text:
    No. 2060.
    G. Ingram v. T. Doherty, and T. Doherty v. G. Ingram.

      (consolidated cases.)

    The appeal from a judgment of tlio District Court involving the right of office, returnable before the Supreme Court in New Orleans, will he dismissed on motion, if the requirements of Section 13 of the Act of 1866, page 154, have not been observed, in not malting the appeal returnable in ten days after the judgment of the lower court.
    from the Sixth District Court, parish of St. Tammany. jEllis, J.

      Thompson & Penn and A. & M. Voorhies for plaintiff and appellant. A. Jlennen and JEllis <& WalJcer for defendant and ap-pellee.
   Howell, J.

In this controversy the only question involved, by agreement of parties, is the right to the office of sheriff of the parish of St. Tammany.

A motion is made to dismiss the appeal because, by the fault of the appellant it was not made returnable, nor brought up “in ten days after the judgment of the lower court,” as provided by the thirteenth section of the act of 1866, p. 154.

The judgment was rendered on the thirtieth November, 1868, and on the same day a written motion, signed by appellant’s counsel, was presented and allowed, granting a suspensive appeal and returnable to this court, on or before the fourth Monday of February, 3869,” as set forth in said motion and the transcript was filed on Saturday, thirteenth February, 1869 — the fourth Monday being the twenty-second day of said month.

The appellant cites the case of Trimble v. Britchta, 10 A. 778, as an authority to relieve him of the imputation of error in the order of appeal. It is there said: “ as there is nothing in the record to show that the appellant suggested any particular return day, we must consider the order of appeal as the act of the judge, and that it was not one of the errors which, under the statute, might be imputable to the appellant.” Here a day was suggested by. the appellant, and then under the phraseology of the order as asked by him (being in the alternative), it may have been possible for him to have brought up the appeal within the ten days prescribed in such cases. Be this as it may, the return day having been fixed as demanded by the appellant, we must conclude that the error is imputable to him.

Appeal dismissed with costs.

Rehearing refused.


source: Caselaw Access Project

author: Ho weir,, J.

license: Public Domain

text:
    No. 2060.
    State of Louisiana, ex rel. T. Doherty v. G. Ingram.
   Ho weir,, J.

This proceeding is a part or brancli of tlie controversy between these parties, in relation to the office of sheriff and which we have just disposed of by dismissing the appeal, and as the judgment therein, which becomes final by such dismissal, settles the controversy in favor of the relator herein, who is appellee in both appeals, it is unnecessary to examine this cause on its merits.

It necessarily follows the decision in the consolidated cases giving the office of sheriff to the appellee, who is thereby entitled to the possession of the archives of said office, the matter in dispute herein.

It is therefore ordered that the judgment appealed from be affirmed with costs.


author: Howe, J.

text:
    No. 2107.
    R. H. Draughan, Administrator, v. Jane White and John Collins.
    A receipt given for money, is not conclusive and may be explained by parol testimony.
    Payment to the administrator in Confederate treasury notes ol a debt due to the estate will not shield the debtor from liability.
    from the Fifth Judicial District Court, parish of East Feliciana. . Posey, J.

      Me Vea d¿ Hunter for plaintiff and appellee. IF. P. Kernan for defendant and appellant.
   Howe, J.

This suit was brought on two promissory notes given at a probate sale made in the succession of Evander White, of which the plaintiff was administrator. The court below gave judgment in favor of the plaintiff for the amount of the note for §445 60, the consideration of which appears to have been lawful, rejecting the claim upon the other note which had been given as the price of a slave, and the defendant, Mrs. White, has appealed.

The defense pleaded is that in August, 1863, Mrs. White had a full settlement with plaintiff and paid him a balance of $937 08, in full of amount due on these notes and another given at the same sale, and the receipt of the administrator is annexed to the answer.

Upon the trial it was clearly proved that the amount thus receipted for was paid entirely in what were known as Confederate treasury notes. The obligations in suit were not given up because they were not then in possession of the administrator. The defendants reserved a bill of exceptions to the admission of testimony on this point on the ground that the plaintiff who was the witness “ could not contradict his own written acknowledgment, and that no witness could be heard to prove that he had violated the law and given aid and comfort to rebels in arms by giving currency to their so-called Confederate treasury notes.”

The objection was properly overruled. A receipt' for money is not conclusive between tbe parties, but is open to explanation by parol, especially as to consideration (5 A. 238, 408; 14 A. 276), and we know of no rule of law which forbids the plaintiff froni disclosing the real character of the transaction. The rule nemo allegans, etc., has never, we believe, been properly applied to a case of this sort. The alleged payment of August, 1863, was not a payment, and we therefore see no error in the judgment.

Por the reasons given, it is ordered and adjudged that the judgment appealed from be affirmed with costs.


author: Taliaferro, J.

text:
    No. 2094.
    William P. Palmer v. Philip S. Petty.
    A purchased at probate salo a lot of untanned hides then in the tan vats which were on the plantation, together with a lot of tan bark and the tools necessary to finish tanning out the leather. B purchased the plantation at the probate sale, on which the tan yard is situated, who brings this suit against A for the use of the tan yard, etc. Held, That — inasmuch as no contract or agreement between A and B is shown about the use of the tan yard, and the proccs verbal of the sale shows that A purchased the leather then in the tan, together with the tools and bark, he is entitled to the use of the tan yard free of costs for tanning out the leather.
    A .ÍX PPEAL from tlie Seventh Judicial District Court, Parish of West Feliciana. Cooley, J.
    Powell, for plaintiff. Wickliffe & Miller, for defendant.
   Taliaferro, J.

In the latter part of the year 1865, the plaintiff purchased at a probate sale of the succession of G. B. and M. E. Petty, deceased, the plantation belonging to the estate, and the defendant bought a large quantity of hides in the tan vats of the tannery on the place. These hides were undergoing the process of tanning at the time of the purchase, and the defendant continued the operation, using the same vats for the purpose. Nearly a year seems to have elapsed before all the hides were converted into leather and removed. The plaintiff sued the defendant for the use of the tannery, and also for board during the time he was occupied with the work; his entire claim being stated at six hundred and thirty dollars with interest. In the lower court this claim was rejected, and judgment rendered in favor of the defendant. The plaintiff has appealed.

A review of this case inclines us to coincide with the judge a quo in the opinion that the plaintiff has failed to establish his claim. It is not shown that there was any definite contract or understanding entered into between the parties on the subject. The only evidence on the record going to show that the defendant agreed to pay anything for the use of the vats, is the testimony of the plaintiff himself, and that is vague and indeterminate. He says : “ There was no stipulated price between the plaintiff and defendant for the use of the tan yard, but defendant expressed himself as willing to pay. whatever was right. I rather think I called on the defendant several times to know what price he was going to pay for the use of the tan yard, or rather that he noti-fieri tlie defendant that he could not have the use of the- tan yard any longer until the price was agreed upon. I did call upon him more than once. There was no agreement as to the price, hut defendant was willing to leave it to arbitration.”

“ At the winding up, ánd after he had got through with the use of the yard, defendant refused to leave it'to arbitration, and said that it was not a case that admitted of arbitration.”

The defendant, in his testimony, states that lie “purchased the leather sold at the succession sale of G. B. and E. Petty, deceased, and also the bark and tools, with the intention of tanning out and finishing the leather in the yard. Some time after the sale, applied to Dr. Palmer to take his dinner there when witness was there, for which he promised to pay him. He rather declined receiving anything,- inasmuch as he and witness were somewhat connected by marriage. Witness insisted on paying, and then and there gave him three or four dollars for the meals he had taken up to that time, and expressed his intention of paying for the meals he should take afterwards. Witness, while there, made his (Palmer’s) wife a present of some bacon and sugar.”

It appears that the defendant resided some six or seven miles from the tan yard, and was in the habit of going there from home to attend to his leather, and of returning at night, never remaining all night at Palmer’s. He was during this period also occupied in attending to the finishing some leather at Dr. Norwood’s tan yard in the neighborhood.

It appears that the defendant offered to prove by the sheriff who made the probate sale, and by two other witnesses, that the leather was sold -with the express agreement that the purchaser should have the privilege of the tan yard to complete the tanning and finishing off of the leather. This evidence was refused, and the defendant reserved his bill of exceptions: This we do not deem it necessary to pass upon. From the proces verbal of the sale it appears that the defendant purchased about seven hundred hides then in the vats, at the cost of about $1300, a lot of tan bark in the woods, and some other things necessary in tanning. Under the circumstances, and all the facts disclosed, we think it reasonable to suppose that the defendant would not have purchased the hides without being allowed the use of the tan yard to complete the operation of tanning and converting them into leather.

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


author: Howell, J.

text:
    No. 1963.
    State of Louisiana, ex rel. William George, et als. v. William S. Mount, City Treasurer.
    The law of 1856, section 131, page 136, exempting the city of New Orleans from giving bond in litigations to which she is a party does not apply to the Treasurer or other officers of the * city. The statute exempting the corporation from giving bond is an exceptional one and cannot be extended to other parties than those mentioned.
    from the Fifth District Court for the parish of Orleans. JOeaumont, J.

      J. 'Hawkins and H. Filleul, for rectors and appellees, H. J. heavy, City-Attorney,, for defendant and appellant.

      On motion of J. Hawkins and E. Filleul, of counsel for-relators, it- is-ordered that the defendant do show cause on Monday, the twenty-fifth January, 1869, why the appeal in this case should not he dismissed oh the ground that the appellant has furnished no bond of appeal according to law.
   Howell, J.

A motion is made by the relators to dismiss this appeal on the ground that no appeal bond has been furnished by the appellant.

In reply it is contended that the city of New Orleans is the real defendant and party in interest,- and is by law exempted from giving an appeal bond.

The proceeding is a mandamus directing the defendant to fulfill a duty required of him by law as Treasurer of the city of New Orleans, by paying certain warrants in favor of and held by the relators, and he has appealed from a judgment making the Writ peremptory. The city, not having been cited through its proper officer; is not a party to the suit. We know of no law authorizing the Treasurer to represent the corporation in a litigation. The exemption in favor of the city, being in derogation of a general law, cannot be extended to other parties, even though they be officers of the corporation.

