author: Kino, J.

text:
    The State v. Folke.
    Whore the original entry on the minutes of a court makes no mention of the swearing of the grand-jury, merely setting forth the names of the jurors, how they were selected, and the term for which they were to serve, on an affidavit by the clerk that the jurors had been regularly sworn and that the omission to state the fact was an inadvertence of his own, the minutes may be afterwards amended so as to conform to the fact. Nor will it be any objection to making the amendment, that the omission occurred while another judge presided. Per Curiam: The power of correcting the minutes of its proceedings so as to make the entries conform to the truth, whenever errors or omissions are satisfactorily shown, is inherent in every court. In criminal proceedings all ministerial acts are amendable at any time.
    No writ is required to be issued from the court for selecting and summoning a jury; nor is any order, under the seal of the court, necessary for that purpose. The stats, of 25 March, 1831, ss. 10,11, and 13 March, 1833, s. 1, direct the clerk and sheriff, or deputy sheriff; to draw, at stated periods, the requisite number of jurors, who are to be summoned.
    It is not necessary to the validity of an indictment that the day on which it was found, or the name of the judge presiding, should appear on its face.
    It is not necessary that the foreman of the grand-jury should sign his name at full length to the finding endorsed on the indictment. An indictment signed “Geo. W. West, foreman,” is sufficient.
    Appeal from the First District Court of New Orleans, McHenry, I.

      Sigur, District Attorney for the State,
    1st. The court will presume that the grand-jury were sworn according to law, even if the record did not show the fact. Coyne v. Hotoell, Minor’s Rep. 62; Perdue v. Burnett, lb. 138. But in this case the record, as amended, shows that the grand-jury was sworn. The mistake or omission of the clerk was amendable. 1 Chitty’s Crim. Law. 1 Saunders, 249, 256. 1 Stra. 136. 2. It is not necessary that the order to summon the jury should be sealed. With us a venire facias is not necessary ; jurors are summoned in the same manner as witnesses. The case of The Peoples. McKay, 18 Johns, 212, was decided under the common law. But in the cases of Haight v. Holley, 3 Wend. 258; Bennett v. Tennessee, Mart, and Yerg. 133; and Johnson v. Cole, 1 Penn. 266; decided under statutes similar to ours, it was held that no seal was necessary, or that the want of a seal was cured by verdict. 3 Stewart, 454. 3d. The other objections proceed upon an erroneous understanding of the word “ caption,” used in the authorities cited; a caption is no part of the indictment. The objection to the signature of the foreman is futile.

      J. M. Wolfe, for the appellant,
    urged the points recited in the opinion of the court, infra, citing Bui. & Curry’s Dig. p. 19. 18 La. 212. 2 Chitty’s Crim. Law, 309, 326. 5 Howard’s Miss. Reports, 32. 2 Hawkins, 346. 3 Johnson, 265. 1 lb. 179. 4 Barn. & Adolph, p. 96.
   The judgment of the court was pronounced by

Kino, J.

To an indictment preferred against the defendant he filed a special plea, setting forth several grounds in avoidance of the proceedings, none of which were sustained. He was subsequently tried, convicted, and sentenced, and from the judgment of the lower court has appealed.

The grounds urged in-this court for the reversal-of the' judgment appealed from, are: 1st. That the grand-jury appear, from the records of the court, not to have been duly empannelled and sworn, and that the judge erred in permitting the clerk to amend the record by stating that the grand jury had been sworn. 2d. That the order to the sheriff to summon the jury did not bear the seal of the court. 3d. That the day on which the indictment was found, and the name of the judge presiding, do not appear on the face of the indictment. 4th. That the foreman of the grand-jury did not sign his name at full length to the finding endorsed on the indictment.

I. The original entry on the minutes of the court makes no mention of the swearing of the grand-jury, but merely sets forth-the names of the jurors, and that they were selected by the sheriff and clerk under the direction of the court, to serve during the months of November and December. A fevf days after this entry was made, the grand-jury returned the bill preferred against the present defendant, which commences: “ The grand jurors of the State of Louisiana, duly empannelled and sworn, &e.” The defendant then made tlie objection to the indictment now urged,, that the grand jurors by whom it was preferred were not duly empannelled and sworn.- The clerk, thereupon, made an affidavit that the grand jurors had been sworn according‘to law, and that the failure to make the entry was an inadvertent omission of his own ; and asked- permission of the court so to amend the minutes as to make the entry accord with the fact. The judge permitted the amendment to be made, and we think correctly. The power is inherent in courts to direct the correction of the minutes of their proceedings, so as to make the entries conform to the truth, whenever errors or omissions are satisfactorily shown; and in criminal proceedings it is well settled, that all ministerial acts are amendable at any time. 1 Chitty’s Criminal Pleading, 335, 336. 4 East. Rep. 173. In the present instance it appears upon the face of the indictment that the jurors by whom it was found were duly empannelled and sworn, and the oath of the clerk further confirms the fact. It is no objection to the amendment, that it was intended to supply an omission which occurred while a different judge presided.

II. The seal of the court was necessary to the order for selecting and summoning the jury, if such an order issued. The statutes of 1831 and 1833, (B. and C.’s Dig. 525-6,) directs that the clerk and sheriff, or deputy sheriff, shall, at stated periods, draw the requisite number of jurors, who are to be summoned. No writ from the court, for the performance of these duties, is required, and none such appears to have issued. 2 Rob. 268.

III. No rule of criminal pleading requires that the facts stated in the fourth should be set forth in the indictment. The objection seems to be founded upon the recital of facts essential to the validity of a caption. The caption forms no part of the indictment, and the necessity for that instrument cannot arise while the prosecution is pending in the court in which the bill is preferred. 1 Chitty’s Crim. Pleading, 326. State v. Kennedy, 8 Robinson, 990.

IV. The foreman of the grand-jury signed his name “Geo. W. West,” to the finding endorsed on the indictment. We are aware of no rule which requires the foreman to sign his name at full length to a finding, and have been referred to no authority in support of the position assumed by the defendant’s counsel. Judgment affirmed,

         Eustis, C. J. was absent when the judgmont became final by the refusal of a rohoaring, though present when the opinion was first road.


source: Caselaw Access Project

author: Koe, J.

license: Public Domain

text:
    Alling et al v. Bach.
    Where a party proposes to another to purchase merchandise from him for a certain price, and that the merchandise shall be shipped to him at particular place, to he there paid tor before delivery, to which the latter assents, the sale will he perfect from the moment of the agreement for the object and the price/and the subject of the sale will be thenceforth at the risk of the purchasei*, though not delivered to him; and if it perish before delivery, without the fault of the seller, he will he- exonerated from-the obligation to deliver, but the purchaser will be bound for-the price. G. C. 1903,2431, 2442.
    APPEAL from'* the-Fifth District Court of New Orleans, Buchanan, I. The facts of the case are stated in the opinion infra'.

      Hoffman, for the appellants.
    The court below erred in considering that the sale was made on a suspensive-condition as to the delivery. The Civil Code declares that conditional obligations are such as depend on an uncertain event. Here there was nothing uncertain in the obligation to deliver. The sale was complete, independent of the delivery.- See Delvincourt, vol. 2, p. 16, note 1; p. 52G, note 2; p. 537, note 3. Civ. Code,-2414, 2431-, 2437, 2442, 2443, 2446, 2450, 2452, 2456, 2458, 2459, 2527, 2528. Pothier, Vente, pp. 179,180. 18 La. 235. 3 Rob. 331.

      L. Peirce, for the defendant.
    This is an agreement to take effect in future, on account of the postponement of the payment of the- price, and of the delivery of the goods. The rule in such a case is, that if nothing remains to be done on the part of the seller, as between him and the buyer, before the goods purchased are to be delivered; the property in the goods immediately passes to the buyer, and-that in the price to the seller; but if any act remains to be done on the part of the seller, the property does not pass until that act has been done. In this case the seller was to ship the goods to New Orleans, and they were to be paid foi" on delivery; the transfer of the goods to New Orleans was part of the contract,-and a condition precedent; the seller had still something to do. The meaning of this stipulation by the purchaser was to free himself from the expense of insurance, and from all costs of charges, freight, warehousing, &c. The seller’s duty was to have insured ; he does not declare whether he did or not; he has neglected his own interest and is his own insurer.
    In the case of Tarlin-gv. Barton,-6 B. &C. 362, the defendant agreed to sell the plaintiff a stack of hay standing in Canonbury Field, for ¿6145; the contract was dated 4th January, the money to be paid the 4th February ; and the hay to stand upon the premises until the first day of May; the hay not to be cut until paid for. The purchaser accepted the sellers draft on him for ¿6145, dated 4th January, and payable at one month. The hay- was consumed by fire on the samé field. Held to be the loss of the purchaser, because there was nothing that remained to be done by the vendor as between him and the vendee.
    In Pragano v. Long, 4 B. & C. 219, the plaintiff, residing in Naples, sent an order to Mason Sf Sons, of Birmingham, for a cask of hardware, to be despatched to him on insurance being effected; terms, three months’ credit from the time of the arrival. The cask was lost on the quay at Liverpool, before being put on board the vessel for Naples. Held to be the loss of Pragano. The arrivnl at Naples was not a condition precedent. The court, Bayly, J., says: “If the goods were not be paid for unless they arrived, why should Pragano insure them; that shows that the arrival was not considered as a condition precedent to the payment. If the goods arrived, three months from the arrival was to be the period of credit; if they did not arrive, still the plaintiff would be bound to pay in reasonable time after the arrival became impossible. If this were not so, the insurance would be altogether nugatory, for Pragano could not sue upon it, neither could the vendor, the interest being declared to béin Pragano.” Halroyd, Justice, in the same case says: “ It was not contended that Pragano was not liable to the vendor unless tlio goods arrived; but the order for insurance is decisive ofthat. The policy was to protect Pragano, and shows that lie considered that lie was to be the sufferer if tlio goods were lost on the voyage ; which he coulJ not have been, had the arrival of the goods been a condition precedent'to his liability to the vendors.
    In Simmons v. Sivift, 5 B. & C. the court says: “Generally speaking, when a bargain is made for the purchase of goods, and nothing is said about payment or delivery, the property passes immediately so as to cast upon the purchaser all future risk, if nothing further remains to be done to the goods, although he cannot take them away without paying.the price. If any-thing.remains to be done on the part of |the seller, until that is done the property is not.changed. See also 2d Bing. p. 146.
    In the case before the court, the seller liad something to do.to the goods.; .he was to land them in New Orleans.
   The judgment of the. court was pronounced.by

Koe, J.

