source: Caselaw Access Project

author: Hyman, C. J.

license: Public Domain

text:
    Michael Gernon v. Margaret Hickey.
    Two separate deorees are required for a divorce a vinculo, and a separation a mensa et thoro, preceding it.
    When the main purpose of a suit is to be tried, either party has the right to require the case to be set down on the ordinary docket of suits, and tried in the ordinary way, under such averments as would authorize a judgment, unless the law prescribes that it bo tried in a summary manner.
    APPEAL from the Fourth District Court of New Orleans,

      Price, J. Roselius & Philips, and Campbell, Spofford & Campbell, for plaintiff and appellant. Durant & Honor, for defendant.
   Hyman, C. J.

In the year 1861, Michael Gernon brought suit against his wife, Margaret Hickey, asking in his petition for a decree of separation from bed and board from her, on account of her cruel treatment towards him. He further asked therein to have a decree of divorce from his wife, after the legal delay.

In the same year the Judge rendered judgment in favor of plaintiff, Gernon, decreeing a separation from bed and board between tho parties.

In 1865. plaintiff had a rule served on defendant to .show cause why a judgment of divorce, forever dissolving their matrimonial bond, should not be rendered in his favor.

Defendant filed exception to the rule, averring that the process by rule was irregular and illegal, and praying that the rule be dismissed.

The Judge, on the láth of June, 1865, rendered judgment maintaining defendant’s exception and dismissing the rule.

From this judgment plaintiff has appealed.

J5y the act relative to divorce, approved March láth, 1855, and the act amendatory thereof, approved March 16th, 1857, the Legislature intended that, in a suit of the character instituted by plaintiff, two separate decrees of the Court might be rendered : 1. A decree of separation from bed and board ; 2. A final decree of divorce after the lapse of a certain time from the decree of separation, provided no reconciliation took place between the parties. See 6 An. 262.

Although this was the intention of the Legislature, it made no provision that such a suit should be tried summarily or by different rules of practioe than any other ordinary suit.

A final judgment of divorce was one of the chief purposes for which this suit was brought, and whether plaintiff can legally demand a judgment of divorce is not an incidental question arising in the suit.

When the main purpose of a suit is to be tried, either party has the right to require the case to be set down on the ordinary docket of suits and tried in the ordinary way, under such averments as would authorise a judgment, unless the law prescribes that it be tried in a summary manner. C. P. 754 and 755.

The summary process by rule, pursued by plaintiff, would, if sustained, deprive defendant of this right.

Judgment of the District Court affirmed.


text:
    John A. Letten v. John F. Spearing et als.
    If the Court shall think it not possible to pronounce definitely on the cause, in the state in which it is, either because the parties have failed to adduce the necessary testimony, or because the inferior Coart refused to receive it, or otherwise, it may, according to circumstances, remand the cause to the lower Court, with instructions as to the testimony whioh it shall reoeivo, to the end that it may decide according to law.
    APPEAL from the Second District Court of New Orleans,

      Howell, J. Train & Cambray, for plaintiff. O. L. Bright, for defendant.
   Hyman, C. J.

In this case, A. Brown & Co., alleged by plaintiff to be a commercial firm composed of A. Brown and W. J. Key, were sued as endorsers of a promissory note, dated 1st October, 1860, and payable 1st October, 1861, to the order of John E. Spearing. Plaintiff alleged that the note was endorsed by Spearing and A. Brown & Co., before its maturity, and that, at its maturity, it was protested for non-payment, and due notice of its dishonor given to A. Brown & Co.

On the 4th of May, 1864, the District Judge rendered judgment against the partners of the firm of A. Brown & Co., for the amount of the note, say $850, interest, cost, etc., and they have appealed from this judgment.

On the trial of the suit in the lower Court, as against A. Brown & Co., no evidence was introduced of the dishonor of the note or notice of its dishonor to them. Such evidence should have been adduced to hold the endorsers liable.

We shall, in this case, use the discretion allowed to us by Article 90G of the Code of Practice. We do so because we are under the impression that the clerk of the lower Court may have omitted to take a full note of the evidence as it was adduced.

It is ordered, adjudged and decreed, that the judgment of the District Court be reversed.

It is further decreed, that the case be remanded to the District Court, to be proceeded in according to law; plaintiff to pay costs of appeal.

Howeee, J. tecused.


author: Lab4W®, J.

text:
    Lisida Cure, Tutrix, v. Jean Porte et al.
    — On a Rehearing.
    When a defendant comes into Court by way of exceptions, ho takes the attitude of a plaintiff in making the necessary allegations, and assumes the onus of proving them.
    When a party proceeds to trial on the merits, without a decision on the exceptions filed, the latter are considered as waived.
    An exception that plaintiff is absolutely without right to stand in judgment, or without interest in the subject matter of suit, may be pleaded at any stage of the proceedings.
    An action can only be brought by one having a real and actual interest whioh he pursues, but as soon as that interest arises, he may bring his notion.
    APPEAL from the Third District Court of New Orleans,

      Foute, J. H. Train and P. 8. Biron, for plaintiff. — 7 A. 110; 6 A. 494; 8 A. 277; 12 L. 618; 9 L. 355; 2 A. 782; 14 A. 777._
    All these decisions clearly show, that plaintiff and appellee had the right to maintain the present action.
    3 M. 378; 2 N. S. 389; 5 N. S. 343; 1 L. 113, 283; 4 L, 328; 2 A. 1017; 5 A. 382; 5 L. 405; 12 R. 194; 13 L. 373; 11 R. 402 ; 3 A. 222; 4 A. 350; 1 N. S. 130; 4 L. 482; 14 L. 288; 14 A. 520; 12 L. 618; 14 A.¡[657; 14 A, 641; 11 A. 688; 15 A. 188; 14 A. 658.
    Decreeing in substance that such a plea as that urged by defendant must be filed, fixed and tried in ‘ ‘ limine litis, ” and is considered as waived if the trial on the merits of the case is proceeded with without asking for judgment on the same in the Court below. And some of the above deoiBions go as far as to allow suitors to amend by making parties to the suit the proper ones, even after the suit is dismissed or the case remanded.
    An exception that plaintiff has not been recognized as administrator under our laws, is not a peremptory but a dilatory exception to his capacity to sue, and waived by the general denial. 6 A. 239, Wingate v. Wheat.

    An exception by a third possessor, that the beneficiary heirs cannot enforce their legal mortgage until a final settlement of the succession is waived by pleading to the merits. 8 A. 73, -Bahathamv. Tete.

    If we understand the law at all, defendant not having fixed for trial the above exception, nor exacted a decision upon the same, nor in any urged it upon the Court, must be considered as having, to all intents and purposes, waived and abandoned said exception, and at this late hour has no right to revive it in this honorable Court. O. Hennen’s Digest, 2 vol. p. 1220, l 4, p. 1223, $ 11, 12.
    But even if appellant could urge here his defunct exception, “ that plaintiff has not shown that she was a creditor of the deceased, would not his proposition dwindle to nought on looking at pages 73, 74 and 75 of the record, and finding that by judgment of separation from bed and board, obtained by her against her husband, Jacques Gallay, she is a judgment creditor of the deceased for the sum of $450, with legal interest from 29th November, 1853.
    And let us here warn appellant’s learned counsel that, if the “folie du logis,” of which he seems to be so enamored, is to be the battery whence his artillery is to play against the judgment appealed from, that it is not likely this honorable Court will second his rash undertaking.
    This Court will hold him to a correct statement of the law and the facts, and will not heed his gratuitous and unwarrantable joke, as for instance, that plaintiff in her petition, and not the Clerk, admitted that she was the divorced wife, and not the widow of Jean Gallay.
    She contends that the homestead law of 1852, No. 255, provides as well for widows as for children of deceased persons.
    Here we again reiterate th e assurance, that far it is from our mind to divert the attention of the Court from the real issue of the case, by quibbles and puns.
    And if there be any shortcomings in plaintiff’s counsel, “folie du logis,” they should be met by sound reasoning and law quotations, and not by taunts and sneers. <

    Appellant’s brief teems with decisions to the effect that tutors have no right ex-officio to administer upon successions accruing to their wards. And, in view of these decisions, your immediate predecessors, said the appellant, adopted the principle laid down in the cases cited in appellant’s brief: “That the tutrix and widow in community administers the succession-so long as it is not intrusted to an administrator; but so soon as an administrator is appointed, the tutrix’s power over the succession is superceded, and in order to bind the succession for a debt the new representative should be made a party. ”
    It is neither novel or marvelous, that he who sues an estate for a debt should make the representative of that estate a party. Such proceedings rest on logic and law. The reason of the law is obvious; further comment is idle. Nugatory would be a judgment against a tutrix and widow in community when there is an administrator appointed. Who ever dreamed to contend against so plain a principle of law ? Our “ folie du logis” has never catched at straws and created chimeras to fight against. Wo will therefore suffer to slumber the authorities quoted, where it is most congenial to them, not perceiving what bearing they have on the case at bar.
    The widow’s position is well defined. She is not sued for a debt duo by the deceased; but she is sued in her two-fold capacities of tutrix of her minor children, the forced heirs of deceased, and in her own right as a judgment creditor of the deceased for the sum of $450, exclusive of interest.
    She brings a suit for the annulment of a fraudulent and simulated donation, rmder the garb of a sale, made by her divorced husband to his concubine, Henriette Maldry.

