ground that a much shorter passage to the public road could be obtained over the lands of the defendant. 3 Toul. sec. 548.

At the same time that the shortest way has been granted, the jury have paid due regard to the rights of the defendant, by fixing it on the side line of his land, where it will be least injurious.

Under the evidence, we do not consider the sum awarded by the jury to indemnify the defendant, unreasonable. Judgment affirmed*


author: Rost, J. Slideli,, J.

text:
    Snoddy v. Brashear et ux.
    The action of rescisión for lesion beyond a moiety is personal to the original vendee, and cart., not be maintained against a subsequent purchaser in good-faith. Art. 1871 of our Code iff substantially the same as art. 1681 of the Code Napoleon, from which our law on the subject of lesion beyond moiety was taken, with the exception that the provision in relation ter third persons hds been entirely omitted.
    APPEAL from the District Court of Avoyelles,- King, J.

      Elgee and Hyams, for the plaintiff,
    cited C. C. 25S7 el seq. Pothier, Vente, nos.-332* 334.

      Taylor and Swayze, for the appellants.
    The action of lesion is limited to the original vendee. 11 Mart.
   The following opinion of the court Waff pronounced, on the first hearing of the case, by

Rost, J.

The plaintiff sues for the rescisión of a sale of land made by her to the defendant, C. D. Brashear, on the ground of lesion beyond moiety. The petition alleges that Eliza, the wife of C. !>■ Brashear, has now the legal title, having purchased the laud át a sheriff’s sale made of it as the property of her husband. Judgment is asked against both the defendants. They filed a general denial, and C. D. Brashear set up -other grounds of defence, which it is not necessary to notice. There was judgment in favor of the plaintiff in the first instance, and the defendants appealed.

The counsel for the defendant, Eliza E. Brashear, has made the point that, under the provisions of the Civil Code, the action of rescisión on account of lesiou beyond moiety, is personal to the original vendee, and cannot be main» tained against a subsequent purchaser in good faith. -

Elgee, for the plaintiff, for a re-hearing.

The court maintains, as the basis of its opinion, that the action for rescisión on account of lesion is a persona! action, and restricted to the first purchaser. It admits that the question was much controverted amongst the civilians, and concedes that the “ common opinion” was favorable to its being considered as a real action. Voet and Fachinceus are stated to have entertained a contrary opinion.

It was a controverted point among civilians, whether, under the roman law, this action reached bond fide third possessors. Voet and Fachinoeus, two of the ablest of them, were of the opinion that it did not, and that it was purely personal to the first vendee. This was not, however, the common opinion. See TroploDg, De la Vente, no. 801, and the authorities there cited.

In France, before the adoption of the Napoleon Code, the action of rescisión was allowed against third possessors, and the concluding part of article 1681 of that body of laws implies its maintainance under the new system. The dispositions of our Code on the subject of lesion beyond moiety are taken from the Napoléon Code, and article 1681 of that Code is substantially the same as article 1871 of ours, with the remarkable difference that the provision in relation to third possessors has been entirely omitted. This omission was not unintentional; and, in our opinion, justifies the belief that the legislature intended to restrict the action to the party to the contract which gives rise to it. The action thus limited, is analogous to that which the vendor of moveable effects has to enforce a privilege upon them for the price, so long as they remain in the possession of the vendee.

In the case of Bradford’s heirs v. Brown, 11 Mart. 217, the former Supreme Court held the action to be personal to the first vendee ; and, in default of any provision of law upon which the liability of subsequent purchasers can be based, that case appears to us a correct application of the rule that, the title of an honest purchaser is not affected by the latent equities existing between the previous holders of the property, purchased.

We cannot distinguish this case from that of Richardson v. Hyans, 1 Ann. Rep. 287. In that case there was a declaration of Winn, on the public records of the country, acknowledging an unencumbered title in Friend, to lands purchased by Winn from the United States. After the land had passed into the possession of third persons, we held Winn bound by his declaration, although it was shown to have been made without consideration. The only difference between the two cases, is, that the present plaintiff received nearly one half the value of the land sold by her, while Winn received nothing whatever for the transfer he made. This difference cannot surely affect the principle of the decision, or modify it in favor of the plaintiff’s claim. See 9 La. 290. 11 La. p. 408.

The plaintiff alleges the legal title to be in Eliza E. Brashear; she contests neither her capacity nor her good faith. 'Eliza E. Brashear is to all legal intents a third possessor; her husband was the master of the community ; the property in controversy was sold as his own to pay debts, which he was, under all circumstances, bound to pay; his wife had no title to it before her purchase, and could not, therefore, have been affected by latent equities existing between the plaintiff and her husband.

Same Case- — On an Application fob. a Re-hearing.

