author: Bullard, J.,

text:
    HANDY, UNDER-TUTOR, &c. vs. PARKISON ET AL.
    Eastern Dist.

      June, 1836.
    APrEAL PROM THE COURT OE THE THIRD JUDICIAL DISTRICT, THE JUDGE OE THE EIGHTH PRESIDING.
    The father and, mother have, during marriage, the enjoyment of the'estate of their children, until majority or emancipation; and the usufruct, which the father has on the estates of his children, is only during marriage, and is a legal usufruct.
    According to the laws of Spain, the father is entitled, during minority, to the usufruct of the adventitious property of his children, and is not bound ,to account for the fruits and revenues. He can never bo the tutor of his own child, as it is only on his death tutorship begins. He may, by testament, appoint a tutor, even to the exclusion of the mother.
    According to the Louisiana Code, the surviving husband cannot be a usufructuary of the estate of his children. Tutorship commences on the dissolution of the marriage, by the death of either party, and the survivor is entitled to the tutorship as natural tutor. The obligations of tutor, in relation to the property of the children, are prescribed by law.
    The Spanish law was abrogated in Louisiana, by the 25th section of the act of 1828.
    This suit commenced by injunction. The plaintiff, Samuel Handy, in his capacity' of under-tutor to three of the minors, heirs and children of Pamelia Flower, deceased wife of Henry Flower, alleges, that said heirs, together with four others, inherited from their deceased mother, a plantation. and slaves, near Bayou Sarah, which she owned in her lifetime as her seperate property.

      The plaintiff further states, that John Parkison, sheriff of West Feliciana, in virtue of two executions, which issued on judgments obtained by the Bank of Louisiana and N. Cox, against Henry Flower, the father of said minors, has levied on all the undivided interest of said minors, in the present crop of cotton, and is about to sell it, on the pretense that Henry Flower, the father, has a usufructuary interest in the property of said minors, his children. He prays for an injunction to stay the sale, and that It be adjudged and decreed that this property is in no way liable for the debts of the father, and for general relief.
    The separate answer of N. Cox, one of the creditors, enjoined, admits the plantation and slaves in question were the separate property of Pamelia Flower, deceased; that it has descended to the three heirs, who are now plaintiffs, and held by them in common; but that it is possessed and carried on by their father and natural tutor, Henry Flower, who has a legal right to the revenues and profits arising therefrom, in consideration of educating and supporting said minor .children. He expressly avers, that the whole of the cotton crop belongs to the said Henry Flower, as revenue and usufruct, and is subject to seizure and payment of his debts.
    He prays that the injunction be dissolved, with damages, and that the said property be declared liable to the debts and executions, under which it is seized.
    Upon these pleadings and issues, the cause was tried. The plaintiffs showed, as was conceded, that the plantation and slaves, upon which the cotton crop, consisting of one hundred and forty bales, under seizure, was raised, belonged to them in their own right, and that they were under the tutelage of their father, Henry Flower. The district judge was of opinion, the revenues and profits of the plantation and slaves, was entrusted to the control and management of the father and natural tutor, for the education and maintenance of the minors, according to their situation in society during minority, and in no way subject to his debts. Judgment was therefore rendered in favor of the plaintiffs, perpetuating the injunction, &c., from which the defendants appealed.

      Flower, for the plaintiffs.
    The judgment of the District Court is correct and ought to be confirmed, so far as relates to the want of right to levy on the proceeds of the property of minors as belonging to the father, as usufructuary after dissolution of marriage :
    1. Because the usufruct sought to be established, is the legal usufruct to which the father is entitled on the estate of his minor children, but which can exist only during marriage. Louisiana Code, articles 239 and 532.
    2. Because this usufruct does not exist after dissolution of marriage, for the law directs, Louisiana Code, article 241, to whom the usufruct shall belong in case of a mere separation from bed and board, and when both mother and father are aliens ; but in case of the death of either mother or father, usufruct ceases to exist, and neither the surviving mother nor father is entitled to the usufruct of the property of their minor children, for immediately the law of tutorship governs ; and the Code directs, article 268, that “ after the dissolution of marriage by the death of either husband or wife, the tutorship of the minor children belongs of right to the surviving mother or father,” who then becomes natural tutor and is bound to perform all the obligations required of tutors, except that he is not compelled to give security. Louisiana .Code, article 269.
    3. Because there is no law which frees the father as natural tutor from the obligation of performing the duties required by articles 341 and 343 of the Civil Code, which requires him to invest the surplus revenue of his minor child, and to provide for his support and education from the revenue of the minor if sufficient, otherwise by the advice of a family meeting, to take from the capital to supply his wants ; from which provisions of law, the iniquity of this seizure is at once apparent: for, how could a father perform these duties % or, what would be the fate of a minor whose revenue is taken to pay the debts of his tutor, and having nothing to support or educate him 1 His capital must soon follow.
    4.: Because the Civil Code, in directing the manner in which usufruct expires, relates at article 606 the conditions of the only case in which it can exist after dissolution of marriage, which is when usufruct is left to a surviving wife, until her dowry be refunded ; and as nothing of the kind can exist in this case, the marriage having been dissolved, the right of usufruct has ceased.
    5. Damages should be allowed in this suit, because the law directs that “ every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it.” Louisiana Code, articles 2294-96. And this is certainly a case in which the minors, represented by their under-tutor, have sustained damages; for, the proceeds of their property having been illegally seized, they have been forced into the trouble and expense attending the prosecution of this suit; and the defendants, not contented with the judgment of the District Court, which is founded o'n plain law and justice, except as regards damages, where it was in their favor, but with which the appellee would have rested satisfied, have forced them into the additional expense of defending this appeal.
    6. Should the father be considered as usufructuary after dissolution of marriage, the usufruct is not liable to seizure, as it is the usufruct of the property of the minor children. Louisiana Code, article 1987.

      Lobdell, for the defendants,
    contended, that the seizure in this case should have been sustained, and the injunction dissolved. The property is clearly a usufruct, belonging to Henry Flower, the father of the minors, and in the enjoyment of their estate. Louisiana Code, articles 26, 39, 41, 124, 153, 154, 234.
    2. Fathers and mothers shall have, during marriage, the enjoyment of the estate of their children, until their majority or emancipation. The usufruct, in case of separation from bed and board, shall take place in toto, &c. Louisiana Code, articles 239, 240 — 5, and 253.
    3. After the dissolution of the marriage, tutorship begins, and belongs of right to the survivor, as natural tutor. No security is to be given; but in relation to creditors, according to article 1037, they must give security. Louisiana Code, articles 268, 269, 271, 321, 326, 330, 343, 344.
    4. The father is, during marriage, administrator of the egta(:e Qf kis children, and is accountable for the property and reVenues of the estates, the use of which he is not entitled to by law; and for the property only of the estates, the usufruct of which the law gives him. The administration ceases at the term of majority or emancipation of the children. Louisiana Code, artiele 267.
    5. Usufruct is the right of enjoying a thing, the property of which is in another, and take its revenues and profits. Louisiana Code, articles 525 to 529.
    6. The usufruct which the father has in the estate of his children during marriage, is a legal usufruct, and all the revenues, fruits and profits of every kind, (except increase of slaves,) belong to the usufructuary. Louisiana Code, 532, 536 to 549, and 553.
    7. If all the property of the wife be paraphernal, and she reserves the administration of it) she ought to bear a proportion of the marriage charges, equal to half her income, if needed. Louisiana Code, articles 2366,2372,2378,2397,.2409J
    8. By the laws of Spain, the father, was charged with providing for supporting and educating his children. This power over the children, was for the benefit of the father. See Civil Law of Spain, translated by Johnston, pages 4 and 7, notes 11-14, and 1 to page 7 ; and also, page 52.
    9. If the wife leaves children, the husband remains in the enjoyment of’ the usufruct of the dot. Civil Law of Spain, Johnston’s translation, page 60, note 22. 1 Partida, (Moreau & Carleton) page 541, law 31.
    10. The father has great power over the persons and property of his children. See Civil Law of Spain, pages 74-5, notes 7 — 13. 1 Partida, (Moreau & Carleton) page.564.
    11. The Spanish laws referred to, clearly support the claims of the defendants to the property under seizure, as the usufruct of their debtor, and this law should govern in this case. The Civil Code of 1808 only repealed so much of the former laws as were contrary to, or incompatible with it. 5 Martin, 94. 1 Ibid., JV. S., 90.
    The father and mother have, duringmarnage, the enjoymentof the estate of their children, until majority or emancipation; and the usufruct, which the father hason the estates of his children, is only during marriage, and is a legal usufruct.
   Bullard, J.,

delivered the opinion of the court.

The appellants having recovered judgments against Henry Flower, caused executions to be levied on a lot of cotton in bales, which had been raised on a plantation belonging to his minor-children, which they inherited from their deceased mother, and is administered by their father and natural tutor. The under-tutor of the minors obtained an injunction to prevent the sale of the cotton thus seized, alleging that it belongs to them, being the produce of their land and of the labor of their slaves. The defendants justified the seizure, by alleging that the cotton is the property of the father, as usufructuary of their land and slaves.. The question thus presented is, whether, according to the existing law, the surviving father is entitled during the minority of his children to the usufruct of the property belonging to them by inheritance from their deceased mother. The seizing creditors, whose pretensions depend on sustaining the affirmative of this proposition, having failed below,- have appealed to this court.