      She claims not the value of said donation, but simply asks the Court to condemn the appellant to deliver up to the administrator of the succession of Jacques Gallay, her divorced husband, deceased, the property alleged to have been sold or the value thereof, say $1,200, in order that the same be distributed by the administrator of the succession as the law directs. And so was the decretal part of the judgment, of .the District Judge.
    Now, is it seriously contended by appellant, that a creditor has no right at law, to bring such an action ?
    On the part of plaintiff and appellee, we say he has. Uncontrovertb ble authorities assert he has. And the interest of the estate, and of the creditors of said estate in unmistakable terms demand it. See 2 A. 782, and others.
    We go further, and say, that the Court is bound ex officio to annul and set aside acts of this kind. They are contra bonos mores and tainted with fraud. They are ab initio null and void by themselves, and can have no effect. Ex turpi contractu oritur non actio. See O. C. 1885, 1886, 1887, 1889; C. C. 19.
    ‘ ‘ Il faut distinguér, dit Toullier, si la cause pour laquelle on a promis quelque chose blesse la justice et les bonnes mceurs du cóté seulement de la partie qui stipule, ou de la part des deux; dans le premier cas, le promettant n’est point tenu de payer la somme promise, et il peut méme la répéter s’il l’a payée; mais dans le second cas, comme il s’agit d’une promesse pour faire commettre un crime, la loi n’oblige ni a payer, ni k restituer ce qui a pu l’étre.”
    Guided by the authorities cited by appellant, the Court might in her discretion suggest the propriety to have the administrator made a party to this suit. 14 A. p. 567.
    If this case was to hinge upon mere technicalities, the Court would dismiss the appeal, all the parties to this suit, even the principal party, the deceased’s concubine, are not before the Court. Said conoubine has neither appealed from the judgment, nor has been made a party to the appeal.
    The last point urged by appellant is, that the plaintiff did not make out her case; that she had to prove, and did not prove :
    1. That the sale was simulated.
    2. That if not simulated, the sale was fraudulently made for the pur» pose of conveying the property through the interposition of defendant to the deceased’s pretended concubine.
    Wherefore, Article 1478 O. C., quoted in appellant’s brief, and which was copied verbatim from Article 911 of the Code of Napoleon, commented upon by Marcadé, whose opinion is that the presumption of fraud established by law, against persons reputed persons interposed, could not be extended beyond the limits of the law, and could not be applied to other ascendants, except the father and mother; but not to the brothers and sisters, nor to the person living in concubinage with the person incapable; nor even to the person that the party incapacitated intends soon to marry, admitting their posterior marriage.
    If this means anything, it doos not apply to the present case, or at any rate unless it is pretended that the deceased, G-allay, was reputed incapable, we are blind to its application here.
    The substance of Maroadé’s opinion is, that the presumption of fraud could not apply to -the person living in concubinage with the party incapable.
    The person incapable referred to by Mareadé, could not be contemplated in the present case as the concubine. If it could not the reasoning has no application.
    We have Marcadé’s direct views on cases of this kind :
    “Bien entendu que e’est k celui qui attaquera l’acte d’établir que, sous l’apparence d’un contrat onéreux, il cache une libéralité, ou que la libéralité ne s’adresse réellement pas a oelui qu’on a fait figurer eomme bénéfieiaire.”
    “ It is well understood, that it is inoumbent upon the person who attacks the act to establish that under the garb of an onerous contract, it conceals a donation or liberality, or that that liberality is not in favor of the person who figures as the real party or reoeiver.”
    The opinion of Mareadé, we have on the 911th Article of the Napoleon Code; and we may unassumingly assert that Mareadé, had he lived under the provision of Article 1468 of our Civil Code, which also declares incapable persons who lived in open concubinage, would have carved his opinion in conformity therewith.
    The principle that laws in pari materia must be construed together, justifies our claim to the benefit of Article 1468 of our Civil Code.
    We submit, that the presumption of fraud juris et de jure likewise apply in this State, to persons living together in open concubinage.
    Let us see if the decisions of the Court of Cassation, the Supreme Court of France, accord entirely with Marcadé’s views :
    “ L’interposition de personne dans une donation ou dans un legs, lorsqu’elle a pour objetde faire passer les choses léguées & des inoapables, constitue une fraude. En conséquence, eette interposition peut, dans un tel cas, étre prouvée par des témoins ou établie á l’aide de simplesprésomptions.” S. 30, 1, 186; T>, 28, 1, 224; L. 87, 279.
    “Laloi, en disant seront réputées personnes interposées, etc., établit une présomption de droit d’aprfes laquelle la disposition est nulle par cela seul qu’elle est faite á leur profit. II ne faut entrer dans aucun examen, ni recourir k d’autres preuves, mais celui que la loi ne répute pas personne interposée d’un incapable peut, suivant les cireonstances, étre déelaré tel. Le motif de cette déoision est que la disposition de l’article 911, n’est pas exclusive des autres cas ou il peut y avoir lieu a interposition de personne. Cass. 6 juin 1809; D. 7, 20, p. 99.
    Fraud as applied to contracts, is the cause of an error bearing on a material part of the contract, created or continued by artifice with design to obtain some unjust advantages to the one party, or to cause an inconvenience or loss to the other. O. O. 1841.
    Sec. 5. It must be caused or continued by artifice, by which is meant either an assertion of what is false, or a suppression of- what is true in relation to such part of the contract as is stated in the second rule.
    Sec. 6. The assertion and suppression mentioned in the preceding rule mean not only an aflirmation or negation by words, either written or spoken, but any other means calculated to produce a belief of what is false, or an ignorance or disbelief of what is true.
    Fraud, like every other allegation, must bo proved by him who alleges it, but it may be proved by simple presumptions, by legal presumptions as well as by other evidence. Tho maxim that fraud is not to be presumed, means no more than that it is not to be imputed without legal evidence. C. O. 1842.
    Some circumstances and acts attending particular contracts are bylaw declared to be conclusive, and others presumptive evidence of fraud, etc, C. C. 1843.
    The evidence is loud. All tho circumstances of this case point to the fraudulent character of the transaction, and the conclusion is inevitable for the aflirmation of the judgment of the District Court, with costs.

      G. LeGardeur and H. R. Grandmont, for defendant and appellant

    — -This is a suit, says the plaintiff in her printed brief, instituted by her in her own name as creditor of the deceased, and in the name and as natural tutrix of her minor children, who are the legitimate and forced heirs of tho deceased, to set aside and annul as simulated and fraudulent the sale of a dairy for $1,200 cash, made by the deceased to Jean Porte, for the use and benefit of tho deceased’s concubine, Henriette Maldry, who is the sister of Jean Porte’s wife.
    Jean Porte met the allegations of the plaintiff by a general denial, and especially averred that she was neither a creditor of the deceased nor of his estate, and that she had no right or interest to stand in judgment in this case, either in her name or as natural tutrix of her children.
    After a protracted trial, the District Judge, without noticing the exception set up by Jean Porte, “ that the plaintiff had no right or interest to maintain this suit,” gave judgment, not in favor of the plaintiff, but, as she hpd. herself prayed for, in favor of the administrator of the succession, although not a party to the suit, declaring the sale null and void, and condemning Jean Porte to deliver up to the “ administrator of the succession of Jacques Gallay the property sold, or the value thereof, say $1,200, in order that the same may be disposed of by said administrator as the law directs. ”
    From this judgment Jean Porte has appealed, and no great efforts will be necessary to convince and satisfy’ your Honors that the exception set up by the defendant was well founded in law and should have been sustained by the lower Court.
    The plaintiff avers that she and her children are creditors of the succession in the sum of $1,000, under the Act approved March 17,1852, and entitled “An Act to provide a homestead for the widow and children of deceased persons.”
    Now, that the plaintiff cannot, in her own right, claim the benefit of the Act she relies upon, clearly results from the fact that the Act was adopted, as shown by its very title, to provide a homestead for the widows of deceased persons, and that she is, as she herself admits in her petition, the divorced wife, and, consequently, not the widow of Jean Gallay.
    As regards the children, there is not a tittle of evidence in the record that they are in necessitous circumstances, the sine qua non condition imperatively required by the Act to entitle them to the relief which the law grants to the children of deceased persons. Nay, them mother herself shows conclusively, by her marriage contract with her second husband, that she is in easy circumstances; and the principle is well settled by the decisions of this Court, that the statute does not apply, when the mother and the children, or either of them, own property to the amount of one thousand dollars. Stewart v. Stewart, 13 A. 598; 3£eCatt v. MeGall, 15 A. 527.
    But, be this as it may, the plaintiff has proven by the account of the administrator, which was duly homologated on the 20th March, 1861, and which she herself has introduced in evidence, that she has received from the succession the sum of $175 “ to complete ” her homestead and that of her children. It is obvious, then, that she and her children had already received or were possessed of property worth eight hundred and twenty-five dollars. The conclusion, therefore, is irresistible, that she and her children are not, as alleged in her petition, creditors, and have consequently no interest, as creditors, to maintain this suit.
    But it might be contended that if the plaintifffand her children have no interest, as creditors, to bring this suit, yet the plaintiff, as the natural tutrix of her children, has a clear and undoubted right to demand, on their behalf, the nullity of a sale made in fraud of their legal rights, as forced heirs of the deceased. Oonceding that, under the loose, vague and indefinite allegations in the petition, the plaintiff might be permitted to take this position, the answer would be close at hand. The children are beneficiary heirs; their mother has not qualified as administratrix of the succession; nay, that succession is under the control of an administrator in whose favor the judgment appealed from was prayed for and rendered. The consequence is that, as tutrix, she has no right to bring this suit, because no suit can be maintained in the name of minors or other beneficiary heirs, based upon them interest as such, before the succession in which they are interested is finally liquidated and they are put in possession of the residxie. The authorities are conclusive upon that point.'

