text:
    J. B. Jeaunin v. L. Millaudon and A. Lesseps.
    The notice and advertiiements of the sale of property for the payment of the expenses of making a levee, under the summary proceedings of 1887, must contain the owners names, when it can he ascertained.
    from the Fourth District Court of New Orleans, Buchanan, J.

      JSoselius, for plaintiff. Benjamin, Mieou & Finney, for defendants and appellants.
   Ogden, J.

This case was before brought up on appeal, to determine a question raised as to the right of the defendants to cite as warrantors the Police Jury of Plaquemines, and was remanded, with directions to the court helow to compel the Police Jury to answer. The facts from which the controversy arises, are stated in the decision reported in 5th Rob. R., p. 76.

The only question which the case presents is, whether the Police Jury, at whose instance, under summary proceedings provided by an Act of the Legislature of 1837, the plaintiff’s property was sold for payment of the expenses of making a levee, were dispensed with the necessity of causing the name of the plaintiff to be inserted in the monition, which, by the Act, it is required should be done, when the name of the owner is known. The defendants were purchasers at the sale made in pursuance of proceedings under that law, and the plaintiff sues to set aside the sale on the ground that the formalities pointed out in the statute were not complied with.

One of the essential formalities which it is charged was omitted is, that the name of the plaintiff was not inserted in any of the public notices and advertisements which were required to precede the sale, although the plaintiff alleges it was well known to the parish Judge and the president of the Police Jury, that he was the owner of the property, as he had recorded his title and paid the legal fees for the registry. The Judge of the court below was of opinion that the evidence sufficiently established, that previous to the institution of the proceedings by the Police Jury, the plaintiff had deposited his title deeds for registry with the parish Judge, and that by doing so, knowledge of his title was brought home to the parochial authorities. After a careful examination of the evidence, we cannot say that he erred in his conclusions as to the facts, and as the statute requires the name of the owner to be mentioned if known, the sale was defective on account of the omission to ascertain from the records, the name of the plaintiff, and mention it in the public notices and advertisements which were made. As these advertisements were made by this special law to stand in lieu of a citation to the party, this omission is as fatal to defendants’ title as the omission of citation would be in ordinary cases.

The judgment of the court below is correct, so far as it annuls the sale of that part of the tract of land which was purchased by Jrastour in lots, and sold to the plaintiff; but we think the right of the plaintiff to annul the adjudication made to the defendants, as regards the lots owned by him, does not necessarily involve the rescission of the whole sale.

The property which was adjudicated to the defendants was formerly known as the St. Sophia plantation, and had been laid out and sold in town lots, it being intended to convert the plantation into a town to be called Hancockville. The plaintiff is entitled to recover his lots, and may have a right to cause the streets to be opened, but that right can be exercised as well against the defendants as it could be against any other persons claiming to be the owner of the rest of the town, either in block or in lots, and that question does not seem to be involved in this suit. We therefore think the court below erred in decreeing that the entire adjudication to the defendant should be annulled.

The Police Jury, it appears from the record, have not filed any answer in the suit, and the defendants asks to have the judgment rendered in their own favor or their call in warranty reversed, and as there was no issue joined between the defendant and their warrantors, the judgment against the latter was irregular and should be set aside, ■

It is therefore ordered, adjudged and decreed, that the judgment of the court below be avoided and reversed, and proceeding to render such judgment as in our opinion ought to have been rendered in the court below. It is ordered and adjudged, that the plaintiff recover from the defendants the lots of ground claimed in his petition, with costs in the lower court; those of this appeal, to be paid by the plaintiff and appellee.


source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    H. Kellogg v. J. P. McMillan and Wife.
    The defendant, in a petitory action, is estopped from setting up the irregularities in a Sheriffs sale, after a formal recognition of tlie title of the plaintiff’s vendor under that sale.
    APPEAL from the Third District Oourt of the Parish of Jefferson, Gla/rke, J.

      7. F. & J. B. Ootton, for plaintiff.

      Purvis & Dugu'e, for defendant and appellant!
    It is plain that this judgment is impossible of execution, for uncertainty, and must therefore be reversed.
    A judgment, condemning the defendant to pay rent from the inception of the suit until he surrender possession of the premises, is ei'roneous, as there is no way by which the Sheriff can ascertain whether defendant held possession beyond the date of the judgment, or for how long. 2 L. 405. T L. 409.

        Judgment of the District Cov/rt. — It is ordered and adjudged, that the plaintiff be recognized and decreed to be the owner of the lot and the property described in his petition, and that he be put into possession by the Sheriff as prayed, and recover from the defendants i/n solido rent for the use of the premises, at the rate of twenty-five dollars per month, from June 9,1852, until the plaintiff is put into possession, with costs of this suit.

   Buchanan, J.

This is a petitory action. The plaintiff proves title from Elisha, Groeker, who purchased at Sheriff’s sale, in execution of a judgment against Mrs. McMillan, one of the defendants. The latter has argued, by counsel, before this court, that the proceedings which resulted in the sale by the Sheriff, were irregular and void; but it is unnecessary to go into an examination of this ground of defence, inasmuch as the record shows a formal recognition of Groeker's title, under the said Sheriff’s sale, made by both the defendants in a notarial act of sale from Elisha Groeker to Mrs. MeMillan ; in which conveyance, the Sheriff’s sale in question is recited as the basis of Crocker's title. This recognition was mad e several months before the presen suit was brought.

We think that justice has been done by the judgment of the District Court, which is therefore affirmed, with costs.


author: Ogden, J.

text:
    D. Adams v. D. N. Henning and J. G. Fanning, Sheriff.
    The delivery which is essential to vest a complete title in the transferee, as regards third persons, of a debt not evidenced by a negotiable instrument, is effected by giving notice to the debtor, of the transfex* having taken place. O. C. 2613. The knowledge, which it is shown the judgment debtor’s attorney of record had of the transfer, does not answer the requisite of the law in this respect.
    APPEAL from the Sixth District Oourt of New Orleans, Ootton, J.

      Dorsey, for plaintiff. D. W. Eennen, for defendant and appellant.
   Ogden, J.

The plaintiff, as transferree of a judgment obtained in the Third Judicial District Court of the parish of Jefferson, by W. B. Eayden against one James Fisk, has enjoined the defendant from proceeding any further with an execution issued under a judgment which the defendant obtained against Hayden before the same court, and by virtue of which the Sheriff of the parish of Jefferson, was proceeding to sell the same judgment as the property of Hayden, to satisfy the defendant’s execution.

The defendant, Hennen, obtained his judgment against Hayden, in 1850, and the transfer by Hayden to the plaintiff, of the judgment against Fisk;, was made on the 15th of April, 1853, and no notice of the transfer has ever been given to the judgment debtor.

The grounds for the injunction, as set forth in the petition, are: 1st. A denial of the right of the Sheriff to seize and sell the judgment under defendant’s execution. 2d. A denial of the right of the Sheriff of the parish of Jefferson to seize and sell any kind of property in the parish of Orleans; and a special allegation that the judgment seized, was situated in the parish of Orleans.

The first question is, whether the plaintiff was so possessed of the incorporeal right assigned to him by Hayden, as to permit its seizure by the defendant under his execution. The delivery which is essential to vest a complete title as regards third persons in the transferree of a debt not evidenced by a negotiable instrument, is effected by giving notice to the debtor of the transfer having taken place. C. C. Art. 2613. The knowledge which it is shown the judgment debtor’s attorney of record had of the transfer, does not answer the requisite of the law in this respect, and there is no doubt the judgment transferred to the plaintiff, remained liable to seizure by the creditors of Hayden.

But it is contended on the part of the plaintiff, that the transfer as between Hayden and the plaintiff was complete, and that the plaintiff has therefore the same right that Hayden would have to object to irregularities in the proceedings, by which the Sheriff was attempting to effect a sale of the judgment. It was held in the case of Yeatman v. Estill, 3d Ann. 222, that a party who had intervened in an attachment suit, claiming the debt attached under the previous assignment, and had failed to establish an assignment complete as to third persons, according to Art. 2613, could not object to the mode in which the writ of attachment had been executed. The same principle must govern in the present case. The plaintiff having no such title to the judgment seized, as can be opposed to third persons, he cannot be permitted to interfere with others in the exercise of their rights as creditors of the transferor. The result of the sale by the Sheriff, if irregular, may be that the purchaser will acquire no right to the judgment, and the plaintiff may perfect his title by giving notice of his transfer to the judgment debtor, and acquire thereby a better right to be paid by him, hut as the facts now exist, he is without any right to obstruct the defendant in the prosecution of his judgment. It is therefore unnecessary to express any opinion as to the right of the Sheriff of the parish of Jefferson to execute process of the Third Judicial District Court, within the limits of the parish of Orleans, after the city of Lafayette, where that court was located, had become incorporated within the limits of the parish of Orleans, by the adoption of the present Constitution.

¥e think the injunction ought to have been dissolved.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be reversed and annulled; that the injunction be dissolved, and the suit dismissed ; and that plaintiff pay the costs in both courts.


author: Campbell, J.

text:
    Mary Ann Wattles v. J. E. B. Conner et al.
    Proof of the signature to a private writing cannot be dispensed with by establishing the signature and death of the subscribing witness, the absence of the party who made the act for a great length of time from the parish, and that his signature could not be found in the records of the parish.
    APPEAL from the District Court of the Parish of Concordia, Farrar, J.

      Stacy & Sparrow, for plaintiff. H. B. Shaw, for defendant and appellant.
   Campbell, J.