They rely mainly on article 239, taken in connection with article'532 of the Louisiana Codé, and upon the Spanish law. The first of these articles declares, that “ fathers- and mothers shall have during marriage the enjoyment of the estate of their children, until their majority or emancipation.” The latter declares, that the usufruct to which the father is entitled on the estate of his children during the marriage, is a legal usufruct.” We are acquainted with no rule of construction of statutes which would authorize us to reject as surplusage such important words of limitation as “ during marriage,” in both these articles; on the contrary, we are. bound to give effect, if possible, to every word. By the first article, the usufruct of the father and mother is dependent on .two conditions: the minority of the children, and the continuance of the marriage. By another provision of the Code, this usufruct accrues-to the benefit of the party at whose suit a separation has been pronounced. If the father be entitled to enjoy the property of his children as usufructuary, after the dissolution of the marriage, it appears to us-clear he must .derive that right from some other part of the Jaw,' and that the articles in question, being perfectly clear and free of ambiguity, are not susceptible of such a construction as to confer it.

According to the father is en-minority ToThf usufruct of tire periy of Mochil-bound‘^account for the fruits and revenues. jjg can never be ehiidf as*S ulS only on bis death tutorslnpbegins. He may, by tes-iTtutor, even To the mother°n °f

According to the Louisiana ving husband fructuary ofthé children”^ Ta torsbip com-dissolutipnoftbe deatiTof either party, and the tied'to the tutor-tutor aS TheTh-ligations of tutor, in relation to the property Prescribed11’ by awP Is

But, it is contended, that these provisions of the existing Code are not inconsistent with the existence of such a right, and that the Spanish law, which recognized this usufruct as belonging to the. father during the minority of his children, ^ Still ill .Í0ÍC6*

We do not doubt that by the law of Spain, the father is entitled during minority to the usufruct of the adventitious property of his children. He was .not bound to account for the fruits and revenues ; but there is an obvious and striking difference between the Spanish law and that of Louisiana as * to tutorship. In Spain, the father can never be the^ tutor his own child it is onty on his death that tutorship begins, and he may by testament appoint a tutor, to the . . i rl ... exclusion of the mother: as the paterfamilias he enjoys during the minority of his children the usufruct of their property, unc^er certain restrictions. By our Code, on the contrary, the tutorship commences on the dissolution of the marriage by the death of either party, and the survivor is entitled to the tutorship as natural tutor. The surviving father becomes tutor, and his obligations as such in relation to the property 0^ PUP^> are pointed out by the Code. He is not bound, it is true, to give security for his faithful administration, but iQ other respects we find no difference between the obliga-h°n ^ie natural and the dative tutor. They are equally bound by law to account for the revenues of the property of the pupil, subject to the expenses of their education according to their means and condition in life. These obligations and responsibilities are wholly inconsistent with the rights of . Usufructuaries.

But even supposing that this part of the Spanish law .was not tacitly abrogated by the Code of 1808, or by that of 1825, yet by the 25th section of the act of 1828, it is enacted, that “ all the civil laws which were in force before the promulgation of the Civil Code, lately promulgated, be and are hereby abrogated, except so much of title tenth of the Civil Code, as is embraced in its third chapter, which treats of the dissolution of communities or corporations.” This court has always considered this section of the act of 1828, as express- ,. * Iy repealing the whole body of the Spanish law, which remained in force after the promulgation of the Code of 1808. The Civil Code itself was repealed, except so far as relates to the chapter above mentioned.

The Spanish tedinLouiSanaj hythe: 25th sec-lion ot the act of is28.

This view of the merits of this controversy, renders it unnecessary for us to examine some minor questions, relating to the proceedings in the court of the first instance.

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


source: Caselaw Access Project

author: .Mathews, J.,

license: Public Domain

text:
    STATE vs. DUNBAR ET AL.
    Eastern Dist.

      June, 1836.
    APPEAL FROM TIIE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE OF THE EIGHTH PRESIDING.
    The forfeiture of a recognizance or hail bond, for the non-appearance of the principal and his hail, on the day fixed in the bond, does not fix the parties to it, and is not absolute. It is in the nature of an estreat at common law, extracted from the records of the Criminal Court, to serve as foundation of proceedings against the accused and his bail or surety, to amerce them; but to the rule taken, and motion for judgment on the bail bond, the parties may plead other matters and be discharged.
    Where the accused in a criminal prosecution, appeared with his bail, after the recognizance was forfeited, but before final judgment on the hail bond, and a nolle prosequi entered as to the charge against the accused: Held, that both principal and surety were exonerated from the penalty in the bail bond.
    When the accused appears, after forfeiture of his bail', but before -judgment ■ on the bond, it is the duty of the district attorney to either proceed with his trial, or pray the court to order him into custody.
    This is a civil proceeding on the part of the state, on a bail bond against the defendant, A. Dunbar, as bail or surety for one John M‘Knight, charged with criminal offences, to recover of him, to the use of the state, the penalty expressed therein, on the alleged ground, that the recognizance or bail 'bond was forfeited, for their non-appearance at court, on the day fixed in said recognizance,
    At the May term, 1835, of the District Court, for the parish of West Feliciana, the district attorney filed a notice, with a copy of the bail bond and order of forfeiture annexed, that at the expiration of ten days, he should proceed against the defendant, on behalf of the state, for judgment on his bail bond, for a breach of its conditions, and to recover the sum of six hundred dollars, being the penalty expressed therein.
    The defendant admitted his signature to the bond, but denied that he was liable for the penalty; that if said bond was ever forfeited, the said John M‘Knight, who was the accused and principal in said bond, afterwards appeared, and is now in court, to answer any charge the state may have against him.
    The evidence showed, that the accused, John M'Knight, was admitted to bail, at May term, 1833, on an indictment for perjury and assault and battery, in the penalty of six hundred dollars, with the defendant as his surety, also in the penalty of six hundred dollars; the bond conditioned, that said M‘Knight should appear to stand his trial, on the first day of the succeeding term of said court.
    At the next, or December term, 1833, the accused and his bail were called and appeared not, and the usual order of forfeiture entered up against them.

      The forfeiture of a recognizance or hail bond, for the non-appearance of the principal and his bail, on the day fixed in the bond, does not fix the parties to it, and is not absolute. It is in the nature of an estreat at common law, extracted from, the ^Criminal Court, to serve proceedings a-fe^amfh^baii amerceretthem° but to the rule tion for judg-bond thepaitfes may plead other discharged.

      On the 2d of January, 1834, during the term of the court, the accused appeared at the bar in discharge of his several recognizances, and moved the court, by his counsel, that the forfeiture of his said recognizances be set aside. This motion was ordered to be entered for hearing.
    At December term, 1834, the accused came into court and entered his appearance. He has appeared at every term since. At May term, 1835, the motion and proceedings were commenced against the defendant as surety in the bail bond.
    The district judge was of opinion the district attorney made out his case, and rendered judgment accordingly. The defendant appealed.

      Bradford, for the appellant,
    made the following points :
    1. The bond is conditioned that John M‘Knight appear on the first day of the next term after it was given, to answer, &c, and then and there continue and abide, pay and satisfy, &c. The next term commenced on the 2d of December, 1833, and John M‘Knight was not called before the 6th. On that day the bond was forfeited nisi. The final forfeiture of the. bond was never made. On the 2d of January, 1834, the same term of the court, John M'Knight appeared at the bar, in discharge of his several recognizances, and by counsel moved the court to set aside the forfeiture of his recognizances. The motion was entered for a hearing. No action was ever had upon that motion. M‘Knight continued in court until the judgment against his bail, from which this appeal is taken.
    2. The judgment must be reversed, because there are no reasons given by the court for the judgment, nor has the judge referred to any law on which he founded the said judgment.
   .Mathews, J.,

delivered the opinion of the court.

In this case judgment was rendered in favor of the state, on motion of the district attorney, based on a recognizance or bail bond, in which M‘Knight was principal and Dunbar security for the appearance of the former at a term specified, to answer to certain criminal charges found against him by indictment. From this judgment the defendant appealed,

Where the ae-cused in acnmi-nal prosecution hnTbaii, after the recognizance was forfeited,, but before final baiftond.'antu ■nolleprosejuien-tered as to the charges against Held, that both surety'‘were exonerated from ihebanbond.m

men the ac-after- forfeiture before judgment on the bond, it is the duty of the district attorney, pray the courtto order him into custody.

appears from the facts, as found in the record, that on the day fixed in the bond, the defendant did not appear, that ... 11 7 he and his bail were’ regularly called and the bond was declared to be forfeited on the minutes of the court. SubseqUently and before the defendant was put on his trial, he appeared in court, for the double purpose of releasing his bail fr°m bis obligations as surety and to stand his trial. A nolle Prose<lw* was afterwards entered by the district attorney, in relation to the criminal charges against the defendant. All these proceedings took place before any judgment was rendered on the motion against him and hi's surety. The forfeiture alleged was not absolute, but similar to what is known in the common law under the term estreat, which signifies extracted from the records of the Criminal Court, to serve as . . . , . a foundation against the accused and -his surety, for a scire facias, to which they were allowed to plead other matters, calculated to exonerate them from their obligations. The , , . . , rule with notice to show cause, authorized by our laws, against the accused and his bail, stands in the place of the scjre facias of the common law, to which may be pleaded all J 3 . r things which tend to exonerate the parties called on to show cause; and if legally established by evidence, they must be discharged from their obligations,

We are of opinion, that the appearance of the defendant, for the purposes as above stated, was sufficient to annul the bail bond or recognizance, and release the parties to it. When he thus appeared, it was the duty of the prosecuting attorney, either to proceed immediately to his trial, or if this could not be done, pray the court to order him into custody. r J „ . . . . „ / The present case is more favorable to the pretensions of the than that of the State vs. Hay et al., decided at Raton Rouge term of the court, held in 1834. See 7 Louisiana Reports, 78.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, be avoided, reversed and annulled, and that judgment, be here entered for the defendants, &c. . ' '


author: Mathews, J.

text:
    SKILLMAN vs. DOWNS.
    Eastern Dra-r.