      In Self v. Morris, 7 Rob. p. 26, this Court said: “Articles 327 and 330 of the Civil Code, upon which the idea seems to be founded that tutors have a right, ex officio, to administer upon successions accruing to their wards, provide only for the administration of the separate and exclusive property of minors, in which no other persons than themselves have an interest; but when a succession opens in their favor, which under the law cannot be accepted for them except with the benefit of inventory, it cannot properly be said to be their property; and it does not legally come to their possession as beneficiary heirs, until it has been duly administered upon in due course of law. Whatever remains after the payment of the debts of the estate belongs to them, and falls under the administration of their tutor as such. If there be no beneficiary heirs of age, and the tutor of the minors claims to be appointed administrator, he, like any other person, must give security though he should be the father of such minors. It is only when the tutor has been thus appointed administrator, that he can be considered in law as representative of the estate, and can be sued as such in the Court of Probates, for debts due by it.”
    In Hall v. Parks, 9 Rob. 139, the plaintiffs having enjoined an execution issued against them upon a twelve months’ bond belonging to the succession of John M. Tompkins, a motion to dissolve was filed by G. N. Parks, as tutor of the minor children of the deceased, and made absolute by the District Judge. On appeal this Court held that the minors, as beneficiary heirs, had never acquired that absolute interest in the property of the estate, which would place said property under the exclusive control and administration of their tutor; that their former tutrix, there-. fore, had no authority to issue the execution complained of by the plaintiffs; and that neither of the defendants (the tutor and tutrix) had any capacity to .receive the funds proceeding from-the twelve months’ bonds. The judgment was consequently reversed, and the injunction made perpetual against the defendants, as tutor and tutrix.
    In Parks, guardian, v. Palien, (same vol. p. 169) the same point was again raised, and this Court said: “The question here is exactly the same as the one which was presented and lately decided upon in the caso of Hall v. Parks, in which we held that the mother could not, in her capacity of natural tutrix, nor her husband as guardian of the minors, order an execution to issue upon a judgment rendered for the recovery of a debt due to the succession of the minors’ father. We said that, as said succession could not be accepted for the minors but with the benefit of an inventory, an administrator should have been appointed who alone would have the right of suing for the debts due to the estate and of receiving the amount due thereto.”
    In the matter of the Succession of George B. Ogden, 10 Rob. 458, this question was again submitted to this Court, and this Court again said: “When aii administrator basjbeen appointed to a succession, the widow in community and the tutrix oí the minors, who are necessarily beneficiary heirs, have no right to interfere, and have nothing to claim, until the debts of the estate are paid, and the administration of it has legally terminated.”
    In Andat, curatrix, v. Gilly, curator, 12 Rob. 325, this Court said: “ The record does not show whether the appellants have accepted the succession of their father, J. B. Lagarde; but, whether they have or not, they could accept it only with the benefit of inventory. As beneficiary heirs, they are entitled only to the residue of the estate after the payment of all its debts. This residuary interest gives them no right to represent the estate which is under the administration of the curator, who is the legal representative of the succession.”
    In the case of Saloy v. Gheixnaydre, 14 A. 567, your immediate predecessors adopted the principles laid down in the eases above quoted, when the succession is under the control of an administrator, other than the tutor, and said:
    “The tutrix and widow in community administers the succession so long as it is not entrusted to an administrator; but, so soon as an administrator is appointed, the tutrix’s power over the succession is super-ceded, and in order to bind the succession for a debt, the new representative should be made a party.”
    In Stale v. Heirs of Lékie (Ibid, p. 641), the same Judges distinctly held, as their predecessors, that “the beneficiary heir cannot stand in judgment for the succession.”
    Indeed, other and numerous authorities might be adduced; but enough has been said to satisfy your Honors that the plaintiff, as natural tutrix, does not represent the succession, and has, therefore, no right to stand in judgment for it. If, as alleged by the plaintiff, the sale to defendant be simulated, it was clearly made in fraud of the creditors of this succession, which, so far, is palpably insolvent, and it is the imperative duty of the administrator, who alone has the right to sue, to ask for the rescission of it, and, in ease of success, to distribute the funds which would come into his hands among the creditors, and to pay the balance, if any, to the plaintiff, as tutrix of the beneficiary heirs. Should he, however, refuse or neglect to act, although duly apprised of the circumstances which make it his duty to act, the creditors and the beneficiary heirs would, undoubtedly, have the right to hold him responsible for any sum Which he might have recovered, had he done his duty.
    This, I apprehend, is the course pointed out to the parties by the laws and jurisprudence of this State. If they think proper, however, to deviate from it, the fault is theirs. But, surely, the tutrix cannot be permitted to bring this suit before the creditors are paid, the succession finally settled, and the minors put in possession, and thus to trample upon the law and the decisions of this Court.
    The conclusion, therefore, is irresistible, that the exception to the right of the tutrix to stand in judgment in this suit, should have been sustained by the lower Court.
    But, conceding that, although the plaintiff and her children are not creditors of the succession under the statute of 17th March, 1852, and, although the plaintiff, as tutrix, has no right, power and anthority to sue for the recovery of property which has to go into the hands of the administrator, and in which, in consequence of the inability of the estate to pay its debts, as shown by the administrator’s tableau, her children have but a remote and residuary interest; conceding, I say, that she be permitted to proceed with this suit, has she, on the merits, made out a case which would justify the judgment of the District Court? In my humble opinion, she has not. She alleges that the sale of the dairy to Jean Porte was 'simulated and fraudulent; that the consideration money was not paid to the deceased, and, if paid, was returned to Jean Porte; and that the whole proceeding was but an attempt, through a disguised donation, to convey the property to the [deceased’s concubine, who is the sister of Jean Porte’s wife. She had, therefore, to prove:
    1, That the sale was simulated; that the price was. not paid, and, if paid, had been returned to the purchaser.
    2. That, if not simulated, the sale was fraudulently made for the purpose of conveying the property, through the interposition of defendant, to the deceased’s pretended concubine.
    This, she was absolutely bound to prove, even conceding that Henriette Maldry was the concubine of the deceased and the sister of Jean Porte’s wife.
    Article 1478 of the Civil Code reads as follows:
    “Every disposition in favor of a person incapable of receiving shall be null, whether it be disguised under the form of an onerous contract, or be made under the name of persons interposed. The father and mother, the children and descendants, and the husband or wife of the incapable person, shall be reputed persons interposed. ”
    In commenting upon Article 911 of the Napoleon Code, of which Article 1478 of our Code is a literal copy, Marcadé says (vol. 3, p. 477):
    “ lo. Lorsque celui á qui s’adresseune libéralité est capable-de la reeevoir, la loi ne trouve pas mauvais qu’elle lui soit faite sous le déguisement d’un acte onéreux, ou par 1’interposition d’une tierce personne----Mais quand on n’a eu recours á l’apparence d’un acte onéreux ou á 1’interposi-tion d’une tierce personne que pour attribuer une libéralité a une personne déclarée incapable de la recevoir, il est clair que cette fraude faite á la loi ne saurait valider un acte que cette loi prohibait. Bien entendu, c’est a celui qui viendra eritiquer l’acte, d’établir que, sous l’apparence d’un contrat onéreux, il cache une libéralité, ou que la libéralité ne s’adresse réellement pas a celui qu’on a fait figurer comme bénéñciaire..... C’est toujours h ceux qui attaquent l’acte, soit dans le cas de déguisement bous la forme d’un contrat onéreux, soit dans le oas d’interposition do personnes, d’établir la simulation qu’ils alléguent.”
    “ II. Mais il est un oas, eelui de notre article, ou la loi pose clle-meme la présomption que la libéralité est faite a un incapable, par l’interposition de la personne qui figure dans l’acte. O’est quand cette personne se trouve étre le páre, la mere, le conjoint ou l’un des descendants de la personne incapable de reeevoir. Et conrme c’est la une présomption sur le fondement de laquelle la loi annulle l’acte, il s’ensuit qu’on ne serait jamais admis a prouver que cette fraude présumée n’existe vraiment pas, ou méme qu’elle ne pouvait pas exister.
    “Oette présomption sévere de fraude ne pourrait évidemment pas s’étendre au-delá de ses termes; ainsi, on ne pourrait l’appliquer ni aux ascendants autres que les péres et meres, ni a des fréres et soeurs, ni a la personne vivant en concubinage avec l’incapable, ni méme á la personne que l’incapable doit épouser proohainement, quoiqu’en effet il l’épousát ensuite.”
    In this case the allegation is that, under the garb of an onerous contract, the deceased has, through the interposition of Jean Porte, made a donation to his concubine. The act is, therefore, attacked upon the two grounds contemplated in the first paragraph of Art. 1478; but the alleged interposed person is clearly not one of those reputed interposed by the second paragraph. He is neither the father, nor the descendant, nor the husband; he is simply the brother-in-law of the pretended concubine.
    It is obvious, then, that under the construction put by Marcadé on Art. 911 of the French Oode, which corresponds word for word with our Art. 1478, the burden of proof is upon the plaintiff to show, if not by direct testimony, at least by strong circumstantial evidence, both the “déguisement” and the “interposition;” and this brings us back to what I have already stated, to wit: that the plaintiff is bound to prove:
    1. That the sale was simulated; that no price was paid, and, if paid, was returned to the purchaser.
    2. That, if not simulated, the sale was fraudulently made for the purpose of conveying the property, through the interposition of defendant, to the deceased’s pretended concubine.
    A cursory review of the numerous authorities quoted by the plaintiff’s counsel at the very last hour, without any previous notice given to us, and which, in justice to ourselves and through respect for the Court, we could not undertake to answer ex abrupto, will satisfy your Honors that if there be any principles laid down in these authorities, that can have any application to this case, they are clearly and unquestionably more in favor of the appellant against whom they were arrayed, than of the appellee in whose behalf they were quoted. 7 A. 110.
    In 4 An. 178, Johnson and others, who had been put in possession and had the legal custody of certain slaves belonging to a succession under administration in the State of Arkansas, brought suit for the recovery of those slaves against Imboden who had them in his possession in this State. Imboden excepted on the ground that the plaintiffs had no legal right to maintain the suit. But the Court held, and very properly, too, that “ the slaves being in the possession of the plaintiffs in the State of Arkansas, where the succession was still open, and having been delivered to them for safe keeping, their right of possession could not be drawn in question by a mere spoliator.” Subsequently, Johnson and others, instituted a suit against Imboden and his sureties, upon the sequestration bond which they had furnished in the first suit. The same exception was again filed, to wit: that the plaintiffs had no legal right to maintain the suit. But it was overruled, in 7 An. 110, upon the ground that “the right to maintain the present action was a necessary consequence of the right to maintain the original action.” 6 A. p. 495.
    This case was relied upon to show that “ ah administrator has no right to bring a revocatory action.” With due deference, we humbly submit that it shows the very reverse. In effect, the Court held that “a sale cannot be annulled by an administrator, when it clearly appears that no creditor has been injured by it. ” Whence, the conclusion is irresistible that an administrator has that right, when, as in the case now before your Honors, it clearly appears that there are creditors injured by the sale. 8 A. 277.
    This was a suit brought by the widow of the deceased against the curator to set aside the judgment homologating his account, on the ground of fraud and collusion. It was not contended that the widow had no right to maintain the suit. It was objected simply that there was no evidence in the record that she had an interest in the succession; and the Court held that she had an interest, as widow in community. But, be this as it may, the suit was against the curator, who was therefore a party to it. 8 A. 73.
    This case is quoted to show that the exception by a third possessor that the beneficiary heirs cannot enforce their legal mortgage until a final settlement of the succession is waived by pleading to the merits. But no such broad and comprehensive rule was laid down by the Court. The defendant had filed his exception upon two grounds, one of which was that the plaintiff, as tutrix, had no right to maintain the suit. The plaintiff amended her petition, and the defendant then without insisting upon or reiterating his exception to the plaintiff’s right to stand in judgment, filed an answer in which he pleaded the general issue; and, further, that a tract of land belonging to the deceased had been sold, and that the plaintiffs could not recover until they discuss the proceeds of the sale, or credit them on their claim. The Court considered that the exception was waived by the subsequent filing of this answer to the merits. Under the circumstances of the case, the exception was properly not noticed.
    The plaintiffs’ right of action was not based upon their interest as beneficiary heirs, but upon the right which, as mortgage creditors, they had to follow in the hands of the defendant, the property subject to their mortgage. Besides, the action was not brought against a debtor of the succession to enforce payment of a debt due to that succession, but against a third possessor, who owed nothing to the succession to subject the property in his possessson to the mortgage claimed, not by the succession, but by the plaintiffs. In other words, there was no money due to the succession, and to be recovered by the administrator for distribution among the creditors. The defendant owed nothing to the succession; the property he held was subject to a mortgage in favor, not of the succession, but of the minors. The administrator, therefore, would have had no right to bring the suit.
    Now, in this case, the exception was not filed separately but at the same with and made part of the answer; and the action is based upon the interest of the minors as beneficiary heirs, and brought for the recovery of property which, if recovered, would have to go into the hands of the administrator, whose duty it would be to distribute the amount recovered among the creditors, and to pay the balance, if any, to the minors, not as creditors but as heirs. It was clearly, then, the duty of the administrator, and he alone had the right to bring this suit. There is conse« quently no analogy between the two cases.
    12 L. R. 618. This suit was brought by the tutor against the administrator, to compel him to render his account. There was judgment against the administrator. He appealed, and contended that there was no proof that the plaintiff was tutor of the minor, in whose behalf the suit was brought. But the Court very properly held that after issue joined it is too late to take exception to the capacity of the plaintiff. Besides, as the Court perceives, the administrator was the defendant in the suit, and therefore a party to it.
    9 L. R. 355. This was not a suit brought by a creditor or a beneficiary heir against a debtor of the succession. It was an opposition to the tableau of distribution filed by the administrator. What analogy that case can possibly have to that now before the Court, we are totally at a loss to imagine.
    2 A. 782; Weda v. Fontenot. In that case the suit was brought, as olearly results from the language of the Court, to compel the administrator to take possession of certain assets belonging to the succession. At all events, the suit was cumulated with the opposition filed by the same parties to the order of sale obtained by the administrator himself. It is clear, therefore, that the administrator was a party to the proceedings, and the succession properly represented.
    14 A. 777. This case was decided upon the plea of prescription; but, far from saying that the administrator was not a necessary party, the Court on the contrary distinctly said that “ the administrator of the succession was a necessary party to the suit, and for this reason alone the plaintiff’s action would fail.”
    These are all the decisions quoted by the plaintiff’s counsel in opposition to the authorities, which w.e have produced to show that Lisida Cure had no legal right to represent the succession, and to stand in judgment iñ this case. How far those decisions are responsive to the object for which they were adduced, we leave it for the Court to decide. But, in our opinion, the sword which was brandished against us, has turned into a shield.
    The other cases relied upon by our learned adversary, go simply to show that exceptions to form and dilatory pleas can only be pleaded in limine litis. This we have never denied. We simply contend that this rule does not apply to exceptions founded upon a total want of any legal right in a suitor to stand in judgment or which tend to show that the right of action does not belong to the party who seeks to enforce it. The authorities quoted in our petition for a re-hearing are, we think, conclusive upon that point.
   Lab4W®, J.

