text:
    H. McLean v. J. Fulford.
    Among the apparent defects which do not, under the Civil Code, give rise to the action of redhibition, must be classed the mental weakness of a slave approaching imbecility.
    PPEAL from the District Court of the Parish of Jackson, Richardson, J.
    Xi. Thompson & Defrance, for plaintiff. Reves, McGuire & Ray, for defendant.
   Buchanan, J.

Plaintiff sold defendant a slave, warranted sound in mind and body, in March, 1857, for eight hundred dollars, in two notes; one payable thirty days after the sale, and the other on the 1st of January, 1858, of four hundred dollars each. The first note was paid at maturity. This suit was instituted upon the other note in September, 1858.

Defendant pleads, that the consideration of the note has failed ; that the slave is so imbecile and unsound of mind, as to be entirely worthless; which fact was concealed from defendant by plaintiff.

The evidence of the redhibitory defect is vague. One of the two witnesses . called by defendant on this point, is a physician, who attended the slave for dysentery, in October, 1857. He says, “ I came to the conclusion, that if she was not imbecile, she was not far removed from it.” The other witness, a subscribing witness to the bill of sale, says that he has known the slave since 1851 or 1852, and “ did not think she was sound in body or mind, so far as I could judge.”

Prom the evidence given by these witnesses, as well as by a witness called by plaintiff, we think the mental weakness spoken of by them is to be classed among those apparent defects which, according to Art. 2297 of the Civil Code, do not give rise to the action of redhibition. The evidence negatives the allegation of concealment of the mental condition of the slave by plaintiff. She appears to have been known to the parties previous to the sale, and was probably raised in the neighborhood. •

As the defendant paid the first note without objection, the defence has the appearance of an afterthought.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    Robson & Allen v. Martha Shelton & Husband.
    Where a suit was instituted on the obligation of a married woman, and after the joinder of issue a peremptory exception was flled to the petition, on the ground that it was not alleged that the defendant was separate m property from her husband, or that the obligation enured to her separate bene-ñt — Held: That the exception was properly sustained.
    from the District Court of the Parish of Morehouse, Richardson, J.

      McGuire & Ray, for plaintiffs and appellants. S. G. Parsons, for defendants.
   Buchanan, J.

This is a suit upon a draft drawn by the defendant, a married woman, upon a third party, in favor of plaintiffs, which was protested for nonacceptance.

Defendant, after answering to the merits, filed the peremptory exception, that plaintiffs had not alleged in their petition, that the defendant is separate in property from her husband, or that the consideration of the draft sued upon enured to her separate benefit. .

This exception was properly sustained by the District Court. The petition, in a suit of this kind, must state a case of legal obligation on the wife to pay the debt claimed. Dubose v. Hall, 7 An. 568 ; C. P. 118; C. C. 2364, 2409.

Judgment affirmed, with costs.


author: Vookhies, J. Voorhies, J.

text:
    C. H. Morrison v. H. F. Wimberly.
    After the purchaser has been put in morn for the non-payment of the price, his offer to execute his engagement comes too late.
    But where there is no clanger that the seller may lose the price and the thing itself, in an action of rescission, the Judge may grant to the buyer a longer or shorter time, according to circumstances, provided such timo exceed not six months.
    PPEAL from the District Oourt of the Parish of Ouachita, Richardson, J.

      xMorrison cB Purvis, for plaintiff and appellant. J. T. Ludeling, for defendant.
   Vookhies, J.

On the 10th day of October, A. D. 1851, C. H. Morrison conveyed to the defendant, H. F. Wimberly, a tract of land for the sum of seven hundred and twenty dollars, payable in two equal annual installments falling due on the first day of March, 1858 and 1859. Two notes were accordingly furnished by the vendee.

Suit was instituted by the vendor on the 11th day of October, 1858, to cancel this contract of sale, on the ground alleged, that the vendee, notwithstanding amicable demand, had failed to comply with his obligation to pay the first note, which had matured several months past. This party filed an exception to the plaintiff’s demand, on the ground that the latter had not placed him in mora, which exception was sustained by the District Oourt, dismissing the plaintiff’s demand.

No appeal was taken from this decree; but the plaintiff proceeded to put the defendant in default, and brought the present action, which is substantially the same as the previous action.

After the institution of this suit, the defendant offered to the plaintiff to make him a tender of payment in gold pieces; but the latter declined receiving the money.

Giving Ml effect to the tender made by the defendant, the case is with the plaintiff. After the debtor has been put in mora, his offer to execute his engagement comes too late, and cannot be listened to. 6 Toullier, No. 255.” Moreau v. Chauvin et al., 8 R. 161.

Toullier says : “ S’il ne paye pas á l’instant, la résolution est irrévocablement aequise au vendeur, sans que l’acquéreur puisse purger la demeure par des offres tardives postérieures au demandement. La sommation a le méme effet que le pro-tét, qui n’est pas autre chose que la sommation destinée á constaten le défaut de paiement d’un billet.” C. C. 1901; Stephens v. Chamberlin, 5 An. 656. But there is provision made by the Civil Gode on the subject of the dissolution of sales of immovables, to the effect that this remedy is summarily granted, “ when there is danger that the seller may lose the price and the thing itself. If that danger does not exist, the Judge may grant to the buyer a longer or shorter time, according to circumstances, provided such term exceed not six months.” C. 0. 2540. The evidence justified the District Judge to exercise his discretion in allowing the defendant time to pay the price of the sale, as there was no danger of the vendor losing either the property sold or the price itself, as exhibited by the tender made by the defendant to the plaintiff on two occasions since the institution of the present action.

We are not satisfied that these tenders were made in such a manner as to throw the costs upon the plaintiff. Besides, the extension of time prayed for by the ven-dee would seem to preclude him from being relieved in that respect.

It is proper to state, that the delay granted by the District Judge has already expired. As the defendant appears before this court as appellee, further time should be granted to him to pay the amount due to the plaintiff.

It is, therefore, ordered and decreed, that the judgment of the District Court be amended so as to read as follows, to-wit: It is decreed, that the defendant deposit with the Clerk of the District Court, on or before the 20th day of the month of August next, the amount of capital and interest due on the notes given by him to the plaintiff for the purchase of the property in controversy; and that, in case of his failure so to do, that the plaintiff do have judgment for the cancellation of the said contract of sale.

It is further decreed, that the defendant pay the costs of both courts.

Same Case — Ox a Re-heabtng.

Voorhies, J.

The appellee was entitled to costs of appeal; it is, therefore, ordered, that our former judgment be amended in that respect, and that in all others, the same be affirmed.


author: Cole, J.

text:
    Joseph Lallande v. Laura Jones & Husband.
    An appeal from a judgment rendered on a written, consent signed by the attorneys of the parties to the suit, will he dismissed when it is not pretended that the action of the attorneys was fraudulent, or that thej- wero not employed in the suit.
    PPEAL from the District Court of the Parish of Catahoula, Mayo, J.
    xi. McGuire & Ray, for plaintiff. J. T. Ludeling and Cuny & Hawkins, for defendants and appellants.
   Cole, J.

Plaintiff sues defendant for $9,914 17, which is alleged to be due to him as a balance on his account with petitioner, as his factor and commission merchant, from the 1st of December, 1856, to the 23d of March, 1857.

There is an account and two acts of mortgage annexed to the petition.

The petition alleges that the amount due him, as aforesaid, is secured by the said acts of mortgage.

The defendants, Laura Jones, and her husband, Charles Jones, were regularly cited on the 6th of May, 1857.

A judgment by default was afterwards entered.

On the 20th of January, 1858, the defendant, Mrs. Jones, assisted by her husband, filed, through their attorneys, Smith & Spencer, a motion for the production by plaintiff of certain papers, documents, bills, receipts, drafts, account-sales of cotton sold by plaintiff for defendant, and all the letters comprising the correspondence between the plaintiff and defendants, relating to tlieir business dealings during the period embraced in the account sued on.

These were produced and filed by plaintiff, and are comprised of drafts, bills, notes and receipts; also fifty-nine letters from Jones to Lallande, and ton checks, with plaintiff’s answer to the order.

Plaintiff also filed an account-current and bills for supplies.

The affidavit of both of the defendants was appended to the said written motion of Smith & Spencer, which was also signed by them.

Afterwards, on the 7th of January, 1858, Smith & Spencer filed an elaborate answer for Mrs- Laura Jones, in which they allege usury, and errors in the account sued on, and set up a reconventional demand, and file certain interrogatories to be answered under oath by the plaintiff.

To this answer is appended the affidavit oí Laura Jones and her husband to the materiality of the interrogatories.

This answer is signed by Smith & Spencer. The plaintiff responded to these interrogatories.