      June, 1836.
    AFTEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE OF THE EIGHTH PRESIDING.
    In an action of slander, the plea of the general issue and a plea of justification are inconsistent and cannot stand together. But where the cause was tried on these pleas, and the judge in his charge to the jury excluded the first from their consideration, it is sufficient.
    Where the plaintiff was ordered by the court to produce his commercial books on the trial, in pursuance of the affidavit of the defendant, setting forth the facts he expected to prove by them, and the former sent his books sealed up with directions to the clerk not to allow them to be opened, the affidavit was permitted to be given in evidence to the jury.
    This is an action of slander. The plaintiff -alleges that the defendant wickedly and maliciously slandered him, by uttering, publishing and charging him on the 2d of January, 1834, with being guilty, a day or two before he (plaintiff) made a surrender of his property, of fraud towards his other creditors, in baling and packing up his goods, and sending them to New-Orleans,” meaning thereby that he, plaintiff, in defiance of law and every other obligation, did willfully wrong, cheat and defraud his creditors, &c. He alleges that this charge, publicly made against him by the defendant, is malicious, willful, defamatory and false, by which he is, injured in his reputation and credit with his fellow citizens, and damaged to the amount of fifteen thousand dollars, fof which he prays judgment.

      The defendant pleaded a general denial to the charges and allegations in the plaintiff’s petition, and that he never did utter the words as charged, at any time. But true it is, he did in court, at December term, 1833, in St. Prancisville, as counsel, in arguing the opposition made by certain creditors of the present plaintiff, to the tableau of distribution filed by the syndic, which opposition was then made at the instance of the plaintiff, to prevent the_ order of the court for the payment of the money in his hands as syndic, as this respondent believed and charged. In giving a history of his, Skillman’s conduct, from the time of his becoming insolvent up to that time, this respondent said that he, Skillman, did a short time before his surrender, send off some of his goods to a merchant in New-Orleans, to pay his debt in preference of other creditors, or words to that effect; that he was induced to say this from documents and vouchers, offered - in support of the tableau: and’from the fact well known to this respondent that he, the said Skillman, within the three months before his surrender, did sell and deliver goods and merchandize to certain of his creditors, and give the notes, &c., and pay the same money, out of the ordinary course of business, &c., for the purpose of giving such creditors a preference over other creditors.
    The defendant further avers, that the plaintiff has, from June, 1831, to this time, slandered and defamed him, defendant, in the most false and unjustifiable manner, in consequence of which, certain of his clients were induced to withhold their business from him, &c. He again reiterates the charge of fraud against the plaintiff; denies every allegation in the petition, and prays judgment in his favor and for general relief.
    Upon these pleadings and issues, the parties went to (rial. The cause was submitted to a jury, who returned a verdict for the defendant; and from judgment rendered thereon, the plaintiff appealed.
    The case comes up to the Supreme Court principally on bills of exception, taken on the trial. The material ones are fully discussed and stated in the opinion of the court, delivered in the case.

      Bradford, for the plaintiff.
    1. The judgment of the court below should be reversed, because the court refused to strike out parts of defendant’s answer, on the motion of plaintiff’s counsel.
    2. Because the court permitted illegal testimony for defendant, in allowing his affidavit and other documents, &c., to go to the jury, notwithstanding its admission was objected to by plaintiff’s counsel.
    '3. Because under the facts as they appear in evidence, the court permitted, in error, the affidavit of defendant, filed on a call for plaintiff’s books, to be read in evidence to the jury.
    4. Because the court permitted the evidence to go to the jury, to matters not embraced in the pleadings, on part of defendant, which was objected to by plaintiff’s counsel.
    • 5. Because the court rejected legal and proper evidence offered on the part of plaintiff.
    6. Because the court refused permission to plaintiff’s counsel to submit the form of a verdict to the jury.
    7. Because of misbehavior in both the court and jury.
    8. Because the court refused to charge the jury as requested by plaintiff’s counsel, which charge would have been legal and proper ; but did give an illegal charge to the jwy-

      Downs, in propria person&.

   Mathews, J.

delivered the opinion of the court.

This is an action of slander, in which the plaintiff claims damages in reparation of injury to his chamcter, done on the part of the defendant, by charging him with the commission of acts of fraud against the rights of the mass of his creditors, immediately previous to his insolvency and cessio bonorum. The answer to the petition contains a general denial, and also a plea of justification. These pleas se.em to have been viewed by the court below as inconsistent, and the first was held to be superseded by the second, and the cause was tried on the issue made between the allegations of the petition and plea of justification, in which the defendant was successful before a jury, and judgment being rendered in pursuance of their verdict, the plaintiff appealed.

In an action of slander, the plea of general issue and a plea of justification are inconsistent; and cannot stand together. 'But where the cause was, tried on these pleas, and the judge in his charge to the jury excluded the first from their consideration, it is sufficient.

' The case has been argued before this court, solely on bills of exception taken in relation to questions of evidence, and. to the charge of the judge a quo to the jury.

The record exhibits,a great number of them. We shall, however, notice those only on which the plaintiff’s counsel relied in his argument.

The first exception, as they were examined by the counsel, relates to the defendailt’s answer. It appears that the plaintiff required the court to strike out certain parts of it, which was refused. The objections to it were duplicity in pleading the general issue and justification, and also to a plea, apparently in the nature of a reconvention. There is nothing found in these pleas, on which any thing like slander or defamation may be predicated. The two first could not stand together, and the nature of the case did not authorize the last. The first and last were by the instructions of the court, excluded from the consideration of the jury, which in our opinion was all that could be required, as the answer contains nothing slanderous. No expressions are found in it, abusive or defamatory. Impertinencies of this kind are reprobated by the Code of Practice, and when found in an answer, should be stricken out, in order that the records of judicial proceedings may be kept pure and uncoutaminated by unnecessary abuse. But it appears to us that no tribunal of justice ought to go farther than this, in expunging irrelevant matter from the pleadings in a cause.

The cause was submitted to the jury, as we have already stated, on the issue made up from the petition and plea of justification. On the trial, the counsel of the plaintifij in his zeal to protect the reputation of his client, opposed every species of evidence offered on the part of the defendant, in support of this plea. • From the examination which we have given to the exceptions taken to the mass of evidence, we ave unable to discover any error in the opinion of the judge a quo, by which it was admitted. There is, however, one of them that seems to require particular animadversion. It'relates to the admission of an affidavit, as testimony to the jury, made by the defendant, for the purpose of procuring an order from the court, to compel the plaintiff to produce his commercial books, &c.

Where the plaintiff was ordered by the court to produce his commercial books on the trial, in pursuance of the affidavit of the defendant, setting forth the facts he expected to prove by them, and the former sent his books sealed-up, with directions to the clerk not to allow them to be opened, the affidavit was permitted to be given in evidence to the jury.

This order was made, and obedience to it was improperly delayed, and finally its effect was evaded, by one of the most extraordinary proceedings, on the part of the plaintiff, ever witnessed in a court of justice. When forced finally to introduce his books, they were brought into court sealed up, with instructions to the clerk, in whose custody they were placed, not to suffer them to be opened by any person. This was considered such an evasion of the order, and mockery of justice, that the affidavit of the defendant in relation to this matter, was permitted to be given in evidence to the jury, in pursuance of the article 140 of the Code of Practice. In this we think the court below did not err.

The bill of exception to the conduct of the judge and jury, does not, in our opinion, contain matter sufficient to authorize us to remand the cause for a new trial. It appears that the foreman of the jury, after they had retired, came into court, and inquired of the judge, whether the affidavit of the defendant was to be considered as evidence, and received an answer in the affirmative. This was nothing more than a repetition of wha.t had been declared openly to all the jury during trial, resulting evidently from its admission after contest. We are unable to perbeive any thing like misbehavior in this occurrence, either by the judge or jury.

In relation to the charge of the judge, it was made in conformity with opinions, which had been drawn from him during the previous part of. the trial, and we have already stated, that they do not appear to have been erroneous.

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


author: Martin, J.,

text:
    HILL & M'GUNNEGLE vs. MERLE ET AL.
    EASTERN DlST.