This case is on a re-hearing, which we have granted upon the exception to plaintiff’s right and interest to maintain this suit. The answer of Jean Porte, which is said to contain said exception, is as follows;

“ The'separate answer of Jean Porte, one of the defendants in the above entitled oase, to the petition of Lisida Cure, the plaintiff herein : This defendant now comes into Court by his undersigned counsel, and reserving to himself the benefit of all exceptions which he may be entitled to by law, denies the plaintiff’s right and interest to maintain the present suit, and denies all and singular the allegations in said petition contained, especially the capacity of tutrix assumed by said plaintiff, and also her capacity of creditor of the deceased or of his estate. * * *

It seems that the Court below and the counsel considered this as an answer, and nothing more; the case was fully tried and decided on the merits, without any allusion made to any such exception; but it is seriously argued in this Court, and with great talent and ingenuity, that this answer contains an exception to the plaintiff’s right and interest to maintain this action, and that it should be maintained, on the ground that there being an administrator to said estate, it is his business and duty to bring this suit, and that plaintiff has no right to do so either as creditor, or as tutrix of her minor children.

When a defendant comes into Court by way of exceptions, he takes the attitude of a plaintiff in making the necessary allegations, and assumes the onus of proving them. Here, the assertions of the defendant' are negative, and not affirmative ; he alleges nothing, denies everything, and puts the plaintiff to proof of her demand.

But, conceding that the pretended exceptions really exist in the answer, we are still of opinion that they have been waived and abandoned by the defendant, in going into trial without requiring a decision upon them. 14 L. 288. In 4 L. 482, exceptions were pleaded to the manner in which' the suit was commenced, and to the capacity of the plaintiffs to prosecute it. There, this Court said : “It does not appear in the record that any judgments were pronounced on these exceptions, and as the parties proceeded to trial on the merits, without requiring the exceptions to be decided on, it may properly be considered that they were waived.” See 12 R. 194, where the samé rule was recognized.