About the 18th of January, 1858, an amended answer signed by Smith & Spencer, as attorneys, was filed, containing interrogatories. The affidavit of Laura Jones and her husband to the materiality of the interrogatories was appended to the answer. These interrogatories were answered by plaintiff.

On the 5th of May, 1858, an affidavit for a continuance was made by Charles Jones, and the continuance was granted.

On the 8th of May, 1859, the following agreement was entered into :

“ In this case, the parties have agreed to the following consent judgment. That plaintiff, Joseph Lallande, is to have judgment against the defendant, Laura Jones, for the sum of nine thousand five hundred and fifty-five dollars ($9,555), with eight per cent, per annum interest thereon, from the 23d March, 1857, and all costs of this suit, with a recognition of plaintiff’s mortgage on the property described in plaintiff’s petition, and the act of mortgage thereto annexed, and that execution be stayed on this judgment until the 1st day of January, 1859.

This agreement is signed by the undersigned attorneys of the parties to the above entitled suit.

(Signed) “ McGuire & Ray, Att’ys for Plaintiff,

“ Smith & Spences, for Defendants.”

In the minutes of the court in the record, the following entry appears :

“ In this case, a judgment was rendered by consent. For particulars, see decree.”

Afterwards, a judgment was rendered, in which it is declared as follows : “ By reason of the law and the evidence in this case being in favor of the plaintiff, and by further reason of the within consent of the parties, filed in this case, it is ordered,” &e. “ It is further ordered, that execution be stayed on this judgment until the 1st day of January, A. D. 1859.”

This judgment was signed the 8th of May, 1858.

On the 19th of January, 1859, a petition of appeal, signed by R. H. Cuny, attorney, was filed by Laura Jones, assisted by her husband, in which she represents that the judgment was erroneous; that it was rendered without the introduction of any evidence whatever to sustain the same ; that it was rendered by the consent of the attorneys in the case, and without her wish or consent; that she had no knowledge whatever of the action of the said attorneys for some weeks after the rendition of said judgment; that the acts of the said Smith & Spencer, in consenting to the rendition of the judgment, were unauthorized by her; and that she had no knowledge of the rendition of said judgment until the fifteen days allowed her by law to take a suspensive appeal, had elapsed. That she has a legal defence against the demand of the plaintiff, which would have been sustained if her attorneys had properly defended her suit.

We are of opinion, that this appeal must be dismissed.

Article 567 of the Code of Practice declares, that the party against whom judgment has been rendered, cannot appeal, if such judgment have been confessed by him, or if he have acquiesced to the same, by executing it voluntarily.

Appellant does not pretend that the action of her attorneys was fraudulent, or that they were not employed by her in the suit.

The whole record shows that they exerted themselves with skill and vigor to . defend her suit, and it seems probable that the stay of execution was one of the reasons why the judgment was confessed.

Appellant avers in her petition, that she became cognizant of the judgment some weeks after it was rendered; yet, she does not appeal until after the stay of execution had expired, and thus permits one term of the Supreme Court at Monroe to pass.

We are of opinion that, under these circumstances, and under the facts of this record, before stated, that she must be considered to have ratified the action of her attorneys, and is now precluded from appealing.

It is, therefore, ordered, adjudged and decreed, that this appeal be dismissed, at the costs of appellants.


author: Voorhies, J.

text:
    McDonold & Coon v. James Vaughan.
    Before the institution of an action for the rescission of a sale, the party seeking relief must offer to placo his adversary in the same situation that he was before the act of sale was passed.
    The plaintiff, in an action for rescission, must establish the loss of the whole or part of the thing sold; the loss must be certain — it will not suffice if it appears probable.
    The loss will bo considered as certain, if a perfect outstanding title in a third person is shown to exist.
    A statement of the Commissioner of the General Laud Office in a letter, to the effect that he has canceled a certificate, docs not amount to an eviction which should rescind a sale between thirdper-
    Whon, in an action for the rescission of asale, it appears that the plaintiff has not suffered any actual disturbance, but it is shown that he is in danger of being disturbed in his possession — Held: That under the prayer for general relief, the court may order the defendant to give security as provided in such cases, by Art. 2535 of the Civil Code.
    from the District Court of the Parish of Ouachita, Mayo, 5.

      Morrison & Purvis, for plaintiffs. J. T. Ludeling, for defendant and appellant.
   Opinion of the District Judge. — “ The plaintiffs sue to rescind a sale of a tract of land made to them by the defendant, Vaughan, on the 28th of April, 1857, on the ground that he had no title to the greater and most valuable part of the tract.

“ The sale was made for fifteen thousand dollars, for which the vendors executed their notes to the order of Vaughan, but as they had not been delivered at the time this suit was instituted, they were sequestered. A curator ad hoc has been appointed to represent the defendant, who resides in Camden, Arkansas. The defendant, however, has appeared in court by his attorneys-at-law, and first excepts and says, the defendant- has never been put in mora, that no allegation to that effect is contained in the petition, and that plaintiffs have never offered to return the land purchased.

“ The principal grounds of defence set up by defendant in his answer, are that the present suit was instituted with the fraudulent intent to delay the collection of the notes given for the price of the land, while they enjoyed the fruits and revenues of the property sold ; that the plaintiffs ‘ well knew the condition of the lands and titles at the time they bought; that they knew them better than he did, who is an absentee,’ that the V., S. & T. R. R. Company has obligated itself to make to him a title for such portions of the lands as it may own, whenever it shall have been ascertained that said company are the owners thereof.

“ The defendant further sets forth, that so soon as he heard of the present suit, (which was the first intimation he had of the plaintiffs’ intentions not to carry out their contract,) he offered to give the plaintiffs any security they might require for the titles, and that he afterwards, through his agents and attorneys, offered to cancel the sale or give security ; that he also informed them of the fact above stated, that the Y., S. & T. R. R. Company had obligated itself to make him a title to the lands aforesaid, should it ever become the owner thereof. He denies that the plaintiffs have been disturbed in their possession, or that there is any just reason to fear eviction.

The law is well settled, not only by the textual provisions of the Civil Code, but by repeated decisions of the Supreme Court, that íd all actions of rescission, the party seeking relief must first offer to restore his adversary to the situation he was in before the contract. See C. C. 1906 ; 3 Rob. 400 ; 9 Rob. 52, 184 and 510 ; 3 An. 208 ; 6 N. S. 229.

“ No offer to return the land has been alleged or proved. It is, however, contended, that for the reason that the defendant was an absentee, no such allegation or proof was necessary. The law, in terms, has madeno distinction between a party present in the State, and one absent from it. It is true, the courts have held, that when an offer to return a thing appeared from the facts disclosed, to have been impossible, it might be dispensed with, for neither reason, justice or the law requires an impossibility ; but so far from its being impossible in the present case to put the party in default, it could have been done without great difficulty, for the plaintiffs allege that he resides in Camden, Arkansas, a place easy of access and very near the northern limits of our State.

It is contended, however, on the part of the counsel for the plaintiffs, that this is not, strictly speaking, an action to be governed by the rules applicable to actions of rescissions. That the defendant had no title to a large portion of the land sold, the title to which was in the United States or in the Y.. S. & T. R. R. Company, and that the sale to that extent was the sale of the property of another, and under the Art. 2427 of the Civil Code, was absolutely null and void. If this were so, still the plaintiffs claim and demaud, that the entire sale be canceled, it is, therefore, in terms and effect, an action of rescission, and must be governed by the rules applicable to such actions. But if it were admitted, that no demand was necessary, let us see if, from the evidence, the plaintiffs could legally demand a rescission of the sale.

“ The eviction which gives rise to the action of rescission is, ‘ the loss suffered by the buyer of the totality of the thing sold, or of a part thereof, occasioned by the right or claims of a third person.’ C. C. 2476.

“ No active disturbance is shown to have occasioned in this case, nor was it necessary ; it suffices for the plaintiffs to establish the loss of the whole or a part of the thing sold — this loss must, however, be certain, it does not suffice that it appears probable. The loss would be certain, if a perfect outstanding title existed. Has the plaintiffs shown that such outstanding title does exist ? .

“ The plaintiffs have failed to establish any well grounded defence of title, with the exception of a part of the tract falling within the limits of the V., S. & T. R. R. Company. It appears by the letter of the Commissioner of the General Land Office, bearing date April 22d, 1857, that the internal improvement warrant, No. 546J, calling for lots Nos. 2, 3 and 4, S. E. quarter of N. W. quarter, S. W. quarter of N. E. quarter, W. half of S. E. quarter, and N. E. quarter of S. W. quarter of section 31, township 16, N. of range 4 East, containing 314 95-100 acres, falling within the railroad reserve and Maison Rouge claim, and being part of the land sold by the defendant, Vaughan, to the plaintiffs, was cancelled and returned to the local office at Monroe, to be delivered to the owners thereof.