The evidence in this case satisfactorily establishes, that For-syth and his wife removed permanently from Mississippi, and came to live in this State in the fall of 1828 ; and the only question in the case is, whether the land in controversy was acquired hy Forsyth, before the removal took place. The sale from Bradshaw to Forsyth and McFaden, upon which the plaintiff relies in support of her rights, is hy authentic act, and bears date subsequent to the removal; but the warrantors cited by the defendant, pleaded that the land had been purchased by private act, the 28th March, 1828, several months before Forsyth and his wife came hero to live; and on the trial, he offered an act bearing that date, purporting to he signed by Bradshaw and witnessed by H. Tooley. The signature and death of the witness, were admitted, and upon proof of the absence of Bradshaw from the parish since 1827, and of the fact that his signature could not be found in the records of the parish, the document was received in evidence, notwithstanding the objection of the plaintiff, who excepted to the opinion of the court.

We think the Judge erred, and that the evidence should not have been received. The rule, as settled in the cases of Dismukes v. Musgroves, 7 N. S. 60; Tagiasco et al. v. Molinari’s Heirs, 9 L. R. 521; and Harris v. Pattin, 2 Ann. 217, would seem to be where the signature to a private writing is not an ordinary mark, it must in all cases be proved; and if it he true that the rule does not apply in cases in which proof of the signature cannot be had, there is not sufficient evidence in the record to establish the impossibility in this case.

Of the four witnesses examined, Fletcher alone was asked if he knew Bradshaw’s signature, and his answer was, that he could not say that the signature shown him was genuine.

Bum says, that Bradshaw moved to Claiborne county, Mississippi, previous to 1827, or about that time; and that he heard of his death somewhere about 1882. He saj's, Bradshaw moved near the town of Rodney, about twenty-one miles distant from the court house of the parish, and that he has no doubt he is dead. The proof of Bradshaw’s death, might have been made much more certain by inquiry at the neighboring town where he lived for many years, and where he is said to have died; and it is reasonable to suppose that persons knowing his signature, might also have been found there.

As the case is presented, we think this document should have been excluded, and without it, the case is clearly with the plaintiff. Inasmuch, however, as the record contains many independent facts warranting the belief that the instrument is genuine and was executed at the time of its date, (such, for example, as that the instrument was written entirely by Forsyth, under whom plaintiff claims; that Forsyth exercised acts of ownership over the land in 1828 ; that the transaction evidenced by the sous seing privé act were known; that one of the notes of Forsyth & MaFadden, described in the act, was produced, &c.) we are unwilling, because of its exclusion on a technical rule, to affirm the judgment; but think the ends of justice will be best answered, by remanding the case, to enable the defendants either to prove its execution by witnesses residing near Rodney, or else, to show the impossibility of finding any one acquainted with the signature.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be reversed, and the case remanded for a new trial; the costs of the appeal to be paid by the plaintiff and appellee.


author: Smdell, C. J.

text:
    W. H. Pattison v. His Creditors—On an opposition to a tableau of distribution by Gray, Macmurdo & Co.
    Novation is not presumed; the intention to novate a debt must be clearly deducible from the terms of the agreement, or acts of the parties. In ascertaining the intention, all the attending circumstances must be considered.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J,

      Elmore & King, for Gran/, Maomurdo & Go.;

    The law is well settled, that novation must be express or clearly established. It is never presumed, and the intention to make it, must clearly result from the terms of the agreement. C. C. 2186. Grain v. Robert, 8 N. S. 145. Mande v. Bowers, 4N. S. 95. Nolte v. His Creditors, 6 N. S. 176. Kempe v. Hunt, 4 L. R. 488. See also 9 R. R. 276. 11 R. R. 43. 2 Ann. 188. 4 Ann. 509. 5 Ann. 505.
    The following authorities, we think, establish the validity of the mortgage claim:
    “ Where a note was given in part renewal of one secured by mortgage, and was assigned to another, parol evidence is admissible of this fact, and consequently of the right of mortgage resulting from the nature of the claim, the note having been given in payment for the property mortgaged.” Moore v, Louallier, 2 L. R. 572.
    The renewal of a note secured by mortgage, does not extinguish the mortgage, when it provides for such renewal, and where, although the renewal be made in a new name, the debt is the same.” Palfrey v. His Creditors, 8 L. R, 279.
    “ Where a mortgage is given to secure endorsements to a certain specified amount, which are soon afterwards made, and new notes are without objection taken in renewal of the original ones, with the same endorsement, the endorser cab claim the benefit of the mortgage to secure the payment of the new .notes over ordinary creditors.” Ory v. His Creditors, 8 L. R. 531.
    “A debtor, by giving his note for money which he owes, on open account, or any other contract, does not novate the original debt.” Glasgow v. Stevenson, 6 N, S. 568. Walton v, Bemiss, 16 L. R. 140. Miller v. Municipality No. One, 5 R. R. 156.
    “ When, for the convenience of the vendors, notes originally given by ven-dees are cancelled, and others executed in their place, each for smaller sums, but in the aggregate for the same amount, in the same form, and payable at the same periods, nothing being changed as to the position or obligations of the purchasers, there is no novation. CitizenP Bank v. Tucker.

      Chilton, for M, Cuddy, appellant:
    It has been decided by the Supreme Court, that a novation will result from any act of tlie creditor, tantamount to an express agreement, 2 An. 180, 4 An. 281. And that court has further decided, that receiving part payment of a note, and taking a new note, payable at a future time, is such an act as the law will consider tantamount to an express stipulation to novate and discharge the original debts. 2 An. 765. This case is directly in point, and the decision of the court in conformity to the rule established in 1 L. R. 627 ; and in 10 R. R. 412. The same principle is impliedly recognized in the cases of 5 M. (N. S.) 167. 16 L. 434, and 6 An. 508; in which the court decided there was no no-vation because the original draft was not surrendered. It is also implied in Article 2183, which declares that novation shall take place when no “ stipulation of the original obligation remains.” If the surrender of the “ original obligation” does .not come within the meaning of this article, then nothing can, except the payment in cash, which would be absolute payment, according to Article 2127, and not a payment by novation, according to Article 2183.
    It is singular that the learned counsel for appellee should have overlooked, not only the fact, that the original note was surrendered to Pattison, but all the decisions of the Supreme Court showing the effect of such surrender.
    The cases in which the new contracts were not considered as amounting to novation, all show that there was no surrender of the original note, as in case of 5 An. 508 , or where the renewal was in conformity to a clause of the original act of mortgage stipulatingagainst novation ; as in cases, 6 La. 529, and 8 La. 278, or where the draft or note substituted was by delegation, as regulated by Article of C. 0. 2188 ; and as decided in 4 An. 508; or where the note or draft was given in liquidation of an open account, as in 6 An. 669 ; and the cases cited by counsel for appellees, in 16 L. R. 140, and in 6 (N. S.) M. R. 567 (where the suit was on a lost note).
    In the case, 5 Rob. 156, the facts where wholly different, the question there being whether bills against third persons, handed by the debtor to the creditor for collection, and when collected to he applied to payment of his debts, was a payment or discharge.
    The case of Citizons' Bank v. Tucker, in 6 Rob. 443, turned on the fact that Robinson had ratified the act of Botts, his agent, in giving the second mortgage (p. 448). That the second mortgage was but a continuation of the first, the new notes were for the same amount, payable at the same time, and in nothing, changed the position of the parties, except by a subdivision of their notes, for the convenience, of the vendors.
    In the case of Ory v. Mis Creditors, 6 L. R. 529, there was no payment made on the original notes, and the second notes were for the same amount, between the same parties; and as in case of Citizens’ Bank v, Tucker, did not any wise change the position of the parties, and furthermore, were in conformity to a clause in the original mortgage, embracing endorsements and acceptances made and to be made. On this last fact, Judge Martin rested his decision. The decision does not affect the case at bar, and if it did, would be overruled by the later decision, in 2 An. 765, before cited. The case in 8 L. R. 278, was also one in which the original mortgage extended to renewal notes.
    In 5 An. 508, the draft was not surrendered.
    In 5 An. 509, there was only a case of delegation, and the original notes were not surrendered.
    In 2 An. 188, the question was whether a lessor of premises, by failing to enforce her privilege, and having changed the conditions of the lease, without the security’s consent, was an extinguishment of her privileges. It resembles in no feature, the case at the bar.
    In 2 L. R. 572, the question of novation was not raised, and the original note was not surrendered to the creditor, and the decision of the court turned wholly on the admissibility of evidence.
   Smdell, C. J.

(Vooehies, J., absent; Ogben, J., declined sitting.)

This case is a contest between two mortgage creditors, Gray, Maemurdo & Co, and Cuddy. The judgment of the former was first recorded, and the dispute is about an amount of $500, which Cuddy contends has been extinguished by novation. The court below decided against him, and he has appealed.

The circumstances were as follows: Gray, Maemurdo & Co. held a recorded judgment against Pattison and his firm, Lowe, Pattison & Co., desiring indulgence, they made an agreement embodied in the following receipt:

Received, New Orleans, July 17th, 1852, from Messrs. Lowe, Pattison & Go. the following described paper, to wit:

Wm. S. Pattison’s mortgage note, at five month’s date from 13th inst. pa-raphed “ Be Verretur" by John Glaiborne, N. P. for - - $3500 00

William H. Pattison’s note to order of, and endorsed by Lowe, Pattison & Go., at three month’s date from 15th inst-., for - 1000 00

Lowe, Pattison & Go’s draft, one day sight, on P. Pattison & Go., Philadelphia, for.1,279 92

which when paid, and not otherwise, will be credited on the judgment obtained by us against said Lowe & Pattison and Alex. Pattison, in the Supreme Court of Louisiana. Gray, Maemurdo & Go. in liquidation.