      June, 1836.
    APPEAL PROM THE COURT OF THE FIRST JUDICIAL DISTRICT.
    Sureties in in solido, in a bond given to release property of the debtor, attached at the suit of his creditors, are bound to pay such judgment as may be rendered in favor of the plaintiffs in attachment. It is no defence to an action on the bond against the sureties, that they pointed out property," in which the common debtor had an interest, and that the plaintiffs neglected to seize it in satisfaction of their judgment.
    This is an action on a bond given by one A. Wetmore, to release one thousand barrels of flour, which 'had been attached at the suit of tlie present plaintiffs against him, in which the defendants, John A. Merle, Peter Laidlaw and J. G-. Stevenson, signed as sureties. The plaintiffs had judgment in their attachment suit, for three thousand four hundred and fifty-four dollars, against Wetmore, on which they issued both a fieri facias and ca. sa., and which were returned unsatisfied. The plaintiffs allege, that the defendants are liable for the amount of said judgment on their bond.
    The defendants admitted their signatures to the bond ; but denied that they were liable on it. They aver, that previous to the institution of this suit, the plaintiffs had recovered part of their judgment; and that property enough to pay the balance of Wetmore’s, had been pointed out to them, which they refused or neglected to seize, or notify these defendants of their refusal, by reason of which they are released from their responsibility arising on their bond.
    The conditions of the bond sued on, were, “that if Wetmore should satisfy such judgment as was rendered against him in the attachment suit, this obligation is to be void, else to remain in full force.”
    The defendants showed, that an agent of one of them notified the agent of the plaintiffs in New-Orleans, that the steam-boat “Far West” was in port, in which Mr. Wetmore had an interest of two thousand and fifty-nine dollars, and to seize his interest, under execution on the judgment then obtained in the attachment suit against him; and that any expenses incurred would be defrayed and paid.
    Sureties in in solido, in a bond given to release property of the debtor, attached at the suit of his creditors, are bound to pay such judgment as may be rendered in favor of the plaintiffs in attachment. It is no defence to an action on the bond against the sureties, that they pointed out properly in which the common debtor had cm interest, and that the plaintiffs neglected to seize it in satisfaction of their judgment.
    The district judge was of opinion, that this was no legal defence to the action, and rendered judgment for the plaintiffs, against the defendants, for the sum claimed. The defendants appealed.

      Maybin, for the plaintiffs.

      Sterrett, contra.

   Martin, J.,

delivered the opinion of the court.

This is ah action on a bond, given to release an attachment. The defendants became the sureties of one Alphonse Wet-more, who being sued by attachment, executed his bond to the plaintiffs, in order to release a large quantity of flour, which had been attached in the suit against him. The plaintiffs had judgment in said attachment suit, on which writs of fieri facias and capias ad satisfaciendum were issued, and returned without success.

The principal defence set up to this action, rests on the ground, that the agent of one of the defendants gave notice to the plaintiffs, that there was a steam-boat in port, in which the principal in the bond (Wetmore) bad an interest, and requiring them to seize it, in order to pay and satisfy their claim, and at the same time tendering to them money to-defray the expenses and charges of the proceeding, but that the plaintiffs neglected and refused to do so. The district judge was of opinion, this was not a legal ground of defence, and gave judgment for the plaintiffs. The defendants appealed.

It does not appear to us that the district judge erred in his decision. The defendants were bound to pay the judgment. Had they done so, they would have been ipso facto subroga-ted to the rights of the plaintiffs, and might have secured themselves by I lie seizure of the interest of the common debtor in the steam-boat, which they were desirous the plaintiffs should have done.

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


text:
    NICHOLLS vs. MARSHALL ET AL.
    Eastern Dist.

      June, 1836.
    APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    Where an appeal is made returnable in the next term, of the Supreme Court, it will be considered as returnable to the first day of the term, as required by law.
    Where a party has had a suspensive appeal granted to him, if he finds himself unable to give the required security, he may avail himself of a devolutive appeal by only giving bond with security for costs.
    Where a person binds himself in writing, on the back of a promissory note, to pay its amount at a particular date, if not paid sooner, he will not be entitled to notice as an endorser, in case of non-payment by the maker.
    This is an action against the defendant, C. G. Johnson, as drawer, and Brisbane Marshall, as co-obligor of the following promissory note.
    “ On or before the first day of March, 1832, I promise to pay Josias Gray, or bearer, nine hundred and thirty-seven dollars, and the same to bear ten per cent, per annum after due, until paid. For value received, this 12th day of March, 1831.” “ C. G. JOHNSON.”
    Endorsed. “ I hold myself liable for the payment of the within amount, twelve months from this date, if not sooner paid by the obligor.
    “December 6, 1832. B. MARSHALL.”

      as^required1 by-1&""' Where an appeal is made returnable in the next term of the Supreme Court, it will be considered as returnable to the first flav nf* +V<<* tot>m
    hashat^raspra-sive appeal granted to him, if he finds himself unable to give the required security, he may avail himself of a de-volutive appeal, by only giving bond with security for costs.

      The defendant, Marshall, pleaded a general denial. Johnson let judgment go by default, but on judgment being rendered against Marshall, he appealed.
    The appeal in this case was granted in the following terms: t t w
    “ Let the appeal be granted to stay execution, on the petitioner’s giving bond and security in a sum exceeding the amount of the judgment by one half, returnable to the Supreme Court at Baton Rouge in August next.”

    “ January 8th, 1835.”
    [When this appeal was taken, the Supreme Court was required by law to hold an annual term at Baton Rouge, beginning on the first Monday in August each,’year.]
    The appeal bond was given for the sum of eight hundred dollars, dated the 9th of January, 1835. The amount of the judgment appealed from is nine hundred and thirty-seven dollars, exclusive of interest.

      Downs and Cooley, for the plaintiff,
    made the following points :
    1. No return day is fixed in the order of the judge, granting the appeal. Code of Practice, article 574.

      2. The petition of appeal prays for, and the order of the judge grants an appeal, on appellant’s giving bond, to stay execution, and the amount of the bond given does not comply with the order or the law. Code af Practice, art. 574.

      3. Should the appeal not be dismissed, as above prayed for, then the appellee answers, that the judgment of the court below was just and correct and conformable to law, and prays that the same may be affirmed with costs.

      Boyle and Turner, contra.

   Martin, J.,

delivered the opinion of the court.

In this case the plaintiff’s counsel moved to dismiss the appeal on two principal grounds; first, that it was not made properly returnable, and second, that the appeal bond was insufficient.

"Where a person binds himself in "writing, on the back of a promissorynote, to pay its amount at a particular date, if not paid sooner, he will not be entitled to notice as an endorser, in case of non-payment by the maker.

The appeal was made returnable the next August term of the Supreme Court, then to be held at Baton Rouge, after it was allowed. The bond given was for a less sum than that fixed by the j udge from whose court a suspensive appeal was prayed and allowed.

It appears to this court that the return day must be considered to be the first day of the term, no particular day having been mentioned. In relation to the appeal bond, where the party has obtained a suspensive appeal, if he cannot find the required surety in such cases, he may avail himself of a mere devolutive appeal, by giving bond with security in such sum as will cover costs.

On the merits of this case, the only question presented for solution is, whether a person who has bound himself in writing on the 'back of a note to pay its amount on a given day, if it be not paid before, is entitled to the same notice as an ordinary endorser. The District Court correctly held that in such case he is not.

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


text:
    GIBBONS vs. WRIGHT ET AL.
    EASTERN DlST.

      June, 1836.
    APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.
    The judgment of the court, adjusting the accounts between the parties, which only relates to facts, and is supported by evidence, will not be disturbed.
    This is an action by a partner, against the defendants Wright and Gould, as his co-partners, for the adjustment of their partnership accounts, in which the plaintiff claims a balance due to him from the firm, of seven hundred and fifty dollars and thirteen cents, for which he prays judgment; or for such sum as may be found due. .
    0fjheoourt'S tlie ae_ counts between the parties, to^actt and is supported by evidence, will not be disturbed,
    Judgment was confessed by Gould, one of the defendants, and the case proceeded against Wright, as on. a general denial. Gould was made a witness in behalf of the plaintiff, and his competency excepted to. The cause was submitted to the court, on the testimony adduced.
    The district judge, after .an examination of the commercial books and accounts, came to the conclusion, that there was the sum of three hundred and sixty dollars rightfully due to the plaintiff,' for which judgment was rendered. The defendant appealed.
    Maybin, for the plaintiff.

      Preston, contra.

   Bullard, J.,

delivered the opinion of the court.

This action was brought to effect a final settlement' of a partnership concern, which existed for a short time between the plaintiff and the two defendants. One of the defendants confessed judgment, and was then used by the plaintiff as a witness against the other. We have not, upon reflection, thought it necessary to decide upon a bill of exceptions.in the record, touching his competency, inasmuch as the other evidence before us, particularly .the books of the firm, is sufficient to enable us to judge of the correctness of the judgment below.

The question as to the amount due to the plaintiff, was one gf fact. The court below came to the conclusion from an examination of the books, from which we have extracts before us, not contested, that the plaintiff was entitled to a judgment for about three hundred dollars. He was Ai,, , _ charged with any part of the brokerage upon the sale of slaves, and it appears that he withdrew money occasionally from the concern, for which he is charged. The evidence , , , ° before us does not enable us to say that the court erred in its conclusions on the matter of fact.

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


author: Mathews, J.,

text:
    TAYLOR vs. FELPS.
    Eastern Dist.