“ In the case of Barton’s Executrix v. Hempkin, 19 La. 314, the court remark, in a case somewhat similar to the present, we do not consider the mere statement of the Commissioner of the General Land Office, that he has cancelled a certificate, an eviction which should rescind a sale between third persons. The United States has not disturbed the plaintiffs in the possession of the land ; the purchase money has not yet been refunded, and the act by no means complete. It may be there will be no disturbance, and, it is possible, that Congress, upon a representation of the facts, and proof of the good faith of the parties, would pass an act affirming the sale.’

“It seems to be considered, that should the action of the Commissioner be confirmed by the Secretary of the Interior, these lands would become the property of the railroad company. That company, as shown by the evidence, have passed a resolution to convey and deliver the lands to fames Vaughan, at the price of two dollars and fifty cents per acre, so soon as the company may bo in a condition to dispose of them and make title.

“ There is, therefore, a reasonable hope and expectation that the plaintiffs’ title ■ will eventually be perfected; but of this there is no absolute certainty. The railroad company may fail to comply with the conditions of the grant and, in that event, it would be out of the power of the company to make a title.

“ It is true, ‘ it is not necessary that a party should be actually dispossessed to to constitute eviction. It may take place while he continues to hold the property, if under a different title from that transferred to him by his vendor, as when he inherits it, or acquires it by purchase from the true owner.’ 1 R. 362 ; II R. 397. Or if a perfect title exists in some third person, whereby it is rendered legally certain that his vendor had no title. The present plaintiffs have not shown themselves to be in either of these positions, or that they have suffered any actual disturbances ; they are not, therefore, in a position to claim a rescission of the sale.

“ The plaintiffs have clearly mistaken their remedy. They should have proceeded under Article 2535 of the Civil Code, which declares : ‘ If the buyer is disturbed in his possession, or has just reason to fear that he should be disturbed, by the action of mortgage or any other claim, he may suspend the payment of the price until the seller has restored him to quiet possession, unless the seller prefers to give security.

“ From the evidence, it is clear that the plaintiffs are in danger of being disturbed in their possession. The notes executed for the price are negotiable in form. The defendant is an absentee, and there is danger that if they are delivered to the vendor, they will pass into the hands of third persons, who may enforce them, and leave the purchasers without a remedy.

“ It is manifest, that should the present suit be dismissed, the plaintiffs would at once (to protect their rights) be forced to resort to an action to compel the vendor to give security against eviction.

“ This suit has already been taken to the Supreme Court, and it seems the imperative duty of this court to terminate the controversy, by the decision now rendered, if legally possible to do so.

“ The petition concludes with a prayer for general relief, and the question is presented, whether this court, under that prayer, can grant a remedy not asked for in the pleadings, and compel the vendor to furnish security before the notes executed for the price, are delivered to him.”

“ In the case of Smith v. Corcoran et als., 7 La. 50, the plaintiffs instituted a petitory action to recover a tract of land of four hundred arpents. The defendant, who had purchased a larger tract, including that sued for, called his vendor in warranty. The plaintiff' showed a complete title to the four hundred arpents sued for; the defendant, under the pleadings, had a right to recover against his vendor the part of the price in the proportion that the four hundred arpents bore to the whole tract of six hundred and forty arpents. The court, in that case, remark : ‘ This has seemed to the court a proper case for the application of that provision of the Code which authorizes the buyer to demand the rescission of the contract, when the part evicted is so considerable, that it is not to be presumed he would have bought without the part evicted’; and remark the only difficulty to us was a doubt whether the proceedings would justify the judgment. The petition in that case concluded with the most general prayer for relief, and uuder that prayer, the court remark, 1 we think ourselves authorized to render such judgment as would be rendered in a new suit,’ and to avoid a circuity of actions, they accordingly set aside the entire sale as between the defendant and warrantor.

“ In the case of Carson, Administrator, v. Dwight et al., 5 Rob. 484, the plaintiff sued for the balance due on the price of a slave. It was set up in defence, that the slave was entitled to her freedom, for which a suit was then pending. The court remark, it is clear this question cannot be enquired into collaterally in this suit, and as the case stands, it cannot be used as a defence against the payment of the price, nor invoked as a ground of nullity against the sale; ‘ all that the defendants may perhaps require of the plaintiffs is, that he should give the security for the title transferred, and for the reimbursement of the amount paid in case of eviction. This (the court remark) does not appear to be sought at our hands ; the answer contains no prayer to that effect; it does not even pray for general relief.’ but we are disposed, however, for the furtherance of justice, to relieve the defendants against the danger of eviction, though they have not prayed for it. The court accordingly ordered the bond to be given.

“ From these discussions, it seems clear that in a case like the present, when justice and equity so clearly demand it, that the court may under the prayer for general relief, require the defendants to give bond and security against eviction, before the delivery of the notes executed for the price of the land.

“ It is, therefore, ordered, adjudged and decreed, that the demand of plaintiffs, so far as relates to their claim for a rescission of the sale, be rejected. It is, however, further ordered and decreed, that the land falling within the railroad reservation, to wit, lots 2, 3 and 4, S. E. quarter of N. W. quarter, S. W. quarter of of N. E. quarter, W. half of S. E. quarter, and N. E. quarter of S. W. quarter S. 3, township 16, range 4 E., containing 314-95-100 acres, be appraised by two sworn appraisers, to be selected under the supervision of the parish Recorder, or in case of his absence or failure to act, then the Sheriff to act in his stead ; the parties plaintiffs to select one of the appraisers, and the defendant to select the other ; and in case of disagreement, the two to choose an umpire, whose decision for the object designed is to be final; and in case either party fails to select, then the officer is to make the selection, and that the defendant, James Vaughan, give bond in favor of the plaintiffs, for the amount of such appraisement, with one or more securities, possessing the qualifications required by Art. 3011 of the Civil Code, conditioned, so as to secure the said plaintiffs against any disturbance or eviction of the aforesaid land, as described within the railroad reservation ; and that on the execution of such bond, the notes for the price of the land sequestered and enjoined in the hands of the Recorder, be given up to the defendant, James Vaughan. It is further ordered, that defendant pay costs.”

Voorhies, J.

Por the reasons given by the District Judge, and which we adopt as our own, it is, therefore, ordered and decreed, that the judgment of the District Court be affirmed, with costs.


text:
    State of Louisiana v. Robert Fuller.
    The Act of 1819, making it a crime to harbor and conceal a runaway slave, is not repealed by the repealing clause of the Act of 1855, relative to crimes and offences.
    PPEAL from the District Court of the Parish of Union, Richardson, J.
    Xi. F. P. Stubbs, District Attorney, for State. McGuire & Ray, for defendant and appellant.
   Voorhies, J.

The appellants ask the reversal of the judgment of forfeiture of the bond signed by them, as sureties of Robert Fuller, on the ground that there is no offence charged in the indictment.

The prisoner is charged with the offence of “ unlawfully and feloniously harboring and concealing a negro man slave, named Nelson, then and there being the property of John B. Benford, the said negro man slave then and there being a runaway slave, and he, the said Robert Fuller, then and there knowing the said negro man slave, Nelson, to be a runaway slave, as aforesaid, to the great damage of him, the said John B. Benford,” &c.

The statute punishing the offence charged in the foregoing count of the indictment is not repealed by the Act of 1855, relative to crimes and offences. See State v. Marion Fuller, ante, p. 667; Acts 1819, p. 64.

Judgment affirmed.


text:
    Elizabeth Williams v. A. W. Bridge et al.
    Where the questions involved in a.suit regard the relative situation of the lands of plaintiff and defendant, and the natural drainage of the soil, these being matters peculiarly within the congnizance of a jury of the vicinage, their verdict is entitled to great weight
    Where the counsel in a cause have not argued points made in their bills of exception, they will be considered as waived.
    PPEAL from the District Court of the Parish of Morehouse, Richardson, J.
    Jt.i. Todd & Brigham, for plaintiff. Morrison <& Purvis, for defendants and appellants.
   Buchanan, J.

Plaintiff sues the defendants for damages for cutting a ditch and making a levee, whereby water is diverted from its previous channel and thrown upon the land of plaintiff. The petitioner also prays that defendants be condemned to fill up the ditch and demolish the levee, and for general relief.

The questions presented are principally of fact, which were presented to a jury, who found a verdict in favor of plaintiff, that defendants destroy the works complained of.

This verdict appears to be conformable to the evidence and to the law. Art. 656 of the Civil Code says : “ It is a servitude due by the estate situated below, to receive the waters which run naturally from the estate situated above ; provided, the industry of man has not been used to create that servitude.

“ The proprietor above can do nothing, whereby the natural servitude due by the estate below may be rendered more burthensome.”

The relative situation of the lands of plaintiff and defendants, and the natural drainage of the soil, are matters peculiarly within the cognizance of a jury of the vicinage ; and their verdict upon a subject so generally interesting to the inhabitants of an alluvial region, is of the highest authority with us.