It is true that an exception that plaintiff is absolutely without right to stand in judgment, or without interest in the subject-matter of suit, may be pleaded at any stage of the proceedings ; so it has been decided in 4 N. S. 434; 17 L. 234; 5 R. 253. But the ease at bar is very different: The plaintiff sues as natural tutrix of her minor ohildren, who are also the children and heirs of the deceased, who is alleged to have made a disguised donation by a simulated sale, to his concubine, one of the defendants, and to have that sale declared null and void. These minors are the beneficiary and residuary heirs of the deceased, and they have certainly an interest in enriching the succession. Art. 15 C. P.

In Bernes v. Dupre, 6 A. 494, this Court said : “ The acts of the deceased can be attacked only by heirs, legatees or' creditors, whose debts existed at the time of her decease.

We are satisfied that we have decided correctly by our first judgment,

Our former decision remains undisturbed.


text:
    A. Lescouzeve and E. Abry v. A. Ducatel, et als.
    The securities of a Notary Publio arc only liable on his failure to discharge the duties of his offico. The law has not made it the official duty of a Notary to rooeive money to erase mortgages.
    APPEAL from the Sixth District Court of New Orleans,

      Leaumont, J. O. Morel and Durant & Hornor, for plaintiffs and appellants. Roselius S Philips, for defendants.
   Hyman, C. J.

Plaintiffs sued A. Ducatel, notary, and the other defendants, the securities on Ms bond as notary, to recover of them for money deposited by plaintiffs with him, A. Ducatel, to enable Mm to have erased a certain mortgage on plaintiff’s property, which he neglected to do.

The District Judge rendered judgment in favor of plaintiffs against A. Ducatel, and in favor of the other defendants against plaintiff's. Plaintiffs appealed.

The securities of a notary public are only liable on Ms failure to discharge the duties of his office.

The law has not made it the official duty of a notary to receive money to erase mortgages.

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

The costs of appeal to be paid by plaintiffs.


author: Labauve, J.

text:
    William Wolls v. P. D. Collins and Frank Truxillo.
    Whore the wife retains the administration of her paraphornal property, cho husband has no right to give a privilege to sub-lease, or exeroise any other power concerning it, without her authority.
    A lease is a commutative oontract, and as to tho resolutory condition, is governed by the dispositions of Artioles 2040,2041,
    APPEAL from the Sixth District Court of New Orleans,

      Howell, J. Durant é Hornor, for plaintiff.'
    21 Wharton Oollens, for defendant and appellant.

    — I. The law regards only a willful indisposition to pay or an unreasonable neglect to pay, or a decided inability to pay, as a valid ground for the dissolution of a lease. When the lessee is able, willing and, ready to pay, and, has been deterred from doing so at the exact date, either from accident, mistake and the like, he will not be visited with the penalty designed to protect the lessor against the default of an unwilling or insolvent lessee. In all cases where the lessee is in good faith, 'and evinces not only a desire but an ability to pay, even after suit, the Court will not dissolve the contract, but in some cases will even grant further time. This is the express law of our State. In easeswhere the resolutory condition'is an event not depending on the will of either party, the 'contraot is dissolved by right; but in other cases it must be sued for, and the party in default may, according to circumstances, have further time allowed for the performance of the conditions.” So says Article 2042 of our Civil Code, and Article 2184 of Code Napoleon. Your Honors will findunder the word ‘! bail, ” in Villeneuve’s Jurisprudence, a number of cases like ours, where the lessee has been allowed the benefit of the article we invoke. Much less will the law dissolve a contract, when the conduct of-a creditor (as in this case) has been such as to deter, postpone, waive, prevent, or mislead the debtor so as to entrap him into a technical default. (C. O. 2035, Hennen’s Digest, old ed. p. 1072, No. 6; same ed. p. 1101-, No..2, p. 2102, No. 20.), No'one can take advantage of his own wrong or laches. On the above point, see also Devilleneuve, verbo “ Bail,” vol. 1, p. 274 et seq. No. 196 (bis.) also Nos. 198, 200, 210 and 211. Duvergier, vol. 1, N. 474. Troplong, Louage, vol. 2, N. 320, and Perlin, Bep. verbo Bail, 37, N. 2.
    H. The grounds on which the written cbnsent H was excluded, are wholly fallacious. They are these : That it is not signed by Mrs. Emmerling, but by her husband, nor was there any written power from her to Emmerling, authorizing him to sign the same. That evidence of authority of equal dignity to that required by the contract of lease, for ■ the consent itself must be produced. That' the clause of the lease re- ■■ quiring a written consent from Mrs. Emmerling, was the law of the-parties.-
    The District Judge expresses it thus ; The sub-lease was without the • oohsent of the lessor. He considered Mrs. Emmerling as standing legally in the same relation to her husband, in regard to his power to administer for her, as she would towards a stranger. He, as well as a stranger, must" produce written power to transact her affairs. Besides this, it is assumed all through, contrary to law and the evidenoe, that the premises leased were the paraphernal property of the wife.
    To this we have two plain answers;
    I. We have written evidence of authority for Emmerling to act for his wife, even of higher dignity than a written mandate in Mrs. Emmerling’s own hand. We mean the written and promulgated law of Louisiana. See Louisiana Code 2327, 2329, 2330, 2361, 2362, 2394, C. p. 107. We have shown that Emmerling supervised the property, made the agreements for renting otit, collected the rents, held the rent notes, and that when applied to in relation to the transfer of the lease, his wife referred to him. Hence, it is expressly shown that he was her agent. 'See 8 Rob. 226;. 7 N. S. 143; 11 L. 288, and Story on Agency, $ 50 to 54 et seq. But it was not necessary for us to adduce any proof whatever of thd husband’s authority to represent his wife in matters' of this kind. Leasing houses and consenting to take one tenant in place of another are acts of administration.
    The paraphernal property of the wife is presumed by law to be under the management of her husband, unless administered by her separately and alone. 14 An. 281, Hen. (old ed.) 925, No. 2,' p. 927, No. 26. And see the cases 18 L. 431; 6 Rob. 41; 4 Rob. 114; 12 Rob. 524; 2 An. 891; 6 B. 64; 9L. 350.
    The fruits of paraphernal property belong to the community; and therefore the lease and the rents in this case belonged to the community. Hen. (old ed.) p. 930, Nos. 22 and 23. Webb v. Pitt, 7 An. 92. On this subject of written consent, see Do Yilleneuve, vol. 1, p. 273, No. 145. Troplong, Echange et Louage, .vol. 1, p. 343, No. 241.
    2. But the preceding argument concedes that the property was paraphernal. ' This is by no means shown; and we are not bound to make this concession. It is true that the property was bought in the name of the wife, but there is not even a declaration that it was bought with her separate funds. Keller, from whom the property was bought says, pp. 9 and 10, he bargained exclusively with Emmerling, the husband. The fact that it was bought in her name, does not make a particle of difference as to the status of the property; it belonged to the community. If it be so With regard to the property itself, it is so a fortiori with regard to the lease. The husband being head and master of the community had a right even to sell the property belonging to it, though bought in his wife’s name. A fortiori had he a right to consent to a transfer of the lease from one tenant to the other. Louisiana Code, 2371, 2372 and 2373; and numberless decisions, Hen. (old ed.) p. 930, Nos. 7, 10, 11. The fact, says the Court, that the title was taken in her name, does not even create a presumption in her favor.
    In whatever light we regard the property and lease,-we have the consent of- the lessor. If the lease was Mrs. Emmerling’s, we have the consent of the representative the law has appointed to administer her estate. Qui faoit per alium facit per se. If it is community property, we have the consent of the head and master.
    HI. Having thus disposed of the two principal grounds of the judgment, it may not be amiss to go back and say a word in relation to the competency of Oollens as a witness in this case, although his testimony is not indispensible. It suffices to remind the Court that he was released by us. 12 An. 208. He was in no wise in the way of plaintiff’s recovering the possession. He was only a nominal defendant. Even the plaintiff did not deem it necessary to proceed to judgment against him. He was not cited till after the trial begun. He did not answer till after the case was submitted. If the transfer of the lease was maintained, be remained security that Truxillo would pay the rent notes, but if the lease was dissolved all subsequent rent notps were necessarily annuled. So that his interest, if any, weighed on the side of plaintiff. In maintaining the consent given by Emmerling, he maintained his own liability to plaintiff. That such a witness is competent for defendant, the authorities abundantly show. See9 An. 67; 11 An. 601; 14 An. 698; Hen. (old od.) p. 546, Nos. 1, 2, 3, 4; p. 500, No. 3; p. 553, Nos. 3, 4, 5; p. 551, No. 8; and particularly p. 556, Nos. 24 and 25.
    IY. But, admitting, for argument sake, that wc arc in error on tho above points. Then we say the plaintiff could not demand possession without tendering back the subsequent rent notos, and offering to pay for the improvements which we erected for him on tho property only on the condition of enjoying it to the end of the lease. In dissolving a contract, the parties must, as'much as possible,'be restored to their original condition towards each other. Louisiana Code, p. 2040. Tho obligation to build the cottage house was the same in effect as a promise to pay so much money in advance on account.of the whole term of the lease. It is just the same as if the lease was delivered at a certain price for the whole term, payable $1,000 in advance, and the balance in notes payable from timo to time. Hence, if the lessor seeks to dissolvo the loaso before the term stipulated, he must tender back a duo proportion of the sum paid in advance. It certainly cannot make any difference if, instoad of paying money, the tenant has paid by expending money to build a house for tho lessor. Bee Duranton, vol. 17, No. 89, p. 73 ; Dovilleneuvo, vol. 1, p. 274, No. 94.
    The unaecrued rent notes were in a negotiable form. The plaintiff may have had them in his possession or may have passed them to others. He does not show what has become of them. - If he has transferred them to others, he had no further interest to expel Truxillo after tho deposit of the amount of the two rent notes he held. If ho still hold those notes, he should have shown the fact, and his readiness to restoro them upon the dissolution of tliie lease. As tho matter stood, after tho expulsion of Truxillo, a third innocent holder might have presented himself and demanded payment of the rent notes.
   Labauve, J.