The plaintiffs sue for the price of a quantity of merchandise, alleged to have been sold to the commercial firm of Bach Sf Meyer. Payment is insisted on by Bach, the only party cited, on the ground that the plaintiffs undertook to deliver the goods in New Orleans, but have failed to comply with their contract. There was a judgment for the defendant in the court below, and the plaintiffs have appealed.

The only witness present when the contract was entered’into-states, that Meyer, the partner of the defendant, proposed to the plaintiffs to sell him a bill of goods at certain cash prices, and ship them to the house of the plaintiffs in New Orleans, where he would pay for them before taking possession, to which the plaintiffs acceded. The goods.were marked-in the name of the defendants, shipped, and a bill of .lading taken for their delivery in New Orleans, to Wm. Ailing Sf Co. The vessel upon which the shipment was made was lost at sea, and the goods never reached their destination. The plaintiffs contend that the sale was complete, independently of the contract for the delivery at New Orleans; that they have performed their part of the contract; and that the loss of the goods must be sustained by the defendant. Tho defendant, on the contrary, urges that the contract was incomplete, and that the goods were at the risk of the plaintiffs until they were landed in New Orleans.

We think that the judge below erred, and that, under tho contract proved, tho plaintiffs are entitled to recover. The sale was perfect by the assent of the parties, from the moment of their agreement for the object and the price, although no delivery accompanied the contract. As soon as the contract of sale is complete, the object sold is at the risk of the purchaser, although it may not have been delivered to him; and, if it perish before the delivery without the fault of the seller, the latter is exonerated from the obligation to deliver, but the purchaser will still be bonnd to pay the price. C. C. arts. 2431, 2242, 1903. 4 Toul. no. 59. 7 Toul. no. 202. Pothier, Contrat de Vente, nos. 308, 309. Delvincourt, vol. 2, p. 526, note 2. The only additional obligation assumed by the plaintiffs was that of shipping tho goods to New Orleans, where the defendants were to take possession upon paying the price, .and this stipulation was performed.

Itis therefore decreed that the judgment of the District Court he reversed. It is further decreed that the plaintiffs recover of the defendant, Bach, the sum of six hundred and forty-five dollars and sixty-nine cents; and that the defendants pay the costs of both courts.

       Eustis, C. J. was present when the opinion was first delivered in 'this case,‘hat was absent when an application for are-hoaring was finally disposed of.


author: King, J.

text:
    Harvey v. Kendall.
    Where a disease with which a slave was affected at the time of the sale terminates fatally within, three months thereafter, without any fault of the purchaser; and the evidence shows .that both the vendor andv,eridee were ignorant of its existence at the time of the sale,-the vqpdor will bo hound only to restore the price, and to reimburse the expenses occasioned by the.sale apd those incurred for the preservation of the thing sold; the cost of a post ?w.ortef(i examination, and the expenses of interment, aro not a part of the charges for which ho is liable. C. ¡Q. 3500.
    Where the purchaser of a slave for cash-sues to recover back the amount paid by him, with damages, o,p the ground qf .the death of -the slave from a redhibitory disease with which he was affected at the .time of the sale, .the vendee will not be allowed any thing for the serví' .ces.of the slave, .the ipse, of the flioney being .an ..ofisett to his services.
    APPEAL from-the First District idourt of Nn.w Orleans, McHenry, J. The facts pf this case are seated in -the opinion infra,.

      Gollens, for the plaintiff,
    contended thattfie point-,to bedocided,ina(?ase like this, is not .whether the disease was or .not possibly .curable, but whether or not it .existed ,at .the time of the sale, and was of such'a nature as is contemplated by .art. 249G ,of thefii-v. Code. The old Code required that .the inhibitory disease should be in its nature incurable; ¡but w.e .are now governed by a more practical .ppd rational rule. 7 La. 519.

      Hunt and Har.t,, .for the appellant,
    cited Senrpurn v. Bosquet, 15 La. 511; Kipcrv. Hutall.,i Rob. £6; Palmer .v. Taylor, lb. 412 ; ,Soubie v. Sougeron, 5 lb. 1-50; .arguing .that.the vendor was not liable as the disenso was curable, and ¡that the ¡purchaser failed to procure medical assistance, .and to bestow on the .slave the ¡care.and .attention-,required by la,w.
   The judgment of ¡the,court was pronounced by

King, J.

This action is instituted to recover theprice¡paid by the plaintiff ¡for a -slave., who is charged to have died of a redhibitory disease with which he was affected prior to, .and a.t the date .of, the sale. A further .sum is also .claimed for expenses incurred for the ¡preservation of th® slave, for,an autopsy, .and for th® Interment. There was a judgment .against .the defendant Kendall, ,fro,m which he has appealed.

The evidence shows that the slave in question remained in .the possession of ,th® plaintiff,fo.r seventy-one days after the sale, .apparently in perfect health, .and.performing his usual labor wjtho.ut .interruption. At .the expiration of that .time he .reported himse.lf sick. The symptoms which manifested themselves were so slight, .that the ¡plaintiff’s husband, .after conferring with ,o.ne of his .neighbors who was at the time present, considered.it doubtful whether the slave was really sick, and concluded .that it was unnecessary to call in medical aid. T.he slave was ¡placed jn the plantation hospital under the.care of a ,nurse, and W.ithin less (than forty-eight houi;s after .he announced his illness, died, no alarming symptoms.havingmanifested,.themselves until within.a few moments previous .to his dissolution. A post mortem, .examination was made by two .physicians, who .discoveredfhe .existence .of a,chronic.affection .of the liver, to which they .ascr.ibethe.sudden death, and which, in their opinion, must have .existed for some time previous to tRe sale. Other physicians, w.ho were not .present pt the.autopsy, were.also examined as witnesses, and, as usually occurs.o.n such occasions, some diversity .of medical opinion was expressed. The conflict ,of testimony, however, is not such as to leave any .doubt that the cause of the death was discovered. We think it is satisfactorily shown that the slave was affected with a chronic complaint at the date of the sale, of -which he subsequently died, .without the fault or negligence of ¡the owner. Some importance has been attached to the fact, that several o,f ¡the physicians declare that the disease was not incurable in its nature, and might have been overcome if timely medical aid had beep called in, and that, in fhe present instance, the patient was not subjected to treatment. The disease is described by all of the witnesses as being .slow in,its .progress, and, in the present instance, was so insidious in its approaches, that it manifested itself by no external symptoms, by no suffering of any kind, which-was ever communicated to the owner, and never for a moment interrupted the labor of the slave-until within a few hours previous to his death. Iiow, under these circumstances., was it possible for the owner to have caused the slave to be treated for a disease, which was only revealed by an examination after death. ’The failure to call in a physician when the slave announced his .illness, arose from the same .cause. No symptoms manifested themselves which excited.apprehensions forthe slave’s safety, or announced a malady which seemed to ¡require the skill of a physician.

The whole tenor of .the testimony shows that the defendant must 'have been ignorant, at the time of ¡the sale, of the disease under which the slave labored, and so thought the judge ,of the court below. He is consequently only bound to restore the price, and ¡to reimburse the .expenses occasioned by the sale and incurred for the preservation of the thing. He has, however, been decreed to pay §60, the Amount disbursed for the examination after death, and for expenses of interment. These are not among the charges for which the defendant is liable. C. C. art. 2509. Fuentes v. Caballero, 1 An. Rep. 27. In this respect the judgment must.be corrected.

The defendant contends that he should -be allowed compensation for the services of the slave while .in the plaintiff’s possession. The sale was for cash. The use of the money paid .as the price.stands as an offset against the services of the slave.

It is therefore ordered that the judgment of the District -Court be reyersed. It is further decreed that the plaintiff re.coy.er of the defendant Kendall, §537 50, with five per cent interest from the fst October, 1846, the date of judicial demand, un® paid; the appellee paying fh,e costs of this appeal, and the defendant those .of the .court below.

       Eusris. C. J. absent Rost, J. recused himself on account of relationship ,lo one of the parties.


author: Rost, J.

text:
    Benton v. Roberts.
    The right of a joint owner .to maintain a possessory action depends on the nature of his pos* session. While lie continues to possess nomine commuyd the right does not exist; but where he has possessed nomine propr io, and in good faith, for mo.re than a year, he is to all legal intents a just possessor, and in case .of .a disturbance by the other joint owner, the possessory action will lie. Nor will the facteof commencing a suit for a partition after the institution of the possessory action, in any manner affect the right to recover in the latter, where each party had possessed, for more than a year, a portion.of the land in his own right.

      Appeal from the District Court of Carroll, Curry, L

      Stacy and Sparrow, for the plaintiff.

      BemisswaA H. A. Bullard, for the appellant.
    1. The parties were joint tenants. That there had .been no partition, is proved by the institution of a suit to effect.a partition, after this action was commenced. From the very nature of ihe title of joint tenants, o.ne joint tenant cannot maintain a possessory action •against his co-tenant. 2. The cumulation of an action for a partition with the possessory action — in fact,'the mere institution of an action for a partition after .the possessory action- — mustjdismiss the latter ; the action for a partition being in its nature petitory, and .consequently incompatible with a suit for a partition. ¡C. P. 57, 150.
   The judgment of the .court was pronounced by

Rost, J.

This is a .possessory action. The plaintiff and defendant were, ,-nt the time.it was instituted, joint owners.of .the land, the possession of which .is in controversy. The.case was tried before a jury, who ¿ave a verdict in favor <of the plaintiff, with $1000 damages. The defendant has appealed from the judgment rendered on the verdict.