A point is made in the argument of defendants’ counsel, that the ditch thus cut by defendants, was so cut upon land which did not belong to them, and, therefore, that they have no right to enter upon that land for the purpose of filling up the ditch.

This argument is not entitled to much weight. Their power to undo what they have done, would be presumed, in the absence of proof to the contrary. But we have, in the record, the evidence of Conger, the person on whose land this work was done, which shows that the work was originally intended to have been executed by himself and the defendants jointly, and that he desisted and attempted to persuade defendants to desist, upon remonstrances made by plaintiff.

It is evident, that no opposition will come from Conger, to the restitution of of the premises to their original condition, in execution of the verdict and judgment herein.

Defendants took three bills of exception to rulings of the court below upon admissibility of evidence; but as counsel have not argued the points made by these bills, we will consider them waived.

Judgment affirmed, with costs.


text:
    A. Dyson, Tutor, v. Henry Phelps.
    The lieir who purchases at the sale of the succession, has a right to withhold the price, until his share in such succession is ascertained hy settlement and partition.
    The purchaser of property in good faith from one who is not the owner, is only liable for the fruits from judicial demand.
    On eviction, the buyer can only recover from the seller such increased value of the thing since the sale, as the parties had in contemplation at the time of the sale.
    1 PPEAL from the District Court of the Parish of Morehouse, Richardson, 3.

      McGuire & Ray, for plaintiff.

      Todd & Brigham, for defendant and appellant. TV. J. Z. Baker and C. II. Morrison, for warrantors.
   Voorhies, J.

The present contest relates to the title of the parties plaintiff and defendant, to the slave Vina and her children. The defendant’s warrantors are also before court.

The slave Vina was sold at the succession sale of Lucy Vanhook, deceased, and adjudicated to Elizabeth Griffin, one of the heirs of the deceased, and the mother of the plaintiff. It is contended that this adjudication, although made in the name of Elizabeth Griffin, enured to the community existing between her and her husband, TV. TV. Griffin, since deceased, both parties having signed the notes in solido.

This does not affect the case : the wife had a right to purchase in her own name and with her own funds, any property during the existence of the community, and the title would vest in her absolutely. Having purchased at the sale of the succession, of which she was an heir, she had the right to withhold paying the price until a settlement and partition of the succession, ascertaining her portion. C. C. 1265 and 1266.

In the mean time, it appears that the administrator of the estate of Lucy Van-hook, instituted suit on the notes given for the price of adjudication, and that, during the pendency of this suit against the husband and wife, the following transaction took place:

On the 20th day of August, 1850, J. A. R. Vanhook, purporting to act on behalf of the heirs of Lucy Vanhook, deceased, conveyed to R. L. Green the slave Vina and her two children, for the sum of $980 ; and as these partios were aware of the fact that such a transfer might in the future give rise to some difficulty, the vendor gave his bond, with Thomas Nesom as surety, for the purpose of holding the vendee harmless.

The latter, through his agents, Frellsen é Co. (for there is abundant proof of the agency of the firm, independently of the power of attorney excepted to by him,) transferred, on the 18th of February, 1852, the slave Vina and her four children, to the defendant, Henry Phelps, for the sum of $1,150.

The title derived through these conveyances from Vanhook, is a nullity ; for the property did not belong to the heirs of Lucy Vanhook, deceased, but to the plaintiff, as sole heir of her deceased mother, Elizabeth Griffin. O. 0. Art. 242V. “ The sale of a thing belonging to another person, is null; it may give rise to damages, when the buyer knew not that the thing belonged to another person.” Moore v. Lambeth, 5 An. 66.

1. The defendant, being a purchaser in good faith, up to the time of the institution of the present action, the judgment below was correct in awarding a restitution of the fruits from judicial demand.

2. The judgment allows the defendant to recover from his warrantor, II. L. Green, the sum of @1,150, the price of the sale, with legal interest from the date of payment; and besides the sum of two hundred dollars for counsel fees. The former contends that he is entitled to the increased value of the property ; but the authority relied upon does not give him that right.

In that case (Weber v. Caussy, 12 An. 536), the court remarked : 11 The Code of 1825 has omitted the provision of that of 1808, which entitled the purchaser to recover from his vendor, in case of eviction, the increased value of the thing sold, since the sale. See 9 La. 557. The only increase that can now be allowed, is such increase as the parties had in contemplation at the time of the sale.”

In the case of Bissell et al. v. Erwin’s Heirs, the rule laid down is, that;l the vendor should not be made to pay the increase which results from unforeseen events, or from accidental or transient causes.”

Now, the increase of the value of the slaves in the case at bar, cannot be said to have been contemplated by the parties originally : it is, on the contrary, the result of unforeseen events. Remy et al. v. Municipality No. 2, 12 An. 500.

The rights of the defendant have been properly determined under Art. 2482 of the Civil Code.

3. The heirs or legal representatives of Thomas Nesom, deceased, are also appellants, from the judgment rendered against them as warrantors, for the same amount awarded to II L. Green, in favor of Henry Phelps. These appellants contend that the bond of two thousaud dollars, signed by their ancestor in favor of Green, stipulates against an eviction at the hands of the heirs of Lucy Vanhook, deceased, and not of Elizabeth Griffm, deceased. So it is; but Elizabeth Griffin was an heir of Lucy Vanhook, deceased, and it is by right of representation, as sole heir of her deceased mother, that the plaintiff evicts the defendant.

As regards the restitution of the price, so far as Green and the heirs of Nesom are concerned, the judgment should have been for the amount paid 'by Green for the purchase from Vanhook. The restitution of the price, of which Art. 2482 C. 0. speaks, has reference to the price actually paid by the vendee to his own vendor, and not to the price of any other subsequent sales or transfer of the same property.

It is worthy of notice, that the amount paid by Green to Vanhook, was applied to the extinguishment of the note given for the adjudication of the slave Vina to Elizabeth Griffin, deceased ; so much then enured to the benefit of the plaintiff. It would be highly inequitable, notwithstanding the irregularity of all the proceedings had in this instance, that the plaintiff should recover the property, and, at the same time, refuse to reimburse the price of the adjudication.

It is, therefore, ordered and decreed, that the judgment of the District Court be amended, by reducing the amount allowed in favor of Green against his war-rantors, to the sum of nine hundred and eighty dollars; and further, by allowing the ■warrantors of Green judgment against the plaintiff for the sum of nine hundred and eighty dollars, with legal interest from judicial demand, the said amount to be paid into the hands of the Sheriff before execution of this judgment at the hands of the said plaintiff.

It is further ordered and decreed, that the judgment so amended, be affirmed ; the appellee paying the costs of appeal.


author: Land, S.

text:
    Vicksburg, Shreveport and Texas Railroad Company v. A. C. McKeen.
    The provision in the 16th section of the Act incorporating the Vicksburg’, Shreveport and Texas Kail-road Company, to the effectil that no transfer of alack shall exempt the party transferring it from the obligation of paying installments afterwards called, for, witil fifty per cent, on each share shall have been yaid,” exempts from liability to the companjr only those who have transferred their share of stock after the payment of fifty per cent, on each share, before the installments have matured, and payment has been demanded.
    from the District Court of the Parish of Ouachita, Mayo, J.

      Morrison & Purvis, and McGuire & for J. T. for defendant and appellant.
   Land, S.

The defendant subscribed to the capital stock of the Vicksburg, Shreveport and Texas Railroad Company, the sum of one thousand dollars, making forty shares, and paid thereon, at different times, five hundred and fifty dollars; and on a call made by the company for the balance due, refused payment and transferred his stock to R. II. Watmore, which transfer he plead in bar of this action, instituted for its recovery.

The sufficiency of this defence depends upon the interpretation of section sixteen of the Act of Incorporation, or charter of the company, which is in these words :

“ Stock books shall be kept in the office of the company. Certificates of stock shall be issued to the share holders, to be signed by the President of the Board of Directors, for the time being; aud no transfer of stock shall be binding on the company until made on its stock books. No transfer of stock shall exempt the party transferring it from the obligation of paying installments afterwards called for, until fifty per cent, on each share shall have been paid. Act of 1853, p. 186.

The exemption from liability for the balance of the installments, after the payment of fifty per cent, on each share, by virtue of a transfer of stock, creates the difficulty of the case. And a strict and literal construction of the language of this section of the Act would perhaps sustain the defence to the action; but it would lead to consequences not intended by the lawgiver, and thereby defeat his will.

In this case, a call was made on the defendant for the balance due on his subscription, on the 2d of March, 1858 ; and on the 25th of the same month, he transferred his stock to Watmore, and thereby defeated, (if his defence be valid in law,) the right of action of the company against him for the unpaid installments which were then due.