On tho 22d of January, 1859, Mrs. Mario Analse Dreville, by act under private signature, leased to 3?. D. Collins two lots of ground with all tho appurtenances, from the 1st of Fobruary, 1859, until the 1st of February, 1862, at the rate of $25 per month, payable every sixty days, in his notes of $50 each. The lessee obligated himself to build on tho property a cottage house for the use of his family, and said buildings to be kept in good order and to revert to the owner of the lots after the expiration of the lease, on the 1st Fobruary, 1862; and it was expressly stipulated that the said lessee should not sub-lease without the written consent of .the lessor, who reserved the right of annulling the lease in case the lessee should, at any time, fail to pay the rent as stipulated, or otherwise violate this contract.

This lease was transferred by the lessor on the 11th May, 1860, to the plaintiffs, in the following words written on the private act of lease: “I hereby transfer this loase, such as it is, to William Wolls, against P. D. Collins.” Signed by the lessor and her husband.

By public act of sale passed on the 11th May, 1860, the said plaintiff bought of the said lessor the said leased lots, together with all the appurtenances, buildings, privileges, etc. In this act of sale, the vendor declares the dispositions contained in the lease, and transfers the same, such as it is, to hor vendee.

The lessee also transferred the lease to Frank Truxillo, as follows:

New Orleans, October 1st, 1859. I hereby transfer all my interest in and to the within lease, unto Mr. Frank Truxillo, for value received, and also guarantee that said Mr. Frank Truxillo will comply with all the stipulations of said lease. Signed by P. D. Collins, Frank Truxillo.

Now, this suit is brought by the transferree of the lease against the original lessee and the sub-lesseo, to set aside and annul the lease, and to recover possession of the property leased, on the grounds that P. D. Collins, the original lessee, has violated the stipulations contained in said lease in two particulars: in not paying the rent when due, and in subleasing the premises without the written consent of the lessor; and that he has faded to' erect a cottage house for the use of his family, and the buildings were to revert to the owner of the lots, etc.

He prays that both the original and the sub-lessee be cited and be condemned in solido to deliver to petitioner the possession of the leased premises.

The answer contains a general denial, but admits the lease, and that the same has been transferred to said Frank Truxillo, but with the consent of the lessor by her husband L. Emmerling, the head of the community, for himself and wife, in whose name the property stood, he being also agent, and having the administration of the property in question, with her consent. That respondent has been always ready and willing to pay the rent; but since the said Wolls has acquired the property, he has failed to make an amicable demand for said rent, and that respondent made legal tender of said rent to said Wolls, who refused to receive the same, etc.

On the trial of the case below, the defendant offered in evidence the written consent of the lessor’s husband, authorizing P. D. Collins to transfer the lease in question to Frank Truxillo; it was objected to, and the objections sustained by the Court.

We are of opinion that the Court decided correctly. The property was leased by the wife as her own property, and the lessee cannot now dispute it; he contracted with the wife, and the very fact of her leasing' the property herself, shows that she retained the control and administration of it so far, at least, as the lease was concerned; and the reserve that the property should not be sub-leased without her consent in writing was a part of the contract of lease.

There are other bills of exception which, in our opinion, require no decision, as the result would be the same on the merits of the case.

Two grounds are clearly established:

1. That the lessee has failed to pay two notes given for the lease; they were payable at the Mechanics and Traders’ Bank, and protested for non-payment on the 8th August, 1860.

The transfer of the sub-lease by P. D. Collins to Frank Truxillo is clearly proved, and admitted besides, and the dofondant has failed to show the consent in writing of the lessor.

2. Two of the notes were not paid for want of funds in the bank whore they were payable and protested.

But we think that the plaintiff, in order to recover, should have done more, by alleging and proving a tender of the notes given for the unexpired balance of the lease at the time he claimed the dissolution of the same. It is in evidence and admitted that, when the parties entered into said contract of lease, the lessee, P. D. Collins, executed his notes for the whole term of the lease, to his order and by himself endorsed, payable at the Mechanics and Traders’ Bank, and these notes are shown to have been transferred and delivered to the plaintiff when the lessor sold him the property leased together with the lease.

It is also in evidence, and admitted in the appellee’s brief, that the cottage house was built. The plaintiff has failed to show what has become of the unaccrued rent notes; they have not even been produced on trial as a tender. The plaintiff could not expect to take the property back with the cottage house, and retain also the notes. A lease is a commutative contract, and as to the resolutory condition, is governed by the dispositions of Arts. 2040, 2041. Duranton, vol. 17, 110, 89.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed. It is further adjudged and decreed, that there be a judgment of nonsuit against the plaintiff, in favor of the defendants, and that the plaintiff and appellee pay costs in both Courts.

Howelii, J., recused.


author: Labatjve, J.

text:
    C. & T. Schindler v. Smith, Bullins & Co.
    There is no lav/ requiring a porsonal servico of a notice of garnishment; tho law requires a personal sorvice of the interrogatories as an oxcoption to tho general rule, but this Oourt cannot extend it to any other service.
    The laws of attachment must bo strictly construed and applied, otherwise they will not avail tho attaching evoditor.
    The Act approved March 18,1358, p. 176, provides that no seizure shall bind any proporty or oifects, rights or claims in the hand3 of a garnishee, either under process of attachment or fieri facias, unless service of the interrogatories has boon personally made upon such garnishee.
    Tho garnisheo, in tho eyes of the law, is a more stakeholder, a custodian of the proporty attached in his hands; he has no pecuniary interest in tho matter; he has no costs to pay, and therefor© nono tosave; his business is to let tho lawtakoifcs course botween the litigants; he has no right to accept or waive sorvico of tho procaoding, thereby favoring one party at the expense of and injury to another, and creating aotually a privilege with priority in favor of one creditor to tho projudico of another.
    APPEAL from tho Third District Court of New Orleans,

      Fellowes, J. E. W. Huntington, curator ad hoc. Geo. L. Bright, for garnishees.