To understand the question properly, our first enquiry must be, what was a real action in the roman law, and what a personal», and then apply the test to the case at bar. “ Actio realis dicta. est ex re, quse" petitur ; puta quando quis nullo jure mihi obligators est, sed volo illi questionem super aliqua re movere. Personalis dicitur, quando persona obligate est.” The real action is defined by Pothier: “Est celle que celui qui est propriétaire d’une chose, ou qui a quelque droit dans cette chose, a contre le possesseur, pour qu’il soit tenu de lui délaisser la chose, ou de le server ou laisser jouir du droit qu’il y a, L’action personelle est celle qu’a un créancier contre son débiteur, pour qu’il soit tenu d’accomplir l’engagement qu’il a codtracté envers lui. L’action í'éelle, qui nait d’un droit que quelqu’un a dans lachóse, suit lachóse, et se donne contre ceux qui la possédent.” These definitions have been closely followed in our Code of Practice.

In the case before the court, it is the land w'hich is claimed, the thing itself; and this feature is peculiar to the action of lesion, that whilst the vendor must bring his action for the property, the vendee or third possessor has the faculty or power oi resolving it into a personal liability by assuming to pay the just price. So entirely free was this form of action from havingany thing personal in it, that it was, and is, considered entirely immaterial whether the purchaser was in good or bad faith, the simple question being, whether the price paid was less than one-half of the fair value of the thing. Domatsays: “Cette rescisión, á cause de la vilité du prix, est indépendante de'la bonne ou mauvaisefoi de l’acheteur; et soit qu’il ait eonnu ou ignoré la valeur de la chose vendue, il suffit pour résoudx-e la vente, que le prix soit nxoindre que la moitié de cette valenr.” And the Code: “ Etsi nullus dolus intercessit stipulantis sed ipsa res in se dolum habet.” The defect in the conti'act was so great that, in the eye of the law, the pui’chaser was not considered as having acquired any property in the thing sold; there was dolus re ipsa, and the court upon proof thereof directed the party, whether purchaser or third possessor, to pay the fair value of the property or give it up. Vide Tx'oplong, Con. de Vente, no. 801-2.

It was, indeed, a contested point amongst the commentatox-3, whether the rescissory action should not first be bi'ought against the original vendee,and then, upon judgment being obtained, a new suit be instituted against the third possessor. The opinion -is now well fixed, that both, as in the present instance, may be sued together. See Ti'oplong, loc. cit. But no doubt was ever entei-tained by commentatox-s, excepting Voet and Fachinosus, but that the third possessor could be sued; and even Voet himself admits, that where there was evident collusion, it might also be done. Pothier, Con. de Vente, no. 356, says: “Cette action est, actio utilis in rem; elle doit s’intenter conti'e colui qui est en possession de l’héritage, soit que ce soit l’acheteur, soit que ce soit un tiers détenteur á qni cet héxñtage est passé. Troplong is to the same effect.; he says that Voet and Fachinosus have deviated from the genoi’ally received opinions in relation to the ancient jurisprudence on the subject, which, he asserts, “alors comme aujourd’hui autoxisait Taction en rescisión contre un tiers possesseui-, suecesseur á titre particulier.” The opinions of Pothier and of those with whom he concurred, were based upon a law precisely similar to ours. The Code of 1825, when treating of lesion, quotes vex-batim the language of the Code of 1808, whilst, in its turn, the language of the Code of 1808 is precisely what the law was in France priox: to the promulgation of the Code Napoléon. See Domat, Con. de Vente, Pothier, &c. If it be true, that the action of lesion is an action against the thing itself; if it be true that the plaintiff has, in the present instance, sti'ictly pursued the law, and merely claimed her px-opei'ty, and these points cannot be denied, it is impossible to see how such proceedings can be considex-ed personal actions.

The court does not undertake to decide the question x'aised by Voet, and so triumphantly refuted by Charondas and othoi’s. It leaves the question as it found it, writh this remark, that the opinion of Voet and Fachincous “ was not the common opinion.”

The opinion in this case is based upon a difference between art. 2569 of our Code and art. 1681 of the Code Napoleon. The hitter has this clause : “ Le tiers possesseur a le mónte droit, sauf sa garantía contre son veiidour,” and from its not being found in the Code of 1825, the court conclude that the redacteurs omitted it for some good reason ; and this reason the court assumes to be, that they were opposed to extending the action against third possessors.