It is understood that execution shall not be issued, if these obligations above mentioned are punctually paid at maturity.

a, m. & Co.

When the note for $1000 matured, Pattison was unable to pay in full, and Copland, his agent paid $500 on account of the note, and got Gray, Maemur-do & Go. to extend the payment of the balance some ten days. The note of $1000 was delivered to Gray, Maemurdo & Go., and a memorandum was made on it, “this note settled through B. Copland." A new note at ten days, signed by Pattison and endorsed in the name of his firm, for $503, was at the same time given to Gray, Maemurdo & Go., which was protested at maturity and remains unpaid. Copland, whose testimony was taken, states these facts, and adds, that there was no intention of the parties when the $500 note was given in renewal, that Gray, Maemurdo & Go. should give up their mortgage; that Mr. Bell, acting for Gray. Maemurdo & Go. said nothing at all about giving up the mortgage, and that he did not believe Bell had such an intention.

Upon this evidence, we think the district Judge was clearly right in deciding against Guddy.

In questions of this sort, the doctrine is well settled, that novation is not presumed; the intention to make it must be clearly deducible from the terms of the agreement, or acts of the parties. In ascertaining the intention, all the attending circumstances must be considered.

Here the judgment was the main preexisting obligation, secured by a judicial mortgage of the debtor’s property. The notes and bills were mere collaterals, which, “ when paid and not otherwise,” were to be credited on the judgment. It would be a strained and unbusinesslike view of the agreement, and of the conduct of the parties to say, that Pattison paid the $1000 note, when he paid only $500 upon it, and got the ten day’s extension by giving the new note for $503. Undoubtedly, the note for $1000 was paid in this sense, that as an obligation to pay money it was extinct. But it was not paid in the sense contemplated in the written agreement of July 17th. The payment there meant was an actual payment, not a mere renewal in whole or in part by a now note, made in a spirit of further indulgence to the debtor.

Much stress is laid by the appellant’s counsel on the fact, that the note for $1000 was given up when the partial cash payment was made, and the new note taken ; and it is said, where a surrender of the original obligation is made and a new one taken, a novation may be implied. But here the judgment was the original obligation, and it was never surrendered. Concede the principle in its fullest extent; and it amounts to no more than this, that the note of $1000 was novated. The question is, was the judgment novated? It is impossible to deduce any such intention from the language or the acts of the parties.

See Civil Code, 2181, 2183, 2186. Short v. City of New Orleans, 4 An. 281. Pothier Oblig., No. 559.

Judgment affirmed; appellant to pay costs of appeal.


author: Slidell, C. J. (Yoorhies, J., absent.)

text:
    Thorn & McGrath v. J. J. Tyson.
    Where a creditor has the thing on which he has a privilege in his own possession, the action to enforce the privilege must foe brought before the Judge having jurisdiction over the place where the debtor has his domicil or residence. In such a case the creditor can take the thing pledged to the domicil of the debtor and there enforce the privilege. The question of jurisdiction is to be governed by Articles 162,163,164,165 of the Code of Practice, and does not fall within the exception established by the case of Ee/n/ning v. Steamei' Helena^ 5 Ann. 349.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Ooold & Stansbury, for the plaintiff and appellant, cited Kenning v. Steamer Helena, 5 Ann. 349. OMlton, for defendant.
   Slidell, C. J.

(Yoorhies, J., absent.)

The petition which was filed in May, 1853, alleges that plaintiff is holder of two notes made by the defendant, and payable in New Orleans, one first May, 1853, and the other first May, 1854, the first of which has been protested; that the defendant in order to secure the payment of these notes executed in Mississippi an instrument, styled in the petition a private act of pledge, by which he pledged to plaintiff as collateral security for said payment, a note made by Marry KiTborn, in Louisiana, due in November, 1855, for $3257 14.

The suit is brought in the Third District Court of New Orleans; the defendant is stated to be a resident of the parish of Tensas; and the prayer is that he be cited to show cause why a judgment should not be rendered, ordering a Sheriff’s sale of the KiTborn note for a sufficient amount in cash to pay the amount of the matured note, and on a credit for the amount of the note un-matured.

In the writing annexed to the petition it is expressed that Tyson assigns to plaintiff the note of Mrs. KiTborn, payable in November, 1855, bearing mortgage on lands and slaves in the parish of Tensas, “ to be held as collateral security until each of the following notes of mine is paid in full: — Note for $908 93 and interest, payable 1st May, 1852 ; $908 94 payable 1st May, 1853 j $908 94 payable 1st May, 1854.”

The defendant excepted to the suit on the ground that he resided in the parish of Concordia, and was not liable to be sued elsewhere, and that there was nothing alleged in the petition which entitled plaintiffs to bring their suit in New Orleans. He prayed that the exceptions be sustained and for general relief. The court rendered a judgment as in case of nonsuit, and the plaintiffs have appealed.

Our impression is, it is a sufficient reason for not disturbing the judgment, that according to the intention of the parties, as deducible from the language of the agreement, it was not contemplated that the plaintiffs should have the right of causing the collateral note to be sold, as prayed for, on the maturity of the first note. We think this construction is especially proper when it is considered the contract was made in Mississippi.

My brethren, however, prefer, in consequence of this construction of the defendants’ plea, to put the affirmance on the ground that the defendant had the right to he sued at his domicil in Concordia ; that the case does not fall within the exceptions enumerated in the Code of Practice to the general rule, that "in civil matters one must be sued before the Judge having jurisdiction over the place where he has his domicil or residence.” See C. P. 162, 163, 164, 165; and that this case does not fall within the exception recognized in Henning v. Steamer Helena, because here the thing on which the creditor has a privilege is in his own possession, and he can take it with him to the parish of Concordia, there to have the privilege enforced in a suit against the defendant.

It is therefore decreed that the judgment of the District Court be affirmed with costs.


author: Smdeld, 0. J.

text:
    Succession of David White—Moore, Administrator, v. Christopherson.
    The curator of a vacant succession is prohibited from purchasing by himself or by means of another any property entrusted to his administration,
    A purchaser at a probate sale, can not be compelled to take property and pay the price, where he can show that the title to the property is not good.
    C. P. no, m.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.
    Collins, for plaintiff and appellant. Ho'isé & W. M. Randolph, for defendant.
   Smdeld, 0. J.

(V°okhies> J., absent.)

At a sale made at auction by order of court aud upon petition of the administrator, in the matter of the succession of David White, a lot of ground was knocked down to Christoplierson, at the price of $1630 cash. By the terms of the advertisement a deed of sale was to he executed before a Notary. The purchaser refusing to receive the property and comply with the tei’ms of sale, a rule to compel him was taken. It resulted in a dismissal of the rule, from which judgment the administrator has appealed.

The material facts are as follows: on the death of Felix Mohan, who once owned this property, David White qualified as curator of his succession. He obtained on order of sale, and at the probate sale Anderson became the ostensible purchaser. But in fact he bought for the curator David, While, and paid for it with White’s money. Some time afterwards, White died, his son qualified as administrator, and received in that capacity a conveyance of the lot from Anderson, in which he recites that it now belonged to him, but was placed in his name for the sake of convenience, and actually belonged to David White, who had paid the price. The title of the property being thus vested in White's succession, it was bid off at his succession sale to Christoplierson as already stated.

His objection to complete the sale, is that the purchase by White through Anderson, was. null and void. Under Article 1139 of the Civil Code, which declares that “every curator of vacant successions or of absent heirs, is prohibited from purchasing by himself or by moans of a third person, any property, movable or immovable, entrusted to his administration, under the pain of nullity (sous peine de nullité) and responsibility for all damages caused thereby.”

We concur with the District Judge in the conclusion that it is inequitable to compel Ohvistopherson to accept the property and pay the price under the circumstances stated. The title he would receive would be fraught with danger. There is nothing to show conclusively that the heirs or creditors of Mohan would be estopped from disputing White's acquisition through the person secretly interposed. It does not appear that the creditors of Mohan's succession when they took the dividend of the price paid by Anderson, knew the true circumstances of his purchase; and for aught that appears to the contrary, the heirs of Mohan, or his creditors if they have not been paid in full, could sue the succession of White for a rescission and damages. Nor are we prepared to say that Ghristopherson could resist such an action if he should pay his bid and take possession, after the notice he now has of the true circumstances of Anderson's purchase as explained in the deed to White's administrators ; information which it does appear he possessed when he made his bid.

The case of Abat v. Casteres, 3 N. S. 220, and others cited by the appellant, and Article 710 and 711 of the Code of Practice, do not meet this case. This was not a sale under execution, nor has the purchaser gone-into possession.

Judgment affirmed, cost of appeal to be paid by appellant.


text:
    Geo. A. Botts v. The City of New Orleans.
    The summary moc}e of proceeding against delinquent tax payers by advertisement in lieu of citation as provided by the Act of 1852, No. 11, gee. 85, applies only to the collection of taxes assessed subsequent to the Act.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      WhittaJcer, for plaintiff and appellant. Ldbatt, for defendant.
   Ogden, J.

(Voorhies, J., absent.)

This case presents the same question which was decided in the case of the City of New Orleans v. Cochran, Bullard & Co., 8 A. R. p. 368, in which it was held that the summary mode of proceeding against delinquent tax payers by advertisement in lieu of citation as provided by the Act of 1862, No. 71, Sec, 35, applied only to the collection of taxes assessed subsequent to the passage of the Act, The plaintiff without being cited, was condemned to pay a tax levied before the Act was passed and sues to annul the judgment, on the ground that neither petition nor citation was served on him.