      June, 1836.
    APPEAL PROM TIIE COURT OP THE THIRD JUDICIAL DISTRICT,'THE JUDGE OF THE EIGHTH PRESIDING.
    According to the divorce law of 1827, ascendants of one of the spouses are competent witnesses to prove cruel and unjustifiable treatment on the part of either of the spouses towards the other, in an action for separation from bed and board; but their competency does not extend to proof of the property which the wife claims in such cases.
    In a cause tried by the couri alone, it is not to be presumed that the judge a quo was influenced in his judgment by improper evidence. So, where, after rejecting the illegal evidence which was admitted on the trial, there is still enough to sustain the judgment of the court, it will be affirmed.
    This is an action by the plaintiff, against her husband, for a separation from bed and board, and for a division and separation of property.
    The plaintiff alleges that she has been cruelly and outrageously treated by her husband, without her fault, so as to ■render their living together insupportable. She prays for judgment separating her in bed and board, and for a division and separation of property from her said husband, &c.
    The defendant denied that there existed any cause to authorize a separation of bed and board or of property as alleged by the petitioner: and further that no community of property existed between them, as alleged, &c.
    On these pleadings and issues the cause was submitted to the court with the testimony adduced by the parties.
    The plaintiff offered her father as a witness to prove the matters alleged in her petition. The defendant’s counsel objected to the witness testifying to any other matter than the separation from, bed and board, which was overruled and the witness admitted generally. A bill of exceptions was taken to the opinion of the court.
    According to ^ d!™'ce hnv oi 1827, ascendants of one are ^competent p^e^uei and unjustifiable paitofeitherof the spouses' to•wards the other, in an action for beTSc^board™ but their compe-teney does not extend to proof udiich flie°Pwife claims in such

      The district judge decreed the separation from bed and board, and allowed the wife to take certain slaves, with half the value of a gin and the crop growing, to be divided as her share of the community property, and also the right to retain the possession of her children. From this decree the defendant appealed.

      Andrews, for the plaintiff,
    contended that the father of the plaintiff was a competent witness in her behalf to prove any facts legally admissible in her case, and generally. 1 Mo-reau's Digest, 412. 7 Louisiana Reports, 281.
    2. Where the law makes no exceptions, the court can make none, as to the competency of witnesses. The law says the witness is competent to testify in behalf of the wife, not to this or that fact, but generally.

      Bradford, for defendant.
    1. The court erred, in permitting Isaac Taylor, the father of plaintiff, to testify generally in the case. By a special statute the ascendants and descendants can testify as to cruel treatment, in actions of separation, and no farther. See Act of 1827, section —, Louisiana Code, articles 2260,2261, 2262.
    2. The court, in its opinion, has not referred to any law “ in virtue of which said judgment was rendered,” nor does it even assert that said judgment is warranted by any law. It is, therefore, illegal, null and void. ./State Constitution, article 4, section 12. 2 Moreau's Digest, page 16, of Appendix.

      3. The land on which the gin is built, was partnership property, between defendant and his wife of the first marriage; there was an heir of that marriage, now an emancipated ° A minor, and there never was a partition of the partnership property, between the defendant and said minor, consequently the plaintiff could not claim one half of the ameliorations made on the land held in partnership between the heir of- the first marriage and the defendant, which the judgment of the District Court has decreed.
    In acause tried by the court alone it is not to be ’ presumed was íiüuen-cedinhis .iud§" ment by improper evidence: rejectingthe il-wlidi was^admitted on the u-i-enough to susment^of JUtfé court, it will be affirmed.
   Mathews, J.,

delivered the opinion of the court.

ln this case the wife claims a separation from her husband, as to bed and board, and also a partition of property. She obtained a judgment in the court below, favorable to both , , , , claims, and the defendant appealed.

The fat^er °f the plaintiff appeared as a witness, and was permitted to testify in pursuance of the provisions of the act 1 , 1 1 of the legislature, made m relation to married persons who claim a divorce. This law clearly renders ascendants corn-petent witnesses to prove cruel and unjustifiable treatment on ^ie Parlí ei^er °i the spouses towards the other. In the present case the father was permitted to testify as to the wife’s ^ *. j property, and to this part of his testimony an exception was taken. We are of opinion, that on this branch of the cause he was not a competent witness, and thus far his testimony 1 7 J .must be rejected. The case was tried in the court below without the intervention of a jury. The record shows ample P100^ to support, the judgment then rendered in relation to the partition of property, without the testimony of the father, and it is not presumable that the judge a quo was influenced rendering the final judgment by improper evidence,

ft ^ therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.


text:
    FLETCHER'S HEIRS vs. CAVELIER ET AL.
    Eastern Dist.

      June, 1836.
    lUTEAE FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE .THEREOF PRESIDING.
    Where the plaintiffs recovered three undivided fourths of a tract of land, and were required to pay the defendants the value of the improvements thereon, and if not paid within sixty days, execution to issue: Held, that the plaintiffs were not entitled to exercise the rights and actions of joint owners as soon as the question of title to the larger portion of the undivided property was decided in their favor, and provoke a sale of the whole property, with an adjustment of the improvements and fruits as incidental to the proceeding. But it was held, that in a petitory action the defendants are entitled to be maintained in their possession of the whole until the value of the useful improvements is paid - by the evictors in proportion as they have recovered.
    Defendants who are evicted of part of their land, and entitled to pay for their improvements, are not bound to remain in a state of indivisión with the evictors, and kept in suspense as to their ultimate rights, as well as their recourse in warranty, for -an indefinite period of time. They are entitled to a fixed period when payment and adjustment may be coerced.
    The obligations of the warrantor depend on tho law in force at the time of the sale. According to the provisions of the Old Civil Code, 354, article 57, the seller is bound on the eviction of his vendee, to pay the augmented value of the property above the price of the sale.
    The original price added to the rents and profits, does not necessarily constitute the measure by which the liability of the warrantor is to be tested.
    The warrantor is not to be called on to reimburse, until the jhdgment of eviction has had its effect against the party evicted.
    This is a petitory action, in which the plaintiffs succeeded in recovering from the defendants three undivided fourths of two tracts of land adjoining, situated on the bayou Manchac, as having been the property of the late James- Fletcher and wThich had never been legally sold since his death in June, 1804. See 4 Louisiana Reports, 267.
    The cause was remanded to the District Court, to ascertain the value of the respective improvements'of the defendants, and determine the claims of the latter against the respective persons called in warranty by them, and to give judgment accordingly, and that no execution shall issue for the plaintiffs, until they have paid for the value of the improvements respectively.
    On the return of the case, it was submitted to a jury on the evidence adduced by the parties, who returned a verdict as follows.

      “We, the jury, find a verdict in favor of the plaintiffs, for tjjree fourths of the amount of the rents and profits of the fond which is three thousand six hundred dollars, from the 27th of July, 1827, to the present time (July, 1834) inclusive.” “We also find a verdict in favor of the defendants for improvements on the land of twenty-two thousand five hundred dollars, being three-fourths of the amount thereof.” “We, the jury, find a verdict in favor of the defendants, against the warrantors-for the three-fourths of the purchase money and three thousand six hundred dollars damages.” “ We, the jury, find three-fourths of the land and improvements to be worth thirty-seven thousand dollars. “We also find the three-fourths of the improvements to be worth twenty-two thousand five hundred dollars.” “ We, the jury, find the crop to be worth four thousand six hundred dollars, at the present time as it now stands.”
    Judgment was rendered on this verdict, in favor of the plaintiffs, for three thousand six hundred dollars, being the fruits and revenues received by the defendants, from the institution of shit (27th of July, 1827) until this date (July 7th, .1834) :'' and in favor of the defendants, against the plaintiffs for twenty-two thousand five hundred dollars, the value of the improvements ; and that the plaintiffs be ordered to pay'this sum,’- after deducting their claim for fruits and revenues,1 within sixty days, and in default thereof, that execution be permitted to issue in favor of the defendants, and that the lands thus recovered be seized and sold to satisfy the same; and that no writ of possession issue until the said sum is fully satisfied.
    Judgment was also rendered in favor of the defendants, (executors of A. Cavelier, senior,) against the plaintiffs, (who are heirs also of Mary Clark, who was heir of Daniel Clark,) in warranty for one thousand eight hundred dollars, being the one-half of the three thousand six hundred dollars, recovered by them; and further, for the sum of eighteen thousand seven hundred and fifty dollars, being the three-fourths of the price of the land paid by A. Cavelier, senior, to Daniel Clark and his representatives, together with the
      increased value of the land. A like judgment was rendered in favor of A. Cavelier, junior, and J. Devenport, two of the defendants, against Pierre Baron Boisfontaine, also called in warranty. And judgment was rendered in favor of P. B. Boisfontaine, over against the heirs of Mary Clark, (who was the heir of Daniel ClarkJ for the sum of twenty thousand five hundred and fifty-dollars, the amount of the judgment in favor of A. Cavelier, junior, and J. Devenport, against said Boisfontaine. And it was further decreed, that the defendants be permitted to gather their crop, or that the plaintiffs pay its value on taking immediate possession ; and that the defendants pay the costs of suit, they being reimbursed by their warrantors.
    Where the plaintiffs recovered three undivided fourths of a tract of land, and were required to pay to the defendants the value of the improvements thereon, and if not paid within sixty days, execution to issue: Held, that the plaintiffs were not entitled to exercise the rights and actions of joint owners, as soon as the question of title to the larger portion of undivided roperty was decided in their fevor, and provoke a sale of he whole pro-j^rty, with an ^■¡ustment of improve-ents and fruits, incidental to the proceeding 5 hut it was held, that in a petitory action the defendants are entitled to be maintained in their possession of the 'zvJiole, until the value of the useful improvements is paid by the e-victors, in proportion as they have recovered.
    Defendants who are evicted of part of their land, and enti-tied to pay for their improvements, are not bound to remain in a state of in-división with the evietors, and kept in suspense as to their ultimate rights, as well as their recourse in warranty for an indefinite period'of time. They are entitled to a fixed period when payment and adjustment may he coerced.