The court admit, that, the insertion of this clause in the Code Napoleon did not alter the law us it existed in France prior to the adoption of the Code, but merely “ implied its maintenance under the new system that, therefore, if it had not been inserted in the Code Napoléon, the right would still have been maintained in France. If, then, the law in France, prior to the adoption of the Code Napoléon, admitted of this action against third possessors, and ours is now, and always has been the.same as the french law, for the Code of 1808 and that of 1825 are identically the same on this subject; and it is conceded that the provision annexed to art. 1(581 of the french Code introduced no new legislation on the subject, but was merely enunciative of the generally recognized doctrine on the subject, the casual omission of a clause, not necessary, under the existing french law, cannot be interpreted into an absolute legislative prohibition against the exercise of the action against third possessors. A more satisfactory reason than that advanced can be given for the incorporation into the text of art. 1681 of the Code Napoleon, of the clause relative to third possessors. When the 1681st art. was before the jurisconsults employed to frame the Code, Napoléon suggested the insertion of a new provision, differing entirely from the old, to wit, that the purchaser, if he preferred, might pay the supplement of the price, “sous la deduction du dixiéme du prix total." This new provision was adopted, and forms now a portion of art. 1681, Being the introduction of an entirely new provision, it is not unreasonable to suppose that the clause “ le tiers possesseur a le méme droit,” was added to remove any doubts which might arise whether the indulgence accorded to the first purchaser of paying the supplement of the price, subject to a deduction of one-tenth, should bo considered personal to him, or might be enjoyed by the third possessor. Our Code of 1825 does not contain the addition to the old law of “sous la deduction du dixiéme du prix total” ; and, therefore, the framers of it did not consider it necessary to add the words, “ le tiers possesseur a le méme droit.” Had the Code of 1825 never been framed, nor the Code Napoléon, we should be left to the Code of 1808 ; the french, to the civil law, as it existed in Pothier’s time. That law, upon the subjectof lesion, is the same as that which is to be found in the Code of 1808, and, therefore, the authority of Pothier and others, who wrote upon the subject, will be held as authority by us. The Code of 1825 left the law exactly as it found it, so that the old french civilians must be held to be good authority with us, on the point, up to the present moment.

The court compares art. 1681 of the Code Napoléon with art. 1871 of our Code. Art. 1871 has but little to do with the present enquiry. Art. 2569 is the article really corresponding to the 1681st of the Code Napoléon.

The limitation of the action of lesion to the original party purchasing, is assimilated to that of a vendor of moveable effects seeking to enforce his privilege upon them, which he can only do so long as they remain in the hands of the original purchaser. But art. 3194 declares positively that the vendor can only maintain his privilege “if the property still remains in the possession of the purchaser” ; while there is no limitation as to the person in the chapter treating of lesion in sales — the only limitation is ns to time, which is fixed at four years between majors, whilst between minors the prescription is suspended during minority. The very length of time given for bringing this action, is a strong and convincing proof, that the law-maker must have contemplated the possibility of the property passing into third hands; but, considering the vice go great as to attach itself to the tiling, it was permitted to the vendor to get it back, upon the legal inference that he had really never sold it; and so, as has been before stated, the civilians held that the action lay “ Etsi nullus dolus intercessit stipulantis, sed ipsa res in se dolum habet.” jD. 1. 18, cap. De Reseindenda Venditione.

The case of Bradford's heirs v. Brown, 11 Martin, cited by the court, was a petitory action, not ¡in action for the rescisión of a sale on account of lesion. The suit was brought against a third party (Brown) who cited in his warrantors, the heirs of Flower, who in his lifetime had purchased the premises in dispute from Bradford. On the warrantors’ offering in evidence the deed from Bradford, to their ancestor, the reception of it in evidence was objected to, because it was a nullity, lesion being apparent on the face of the instrument, the consideration being stated therein to be one dollar. The court merely say, that it could not be treated ás a nullity; that an action should have been brought to declare it void, leaving to the purchaser to make his election, either to give the property up. or pay the supplement of the just price. This was the question before the court, and thus was it decided. The dictum of a court on a question not before them, has never been held to be of any binding authority.

This court, however, say, in conclusion, that this, at most, is a latent equity, and that third parties, purchasing in good faith, must be protected. I am not disposed to question the general correctness of the principle, for which, however, no textual provision of the Code can be found, but, being a mere equitable conclusion, plain and obvious texts of law ought not to be defeated by it. The law has expressly given to the plaintiff four years within which to commence her action ; she has done so. The law expressly says that the action lies against the thing itself, not against the person ; she has so brought her action. The best commentators on our law have said that, being an action against the thing, it lies against the third possessor; and that, to avoid a circuity of actions, the original purchaser and third possessor may be sued at the same time ; the plaintiff has done so. The same commentators say, that the third possessor cannot complain, because he has his recourse in warranty against his vendor ; the same right is accorded here. It will be said, perhaps, that the limitation of four years is nothing, because ten are given within which to bring an action for the annulment of a .contract on the grounds of error or-fraud; and that no body will contend that the property passing into third parties’ hands, bond fide, can be affected by the error or fraud. This, no doubt, is an 'exception introduced for the security of titles and the peace of society'; though the true and real difference is to be found in this, that actions for the annulment of contracts on the grounds of error or fraud, are personal actions, while the action of lesion is a real action- — dolus re ipsa.

“ Cette action,” says Pothier, ,(est une action utilis in rem et non directa.” Con. da Vente, no. 331. But is lesion, in truth, a Intent equity ? Is it nota vice which materially affects the contract of sale ? 'The law certainly says it does. This vice, or defect, was not, in the present instance, hid from the eye of the honest purchaser! . The title deeds of the vendor exhibited this defect; it was patent — the error, vice, or defect, was spread upon the public records,

The judgment of the court on the re-hearing, was pronounced by

Slideli,, J.