The main ground relied.on by the defendant’s counsel is .that, from the very .nature of the .title of joint owners, one .cannot maintain .a possessory action ¡against another. The right of a party thus situated to maintain a possessory action, depends upon the .nature of his possession. As long as he continues to ¡possess.nomine communi,.the right does not exist. But when.he has possessed ¡nomine propria, and in good faith, during more than one year, .he is to all legal intents a just possessor, .and in .case of a disturbance by the other joint owners, .the possessory action will lie.. Troplong, Presc. nos. 361, 528, This possession animo domimi of .the joint owner, is .expressly recognised by the Louisiana Code, and made.the .basis of the prescription of thirty years against the ¡title of his partners. Arts. 1228, 1229, 1292.

The plaintiff and the defendant purchased, in .1839, .four .contiguous lots of land, forming at the time two distinct and separate plantations, and each took .possession of one of those plantations. During the first year1 .the plaintiffrented .the place taken .possession of by him to a person who .has .testified in the cause. In 1840, he rented it to another person, whose testimony is also in the record. Those persons contracted with him as the exclusive .possessor of the land, and .paid him the rent. The last named delivered up the .land to him in 1841, and .the plaintiff planted a crop upon it; but before the crop was made, the defendant, who.had.been living -nil the time on.the adjoining place and cultivated it as ¡his o.w.n, look possession, by force, of the premises occupied by the plaintiff, prevented him from gathering the crop, and caused him other damage. The plaintilf’s right to maintain his action is .clearly made out. The fact that he subsequently instituted a suit for- a partition, -can in-no manner affect it. Each .of the parties had possessed, during more than one year, a portion of the land in his own right, and an action of partition .was the only proceeding to which .they could resort to put an -end to that state of -things.

The v.erdic.t of the jury in relation to the damages is fully sustained by the ■.evidence, and the judgment has done justice between the parties.

Judgment affirmed.

       Eustis, C. J. was present when this opinion was pronounced on the 12th of April, but was absent when it became final by the refusal of an application for a re-bearing.


text:
    Segura, Under-tutor, v. Prados, Tutor.
    Notoriously bad conduct, or unfaithfulness in the administration of the property of the minórsj are the only causes for which afather canbe legally excluded; or removed, from tile-tutorship of his children. C. C. 326. Proof that a father is improvident, careless in pecuniary matters, and wautingin habits of industry, or that he had not" caused an inventory to' be made, where the delay resulted from no indisposition on his part to taire the necessary steps to protect the interests of the minors, are not sufficient to- Warrant his removal from-the tutorship,
    Appeal from the Court of Probates of St. Martin, Brianl, J.
    Brent, for' the plaintiff,
    cited Civil Code, arts. 266, 269, 323, 324, 326, 1013, 1015V 1016, 1017.

      Be Blanc and Magill, for the appellant.
   The judgment of the' court was pronounced by

King, J.

The defendant has'appealed from'a judgment removing him from the tutorship of his minor children. The grounds on which his removal is asked for are-, the notoriously bad conduct of the defendant,- and his unfaithfulness in the administration of the property of the minors. These are th'e only causes known to- our laws for the- exclusion or removal of the father from the tutorship of his children, and we- think that the plaintiff has failed to show the existence of either. C. C. 326-.

The facts mainly relied on in-support of the averment of an unfaithful' administration are, that the defendant caused no inventory to bo made of the estate in which the minors are concerned, and that, without such inventory, he alionated moveable effects belonging to the community. The evidence shows that the defendant repaired from New Orleans to-St. Martinsville, for the purpose of causing an inventory to be made ; that he employed an attorney to taka the legal'steps to accomplish that end ; that the latter was prevented by a pressure of business front attending to this engagement; and that, notwithstanding the repeated- applications of the defendant, proceedings were postponed from time to time'until the institution of this-action. The failure to observe this formality, then, appears to haie arisen from no’ indisposition on the part of the defendant to take the measures necessary for the protection of his children’s interests. The only effects- alienated- by the defendant appear ts have been a few articles of merchandise amounting to about three or four' dollars, but for what purpose, or under what circumstances, has n’ot been shown-/

The charge of bad conduct is in our opio-ion equally unsupported1 liy the evidence'. The testimony show's that the defendant is improvident, careless in his pecuniary affairs; and perhaps wanting in habits of industry ; butii does not appear that he is addicted to any such vices of immoralities of conduct, as should deprive a father of the care and protection- of the persons and1 property of his children.

It is therefore ordered that the judgment' of the Probate Court be reversed, and that there be judgment for the defendant; the appe'ife'e' paying the costs of both courts.


author: Slídell, J.

text:
    Rivette v. Bergeron, Tutor.
    Wli'ére the rcconí shows no petition or motion for an appeal, nor any order of appeal, the appeal must be dismissed on a motion to that effect.
    Appeal from the Court of Probates of St. Martin,. Briant, J.

      De Blanc and Magill, for the plaintiff. J. E. Morse, and Nickolls, for the appellant.
   The judgment of the court was pronounced by

Slídell, J.

In this case there is no petition or motion for appeal, nor order of appeal. The motion to dismiss must prevail.

Appeal dismissed.


text:
    Dwight v. Curtis.
    A sheriff by Whofti services had been rendered, before tbe stat. of 10 March, 1845, relative to fees, in •writing notices of the sale of property seized under execution, in posting them, and in applying to the parish judge for mortgage certificates, is entitled to a reasonable compensation therefor, to be fixed by the rate allowed for similar services in other cases. The fact that no allowance is made for those services by the Btat. of 28 March, 1813, is no proof that the legislature intended that they should he gratuitous, the statute requiring them to he rendered having been enacted since the statute of 1813. No charge can be made for services which were required to he performed before the stat. of 1813, and for which no allowance was made by it, as for notices of seizure, copies thereof, and mileage for serving them. Ss. 3,17 of act of 1813. The first sec. of the stat. of 7 March, 1814, allowing mileage for the service of process, does not authorize any charge for mileage in serving notices of seizure. The service of a notice of seizure is not the service of process within the meaning of that statute.

      Appeal from the District Court of St. Mary, Boyce, J.

      Dwiglil, plain-' tiff, pro sc. Splane, for the defendant.
   The judgment of the court was pronounced by

King, J.

The plaintiff, suing for himself and for the use of the parish of St. Mary, claims S600 from the defendant, alleging that the latter, while acting as sheriff of that parish, charged and received other and higher fees than those allowed by law, under certain writs of execution, in virtue of which property of the present plaintiff was seized. The defendant pleads a general denial, avers that the allegations of plaintiff’s petition are false and malicious, and claims damages in reconvention. There was a verdict in favor of the plaintiff for SS50, and from the judgment rendered thereon both parties have appealed.

The services of the defendant were rendered prior to the adoption of the fee bill of 1845, and the rights of the parties are to be tested by the laws in force previous to that date. The plaintiff relies on the 3d and 17th sections of the act of 181-3, establishing an explicit fee bill. Bul. & Cur. Dig. p. 440, 444. The 3d section of that act declares that the sheriff shall be entitled to demand and receive the fees therein enumerated and no more; and the 17th section provides that, any clerk, sheriff, coroner or other officer, who shall presume to charge,- demand, or receive, any greater, higher, or other fees than are specially mentioned tad defined iff the act, shall be liable" to pay for every of-fence a sum not to exceed fifty dollars, nor less than twenty-five dollars, to be recovered before any competent authority, one half to the use of the person suing and the other half to the use of the parish". The charges made by the defendant, of which the plaintiff complains, are those for notices of seizure", copies of those notices, and mileage for serving them; for notices of sale, and mileage in posting them, and applications to the parish judge for certificates of mortgage. It is contended that aS none of these services are enumerated in the statute establishing the fee bill, the sheriff'is entitled to no compensation for rendering them, and has, by charging and receiving fees, incurred the penalties of the act.

"With regard' to the nótices of sale, mileage for posting fheffl, and,the applications to the parish judge for certificates of mortgage, these services have been required by a law passed_ since the adoption of the fee bill; and although the' statute requiring them to be performed has fixed no Compensation for the officer, it is not to be presumed that the legislature intended that they should be rendered gratuitously". In such cases the officer is entitled to" reasonable compensation, and when the rates of similar services are fixed in other cases, those rates should be the standard of his charges.

The statute of 1843 requires that th'e sheriff shall post up public notices of sales to be made by him under execution, at three public places. Under this law it has been held that, in the parish of St. Mary, two of these notices must be posted up out of the town in Which the seat of justice is situated. Pumphrey v. Delahoussaye, 9 Rob. 42. In performing that duty travel becomes necessary to distant parts of the parish, and for that service, as well as for writing the notices, the sheriff is entitled, upon every principle of equity, to remuneration, and, in the present instance, the charge made for mileage is" the same which the law allows that officer for serving process of the court.The fees for writing the notices have not been shown to be unreasonable.

The charges, however, for notices of seizure and for mileage in serving them,-sannot be made to rest upon the same ground. Those duties were required- to b'e performed before the adoption of the fee bill of 1813. That act makes no provision for the compensation of the sheriff for those services, but expressly forbids him from- making, any other or higher charges than those specified in the act. The act of 1814-; on which-the defendant relies to support his claim for milfeage for notices of seizure,- does not,- in our opinion, authorize that charge.- It provides for mileage in serving the process of the court; but the notice of a seizure made, cannot be considered process, in the legal acceptation of the term;- The defendant has violated the law in each of the bills collected from-the plaintiff. The jury do not appear to us to have awarded to the plaintiff the full-.amount warranted by the evidence. In each of the three bills the charge occurs, for notices of seizure, copies, and mileage for serving them; and the fees illegally received by the defendant amount to $14,24. In this respect the judgment must be-corrected.