The judgment for that reason must be annulled.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be reversed, that the judgment in favor of the defendants against the plaintiff, the execution of which is enjoined be rescinded and annulled, and the injunction rendered perpetual, the defendants to pay the costs in both courts.


author: Slidell, C. J.

text:
    E. Wooten, f. w. c., v. George Harrison, Tutor, et al.
    Where during twenty years the plaintiff remained silent as to a claim, although there were frequent dealings and accounts between her and the alleged debtor, during the interval, the demand will be considered stale and presumed to have been paid.
    Where the existence of a legal consideration is put at issue and doubt or suspicion cast on its reality, it must be sustained by proof.
    APPEAL from the District Court of the parish of West Feliciana, Sterling, J.

      Ratcliff, for plaintiff and appellant. U. B. Phillips and Brewer & Collins, for defendant.
   Slidell, C. J.

Mrs. Rebecca Harrison was the universal legatee of John, C. Morris. The.defendants are her children and heirs. The plaintiff’s claim is founded on the alleged indebtedness of John C. Morris, and is composed of various items.

Upon that portion of the claim which embraces the alleged indebtedness of Morris, as curator of the succession of Antonio and James Helasco, we think judgment was properly rendered in favor of the defendants.

Many years since, one James Helasco loft legacies to Hilen Wooten and her children. She claimed them from Turner, the curator of Helasco’s succession, and in 1828, a decree was made, recognizing the claim and ordering the curator to render an account. Morris soon after succeeded Turner in the curatorship ; settled with him, administered the estate, and filed an account in 1830, showing what he had received from Turner, and how he had appropriated it. In this account the amount coming to Hilen and her children, are put down as paid, and reference is made to two vouchers said to be annexed with the other vouchers for payments. Upon this account the following decree was made:

“ On reading and filing the petition, answer, account and vouchers in this case, and due notice having been given, and there appearing to be no good cause why the said account of the curator, Morris, should not be passed and homologated, and he be discharged, ordered that the account and vouchers of said curator, John C. Morris, be passed and homologated, and the said Morris is hereby discharged from any further administration of the succession of Antonio and James Helasco, and of John Rouse, and bonds given in these cases are hereby cancelled and discharged. September 20 th, 1830.

John B. Dawson, Parish Judge.”

It appears that the vouchers spoken of in the account and decree are not now extant among the papers of the late Probate Court, nor does the record exhibit any direct evidence of publication of notice to creditors, or personal notice to the plaintiff, of the application of the curator for the approving of his account and a discharge. On the other hand, the plaintiff was once a party to the mortuaria; it is proved that the papers of the court (as unfortunately has too often occurred in the country parishes,) were not kept with care and order, and portions of them had been destroyed by vermin; during twenty years the plaintiff has remained silent as to this claim, although there were frequent dealings and accounts between her and Morris during that long interval. Under such circumstances, the District Judge was fully justified in presuming that this stale demand had been paid.

Another claim of the plaintiff is upon a note signed by Morris under date of 9th January, 1846, for $2000, payable on demand to Ellen Wooten or hearer, with ten per cent, interest from date. The defendants, among other matters of defence, contended that this note, if genuine, was in fact a disguised donation made by Morris to the plaintiff, a free woman of color, who had once been his concubine; and that no valid consideration was given for it.

We have carefully considered the evidence with regard to this note, and the surrounding circumstances; and it has produced upon our minds an impression so unsatisfactory that we are not prepared to say the appellant has any right to a change of the judgment below in her favor. The evidence tends quite strongly to the conclusion that the relation of concubinage did once exist between the plaintiff and Morris. A deed made by him to her many years since, assists in some degree that hypothesis. It is a very singular circumstance, if the note was really for an indebtedness, that the plaintiff during the years 1848 and 1849, should have gone on making partial payments from time to time, upon a note made by herself in favor of Morris and now held by his heirs, and taken no action upon the note until after the death of Morris. Though the existence of any lawful consideration has been put at issue, and the showing above mentioned has been made by the defendant, no evidence of consideration has been given by the plaintiff. See Civil Code, 1468, 1523, 1525. 1 Ann. 239. 2 Ann. 518.

As there has been no prayer for an amendment of the judgment by the appellee, the enquiry whether the note signed by Morris should have been wholly or partially disregarded is not properly before us.

It is therefore decreed that the judgment of the District Court be affirmed and to be operative, also, against the said Sarah Ann Harrison and Martha Mary Harrison as heirs of Bebeeca Seholfleld, deceased, formerly a defendant in this cause, and who died since this appeal was taken, without prejudice however to to the right of said Sa/rah and Martha, to show, in any future proceeding against the plaintiffs, that they are not liable in whole or in part as heirs of said Bebeeca for her portion of the judgment of the' District Court in this cause.


text:
    C. Schneider v. Cochrane, Bullard & Co.
    Bills drawn from one State of the Union on another are foreign bills so far as to give credit to the protests by Notaries in other States, and such protests are admissible without further proof, in our courts. But notice to parties sought to beckarged as drawers or endorsers can not be proved by the certiacate of the Notary who protested the bills, it must be proved like all other facts.
    APPEAL from the Eirst District Court of New Orleans, Larue, J.

      Befour & Breaux, for plaintiff and appallant. Glrnice & Bayne, for defendant
   Ogden, J.

The certificate of the Notary who protested the bills on which the defendants are sued as endorsers, was the only evidence offered to prove notice of the dishonor of the bills. The evidence was objected to and we think ought to have been rejected. Notarial protests of foreign bills of exchange have always been received in evidence as making proof of themselves according to the custom of merchants, but the acts of foreign Notaries or of Notaries ^ other States of the Union, beyond that exception, are not admissible in evidence without proof of the signature and capacity of such Notary or other public officer. Waldron v. Turpin, 16 L. R. 552. Rosim v. Bonnabel, 6 Rob. 164.

Bills drawn from one State of the Union on another, are now regarded as foreign bills, so far as to give credit to the protests made by notaries in other States and render them admissible without further proof in our courts, but notice to parties sought to be charged as drawers or endorsers must be proved like all other facts, and the Statute of 1827, which makes the certificates of notice by Notai'ies in this State competent evidence of such notice, has no effect beyond such instruments executed within the State and by public officers, whose acts are thus clothed by law with the authority of authentic evidence.

There being no other proof of service of notice of protest, the plaintiff's case is not made out.

The judgment of the court below is therefore affirmed with costs.


text:
    E. Buisson v. S. D. Staats.—W. Miller, Intervenor.
    Where the amount of the claim is less than three hundred dollars, notwithstanding the amount of the property seized under garnishment process is more than that sum, the appeal will be dismissed*
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Michel & Gilmore, for plaintiff and appellant. Dunlap, for intervenor.
   Buchanan, J.

(Voouhies, J., absent.)

The suit was brought upon a note of $126, to which the defendant pleaded in compensation a balance upon a contract of $1600. Judgment having been rendered for plaintiff for the amount by" him claimed, and rejecting- the compensation. Plaintiff, under his fi.fa., issued garnishment process to the city treasurer, who acknowledged, in answer to interrogatories, having in hishands $676 balance duo by the city to defendant, “and for the whole of which the said Stoats has given an order in favor of W. Miller” Subsequently, W. Miller took a rule upon plaintiff to show cause why the garnishment and seizure should not be discharged, on the ground that he, the said Miller, was the bona fide owner and holder, by legal assignment, of the debt aforesaid previous to said garnishment. Plaintiff has appealed from a judgment making this rule absolute; and the appellee, Miller, moves to dismiss the appeal for want of jurisdiction, the amount in controversy being less than three hundred dollars.

The appellee claimed, it is true, by his third opposition, the ownership of a claim against the city treasurer for the sum of five hundred and seventy-five dollars, but it can scarcely be said that the “ matter in dispute” between him and the appellant exceeded three hundred dollars.” Const., Art. 62. The appellant had evidently no larger right against the debtor of his debtor in execution, than he had against his debtor in execution; and that right is expressed in the fi. fa., as follow's: “The sum of one hundred and twenty-five dollars, with five perceut per annum interest from the 14th February, 1863, until paid, and also the sum of $15 35 costs, exclusive of sheriff’s fees.” If any ambiguity appear in this description of the amount, it is removed by the agreement of parties, in the record, “ that the amount of plaintiff’s judgment, interest and all costs, say the sum of one hundred and sixty dollars, shall be deposited in court till the further order of the court, and that the balance of the debt due by the city to the said defendant be paid over to the said William, Miller by the sheriff.

It has been frequently decided that an appeal will not lie from a judgment upon a motion to quash a seizure, when the value of the property seized does not appear, although the amount of the claim, to secure which the seizure was made, be above three hundred dollars. See Hcnnen’s Digest, verbo Appeal, p. IT, No. 4. A fortiori, when the amount of the claim is loss than three hundred dollars, although the amount of property seized is more than that sum.

The Code of Practice has provided for the reduction of a seizure under execution, when it exceeds what may be reasonably thought necessary to satisfy the judgment and costs. Art. 652, 653. Act of April 7th, 1826, sec. 13. It is evident, that in contemplation of law, the amount of the seizure never exceeds the amount of the writ.

Again, where defendant admits his liability for a part of a claim, and pays that portion into court, for which plaintiff takes judgment, removing his right to the balance, which is less than the amount necessary to authorize an appeal, no appeal will lie from the judgment in relation to that balance. Second Municipality v. Corning, 4 Ann., 407.