After a careful reexamination of this case, which is obscurely presented by the pleadings and evidence, our minds are left in doubt whether the land purchased by Brashear was community property; and, if so, whether, at the time of the subsequent purchase at judicial sale by Mrs. Brashear, she had ceased to have an interest in the community. Bottfthese questions may be important in the decision of this cans.-. They may have a material influence upon the legal question, whether Mrs. Brashear can be considered as a third person, purchasing in good faith and exempt from liability. Without wishing to be considered as now expressing an opinion upon the legal question under the hypothesis that the property once belonged to the community, and that she had not ceased tp have an interest in the community before her purchase at sheriff’s sale, we think it best to remand the cause for further evidence. When principles of grave moment are involved, the court prefers riot to act upon an hypothetical or doubtful state of facts.

We will merely say for the present that, we adhere to the opinion that the action of lesion does not extend to third persons purchasing in good faith from the vendee; and that Brashear must be held personally responsible, if there was lesion, even if his wife’s purchase should be maintained.

It is, therefore, decreed that the judgment rendered by the court below be reversed, and that this cause be remanded for a new trial and for further pro» p.eedings according to law: the plaintiff paying the costs of this appeal,


author: Ebstis, C. J.

text:
    St. Andre et al. v. Rachal et al.
    Where two persons qualify as joint administrators of a succession, and there is no severance of their duties, they will he responsible, in solido, for the proceeds of the sale of the effects of the succession which have come into their hands. In such a case the administrator who seeks to relieve himself from responsibility for a dilapidation of the funds received, must show that it was occasioned by no neglect of duty on his part. There is no reason why the rule of responsibility in solido, established by art. 1674, incase of a joint administration by executors, should he confined exclusively to that class of administrators.
    Interest is due on any balance found to be owing by an administration to a succession, from the date of the judgment establishing the debt. The amount must be considered as due ex contractu.

    APPEAL from the Court of Probates of Natchitoches, Greneaux, J.

      Boyce, for the plaintiffs,
    cited 9 Rob. 282. 1 An. 214. C. C. 1647. ■

      Sherburne and J. B. Smith, for the appellants,
    contended that administrators were not liable in solido. C. C. 2088.
   The judgment of the court was pronounced by

Ebstis, C. J.

This is an action of the heirs of the late Onezeme St. André, of the parish of Natchitoches, against the defendants, who were the administrators of the succession, for an account of their administration and the balance due. Judgment was rendered against the defendants in solido, for the sum of ¡$>4096 62é. The accounts were referred, under an order of the court, to auditors. The judgment made some alterations in the report made by the auditors, and amended it accordingly, but allowed no interest on the amount due. The defendants have appealed.

The case was submitted to us at the last term, and has been held under advisement for the purpose of considering the questions of the liability of the defendants in solido.

One of the defendants only was served with process, the other, as is alleged, having absconded, but has appeared by counsel appointed. The appointment of the administrators was joint, and, from the answer of the defendant Morgan, it appears that he holds himself not liable to the plaintiffs beyond his virile share, in consequence of the appropriation of the funds of the administration to his own use by his co-administrator, and of his having acted in all respects as a prudent and honest administrator. As far as we can judge from the evidence the administration was joint, and we do not find that there was any severance of duties on the part of the defendants.

The proceeds of the sale of the effects of the succession came to the hands of the administrators; they ought to have been deposited in their joint names, or retained under the charge of both; neither had the exclusive right to retain them, nor do we find any evidence which ought to change in any respect the joint liability of each, which extended equally to the preservation of the whole fund.

The appellants rely for a reversal of the judgment rendering the defendants liable in solido, on article 2088 of the Code, which provides that obligations in solido are not presumed, but must be expressly stipulated. But the same article provides that this rule ceases to prevail, only in cases where an obligation in solido takes place of right, by virtue of some provisions of the law. The principle of article 2088 existed in the roman Jaw, but there were exceptions to it. There were several cases in which solidarity between debtors was implied ; for instance the obligation contracted by several tutors undertaking the same tutelage, or by several persons engaging in some public administration. Pothier on Obligations, § 266, 267.

In the present case, the funds of this succession being in the custody of both administrators, no portion of them could be diverted by one without the neglect or consent of the other. Whether the defendants are' liable from having received money, or for neglect in not attending to its proper custody or appropriation, is not material in the present case.

Article 1674, providing for one of several executors acting under the solidary responsibility of all, unless the testator has divided their functions, and each has confined himself to that allotted to him,' presupposes the solidary obligation in cases of a joint administration on the part of executors. Doriocourt v. Jacobs, 1 An. 214. There is no reason for an exception exclusively for this class of administrators, and, we think, that, in a joint administration of a succession the party who seeks to relieve himself from responsibility for a dilapidation of the funds received, must show that it was occasioned'by no neglect of duty on his part. It has not been done in this case, and we think, the judgment appealed from is correct in this respect.

The accounts between the parties were quite complicated; even the auditors failed to adjust them; but on the decree of the court the account must be considered as due ex conctractu, and bears interest from that date. Vide Petrie v. Wofford, ante p. 562.