      From this judgment the plaintiffs appealed.

      Cuvillier, for the plaintiffs.
    Turner, appointed curator ad hoc and to defend the absent heirs of Clark.

      Thomas Gibbs Morgan, for the defendan

      Elam, for warrantors.
   Bullard, J.,

delivered the opinion of the

At the August term, 1832, judgment favor of the plaintiffs, for three undivided fou in controversy, but the case was remanded to ascertain the value of the improvements, &c. and it was ordered that no execution should issue for the plaintiffs until they shall have paid the value of the improvements. 4 Louisiana Reports, 266.

On these questions of the value of the improvements and fruits, a jury having pronounced on the second trial and judgment being rendered accordingly, the plaintiffs again appealed after soliciting in vain a new trial in the court below.

A careful examination of the evidence has failed to convince us that the complaints of the appellants are well founded, as to the amounts found by the jury.

The obligations of the war-rantor depend on the law in force at the time of the sale. According to the provisions of the Civil Code, 354, article 57, the seller is bound on the eviction of his vendee, to pay the augmented value of the property, above the price of the sale.

The original price added, to the " rents and profits, does not necessarily constitute the measure by which the liability of the warrantor is to be tested.

The warrantor is not to be called on to reimburse, until the judgment of eviction has had its effect against theparty evicted.

But, it is urged, that the court erred in decreeing that an execution might issue against the plaintiffs, if ■within sixty-days the estimated value of the improvements was not paid by them. The argument of the appellants on this point, rests on the hypothesis that the plaintiffs are entitled at once to all the rights and actions of a joint owner, as soon as the question of title to an undivided part was determined in their favor, and that they could require a sale of the whole tract of land and an adjustment of the improvements and fruits as incidental to that proceeding. But it must not be overlooked that this is a petitory action, and the defendants are entitled to be maintained in their possession of the whole, until the value of the useful improvements is paid by the plaintiffs in proportion to the part recovered by them. Nor were the defendants bound to remain in a state of indivisión with the plaintiffs and to be kept in constant suspense as to their ultimate rights, as well as their recourse in warranty, for an indefinite period of time at the discretion of the plaintiffs.

The counsel of the vendors, cited in warranty, complains of the judgment rendered against them in favor of the defendants, on the ground that they are not liable to pay more than three fourths of the price received by them, together with the rents and profits. The obligations of the warrantors depend on the law in force at the time of the sale, and according to the provisions of the Code then in force, the seller was bound on the eviction of his vendee to pay the augmented value of the property, above the price of the sale. Civil Code, page 354, article 57. It is therefore clear that the original price, added to the rents and profits, does not necessarily constitute the measure by which the liability of the warrantor is to be tested. It does not appear to us that a greater-amount has been awarded to the defendants, in the event of eviction, than the law would justify. But we are of opinion, that no execution ought to issue against the warrantors until the eviction pronounced by the judgment in favor of the plaintiffs, shall have its effect. It was so ruled by this court in the case of Malancons Heirs vs. Duhamel, 7 Louisiana Reports, 286.

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


author: Bullard, J.

text:
    THORNTON vs. MANSKER.
    Eastern Dist.

      June, 1836.
    APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE OF THE EIGHTH PRESIDING.
    Where the curator of the estate of the absent husband is appointed administrator of the succession of the deceased wife, and in his latter capacity provoked a meeting of creditors, and a surrender and sale of the whole of the community property : Held, that he assumed to do acts inconsistent with his duties in either character, and thereby rendered himself personally liable to a creditor of the husband, who was thereby prevented from levying on this property in satisfaction of his judgment.
    The act of 1826, authorizing the surrender of insolvent estates, requires, that in cases where no person would assume to act as administrator under a regular appointment, that the creditors should be convoked to appoint syndics by whom the succession should be administered, as in case of an ordinary cessio bonorum.

    In proceedings in cases of insolvent estates, service of notice on the attorney of the absent creditors, is insufficient as relates to creditors residing in the state. These are not absent creditors.
    This is an action against the defendant as curator of the estate of one Willis Thornton, an absentee, to render him personally liable, and recover the sum of two thousand and ninety-nine dollars, with interest and costs, due by the said absentee.
    The plaintiff alleges that the defendant was regularly appointed curator to the said absentee, and took into his possession to administer, according to law, all the property of which the latter was possessed, consisting of a valuable plantation, several slaves, and other effects. He further shows, that he obtained a judgment against the defendant as curator, in 1835, for the sum now claimed, which was owing and due to him by the said absentee. That the defendant refuses to pay cjaimj or to show any property on which to levy his execution, but states that there is none belonging to the estate he administers. The plaintiff alleges that the defendant has wasted the estate of the absentee, and so mismanaged it as to render him personally liable; and prays judgment against him individually for the amount of his claim.
    The defendant excepted to the jurisdiction of the District Court, because he avers he was not only appointed curator of Willis Thornton, as an absentee, but that he was in 1834, by a decree of the Probate Court for the parish of East Baton Rouge, appointed administrator of the succession of Louisa Thornton, deceased, wife of the absentee. That all the property described in the petition of the plaintiff, belonged to the community of acquests and gains; and the community was much in debt; so much so, that as administrator by order of the Court of Probates, he called a meeting of the creditors of said community to deliberate on the terms of sale of the property. That in pursuance of the deliberations of the creditors, and an order of the Probate Court homolo-gating the proceedings, all the property was sold at public auction; that the Probate Court has exclusive jurisdiction of the matters contained in the plaintiff’s petition, and if its proceedings are null or illegal, they can only be set aside by action of nullity, or by appeal.
    These exceptions were overruled by the district judge presiding, on the ground that the defendant was charged in the petition with having illegally sold and wasted the estate of Willis Thornton. The decision was excepted to.
    An answer was then put in to the merits, similar to the exceptions filed, setting up the same matters in defence. He admits and avers, that as administrator of the succession of the deceased wife, he called a meeting of the creditors of the living but absent husband, (averinglris estate was insolvent,) and in pursuance of their deliberations and an order of the Probate Court, the whole property was sold, &c.
    Upon these pleadings and issues the parties went to trial. The plaintiff produced in evidence the record and judgment which he had obtained against the curator of Willis Thornton, as an absentee, showing the amount of his claim.
    The defendant, to justify himself, offered in evidence the mortuary proceedings had at his instance, as administrator of Louisa Thornton’s succession in the Probate Court, in which proceeding a forced surrender of the property of Willis Thornton was obtained, to any or all of which proceedings, the plaintiff, James Thornton, was no party. The defendant further offered in evidence the records of certain suits, to show the indebtedness of Willis Thornton, which made it his duty, as administrator, &c., to call a meeting of the creditors, not of Willis Thornton, but the creditors of the community of Louisa and Willis Thornton. To the introduction of all of which evidence the plaintiff’s counsel objected, because, said proceedings being had by the defendant as administrator of Louisa Thornton’s succession, was not binding on Willis Thornton or his creditors; that as curator to Willis Thornton as an absentee, he could not legally provoke a forced surrender of his property to satisfy the creditors of Louisa Thornton, or of the community. That as the plaintiff is no party to these proceedings, he is not concluded by them; and as the plaintiff has not attacked the proceedings of the defendant as administrator, See., they cannot be introduced collaterally, so as to justify the waste and mismanagement of the property of Willis Thornton by him, as curator of the estate of an absentee. But the court admitted the evidence, and a bill of exceptions was taken.
    The district judge was of opinion the plaintiff failed to make out his case, and rendered judgment in favor- of the defendant. The plaintiff appealed.
    - Elam, for the plaintiff.

      Conrad, 'contra.
   Bullard, J.

delivered the opinion of the court.

The. plaintiff alleges that the defendant was appointed curator of one Willis Thornton, an absentee, who was his debtor in a sum of upwards of two thousand dollars, and who left a large plantation and some slaves in the parish of East Baton Rouge, to be administered by the defendant. That he had obtained a judgment against the absentee by regular proceedings against his curator. He alleges that an execution was issued on his judgment, and the defendant answered that no funds, right, or credit in his hands, nor any' property moveable or immoveable, except such as were subject to liens and privileges superior to his. He avers that if such be the fact, it is because the defendant has illegally disposed of, and wasted the property confided to his care, and has made himself personally liable to pay his judgment.