The provision in the sixteenth section of the Act relative to the transfer of stock was made upon the presumption that each installment would be demanded and paid at maturity, and that the exemption from liability to the company would only extend to the unmatured installments, after the payment of fifty per cent, on each share of stock.

It is, therefore, the opinion of the court, that after the maturity of the installments, the right of exemption, by virtue of the transfer, was extinguished, and that, notwithstanding the transfer on the stock books, the defendant was still liable to the company for the unpaid balance then due. The right of transfer, to have the effect contended for, must be exercised iu perfect good faith, and in pur- v, suanee of the true .intent and meaning of the Act.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, with costs.


text:
    State of Louisiana v. Wade Hampton, Collector, et als.
    When the record shows that the defendant appeared and defended the suit, by filing a peremptory exception, and taking bills of exception to the introduction of evidence, he cannot claim a reversal of the judgment rendered against him, on the ground that the record does not show that issue was joined by a judgment by default.
    In an action against a defaulting 'fax Collector and the sureties on his bond, who are bound each for a specific sum, the case may be continued as to some of the defendants.
    The principal and sureties on a Tax Collector’s bond cannot set up, by way of defence to an action brought on the bond, the fact that it had not been approvod, or received by the proper officer, and recorded, as provided by law.
    from the District Court of the Parish of J.

      M. A. Jones, for plaintiff. McGuire <& Hay, Morrison & Purvis and Harper & Bonner, for defendants and appellants.
   Cole, J.

This is an action against Wade Hampton, who was Collector of the State and Internal Improvement taxes and licences due in the parish of Franklin, in 1854, and against his securities on his official bonds.

There was judgment for plaintiff, and defendants have appealed.

1.It is not an objection, that a default is not mentioned in the record to have been taken against some of the defendants; for the bills of exception and a peremptory exception filed by all the defendants, show that they defended the suit.

2.It is objected that the Collector is charged @250 for insolvent and delinquent tax payers. Appellants are in error ; the judgment deducts this amount.

3.There is a bill of exceptions to tbe ruling of the court, permitting the plaintiff to continue the cause as to certain of the defendants.

The court did doI err, inasmuch as each of the securities was bound for a specific and separate amount, for which they were severally liable. Sess. Acts, 1855, p. 82, § 5 ; State v. Wm. Hampton, just decided.

4.The objections to the bond of Wacle Hampton, on the grounds that it had not been approved or received by the proper officers, and attested and recorded as provided by law, are invalid. The securities signed the bond, and Hampton acted under it in the collection of taxes. Neither the principal or securities can plead successfully such objections.

Judgment affirmed, with costs.


author: • Vooriiies, J.

text:
    State of Louisiana v. Robert Fuller.
    When the minutos of tho court and the judgment show that the sureties on an appearance bond were regularly callod to produce the body of thoir principal, previous to a judgment of forfeiture, it cannot be objected that there is no evidence oí the fact.
    The entry on the minutes is in the nature of a citation, and need not be offered in evidence.
    from the District Court of the Parish of Union, Richardson, J.

      F. P. Stubbs, for the State. McGuire <& Ray, for defendant and appellant.
   • Vooriiies, J.

This case presents the same question as the one decided in the previous case of the State of Louisiana v. Robert Fuller, ante, p. 120.

There is, however, an additional ground relied upon by the appellants, to-wit: that there is no evidence in the record that the appellants were regularly called upon to produce the body of their principal, previous to judgment of forfeiture being entered on the bond.

Upon an inspection of the record, we find that the minutes of the court show the fact that the parties were regularly called upon their bond. This is in the nature of citation, and need not be offered in evidence. Besides, the judgment itself mentions the fact that the proceedings were regularly had, by calling tho parties on tho bond in the usual mode.

Judgment affirmed.


text:
    Heirs of Sarah Ann Coons v. Alexander Stringer, Sr.
    The doctrino of Üu cuse of JDmm v. MorrUon, 13 An. 379, in relation, to the money of the wife received by the husband during the marriage, which constitutes a charge against the community, is applicable to the share of the husband, who, in the partition of the community, is entitled to a credit for his separate funds applied to the uso of the community.
    from the District Court of the Parish of O.uachita, Richardson, J.

      McGwire c& Rat/, for plaintiff. II. Gray, for defendant and appellant.
   Buchanan, J.

It is agreed that this case (which was submitted at the close of the last term in be decided in New Orleans.

•We think the defendant and appellant entitled to the credit, claimed in the brief of his counsel, of eleven thousand dollars cash, of the separate estate of defendant, brought into the community.

The matrimonial partnership should be settled on a footing of perfect equality between the partners. One ought not to have a greater advantage in such settlement than the other. Upon this principle, the doctrine of the case of Downs v. Morrison, 13 An. 319, and of the cases therein cited, is applicable to the share of the husband in the partition of the community of acquets, as well as to that of the wife.

The receipt of the greater part of the amount of a judgment in the United States court, obtained by defendant against John C. Williams, for $11,800 and interest, which judgment is admitted to have been separate property of defen-daut, and the application or these funds, or a portion of them, to community pur•poses, are facts established by the evidence.

The court below allowed defendant as a credit, $2,674 30, being a community debt paid Williams, Phillips & Co., out of the judgment above mentioned.

It is, therefore, adjudged and decreed, that the judgment of the District Court be amended, by increasing the credit of defendant in account with the community of acquets between himself and his deceased wife, Sarah Ann Coons, by a sum of eight thousand three hundred and twenty-five dollars and seventy ceuts; that the judgment in all other respects be affirmed ; and that plaintiffs and ap-pellees pay costs of appeal.


author: Büohanan, J.

text:
    A. M. Alford v. Hughes & Randolph.
    A party may give in evidence the answers of Ills adversary to interrogatories on facts and articles, although such answers were made in a different suit between them from the one on trial
    from the District Com't of the Parish of Bossier, Egan, J.

      Richard U. Turner and Watkins & George, for plaintiff and appellant, Landrum <& Williamson, for defendants.
   Büohanan, J.

Plaintiff sues for restitution of the price of a slave woman named Charlotte, who is alleged to have been afflicted with a redhibitory disease at the time of her sale by defendants to plaintiff. The petition also alleges that the disease was well known to defendants, who concealed it from plaintiff.

The defendants pleaded the general ilsue; and the cause was tried by a jury, who found a verdict for defendants.

The fact essential to the maintaining of this action, of the existence of the disease in the slave at the time of the sale, is not made out by the proof. The earliest evidence on that subject refers to a period at least a month subsequent to the sale. The presumption of its existence when the sale took place, under the Act of 1834, does not, therefore, arise.

The physician who was called in by plaintiff is of opinion that the disease may have existed previous to the sale; but this is, at best, a speculative or conjectural opinion. See the cases of Dupré v. Desmarest, 5 An. 591, and Roca v. Slawson, 5 An. 708.

There is also much evidence on the other side, proving the sound condition of the slav.e previously to the sale.

On the whole, we cannot say that the jury arrived at an erroneous conclusion, from the evidence before them.

Plaintiff calls our attention to a bill of exception to the rejection by the District Judge of answers of one of the defendants to interrogatories on facts and articles, propounded in another suit between the same parties. It was rejected, on the ground that the plaintiff could not avail himself of said answers, without entitling the defendants to all the privileges incident to this particular case, and to make such explanations with reference to the particular case on trial, as might be pertinent.

This ruling appears inconsistent -with that of the case of Hood v. Chambliss, 7 An. 106. In that case, Judge Slidell used the following language : “ It is well settled, that the admissions of a party may be given in evidence against him. Even mere oral admissions in conversation may be proved; and a fortiori, what a person has declared in writing and under oath, should be admissible against him.”

We think the evidence in question ought to have been received. But it will not be necessary to send back the cause for a new trial, on that account. Those answers to interrogatories only refer to the price which plaintiff gave defendants for the girl Charlotte; a point which was only material in case the jury found in favor of plaintiff. The answers did not touch the allegations of the petition in reference to the redhibitory disease complained of.

Judgment affirmed, with costs.


author: Merrick, C. J.

text:
    Heirs of Margurite Babineau v. Narcisse LeBlanc et al.
    Where a nuncupative will under private signature is made, out of the presence of the witnesses, the testator must distinctly declare, in the presence and hearing of all the witnesses necessary in this form of testament, that it contains his last will.
    from the District Court of the Parish of Lafayette, Martel, J.

      C. H. & E. Mouton and P. D. Hardy, for plaintiffs. M. E. Girard and

      JDeBlanc & Fusilier, for defendants and appellants.
   Merrick, C. J.

This suit is brought to annul a nuncupative will and codicil by private act.

There was judgment in favor of the heirs-at-law, (the plaintiffs,) and the defendants and legatees appeal.