As to the allowance of commissions, vide 1 Rob. 400, and Succession of Milne, 5 Rob. 48. The judgment must be amended as prayed for in the appellees’ answer, as to the interest only. It is therefore decreed that the judgment of the District Court be amended, allowing interest from the 12th March, 1846, it being affirmed in all other respects, and that the appellants pay the costs of this appeal.


author: King, J.

text:
    The State v. Sewall.
    Where a district judge, before whom a prisoner charged with an offence punishable with more than seven years’ imprisonment at hard labor, is brought on a writ of habeas corpus, admits him to bail, ordering the surety to be 'judged of and- accepted by a justice of the peace named in the order; the surety, when sued on the bond, cannot exonerate himself from liability on the ground that a justice of the peace could not admit to bail one accused of such an offence. The prisoner was admitted to bail by-the district judge, who was authorized to delegate to his clerk or a justice authority to accept the bond.
    APPEAL from the District Court of Caddo, Compelí, 3.

      Barry, district attorney, for the State.

      Crain, Elgee and Hyams, for the appellant.
   The judgment of the court was pronounced by

King, J.

C.M. Seioall, being in close custody under.,a charge of having in his possession and of uttering counterfeit bank notes and coin of the United States, was brought before the district judge upon a writ of habeas corpus. The judge admitted him to bail, and ordered “ the security to be judged of and accepted by the sheriff of the parish of Caddo, or J. Clinton Beall, Esq., justice thereof.” The bond was executed before Beall, accepted by him, and returned into court, The grand jury subsequently found a. bill of indictment against Sewall, for uttering a counterfeit gold piece, resembling the current coin ol the United States. During the same term of the court Sewall was called, and failing to appear to answer to the charge, his bond was declared forfeited, and a judgment, in solido, rendered against himself and his sureties, for the amount. From that judgment Hamilton, one of the sureties, has appealed.

It is contended that, as the offence with which Sewall was charged, is punishable with more than seven years imprisonment at hard labor, Beall, the justice, was without authority to take bail; and the case of the State v. Hebert, 10 Rob. p. 41, and the statute of 31 March, 1807, B. and C.'s Dig. p. 530, are relied on, in support of the position.

ft is true that justices of the peace are not authorized by the act of 1807, to admit to bail persons charged with offences punishable with death, or with imprisonment at hard labor for seven years or more; and that the crime with which Sewall was charged, is punishable with over seven years imprisonment. B. and C.’s Dig. 244, § 14. But the accused was not admitted to bail by the justice of the peace, but by the district judge, who could legally delegate to his clerk, or to a justice of the peace, authority to accept the bond. See case of State v. Jones, ante p. 9. This act of the justice, in the present instance, was the act of the court.

The case of the State v. Hebert bears no analogy to the present. In that case, the justice of the peace admitted the prisoner to bail in violation of an express statute. In the present, he was admitted to bail by a competent judge..

Judgment affirmed.


text:
    The State v. Jerry.
    After conviction ci a slave tried for murder before a tribunal organized under the stat. off Jase, 1846, judgment will not be arrested on the ground that he was not arraigned, and did not plead to the charge, where the record shows that he was defended by counsel, and the court state that he was convicted after an impartial trial. Under the stat. of 1846, objections not relating to the substance of the prosecution cannot be considered on appeal.
    Where the day fixed for the execution of a sentence of death pronounced against a slave convicted before atribunal organized under the-stat. of 1 June, 1846, passes by, pending an appeal, the Supreme Court have no power to fix another day.
    APPEAL from a sentence pronounced by a tribunal organized tinder the stat. of 1 June, 1846, for the trial of a slave in the parish of Natchitoches, Barry, District Attorney, for the State.

      J. B. Smith, for the appellant,
    cited Starkie, Crim. PI. ch. 18, p. 337. 4 Black. 329. Bui. & C.’s Dig. p. 57, s. 1; p. 248, s. 36.
   The judgment of the court was pronounced by

King, J.

The accused, who is the slave of St. Anne Prudhomme, was charged with murder, and tried by a tribunal organized tinder the act of 1846, (Acts, p. 114). No counsel having been previously provided for him, he was defended by an advocate appointed by the court. After his conviction, he moved for an arrest of judgment, on the ground that he had neither been arraigned nor pleaded to the charge. The motion was overruled and he has appealed, relying on the ground stated in his motion, for a reversal of the judgment.

The defects complained of are defects of form. The 14th sec. of the statute under which the accused was tried, provides, “ that no proceedings had in accordance with this act shall be annulled of impeded by any error of form therein.” Acts of 1840, p. 115, § 14. It is obvious that, under this statute, we cun con"' sider no objections which do not relate to the substance of the prosecution.

The record shows that, the slave was brought before the tribunal to answer to the charge preferred against him, that he was defended by counsel appointed for the purpose, and the court state that he was convicted after an impartial trial.

The day fixed by the lower tribunal for the execution of the sentence of death, which was pronounced, has elapsed, and we are requested to fix another clay-No such original power is conferred upon the court, as that which we are called upon to exercise. Judgment affirmed.


author: Smdell, J.

text:
    McKinney v. Chambliss et al.
    An officer who seizes the property of a party under” an order void oh its face, and those who” aid him in doing so, will be liable to the owner in damages.
    APPEAL from the District Court of De Soto, Taylor, J.