The defendant, after setting up an exception to the jurisdiction of the District Court, which was overruled and not now insisted on, filed an answer to the merits, in which he admits that he was appointed and acted as curator of the absentee; but he alleges, that he was afterwards duly appointed administrator of the succession of Louisa Thornton, the wife of the absentee; that all the property mentioned in the plaintiff’s petition belonged to the community of acquests and gains existing between Thornton and his wife, and subject to the payment of the community debts, that the community was deeply in debt, and, indeed, insolvent. He further alleges, that as administrator of Louisa Thornton’s estate, he provoked a meeting of the creditors of said Louisa and her husband, to deliberate upon the necessity and propriety of selling the common property, and to determine the terms of sale. That a meeting of the creditors was held, and it was determined to sell the property on credit. That their proceedings were duly homologated by the Probate Court, and that in pursuance of a decree of said court, the whole property was sold. The defendant further avers, that if those proceedings were illegal and null, which he denies, such illegality or nullity can only be shown by an action of nullity, or by appeal to the Supreme Court. He denies the authority of the District Court to revise, modify or annul any judgment or decree of the Court of Probates. He further avers, that if these proceedings were irregular and illegal, such illegality is not imputable to him, he having in all his actings and doings conformed to the advice of his counsel, and to the orders and decrees of the Court of Probates, having jurisdiction of the premises.

,°f the absent husband is appointed admin-succession of the deceased wife, and in his latter capacity provo-creditorsfanl °a ^of the whole of thecommuni-%eu, thaUieasl ¡“insistent with h.is, duties in either character, and thereby ren-personsdiyiTaMe *° * creditor of the husband, who was thereby pre-on™this ™ j®* judgment.

The substantial facts alleged, both in the petition and answer, are -proved. It appears that the absentee, Willis Thornton, was still alive when his wife died, and for aught that appears, is yet living; and that the defendant continued to act as his curator. It further appears, that after the sale of all the property, at the instance of the defendant, the purchaser procured a monition under the act of 1834, and the proceedings were finally homologated by the Probate Court.

It is manifest that when the plaintiff recovered his judgment against the absentee, the defendant had under his charge, as curator, sufficient property to satisfy it, and that the same property is now beyond the reach of an execution; and the question presented in this case is, whether the defendant by mal-administration and waste, has rendered himself liable. The District Court solved this question in the negative, and this court is now called on to reverse that ° juagment.

The death of Mrs. Thornton did not in our opinion put an end to the functions of the defendant as curator of the absent husband, and he was still bound to retain and administer the property. On the death of the wife, her heirs had a right to one-half of the property composing the community, on their acceptance of it, either tacitly or expressly, subject to the payment of the debts. This gave them at most a right to have a partition between them and the surviving husband. The debts were debts of Willis Thornton, and not the debts _ . ,. .. . _ . . i, . , of the wife until her heirs became liable, by acceptance of the community, or intermeddling with the property. Admitting that when the defendant undertook to administer on the estate of the deceased wife, he assumed to do nothing incompatible with his duties as curator of the absent husband, yet, when he in the former capacity provoked a surrender of the property, as it is called in the record, and a sale of the whole, as was done in this case, he assumed to do acts .which were inconsistent with his duties in either character. The act of 1826, which first authorized the surrender of insolvent estates, required, that in cases where no person would assume to act as administrator under a regular appointment by the Probate Court, the creditors should be convoked to appoint J *■ syndics, by whom the succession should be administered as ^ case an ordinary cessio bonorum. 2 Moreau, 439, 3

The act of 1826 authorizing the surrender of insolvent estates, macases" where no person would assume to act as administrator appointment^11511 that ,the ere<h-tors should be convoked to ap-bywhomS£esuel be'S administered as in cases of an bmorum.

. in proceedings m cases oí insolvent estates, ser-the6 attorney6 of t^e absent ergdi-dent as relates sidiCngdl<ínS the notabsTiítcredi6 tors.

. In the present case no syndics were appointed. ■ On the contrary, the whole proceedings appear to have been carned on in the name of the defendant as administrator, 7 under his appointment by the Court of Probates. If he was administrator, he was bound by law to administer the success^on according to the rules established by the Code, and nothing authorized him, in any capacity, to sell the property belonging to the absent husband.

But it is contended that the court could not collaterally inquire into the validity of these proceedings of the Court of Probates, and that they must stand until annulled or reversed. That may be true in relation to the parties and those who-may have acquired title under such proceedings; but we are at a loss to know in what sense of the word the plaintiff was a party or assented to these proceedings. He was a creditor of Willis Thornton, and had nothing to do with the succession of his wife. He appears to be a citizen of West Feliciana; and the only notice to attend the meeting of creditors for the purpose as set forth in the notice, of deliberating on the terms of sale of the property of the succession, was served on an attorney appointed to represent the absent creditors. Creditors who live in the' state are not absent. .... . , , _ But the question in this case is not whether these proceedings he valid and legal as relates to the title of the property, but, whether the defendant, by his acts, has put it out of the power of the plaintiff to obtain payment and satisfaction of his judgment by levying on the property of the absent debtor, and has mismanaged the estate to the prejudice of plaintiff. It has been .urged that if these proceedings are void, then nothing prevents the plaintiff from proceeding to obtain payment; for if the property of Willis Thornton has not been validly alienated, it is still his, and subject to be sold to satisfy the plaintiff’s execution. But this would make it necessary at least to proceed by action against the purchasers at the probate sale, who have already a judgment homologating all the proceedings; and it appears that the defendant as curator of the absentee, made no opposition. We are of opinion, that the defendant having frustrated the plaintiff in the legal pursuit of his rights, cannot now be permitted to turn him round to a tedious and perhaps doubtful litigation, with persons whose title to the property is founded on proceedings provoked by himself; and that by such illegal disposition of the property of the absentee, he is liable to pay the debt in question.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed; and proceeding to render such judgment as in our opinion ought to have been given below, it is further considered and adjudged, that the plaintiff recover of the defendant the sum of two thousand and ninety-nine dollars, with five per cent, interest from the 1st day of January, 1834, and the costs of the suit of James Thornton, vs. J. Mansker, curator of Willis Thornton, together with the costs of this suit in both courts.


text:
    REYNES vs. ZACHARIE’S SUCCESSION.
    Eastern Dxst.

      June, 1836.
    APPEAL PROM THE COURT OP PROBATES, POR THE PARISH AND CITY OP NEW-ORLEANS.
    A witness on oath will not be permitted to contradict Ms written acknowledgments and admissions, even when not sworn to.
    The written acknowledgment of the principal in an agreement that the adverse party has complied with his contract, is binding on the surety.
    This is an action instituted against the succession of the late J. M. Zacharie, to recover the sum of eight hundred and' thirty-three dollars and fifty-two cents, which the administrator refuses to pay.
    The plaintiff alleges that the decedent became surety for one A. T. Wood, in an agreement which the latter made with him (plaintiff) for a quantity of flooring plank, according to the annexed agreement and account rendered and approved by said Wood. That he has demanded the amount of said account from the administrator of J. M. Zacharie, which he refuses to allow and pay, wherefore he prays judgment against the succession of said decedent, for his said claim, &c.
    The administrator pleaded a general denial, and required proof of the signature of the decedent to the agreement sued on, and denied specially that it is in any way binding on his succession.
    The following are the agreement and account on which the suit is instituted.
    “ I engaged to deliver to Mr. A. T. Wood, a lot of flooring plank, 20 feet 1 4-7, dry stuff, examined by him, for the price of thirty dollars a thousand. When the said planks are delivered, Mr. A. T. Wood obliges and binds himself to pay the full amount of the bill, by Mr. J. M. Zacharie’s note well endorsed, at ninety days from the date of the delivery. This agreement approved by Mr. J. M. Zacharie and signed by all the parties.”
    “ REYNES,”
    “J. M. ZACHARIE,”
    “A. T. WOOD.”
    “ New-Orleans, 23d April, 1835.”
    “ Mr. A. T. Wood and J. Madison Zacharie,
    1835. To J. Reynes, Dr.
    May 7, 130 planks, 20 1 4-7, 3000, $30, $90 00
    “ 12, 220 “ 20 1 4-7, 5560,
    “ “ 120 “ 20 1 4-7, 19,224, “ $743 52
    >55

      0mh winnot be permitted ^to written acknowi-admis'ii'ons, even ™hea not sworn
    The written ac-knowiedgment ot the principal in an agreement, party ' has^com-wi.tht.h]3 contract, is bind-ingon-thesurety.
    “I have received the above mentioned plank, therefore the bill is correct, and ought to be paid, as per agreement.”
    “A. T. WOOD.”
    Upon these pleadings and evidence the parties went to trial.
    The probate judge was of opinion the late J. Madison Zacharie was a party to the agreement sued on, by its very terms, and bound by it; and that his succession is also liable.
    Judgment was rendered in favor of the plaintiff for the amount of his claim, from which the administrator appealed.

      Ho a, for the plaintiff.

      J. Slidell and Preston, for the appellant.
   Bullard, J.,

delivered the opinion of the court.

This is a suit against the administrator of J. M. Zacharie’s estate, to recover the price of certain lumber which the plaintiff engaged to deliver to one Wood, on a written agreement that Zacharie would furnish his note for the payment. The defendant requires proof of the signature of the deceased, and alleges that if it be genuine it created no legal obligation on the part of the deceased.

The document in the record, signed by Reynes, Wood and Zacharie, shows that Reynes was to deliver to Wood a lot of lumber at a fixed price, and when delivered, Wood binds himself to pay the full amount by Zacharie’s note, well endorsed, at ninety days. A receipt of Wood is shown at the foot of a bill of the lumber, and his acknowledgment that the bill is correct and ought to be paid, as per agreement. This paper appears to have been given in evidence, without objection; but the counsel expresses a doubt whether evidence on oath ought mot to be required. By the agree-vxr 1 • 11, 1 ment, Wood was to examine the lumber and, we presume, was to decide whether it was such as the plaintiff engaged to deliver. And if he were a witness, he would not be . 7 permitted to contradict his written acknowledgment. We think his admission, under these circumstances, was binding on Zacharie.