It is therefore ordered that the appeal herein be dismissed at appellant’s cost.

Rehearing refused.


author: Wi'ly, J.

text:
    No. 2130.
    State of Louisiana on the relation of J. S. Simonds v. The Judge of the Seventh Distrct Court, parish of Orleans, et als.
    The Judge of the District Court is competent to determine the sufficiency of the security ou an appeal "bond after the appeal has been taken and filed in the Supreme Court, and if he finds the bond not such as the law requires he may order execution to issue, notwithstanding the appeal. • • •
    Where the evidence shows that the security on the appeal bond, is not good and solvent as' required by law, the Supreme Court will not issue a writ of prohibition restraining the Judge a quo from ordering execution to issue pending the appeal,
    from the Seventh District Court of the parish of Orleans! Gollens, J.

      Bentinick Egan, for relator, Breaux & Benner, of counsel.
   Wi'ly, J.

The relator took a suspensive appeal from the judgment recovered against him by Bogart & Oakley The appeal was subsequently set aside on motion in the court a qua on the ground that the bond was not such as the law requires, the surety not being good and solvent.

The relator then applied for and obtained a writ of prohibition. restraining the Judge, the Sheriff and Bogart-& Oakley from executing said judgment.

The District Judge answered, averring that he had jurisdiction to entertain ihé motion and determine the sufficiency of the appeal bond; that on the trial thereof the solvency of the surety on the bond was not satisfactorily established; that the appellant had not complied with the condition npon which the suspensive appeal was granted, that is to say, he had not given a good and solvent surety on the bond.

The District Judge had the authority to test the solvency of the surety on the appeal bond.

We have carefully examined the evidence on which the Judge acted in determining the surety insufficient, and are of opinion that he did not err.

The certificate of mortgages adduced on the trial showed that the surety, J". Morgan Hall, is not good and solvent, his property being mortgaged for amounts largely exceeding the value thereof.

The relator failed, in our opinion, to establish that he had given such solvent security on his appeal bond as the law requires.

It is therefore ordered that the writ of prohibition herein granted be set aside and the petition be dismissed at the costs of the relator.


author: Wyly, J.

text:
    No. 2127.
    August Bernstein v. Edward Ricks.
    ' The interruption of prescription may be proved by parol testimony,
    A PPEAL from Sixth District Court, parish of St. Helena. Pilis, J.

      P. J. Pilis,, for plaintiff and appellee, 8. P. Hunter and W. A. Perrin, for defendant and appellant.
   Wyly, J.

The defendant has appealed from a judgment recovered against him by-plaintiff on a note which matured second June, 1861. The citation was not served till twentieth June, 1866. The defense is the prescription of five years.

Plaintiff introduced parol testimony to prove an interruption of prescription, and the defendant took a bill of exceptions thereto. The evidence was properly received. The acknowledgment of a debt before prescription accrues can be established by parol evidence. The evidence is sufficient to satisfy us that prescription was interrupted, and that the plea is not well taken. It is therefore ordered that the judgment appealed from be affirmed with costs.


text:
    No. 2092.
    William R. Wimbish v. Joseph J. Wade and C. E. Percy.
    Where a party has purchased a tract of land and executed his promissory note for the price, and afterwards takes up the note by giving his draft for the payment thereof with full knowledge of the condition of his title, he cannot set up in defense to a suit against him as drawer of the draft that the title to the land is defective or imperfect. The attorney of record is not competent to make the necessary affidavit to obtain a trial by jury in a suit on a promissory note, where it is shown that the party resides in the parish and is within the limits of the parish at the time.
    ,4 PPEAL from the Seventh District Conrt, Parish of West Feliciana. Jjl Miller, J.

      Samuel J. Boioell, for appellant. Winter & Butter, for appellees.
   Wyly, J.

Plaintiff sued the drawer of a draft, Joseph J. Wade, and the endorser thereof, Charles E. Percy, after the same had been dishonored by the drawees and duly protested.

The defendant, Percy, pleaded the general issue.

The defendant, Wade, after making a general denial, averred “that the draft sued on was given the payee thereof, Charles E. Percy, on account of certain notes of this respondent in the purchase from him of a certain tract of laud in the parish of West Feliciana. * * That at the time of said sale said Percy was and still is without title to the whole or a portion of said land, and that in said act of sale it was expressly stipulated that this respondent should have the right to withhold payment of said notes until his titles to said land should he made perfect and complete; that said draft was given with the express understanding that said titles were to he completed and perfected, which have never been done by said Percy, nor is it now within his power to do so ; that by reason of the premises the consideration of said draft, if it ever had any, has utterly and entirely failed. That plaintiff, W. K. Wimbish, was well aware at the time he received said draft from said Percy, of the consideraüon thereof, as above set forth; of the stipulations contained in said act of sale, and that said Percy had never completed the titles of respondent, as he was hound to do, and took the same subject to all the equitable and legal defenses respondent might urge against it. That if he was ever* liable on said draft, which is still denied, he has been discharged from all such liability by the laches of the holder.”

On the trial there was judgment for plaintiff against the defendant, Percy, the endorser of the draft, and plaintiff’s action was dismissed as to the defendant, Wade, the drawer of the draft. Plaintiff has appealed.

It appears that James It. Wimbish sold a tract of land to Charles E. Percy, the titles to which were not complete, and that Percy retained part of the price till the titles might bo perfected ; it also appears that tile said Percy afterwards sold this land to the defendant, Wade, with the stipulation that Wade was.to have the privilege of retaining the price till the titles to him were perfected; it also appears that Percy instituted suit against the plaintiff as administrator of the succession of James R. Wimbisli, who had died iq the mean time, to compel the said administrator to complete the title, and the Court ordered the transfer of the title to bo made upon Percy paying him a certain sum, being the balance due by.said Percy to said vendor. Wade then came forward and offered to pay this sum to aid in perfecting the titles. He gave his note to Percy for the required amount, and Percy endorsed it and transferred it to plaintiff, and thereupon received the deed perfecting the title from the estate of James R. Wimbisli. The defendant Wade subsequently gave the draft sued on in lieu of the note making it payable to Percy, and Percy immediately endorsing it over to plaintiff.

The draft was protested for non-payment, and proper notice given to both Percy and Wade. Wo have carefully considered the evidence, and are of opinion that the district judge erred in dismissing plaintiff’s action as to Wade. We think he should be held liable as drawer of the draft. It is true in purchasing the land from Percy he reserved the privilege of retaining the price till his titles might be perfected ; and it is true that the plaintiff was aware of the defects in the title. But still it appears that in pursuance of an order of court, the plaintiff, as administrator of the succession of James R. Wimbisli, perfected the titles by a deed to Percy, the vendor of Wade, and accepted from Percy the note of Wade for the balance due said estate.

Wade subsequently topk up this note and gave his draft in lieu thereof, with a full knowledge of the titles and of the defects therein, if such existed. If he had the privilege of retaining the price till the titles were completed, we presume when he gave the draft sued on he considered his titles satisfactory. It matters not what defects thero may be in the titles, or what reservations he may have made in the deed from Percy, the defendant Wade voluntarily came forward and assumed the indebtedness of his vendor on the land by giving his note; he afterwards, with full knowledge of the condition of his titles, took up this note and drew the draft sued upon. That conditional obligation has been regularly converted into an unconditional one by proper service of the notice of dishonor upon the drawer, Wade, and we think he should be held liable.

The objection that the district judge erred in rejecting the application for trial by jury because the affidavit was made by Wade’s attorney instead of Wade, who was in the parish at the time, but absent from the Court House, is not well founded; the defendant Wade should have been at the Court House on the day fixed for the trial; he absented himself at his peril. The affidavit made by his counsel is not p compliance with the law. 9 An. 129 ; 16 La. 577.

It is therefore ordered that the judgment appealed from he affirmed as to the defendant Charles E. Percy and that it he avoided and annulled as to the defendant Joseph J. Wade; and it is now ordered that plaintiff recover judgment against him in solido with the defendant Percy; that the costs of this appeal he paid hy the defendant Wade and the costs of the lower court he paid hy the defendants in solido.


text:
    No. 430.
    William C. Lytle v. P. V. Whicher, et al.
    Payment of a promissory note cannot be judicially enforced where the consideration i» shown to be the price of a sale of slaves. 19 An. 234, 309,519.
    from the Seventh Judicial District Court, parish of West Feliciana. HeVea, J.

      Wiclcliffc <& JPaclcwood, for plaintiff and ap-pellee. Collins tfi healce, for defendants and appellants.
   Howe, J.

It appears hy the record in this case that the note sued on was given in part payment for certain slaves. In accordance, therefore, with the decisions of our predecessors, which have become the settled jurisprudence of the State, the judgment from which the defendants have appealed must he set aside.

Wainwright v. Bridge, 19 An. 234; Austin v. Sandel, 19 An. 309; Halley v. Hoeffner, 19 An. 519.

It is therefore ordered and adjudged that the judgment appealed from he avoided and reversed, and that there he judgment in favor of defendants with costs in hoth courts.


text:
    No. 2145.
    Hugh Brown, Administrator, v. William Sadler.
    Questions of fraud and the credibility of witnesses are peculiarly within the province of the jury, and their verdict will not be disturbed unless it is manifestly erroneous. 9 R. 360.
    from the Fifth Judicial District Court, parish of East Fe-liciana. Posey, J.

      Bowman & Delee and Cross & Hardee for plaintiff and appellant. John HeVea for defendant and appellee.
   Howe, J.

This case comes before this court for the third time. The facts are fully detailed in the decisions rendered hy our predecessors, 13 An. p. 205, and 16 An. p. 206. It will he seen hy a reference to the latter report that a judgment in favor of defendant was reversed and the cause remanded, with the task imposed on the defendant of sustaining his plea of payment hy other evidence thaii':<i the production of the notes with the name of Ann G-air thereon erased.” Upon the new trial .thus ordered, which was had before a jury, the defendant introduced upon this point, without objection on the part of the plaintiff, testimony of himself and of another witness to show that the notes sought to be enforced in this case were paid at the time of the sale to him and given np to Mm with the maker’s name erased, and that the money paid went into the hands of the administratrix, Mrs. Catharine Gair. The jury found a verdict in favor of defendant, and we do not feel authorized to disturb it. Questions of fraud and of the credibility of witnesses are peculiarly within the province of the jury of the vicinage, and their verdict- ought to stand unless manifestly erroneous. Sheldon v. New Orleans Canal Company, 9 Rob. 36.