It is therefore ordered that the judgment of the District Court be amended, and that the plaintiff recover of the defendant eighty-nine dollars and twentyfbur cents, instead of the sum of fifty ^dollars,-the defendant paying the costs of both-courts.-


text:
    Lewis, Executor, v. Splane.
    ife-appellee is not entitled to have the appeal dismissed-on the ground that the bond, given for a suspensive appeal, is not-for as large an amount as the law requires, where it is sufficient for a devolutive appeal.
    Where a lost-instrument is made the foundation of a suit-or defence, the loss must be shown by direct evidence, or be rendered probable by circumstances, supported by the oath of the party ; and it must be’shown that its loss was advertised in some public paper. C. C. 2258, 225».
    Appeal the District Court of St. Mary, Boyce,- J.

      Dwight, for the plaintiff. Splane, appellant, pro se.

   The judgment of the court was pronounced by

King, J.

A motion has been made to dismiss this appeal, on the ground that the bond furnished by- the appellant is not for a sum- exceeding by fifty per cent the amount of the judgment appealed-'from. The bond given by the appellant, probably from some inadvertence or error of calculation, is for about $18 less than-the sum-required bylaw for a suspensive appeal, but is for an amount more than sufficient to- cover the costs. In- the case of Balph v. Hoggatt, lately decided, ante p; 462, we held this to be an-insufficient cause for a dismissal, and: that the case would-be considered as pending-before us on a devolutive appeal.See also Parks v. Patton, 9 Rob. 167.

The defendant has appealed from a judgment' rendered’ against him for the amount of a promissory note, with interest from judicial- demand. He-complains that the court below has not allowed, in part extinction of the plaintiff’s demand, a draft which is averred in the answer to have been lost or mislaid. We think the judge did not err. The loss of the instrument has not been shown either by direct testimony, or by such circumstances, supported by the oath of the party, as render the loss probable, which was an indispensable prerequisite fo proving its contentó. Nor does it appear that the loss was advertised in a public paper, which the law deems equally necessary to a recovery in all casos, where a lost instrument is made the foundalion.of.a suit or defence. C. C. arts. 2258, 2259. Judgment affirmed.


text:
    Haydel v. Bateman.
    Where an action, as,shown by the original petition, is neither petitory nor possessory, the plaintiff may amend his petition so as to make it clearly petitory.
    A third person, who claims tobe the owner of. the-land in. controversy in a petitory action, has aright to intervene, and try liis- title intho suit, provided he.oall.no otherparties in warranty, nor in any other way arrest the progress of the litigation.
    Appeal from the District-Court of St. Mary, Boyce, I.

      Oilivier, for-the plaintiff.
    The amendment was properly allowed. Hoover v. Richards, 1 Rob. 35. A La. 40Q. Bauduc w. Domingon, 8 Mart. N. S. 438. Petitpain v. Frey, ;15 La. 198. Code Pr. 151. The intervention of Comean was properly rejected; because the decision of the matters.between the plaintiff and defendant could not affect his rights, in the case af Pierre v. ■Masse,the court held that, “it.is not sufficient that the interpleader has claims to establish and enforce against plaintiff or defendant, to authorise an intervention.; lie must show that the decision of the matters at issue between them, will, or may, ,affect his rights.” The .case of Caráby v. Morgan, 5 N. S. 501, is still more directly in point. It was a possessory action. The court said: The ground on which a third party is permitted to come between plaintiffs and defendants is, that the action between them may be injurious.to him. His right is, therefore, limited to the suit pending; .to see that it is .correctly and legally decided.”

      Splane, for the appellants.
    The amended petition should not have been received. C. P.419. It. changes the natuer of the. action. -Castalle v. Dumartrait, 5 Mart. N. S. 69. BabaocJcv. Shirley, 11 La. 75. Bcllv. Williams, 10 La. 516. Gasquetv. Johnson, 1 La. 434. McRae .v. McRae, II La. 571. Bauduc v. Domingon, 8 Mart. N. S. 438. The intervention should have been received. C. P. 389. Stat. 7 April, 1826. 11 Mart. 455. >1 Mart. N. S. 499. 11 La. 449. 5 La. 486. 3 La. 183. 1 La. 431.
   The judgment of the court was pronounced by

Rost, J.

This case presents questions of practica, in which we are invariably disposed to be governed by authority. The action as originally commenced, was neither petitory nor possessory ; and, under the rule established by the Supreme Court in the case of Hoover, tutor, v. Richards and wife, 1 Rob. 35, the amendment which made the action clearly petitory was admissible.

The action being petitory, the intervention of Comean should have been allowed. He claimed to be the owner of the land in controversy, and had the right to try his title in this suit, provided he did it without -calling any other parties in warranty, -or many other manner arresting the progress of the litigation. Interventions of this kind are of frequent occurrence in our courts. See Phelps v. Hughes, 1st Ann. Rep. 320. Gibson v. Foster, ante, 503.

The judgment in this case is reversed; and the case remanded for further proceedings in conformity with the views expressed in the opinion of the court. The plaintiff and appellee paying the costs of this appeal.


author: Post, J.

text:
    McIntosh v. Smith.
    Wiere the record of a judicial partition from another State, properly authenticated, is offered in evidence, any objection to it as not being a complete transcript of all the proceedings, or on the ground that the partition is of no effect, not having been homologated, goes to its effeet and not to its admissibility.
    Where a party is present at the trial he may be ordered to answer interrogatories instantcr, though then propounded to him for the first tii.ne, where the questions require no recourse to bpoks or papers.
    The provision of art. 3491 of the Civil Code, that'-* prescription is suspended during marriage in every case when the action of the wife maybe prejudical to the husband,” must be construed with reference to the french text. That article is taken from the Code Napoleon, and its meaning is settled in the jurisprudence of France, as embracing all cases in which the action of the wife would, if ipainlained, give .the defendant, or any other person, a right of action against the husband.
    Though a wife suffer her property to be splgl to pay he;:husband’s debts,without opposition, she will not be thereby precluded from reclaiming jü. fho law presumes that she was prevented by her husband from asserting her rights.
    Where, by agreement of counsel, a jury is permitted to separate after the adjournment of the court, .the defendant cannot complain that, after having sealed their verdict as directed by the court, the jurors separated for the night, and that, aftpr their vordiot was delivered into court the next morning, they were sent out again, with the papers of the suit, to make the verdict more explicit.
    Xn an action by a wife against the purchaser of slaves .claimed as ^paraphernal property, bought by the defendant at a sale under execution, in which the husband is cited in warranty, judgment may be rendered against the defendant for the whole of t.he slaves and their hire, though the co.mnmjuity had been dissolved by the death of the wife pendente Hie; nor will the death of one or more of the slaves defeat the right to recover their hire while alive., on the ground that eviction was a prerequisite to its recovery.
    Acts or omissions which would constitute fraud in other persons, will not necessarily be construed to be fraudulent against married women.
    The discontinuance of a suit cannot affect the legal rights of a party.
    Jn questions of title silence does not, in any case, show consent, unless continued during the .time necessary for prescription.
    Where a purchaser of property sold under execution is .evicted, the plaintiff in the execution, cited in warranty, can .be condemned to pay legal interest only from the date of the purchase.
    Appeal from tlae District Court of St. Mary, Overton, J.
    Splane, for the plaintiff. Dwight, for the defendant. Gibbon, for Barron, cited in warranty.
   The judgment of the court was pronounced by

Post, J.

The plaintiff claims, as her paraphernal property, certain slaves sold under execution to satisfy debts of the community existing between her and her husband, and purchased by the defendant. The defendant cited the plaintiff’s husband, and the seizing creditors, in warranty. There was judgment against him in favor of the plaintiff, and in his favor against the parties cited by him. After an ineffectual attempt to obtain a now trial, the defendant and one of the seizig creditors appealed. Our attention has been called to several bills .of exception which we will briefly notice, so far as itis necessary to do so.

I. The court properly overruled the objection of the defendant to the introduction as .evidence of the copy of a record of the Orphan’s Court of Adams eonnty, in the State of Mississippi. That copy was properly authenticated, and the grounds taken by counsel go to its effect, not to its admissibility.

II. The defendant .being present at the trial, the court had the undoubted right to order him to answer inslantcr the interrogatories put to him. He did not require his counsel’s advice as to the answers he was to make. He was bound to speak the truth, and was able to do so without previous notice.

III. The judge correctly charged the jury, that, under art. ,34Ml of the Louisiana Code, prescription does not run against the plaintiff. The english side that article provides that prescription is suspended during m.arriage, in every case, when the action of the wife may be prejudicial to the husband. The french says : “ Dans tous les autres cas oü faction de lafemme refléclvirait contra le man.” The english text must be construed with reference to the french. This article was originally taken from the Code Napoleon, and its meaning is settled by the jurisprudence .of Fran.ee, as embracing all cases in which the action of the wife would, if maintained, give the defendant, or any other person, a right of action against tbs husband. The present case comes clearly within the rule,

IV. The judge refused to charge the jury that if one stands by and sees, or if one knows of, his property being sold to pay the debts of another, without making opposition, he cannot afterwards recover back the property ; and also that a party guilty of fraud and collusion is estopped from having any advantage from his own fraudulent and collusive acts. Supposing those principles to bo correct as laid down, about which we express no opinion, they are not applicable to the wife who sees her property sold to pay her husband’s debts. If she suffer it to be done without opposition, the law presumes that she was prevented by him from asserting her lights. The legal presumption which excuses hop when she commits a certain felony in his company, must avail her also in casos like this. The judge did not err. Hypothetical propositions not applicable to the case at bar, only tend to mislead the jury.

V. From the beginning of the trial the jury were permitted, by an express agreement of counsel, to separate after the adjournment of court. This being the case, the defendant cannot complain that, after having sealed their verdict in the evening, as directed by the court, they separated for the night, and that, when the verdict was delivered into court the next morning, they were sent ouf again with the papers of the suit, in order to make it more explicit as to the time of the death of two of the slaves, and the amount to be recovered by the defendant from his warrantors. The evidence of the facts which the court below directed the jury to find is before us, and the irregularities complained of would not, if they existed, authorise us to remand the cause.