The will and codicil to be valid, must have been executed in conformity to Article No. 15T4 of the Civil Code. This Article admits of two forms of execution, viz, one where the will is dictated in the presence of the witnesses; the other, where the will was written by the testator, or by him or her caused to be written out of the presence of the witnesses.

It is not pretended that the will or codicil was executed in the first of these forms.

To be valid in the other form, the testatrix must have presented the will and codicil to the witnesses, and declared that that paper contained her last will.

The testimony on this branch of the case is not satisfactory. The parish Recorder states, that two out of the five witnesses did not hear the testatrix utter one distinct word, and only saw her nod assent, when the witness who had prepared the will asked if it was her will. The witnesses might as well be absent, as to be present when the proceedings are conducted in such a manner as to be incomprehensible to them.

The testimony of Mr. Girard is satisfactory, but the law requires, in a case like this, the presence of more than one, two, or even three witnesses, who fully comprehend the proceedings.

Under the circumstances, we do not feel called upon to disturb the conclusions of the District Judge.

Judgment affirmed.


text:
    Succession of Jean B. David — Opposition of L. V. Chacheré, Syndic, et al.
    Where a Sheriff acts as syndic of an insolvent estate, he acts in his official capacity, and the parties in interest,who have been-injured by his acts or omissions, when acting in such capacity, havo the right to hold all his sureties on his official bond liable for injuries they may have received.
    When the Sheriff’s official bond has been recorded, it operates as a mortgage upon the property of the Sheriff from the date of its registry.
    The law grants this mortgage for tho protection of private individuals as well as the State, who may bo injured by the acts of the Sheriff’.
    PPEAL from tlie District Court of the Parish of St. Landry, Voorhies, J.
    XI. J. E. King, for administrator. Lewis <& Porter and Dupré <& Garland, for opponents and appellants.
   Merrick, C. J.

This case comes up on the following statement of facts :

The only question presented by appellant being, whether L. V. Chaciieré, Sheriff and syndic of the insolvent estate of Myers & Alexander, should be placed on the tableau of classification as an ordinary or mortgage creditor, the following statement is made by counsel, and the Clerk dispensed with the necessity of copying the volumnous documents offered in evidence.

Jean Baptiste David died in November, 1855, while Sheriff of the parish of St. Landry. In the year 1854, on the 8th of August, then being the Sheriff, he was appointed syndic of the aforesaid insolvent estate, and continued to act as such to the period of his death. He received for said estate, as syndic, $3,338 78, the amount charged against him in the judgment of the District Court. His estate is responsible to the insolvent estate he administered for this sum. L. V. Chacharé, the appellant, is and was, at the time of filing his opposition, syndic of said insolvent estate.”

It appears to us, that the Sheriff acted officially when he acted as syndic. The appointment is conferred upon the Sheriff as such, and because he is Sheriff. The parties in interest, who have been injured by his acts or omissions as Sheriff, have the right to avail themselves of all the securities furnished by his official bond. Under the law, one of these is, (where the bond has been recorded,) a mortgage upon the property of the Sheriff from the date of the registry. This mortgage is for the protection of private individuals as well'as the State. Acts of 1848, p. 85-86, sec. 1; Phillips’ Dig. p. 67 ; Tucker v. Bobo, Sheriff, 11 An. 611.

The date of the registry of the Sheriff’s bond does not appear. The appellant can only be allowed a mortgage from the date of David’s appointment as syndic.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be amended, so as to award said L. V. Chacheré, Sheriff, a legal mortgage for said sum of $3,338 78, upon the immovables and slaves of said deceased, and the proceeds thereof, to date from the 8th day of August, 1854, and that he be paid accordingly; and that the judgment of the lower court, so amended, be affirmed ; the appellees paying the costs of the appeal.


author: Voorhies, J. Merrick, O. J.

text:
    G. W. Johnston v. James Pike.
    When it is shown that the wife has disposed of property belonging to the community, for the purpose of procuring the necessaries of life for herself and children, which her husband failed to furnish them with, his authorization to her to sell will be presumed, under the provisions of Article 1779 of the Civil Code.
    The right- oftho wife in this respect is o'ttrcmdy limited, since the husband’s authorization is only implied in contracts entered iuto by her to procuro the necessaries of life, and only when his neglect to supply them gives rise to that emergency.
    PPEAL from the District Court of the Parish of St. Martin, Voorhies, J.

      XX DeBlanc & Fusilier, for plaintiff and appellant. E. Simon, for defendant.
   Voorhies, J.

This is contest for the ownership of a mare named Jewel, the defendant setting up title from the plaintiff himself, through a purchase from the latter’s wife.

The question resolves itself into one of authorization from the husband to the wife, under the provisions of Art. 1779 of the Civil Code. It is there said : That “ the authorization of the husband to the commercial contracts of the wife, is presumed by law, if he permits her to trade in her own name; and to her contracts for necessaries for herself and family, when he does not himself provide them.” The parties, however, disagree upon the interpretation of the Article above quoted.

The evidence shows the necessitous circumstances of Mrs. Johnston and of the children under her care ; that she sold the mare, Jewel, to the defendant for a valuable consideration, for the purpose of providing for their support, education and maintenance ; that the proceeds of the sale were accordingly applied. On the other hand, the plaintiff did not furnish them the necessaries of life, and they were left to shift for themselves. It is true that, at the time, there were several suits pending between the husband and wife, in one of which, the parties claimed mutually a separation. But this did not dispense the plaintiff from providing for the support of Ms wife and family, until the termination of the litigation. Had he shown, however, that he had, if not furnished, at least endeavored to furnish them the necessaries of life, he would be entitled to relief. This silence and inaction in this matter, must be taken as a tacit authorization to the contracts of Ms wife for necessaries.

The plaintiff admits that the wife has the right to purchase the necessaries, but not to dispose of property belonging to her husband or to the community, for the purpose of accomplishing this object. As the property sold belonged to the community existing between the plaintiff and his wife, our remarks will be limited to the disposal of community property by the wife.

The text speaks generally of contracts for necessaries, and does not limit the wife to a mere purchase of necessaries. It may very well happen that, in order to procure them, she may be compelled to pledge movable property ; nay, the sale of such movables may be the only way by which she could procure wherewith to purchase the necessaries of life.

It cannot be said that the wife and the children must starve and remain without the other necessaries of life, or trust to the cold charities of the world, rather than dispose of some movables belonging to the community of which she is a partner. Conceding the necessity of a pledge or sale of property by the wife, in order to procure the necessaries of life for herself and children, and the failure of the husband to furnish them to his family, his authorization would be presumed.

Nor does this view of the case put the whole property of the community to the mercy of the wife, as contended for by the appellant’s coimsel; the right of the wife is extremely limited in this respect, since the husband’s authorization would be implied only to contracts to procure the necessaries of life, and not beyond that emergency. Thorn v. Egan et al, 3 Rob. 329 ; Deslix v. Jonc, 6 Rob. 293.

Judgment affirmed.

Merrick, O. J.

T do not think the plaintiff equitably entitled to recover, without tendering to the defendant the amount which he has paid for his benefit. On this ground, I concur, with some hesitation, in the decree.

Land, J., was not present at the decision of this case.


text:
    Edward C. Gardiner v. Jean B. Thibodeau.
    In an action for trespass, the defendant cannot put the plaintiff upon proof of title; possession alone is sufficient to support the action.
    The law does not justify any one in killing a slave, while in the act of committing a theft on liis premises ; and any person so killing a slave will he hound to the owner for his value.
    PPEAL from the District Court of the Parish of St. Landry, Martel, J.
    XX P. D. Hardee, for plaintiff and appellant. C. II. <& E. Mouton, for defendant.
   Merrick, C. J.

This suit is brought to recover the value of a slave alleged to have been killed by the defendant.

There was a verdict of the jury and judgment of the court in favor of the defendant, and plaintiff appeals.

There are some bills of exception taken to the charge of the Judge to the jury. As we shall dispose of this case upon the testimony, we do not feel called upon to express an opinion upon the bills of exception.

The proof is clear, that the defendant killed the slave Charles, as alleged in the petition. Defendant denies that he is liable, 1st, because the plaintiff has not shown that he was the exclusive owner of the slave; and 2dly, because the defendant was a freeholder, and having- ordered the slave to stop, he was justified in shooting him for neglecting so to do.

I. The plaintiff was in possession of the slave as owner. The defendant (if his act were without justification) is a trespasser. ITe cannot, therefore, put the plaintiff upon proof of title. 2 An. 224; G L. E. 559.

II. The slave was shot within the inclosures around defendant’s dwelling-house. His reasons are given by the witnesses as follows, viz :

B. Simms, (who was present while the body of the negro was lying outside defendant’s premises,) asked defendant who had killed the negro ? He says “ Defendant stated that he had.” When asked “ what it was for,” he answered “ that he had found the negro on his premises, stealing chickens; that he would kill any negro or any white man.”