It is therefore ordered and adjudged that the j udgment appealed from by plaintiff be affirmed with costs.


text:
    No. 2134.
    In the Matter of the Minors Mary M., William P. and C. B. Smith. J. W. Smith, Tutor.
    A third party taking an appeal from a judgment homologating a tutor’s account must make all the parties who have an interest in maintaining the judgment parties to the appeal, otherwise the appeal will be dismissed.
    from the Parish Court of the parish of West Feliciana, Filey, J.
    IF. D. Winter for appellant. Collins & Lealce for ap-
    pellees.
   Howell, J.

W. 'S. Peterkin, a third party, has appealed by petition from a judgment of the Parish Court of West Feliciana, homolo-gating the account^ filed by J- W. Smith, tutor, of his tutorship of his children, Mary M., Wm. P. and Courtland B. Smith, issue of his marriage with his deceased wife, Mrs. Rebecca G. Smith.

A motion to dismiss is based on the grounds:

First — That Collins & Leake and C. B. Collins, whose accounts were allowed by the judgment of homologation, and who have an interest in maintaining said judgment, have not been cited.

Second — That an appeal should not he allowed to third parties when other evidence than is included in the record is necessary.

The first ground is well taken; for if the judgment be reversed, the claims of Collins & Leake and of C. B. Collins may he opposed and rejected or reduced. The fact, as alleged, that they have been paid, does not necessarily conclude parties interested from contesting the correctness of the amounts so paid. They have an interest in maintaining the judgment as rendered. See succession of McCausland recently decided, also succession of Weigel.

Appeal dismissed at the costs of appellant.

Rehearing refused.


text:
    No. 1395.
    Ernest Morel, Testamentary Executor, v. L. Surgi et al.
    Where the legatee or his assignee has obtained possession of money and assets of the succession in violation of law, and the executor brings suit to recover the same for the benefit of the estate, the legatee cannot set up in defense that his possession was in payment of the legacy.
    A PPEAL from tlie Second District Court of New Orleans, Thomas, J. 1j.

      Henry C. Miller for defendant and appellant. L. Castora for plaintiff and appellee.
   Taliaferro, J.

The plaintiff in his representative capacity sues L. Surgi and another for the sum of twenty-five hundred dollars and for the recovery of sundry promissory notes, all of which, lie alleges, were taken out of Ms possession as executor, fraudulently by defendants, and by their use of false representations and charges to intimidate and overreach him.

There was no answer filed in the case and final judgment was rendered in. default in conformity with the prayer of the petition.

It seems that the plaintiff as executor of the estate of Rosaline Perche who died iu 1859, proceeded under his áppoiníment to sell a part of the property, to discharge the debts and pay the legacies — of which there were two — one to Jean Abelard and another to his sister Eugenie Satout, the amount given to each being $3,000. In May, 1860, he filed a provisional account, which was homologated. This account shows that only the sum of $118 34 remained to be applied in part payment of the legacies. In October, 1861, the legatees assigned their interest in the succession to Louis Surgi, one of the defendants in this case, .who from that time figures prominently in the litigation that- subsequently arose. Rules were' taken upon the executor for the production of his bank book, and to compel him to sell the remaining property of the succession. These rules seem to have been complied with. After the occupation of New Orleans by the Federal forces, provost marshal courts were established in the .city. Before one of these courts, presided over by Judge Bell, the defendant Surgi, in November, 1862, made an affidavit in which he purported to detail, at ■much length, the proceedings of the executor in his administration of the estate, charging him with resistance to his claims, with delay and chicanery, and concludes by saying that under all these circumstances affiant verily believes that Ernest Morel has embezzled and appropriated to his own use the money and assets or part of the money and assets of the aforesaid succession of Rosaline Perche, wife of H. Bistes, which is an offense provided for by our criminal laws.”

The plaintiff avers that through fear of an illegal arrest and being drawn into' court upon a groundless charge of being guilty of a criminal offense, he delivered to Surgi the entire assets of the estate, consisting of— .

Cash. $2,545 25

Mortgage notes of Planchará. -. ' 766 66 '

Notes of Freret. ■ 916 66

A note of $500 endorsed by Fortier. 500 00

$4,728 57

Surgi thereupon instituted suits upon the notes of Plancliard and Freret. They excepted to the proceedings against them on the ground that he was not the legal owner of the notes and could, not stand in judgment. The exceptions were sustained. In January, 1865, Surgi took a rule in the Second District Court against the executor to show cause why he should not he ordered to pay over the balance due on the legacies and to reimburse him the expenses incurred in prosecuting tho suits against debtors of the estate. The executor excepted, and no final action seems to have been taken on the rule.

On the eighth of February, 1865, the executor filed his final account, and on the twenty-fifth of that month it was homologated so far as it was not opposed. Several oppositions were filed; one by Surgi, another by Poutz, a creditor, and a third by Bistes, husband of the testatrix, claiming the marital portion. These oppositions were disposed of, and the account finally homologated on the thirtieth November following. By this judgment there was reserved to the executor all his rights against L. Surgi, one of the opponents, to compel him to refund any money he inay have received arising out of the succession of Mrs. Perche.

AVe see no error in tho judgment of the lower court. It is shown by the proceedings had upon the final account, that upon the opposition of Poutz, a mortgage creditor for $1740, with interest and costs, and on that of Bistes, the surviving husband, claiming the marital portion, the court sustained these claims and ordered the latter to be paid over all other claims eixeept those of creditors, and by preference and priority, over the claims of the legatees. The order homologating this account was rendered on the thirtieth of November, 1865, and as it appears, was never appealed from, and is therefore final. The pretense, that tho assets of the succession extorted by indirection from the executor, was a payment made.upon the legacies, can receive no sanction from this court.

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


text:
    No. 2093.
    Joseph Lallande v. Immer U. Ball.
    Where damages are claimed on a reconvcntional demand, the evidence must fix the amount ■with certainty and clearness.
    from the Seventh District Court, parish of West Feliciana. Miller, J.

      S. J. Powell, for plaintiff and appellant. Oollins & Lealce, for defendant and appellee.
   Howell, J.

This suit was before this court in March, 1868, and is reported in 20 A. 194, where the material facts are stated. This appeal is taken by plaintiff from a judgment allowing $1700 damages on the reconventional demand, as resulting from the purchase and erection of a saw mill, and the cost of lumber used in building necessary cabins on a plantation, for which the note sued on was gi ven in part payment. The. defendant lias asked that the amount which is credited on the judgment on the said note,'be increased to $2100.

Conceding defendant’s right to recover, under the pleadings herein, the damages allowed (which we do not consider definitively settled in the former opinion and decree of this court and upon which we express no opinion), the evidence does not entitle him to the sum fixed by the judgment nor to any particular sum. It is very clear that he is not entitled to the price paid for the saw mill, which the testimony shows was erected long after he was informed by some third person that the “ swamp tract ” was not included in his purchase, and which is still on his plantation. The fact that “ he has tried to dispose of it, but has found no sale,” does not prove that it hasno value. Nor should he be allowed the price paid for lumber used in building the cabins, for had he gotten it on the swamp tract as he expected, with the hands employed by him, it would have cost him something, and there is nothing in the record to show such cost, which should be deducted from the price or value of the lumber.

Such damages, if allowable, should be proven with some certainty.

It is therefore ordered that so much of the judgment appealed from as allows defendant seventeen hundred dollars damages on his recon - ventional demand, as set forth in said judgment, be reversed, and that said demand, as to the said specified damages, be dismissed.

It is further ordered that in all other particulars said judgment be affirmed, with costs in both courts.


text:
    No. 2095.
    State of Louisiana ex rel. Stanislaus Wrotnowski, v. B. F. Bryan.
    In a proceeding by mandamus, to recover possession of the books, papers and records of,an office which be claims, the relator must show that be has an interest in tbeir possession above five hundred dollars, to entitle him to an appeal from the judgment dismissing the rule.
    from Fifth District Court, Parish of East Baton Rouge, Posey, J.

      J. H. Stafford, for relator and appellant. A. S. Herron, for defendant and appellee.
   Wyly, J.

The relator has appealed from a judgment dismissing the mandamus sued out by him, claiming to be clerk of the District Court for the parish of East Baton Rouge, and demanding of the defendant possession of the clerk’s office, and all the books, papers and records belonging thereto.

The defendant has moved to dismiss the appeal because the case is not appealable, there being no allegation, and the-record not showing that the relator’s interest in the matter in dispute exceeds five hundred dollars.

We find no evidence in tlie record of tlie value of tlie relator’s interest in the books, papers and records of the clerk’s office; and are of opinion that this court has no jurisdiction in the case.

The motion is well taken. See the case of Sternberg v. Legarde, lately decided, and the authorities there cited.

It is therefore ordered that this appeal be dismissed at the relator’s costs.


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    No. 2058.
    In the matter of the Tutorship of the Minor, John G. Scott.
    A tutor is a competent witness to prove tlie correctness of Ids tutorship account. Acts of 1868, page 269.
    A tutor, in making up an account of his tutorship, when he has engaged in planting in partnership with another with the property under his control belonging to his ward, the plantation expenses must first be separated from the individual expenses, and after deducting them from the proceeds of the crop, the balance must be proportionately divided, and the individual expenses chargeable to the minor must be deducted from his portion.
    A PPEAL from the Parish Court of Tensas, Steele, J.

      Farrar- é Beeves, for tutor and appellant. Julius Aroni, for opponent.
   Howell, J.