The defendant has assigned two errors of law, which he says are apparent on the face of the record: 1st. That.the wife of the defendant has died, leaving children, since the institution of this suit, and that her heirs should have been made parties. 2d. That the defendant cannot be made to pay the hire of the slaves that have died. There is nothing in those objections. The defendant has the slaves in his possession, and withholds them from the plaintiff. As head .and master of the ¡community, ha remains liable for all its obligations. The recourse which the law .gives him against the heirs of his wife in case they accept .the community, cannot affeet the rights of third persons. The death of two of the slaves was a.fortuitous .event., which cannot affeet .the right of the plaintiff ,to their hire.

On the merits the slaves are proved to be paraphernal property, and the law .and evidence are clearly in favor .of the plaintiff. Thera ¡is no doubt that the .laws intended for .the protection of married women should ¡not be so construed .as to enable them to commit fraud; but their dependant,condition’ greatly restricts the application of that principle, and we have already had occasion to determine that acts or omissions which would constitute fraud when done or .omitted by other .persons., would nohneeessarily.be so construed against married women.

The plaintiff was -no doubt aware that the slaves had been seized and sold, and it is further shown that she instituted two suits-in relation to those slaves, which she afterwards dieontinued. The discontinuance of suits by a party, cannot .affect his legal rights ; and it is not true, in any case, that, in questions of title, silence shows consent, unless it continue during the time required for prescription, when the law of prescription is applicable. We have -already stated that neither the knowledge of the plaintiff that the slaves were sold, nor her presence,at the sale, .could affect her rights.

'We.seo no error in the judgment so far as the defendant is concerned, except that, under the act o.f 1839, the claim in reconvention should have been allowed, as far as it was proved. We will therefore amend the judgment, and allow the defendant $330 45 in compensation.

The judgment must also be amended in relation to the seizing'ereditor, Barron. The judgment as rendered charges him with interest at the rate of eight per cent per annum. He is only responsible for legal interest, and the amount which he is to refund is $273, only.

For the reasons assigned, it is ordered that the judgment in this case be amended, so as to allow the defendant a credit of $330 45 on the sum he is to pay for the hire of the slaves in controversy. It is further ordered that the judgment be amended, and Joseph Barron adjudged ,to pay the defendant the sum of $2731, instead of $2771, with interest thereon at the rate of live percent per annum, instead of eight percent, from the fifth day of February, 1833, till paid. It is further ordered .that the judgment as amended be affirmed; the costs o.f this appeal to be paid by the plaintiff and appellee.

       This record was objected to by defendant, as appears by a bill of exceptions, on the grounds that, “ it was not the whole, but only a part of the record ; that a material paper, to wit, the will, was wanting ; that a part of the record is not admissible in evidence; that the document purporting to be a copy of a judicial partition, which is not homologated, is no evidence of a partition, and can have no effect as such.”

       The defendant objected to the right of the plaintiff to propound these interrogatories, on the grounds: “ 1. That, after trial commenced, one party cannot propound interrogatories to anothor, and require him to answer them during the progress of the trial: 2. That the court cannot require such interrogatories to bo answered instanter , but can only fix a day when they shall be answered, when the party interrogated will have the whole day to answer: 3. That a party, at the time of trial, cannot propound successive interrogatories to an opponent, and require him to answer them successively until be obtains a satisfactory result.”

       The errors, as assignod, are: “ 1. That the wife has died sinco the institution of suit, leaving heirs of age and under ago ; that her death was suggested in the lower court ; that there is judgment against the defendant for all the negroes and the whole of their hire ; that there cannot lawfully be a judgment against him for but the half of each; that if a judgment for the whole is sought, the heirs of the wife must be made parties. 2. Defendant cannot be compelled to pay the hire of slaves of which he has not been evicted; eviction is a prerequisite to the recovery of Irire ; judgment for the hire of the slaves who have died is contrary to law.”


author: Seideee, J.

text:
    Dwight, Syndic, v. Smith, Tutor.
    The claim of one whose occupation is that of a-school-master, for the hoard and lodging Of pupils, is prescribed by one year, under art. 3403 of the Civil Code.
    Appeal from the' District Court of St. Mary, Voorhies, J.

      Dwight, appellant, pro se. Splane, for the defendant.-
   The judgment of the court was pronounced by

Seideee, J.

The'items of the bill upon which the plaintiff sues, áre for tha board and tuition, and advances of money for the use, of certain minors, the nephews of Roberts, the insolvent. The items for board and tuition1 were' rejected by the court below, as barred by prescription.

It is urged that the item for board was improperly subjected to the prescription of one year. The argument'of the appellant is, that Roberts was not an inn-keeper, and that therefore the claim does not fall within article 3499 of the Code. The language there used is: “ That of inn-keepers and such others, on account of lodging and board which they furnish.” It is true that the occupation of Roberts was thatof a school-master'and not of an inn-keeper ;■ but the nature of the service charged for, the boarding of the minors, falls within the literal terms of the Code; and, in view of the'expression “ such others,” may be fairly taken as the test of the prescription applicable to the case. By taking persons to board with him for hire, Roberts assimilated himself to an inn-keeper. We cannot reconcile, either with the letter or the spirit of the Code on the subject of prescription, the pretention of the appellant that a claim of such a character is barred only by ten- years.-

The court below also properly rejected an item for travelling expenses incurred by Roberts, the uncle, on a journey of affection and kindness in quest of one of the minors. It resulted in no advantage to the minor, and was not made at the request of his tutor; nor, as we-believe, with any expectation at the time of reimbursement. Judgment affirmed.


author: Slidell, J.

text:
    Union Bank of Louisiana v. Campbell.
    In an action against the endorsef'of a note who resided at the time of the protest in fclie’parishof S-, the certificate of a notary, by whom the note was protested, “ that the' parties were duly notified of the protest thereof, by letters to them written and addressed'/ &c.,- and served upon them in'the manner following, by means of writfccn-nofcices;addrcssod; to the endorsers, all of the parish of St. Mary, which notices I deposited in the post-office/” &c.,-will be insufficient to charge the endorser. Per Curiam: The notary certifies that the’ endorsers- were “ all of the parish of S.”> but we are not permitted to infer that the notices were addressed “ Parish of S.” In the, absence of any further direction, the letter enclosing the notes would have remainedin the office in which it was-depositod.-
    Appeal from the District Court of St. Mary, Voorhies, J.

      L E. Morse and Nichoils, for the appellants. Splane, for the defendant.
   The judgment of the court was pronounced by

Slidell, J.

The defendant is sued as endorser of a promissory note, and the case turns upon the question of notice. At the time of the protest the defendant lived in the parish of St. Mary, and Franklin was the post-office nearest to his residence. The certificate of the notary declares,, “that the parties were duly notified óf the protest thereof by letteVs io them written and addressed, dated on the day of said protest, and served upon them respectively in the manner following, viz : by means of three written notices addressed to the drawer, J. Smith, and to the endorsers, James Campbell and James S. Norris, ail of the parish of St. Mary, Which three notices I have deposited in the post-office at St. Martinsville, and by leaving and furnishing the said cashier, Adrien Dumartrait, similar notices as those directed as aforesaid.” This certificate is insufficient to charge tire endorser. It does not show that the notice was addressed to any place. It certifies that the drawer and endorsers were “ all of the parish of St. Mary,”'but we are not permitted to infer from this that the notices were addressed “ parish of St..Mary.” In the absence of a statement of place, in the address of the letter, it would remain in the post-office at St. Martinsville, instead of being transmitted to Frankliii ; in other words, it would not reach tlie endorser. Judgment affirmed.


text:
    Bowles v. Wilcoxen.
    It is only in the' case of the' seizure of ships or other vessels, that property provisionally' seized can bo released by the defendant on the execution of a bond in favor of the plaintiff. The' right to bond property provisionally seized' is given by sec. 12 of the stat. of 20'March, 1839. See. 18 of that stat. relative to the bonds given to release property so seized1, must ho considered as referring to the cases enumerated in see. 12.
    A distringas will not he issued to compel a specific execution of a judgment rendered against a party for a portion of a crop in kind, where, in consequence of the bonding and sale of the property, it bad become impossible to deliver it in kind. Per Curimi: The ofiice of the writ is to enforce the performance of things tlVat are'possible; not to punish parties for failing to do- what is impracticable.
    Defendant having obtained a judgment against plaintiff for a certain number of hogsheads of sugar due to him as rent, took out a distnngas to compel a specific execution of the judgment. Plaintiff enjoined the proceedings on the ground, that the sugar, having been sold, could not be delivered in kind; the injunction was sustained as to the delivery of the particular sugar, hut it was ordered that an equal quantity of sugar should be delivered in satisfaction, and a distringas was authorised to ho used to enforc'd its deliveryHeld, that the distringas could’ only have been used to coerce the specific performance of the contract, and that, when that could no longer be accomplished, it should have been revoked.
    Appeal from’ the District Court of St. Mary, Voorhies, J.

      Maslcell and Magill, for the appellant. Dwight, for the defendant.
   The judgment of the court was pronounced by

Kino, J.

Wilcoxen, the defendant in this suit, obtained a judgment against the present plaintiff, Bowles, for a sum of money, and for twenty-eight hogsheads and one barrel of sugar, and twelve hundred and forty-three gallons of molasses, of the crop produced-by the latter in 1844, which judgment was affirmed by this court. See 1 Ann. Rep. 230. That suit was commenced by a provisional seizure of a quantity of sugar, which Boioles was permitted to bond on the day on which the seizure was made. The bond was returned into court, and the sheriff stated in his return, the fact of its having boon taken. No ópposition to this proceeding Was made by the plaintiff, who nevertheless took a judgment for one-fourth of ti e crop produced by Bowles in 1844, in kind. Upon an execution issue'd in virtue of this judgment, the monied part of the demand was satisfied* and the' sheriff' returned that an ineffectual application had been made for the sugar and molasses. A rule was, thereupon, taken on Bowles,to show cause why a Writ- of distringas should not issue against him, and, after a hearing, the rule was made absolute. From the judgment on the rule Bowles asked for an appeal, which the juáge refused. A written notice was given to the sheriff by Bowles, of his readiness to deliver the quantities of sugar and molasses specified in the judgment, which WilcoXen refused to receive, unless they were the identical sugar and molasses provisionally seized. An offer was also made to satisfy the judgment by paying the current price of sugar in October, 1846, with eight pór cent interest from that date, which was also declined. Written instructions to the sheriff were endorsed on the writ by the counsel of Wilcoxen, to receive nothing in satisfaction of the judgment, except the specific articles mentioned in the decree. Bowles enjoined the execution of this writ on various grounds, and* among others, that a distringas was not a remedy of which the defendant could avail himself; The injunction was sustained so far as to relieve the plaintiff from the delivery of the spocific sugar and molasses described in the judgment* and the sheriff was authorised to receive the required quantity of both, of equal quality with that produced by Bowles in 1844. From this judgment, Bowles, the plaintiff in this action, has appealed.