      W. H. Hunt, for plaintiff.

    — “An attachment by such process can bo legally mado only in one of two ways, either by the actual seizure and detention of tho property of the debtor by the sheriff, or by garnishment process, that is, by tho servico of tho copy of petition, citation, order and interrogatories upon the garnishee. ” Welson v. Simpson, 9 An. 311. The statute of 1858, p. 178, provides that “no seizure shall bind any proliorty, money or effects, rights or claims- in tho- hands of a garnishoe, cither under procoss of attachment or fieri facias, unless service of the interrogatories has been personally mado upon such garnishee.”
    The ease of Bighior v. Phelps, 16 An. 104, is directly in point, and fully determines the insufficiency of the pretended seizures by Baur & Bohle. The Oourt there hold, that if there be no actual seizure by tho sheriff, his notieo of seizuro is untrue in itself, but it is, per se, a vain and useless thing; and that a seizuro in garnishment is not considered made until the petition and interrogatories have been served on tho garnishees.
    Tho only question that remains for tho consideration of tho Court is, whether tho waivor by the garnishees of services of copies of tho petition, citation, order of attachment and interrogatories, endorsed on tho petition oí Baur & Bohío, before it was filed, constituted a legal attachment of the property of the defendants, Smith, Bullins & Co.., and dispensed Baur & Bohle from tho necessity of executing the process of attachment by tho sheriff, and according to tho requirements of tho law ? Docs an express waiver of process produce the effect which such process, if issued, would produce; or, in other words, does a waiver of process awoupt to process ? To waive process is to relinquish, not to insist on or claim it. Can it be pretended that process waived is still not relinquished, but is still insiste’d on or claimed ? An attachment waived becomes an attachment relinquished. An order of attachment waived becomes an order not claimed or insisted on.
    Process of law can never become matter of commerce and barter between parties, to the injury of the rights of third persons.
    An attachment in the hands o'f third persons, is a mandate which a creditor obtains from a competent judge, or from the clerk of his court, commanding the seizure of any property, credit or rights bolonging to his debtor, in whatever hands they may be found, to satisfy the demands which he intends to bring against him. C. P. Art. 239.
    This mandate is issued in the sovereign name of the State, by its duly authorized officers. “ When the order has been given by the Court, tho clerk of such Court shall deliver, or send to the sheriff, a copy of such mandate, together with a citation to the person made party to the suit, to answer said petition within the usual delay granted in ordinary cases. C. P. Art. 251.
    If there be a garnishee made a party to the suit, the clerk must deliver to the sheriff a copy of the petition and of tho interrogatories annexed to it, with a summons directed to such garnishee, to answer the same within the delay given in ordinary suits (0. P. Art. 252); and the servieo of tho interrogatories must be made personally on the garnishees by tho sheriff. Acts of 1858, p. 176. The garnishee has no right to waive or accept it.
    It is an infallible test of tho validity of an attachment to inquire if the defendant has lost his control over the property and cannot change its destination. Wherover the owner can control it, his creditors may attach. Hennen’s Digest, p. 135, No. 2. If this test be applied to the property of Smith, Bullins & Co., after the signature of the waiver in the ease of Baur & Bohle, it is evident that their pretended attachment is of no avail. Por the defendants were in no manner parties to tho agreement between tho garnishees and Baur & Bohle. They were not divested of the control of their property by any such agreement. They could be divested of such control only in two ways, either by their own act, or by due process of law. Until divested in one or the other of these modes, their dominion over their own property was absolute and complete, and could not be interfered with by tho garnishees. These garnishees were therefore not justified in assuming the functions of owners of the property, or in volunteering to waivo any process of law by which the prodicament of such property might be affected to the prejudice of the owners’ control, or the legal rights of the owners’ creditors. Tho law enjoins upon garnishees a strict and impartial neutrality. It is held that they are not to interfere ip the xneri^s of the controversy between fbe attaching creditors and the defendant, or others claiming what they hold. They are mere stakeholders, bound to disclose the truth. If their declarations be controverted, they may support them, and resist any judgment that will operate to their prejudice. As to them the questions are, whether they are indebted ; whether they can safely pay the attaching creditor, or whomsoever the Court may order them to pay to. 10 M. 568; 14 La.; 18 La. 405. These duties thus distinctly defined, are wholly inconsistent with the attempt made in this case, by the garnishees, to cooperate with Baur & Bohle in securing to them a preference over these plaintiffs, by the waiver of an order of attachment, or the acceptance of service of legal process before it was issued.
   Labatjve, J.

The plaintiffs brought this suit on the 23d December, 1864, claiming of the defendants who are non-residents, the sum of $1,950, with interest, and garnisheeing at the same time, Bower, Garner & Harrison; citation, copy of petition, order of attachment and interrogatories were duly served on A. Bower, a member of said firm, on the 24th day of December, 1864, at twenty minutes after nine o’clock, A. M. On the 5th of January, 1865, in answering the interrogatories, they say :

“At the time of service of process herein, on our firm, to wit: on the 24th of December, 1864, we had no moneys, goods, property or merchandize belonging in whole or otherwise, to the defendants, Smith, Bullins & Co., except the sum of $776 74, and a balance of $446 51, on 100 barrels of flour, making a total of $1,222 25. Both the cash, viz : $776 74 and the flour were garnisheed in our hands, and seized in the suit of Baur & Bohle v. Smith, Bullins & Co., No. 13053, of the Sixth District Court of New Orleans, on the 23d December, 1864, and before we received any notice of seizure and garnishment in this suit. At the same time we received notice of seizure and garnishment process in this suit, we also received them from the suit of Mahoney & Stutz v. Smith, Bullins & Co., No. 18861 of the Third District Court * * * * We further state : at the time of the seizure and garnishment was made, we had nothing else belonging to Smith, Bullins & Co., but we had’ previously received and did then hold two bills of lading, one for 685 barrels of flour, and the other for 146 barrels of flour, shipped by Smith, Bullins & Co. to us, and to be delivered to us to secure advances and charges made by us on said flour to them, amounting to about $7,900. The exact amount is not stated, because the transaction and accounts are not fully complete; the flour is of the value of $9,547 51, which will leave abalance of not over $1,647 51, should the balance differ, respondents will pray leave to state hereafter the exact balance; the 1,005 barrels of flour were received by us on the 2d January, 1865, after the seizure made in this suit, and were seized by Baur & Bohle in their suit against gmith, Bullies $ Qo, Sfo, 13053 of the £>ixth, District CQurt,”

The plaintiff, having obtained a judgment against the defendants for their claim, took a rule upon the garnishees to show cause why judgment should not be rendered against them for the amount of their judgment against the defendants, and Baur & Bohle were made parties to this rule. The rule was made absolute.

The garnishees first pleaded to the jurisdiction of the Third District Court, on the ground that the Sixth District Court was the proper one to distribute the proceeds of property attached among the creditors, but that exception has been abandoned in this Court. But they contend that the notice of seizure in the suit of C. & T. Schindler, served on the garnishees, on the 23d December, 1864, at half-past three o’clock, P. M., by having the same at their counting-room in the hands of a clerk, being the bookkeeper, was illegal and should have been served personally on the garnishees. We know of no law requiring a personal service of such a notice; the law requires a personal service of the interrogatories as an exception to the general rules, we cannot extend it to any other service. Baur & Bohle also brought a suit against the said Smith, Bullins & Co., and they garnisheed the said Bower, Garner & Harrison, and attempted to attach the same property attached by plaintiffs, and the question arises as to who has priority between these two attaching parties. Both suits were filed on the same day, 23d December, 1864; before the filing of the suit of Baur & Bohío vs. Smith, Bullins & Co. Bower, Garner & Harrison, the garnishees, accepted service as follows: Service of copies of petition, citation, order, and interrogatories received and service thereof accepted, New Orleans, December 23d, 1864. Signed, Bower, Garner & Harrison. Notice of seizure was served upon them the same day by the Sheriff, at a quarter to six o’clock, P. M. The waiver and acceptance of service are written on the petition, and were made in the office of Baur & Bohle’s attorney, before the filing and the existence of any order of attachment.

The laws of attachment must be strictly construed and applied, otherwise they will not avail the attaching creditor.

The 4et approved March 18, 1858, p. 176, provides that no seizure shall bind any property or effects, rights or claims in the hands of garnishee, either under process of attachment or fieri facias, unless service of the interrogatories has been personal upon such garnishee.

Now the question arises : can a garnishee voluntarily accept or waive service of the proceedings which are directed by law, to be served by an officer of Court ?

We are of opinion he cannot, and if he do, it is not binding, either on another attaching creditor or on the debtor. The garnishee, in the eyes of the law, is a mere stakeholder, a custodian of the property attached in his hands; he has no pecuniary interest in the matter; he has no cost to pay, and therefore none to save; his business is to let the law take its course between the litigants; he has no right to accept or waive service of the proceeding, thereby favoring one party at the expense of and injury to another, and creating actually a privilege with priority in favor of one creditor to the prejudice of another. Therefore, the said acceptance or waiver of service being a nullity, and the garnishees not having been legally' served with the process in garnishment, nothing was attached by said Baur & Bohle, in the hands of the garnishees, on tho 23d December, 1864. Nelson v. Simpson, 9 An. 311; Rightor v. Phelp, 16 An. 105.

Baur & Bohle, by a supplemental petition, took other proceeding in attachment on the 2d January, 1865; the same garnishees were duly served with the necessary proceedings, and the Sheriff took actual possession on board of the steamer Pauline Carroll, of the flour comprised in the two bills of lading, which were in the hands of said garnishees when they were duly served, on the 24th of December, 1864, with all the necessary proceedings in garnishment, in the suit of C. &T. Schindler; the control and legal possession of the flour were then in the garnishees’ hands under the bills of lading, and out of the power of the debtors, and the carrier held the flour for said garnishoes as holders of the bills. After shipment, the carrier holds the property for the lawful holder of the bill of lading; if it be drawn in the consignee’s favor, the consignee’s possession and control are gone, and with them his privileges as vendor. Fetter v. Field, 1 An. 80; see also 4 An. 452, 9 L. 322. Therefore the process of attachment served on the 24th December, 1864, by C. & T. Schindler, on Bower, Garner & Harrison, consignees and garnishees attached the flour in transitu, subject to the claims of said consignees; and when Baur & Bohle attempted to attach the same flour on its arrival in New Orleans, and on board the steamer, they could not affect the previous attachment of C. &T. Schindler.

But we think the judgment rendered below upon the rule, against the garnishees, must be modified. There are two concurrent attaching creditors; the plaintiffs in this case, who have obtained a judgment for $1,950, with interest, and Mahoney & Stutz v. the same defendants and garnishees, for $1,760, with interest, and it seems by their answers that tho garnishees have in their hands only about $2,869 76, subject to distribution between the said two concurrent attaching creditors.

It is therefore ordered and decreed that the judgment appealed from, be so modified as not to make the said garnishees liable for more than they have in hand, say $2,869 76; to be proportionably distributed between said two concurrent attaching creditors, and that as amended the said judgment be affirmed, the appellees to pay the costs of appeal.