John F. Goodrich, tutor of the minor, John G. Scott, filed an account of his administration, which contains only the proceeds of certain cotton sold in 1861, 1863, 1864 and 1866, from which he deducts certain expenses incurred in saving the said cotton from being burned, hauling, shipping, etc., and of the balance he allows the minor one-third, from which he deducts a hill of the private expenses of the minor and his slaves, leaving a balance in favor of the tutor. The said John G. Scott having just become of age, opposed the homologation of the account, alleging that his tutor had failed to account for certain specifically described movable property belonging to him, and taken charge of by said tutor; and that without authority of law the latter had formed an agricultural partnership between them, and worked the land of both with an equal number of slaves, stock, implements, etc., of each, with which a-much larger amount of cotton had been made than set out in the account, all of which makes his said tutor indebted to him in the sum of over $15,000, for which he asks judgment wdth interest and mortgage.

On the trial of the opposition, a hill of exception was taken to the competency of the tutor as a witness in his own behalf, on the ground that the law required written evidence to establish the correctness of a tutor’s account. The law of 1868, p. 269. does not make such requirement, but permits any one of proper understanding to be a witness of any covenant or fact whatever in civil matters, with the exception that a husband and wife shall not testify for or against each other, and it repeals all laws contrary to its provisions. The tutor was a competent witness; but we think the evidence in the record is so meagre and unsatisfactory, and the accounts filed so confused and imperfectly explained, that justice to both- parties requires the cause to he remande^ to' enable them to show how their accounts really stand. We do not think the general statement of the tutor, that “ items which are enumerated in said account, which go to make up the aggregate expenses of said $1942 82, sworn to as correct,” makes proof of the various and unusual items of said account of expenses for saving, rebaling, hauling and shipping the cotton. On the theory that the cotton was made by and belonged to a partnership, or the parties jointly, or adopted by both parties, the plantation expenses should be separated from the incidental expenses, and after deducting the former from the proceeds of the crop, the proceeds should be proportionately divided, and the individual or private personal expenses of the minor deducted from his portion. His individual property which passed into the control of the tutor, should be delivered to him or accounted for.

It is therefore ordered that the judgment appealed from be reversed, and the cause remanded for further proceedings according to law. The appellee to pay costs of appeal.


text:
    No. 2114.
    State of Louisiana v. James Redding.
    In a criminal case, not capital, ■whore a fine above three hundred dollars has not boon imposed, the appeal will bo dismissed for want of jurisdiction. Constitution, art. 14.
    from the Sixth Judicial District Court, Parish of Livingston. jEllis, J.

      Bolivar Bdwards, District Attorney, for the State. G. I. Bradley, for defendant and appellant.
   Howe, J.

In this case the defendant was prosecuted for larceny, found guilty by the jury “ of trespass,” and sentenced “ to pay a flue of twenty-five dollars and costs, or twenty-five days in the common jail of the parish,” and has .appealed. By article 74 of the Constitution, this court has jurisdiction of criminal cases on questions of law only, whenever the punishment of death or imprisonment at hard labor, or a fine exceeding three hundred dollars, is actually imposed.

The court having no jurisdiction, it is ordered and adjudged that the appeal be dismissed with costs.


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    No. 2120.
    Silvernagle & Co. v. Mrs. J. Ann Fluker.
    A general denial and plea to the merits admits the capacity of plaintiff.
    Where plaintiff claims in a representative capacity created hy law, such as curator or executor, the want of authority must he specially pleaded in limine litis, in order to put the party on the proof of his capacity.
    A verbal promise to pay a promissory note will interrupt prescription.
    from Fifth District Court, Parish of East Feliciana. Bosey, J.

      Hernán & Lyons, for plaintiffs and appellees. Bace, Foster dé B. T, Merrick and Cross $ Hardee, for defendant and appellant.
   Wyly, J.

This suit is based upon the foliowing note, to wit:

“ $1636 50. Basteop, La., August 9, 1861.

“ Oil the first day of January next, 1862, I promise to pay Silvernagle & Co. or bearer, sixteen hundred and thirty-six and fifty one-hundredths dollars, for value received, with eight per cent, interest from the first day of January last until paid.

(Signed) “ J. ANN ELUKER.

“per B. K. Fluker.”

The petition recites that Benjamin Silvernagle and Edward Starsney, who appear as plaintiffs, are the surviving members of the late commercial firm of Silvernagle & Co., composed of themselves and Wolf Silvernagle, deceased; the widow of Wolf Silvernagle, Mrs. Teresa Silvernagle, also appears as plaintiff in her capacity of tutrix of Albert Silvernagle, minor heir and sole heir of Wolf Silvernagle, deceased. They claim to represent the late firm of Silvernagle & Co., and ask for judgment on the note.

The defendant pleaded the general denial; specially denied “ that the plaintiff is administrator, or that the heirship exists, as stated in the petition.” She admitted that her son, B. K. Fluker, resided on her plantation, and acted .as manager in all matters appertaining to the same; that he was authorized to order supplies for the plantation, to pay taxes, overseer’s wages, and other incidental expenses, and to draw orders on her merchant for the same, but that he had no authority beyond this to bind her by making notes in her name. She admitted that since the death of her son, B. K. Fluker, she has paid such orders, drafts, etc., executed by him within the scope of his authority. She specially denied that she was in any manner indebted to plaintiffs at the time the note sued on was executed. She subsequently amended her answer, and pleaded the prescription of five years in bar of plaintiffs’ action.

There was judgment in favor of plaintiffs, and the defendant has appealed.

The evidence is sufficient to satisfy us that the note was signed with Mrs. Fluker’s authority, or at least she ratified the act of her agent, B. K. Fluker, and promised to pay the note sued on.

The defendant seems to abandon this ppint, it not being urged in the brief.

Tiie defense, as presented in the brief, is first a denial of plaintiffs’ representative capacity; second, the plea of prescription of five years.

First — The defendant contends that the plaintiff eannot -recover without proof of the representative capacity asserted in the petition when that fact is specially set at issue. This raises the question, are there proper plaintiffs to this suit 1 The note is in favor of Silvernagle & Co. Are all the partners of that firm made party plaintiffs herein ? We think so. The two surviving partners appear as plaintiffs, and they join with them the widow of the deceased partner, Wolf Silver-nagle, who appears as tutrix and legal representative of his succession. It is true no letters of tutorship or other evidence of her fiduciary capacity was adduced; but the defendant failed to put her capacity at issue by dilatory exception before the joinder of issue. 12 L. 618.

The capacity of Mrs. Silvernagle was virtually admittéd by defendant’s general denial and pleadingto the merits. 19.L. 404. In the case of Parker et al., executors v. Moore et al., 2 A 1017, this court said “ the rule is well settled that when the plaintiff claims in a representative capacity created by law, such as curator or executor, the want of authority to maintain the action must be specially pleaded in limine litis, in order to put the party on the proof of his capacity. The answer of the defendants wap an admission of the capacity of the plaintiffs which precluded them from contesting it at any subsequent stage of the cause.” We have, then, the two surviving partners as plaintiffs, and also the widow representing the succession of the deceased partner in her capacity of tutrix. We think this complies with the law which requires, when the obligation is in favor of a firm, that all the partners must join in the action to enforce its performance.” 4 A. 179; 3 L. 357 ; 7 L. 196.

The surviving partners had the right to institute this suit by joining with them Mrs. Silvernagle, the tutrix and legal representative of the deceased partner. 9 E. 150.

In the case of Cutler v. Cochran, 13 L. 485, this court said: “On the dissolution of a partnership by the death of a partner, the survivor cannot sue without joining the representatives of the deceased one;”

We do not think there is want of proper plaintiff's to this suit, because there is no proof in the record to sustain the averment that Benjamin Silvernagle and Edward Starsney, the two surviving partners, are the duly appointed liquidators of the partnership effects. If they had sued alone without joining the legal representative of the deceased partner, they would have been compelled to establish their authority to sue on the note. Proof of that allegation is quite immaterial where the surviving partners and the representative of the deceased partner have joined in the suit. 9 E. 150.

Sefiond — The plea of prescription is not well taken. There is sufficient evidence in the record to satisfy us that prescription was interrupted before five years had elapsed from the maturity of the note.

The witness Brigham testifies that he called to see the defendant in relation to this claim; “that she recognized the note as just and owing by her, and also recognized the authority of B. K. Fluker to contract the debt.” He also states that “she said she could not pay it then, and asked that we would give, her all the indulgence jn our power, .promising to pay the same as soon'as as she could. This was some time during the year 1866.” * * * *' * * * •*

The testimony of this witness is clear and unambiguous. The defendant recognized the note and promised to pay it, before the prescription of five years accrued.

It is therefore ordered that the judgment appealed from be affirmed with costs.

Rehearing refused.


text:
    No. 2098.
    Mrs. M. A. Roddy, Administratrix, v. T. C. S. Robertson and H. Edwards.
    Where the plea of prescription is filed for the first time in the appellate court and the record discloses a state of iacts which, if true, would defeat the plea, the case will he remanded for the purpose of admitting pro&f of the interruption of prescription.
    PPEAL from the Sixth District Court, parish of St. Helena. .EUis, J.

      Jas. A. Williams, for appellant. Jiussell <& Wright, for ap-pellees.
   Wyly, J.

Defendants have appealed from a judgment by default made final against them in this suit, which is based upon their promissory note dated January 3, 1855, and due January 3, 1857. This suit was instituted in September, 1866.

They plead in this court the prescription of five years in lieu of plaintiff’s action.

There is no evidence in the record that the defendants ever renounced prescription, nor does it appear that the same was ever interrupted by any act on their part.

It is true there appears an endorsement of a credit on the note signed by W. H. Day, on the fourteenth of January, 1860, and another credit endorsed thereon October 2, 1865, which is not signed by any one. We do not think that these endorsements of credits which are not signed by the defendants establish an interruption of prescription.

As' the judgment allows these credits, which if fully established, would interrupt prescription, and as the plea of prescription is set up for the first time in this court, we think that justice requires that this case should be remanded.

It is therefore ordered that the judgment appealed from be avoided and annulled, and it is now ordered that this case be remanded for new trial, and that appellee pay costs of this appeal.


text:
    No. 2084.
    Frederick Funke, Administrator, v. James McVay, Tutor.
    An order for a suspensive and devolutive appeal may be granted by the judge a quo, separately, or both, in one order, and the appellant may in his discretion avail himself of the benefit of either order by giving the required bond 'within the time prescribed by law.
    Where a promissory note is prescribed on its face and no interruption is shown, the plea will bo maintained.
    xx PPEAL from. Fifth. District Court, parish of East Baton Rouge, JPosey, J.