The motion is therefore sustained, and the appeal dismissed with costs.


author: Slidell, 0. J.

text:
    The of State Louisiana on the Relation of C. Baumback v. J. Dubuc.
    The Grovemor lias no power, under the Constitution of 1852, to appoint, during the recess of the Senate, to an office not vacant.
    The case of the State, on the relation of Segw)' v. Orenshcm, 8 Annual, affirmed.
    APPEAL from the First District Court of New Orleans, Larue, J.

      Bonford & Finney, for the relator and appellant. Collins, for defendant.
   Slidell, 0. J.

(Voouiiies, J., absent.)

The Act of June 1, 1846, provides for the appointment by the Governor, by and with the advice and consent of the Senate, of inspectors of weights and measures for New Orleans. Under this Act Dubuc was appointed by Governor Walker, by and with the advice and consent of the Senate, on the 15th March, 1852. The term of office, under the statute, was two years. Acts of 1846, p. 95, sec. 2.

Baumback was appointed to the same office by Governor Hébert, June 1, 1853, during the recess of the Senate. The commission, under which he claims, hears that date.

In the case of the State on the relation of Sigur v. Crenshaw, we had occasion to consider the effect of the Constitution of 1852, upon officers commissioned under the antecedent Constitution and Government; and a majority of this Court, affirmed a judgment in favor of Sigur, who had been appointed by the Governor elected under the Constitution of- 1852, by and with the advice and consent of the Senate.

We refer to the views then expressed .and to the conclusions to which we then came, to wit: that the tenure of the former Incumbent ceased upon the appointment and readiness to enter into office of the new officer.

So that the true question here, as the District Judge correctly observed, is whether there has been an appointment of a new officer under the new Government. That is to say, an appointment constitutionally valid.

We concur with the District Judge in his conclusion that no such appointment has been made; and this, because the appointment of Baumbach was made during the recess of the Senate, and the office was not then vacant. By the Article 48 of the Constitution of 1852, the Governor is clothed with power to fill, for a limited time, vacancies that may happen during the recess of the Senate; but not with powers to create a vacanc}r. The general grant of the appointing power is found in Art. 47. It is vested in the Governor acting by and with the advice and consent of the Senate. The special grant in Article 48 is restricted to filling, for a limited time, vacancies occurring during the recess of the Senate, and was made to avoid the inconvenience to the public service which would arise from leaving offices vacant during the interval which might elapse before the re-assembling of the Governor’s constitutional advisers. We consider the Art. 144, where it speaks of “the entering into office of the new officers to be appointed under said Government,” as pointing to the general grant of the appointing power in cases generally, and to the exceptional grant in the excepted cases, to wit: vacancies.

There is no reason to infer from the provisions of the Constitution of 1852, taken as a whole, a grant to the Chief Executive Magistrate of a larger control over appointments than was conferred by the Constitution of 1845. It will be observed that in important particulars the former appointing power of the Executive was curtailed by a transfer to the people.

We think, with the District Judge, that Article 145 was put into the schedule for the purpose of preventing the Governor elected under the Constitution of 1845 from making appointments under the Constitution of 1852, after it should go into operation, and during the interval which would occur before the entering into office of the new Governor.

The error of the appellant’s counsel consists in considering a vacancy as having occurred in this case. In is not a vacancy in the sense of Article 48, which results from the operation of Art. 144, upon the defendant’s commission ; but the cessation of the tenure of the old officer appointed under the former Government, upon the Constitutional appointment, and entering into office of a new officer.

We have already noticed the fact which distinguishes this case from that of Sigur. Sigur was appointed by the Governor, by and with the advice and consent of the Senate. See 8 Ann., p. 401.

Judgment affirmed. Costs of appeal to be paid by appellant.


author:
Slidell, 0. J. Ogden, J.,
      Dunn,

text:
    W. Stephens v. W. C. Graves.
    The plaintiff, a resident of Louisiana, sued the defendant, a resident of Kentucky, to rescind the sale of slaves sold him by the agent of defendant, on account of redhibitory defects. The defendant signed an agreement to arbitrate the matters in dispute, but the arbitrators did not act.
      JTdcl: That it was not a proper case for the appointment of a curator, ad koe, to represent the defendant.
    APPEAL from the District Court of the Parish of East Baton Rouge, Robertson, J.

      Bunn, for plaintiff. Lacey, for defendant and appellant.'

         The facts are taken from the opinion of the District Judge.

   Slidell, 0. J.

(Vookhies, J., and Campbell, J., concurring.)

The facts are correctly stated in the opinion of the District Judge, and we concur with him in the conclusions that this case was not one for the appointment of a curator ad hoc. See Dupuy v. Hunt, 2 Ann., 562. Johnson v. McRae, 8 Ann., 101.

We think there is no error in the judgment of the District Court, rescinding the appointment of a curator ad hoc, and dismissing the suit; and the judgment is therefore affirmed with costs.

Ogden, J.,

(with whom concurred Bdchanan, J.,)

dissenting. The sale from the defendant to the plaintiff having been made in Louisiana, and within the jurisdiction of the court, I think it was a proper case for the appointment of a curator ad hoc, to represent the defendant, who resides in Kentucky.

The rule, sanctioned by the more recent decisions on this subject, confines the power of appointing curators ad hoc to cases where there is something upon which the jurisdiction of the court can properly he based. In the case of George v. Fitzgerald, 12 L. R., 606, the rule was laid down more broadly than was necessary for the decision of that particular case, which, like this, was a redhibitory action against a defendant residing in another State, but the conclusion then arrived at, that in such a case, a curator ad hoc may be appointed to represent the absent defendant, is not at variance with any of the more recent decisions, and is not, as I think, in conflict with the decision in 2 Ann. R.,

562, of Dupuy v. Hunt. Where the subject matter of the suit is the title to land, it is the constant practice to cite absent defendants as warrantors by the appointment of a curator ad hoc. Negroes are considered real estate, and where the object of the suit is the rescission of the sale of property of that kind on the ground of a vice inherent in the contract itself, and the property is within the jurisdiction of the court, there is the same reason for applying the rule to such a case as there would be in an action to rescind the sale of a tract of land.

The defendant in this case entered into an agreement, in writing, to submit the controversy to arbitrators who were to make a report, and within ten days file it in the office of the Clerk of the District Court of East Baton Rouge. He appeared afterwards, by counsel, before the arbitrators and objected to their proceedings on the ground that he had not been personally notified, and when the suit was instituted appeared again, by counsel, and excepted to the jurisdiction of the Court, on the ground that he resided out of the State, and that the court was without authority to appoint a curator ad hoc to represent him.

I am of opinion the court below erred in sustaining the exception.

Dunn,

for a re-hearing:

1st. A dismissal of the conservatory process did not carry with it a dismissal of the action. Peremptory exceptions tend to the dismissal of the action, but dilatory exceptions only retard its progress.

At page 6 of the Record, it will be seen that the petitioner prayed to cite the defendant, in propria persona, to answer, as well as through a curator ad hoe and agent.

As Graves frequently visits Raton Rouge, the plaintiff should have the benefit of his present action to make service upon him. The petition was delivered to the Clerk, regularly filed, and it was the duty of the Clerk to make out a copy to be served on defendant with a citation annexed, as prescribed by Code of Practice, 176 and 178 Arts. This he cannot do if his action remains dismissed, and he would be obliged to commence de novo. The dismissal of the action is error.

2d. It was error to set aside the process of attachment. The plaintiff was certainly entitled to it, and adismissal of the action as to HcHattan, a garnishee, should not deprive the plaintiff of the benefit of the attachment, if by vigilance he should be so fortunate as to find property, rights or credits belonging to the defendant.

McHaitan disclaimed being agent, denied owing the defendant, and prayed to be discharged. That being allowed, still the attachment process should remain undisturbed except as to the garnishment.

The defendant, Graves, contested the authority of the court to appoint a curator ad hoe, to represent him. In such case, if the law be in his favor, then the appointment of the curator would be rescinded, and the petition and attachment remain undisturbed. The defendant could not reach these without an appearance and issue, in which he would fail, and which would be a waiver of jurisdiction.

3d. At page 14 of the Record, it will bo seen that the interest of the defendant in the slave Sarah was attached.

If Graves had an interest in that slave it was the right of plaintiff to attach it, and whether he had or not, was a question to bo tried. The dismissal of the attachment deprives him of that right.

4th. Every government has a right to make laws protecting the citizen against the frauds and bad faith of non-residents in the sale of slaves made within the State and within the jurisdiction of the courts, and are equally binding on non-residents, who contract, knowing their existence, and will have full force and effect in every other government. The mother shall not be sold from the child; a disease manifesting itself within 15 days, shall be evidence of its existence on the day of sale; and such laws, are made for the protection of our own citizens and purchasers of slaves. The right cannot be controverted.

A right without an adequate remedy is a mere shadow ; and I submit to your honors, if it were not competent to provide a remedy to cancel contracts made within the State, and whether judgments rendered contradictorily with curators ad hoe would not be respected by the sister States?

At the time the defendant sold the slaves, he was a Kentuckian; he sold them in this State, and to a citizen of the State; the contract must be governed by the laws of the State. It was a part of the contract that if redhibitory vices or defects manifested themselves, that then the slaves were to be returned and the price paid back.

How were the slaves to be returned ? Was it the duty of the purchaser to take them to Kentucky ?

The moment these slaves touched our soil, they ceased to be personal property. A suit to cancel the sale is therefore not like a personal action that follows the person, or actions relating to personal property.

The Article in the Civil Code provides for the appointment of curators ad hoe in certain cases, and is this not a case ?