      Campbell, for the appellant.

      S. P. Jones, for the defendants.
   The judgment of the court was pronounced by

Smdell, J.

The paper signed by a justice of the pe'ace, under which the property of the plaintiff was seized, was void on its face, and the anterior proceedings were also void. The constable who made" the seizure, and those of the defendants who are proved to have aided him in it, were, therefore, unprotected by any legal warrant, and are answerable in damages.

It is, therefore, decreed that, the judgment of the court below, except as to the defendant McCondhay, be reversed; and it is further decreed that Jacob Smith, administrator of John McKinney’s succession, do recover of the defendants Horatio Chambliss, Samuel Mather, John Cuihbersom, Joseph Ft Haden, and Warrick Ferguson, the sum of $90, with costs in both courts.


author: Eostis, C. J.

text:
    Thompson v. Kelso et al.
    An accommodation endorsee of a promissory note has no right, on being sued, to require the previous discussion of the property of the drawer.
    Where an accommodation endorser of a note joins in an act executed by the maker, 'and holder, before the maturity of the note, by which certain securities are given for its payment, and the time of payment is deferred,! declaring that he agrees to the arrangement, and holds himself liable for the final payment of the notes “ as endorser or security ” notwithstanding the postponement, and it does not appear from the terms of the agreement that any change was to he made in the' obligations of the debtors adversely to the creditor, the use of the words “ endorser or security ” will not he considered as releasing the endorser from the obligations of his endorsement, and binding him merely as a surety. As to the maker, he was merely as a surety; and the words must be considered as used in reference to him. O.O. SOUS,

      APPEAL by Thonvpson from a judgment of the District Court of Rapides, Cushman, J.

      O. N. Ogden, for the plaintiff.

      JElgee and Hyams, for the appellant.
   The judgment of the co.urt was pronounced by

Eostis, C. J.

This is an action by the holder, against Kelso, the drawer, and Compton, the endorser of three promissory notes. The defendant John Compton, alleges that, being merely an accommodation endorser or surety, he, is entitled to avail'himself of the plea of discussion, and has designated the property of the drawer, which he urges must be first seized and sold, and tendered an-amount sufficient to defray the expenses of the discussion. An exception to this effect was sustained by the district judge, who ordered the proceedings to be stayed against Compton, until-the property of Kelso, as- set forth in the plea, should be first duly discussed. The plaintiff has appealed, and the case has been argued at bar on the right of the defendant, Compton, to avail himself of the plea of discussion.

Compton was the endorser on the notes,- and was duly notified of the protest thereof. His obligation towards the creditor was not affected by the fact of the notes being what are called accommodation notes. He was as much bound by his endorsement as though they had been notes for value, and had no right whatever, on being sued, to require the previous discussion of the property of the drawer.

It is contended that his obligation on the notes was changed by a certain agreement entered' into between the plaintiff and Kelso,' in June, 1842, after the date of the notes, and before they became due.- By this agreement certain securities were given, and the time.,of payment of the notes was deferred till 1847, on certain conditions therein specified-. To this agreement Compton was a party. He appeared in'the act before the' notary, and declared that he agreed to the arrangement, and held himself liable for the final payment of said notes as endorser or security, notwithstanding any postponement. It is urged that> by virtue of this clause, Compton became a mere surety for the debt.

It certainly does not appear from the terms of this agreement, that any change was to be made in the obligations of the debtors, adversely to the creditor. The mortgage on land and slaves given by Kelso, was in order to secure the full and punctual payment of the debt, according to the tenor of the notes and the stipulations of the agreement, to which Compton acceded, and in the purpose of which he concurred. There was no stipulation for any ctíange in his obligation, and the effect which the district judge gives to the words endorser or security, appears to us to be in conflict with the evident intendment of the whole agreement. The construction which would release him from the consequences of his endorsement, and bind him as a mere surety, appears to us to force the words from their evident meaning in the relation in which they are used. True, Compton was endorser, and bound-as-such to the creditor, but as-to Kelso he was merely a party, and in that sense the word must be considered as used. Words must be construed in a sense in which they have effect to preserve and carry out an agreement, rather than in that in which a portion of them would be without meaning. All that can be said of this expression is that, Compton intended, by consenting to the arrangement, to preserve his position towards his creditor, and the debtor for whom he was bound.

But the employment of the words endorser or security would not, under any . fair construction, release him from his obligation as endorser. An endorser is considered as a species of surety, and the terms security debts are, in. common parlance, applied to endorsement's; and, unless there were some grounds for inferring aliunde the purpose of the-creditor to change the character of his debt and make Compton a mere surety, we do not think the words used would effect the change. C. C. 3008.

We think the judge erred in-sustaining the plea of discussion.