      Kavrot & Famon, for appellee. K. W. Knickerbocker and A. B. Herron, for appellant.
   Wyly, J.

Plaintiff has moved to dismiss this appeal:

1. Because the district judge having granted a suspensive appeal on the sixteenth of November, 1868, was without authority to grant this devolutive appeal on the ninth day of December, thereafter.

2. Because the order for devolutive appeal does not state when and where the appeal is returnable.

Both orders for appeal were granted in open court within a few days after the judgment was rendered. The order for suspensive appeal was not acted upon by the defendant, no bond having been given in conformity therewith.

The mere existence of this order did not, in our opinion, deprive the judge, a quo, of authority to grant an order for a devolutive appeal. A suspensive and devolutivo appeal may be granted in separate orders as well as in the same order; and the party obtaining the orders may perfect the appeal by giving the bond required for a suspensive or a de-volutive appeal, just as he pleases.

It was the duty of the District Judge to fix tho return day, C. P. 574; but it does not appear that this defect in the order is imputable to appellant. He has brought up the transcript and filed it at the first term fixed for trial of cases from that district, after the rendition of the judgment.

The sixteenth section of the act approved March 13,1866, provides, “that no appeal to the Supreme Court shall be dismissed on account of any defect, error or irregularity of the petition, order of appeal, or in the certificate of the clerk or judge, or in the citation of appeal or service thereof, or because the appeal was not made returnable at the next term of the Supreme Court, whenever it shall not appear that such defect, error, or irregularity is imputed to appellant.” * * * Acts of 1866, p. 154.

The motion to dismiss this appeal is therefore overruled.

* The defendant has appealed from a judgment rendered against him, which is based upon a promissory note due January 1,1862. The defense is the plea of prescription of five years. Citation was served on the fifth of January, 1867, more than five years after the maturity of the note. There is no evidence of interruption or renunciation of prescription. The plea was well taken. C. C. 3505.

It is therefore ordered that the judgment appealed from be avoided and reversed, and it is now ordered that there be judgment in favor of defendant, dismissing this suit at plaintiff’s costs.


author: Howell, J,

text:
    No. 2129.
    S. Gosselin v. A. B. Womack and D. W. Thompson.
    An action will not lie to enforce a contract, tho consideration of which is shown to be the price of the sale of slaves, nor will an action lie to compel the vendor to return the portion of the price paid before emancipation. Wainwright v. Bridges, 19 An. 234.
    from the Sixth Judicial District Court, parish of St. Helena, Mils, J.

      Wilson, for plaintiff and appellee. Pipián & Hunter, for defendants and appellants.
   Howell, J,

This suit is brought on a written obligation, dated December 2, 1605, to pay two thousand four hundred pounds of ginned cotton or $960, with eight per cent, interest. The defense is, that said instrument was given in part payment of certain slaves sold on third of March, 1865, by plaintiff to the defendant, A. B. Womack, who claims in rccouventiou tho return of two thousand five hundred and forty-seven pounds of cotton given by him in part execution of said contract of sale, or its market value.

The cause was twice tried before a jury, who found a verdict each time against both parties, and the defendant Womack has appealed from a judgment on the second verdict. He contends that under the authority of the case of Finn v. Carr, 19 A. 106, lie is entitled to recover back the portion of the price paid on a void contract.

We consider that case overruled by the subsequent case of Wainwright v. Bridges, 19 A. 234, and the now well established jurisprudence of this State, under which neither party to such contracts cau successfully invoke the aid of the courts. The fact that the transaction occurred after emancipation can avail the vendee no more than the vendor. Both are equally implicated in the wrong.

Judgment affirmed with costs.


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    No. 2090.
    In the matter of Christophe Docteur — Mathias Schumert, Assignee v. Mrs. M. A. Tamboury and her Husband.
    An appeal from a judgment annulling a Beizuro made under a writ of fi. fa. will be dismissed where the record does not show that the value of the rights seized is above Uve hundred dollars.
    from the Second District Court of New Orleans, JDuviyneaud, J.

      John S. Tulhj, for assignee and appellant. Gyprien JDufour, for appellees.
   Taliaferro, J.

This case is before us upon an appeal from a judgment annulling a seizure under a writ of fi. fia. We find nothing in the record showing the value of the rights seized, nor anything authorizing this court to take jurisdiction of the matter.

• It is therefore ordered, adjudged and decreed that this appeal be dismissed at appellant’s costs.


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    No. 1659.
    William Pratt v. L. R. Draughon.
    where the evidence leaves it in doubt -whether the parties engaged in cotton transactions du_ ring the late war did not fall within the prohibitions of trade and intercourse placed on citizens by the United States, the case will be remanded to give both parties an opportunity of offering evidence on the point.
    from, tlie Sixth District Court, parish of St. Helena. JEllis, J.

      J. B. Wilson, for plaintiff and appellee. T. O. W. Bilis, for defendant and appellant.
   Howell, J.

This is an action for the delivery or the value of seven hales of cotton of the weight of three thousand three hundred and twenty-five pounds, balance of fifteen bales alleged to have been deposited on twenty-ninth December, 1863, by plaintiff, a resident of the parish of East Baton Kouge, with defendant, a resident of the parish of St. Helena, and also for a balance of an account for goods and merchandise sold by plaintiff to defendant from November 19,,1863 to January 28,1865. The defense is a general and special denial, and the allegation that as agent of plaintiff, the defendant was engaged to purchase for and deliver cotton to the former at his residence, who furnished the funds and was to allow defendant one-half the' net profits as well as pay him for his services, which were worth $600, and the half profits of the cotton already sold amount to $551 95, which, with other items for services, he claims in reconvention.

Judgment was rendered in favor of plaintiff for seven bales weighing two thousand eight hundred and fifty pounds, or their value, fixed at $855, and for $112 75, with interest from twenty-eighth January, 1865, recognizing and allowing defendant’s right to one-half of the profits, if any, on the eight bales delivered and rejecting-the reconventional demand, from which defendant appealed.

Our attention is called to the bill of exception taken to the refusal of the District Judge to order the plaintiff to answer an interrogatory, as to whether he had during the war taken an oath of allegiance to the United States, the object being to prove that he was a citizen of the United States, then at war with the Confederate States, of which defendant was at the time a citizen and had been a soldier. The court did not err. The fact was totally irrelevant to the issue, and the object one which a court could not entertain as between citizens.

But the evidence in the record has raised a very strong presumption that the intercourse and dealings between the parties were prohibited by acts of Congress and proclamations of the President of the United States, and we feel it our duty to reverse the judgment and remand the cause, to enable the parties to remove any doubt on this point, and to establish the weight and value of the cotton, if plaintiff is entitled to it, and to settle the compensation of defendant, if any, under the pleadings.

It is therefore ordered that the judgment appealed from be reversed and the cause remanded to be proceeded in according to law. Plaintiff to pay costs of appeal.


text:
    No. 2097.
    Susan V. Harrell, Tutrix, v. Gideon White.
    A verbal promise to pay a promissory note before prescription has accrued, not denied when interrogated on facts and articles, will defeat the plea of prescription.
    from the Fifth Judicial District Court, parish of East Feli-ciana. Posey, J.

      Hernán & Lyons, for plaintiff and appellee. F. Hardesty, for defendant and appellant.
   Howe, J.

The defendant has appealed from a judgment upon a promissory note due January 5, 1861, founded on citation served September 16, 1867. The prescription of five years was pleaded.

It was proved on behalf of plaintiff that in October or November, 1865, the defendant verbally acknowledged the validity of the note and promised to pay it. Prescription, not having then accrued, could be and was thus interrupted. There is no question of renunciation in the case.

The defendant being interrogated on facts and articles as to his acknowledgment of the debt, replied that he had no recollection of ever having promised to pay the same,” but he did not deny the acknowledgment.

It is therefore ordered and adjudged that the judgment appealed from be affirmed with costs.


text:
    No. 2146.
    H. B. Chase v. Eliza McCay, et al.
    A donation wlücii acknowledges an indebtedness to the heir, but declares that it is given as an extra portion and not to be accounted for at the partition of the donor’s estate, is presumed to be fraudulent. C. 0.1975.
    A judgment creditor can have a donation intervivos made by his debtor in fraud of his rights annulled, and have the property donated made liable for his debt, provided the donor fail to show other immovable property, unimeumbered, to an amount sufficient to pay the debt.
    from the Fifth District Court, parish of East Feliciaua, Posey, J.

      Kerncmi & Lyons, for plaintiff and appellee. NoYea & Hunter, for defendants and appellants.
   Howell, J.

This is an action to annul a donation of certain immovable property in the town of Clinton, Louisiana, made by a mother to her daughter in consideration of her affection for and indebtedness to the donee, and to subject said property to the judicial mortgage of plaintiff.

The evidence shows that plaintiff’s claim existed prior to the date of the act of donation, and that upon issuing an execution on his judgment, obtained shortly after said date, no property, in the name of the judgment debtor, could be found and the execution was returned unsatisfied. We consider the act in question to be a gratuitous donation, notwithstanding the recital of indebtedness therein, as it does not1 profess to extinguish any part thereof hut declares the donation to he an extra portion and not to he accounted for at the partition of the donor’s estate.

As such it is presumed to he fraudulent, C. C. 1975, and it was incumbent on the defendants and appellants to show that the donor had sufficient property, at least, to satisfy plaintiff’s demand.

Judgment affirmed.


text:
    No. 2088.
    G. Kleinpeter, Administrator, v. A. Harrigan, et al.
    A transfer, In writing, of real estate is null aB a sale if the act does not show that a pnce has been fixed and agreed, upon. The price is essential to the contract of sale. C. C. 1757*
    A fixed price is of the essence of the contract of dation en payment. 10 L. 151.
    A ]\. PPEAL from the Fifth District Court parish of East Baton Kouge, Posey, J.

      JPuqua <& Calliham, for appellant. M. W. Knickerbocker, for appellee.
   Howell, J.