The right of the plaintiff to an appeal from the judgment rendered on the rule, has been much discussed at bar, but the question is not before us in a shape to authorise the expression of an opinion in relation to it; nor is the enquiry material to the decision of the true issues Which the controversy presents.

It is contended that the bond executed by the plaintiff was legally received by the sheriff; that its effect was to release’ the sugar from the seizure, and to deprive the defendant of his right to claim a specific execution of his judgment. The only authority relied on by the plaintiffin support of the right to bond property provisionally seized, is the act of 1839. That statute we understand to relate alone to ships or other vessels, the provisional seizures of which it permits to be set aside, on a bond being executed in favor of the plaintiff as in cases of attachment. The 18th section of the act, which provides for the’ disposition to be made by the sheriff of bonds given to release property from provisional seizure, must be considered to refer to cases enumerated in the 12th section, of ships and other vessels, the only species of property to which the right of bonding in such proceedings has been extended. Acts 1839, p, 166, ss. 12, 18. The act of the sheriff was clearly illegal, and the unauthorised bond taken by him opposed no impediment to a specific execution of the judgment, if, in other respects, it had been practicable.

'lhe question which next arises is, whether the defendant, under the facts of the present case, could resort to a distringas to enforce a compliance with the judgment which he had obtained. The contract of lease, upon which that judgment was rendered, stipulated for the payment in kind of one-fourth of a crop of sugar and molasses, as rent. The judgment was in conformity with this contract, and the defendant would, under ordinary circumstances, have had his election, upon the refusal of the debtor to surrender the objects, the delivery of which was- decreed, either to institute an action for damages,- or to compel a specific execution by means of a distringas. C. P. 635, 636; But it is conclusively shown-by the evidence,-that a- specific execution of the judgment had become impossible at the date when- the writ issued; that the defendant was aware of- the impossibility; and that he persisted in resorting to this process without the remotest expeetation that it would coerce a- specific performance. Wilcoxen knew that the sugar had been released-on the bo.id of the plaintiff, and delivered-to-the latter, whether illegally or not is immaterial; and it appears from-the evidence that he was aware, at- the time the order for the distringas was granted, that the sugar had-long previously been shipped and sold, and that the proceeds were then in the hands of the plaintiff’s attorney. He was aware then that a speoific execution of- the judgment was impracticable, and that the writ he was seeking could only serve to harass his debtor. With this knowledge he instructed the sheriff to receive in satisfaction of his judgment no other than “the specific articles named in the judgment;” and he now contends, that the law accords tohim-the x-ight-of resorting to this suit, for the mere purpose of punishing his debtor-. The proposition-is novels and can meet with little favor in this court.-

The appropriate office of-the-writ is to-enforce the-performance of things that are possible, and not to punish parties fox> the failure to pex-form those which are impracticable. When the impossibility of a specific'execution becaxxxe apparent to the judge below, he correctly dispensed the defendant fx-om that part of the judgment; but fell into -tke error of directing-that other sugar and molasses should be delivered in satisfaction, and of authorising the use of the distringas t'o enforce the-delivery. The writ- could only* have been used to coerce the specific performance; and when that end could no longer be accomplished, it should have been-revoked’; and the party left to other i-emedies. In view of the facts of this case, w-e think that the defendant was not entitled to a distringas, and that the judge erred in nobsustaining the injunction.

It is therefore ordered that the judgment of the District Court be reversed, and that the injunction sued out by the plaintiff be made perpetual; the appellee paying the costs of both courts;


text:
    Fisher v. Gordy et al.
    The profits of all the* effects of which the husband has the administration, and all the estates-which either spouse may purchase during the marriage, though the purchase be only in the name of one of them, are considered by la-# to belong to the community, and are liable' for the debts of the husband whether contracted before or during’ the marriage, C. C.-493, 2371.- To establish a title in the'wife, in her separate right1, to property purchased1* under such circumstances, she must show that the price was’pnid with paraphernal funds* of which she had the‘administration:
    One who claims a privilege on a crop for the wages of her slaves employed in xn'oducing it, must assert it by way of third opposition; it is no ground for enjoining the sale of the crop.
    Appeal from the District Court of St. Martin, Overton, J.
    Heard, for the plaintiff. Masfcell, for tlie appellants.-
   The judgment of the court was pronounced by

King, J.

The plaintiff has onjoinod the execution of two writs offierifaciass directed against her husband, Daniel Fisher, in virtue of which she alleges that a quantity of sugar, the product of her separate property, has been seized. The injunction was sustained for one-half of the sugar levied upon, and for the other half dissolved. From that judgment the defendants-have appealed.

It appears from the evidence that the plaintiff, at a sheriff’s sale of her husband’s property, became the purchaser-of-a tract of‘land and two slaves, and that, at the time of her marriage, she owned several other slaves. The sugar seized under the writs enjoined was the product of thedand and slaves of which she thus claims the ownership. At the date.of the adjudication to the plaintiff she had been separated in property from her.-husband, but shortly after instituted a suit claiming aseparate administration, -which-was'pending during the time that the sugar was produced and at the date of the seizure. The judgments under which the.levies were-made, were for debts of-the husband contracted prior to the marriage, and-the question presented is, whether the whole, or any part, of the crop thus produced, could be seized -in satisfaction of his debts. Our law considers the‘profits of all the-effects of which-the husband has the administration, and the estates-which the husband and-wife may acquire during the marriage, although the purchase of the latter be only in the name of one of the two, to belong to■ the community. iC. C. 237.1.

In addition to a title in her own name, it -was incumbent.on the -plaintiff to show that the price of the laud and slaves adjudicated was paid .with her paraphernal funds of which she had the administration,.in order to establish that she had been invested with title to them in her separate right. This proof has net been made. No circumstances have been shown which exclude the land and slaves adjudicated to her from the operation of the general rule, which-render-s that property common which is acquired by either of the married parties during the existence of the community. 17 La. 299. 1 Rob. 367. The husband appears to have retained the administration of the property thus acquired, and the wife could not have legally opposed his administration. The fruits which it yielded, although produced in part by the labor of the plaintiff’s slaves, belonged to the community of which the husband was’head, and were liable for the payment of his debts, whether contracted prior to or during the marriage. C. C. 493. If the plaintiff has a,privilege upon the sugar for the labor of her slaves in producing it, that right must be exercised by means of a third opposition ; it forms no ground for an injunction.

The judgment of the District Court is therefore ‘reversed. It is further decreed that the injunction obtained by the plaintiff in this case be dissolved, and that the plaintiff and his surety be condemned, in solido, to^ay to -the defendants five per cent damages on the amounts of their respective judgments enjoined, reserving to the plaintiff her right of enforcing any claim she may have to reimbursement for the labor of her slaves in producing the sugar seized ; the appellee to pay the costs of both courts.


text:
    Murphy, Executor, v. Maskell.
    An injunction obtained against an order of seizure and sale should noth© perpetuated for the whole amount claimed by the seizing creditor, where a part of the claim is justly due. He is entitled to proceed with the sale for the amount really due. G. P. 743.

      Appeal from the District Court of St. Mary, Voorhies, J.

      Gibbon, for the plaintiff. Maskdl, appellant, pro se.

   The judgment of the court was pronounced by

Slidell, J.

The defendant having obtained an order of seizure and sale, was restrained by an injunction. Relief was properly granted as to a portion of the claim. A payment of $1005 had been made on account, and should have been credited.

Whether the payment of $1005 to Brownson, the original creditor and the assignor of Maskdl, was prematurely made, is a question which cannot be raised by .the defendant. He stands in the stead of Broionson, who having been paid in part, could not have an order of seizure and sale for the entire amount. M.askelVs responsibility, in his capacity of executor of Dough, to other parties for the amount paid to Brownson, is a subject not properly before us, and which cannot be blended with the consideration of his rights as the assignee of Brownson• Wo are of opinion, however, that the injunction was improperly perpetuated against the entire claim. For wliat is really due, the seizing .creditor Is entitled to proceed. See 17 La. 508. C. P. 743.

It is therefore decreed that the judgment of the courtbelow be reversed, and that the said Maskdl have leave to proceed in the execution of the order of seizure and sale for the amount of $1,684 82, with interest thereon at the rate of ten per centum per .annum from the 13th day of February, 1843, until paid, and costs of the .execution of said order of seizure and sale ; and that, as to the yesidu.e of the amount claimed by said Maskdl, the injunction be perpetuated ; the costs of this suit in the court bejow to be paid by said Maskdl, and those .of this appeal to be paid by tho appellee.


text:
    Osburn v. Curtis, Sheriff.
    A purchaser of property sold under execution for cash at the suit a bank, cannot require the sheriff to receive in payment notes and bonds of the bank. Per puriann The mandate of the court required him to receive the lawful money of the United States. He was incompetent to determine judicially the genuineness and validity of the .obligations, or to .settle the rights of the parties as mutual debtor and creditor.
    Appeal by the Planters Bank of Mississippi, from a judgment of the District Court of St. Mary, Voorhies, J.

      Splane, for the plaintiff,
    cited 6 Rob. 387. 11 Rob. 286. 12 Rob. 125.

      Maslcell, for the appellants,
    cited 7 La. 91. 1 An. R. 9.

      Olivier, on the same side.
   The judgment of tho court was pronounced by

Slidell, J.