Defendant told the witness, Gardiner, “ that he had hallooed to the boy to stop ; that the boy continued to run, and then it was that he shot.”

Léon Thibodeau, defendant’s witness, says that defendant told Mm “ that the boy was in his yard, under the gallery of an out-house, and the boy upon perceiving him had run ; that he had stopped once, and the negro still running, he had shot him. Starting from the corner of the yard fence, the negro fell 16 yards from the fence. There were chicken feathers from the yard to the place where the negro was lying.”

This view which the defendant has taken is doubtless the most favorable which can be put upon his actions. Does it amount to a justification, he being a freeholder ?

The law on this subject, as it now stands, is as follows :

“ It shall be lawful to fire apon runaway negroes, who may be armed, when pursued, if they refuse to surrender.” Acts 1857, p. 233, sec. 41.

It is proved that a knife was found in the pocket of his coat after the body of the negro was removed to the residence of the plaintiff. The coat was lying at the feet of the boy, and the knife was a butcher knife, six or seven inches long. This does not bring the case within the statute. The defendant did not pretend (as we have seen), that he killed the slave because he was a runaway and armed, but because he was stealing his chickens, and run, and did not stop when commanded. If it be assumed, that the negro had his coat on when he was stealing the chickens, and the knife was in the pocket, the defence still fails, because it is not shown that the slave was a runaway. So far from being a runaway, the proof makes it sufficiently certain that he was out for no other purpose than that of stealing chickens; two of which were found by his house. The proof shoivs, that he was addicted to theft; but there is none tending to show that he was a runaway. Our law does not justify the killing- of any one for a theft, and the defendant is left without sufficient justification. McCutcheon v. Angelo, ante, p. 34, 3 An. 132.

There is much difference in the estimates of the value of the slave. Plaintiff’s witnesses place his value at $1800 ; defendant’s at $500. We will assume the medium, viz, $1150.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed ; and we do now order, adjudge and decree, that the plaintiff do recover and have judgment against the defendant, for the sum of eleven hundred and fifty dollars, and costs of both courts.


text:
    Alpheus L. Tucker v. Theodule Carlin & Wife.
    The foes of counsel employod by the wife to prosecute a suit for a divorce and a partition of the community property, must be paid by her out of her separate estate ; the community cannot be lield liable for them.
    from the District Court of the Parish of St. Mary, Voorhies, J.

      R. N. McMillan, for plaintiff. J. G. Olivier and H. Gibbon, for defendant and appellant.
   Merrick, C. J.

This is a suit instituted by the plaintiff to recover the sum of one thousand dollars for counsel fees and professional services rendered by the plaintiff to the defendant, Henrietta Trowbridge, wife of defendant, Carlin, in the prosecution of a suit against her husband for divorce, the custody of the children, and a partition of the effects of the community, and services in the defence of a suit for a divorce brought by Carlin against his wife. See case of Trowbridge v. Carlin, 12 An. 882.

There was judgment in the District Court against the defendants jointly. Carlin aloue appeals.

The value of the services are not questioned. The appellant, however, contends, that as these services wore rendered the wife alone, they ought to be paid out of her separate estate, and not out of the community.

On the other hand, it is contended that the debt was contracted during the existence of the community, and is, therefore, a debt of the community. His counsel cites Art 2372 of the Civil Code, which declares that “ the debts contracted during the marriage enter into the partnership or community of gains, and must be acquitted out of the common fund, whilst the debts of both husband and wife anterior to the marriage must be acquitted out of their own personal and individual effects.” This Article, taken literally, and without reference to other provisions of law, is certainly sufficiently broad to maintain plaintiff’s demand ; but, after a careful consideration of the subject, we are induced to think that the defendant cannot be held responsible for this debt.

The husband is the head and master of the community, and is bound for the debts of the community, not only to the extent of its effects, but to the extent of his separate estate and entire fortune. Being the head and master of the community, aud rigorously bound as above, the law has given him absolute control over the debts and contracts of the community, and no man can pretend to a debt against the community, or even against the separate estate of the wife, in virtue of a contract, without his consent. Crow et al. v. Slocomb, 11 Rob. 506. It is not pretended, that any such assent has been given in this instance, and if the plaintiff is entitled to recover, it is not in virtue of an express contract. If, therefore, plaintiff can recover of the community, ir is by reason of a quasi contract, and the benefit which the community has derived from his services. C. C. 2272 and 2273.

Mrs. Carlin, it must be observed, does not apppeal. Then let us consider whether plaintiff can recover under a quasi contract. If so, he has managed the business of the community as a negotiorum gestor, or done something which has been of advantage to it. It was not the first, for he was acting expressly in another capacity, that of attorney and counsellor at law, and directly against the wishes of the head of the community. When he brought the suit for a partition of the community and a divorce, he was not benefiting-the community, but on the contrary, he was endeavoring to injure it, by putting an end to the same. How, therefore, can it be said, that he has benefited the community, and is, therefore, entitled to compensation out of it ?

There are many debts which the wife is obliged to pay out of her separate estate, although made after the existence of the community. Such are cases where improvements are made upon the separate property administered by her, or where she has committed a tort, for which she is liable. 8 An. 34. The spirit, therefore, of Article 2372 governs, and separate debts contracted after the marriage, are paid in the same manner as those contracted before the marriage.

Again : the fees of the attorneys may bo assimulated to the costs in this class of cases, which, where the wife failed in her action, are generally decreed against her and not against the community. 11 Rob. 445 ; 1 An. 315 ; 5 An. 33 ; 6 An. 262 ; ibid, 403 ; 9 An. 283 ; 6 Rob. 38 ; 6 Rob. 135, &c.

If she can be made responsible for the costs, in like manner, she may be responsible for the services of her attorneys, rendered without contract. For the one is a debt contracted during the existence of the community, as well as the other.

Again : no man ought to be held responsible for the acts of another done to his prejudice and against his will. Thus it is held in regard to the negotiorum gestor, that the latter must have intended to act in the interest of and to manage the affairs of another and not his own, and the management must have been useful at the time. Mackeldey, p. 238, No. 499, Brussels ed. 1846.

Now, as the wife may repudiate the community at its dissolution, and thus leave its debts and its burdens to be borne and discharged by the husband and his heirs, she ought not to have it in her power to increase the liabilities of. the same.

jf It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed as to said defendant, P. C. Carlin, and that there be judgment in his favor, and that he recover his costs in both courts.


text:
    Jeremiah Collins v. J. W. McDonald.
    A judgment by default taken in a suit on a note, by a party claiming tbe ownership of it by the blank endorsement of the payee, does not relieve the plaintiff from the necessity of proving the endorse-
    PPEAL from the District Court of the Parish of St. Landry, Martel, J.
    XJl Swayze & Moore, for plaintiff. John E. King, for defendant and appellant.
   Merrick, C. J.

This suit was brought upon a promissory note, payable to the order of John F. Campbell, through whose endorsement plaintiff claims ownership of the note.

Judgment was taken by default, and on making’ the same final, plaintiff offered the note in evidence, but failed to prove the signature of the endorser.

Defendant appeals, and demands a reversal of the judgment, for want of proof of title to the note.

The objection is well taken. The judgment by default does not relieve the plaintiff from proof of his demand. O. P. 312. He has not proven his demand in this ease until he has shown that he has acquired title to the note, which has not been done. Johnson v. Duncan, 5 M. 361. This case differs from that, where the defendant has answered, and is presumed to be present at the trial. In the latter case, if he does not object to the admission of the note in evidence, on the ground that the signatures of the endorsers have not been proved, he is presumed to waive such objection, and the signatures are considered as admitted.

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


text:
    State v. C. Derosier et al.
    "When a judgment of forfeiture has boon rendered on a bail bond, in which there is no mention of any offence for which the principal was answerable, and it does not appear from the record that there was any indictment against him, the judgment will be reversed.
    from the District Court of the Parish of St. Landry, Martel, J.
    P. D. Hardy, for the State. J. E. King, for defendants and appellants.
   Voorhies, J.

This is an appeal from a judgment of forfeiture of a bail bond. The error assigned by the appellant is, that the judgment was rendered without evidence, there being no statement of facts, no indictment, and no offence mentioned.”

On a perusal of the bond, we find that there is no mention made of any offence for which the defendant was answerable; and, although the Clerk certifies that the record contains all the documents and evidence in the case, yet there appears to be no indictment against the appellant. State v. Cooper, 3 An. 225.

It is, therefore, ordered and decreed, that the judgment of forfeiture be avoided and reversed, as in case of nonsuit.


text:
    Williams et als. v. Close et als.
    "When a survey is ordered, the costs of making it must be taxed with those of the suit, and paid by the party cast in the action.
    On the dissolution of an injunction, the Judge may allow damages to the amount of twenty per cent, on the judgment enjoined, without proof.
    But when counsel fees are proven and allowed, exceeding twenty per cent., the Judge cannot, in addition to such allowance, award twenty per cent, as damages.
    PPEAL from the District Court of the Parish of St. Landry, Martel, J.