Not only was the contract made in Louisiana; not only are slaves regarded as real estate, but the definition and effect of the redhibitory action, indicating that vendors of slaves have a suspensive revisionary interest in the property sold, that it would seem the law-maker intended to embrace such cases, and in this conclusion we are supported by the repeated decisions of the Supreme Court for years past, and without any change in the Legislative enactments. In fact, the law and practice was not seriously questioned by the courts until recently.

Suppose that the plaintiff had sold these slaves, and that he was sued on account of defect, would he not have a right to call his vendor in warranty and pray the appointment of a curator ad, hoc ? Such is the practice. There would be a suit pending in which the absentee was interested, and the right would be unquestioned.

• The plaintiff, then, can sell the slaves, stand a suit, and thereby give jurisdiction to the court over the absentee. It seems to be a curious rule that he cannot sue the absentee unless he is himself sued.

5th. In making an agreement to arbitrate, did not the defendant give jurisdiction? To test it, I insist that the agreement was equivalent to citation, and would be so ruled, for the purpose of interrupting prescription.

Eor this reason, the law authorizes the parties to make such agreements. If a defendant accept service by endorsing it on a petition, it as much interrupts prescription as if served with citation. The agreement, in this case, therefore, is not without legal effect, and surely, it interrupted prescription, because it was the commencement of a legal controversy which has never been voluntarily waived or dismissed by plaintiff, and I submit to your honors if that agreement is not evidence of consent, conferring jurisdiction..

Re-hearing refused.


text:
    City of New Orleans v. R. D. Shepherd.
    A judgment of the District Court, refusing the application of defendant to remove a case to the Circuit Court of the United States, is interlocutory and unappealable*
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Lábatt and G-. Eustis, Jr., for plaintiff. A. K Josephs and Durant & Horner, for defendant and appellant.
   Buchanan, J.

The defendant being sued in the Fifth District Court of New Orleans, for an amount over five hundred dollars, availed himself of the provisions of the tenth section of the Judiciary Act of 1789, (Story’s L. U. S. vol. 1, p. 58,) and filed his petition for the removal of the cause to the Circuit Court of the United States for this District, on the ground of his being a citizen of Virginia. The District Judge, after hearing evidence, rejected this application; from which decision defendant has appealed, and plaintiff moves to dismiss the appeal, as improperly granted from this interlocutory judgment.

The point of practice is perfectly settled in favor of appellee. 2d M. R., 176. ¡6 N. S., 712. 5 L. R., 378.

Appeal dismissed at cost of appellant.


text:
    Patrick Kerr v. T. B. Hays.
    APPEAL from the District Court of the Parish of Plaquemines, Rousseau, J.

      J. Q. Bradford, for plaintiff and appellant. Maurian and W. H. Hunt, for defendant.
   Campbell, J.

(VooBrcrES, J., absent.)

It satisfactorily appearing that Patricio Herr, the nominal plaintiff and appellant in this suit, is and was dead, at the time of its institution.

It is decreed that the appeal be dismissed.


text:
    E. Armorer, Administrator, v. Margaret Case et al.

      JPwrndl & Gvlberson purchased from Mrs. Drnis, the mother of frwrnell, her rights in the succession of her mother. Purnell afterwards purchased from Culberson, his co-proprietor, his interest in the land acquired by the joint purchase, and paid two of the notes given for the purchase money. After his death, his widow resisted the payment of the remaining notes, alleging failure of consideration, and that they were given in error by her deceased husband, who was the owner of the land at the time of the purchase from his mother. Held: The purchase by Pwrnell from his mother was a recognition of title in her, and an acknowledgment of her right to sell. In subscribing the act, he virtually said to his co-vendee, I have no interest in or title to this property — he was therefore bound to his co-vendee for the purchase money.
    APPEAL from the District Court of the Parish of Concordia, Farrar, J.

      Stacy & Spas-row, for plaintiff and appellant. Shaw & Ogden, for defendant.
   Campbell, J.

This litigation originated in the transactions which gave rise to the suit of Armorer, Tutor, v. Case, Administrator, et al., recently decided; and by the consent of parties, the evidence contained in the record of that case, is to be considered in the decision of this. The relation of the parties to each other, and the history of their transactions, are stated in the case referred to.

Elisa Pamis, Thomas D. Purnell, and Man’y O. Purnell, wife of Culberson, were legitimate children of Ma/ry Purnell, Elisa being the issue of the first marriage of their mother.

In 1842, Mrs. Pami% sold to Purnell & Culberson, her rights in the succession of her mother, and on the 6th April, 1844, Culberson sold to his co-proprietor, Purnell, his interest in the land acquired by their joint purchase from Mrs. Pamis, for $6000, payable in six annual instalments; two of which were paid by Purnell before his death. His widow, assisted by her second husband, resists the payment of the four remaining notes, alleging failure of consideration and that they were given in error by Purnell, who was the owner of the land at the time of the purchase. There is no pretence of fraud or bad faith.

Even if it be conceded, that Mrs. Pamis had no title by inheritence from her mother to the land sold, still, we think the heirs of Purnell are estopped from alleging that fact, as a bar to the suit brought by Culberson, because of their ancestor having been a party to the sale and a joint purchaser with Culberson. His purchase from Mrs. Pamis was a recognition of title in her, and an acknowledgment of her right to sell. In subscribing the act, he virtually said to his co-vendor, I have no interest in or title to this property, and in his subsequent purchase and in the payment — so long as he lived — of the instalments as they fell due, he re-afSrms it. Under the circumstances, we do not think the defence can be sustained. It was never urged by the ancestor of defendants, nor could it have been; and the children will not be heard, when they proclaim that which equity and good conscience would not permit their father to set up as a defence.

In view of all the facts, we are inclined to regard the sale from Mrs. Pamis, as a compromise of rights which were by no means free from doubt. On this point, however, as it is not necessarily involved in the decision of this question, we express no positive opinion. No effort is made to recover back from Mrs. Davis the money paid for the land, and, in our opinion, the right of the plaintiff to recover, does not [in anywise depend upon the validity of Mrs. Davis’ title.

It is alleged that GuTbersbn did not pay his portion of the debt due for the purchase made by himself and Purnell from Mrs. Davis. No attempt was made to establish this allegation; but a contrary presumption results from the facts proved.

In view of these reasons, and those given in the case of Armorer, Tutor, v. Oase, Administrator, we are of opinion that the judgment of the District Court should be reversed; which is decreed. It is further adjudged and decreed, that petitioner, Ddward Armorer, do recover, in his capacity as administrator of the succession of Thomas D. Purnell and the said Margaret Oase, adminis-tratrix, the sum of four thousand dollars, with interest at the rate of eight per cent, on one thousand dollars thereof, from January 1, 1847, and like interest on the like remaining sums from January 1st, 1848, 1849 and 1850; and that for the payment of said sum and interest, petitioners’ mortgage and vendor’s privilege be allowed and recognized, and that he have leave to enforce the same as claimed.

It is further ordered, adjudged and decreed, that petitioner do recover of and from the succession of said Purnell and his said administratrix, the further sum of eleven hundred and twenty-six dollars and fifteen cents, with six per cent, interest on one thousand and eighty-nine dollars and fifty-three cents thereof, from February 19, 1849. The costs of both courts to be paid by defendants and appellees.


author: J.

text:
    E. Armorer, Administrator, v. Margaret Case et al.

       See preceding case* — Rep.

   J.

The defence relied upon in this case, is the same as that set up in the case of Armorer, Tutor, v. Case, Administrator, et al., just decided, and by consent, this case has been tried chiefly on the testimony contained in the record of that.

For the reasons then given, we are of opinion that the judgment rendered in this case should be reversed; which is decreed. It is further decreed and adjudged, that petitioner, Ed/acvrd Armorer, do recover in his capacity as administrator, from the succession of Thomas D. Purnell, and the said Mcurgm'et Oase, administratrix, the sum of four thousand dollars, with eight per cent, per annum on one thousand dollars thereof, from January 1, 1847; and the like interest on the like remaining- sums, from January 1st, 1848, 1849 and 1860; and that for the payment of said sum and interest, petitioner’s mortgage and vendor’s privilege be allowed and recognized, and that he have leave to enforce the same as claimed.

It is further ordered, adjudged and decreed, that petitioner do recover of and from the succession of said Purnell, and his said administratrix, the sum of $-, with interest thereon at the rate of six per cent, per annum from February 19, 1849 ; the costs of both courts to be paid by defendant and ap-pellee.


text:
    Victor Burthe v. Blake and the Town of Carrollton.
    The founders of the town of Carrollton, when they caused the original plan of the McCarty plantation to be made — dividing it into squares or portions of land, numbered and bounded by streets and avenues — and offered ifc'at auction to the public, clearly intended to give it the character and destination of suburban property, and no one holding squares and pieces of ground described in his title with reference to this plan, which has been the subject of legislative recognition, can consistently with his own title, the manifest intention of his authors, atrd the rights of other citizens who have bought on the faith of the same declared intention and appropriation, dispute the public character of the portion of the land so reserved for streets and avenues, whenever the corporation of Carroll-ton shall consider the proper time has arrived for having them opened. The plaintiff must be considered as having bought his property with reference to this ultimate exercise of power.
    APPEAL from the District Court, of the Parish of Jefferson, Olmdce, J.

      j?oselius, for plaintiff and appellant, Beecher, for defendants.
   Slidell, C. J.

(Vooriixes, J., absent.)

The defendants having passed an ordinance for opening two streets in the town of Carrollton, called Levee and Clinton streets, the plaintiff sued out an injunction to prevent it, alleging that the ground through which it was proposed to open them, was his property, and that the defendants had no right to do so without having previously paid a full indemnity to him for the lands to be taken for such streets, and without having complied with the requisites prescribed by law for the opening of streets by municipal corporations.