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    Mahoney & Stutz v. Smith, Bullins & Co.
    APPEAL from the Third District Court of New Orleans,

      FeUowes, J. W H. Hunt, for plaintiff. F. W. Huhtington, curator ad hoc. Geo. L. Bright, for garnishees.
   Labauve, J.

The plaintiff instituted this suit on the 24th December, 1864, claiming of the defendants, who are non-residents, the sum of $1,760, with interest, and garnisheeing, at the same time, Baur, Garner & Harrison.

This case presents, in all respects, the same pleadings, services, issues, defences and questions as in the suit of C. & T. Schindler against the same defendants and garnishees, No. 745, in this Court, and just decided: both cases were tried together here, and for the same reasons'given in the decision of said case, we must render the following decree :

It is therefore ordered and decreed, that thq judgment appealed from be so modified as not to make the said garnishees liable for more than they have in hand, say $2,869 76, to be proportionably distributed between said two concurrent attaching creditors; and that, as amended, the said judgment be affirmed, the appellees to pay the costs of appeal.


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    Francoise Galoche v. Grivot and Wife.
    When, for purposes of justice, the law allows a fictitious citation in place of a real one, it is necessary that all the formalities required to operato tho legal fiction should be sti'ictly observed.
    When a citation is addressed to an officer of the Court, through whom defendants are to be brought into Court, the title of his office should be stated in the citation ; and defendants cannot be bound by a citation neither addressed to them, or to the proper officer in his official character.
    A citation served on a curator appointed by the Court, must be addressed to him in his official capacity; this official capacity must be statod in the citation, otherwise the parties whom he represents are not in Court, and an answer filed by the curator does not cure the defect.
    APPEAL from the Second District Court of New Orleans,

      Thomas, J. Roselius <& Grivot, for appellants. R. H. Grandmont, for appellee.
   Hyman, C. J.

Erancoise Galoche sued defendants to have a donation, made by him to them, on the 29th of January, 1851, of a certain lot in the city of New Orleans, revoked.

In her petition she alleged that defendants were absentees, and, at her instance, Joseph P. Horner was appointed by the Court curator ad hoc, to represent them in the suit.

Thereafter, Erancoise Galoche, deceased, and Theodule Perin, alleging himself to be the executor of her succession, and Margaret Bonnaud, averring that she was the universal legatee of the deceased, were, by order of Court, on their prayer, made parties to the suit,

On the 7th of December, 1864 the Court rendered judgment, revoking and annulling the donation of the lot. From this judgment defendants have appealed. '

The only question necessary to be decided on this appeal is, whether the defendants are properly in Court ?

The citation served on the curator, appointed by the Court to represent defendants, was addressed “to Joseph P. Horner.”

The appellees contend that this address was sufficient.

We deem otherwise.

In ordinary proceedings, citation is tho very foundation of tho suit.

For purposes of justice, tho law allows, in certain cases, a fictitious citation in place of a real one, and it is necessary that the formalities required to operate tho legal fiction should be strictly observed.

When citation is addressed to the officer of the Court, through whom defendants are' to be brought into Court, the title of his office should bo stated in the citation, and defendants cannot bo considered bound by a citation neither addressed to them nor to the officer in his official character. 13 An. 405.

Joseph P. Horner, as curator ad hoc, filed an answer for defendants, and the appellees contend that, if there be a defect in the citation, it was cured by tho answer of the curator.

The curator had no capacity to act as such until served with regular process. See 12 Robertson, 541.

, It is decreed that the judgment of the District Court be reversed, and that the oase be remanded for further proceedings in accordance with law.

Appellees to pay the costs of appeal.


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    A. Marchand v. James Coyle.
    The word ? ceord does not mean copies, and it is the duty of parties who offer records-in evidence to procure and file copies in tho District Court, in due timo, if they dosiro this Court to consider such records as evidenco.
    APPEAL from the Sixth District Court of New Orleans,

      Duplantier, J. Durant & Horner, for appellant. Buchanan <& Gilmore, for appellee.
   Labauve, J.

The plaintiff claims of the defendant $782, with interest, upon a note dated 14th April, 1863, for $732, and a due bill for $50, dated Í2th May, 1863.

The defence is, in substance, a general denial, and that said obligations were made due at Ponchatoula, in this State, then in the hostile possession of the enemies of the United States; that the same had been brought contrary to law, within the jurisdiction of the Court, and that the payee thereof, or his assignee, the plaintiff, has no cause of action upon the same, or any right to stand in judgment.

The District Court gave judgment in favor, of the defendant, and the plaintiff appealed.

Upon the trial below, the defendant offered in evidence the record in the case of Marchand v. Coyle, in the Third District Court of New Orleans. The record of this suit is not comprised in the transcript of appeal brought up, and the certificate of the clerk shows that it contains all the documents filed. This shows that the defendant did not offer and file copies of the record of said suit. The word record does not mean copies; and it was his duty to procure and file copies in duo time. This case, as it is seen, was tried in the Sixth District Court, and the record offered in evidence was in the Third District Court; for all this the plaintiff and appellant cannot be blanked, and the case must be remanded, at the costs of the appellee. C. P. Art. 906. Abat & Generes v. Harris, 16 An. 183. Evin v. Murphy, 11 R. 477. Lyon v. Andrews, 5 An. 602. Barrow v. Landry, 12 An. 83.

It is therefore ordered and decreed, that the judgment appealed from be reversed, and that the case be remanded, to be proceeded in according to law, and that the defendant and appellee pay the costs of appeal.


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    Moore & Browder, for the use of C. E. Alter, v. T. B. Bres.
    Whore a party brings suit for the use of another, tho party bringing the suit has tho legal right to control the suit, and if he of his motion discontinues or dismisses tho suit, the party for whose uso the suit was brought, is without legal right or authority to prosecute it to judgment for his own benefit.
    APPEAL from the Sixth District Court of New Orleans,

      Theard, J. Elmore & King, for appellant. Race, Foster á Merriclc, for appellee. R. H. Moot, for Moore & Browder.
   Labatjve, J.

This case presents a sole question of law; none of fact. The plaintiffs, Moore & Browder, brought this suit for the use of Chas. E. Alter, and at the same time, on filing a bond and the affidavit required by law, sequestered sixty-four bales of cotton in the hands of the defendant, upon which they alleged a privilege. They pray that there bo a judgment against the said defendant for the use of said Alter, ordering said cotton to be delivered to them, to be sold to pay the debt.

On the 20th November, 1885, on motion of R. H. Marr, of counsel for' Moore & Browder, it was ordered by the Court that this suit be dismissed so far as Moore & Browder were concerned, without prejudice to the right of C. E. Alter to prosecute his demand.

The Court ordered that said motion and order be served on Elmore & King, as attorneys for Alter, and that they show cause on Saturday next why the said suit should not be discontinued, as moved for.

Elmore & King answered that said Moore & Browder had no interest in this suit, that they were nominal parties, and had no right to interfere or do anything adverse to the rights of C. E. Alter.

On the 25th November, 1865, on motion of Race, Foster & Merrick, of counsel for defendant:

It was ordered by the Court that plaintiffs and Charles E. Alter, show cause instanter why the order allowing said Alter to bond the 64 bales of cotton sequestered, should not be rescinded, as having been wrongfully obtained, substantially on the grounds:

That the ten days had not expired. That the plaintiffs had taken a rule to dismiss the suit; that said Alter not being plaintiff, could not bond; that the petition discloses no legal right in said Alter to the possession of said cotton as owner, or in any other manner, nor any right or privilege upon the same.

On a hearing the Court set aside the order allowing Alter to bond the cotton, and ordered the Sheriff to take possession of the same subject to the order of the Court.

On the 25th November, 1865, the motion to discontinue the suit, filed by Moore & Browder, having been considered by the Court, the suit was ordered to be dismissed, plaintiffs paying the cost.

From this judgment, dismissing the whole suit, and setting aside the order allowing the cotton to be bonded by said C. E. Alter, this appeal is taken by said C. E. Alter.

Now the plaintiffs, Moore & Browder, having dismissed the suit on their own motion, the question arises : Is Charles E. Alter, for whose use the suit is brought, a party plaintiff who can prosecute the suit and stand in judgment ? It is contended by his counsel that he is the real plaintiff, and that Moore & Browder are nominally so. On the other side, it is urged by the defendant’s counsel, that there is now before the Court no party plaintiff who can carry on the suit to judgment.

The practice of sueing for the use of another, is based upon the ground that whoever has the legal title and can sue for himself, may sue for tho benefit of whom he pleases, in the same manner as he might dispose of the funds after judgment, if he sued in his own name. 19 L. R. 207.

The question presented here is whether the plaintiffs, Moore & Browder,. had the control of the suit, and having dismissed it, whether C. E. Alter remained in Court with legal authority to prosecute it for his own benefit.

We are of opinion that the right to sue, being in Moore & Browder, they had the control of the suit which, being dismissed on their own motion, left C. E. Alter without legal right or authority to prosecute it to judgment for his own benefit.

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