The Planters Bank of Mississippi having obtained a judgment against Osburn, the plaintiff’s husband, levied execution on certain slaves, which were offered at public auction by the sheriff, in the usual manner, for cash, and were adjudicated to Mrs. Osburn for the price of $1500. This amount she tendered to the sheriff in notes and bonds of the Planters Bank, the plaintiff in execution. He refused to receive any thing but lawful money of the United States, and proceeded to re-adverlise the property. The plaintiff then obtained an injunction ; and asked a decree compelling the sheriff to accept the payment of the price as tendered, and to execute a deed for tho property.

The sheriff was a mere executive officer, charged with tho execution of the judgment of the court. Tho command of the writ of fieri facias was to seize and sell the defendant’s property for money, and pay that money to the plaintiff in execution, to the amount of his claim. The mandate of the court empowered him to receive no money but the lawful money of the United States. "What was tendered was bank notes or bonds, purporting to be the obligations of the plaintiff in execution. An executive officer, proceeding under such an order, could not be required to act judicially, and determine the genuineness and validity of the obligations tendered. He was incompetent to adjudge a question of compensation, and settle the rights of the parties as mutual debtor and creditor. AVe think the tender was properly rejected, and that tlie sheriff did right to refuse a deed, and re-advertise.

It is therefore decreed that the judgment of the court below be reversed; that the injunction be dissolved; and that the^e be judgment fo.r defendants, with costs in both courts.


author: Fost,' J.

text:
    Bell v. Murphy, Executor.
    The maker of a note executed a mortgage, to secure an accomodation endorser against loss in consequence of his endorsement of the note. At maturity, part of the note was paid, and another note, endorsed by plaintiff, was given for the balance, the first note being returned . to the maker. The second note was paid, after protest, by the endorser. In an action by the latter, claiming to bo paid the amount by preference out of the mortgaged property: Held, that the mortgage was given to secure a specific debt, which was extinguished by novation, and that the mortgage was extinguished with it.
    Appeal from the District Court of St. Mary, Voorhies, J.

      Splane and Stewart, for the appellant. Maskell, for the defendant,
    contended that the mortgage claimed by plaintiff was extinguished by the novation of the debt it was executed to secure, citing 1 La. 527. .4 La. 247. 8 La. 270, 531. 16 La. 370. 2 Fob. 59. 9 Fob. 484.
   The judgment of the court was pronounced by

Fost,' J.

The plaintiff gave tho defendant’s testator an accommodation endorsement ou a note which was discounted in bank, and took from him a mortgage on two slaves as security against any loss, damage, or injury he might sustain, in consequence of the endorsement of said note. At its maturity it was paid in part; another note, endorsed by'tho plaintiff, was furnished for the balance, and the original note was returned to the maker. The second note was protested at maturity for non-payment, and -subsequently taken up by the plaintiff, who now sues for the amount and claims to be paid by preference out of the proceeds of the property mortgaged to him. There was judgment in his favor for the amount claimed without mortgage, and he has appealed.

There is no error in the judgment. Tho mortgage was not a general one, to secure the plaintiff for endorsements ; it was given to secure the payment of a specific debt, which the evidence shows to have been subsequently novated and extinguished. Tho mortgage was extinguished with it.

Judgment affirmed.

       The mortgage recited that: “Whereas the appearer bad executed his promissory note for $500, payable at the offico of tho Gas Light and Banking Compay at Franklin, twelve months after date, dated--April, 1841, which note was duly endorsed by said David Bell, and was discounted at said office on the 28th day of the present month for the accommodation of said appearer, the drawer thereof, the proceeds of which note he the said appearer has realized to himself exclusively ; now therefore, for the purpose of securing the said David Bell against any pecuniary loss, damage, or injury, ill consequence of his, said Bell’s, endorsement as aforesaid, the said appearer declares that he doth by these presents mortgage, &c.”


text:
    Soileau et al. v. Rougeau.
    A donation made'by a-wife tobor husband during marriage, in case oilier death without descendants or ascendants, will comprehend.only tho properly,.moveable and immoveable, existing at its date. -C. 0.151.4.
    A donation inter vivos of moveables or immovables must be executed before a notary and two witnesses, under pain of nulilty. C. C. 1525. This is .the only nullity of form declared hy law ; and no other can bo recognized. By the Code of 1308 a detailed estimate of the effects given was required to be inserted in, or annexed to, the act of donation^ under pain of nullity; but-the ’law was changed ’by the Code of 1825. "The last paragraph of art. 1525 providing that " the act of donation ought to contain a detailed estimate of the effects given”, is directory to the notary who executes it, and its omission may make him liable for any damage the parties may sustain in consequence thereof, or subject him to any penalty imposed by law for such .neglect of duty, hut cannot annul the act.
    Appeal from the District Court of St. Mary, Voorhies, J.

      Swayze and Taylor, .for the plaintiffs,
    contended that an act of donation inter vivos of moveables must contain a detailed estimate of the effects, citing C. C. 1525. 3 Rob. 194. 8 Toullier,-no. 180.

      Dwpré, -for'the appellant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs, heirs ;in the collateral line of Marianne Soileau,, deceased without issue and leaving no ascendants, claim her entire succession from her husband. The defendant sets up title to the entire succession, under a donation inter vivos of present and future property, executed by his wife in his favor, on the 12th of June, 1829, during the existence of the marriage. The court below maintained the donation, for the immovables and slaves acquired previous to its date, b.ut gave judgment in favor of the plaintiffs for the immovables and slaves subsequently acquired, and for all the moveable property left by the deceased at her death. The defendant appealed.

We concur in the opinion of the judge of the first instance, that the donation could comprehend only the present property of the donor, and that it is null so far as it embraces future property. C. C. 1514. But we are unable to agree with him that the donation is also null for the moveables, which the donor possessed when it was made. In donations of moveables, the old Code required a detailed estimate of the effects giv.en to be inserted in, or annexed to, the act of donation, under pain of nullity; but the law was changed by the present Code. Article 1525 provides that a donation of moveables will not be valid unless an act be passed of the same before a notary and two witnesses. This is the only nullity of form declared by law; and,-under our repeated decisions on similar questions, we can recognise no other.- The last paragraph of the article cited,- providing that the act ought to contain a detailed estimate, is directory'to the notary who executes the act.- The omission of this formality subjects that officer to the payment of all1 damages which the parties may sustain by reason thereof, and to such penalties as the-law’may pronounce against him for neglect of duty; but it does not authorize us to-annul the donation.

It is therefore ordered that the judgment in this case be reversed ; that the defendant be quieted in his possession and title to all the property claimed, which belonged to Marianne Soileau, his wife,- and to the community existing between them, on the 12th day of June, 1829; and that the plaintiffs recover all the property which may' have been acquired- by the deceased in her own right, and one half of the property acquired by the community, since that date. It is further ordered that the case be remanded for the purpose of settling the succession of Marianne Soileau, in accordance with' the views expressed in tliis opinion, and that, in the settlement, the defendant be charged with one half of the community debts. It is finally ordered- that' the costs of this appeal be paid-by the plaintiffs and appellees.-


text:
    Miller et al v. Andrus et al.
    Where a donation inter vivos, though styled by the donor a remunerative donatSbii, does not exceed the disposable portion, the heirs of the donor cannot dispute his estimate of tho value of the services. Per Cwriam.- The donation may be'treated as ah'ordinary one; the announcement of the donor’s motive cannot affect' it.
    Appeal from the District Court St.- Landry, Cushman, J.-

      T. I-L, and-W, B. Lewis, Martin, and Swayze, for the plaintiffs. Dupré and Brent, for the appellants.
   The judgment of the court was pronounced- by

Slidell, J.

This suit was before us at the last term, and was remanded for' further proceedings. See 1 Ann. Rep. 237.

It is not now pretended that the donation inter vivos made to Jesse Andrus/ by his father, exceeds the disposable portion; but it is said that the donation was, upon its face, and in express terms, a remunerative donation, and that the value of the services rendered did not equal the amount of the donation. This-objection-cannot be sustained, As the donation did not exceed-the disposable portion, the value of the son’s services was a matter within the discretion of the donor, and the estimate which he has thought proper to put upon them cannot be questioned by the heirs. The donation, though styled-remunerative, maybe' treated as an ordinary donation-; the announcement of the donor’s motive does not affect it. The value of the services would only have' been material, if it had been found that the donor had exceeded the disposable portion. The do. nation might then have bean reduced. See Succession of Fox, 2 Rob. 292. Civil Code, 1500.

In our former decree we reserved to Susan Andrus, the right of establishing, by proper evidence, her claim-, if any she had, against the succession for services rendored. No allowance has been made to her by the court below, and of this she now complains. We are unable'to give her relief. She offered no testimony at the second trial, as to the nature and value of the alleged services. Some testimony had been offered at a- previous trial, and a consent has been filed in this court, signed by a portion'of the litigants, that this testimony may be considered. But as all the parties in interest have not joined in the consent, wo do not consider ourselves at liberty to notice it. We may add that, even if the testimony were properly before us, it is probable we should consider it too loose and unsatisfactory to form the basis of an allowance.

Judgment affirmed.


text:
    Lataste, Administrator, v. Beraud.
    The o'ffcót of tiro registry of an act conferring a privilege ceases by the omission to ro-inscribe it within tin years from the date of the first inscription. C. C. 3333.
    Appeal from the District Court of St. Landry, Overton, J.

      Dataste, pro se. Lewis, Swayze and Taylor, for Dupré. Hallam,- for the appellant;
   The judgment of the court was pronounced by

Rost, J.

The' defendant, in right of his wife Féliciane Déjean, has appealed from a judgment distributing the proceeds of immovable property among certain mortgage creditors.