The judgment of the District Court is, therefore, reversed, the exception of the defendant overruled, and the case remanded for further proceedings ; .the appellee paying the costs of this appeal.


author: Seibeee, J.

text:
    Succession of M’Candless.
    A testament, disposing of moveables and immovables situated here, .made in another .-State of the Union, by a resident of this State, temporarily, absent from home, and who afterwards returned and died at his domicil in,this State, .if clothed with all the formalities prescribed for the validity of .wills in the place where it was executed, .will be valid here. C. C. 1588, 1589. Art. 1589 cannot be confined to the cases of foreigners, or of testaments disposing only of moveables; nor is there any inconsistency between it and art. 1581. Per Cwiam.. If a testament contnin.a substitution or fideicommissum, which our -law prohibits, we should hold such a disposition'null, though it might be valid by the laws of the State where made. But in what relates to the exteriorform, not the substance of the testament, nothing in our Code authorizes a distinction between moveables and immovables.
    The third clause of art. 10 of the Civil Code refers, not to the form, but to the substance of a testamentary disposition, permitting the validity of such a disposition of movables to be regulated by the laws.of a foreigner’s domicil.
    APPEAL from the District Court of R,apides, Cushman, J. The facts of this case are stated in -the opinion of the court, infrd.

    Flint.and McWaters, for the curator, appellant.
    The only .question in this case is, whether a citizen of this State, and who is actually in this State at the time of his death, can dispose, by will, of his property in this State, especially if immovable, except under the forms and in the mode perscribed by our laws. The counsel who maintain the validity of the will, rely on art. 1589 of the Code. This article, if it have any bearing on the case, only refers to non-residents, and not to citizens, and is checked and controlled by the general principles and plain provisions ol the Code, which clearly show that thelaws of this State never contemplated thatits own citizens should dispose of property within its limits, except under the forms prescribed by its own laws. It is.a general principle that, moveable property is governed by the law of the domicil of the owner; .it is an equally well established principle that immovable properly is governed by the lex rei slice. The third paragraph of article 10 of the Code, allows a citizen of another State to dispose by will of his property in this State, free of the trammels and forms of the law regulating the effect of acts passed in one country to have effect in another. The exception is as to moveable property. A citizen cannot dispose of immovable property situated in this State, in a manner different from the forms prescribed-by our laws. 2 R-ob. 258.
    -Our Code, after describing the forms necessary for the validity of nuncupative testaments by public act and under private signature! proceeds to enumerate those necessary for an olographic will. Art. 1581. To be valid, it must be entirely written, dated, and signed, by the hand of the testator. It is subject to no other form, and may be made anywhere, even out of .the State. Now, in -relation to the other three forms of wills, there is no similar provision that they can he made outof the State.. The maxim, “ inolusio unius estexclusio alterius,” -applies.
    An attempt is made in this case to escape the general principle of law that, mmovable property in a State can only be disposed of according to. the laws of that State, by contending that, this rule goes only to the.effect of an act purporting to affect real property, and not to the form of the act. This distinction is founded upon an assumed meaning of the word effect, and a forced separation of the formalities accompanying a will from the dispositions which it contains.' But a careful examination of the instances in which the word effect is employed in the Code, will show that no such meaning was attached to it by the lawgiver ; but that it was used to denote the entire operation and force of the act in every point of view, and not merely the dispositions of the act,. as distinct from the form in which they are clothed) The provisions of the Code from arts. 1590 to 1597 inclusive, show conclusively that no departure was ever contemplated from the fixed and prescribed forms of testaments, except in the cases embraced within the foregoing articles, none of which apply to this case.

      Elgee&aá Ilyams, contrá.
    The will is .clothed with the formalities prescribed •for the validity of wills made in the State of Mississippi. Civil Code 1589, 483, •1681. 6 Rob. 239. 5 Mart-N. S, 48.
    The defendant contends that, under article 483 of the Civil Code, the prohibition relates ,as well to the form as to the effect of the disposition, and that a will, •though made out of Louisiana, should be made according to the forms required ,by her laws. It is clear that this construction of art, 483, if true, would violate the provisions of art. 1589; and it has been decided to the contrary, in the .cases above quoted. See Story’s Conflict of Laws, sec. 372, note 2, pp. 623, 624, and 625; note no. 3 to sec. 474; sec. 371, b. c. d. e.; sec. 372, a. b.; sec. .435, note 2; sec. 437 a 439, 440 ; note 2 to sec. 441; sec. 441 a; secs. 442, 443, .443 a, 444, 444 a. IJe shows that, under the civil law, the form of the will is tobe decided according to the law of the place where made, whether it relates to moveables or- immovables situated in another country. This is the doctrine of our law whatever principles to the contrary may prevail in countries governed by the common law.
   The judgment of the court was pronounced by

Seibeee, J.

Hugh M/iCandless, a brother of the deceased, presented to the court at Rapides, charged with the succession, a will constituting him sole legatee, and prayed that it might be recognized as the last will of the deceased, .and executed accordingly. This the curator opposed, upon the ground that the •testament was null for defect of form.

The will was made in Mississippi, and it is admitted by the curator that it is .clothed with all the formalities required by the laws of that State. If, however, its validity in point of form be tested by our laws, it is conceded by the legatee •that the will is null. The succession of Me Candless consists partly of slaves, which our law considers as immovables, and partly of moveables. All were situated or found, at the time of his death, in the parish of Rapides, In that parish he had been domiciled for many years, and there died. In the year 1832, he went from Louisiana to Mississippi, apparently for a temporary purpose. He remained there a few months, and while there fell sick, and, on the day before he stai'ted for his home in Louisiana, he made the will. He continued after his return to be a citizen and resident of Louisiana, and died in Rapides, in 1845.