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


text:
    BRAND vs. TOURNE & BECKWITH ET AL.
    Easteiust Bist.

      June, 1836.
    APPEAL PROM THE COÜRT OP THE FIRST JUDICIAL DISTRICT.
    The owners of steam-boats are liable for the injury done and loss sustained by individuals, through the negligence or misconduct of their masters.
    This is an action against the defendants as joint owners of the steam-boat Abeona, to render them liable and recover the sum of one thousand five hundred and sixty dollars, for the loss of twenty-six hogsheads of sugar, occasioned by the negligence and misconduct of the commander of said steamboat, in running down and sinking the schooner Cultivator, in the Mississippi, on which the sugar was shipped, from the parish of St'. James, for New-Orleans.
    The defendants pleaded a general denial. The testimony in this case is similar to that in the case of Sauné vs. Tourné & Beckwith, 9 Louisiana Reports, 425 and 428.
    The district judge was of opinion the loss and sinking of the schooner was occasioned by an unavoidable accident, not to be placed to the blame or account of either party. Judgment was given for the defendants, and the plaintiff appealed.

      Shepard and JDeblieux, for the plaintiff.
    .D. Seghers, contra.

      SteTm-boatTare liable for the injury done, and loss sustained tLoug^thlTne-gi1Sence masters,
   Bullard, J.,

delivered the opinion of the court.

This suit is brought to recover the value of twenty-six hogsheads of sugar, part of the cargo of the schooner Cultivator, which was sunk in consequence of a collision with the steam-boat Abeona, belonging to the defendants. The evidence is substantially the same which we had before us in the case of the owner of the schooner against the same . ii-parties, and we then came to the conclusion, after very deliberate reflection, that the defendants were in fault and liable for the loss. The District Court having thought otherwise, we have again maturely considered the case and are of opinion that the plaintiffs are entitled'to recover. For the reasons and grounds of this opinion, we refer to the case above mentioned, decided at the May term. 9 Louisiana Reports, 425 and 428.

It is shown that the sugar of the plaintiff was worth sixty dollars per hogshead.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and it is further adjudged and decreed, that the plaintiffs recover of the defendants the sum of one thousand five hundred and sixty dollars, with costs in both courts.


author: Dullard, J.,

text:
    EBER vs. TOURNE & BECKWITH ET AL.
    Eastern Dist.
    June, 1836.
    APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.
    The owners of steam-boats are liable for losses occasioned by collisions and injuries done by them to other vessels, which might' have been avoided by due diligence and care.
    This is an action to recover the value of sixty hogsheads of sugar, which the plaintiffs had shipped on board the schooner Cultivator, for New-Orleans, which was sunk in (hg Mississippi river by the steam-boat Abeona, owned by the defendants, and which was alleged to have been occasioned by the mismanagement of the officers of said steam-boat.
    The owners of .liable for tosses collisions^ and injuries^done^by vessels, which OTmdecTbythie diligence and caie'
    The defendants pleaded a general denial. The case was decided on the evidence introduced in the preceding case of Madame Brand against the same defendants and Sauné against the same. 9 Louisiana Reports, 325 and ¡428.
    The district judge decided that the defendants be discharged from all liability. The plaintiff appealed.

      Shepard and Deblieux for the .plaintiff.

      Seghers, contra.

   Dullard, J.,

delivered the opinion of the court.

This case cannot be distinguished from that of Brand against the same parties, just decided. The suit is brought t0 recover another portion of the cargo of the schooner Cultivator. The evidence shows the value of the sugar belonging t0 plaintiff to be fifty-five dollars per hogshead.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed, and it is further ordered, adjudged and decreed, that the plaintiff recover of the defendants three thousand three hundred dollars, with costs in both courts.


text:
    ALEXANDER vs. EVANS ET AL.
    Eastern Dist.

      June, 1836.
    APPEAL PROM THE COURT OP THE THIRD JUDICIAL DISTRICT, THE JUDGE -OF THE EIGHTH PRESIDING.
    A twelve months’ bond is essentially a contract to which the law attributes only the force of a judgment, so far as relates to its execution by summary process.

      So a twelve months* bond taken in pursuance of the Aefcof 1817, sec, does Dot operate as a judicial mortgage on the property of the obligors, . when registered in the office of'the recorder of mortgages.
    This suit commenced by injunction to restrain the sheriff of East Baton Rouge from proceeding to sell a certain house and lot in the town of Baton Rouge, seized in virtue of an order of seizure and sale obtained by the defendants.
    The plaintiff claims the property in question in virtue of a sheriff’s sale, made under an execution which issued on a twelve months’ bond executed by Charles Cousinard as principal, and J. B. Aubert as surety, in favor of Davenport’s heirs, dated the 23d of April, 1823, for the price of a slave of said Cousinard’s, seized in execution, and bought in by him for the sum of $ 600.
    The surety in the twelve months’ bond having paid it, and being subrogated to the rights of the creditors therein, caused an alias ji. fa. to issue on the judgment against Cousinard, which was levied on the house.and lot now in controversy, and purchased by him, the said Aubert, the 5th July, 1835. Aubert died, and at the probate sale of his succession the plaintiff became the purchaser of the said house and lot, which he now claims. He prays for an injunction, and that the property be declared to be his, and that he be quieted in his possession. The defendants obtained an order of seizure and sale against this property, on a special mortgage executed by Mary Cousinard, with the consent of her husband, Charles Cousinard, and duly recorded the 26th October, 1824, after the date of the twelve months’ bond executed by said Charles Cousinard and Aubert.
    The plaintiff claims to hold the disputed premises, on the ground that the twelve months’ bond executed by Cousinard and Aubert in 1823, being duly recorded in the parish judge’s office, operated as a judicial mortgage on all the property of Cousinard, and, consequently, was prior and superior in rank to that under which the present defendants were proceeding.
    The District Judge was of opinion that the twelve months’ bond only operated as a mortgage on the property for the price of which it was given. Judgment was rendered in favor of the defendants in injunction, with costs. The plaintiff appealed.
    A twelve months’ bond is •essentially a con-traotto which the law attributes only the force of a judgment, so far as relates to its execution by summary process.

      Elam, for the appellant.
   Bullard, J.,

delivered the opinion of the court.

The only question which this case presents for our consideration, is, whether a twelve months’ bond, taken in pursuance of the act of 1817, to amend the several acts enacted to organize the courts of this state, and for other-purposes, operates as a judicial mortgage upon the property of the obligors, when registered in the office of the recorder of mortgages.

The 15th section of that act declares, that when the sheriff shall have sold the property on a credit, he shall return with the execution the bond by him taken, and lodge the same with the clerk, which shall have the force of a judgment. It then provides for the issuing an execution on the bond, against both principal and surety, if the money be not paid when due, in the same manner as upon final judgment of the court. The previous section provides, that if the bond be given for the price of lands or slaves sold on execution, a mortgage shall be retained on the property sold.

It is argued, that if the bond is to have the force of a judgment, it must, when recorded, produce a judicial mortgage, as that is the necessary force of every judgment. The Civil Code which was in force at the time of this transaction, defines a judicial mortgage to be that which proceeds from every judgment, and declares that it takes effect from the day when the judgment has been rendered, either on a hearing of the parties, or by default, final or subject to appeal. But, it excepts awards of arbitrators before their execution has been ordered. Civil Code, pages 452, 454, art. 8, 9.

But, we are of opinion, that the twelve months’ bond is essentially a contract to which the law attributes the force of a judgment only as relates to its execution by summary process. It has, perhaps, no other attribute of a judgment. No appeal will lie upon it. No judicial sanction is required for its validity if it is taken by a ministerial officer. It may be attacked like other contracts for error, and would be void if the proceedings which led to it in executing the previous judgment were irregular and illegal. It belongs, rather, in the opinion of this court, to a class of contracts, which, by the Spanish law, carried with them the execucion aparejada, like a conventional mortgage passed before a public officer, having the force of a judgment confessed. We therefore concur with the district judge in opinion, that the recording of the twelve months’ bond did not operate a judicial mortgage.

So, a twelve ken in pursuance “j- tlie ?ot and is, does not dieiai^ortgage on the property when registered recorder of mortgages.

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


text:
    M'MICKEN vs. BANK OF LOUISIANA.
    Eastebm Dist.

      June, 1836.
    APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE OF THE EIGHTH PRESIDING.
    Service of citation of appeal on the attorney of the appellee, when the latter is in the state, is insufficient, and the appeal will he dismissed.
    The plaintiff appealed from a judgment dissolving an injunction which he had obtained against the bank. The sheriff served the citation and copy of the petition of appeal on the attorney of the bank, when its officers were in the state.

      Lobdell and Cooley, for the appellee,
    moved to dismiss the appeal, on the ground that there was no legal service of the citation of appeal.

      Service of ci-onl°the° attorney of the appellee, when the latter is in the state, is 'insufficient, and the appeal will be dismissed.
    Downs, contra.

   Bullard, J.,

delivered the opinion of the court.

1° this case, it appearing that the citation of appeal was served on the attorney, and not on the party himself, who was in the state, it is ordered, on motion of the appellee, that the appeal be dismissed, with costs. r r ’