Plaintiff, as Administrator of the succession of John Kleinpeter, deceased, instituted a possessory action on the fifteenth of January, 1868, against the defendants to he quieted in the possession of a certain tract of land in East Baton Kouge, containing about two hundred and fifty acres upon which he alleges they had entered about the first January inst., 1868, and commenced cutting timber and erecting buildings, and he prayed for an injunction and damages. The defense set up title in Nancy Trim, one of the defendants, to fifty acres of land on the rear of said tract, by purchase under private signature on the thirty-first of December, 1866, from said John Kleinpeter, father of plaintiff, for the price of five hundred dollars, agreed on between the parties and due her for services, but which was omitted through error from said act of sale, and she prayed that the injunctiou be dissolved, and she be deemed the owner of said land.

By consent, the suit was tried as a petitory action, and judgment having been rendered in favor of defendant, Nancy Trim, the plaintiff appealed.

The instrument in question is in the following words :

Know all men, that I have this day sold to Nancy Trim, my colored • servant, and a good and faithful one she has proved to me. I gave her her freedom about ten years ago, yet she holds fast, and watches and cares for me in the most tender manner, and for her good conduct, I have this day sold her fifty acres of land in the rear of my plantation. .Said land is bounded on the northeast by Mr. McIntosh’s land, on the east by Mrs. Smith’s farm, and on the northwest by Mr. Edmonston’s farm. Said land is sold to her as a recompense, as a payment for her services to me, as I have paid her nothing for a number of years past. In witness whereof, I have set my hand and seal this thirty-first day of December, in the year of our Lord one thousand eight hundred and sixty-sis.

his

(Signed) “JOHN M KLEINPETER. mark.

“ Witnesses : A. S. Ancoin, A. W. Fortune.”

On the sixth of January, 18Q7, it was proven by said witnesses before and recorded by the parish Recorder. It is contended that this is not a sale, for want of a price.

“Three circumstances concur to the perfection of the contract, to wit: the thing sold, the price and the consent. The price of the sale' must be certain; that is to say,.fixed and determined by the parties.

It ought to consist of a sum of money, otherwise it would be considered as an exchange.

“ The price, however, may be left to the arbitration of a third person; but if such person cannot, or be unwilling to make the estimation, there exists no sale.” . C. C. arts. 2414, 2439.

“ A juice is essential to a contract of sale; if there be, none, it is either no contract, or if the consideration be other property, it is an exchange.” C. C. 1757.

The only reference in the act to a consideration is “for her good conduct I have this day sold,” and “ said land is sold to hel-as a recompense, as a payment for her services to me, as I have paid her nothing for a number of years past.” Harrigan, the only1 witness who testifies to the value of the services, says he thinks from what he saw they wore worth from .one hundred and fifty to two hundred dollars a year. lie was on the place something; over a year before the death of John Kleinpeter, and was fre-. quently there from the fall of 1861, to May, 1865, previous. His testimony docs not fix a price as agreed upon, or determined by the-parties. The court would have to fix the price by assuming the time for which the services were unpaid, and adopting an alternative or- un-. determinate sum for their value. There is nothing from which we may safely infer that a price was agreed upon. The case of Hellnin v. Minor, 12 An. 124, is not a parallel one. There the act was made to conform to the instructions of the Department at Washington, where it was to produce its principal effect, and the court inferred' from the lan-' guago used “ for value received,” that the price was agreed upon and . paid, or its equivalent given in exchange. Hero the language used does not warrant such inference. No price nor value is given to the land or services.

The act, therefore, is not one of sale. Nor is it a elation en payment, in which a fixed price is also of the essence of the contract. C. C. 2625, £629; 10 L. 151. And, besides, no attempt at obtaining possession seems to have been made by the defendant for twelve months or more after the date of the act, and it appears that during that time the whole plantation was in the possession of administrator. The registry of the act seems to have been made after the death of John Kleinpeter, the alleged vendor, and cannot have the effect against his succession as a public act executed by him, as to delivery, another essential in a contract of dation en payment. It is not pretended that it is an exchange or donation intervivos.

We must conclude that the act before us is evidence of no contract known to our law.

It is therefore ordered that the judgment appealed from be reversed, and that plaintiff, as administrator of the succession of John Klein-peter, deceased, be decreed to be the owner of the tract of fifty acres of land described in the answer of and claimed by defendant, Nancy Trim, with costs in both courts.


text:
    No. 2126.
    J. G. D’Armand v. The Sheriff, et als.

    A third party cannot hold personal property against a seizing creditor if lie has permitted the property purchased to remain, in the possession of the seized debtor.
    ■Where personal property has been sold as described in a written notarial act, and the purchaser has a written order from the vendor to take possession, such order must identify the property conveyed in order to constitute a delivery.
    PPEAL from the Fifth District Court, parish of East Feliciana. Posey, J.

      Kcrnan & Lyons, for plaintiff and appellee. L. M. Pip-Mn and 8. K. Hunter, for defendants and appellants.
   Howell, J.

By virtue of several writs of fi. fa. against O. W. Fluker, the Sheriff of the parish of East Feliciana, seized on the first of February, 1867, six mules, two horses, one four mule wagon and harness, and one family carriage and harness, as the property and in the possession of said Fluker, and appointed him custodian1 thereof. On the twenty-seventh of the same month, J. G. D’Armand, the brother-in-law of Fluker, enjoined the sale of said property, claiming to be owner thereof by an authentic act of sale on the fourth of January, proceeding from Fluker to himself.

The defense is that said sale is simulated and made by said Fluker to defraud the creditors of said Fluker, who is insolvent.

The case was tried before a jury, who found a verdict in favor of the plaintiff, and from a judgment thereon, after a fruitless attempt to obtain a new trial, the defendants have appealed.

Admitting that the contract of sale was real and the price actually paid, there was no delivery before the seizure. The sale was made in the town of Clinton, of all the judgment debtor’s property, and which was then on the Pond place,” occupied by him and his family. The delivery is claimed to have been effected by the vendor handing to his wife, on his return home that day, the following instrument:

Clinton, La., January 4, 1867.

(i

“ Mrs. E. J. Fluker is hereby authorized to take in charge the mules, forage, and plantation implements, and use for the purpose of making a crop.

“ J. G. D’ARMAND.”

This does not identify the property as described in the notarial act of sale, which consisted of a carriage and harness, 400 bushels of corn, 6000 pounds of fodder, 3000 pounds of hay, ten cows and calves, three head dry cattle, ten head of hogs, six mules, two horses, one wagon, one lot of gear, one lot of plows, one lot of harness and five-head of sheep, at specific prices, amounting in the aggregate to $2120. Nor does it show that the property seized was the property which the wife was authorized to take in charge, even conceding, which we do not propose to do, that the wife, not separate in property, could thus receive the delivery for a third person of the property sold by her husband.

It is therefore ordered that the judgment appealed from be reversed and that there be judgment in favor of the defendants, dissolving the injunction herein, and condemning plaintiff and his surety to pay defendants one hundred and fifty dollars damages and costs in both courts.

Eehearing refused.


text:
    No. 2101.
    Julius Arenstein v. E. J. Weber, Sheriff, and Theodore Briere.
    A District C urt is competent to issue an injunction against a seizure made by the Sheriff under a fi. fa. or order of sale issued from another parish of the State, and to try the issues raised by the injunction. 6 An. 64ij 10 An. 110.
    The question of simulation does not arise in a suit by injunction between the seizing creditor and a third opponent who claims the property, unless the seizing creditor shows that he owns or has sold it.
    from the Seventh Judicial District Court, parish of West Feliciana. Miller, J.

      Wieklijfe eft Fisher, for appellee, Collins eft Leake, for appellants.
   Howe, J.

The plaintiff enjoined the sale of certain merchandise, of which ho claimed to be owner, and which had been seized by the defendant, Weber, Sheriff of West Feliciana, under a. writ of fie,rifadas, issued out of the Sixth District Court of New Orleans in the case of Theodore Briere v. Joseph Arenstein.

The defendants appeared and moved to dissolve the injunction on the grounds, that the court had no jurisdiction over the writ enjoined, the judgment having been rendered in the Sixth District Court of New Orleans; that no manifest injury would or could arise.by the court, refusing to entertain jurisdiction, that the affidavit was insufficient, and that the bond was a nullity for want. of United States internal revenue stamps. The court refused to dissolve the injunction, and, as we think, correctly.

The affidavit appears to be in form, and no stamps are by law required on injunction bonds. As to the power of the court to enjoin a writ issuing from the parish of Orleans, the question seems to have heen settled in the affirmative hy a series of decisions extending over a period of about forty years. 8 M. 61; 4 U. S. 388; 2 A. 323; Id. 492; 4 A. 84; 5 A. 644; 16 A. 110.

The defendants answered hy a general denial, a special denial that the goods seized were the property of plaintiff, and an averment that if any sale of the goods was ever made hy Joseph to Julius Arenstein it was simulated and fraudulent, and unaccompanied hy delivery. The case having heen tried upon its merits, judgment was rendered in favor of plaintiff, perpetuating the injunction with fifty dollars damages.

The plaintiff established his property in the goods, and as it does not appear that Joseph Arenstein ever owned or sold them the question of simulation is not in the case. We see no reason to disturb the judgment.

' It is therefofe ordered and adjudged that the judgment appealed from he affirmed with costs.

Rehearing refused.


text:
    No. 1138.
    M. Friedmann & Co. v. E. M. Houghton and G. Ingram.
    In a suit on a promissory note which expresses on it# face “ for value reoeived ” the burden of showing want or failure oí consideration falls on the defendant.
    Damages will be adjudged against the appellant for frivolous appeal when the record shows . no grounds for a reversal of the judgment and it is manifest the appeal was taken for delay.
    from the Fifth District Court of New Orleans. Leaumont, J.

      T. A. BarileUe, for appellants, J. M. JDirrhammer, for appellees.
   Taliaferro, J.

The plaintiffs sue on a promissory note for the sum of $1635, with legal interest from the fourteenth June, 1866. The note was drawn hy Houghton to the order of Ingraham and hy him indorsed, and expresses on its face that it was for value received. The defense is want of consideration. Judgment was rendered in solido against the defendants as prayed for, and they have appealed.

There is no error in the judgment. It was for defendants to show want of consideration. This they have not offered to do, no evidence whatever haying heen introduced fry them. 1 An. 325.