The'defendants in their answer allege, that the plantation formerly called McCarty’s, belonged, in the year 1832, to the New Orleans Canal and Banking Company, Laurent Millaudon, John Slidell, and Samuel Kohn; that in that year, the said proprietors made a plan and prospectus of said plantation, dividing it into streets and squares, and called it Carrollton, and caused the whole of the squares to be sold at public auction, according to the said plan and prospectus, and passed their deed of sale referring to said auction sale, the prospectus and plan of said town; and they allege that defendants hold under them by virtue of one or more of said deeds or bills of sale and subsequent conveyances.

Tour respondents allege, that said proprietors, by their prospectus, plan and public sales at auction, and before notaries, established and dedicated to the public use, and to the purchasers of squares and lots in Carrollton specially, a street eighty-feet wide, called Levee street, extending from upper to lower line streets, and nearly parallel to the old river road, and also a street called Clinton street, fifty feet wide, extending from said Levee street parallel to. Adams street to First street on the railroad.

Your respondents allege, that the dedication of said streets to public use, and especially to the use o( the purchasers of squares and lots in Carrollton by the proprietors, who established said town, was always well known to the plaintiff and has been frequently acknowledged by him and those under whom he holds, and has always been matter of public notoriety, and that the said streets have only been temporarily closed by the permission of your respondents, for the' convenience of said plaintiff, and they deny that he ever possessed the said streets as owner, or has acquired any right to the same by prescription, as he pretends.

In his petition, the plaintiff has alleged ownership and long possession by inolosures, but abstained from reciting his titles. The defendants, however, have offered deeds exhibiting portions of his chain of title and that of other proprietors; and from their recitations it appears, that the material allegations of their answers respecting the plan of the town of Cai'rollton, and sales in conformity thereto, were true, and that the plaintiff’s father bought a portion of the lands he holds under the enclosure, under the description of a piece of land fronting on said streets, and with reference to said plan. The description in one of the deeds is as follows; Kohn (who was one of the founders of the town,) sells to B. F. V.Burthe, “the undivided half of a certain piece or portion of ground situate at Carrollton, in said parish of Jefferson, and designated by the number one on the original plan of Carrollton, drawn by Charles E. Zimpel, engineer and surveyor, dated the 16th day of March., 1832, deposited for reference in the office of G. R. Stringer, notary, in this city, and of whom Theodore Guyol is the successor in office. The said portion of ground having American measure 1205 feet on the line of Levee street, 3198 feet on the road separating said Carrollton from the plantation heretofore belonging to Pierre Foueher, 449 feet on Eirst street, and 2380 feet on Clinton street, together with the undivided half of all the buildings and improvements on the said piece of ground,” &c.

The plan spoken of, we understand to be the same plan which is referred to in the first section of the statute incorporating the Town of Carrollton, enacted March 10, 1845, p. 41; which statute clothes the Mayor and .Council of the town with “ powers to prevent the stoppage or obstruction of the streets, levees, and public roads of the town, and -adopt such regulations for that purpose, and for the removal of all buildings or obstructions on the levees or public roads of said town, as may not be inconsistent with the laws of Louisiana.” The plan is also recognized in the charter of the New Orleans and Carrollton Railroad Company, granted in 1833. The 4th section is in these words: The said corporation is hereby invested with all the powers necessary for the construction and repair of a railroad from some point in the suburb St. Mary, through Nayades street, to its termination in the suburb Livaudais, and from thence to a street .named Eirst street, on a plan made of the plantation formerly belonging to Barthelmy Maeartyn and which plan is deposited in the office of Greenbury R. Stringer, and then-oe through «aid street to the river Mississippi ; provided the said railroad be so constructed as not to prevent the use and traveling in .any street through which it may pass.” Acts of 1833, p. 9.

It further appears, that Bwrthe and Millmidon, his co-proprietor, had addressed to the Mayor and Council a petition, -in these words:

• To the honorable the Mayor and Aldermen of the Council of Carrollton: The petition of L. Millaudon and V- Burthe, respectfully represents, that your petitioners are owners of all that portion of ground situated in Carrollton, and comprised between lower line and Adams street, from Levee street to Carroll-ton Railroad, and described in the accompanying sketch.

Petitioners say further, that agreeably to a resolution of your honorable body, they have been notified to open Clinton street, which runs through said tract of land.

Now, petitioners say, that the opening of said street would be, for several years to come, of no benefit to the public, inasmuch as your petitioners are the only owners of the property on both sides; that it would be, on the contrary, a source of useless expense both to the city, who would have to keep said street in repair, and to your petitioners, who would have to fence in the lots on both sides.

Wherefore your petitioners, impressed of the idea that it is your honorable body’s wish to promote the interest of individuals when it can be done without loss or detriment to the public, would respectfully ask your honorable body to repeal the resolution ordering the opening of Clinton street, and to grant to petitioners the privilege of leaving the same enclosed for five years. And as in duty bound, &c.

(Signed) Millaudon & Burthe.

It further appears, that the expediency of opening the streets in this quarter of the town, had been considered by the council, and determined upon as conducive to its prosperity.

On the other hand, it appears that the plaintiff and his authors have had the ground, appropriated by the plan lor these streets, under enclosure for many years.

Upon this state of facts, we think the District Judge did not err in dissolving the injunction.

The founders of this town, when they caused this plan of the Macarty plantation to be made, dividing it into squares or portions of land, numbered and bounded by streets and avenues, and offered it at auction to the public, clearly intended to give it the character and destination of suburban property. No one holding squares and pieces of ground described in his title with reference to this plan, which has been the subject of legislative recognition, can consistently with his own title, the manifest intention oí his authors, and the rights of other citizens who have bought on the faith of the same declared intention and appropriation, dispute the public character of that portion of the land so reserved for streets and avenues, whenever the corporation of Carrollton shall consider the proper time has arrived for having them opened. The plaintiff must be considered as having bought his property with reference to this ultimate exercise of power, and is entirely unsupported in his pretention that by the sufferance of the municipal council, that he should enclose the lands, while the public convenience did not require the opening of the designated streets, he could thereby acquire a right in the soil which he never purchased, and which on the contrary was excluded from his ownership, by the term of his deed.

This case presents circumstances materially different from those considered in the case of the Town of Carrollton v. Jones, 7th Ann. 233. The defendants were in possession of a portion of a large piece of ground designated on the original plan of the Town of Carrollton. The previous proprietor had caused a plan to be made, representing new streets through this piece of ground; and a sale according to it was made to a person named Sharp, and a mortgage according to the plan was made to the Carrollton Bank. But it appeared that Sharp forbore to exorcise any right of way, and, on the contrary, contended that the property should remain in its enclosed condition ; the mortgage creditors had not exercised their rights, and the court assumed that the debt was paid. There had moreover never been any public approval of the plan. See opinion of Eustis, C. J. on re-hearing.

Judgment affirmed,; appellant to pay costs of appeal.


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    Widow Duchamp v. Widow Dantilly, on a Rule of Bachemin.
    IThe legal subrogation extends to every case where a person pays a debt which he has an interest in discharging. And if the debt discharged be by judgment, the court may subrogate such person to the plaintiff’s judgment with the right of execution.
    •<!. C. 2157.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      St. Paul & Bouney, for the original plaintiff and defendant, cited Pothier, yoI. 17, p. 278, No. 78.
    Translation from Boileux” on subrogation. On Art. 1251 N. 0. and 2157 L. 0.
    Legal subrogation takes place without the consen t of either the debtor or creditor. This favor, based on equity, is only extended to those who are authorized to pay the debt of .another. The Code has determined the cases in which the subrogation takes place: A judgment that would extend it to other circumstances should be avoided. Analogies cannot be admitted on this subject. The law declares a subrogation in the following cases: 1st For the benefit of the creditor who pays another creditor who has priority over him, since he has an interest .in reducing the number of creditors, either to put a stop to litiga-tions or to avoid the costs that might absorb the common pledge, for those costs will increase in proportion to the number of creditors.
    We will close with a few cases of our own, wondering how they escaped the vigilant search of our opponents, in their eagar desire to present at least both sides of the question: The French courts are quoted in Dalloz, Dictionnaire de Jurisprudence Vo. Subrogation, section de la Subrogation Legale.
    No. 71. Held, that subrogations, whether legal or conventional, cannot extend to any other cases than those enumerated by law.
    No. 74. Even before the publication of the Civil Code, one who not being a creditor, had paid a mortgage creditor, could not be subrogated to his rights, except by special agreement.
    No. 87. From the letter and spirit of the law, it results that legal subrogation only arises in case of an actual payment, made by virtue of the purchase.
    No. 93. Held, that the purchaser of an hereditament who pays the mortgage creditor of his vendor is subrogated to the rights of said creditor.
    No. 94. Does the subrogation extend to all the property of the vendor, or is it restricted only to the portion sold ? (Here a review of Duranton and the other authors already quoted.)
    Held, that this subrogation extends only to the property sold itself and to such other portion as was, together with it, jointly affected to the payment of the same debt.
    No. 95. Recognition of the above principle in a decision of January 15, 1833.
    Vol. 7 N. S. 602. Nolte v. His Creditors. The court, after having refused a subrogation to a party who had furnished money for the payment of a note due for wages of workmen engaged in building a house, says at page 603 : We are ignorant of any law which gives to the party who furnishes money for the payment of a debt the rights of a creditor who is thus paid: The legal claim above belongs not to all who pay a debt, but only to he who being bound for it, discharges it. The appellant cannot therefore claim the benefit of a legal subrogation if he has shown no conventional one: the rights of the creditor paid with his money are therefore absolutely extinguished and no part of them can be exercised by the appellant.
    R. R. 5, 204. Harrison v. Bisland. “ A legal subrogation exists in favor, not of all who pay a debt, but only of those who being bound for it discharge it.”
    R. R. 9, 476. Nieholls v. His Creditors. “Payment of a note secured by mortgage by one not bound for it and who had no interest in discharging it, will not subrogate him to the right of the party for whom he paid : The payment will extinguish the debt and the mortgage given to secure it; and the claim for reimbursement will constitute the party who paid an ordinary credi tor of him for whose benefit the payment was made. C. C. 2156, 2157.
    A. R. 4. Salaun v. lielf. Held, that the acceptor of bills of exchange given for the payment of certain slaves and secured by mortgage on said slaves, is not after payment subrogated to the said mortgage. Payment has extinguished the obligation and unless specially stipulated, no subrogation takes plage in favor of the acceptor, of the accessaries of the debt
    The foregoing authorities from our own Jurisprudence clearly show that no subrogation can have arisen in the case at bar. and if it had, its effect would be restricted to the property sold or to such other as was jointly bound far the payment of the debt, but in no case should this subrogation be suffered to extend to all the property of the debtor indiscriminately.