      JO. Swaijze & Moore, for plaintiffs. T. H. Lewis & Porter, for intervenors. JB. F. Linton, for defendant and appellant.
   Merrick, C. J.

A judgment of the District Court in this case was affirmed by this court in 1857. See 12 An. 573, 578. On the return of the mandate to the lower court, an execution issued for the costs. The present proceeding is an injunction against the Sheriff and plaintiffs, to enjoin so much of the execution as was issued for the costs of the survey, amounting to $449 08, and the fees of one of the witnesses.

The injunction was dissolved, with twenty per cent, damages, eight per cent, interest, and fifty dollars special damages for attorney’s fees.

The plaintiff in injunction appeals.

If the District Judge were of the opinion that there was not sufficient time to make up the transcript, he could make the appeal returnable to the next following term of the Supremo Court.

We do not understand counsel for appellant to complain of so much of the judgment as allows the plaintiffs the costs of his witness.

As to the survey, it was ordered by the District Court, notwithstanding the opposition of the defendant. The costs, therefore, of the survey, were properly taxed against the defendant under the very letter of the statute of March 15, 1855. See p. 467, sec. 5. It is enacted, “ That the fees chargeable by surveyors shall be paid by the parties desiring their services; and when the services shall be rendered in obedience to an order of a court, in a suit therein depending, the surveyor shall make and state an account of his fees for such services written in words at full length on the back of one of the plats returned by him to the court, and the same shall be allowed in the bill of costs to be against the losing-party, as other costs; but when it shall appear that the survey, or any part thereof, was made at the instance of the party cast in the suit, so much of said fees as accrue on' the work done by the surveyor for such party shall not be taxed.” See also Bullard & Curry’s Dig., p. 796.

The survey in this case was made at the instance of the plaintiff in a cause then pending, and judgment having been rendered against the defendant, the cosí® of the same were properly taxed to be paid by the losing party. The District Judge having determined that the survey was necessary in the original suit, by ordering the same, we must presume that it was useful and 'necessary notwithstanding the ancient plats on file.

It is contended by the appellant, that the judgment is erroneous in condemning him to pay fifty dollars special damages, and twenty per cent, general damages on the amount enjoined, viz, 449 08.

We do not perceive that any other damages have been proven besides the attorney’s fees. The Act of 1831, reenacted in 1855, gives the court power to render judgment “for not more than twenty per cent, damages, unless damages to a greater amount be proved." Acts 1855, p. 325, sec. 7.

Interest is the only damages allowed by law for delay in the payment of money. O. 0.1929. The court cannot, therefore, in general, where interest is allowed, presume that the party has sustained damages to a greater amount. The exception to this general rule is in the case of injunction, where the court may, under the statute, award, without any proof whatever, damages to the amount of twenty per cent, on the amount enjoined. But more than this cannot be allowed without proof.

In this case, the attorney’s fee, proven, amounts to more than twenty per cent, damages. It was, therefore, properly allowed. But the court has given the plaintiff twenty per cent, damages in addition. This, under the exposition of the statute made by this court, as well as by the language of the law itself, seems- to-be erroneous. See Brown v. Lambeth, 2 An. 823; Farrar v. New Orleans Gas Light Company, ib. 874.

The court did not err in awarding eight per cent, interest upon the amount enjoined. This part of the original judgment did not bear interest, and the District Court properly, on the dissolution of the injunction, awarded the highest rate of conventional interest. Acts 1855, p. 325, sec. 7.

The affidavit for an injunction was sufficient.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be amended, by striking therefrom the allowance of twenty per cent, damages on the amount enjoined, and that said judgment so amended be affirmed, the appellees paying the costs of the appeal.


author: Buchanan-, J.

text:
    Jean Jacques Neveu v. H. F. Voorhies, Sheriff, et al.
    Counsel fees will not be allowed as special damages where an injunction is maintained against a seizure-of property, and the case is not a proper one for the allowance of vindictive damagos.
    from the District Court of the Parish of Lafayette, Martel, J.

      C. II. & E. Mouton, for plaintiff and appellee. M. E. Girard and A. De-Blanc, for defendants and appellants.
   Buchanan-, J.

The Sheriff of the Parish of Lafayette seized and advertised for sale, under executions in several suits against Neveu & Guidry, “ all the right, title and interest of C. Neveu in the store at the corner of Main and Lafayette streets, carried on under the name of J. J. Neveu."

Jean Jacques Neveu has enjoined the sale, and claims by his petition one thousand dollars damages from the Sheriff and the seizing creditors, for the seizure. He avers that his son, Christophe Neveu, on the 13th of April, 1858, instituted suit against him, alleging himself to he part owner of the property in question, and a partner with petitioner in the goods, merchandise, notes and accounts belonging to the store mentioned in the notice of seizure; and claiming an undivided half of said property ; that on the same day of the institution of that sui% the petitioner was served with the notice of seizure as above. Petitioner avers that he is sole owner of the aforesaid store, and of all the goods, merchandise, notes and accounts appertaining thereto, and that the said Christophe Neveu. has no right, title, nor interest in said property. He alleges as a reason for bringing this suit, that his silence, after having received the notice of seizure, might be construed as a tacit admission on Ms part, that Christophe Neveu has an interest in the aforesaid property.

The answer of the defendants pleads that Christophe Neveu, their debtor, as being a partner in the late firm of Neveu & Guidry, is really and truly interested as half owner and partner in the store mentioned in the petition, and in the merchandise and business contained and carried on in said store. That the said property has been put and held in the sole name of plaintiff, Jean Jacques Neveu, for the purpose of defrauding the creditors of his son and partner, Christophe. Wherefore they pray for the dissolution of the injunction herein, with damages.

The evidence shows that the house and lot in which the store is contained were adjudicated at Sheriff’s sale in August, 1854, to Jean Jacques Neveu, who gave his twelve months bond for the price, which was paid by him at maturity. It is also shown that in 1853, the plaintiff, who previously had a separate store in the village, (Yermillionville,) moved his stock of goods into this store, then occupied by Neveu <& Guidry, who about the same time retired from business, and the business has been carried on in the sole name of plaintiff ever since. Many witnesses have been examined on both sides, as to the sayings and doings of the parties ; and various bills of exception have been reserved by plaintiff and defendants to the admission and rejection of testimony as to particular facts; which bills we do not deem it necessary to pass upon. It appears that Christophe Neveu has been, with some intermissions, actively employed in the store; and that he has declared, out of the presence of his father, the plaintiff, that he had an interest in the store. But it is not proved that the plaintiff has ever, either directly or by implication, admitted the existence of such an interest. It is moreover shown, that plaintiff exercised the control of a master and owner in the establishment, to the point of even turning Christophe out of the store on one or more occasions.

The defendants seem to have been afforded every facility of establishing a partnership between the plaintiff and his son, and of establishing an interest on the part of the latter in the immovable and movable estate comprised in the notice of seizure; and they have failed to do so. The burden of proof was upon them ; for the presumption arising from possession was on the side of plaintiff. And as to the house and lot, it must be observed, that there is something more than a mere failure of proof on the part of defendants ; for there is direct proof, on the part of plaintiff, of the purchase in his name at Sheriff’s sale, and of Ms payment of the price. The bid was made, it is true, by the son; but the circumstances establish, with sufficient distinctness, that he acted in the matter as agent of his father.

Upon this state of facts, we conclude that the injunction was properly maintained. But we disagree in the allowance of three hundred dollars, as damages against the defendants, being for counsel fees. Under the Acts of 1831 and 1833 the practice is well established to allow attorneys fees as special damages, in case of dissolution of injunction, But no precedent has been brought to our notice, of such an allowance, in case of the injunction being perpetuated. It may be, that cases could be found, where attorneys fees have been an element of damages for wrongful seizures of property of a party for the debt of another party. But this ig not a case of that kind. The plaintiff’s store has not been seized, but merely the right, title and interest of another person in that store ; and if that seizure had proceeded to a sale, the purchaser would have acquired nothing more than a right of action against plaintiff, to establish the extent of such right, title and interest. And this is not a case for the allowance of vindictive damages ; for the defendants’ proceedings in the premises, which gave rise to this action, are clearly not malicious, and were based upon probable cause.

It is, therefore, adjudged and decreed, that the judgment of the District Court, so far as it has perpetuated the injunction herein issued, be affirmed; that so far as it allows damages to plaintiff, it be reversed; and the claim of plaintiff for damages is rejected. It is decreed, lastly, that defendants pay costs of the court below; and that plaintiff and appellee pay costs of appeal.

Vookhies, J., recused himself in this case, on account of relationship to one of the parties.