It is therefore ordered, adjudged and decreed that the judgment of the lower court he affirmed with costs. It is further Ordered that the plaintiff recover from the defendants ten per cent, on the amount of the judgment as damages for a frivolous appeal.

Rehearing refused.


text:
    No. 1983.
    State of Louisiana v. Frank King.
    A State tax collector is competent to sue for and recovor in the name of the State any tax or license due by a tax payer.
    •The act of the Legislature of 1805 imposing a license tax on attorneys at law is equal and uniform on all persons engaged in the practice‘of the profession, and is therefore not in conflict with article 124 of the Constitution of 1SG4; nor-with article 118 of the Constitution of 1868. The State, having authorized the issuing cf a license to a party to practice law, is not thereby precluded from taxing such party annually for pursuing the profession within the State
    from First Justice’s Court, parish of Orleans. Sadler, J.
    JT. G. Dibble, for plaintiff, Iñng & Labait, for defendant.
   Wyly, J.

The .State Tax Collector has instituted this suit to recover of the defendant the sum of fifty dollars claimed as his license for practicing law for the year 186 i. -

There was judgment in favor of the plaintiff, and the defendant has appealed. . The defendant basig;lü.e.defense upon the following grounds in his peremptory exception :

First — Because this action has been instituted by the State Tax Collector who is without authority in law to do so, the Attorney General and the District Attorney being the only persons authorized to institute suits in the name of the State.

Second — Because there is no. law of the State of Louisiana imposing a tax or license on defendant’s occupation, the act approved fourth of April, 1865, being contrary to article 124 of the Constitution of 1864, and article 118 of the Constitution of 1868, and therefore null and void.

Third — Because.-attorneys at law are licensed by-"the courts under a general law of the State and can-have no restrictions imposed upon the exercise of their profession except as provided by law for some violation of. professional duty. That as attorney at law ho has a vested right in his profession, and the license originally granted to him is evidence of it; that this right cannot be divested' except by duo process of law, and any attempt by fbe' State to impose a license or onerous condition upon him for pursuing his pr< fession is contrary to the constitution of the. United States and of this State.

Defendant further pleads in reconvention the sum of' fifty dollars, which he alleges the State illegally and unconstitutionally collected from Mm for the year 1867, for an alleged license for practicing Ins profession that year.

There is no contest as to facts, the defendant being admitted to be a-practicing attorney of this State who has refused to pay his license for 1868.

The constitutional' and legal questions presented by the defendant are neither new nor difficult of solution. They have all been investigated heretofore by this, court, aiid we regard .the jurisprudence of the State well settled on the points presented in this ease.

First — The first ground of exception, that the tax collector cannot sue in the name of the State is not tenable. In the case of the State through Thomas Askew, State Tax Collector, v. the Southern Steamship Company, 13 A. 497, this court said: It appears to us that the right to collect the taxes presupposes a right to stand in judgment in suits of injunction, and oven to institute an action in the name of the State wherever the taxes cannot be otherwise collected. It is true that the law has indicated a more summary proceeding thiin suit for the collection of the taxes; still as the sheriff is charged with their collection, for which he is compelled to give bond, we can see no-sufficient reason why he should not be permitted to use the name of his principal in a direct action, instead of seizing property, if it is evident that the seizure will occasion an injunction or necessary delay. It does not lié in the mouth of a defendant to question the right to sue, when he admits the propriety of the same by the issue he tenders, and a denial of the State to recover.’'

Second — The second ground of exception, that there is no law authorizing the collection of the license claimed of defendant, the act ap-‘ proved fourth April, 18G5, being contrary to act 124 of the Constitution of 1864 and article 118 of the Constitution of 1868, is also untenable. We think the sixth section of the act approved fourth April, 1865, does impose a license upon defendant’s occupation, and that in doing so it does not violate article 124 of the Constitution of 1864, and article 118 of the Constitution of 1868. We had occasion to review this i>oint fully in the case of the State of Louisiana v. J. Volkman, lately derided, and for the reasons therein assigned we are of opinion that the act imposing the license upon defendant’s profession or pursuit is not unconstitutional. The license is equal and uniform-upou all persons pursuing the occupation of attorney at law.

Third — The, third ground of exception, that-the defendant should not pay a tax or license for pursuing the occupation of attorney at law because he is licensed by tlie courts of the- State .to practice, and because it divests his vested rights, etc., is also invalid.

This point has been frequently determined by this court adversely to the defendant, and is no longer an -open question. In the case of the State v. Rufus Waples, 12 A. 243 this court said’ “The argument that the permission or license to practice law is a contract between the State and the attorney at law which shields him from taxation, and which cannot ■•be regulated in any manner during his lifetime by the Legislature, merits no serious reply.”

The rcconventional demand set up by the defendant for the-amount of his license paid in 1867 does-not merit a discussion.

It is therefore ordered that the judgment appealed from be affirmed with costs.


author: Ludeling, C. J.

text:
    No. 2044.
    S. O. Nelson & Co. v. the Heirs of John J. Scott.
    "Where the certificate of the Clerk to the record of appeal is in due form and the amount of the appeal bond is sufficient to cover costs, the appeal will not bo dismissed on motion of the appellee.
    The plea of prescription may be made in the Supremo Court, and when the record shows that the obligation sued upon is prescribed the plea will be maintained.

      lx. PPEAL from the Thirteenth District' Court, parish of Tensas. Sough, J.

      Mayo & Sjpencer, for plaintiffs and appellees, heaeh & hewis, for defendants and appellants.
   Ludeling, C. J.

The appellees have moved to dismiss the appeal on the grounds that the record does not contain any note of evidence, statement of facts, hill of exceptions, nor assignment of errors of law on the face of the papers. That the record docs not contain all the evidence adduced on the trial, and that the appeal hond is not such as the law requires, being in favor of the clerk of the court and the appellees.

The hond is for a devolutive appeal to secure the payment of costs. Having been made in favor of the clerk and appellees, we cannot conceive why the appellees should complain. The costs are fully secured. The addition of the names of the appellees was surplusage.

The certificate of the clerk is in due form, and although our mandate was issued to that officer at the instance of the appellees to cause him to amend his certificate so as to make it conform to the facts, he reiterated in his answer that his certificate was true and correct, and that he could not truthfully amend it. Besides, the plea of prescription has been filed in this court. The motion to dismiss is overruled. See Louisiana State Bank v. Cammack.

The appellants applied for an appeal by petition, in which they ' allege that they desired to appeal from the judgment against them in order to plead the prescription of five years in this court.

The plea was filed in this court and application'lias been made to have the case remanded to he tried on that issue.

The note sued on was due and exigible on the fifteenth February, 1861; the citations were all served on the defendants more than five years thereafter. The plea of prescription must he sustained. Smith v. Stewart et al., 21 An. p. 67.

It is therefore ordered, adjudged and decreed that the judgment of the District Court he avoided and reversed. It is further ordered that there he judgment in favor of the defendants, and that the plaintiffs pay the costs in both courts.


text:
    No. 2050.
    Britton & Koontz v. John Janney, Sheriff, et al.
    A recital in an act of mortgage that a previous mortgage had "been inscribed against the same property-will not operate a legal reinscription of the former mortgage; nor will the recital of the former mortgage in the certificate malee the latter a party to the former act, or operate as a further notico than that already given by the first inscription.
    The fact de non alienando contained in an act of mortgage does not dispense the mortgage from the necessity of inscription in the mortgage office, and reinscription within ten years in order to preserve and give validity to the mortgage rights.
    from the Thirteenth District Court, parish of Concordia. Sough, J.

      Mayo tfi Spencer, for plaintiffs and appellants, S. B. Shaw, for defendants and áppellees.
   Wyly, J.

This is a contest between mortgage creditors for the proceeds of the sale of a plantation in the parish of Concordia.

On tenth May, 1856, A. T. Welch executed the mortgage upon which plaintiffs base their claim. On the ninth' February, 1859, he made another mortgage bearing on the samé property in favor of the defendant, Mrs. Mary E. Shaw. On the seventeenth September, 1867, Mrs. Shaw applied to the recorder to erase-the- mortgage of plaintiffs because the same had not been reinscribed within ten years. Plaintiffs enjoined the recorder from making the erasure. This injunction was dissolved by the District Court, and,. on appeal, by this court, and the recorder was required to erase plaintiffs’. mortgage, which he did.

Mrs. Shaw then proceeded to foreclose her mortgage, when plaintiffs made a third opposition and enjoined the sheriff from applying the proceeds of the sale to the judgment of Mrs. Shaw under which he was selling the property. This injunction was dissolved, and plaintiffs have appealed.

Plaintiffs contend that their mortgage has not lost its priority in rank over the defendants.

First — Because the reinscription of their mortgage was rendered unnecessary by the inscription of the Shaw mortgage wherein their note and mortgage are clearly set forth.

Second — Because Mrs. Shaw had full notice of their 'mortgage, the same being mentioned in the certificate of mortgages embraced in her own mortgage, and she cannot he considered a third party.

Third — Because their mortgage contains the fact da non alienando, and the subsequent mortgage to Mrs. Shaw was made in violation of that fact, and as to them is null and void.

It will not require serious argument to refute the first position of plaintiffs. The inscription of Mrs. Shaw’s mortgage, embracing- the mortgage certificate, wherein the previous mortgage of plaintiffs is mentioned, is not a legal reinscription of plaintiffs’ mortgage. The mere recital in her mortgage that plaintiffs had inscribed their mortgage against the same property .is not a legal reinscription. Article 3333 of the Civil Code informs us in what manner mortgages must he reinscribed. It declares that the effect of the inscriptions ceasesff they have not been renewed within ten years in the manner in which they were first made.”

Plaintiffs’ second position'is'also untenable. The recital, of their mortgage in the certificate embraced in Mrs. Shaw’s mortgage did not make her a party to their mortgage, nor did it give her any further notice than she already had from the registry of their mortgage.

The previous inscription oí plaintiffs’ mortgage gave them a superior rank over the defendant .and all junior mortgage creditors during the lawful period of its inscription. Having failed to reinscribe their mortgage within ten years, plaintiffs lost the right of priority, the effect of ihe inscription. C. C. 8333. This right did not result from any notice, judicial or extrajudicial, which Mrs. Shaw might have of the existence of their mortgage, but it resulted alone from the inscription from complying with the registry laws.