Our Code, after enumerating the three classes of wills — nuncupative, mystic, and olographic — and minutely prescribing the formalities to bo observed in making them, declares, in article 1588, that “ the formalities to which testaments are subject by the provisions of the present section must be observed, otherwise the testaments are null and void.” But the article which immediately follows, declares “ that testaments made in foreign countries, or in the States and other •territories of the Union, shall take effect in this State, [aupont leur execution dans cet Etut,] if they be .clothed with all the formalities prescribed for the validity of wills in the place where they have been respectively made.”

We find nothing jn these expressions which would authorize us in restricting •the article to the case of foreigners, or of moveable property. The language is ,unqualified, both as to persons and property; and fairly embraces wills made iibroad, by our own citizens, of immovables, situated within our territorial iimjts. Why should we make distinctions which the law has nof made ?

Slight reflection will show the impropriety, as well as illegality, of excluding our own citizens from the benefit of this provision. numerous class of them habitually leave the State for a short time during the hot months, for the purposes of health or pleasure. Others are called away from time to time by the necessities of business. A citizen thus absent may be visited by sudden sickness, and could rarely find in the other States .of the Union, mpch less in a foreign country, persons competent to advise him with regard to the formalities required by our law. It was therefore reasonable to permit him to adopt the solemnities known and required by the law of the country where lie is sojourning. To refuse him that privilege would be to deprive him, under certain circumstances, of authority over that which is his own, and which the law, as well as natural justice, permits him to dispose of.

But it is said that a previous article of the Code, in treating of the olographic will, and after having defined it as that which is entirely written, dated, and signed by the testator, and subject to no other formality, declares that, “ it may be made anywhere, even out of the State.” And, since in the relation to the other forms of will, there is no provision that wills made according to these forms out of the State shall be good, the rule “ Inclusio unius,” etc. is invoked. We do not see the force of this reasoning. -'The légatee asks that the will be sustained, not because it has the form of a nuncupative or a mystic will, but because it is a testament clothed with all the formalities prescribed for the validity of wills in the State of Mississippi, where it was made. If this h.ad been an olographic will made in Mississippi, the legatee would have asked its judicial recognition here, not because the laws of Mississippi recognize that form— which it seems they do noWbut because the lawgiver had said that the olographic will should be respected, even though made in a foreign country. There is no inconsistency between articles 1581 and 1589 ; and both must be so in,terpreted as to receive their full effect,

We have already observed that the language of article 1589 is general in its terms, and not restricted to particular kinds of'property. Nor do we find in ether parts of our Code, aDy language which would authorize us to confine to moveables, the operation of testaments made abroad in the foreign form. Unquestionably, in a proper sense, it is true that immovable property is controlled by the law rei silts. And if, for .example, this testament contained a substitution, or Bfideicommissum, which our law prohibits, we should hold such disposition null, even though it might be valid by the law of the State where the will was made. But in what relates to the exterior form, not to the substance of the testament, we find nothing in our Code authorizing a distinction between moveables and immovables.

The third clause of article 10 has been cited, but seems to us irrelevant to the present question. We understand the clause as referring,.not to the form, but to the substance, of a testamentary disposition, and permitting the validity of the testamentary disposition of mov.e.ables to be regulated by the law of the foreigner’s domicil.

We may remark, in conclusion, that article 1589, as interpreted, accords with what appears to be the prevailing doctrine of the continental jurists. See also jfi Robinson, 23i>. Judgment affirmed,


author: Slidell, J.

text:
    Martin v. Williams et al.
    Where several terms have elapsed since the suggestion of plaintiff's death, and the malting of an order authorizing the revival of the action in the name of her heirs, without any appearance by them or any one authorized to represent the succession, the court will, on motion, order a dismissal to be entered at .the next term, unless art appearance be entere d before that time.
    APPEAL from the District Court of Claiborne, King, J.
    No counsel appeared for the appellants.

      Peels and Herlzog, for the defendants.
   The judgment of the court was pronounced by

Slidell, J.

The transcript in this cause was filed in 1843. In 1845, the death of the appellant was suggested, and an order made authorizing the suit to be revived in the name of Lucinda Marlin's heirs. Since that period no appearance has been made by her heirs, or any one authorized to represent the succession of Mrs. Martin, or die persons for whom she sued as tutrix in this s.uit; nor, at the calling of the cause, has any counsel for the appellants appeared.

The appellees at the present term, have presented a notice for the dismissal of the appeal. The omission during so long a time to make an appearance and prosecute the appeal, justifies the application of the appellees ; and it is therefore. considered that, unless, at or befoi’e the opening of this court at its next term, due appearance be entered by the lawful representative of the deceased Lucinda Marlin, or by some person duly authorized to prosecute the said appeal, the said appeal will, on the first day of the next Alexandria term, be disnfissed.