      tT. & E. Burmudez, for Bachemin :

    The provisions of the 2157 Article of the Civil Code granting a subrogation of right by reason of such payment, has been commented upon as corresponding to the Article 1251 of the Napoleon Code, by Denizart, ver-bo subrogation, p. 575, No. 19. Grenier Ilypoth, voL 2, p. 440, 2d alinea. Sirey O. C. Aunoté note '21, on Art. 1251, p. 553. Mazerat, Book 3d, 212, No. '686, 687, 688, 689. Toullier, vol. 7, p. 188, No. 2, p. 191, note 1, p. 231, 165. Boileux, vol. 2, p. 604, No. 2, p. 605, No. 3, p. 607, note on Art. 1252. DIctionnaire du Droit Civil, verbo subrog. leg. vol. 7, p. 14, 2d alinea. Marcado, vol. 4, p. 585, 586, 587. Berriat St. Prix, vol. 2, p. 487, on Art. 1251, verbo motifs. Rogron, notes on Art. 1256. Duranton, edition Beige, vol. 7, p. 96, No. 166, 157, 158, 159, 160, 161, p. 114 No. 183.
   Buchanan, J.

(Vooehies, J., absent. Ogden, J., absent and dissenting.)

The question presented to the consideration of the court in this cause, is one of subro-gation. The record shows that Jacques Bachemin, Junior, and Theodule Bache-min, Junior, being joint owners of a lot of ground with .the buildings and improvements thereon, sold -said property on the 17th January, 1850, to their grandmother, the defendant; who, on the 11th December, 1851, mortgaged the same in favor of Jacques Bachemin., Junior, or any holder of two notes, one for eight hundred dollars, and one for two hundred, dated on said day, and payable one year after date. On the 17th -December, 1-852, the note of $800 being past due and unpaid, the plaintiff, holder of the same by blank endorsement of the payee, brought this suit, via ordinaria; obtained judgment by default, with privilege o-n the property described in the petition and act of mortgage on file, and took out a fi. fa. on said judgment, under which writ the Sheriff seized and advertised the property.

In the mean time, however, one Thodule Bachemin, Senior, who was a creditor of the vendors of the defendant before the date of her purchase of the lot mortgaged to plaintiff, had obtained judgment against his debtors, on the 25th February, 1852, and for the purpose of executing his said judgment, had brought a revocatory action against defendant, in which there was judgment on the 13th December, 1852, annulling the sale of the 17th January, T8S-0, as fraudulent and simulated. Therefore, the. said Thodule Bachemin, Senior, executed his judgment against the other two Baahemins, his debtors, by .-seizing and selling the property mortgaged by defendant, as the property of the Bache-mins. At that Sheriff’s sale, on the 15th February, 1853, 'Theodule Bachemin, Senior, became the purchaser of the property. Three days afterwards, on 18th February, 1853, plaintiff issued her fi. fa. in this case, as above mentioned. Before the day of sale, however, Theodule Bachemin, Senior, satisfied the writ in the hands of the Sheriff, and on the same day procured an order of court, subrogating him to the rights of plaintiff under her judgment. Plaintiff and defendant have joined in a rule against Bachemin, to test the validity of this subrogation.

Subrogation, according to Art. 2157, O. 0., takes place of right:

1. For the benefit of him who, being himself a creditor, pays another creditor, whose claim is preferable to his, by reason of his privileges or mortgages.

2. For the benefit of the purchaser of immovable property, who employs the price of his purchase, in paying creditors to whom the hereditament was mortgaged.

3. For the benefit of him who being bound with others, or for others, for the payment of the debt, had an interest in discharging it.

This Article is taken literally from the Code of Napoleon, Article 1251. And the commentators upon that Code agree that the subrogation spoken of in the second paragraph of the Article, takes place in favor of the purchaser, even although it be not precisely the price of his purchase that he employs to pay a mortgage upon the property purchased. Marcadé says on this subject:

“En effet, si l’aequéreur avait employe au paiement une somme au-de-lá de son prix d’acquisition, ou quand méme il aurait d’abord payé ce prix á son ven-deur, et n’aurait desintéressé les hypothecates qu’avec d’autres deniers, il n’en aurait pas moins la subrogation ; et si on prétendait la lui refuser, en s’armant, á tort, des termes de notre paragraphe, on voit qu’il l’aurait touj ours d’aprés le paragraphe suivant.” Yol. 4, page 586.

As this author observes, the legal subrogation extends to every case when a person pays a debt wJiich he has an interest in disaha/i'ging. Let us apply this test to the present case. The defendant mortaged the property in 1851, at which time she was ostensibly the owner. It is true, her title was afterwards sot aside as fraudulent and simulated. But the effect of that judgment was to declare the property to belong to Jacques Bachemin, Jr., who was an endorser on the note secured by mortgage, and was equally bound for its payment with defendant. The judgment in the revocatory action had no effect, therefore, upon Mrs. Duchamp's mortgage claim upon the property. Theodule Bachemin, Senior, had only acquired at Sheriffs’ sale, his nephew’s title to the property, and it was liable to Mrs. Duchamp’s judgment in his hands. He had therefore a clear interest in discharging the debt, and consequently the District Court did not err in subrogating him to the plaintiff’s judgment, with all the rights of execution which the plaintiff possessed.

The record shows that after satisfying the plaintiff’s claim and getting an order of subrogation to her rights under the judgment, on the same day, the appellee issued an alias fi. fa., under which certain slaves of the defendant have been seized and sold. The judgment which is the subject of the present appeal, was rendered upon a rule to quash this alias fi. fa. The original plaintiff, whose claim was satisfied, joined the defendant in taking that rule. It is not very clearly seen, what interest she (the plaintiff) had in the matter. No objection has been made, however, on this account, and it is sufficient that one of the parties appealing may have been aggrieved by the judgment discharging the rule.

The counsel of appellants has insisted, with considerable force of argument, upon the point, that the law gave to the appellee no such subrogation, as would authorize him to levy upon any other property than that which had been already seized in his hands and released by his payment. But we think the authorities quoted by the leared counsel are not entirely applicable to the case at bar. The appellee stands before us not only as a party who has satisfied a mortgage, but as one who has satisfied a judgment; weighing upon his own property it is true, but also personal against the defendant. The satisfaction of this debt, which he had an interest in discharging, vested him with all the rights of the creditor under her judgment. The facts of this case therefore take it out of the doctrine of restricted subrogation, which we are informed by Toullier, was that of Cujas, and of the older doctors, and which Toullier himself at one time advocated. But on this point, the other commentators of the Code Napoleon, such as Mareadé, Boileaux and others, express an opinion directly the reverse, and Toullier himself afterwards changed his opinion, upon the extent of legal subrogation under the new legislation, as he informs us in a note to page 191, volume 7.

Judgment affirmed, with costs.


author: Buciianan, J.

text:
    C. Tildon v. C. Dees et al.
    The case of Dees v. TÜcton, reported in 2d Annual 412, referred to as settling the points of law made in the argument of this case.
    APPEAL from the District Court of the parish of East Feliciana, Sterling, J.

      Merrick, for plaintiff and appellant. Winter, Bowman, Delee and Roberts, for defendant.
   Buciianan, J.

(Vooehies, J., absent.)

This suit is the supplement of that of Dees v. Tildon, reported in 2d Annual 412. The points of law made in argument were settled by the decision of the Supreme Court in the other cause; and upon the facts, the plaintiff, who is appellant, has no just cause to complain of the judgment of the District Court; which is therefore affirmed, with costs.


text:
    The State of Louisiana on the Relation of L. J. Nolan v. the Judge of the Sixth Judicial District Court.
    The Supreme Court will not issue writs of prohibition and mandamus, where the party has an adequate remedy by appeal.
    JjlOR the relator, Miles Taylor and AT. S. Taylor.

   Slidell, C. J.

(Voorhies, J., absent.)

This Court has not a general supervising power over District Courts. It is the settled practice of this Court not to issue writs of prohibition or mandamus, where the party has an adequate remedy by appeal. Here the applicant can except to the jurisdiction of the District Court sitting for the parish of West Baton Rouge, and if the Court does not sustain his exception, he can appeal,.. See Maccvrty's case, 2 Ann., 979. State v. Judge of First District Court, 19 La. R., p. 183.

Rule refused. Applicant to pay costs of application.