The facts material to this part of the ease are as follows: The mother of Féliciane Déjean,- formerly owned the property sold, and the latter had. during her minority, a legal mortgage upon it to secure her rights. After she became of age she released the mortgage, and the property was shortly after mortgaged to the Union Bank. In 1833, the mother of Féliciane sold the property to' her five sons, and they assumed, as part of the price', to pay the claim of the said Féliciane, which had not been satisfied when the legal mortgage was released by her, In 1836, Félix Déjean, one of the purchasers, sold his share to his brothers, who again assumed to pay said claim as a part of the price. In 1839, Lastie Dupré took a conventional mortgage on the same property from three of the purchasers. The Union Bank has caused the property to be sold, and the defendant has become the purchaser, for a sum larger than the claim of that institution.

The right of priority of the bank, and of the State for the taxes due at the time of the sale, is not contested; but the defendant maintains that the claim of his wife is entitled to priority over that of Lastie Dupré. We think otherwise. The release of the mortgage, whatever may have been the motive which induced Féliciane Déjean to give it, precludes her from claiming now tinder that mortgage, adversely to other mortgage creditors; and if it be conceded that, in 1833, she acquired a privilege on the property by virtue of the assumption of her brothers to pay her a part of the price, and that, on the 20th of January, 1836, the sale from Félix Déjean to his brothers created another privilege in her favor, the property was sold by the sheriff on the 7th of March, 1846, and those two privileges had then ceased to operate against third persons, for want of re-inscription within ten years from the date of the first registry. C. C. 3333. Shepherd v. Orleans Cotton Press, ante p. 100.

The claim of Féliciane Déjean against her brother Edmond Déjean, must be settled in due course of administration of his succession.

Judgment affirmed.


text:
    Guilbeau v. His Creditors.
    Where the transcript was not filed at the time when the appeal was made returnable, and no application was made to extend the time, the appeal must be dismissed.
    Appeal from the District Court of St. Martin, Voorhies, J.

      Magill, for the appellants. Brent, contra.
   The judgment of the court was pronounced by

Slidell, J.

An appeal was allowed in this case returnable at New Orleans, ontliesecond monday of February last. The transcript was neverfiled there; no application was made for further time; and, after a delay of several months, the transcript was first filed at Opelousas; at the present term. The motion to dismiss must prevail. Appeal dismissed.


text:
    Broussard v. Broussard et al.
    An appellee cannot require an appeal to be dismissed on the ground that he has not been cited. It is the duty of the clerk to issue; and of tbe'slieriff to serve, the citation; and- their neglect of duty cannot deprive a party of the right to be heard on appeal. In such a case farther time will be allowed to cite the’ appellee; Stat. 20 March, 1839, s’. 19.
    Appeal from- the. District Court of Lafayette, Boyce, J.

      Brent, Orno and Porter, for the plaintiff. Magill, for the appellants.
   The judgment of the court was pronounced by

King, J.

The' plaintiff has moved to dismiss this appeal, on the grounds, that she has not been cited to answer the appeal, and that the defendants have acquiesced in, and voluntarily executed, the judgment appealed from.

The first ground taken is not sufficient to authorise the dismissal of the appeal. It is the duty of the clerk to issue, and of the sheriff to serve, the citation, and make his return. No failure of these officers to perform these duties can deprive parties of their right to be heard on appeal; but authorises the granting of further time for citing the appellee. Acts of 1839, p. 170, § 19.

In support of the second ground, the receipt of the sheriff to the appellee for the slaves which form the subject of the judgment appealed from, and a certificate of the sheriff that they were delivered in compliance with the instructions of one of the defendants, have been produced. The defendants take issue on this point, which is a matter that has arisen since the rendition of the judgment appealed from, and can only be inquired into by the court of the first instance. For the purpose of making that inquiry, it becomes necessary to remand the cause. It is therefore ordered that this cause be remanded to the District Court, with instructions to the judge to enquire whether either or both of the parties defendant have acquiesced in the judgment rendered therein, by voluntarily executing it.


text:
    Herbert v. Benson.
    A‘ny iudividhttl member of a town corporation may sue for the abatement, as a nuisance, of a warehouse erected by an individual, for his private emolument, on the bank of a navigable stream within the corporate limits. Per Curiam: Public places within the limits of a corporation cannot be appropriated to’ private use; and individual corporators, as well as the officers of the Corporation, have a right to prevent such appropriation, and to sue for the demolition and removal of the buildings. Art. 859 of the Civil Code does not authorise . the erection of buildings for private emolument.
    Municipal corporations are not established for the exclusive advantage of the corporators, hut for the public at large; and an agreement by which a person is permitted to erect a warehouse on a public-place, authorizing him to exact from other inhabitants of the parish any rate of storage’providfed none was claimed from'the corporators, is notone intended for the public utility1.
    Appeal from the District Court of St. Martin, Overton, J.

      Brent, for the appellant,
    cited 3'Mart. 296, 496, 303. 11 lb. 620. 2 lb. N. S. 317. Greiner’s Dig. Laws of La. art. 2936 ; act of 1808. 5 Mart. N. S. 410. 3 Ib. N. S. 140. 5 La. 145, 132, 174. 1 La. 153. 13 lb. 328, 331. 18 lb. 286. 10 Rob. 357,- Act of 1809, ch. 13, s. 2.

      Simon, on the same side.
    The judgment below should be reversed. The warehouse erected by defendant, was not constructed for any purpose of public utility, in the meaning of art. 859 of the Civil Code. The use of the banks of navigable streams is public. G. C. 446.

      Olivier, for the defendant,
    urged that the erection of the warehouse was legal, under the authority conferred on town corporations by art. 859 of the Civil Code; which limits the effect of art. 446.
   The judgment of the court was pronounced by

Rost, J.

The object of the suit is the abatement of a nuisance. The defendant applied to the mayor and city council of St. Martinsville, for leave to erect a warehouse on-the bank of the bayou Teche, whiehis a navigable stream, offering to store the freight of the planters free from charge, provided they gave him the storage of their crops. This application appears to have been referred by the corporation to the District Court, which determined that the land on which the petitioner proposed to erect the warehouse was a public place, which the corporation had no power to-dedicate to private use. The application was then rejected; but subsequently an ordinance was passed authorising the defendant to erect a warehouse at his peril and risk, without any warranty whatever from the corporation, and on the express condition that he should store, free from charge, the goods of the corporators — -and that he should pay an annual rent of fifty dollars for the land. It was further stipulated that there-, after the defendant should at all times be bound to remove the warehouse at his own expense, upon three months’ previous notice from the corporation, and that, in case of any complaint being, made, he should be prepared at all times to remove it.

At the end of the first year the defendant having refused to pay the rent stipulated, the corporation repealed tlie ordinance authorising the erection of the warehouse, and caused notice to be given to the defendant to remove the said warehouse within three months, and that, if he failed to do so, it would be demolished and removed at his expense. The warehouse was erected on a portion of the quay in front of a house and lot owned by the plaintiff', who has instituted this action to have it demolished and removed. There was judgment in favor of the defendant, and the plaintiff appealed.

It is conceded by the defendant, in his application to the corporation, that the place upon which the warehouse was proposed to be, and was subsequently, built, was a public place. It has been so often and so uniformly held by the former Supreme Court, that public places within - the limits of a corporation cannot be appropriated to private use, and that individual corporators, as-well as the officers of the corporation, have the right to prevent such appropriation, and to sue for the demolition and removal of buildings erected on them by individuals, that the question can no longer be considered an-open one. Article 859 of the Louisiana Code, which provides that corporations of cities, towns, and other places, may construct on the public places, in the beds of rivers, and on their banks, all buildings and other works which may be necessary for public utility, for the mooring of vessels, and the discharge of their cargoes, does not authorise the erection of buildings for private emolument. Municipal corporations are not established for the exclusive advantage of the corporators, but of the.public at large, and an agreement which enabled the defendant to exact from the other inhabitants of the parish any rate of storage he might see fit to ask, provided no storage was claimed from the corporators, was not intended for public utility.

We are unable to perceive on what grounds the defendant rests his preten ■ sions. The conditional ordinance .authorising him to erect a warehouse has been repealed. He has been notified to remove it, and the .corporation have the power at any time to cause it to be,removed at his expense.

The plaintiff is entitled to a judgment. It is therefore ordered that the judgment in this case be reversed, and that there be judgment in favor of the plaintiff; that the warehouse mentioned ip'his petition be demolished, and the materials removed at the defendant’s expense; the said defendant paying costs in both courts.


author: Kins, J.

text:
    Bienvenu v. Derbes et al.
    After a separation of property, the dotal effects of the wife cease to be inalienable.
    Appeal from the District Court of St. Martin, Overton, J.

      Magill, for the appellant. Heard, for the defendants.
    Dotal property may be alienated after separation of property. C. C. 2410, 2411, 2343, 3490. 8 Rob. 457.
   The judgment of the court was pronounced by

Kins, J.

The plaintiff, who is a married woman, separated in property from her husband, has enjoined the execution of a writ oifi.fa. directed against her, alleging: first, that the judgment under which it issued was for a debt due by her husband ; and, secondly, that the sheriff has levied Upon her dotal property, which by law is inalienable during the marriage. The injunction was dissolved in the court below, and the plaintiff has appealed.

The judgment under which the writ enjoined was issued, was rendered on the confession of the plaintiff, in 1841. It was'for the amount of two promissory notes, executed by her several years after a separation of property'between her and her husband had been decreed, and with the authorization of the latter. Nothing in the record of that suit shows that the-debt was due 'by the husband, but, on the contrary, the petition charges that it was due by the wife ; she acknowledged her indebtedness, and, with the authority of her husband, consented that a judgment should be rendered against her. No measures were taken to procure the revision or reversal of that judgment, although more than three years elapsed between its rendition and the issuing of the writ enjoined ; nor was any evidence adduced on the trial of the present suit in support of the plaintiff’s allegation that the debt was due by her husband. We do not therefore deem it necessary to enquire whether, after having suffered the time to elapse within which she could have sought a revision or reversal of the judgment, she may still resist that judgment on grounds which she could have opposed to the original action.

The second question presented has been settled by the Supreme Court in the case of Guerin v. Rivarde, 8 Rob. 457. It was then determined that, after a separation of property, the dotal affects of the wife cease to be inalienable, Judgment affirmed.

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