Plaintiffs cannot invoke the registry laws to establish their priority on the proceeds in the hands of the sheriff, resulting from the sale of the property under Mrs. Shaw’s mortgage, because they have lost the right of priority which those laws gave them by failing to renew their inscription within ton years as required by said laws. 6 Rob. 166, 419; 2 A. 100; 13 A. 569. The third position of plaintiffs is also invalid. The fact de non alien.anUo contained in plaintiffs’ mortgage did not render inscription unnecessary and the subsequent mortgage to Mrs. Shaw null and void. The non-alienation clause dispensed with necessity of notice to any third possessor of the mortgaged property, so that plaintiffs could proceed to foreclose their mortgage contradictorily with the mortgagor just the same as if the property remained in the hands of the mortgagor. The object of that clause was to prevent-the delays of a hypothecary action in case the property might be sold. It did not dispense with the necessity of inscription and reinscription.

Inscription was necessary to give plaintiffs’ mortgage effect against third persons and reinscription within ten years was absolutely essential to preserve that effect for a longer period. C. C. 3314, 3333.

It is therefore ordered that the judgment appealed from be affirmed with costs.


author: Tai, i AFERRO, J.

text:
    No. 1145.
    Eugene Lasere v. Eugene Rochereau & Co. et al., and Eugene Lasere v. Antoine Delphine, et.al.

    A resident of New Orleans wlio, shortly after the Federal forces took possession of the city, in 3 862, registered himsell as an enemy of the United States, and left the Federal lines of military occupation for the insurrectionary districts, eanuot he viewed in the light of a person banished .or forced away from his domicile against his' will and without his consent.
    "Where a party, whilst residing in New Orleans, executed a mortgage on his property here, and afterwards, by bis own voluntary act, loaves the State and remains away for nearly two yoars, having left no agent ii> charge of his property, or authorized to represent him, nor housekeeper in poKsos-don of .his former residence, with no known intention of returning to the State at any future time, he must be regarded’and treated by the mortgage creditor as an absentee, who, in.a suit against theproperly mortgaged may cause a curator ad hoc to be appointed to!reprcsent the absentee, with whom proceedings may be conducted contradictorily, and the property seized and sold to satisfy the mortgage rights.
    The doctrine in the case of *Samory v. 'Montgomery, 1$ An. p. 303, reaffirmed.
    l lx. PPEAL from tbe Sixth -District Court of New Orleans, Duplanticr, J.

      A. tO M. Yoorhies,iov plaintiff and appellant. J. Hagne and V. E, Schmidt, for E. Rochereau & Co., and A, Dolphini; Miles Toy-

      lor, for Samuel Moore and Mrs. C. Bullitt and husband, defendants and appellees.
   Tai, i AFERRO, J.

The plaintiff sues to annul á sale made via executiva under the following circumstances: After the taking of New Orleans by the national forces in the spring of 1862, the plaintiff, being what was termed a registered enemy of the United States,’7 and a resident of the city, received a military order dated May 7,1863, to leave the parish foi the so-called Confederacy before the fifteenth of the month. In conformity with this order,, it seems from the evidence, that he went to Mobile about the end of .the month of May, 1863, where he continued to reside until that city was captured in April, 1865, at which time he returned to New Orleans. About six months after his departure from New Orleans, in 1863, the defendants being mortgage creditors of theplaintiff, by acts importing confession of judgment, obtained orders of seizure and sale against .the mortgaged property, consisting of a house and lot situated in a central part of the city, and after the usual process the property was sold. A curator ad hoe was appointed to represent Lasére, as an absentee; the same person, an attorney at law, acting as curator ad hoe in both cases. In November, 1865, the plaintiff, Lasére, instituted this suit against the defendants to annul- the sale of his property in his absence on the ground that he was not an absentee by legal intendment; that his status was that of a resident of New Orleans.; that he had no other domicile, and that he constantly had the purpose of- returning during his temporary absence. .The purchaser of the property was made a party to the suit, and -he in turn, called the seizing creditors in warranty. Judgment was rendered'in favor of the defendants and the plaintiff has appealed.

The prominent question in the case is, did the facts and circumstances existing at the time the proceedings via executiva were taken, legally warrant the appointment of a curator ad hoe ?

The argument in behalf of the plaintiff is two-fold: First. That his temporary absence by military compulsion did not affect his residence; and having a residence, and-his absence being temporary, a curator ad hoc could not be legally appointed to represent him. Again, that if Lasére, exiled as a registered enemy, -became a resident of the insurgent State of Alabama, then the jurisdiction of the Sixth District Court was suspended as to him ; he could neither sue nor be sued in that court if there be any efficacy in the Congressional prohibition.

Conceding that at the time in contemplation a person not having a domicile in New' Orleans, but resident in one of the insurgent States, and owning property and having creditors in New Orleans, could not be proceeded against by them under the ruling in the Alexander case, ■and according to the other authorities cited by plaintiff’s counsel, because such person would have had no status in the courts of New Orleans and could not have been either plaintiff or defendant, does it follow that another person having a domicile in New Orleans, but who left that domicile and took up his residence in one of the insurgent States, acquires the same immunity from legal proceedings ? His situation would seem to he different from that of the person first supposed. In the one case the immunity arises solely from the operation of rules regulating the condition of war. In the other it proceeds from the act of the individual himself. But it is said that in the case of the plaintiff the absence was compulsory. And yet it appears that his expulsion from the place of his domicile was'superinduced by his own voluntary assumption of the status of a registered enemy of the United States, s'o that primarily, his removal was the result of the free exercise of his own will. There existed no necessity for his absence antecedent to this exercise of his own volition. Luring his residence in New Orleans, and before this voluntary change of his condition, the plaintiff was under the protection of the laws then in force in the city. The courts were open and legal proceedings going on. He might have occupied the position of plaintiff or defendant in these courts. He was present, and the right of his creditors to enforce the performance of his obligations to them might have been exercised at any time. Can we say that it was in his power to deprive his creditors of that right altogether or to suspend indefinitely its exercise by voluntarily assuming the character of a public enemy and taking up his residence in an insurrectionary State ? We cannot so conclude.

But the other branch of the argument seems more confidently relied upon, namely, that he had a domicile in New Orleans, which was never changed, and therefore that he was not an absentee, and Article 3522 paragraph 3, .is referred to. We think a fair interpretation of this article does not sustain the broad ground assumed in argument, which in substance is, that so long as domicile continues, representation 'by a curator ad hoc is excluded. This doctrine would lead to consequences plainly unreasonable’and repugnant to. the fitness and propriety of things. By the statute of 1855, it is provided that a voluntary absence from the State for two 'years, or the acquisition .of residence in any other State of this Union, or elsewhere, shall forfeit a residence within this State. A debtor then leaving property in the State could defy the pursuit of his creditors for that length of time by absenting himself, taking care to leave behind him. no agent to represent him, and no person upon whom a citation could be served. The settled jurisprudence of' the State ignores the toleration of such an anomaly in the process of1 the enforcement of the rights of creditors. In the early case, reported in 6 Nr S. p. 15, this court commented in decided terms against the admission of such a doctrine and sustained the appointment of a curator ad hoc to represent Mr. Livingston, then at the seat of Government of the United. States, in-attending to his duties as a meniber of Congress, on the ground-that he had left no one to represent- him in his absence. Our immediate predecessors had occasion in the case of Samory v. Montgomery, 19 An. p. 333, to review at some length this much vexed-question of the appointment of a curator ad hoc to represent persons absent from the State, and that after an elaborate and exhaustive argument by eminent counsel on each side. -The viewer expressed by the court in that case are entirely in unison with that referred to in 6 N. S., and the general current of decisions since that time. In the case of Samory v. Montgomery, the court remarked: “If the term absentee can only be applied to a person who never had a domicile in the State, orwho having had adomicile in the State has leftit permanently, and lives permanently beyond its limits, it is plain that such a construction of the term would operate injurious and vexatious delays to creditors seeking to enforce claims against their debtors. On the other hand, not every casual and temporary excursion of a resident from the State can convert him into an absentee, aud render him liable to be harassed by his creditor, who, to gratify improper feelings, might resort to unnecessary acts to injure him. But where in a case like the present, the debtor is absent two or three years, has property in the State, but who leaves no housekeeper, or i>erson upon whom a citation can be served, has no agent to represent him, it would be leaving him a large margin for the procrastination of payment of his debts to permit Mm under such circumstances to plead that he had a domicile in the State and argue his right to personal citation, when for so long a period he was absent and had left no person upon whom a citation could bo served. We think such a perversion of terms inadmissible. That the appointment of a curator ad hoc in a case like the present, is clearly within the scope and intendment of our law, there can be no doubt. Neither is it in conflict with the spirit of our jurisprudence.”

The facts in the case before us are, as we have seen, that Lasére, the plaintiff, left New Orleans about the last of May, 1863, went to Mobile and there resided until April, 1865, a period of near two years; that he left no housekeeper, nor representative of any kind in New Orleans, upon whom process could be served. His notes, secured by mortgage, were due on the seventeenth of February, 1863. It was not until the twenty-fourth of November, of that year, that his creditors' instituted proceedings against him.- These proceedings throughout seem to have been regular. It is not alleged that fraud, or undue means were resorted to by the creditors to attain an advantage over their debtor during his absence. It is averred that the property sold was worth eighteen thousand dollars and brought only six thousand and fifty dollars. There is no evidence that there was a sacrifice of the property. The creditors were not purchasers and. derived no benefit from the sale beyond that of realizing their debts. It was not their fault, if owing to the existence of war there was a depression, in the value of property.

In the case of Samory v. Montgomery, quoted above, tho proceedings were via ordinaria. It is in most of its features similar to the present case, from which it differs chiefly in this, that the case before us partakes more of the character of a proceeding in rem.

Applying the principles to wMch we have adverted -"to the facts of the case at bar, we conclude that the appointment of a curator ad hoc was legal and regular.

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

Rehearing refused.

Mr. Justice Howell recused.