text:
    No. 3759.
    Charles Lafitte et al. v. Mrs. M. C. Daigre et al.
    A .judicial sale of tho property of tlie widow to pay her indebtedness to her minor children as their tutrix, is not a simulation merely, and can not therefore be disregarded by the creditors of tho widow. If the creditors wish to attack such a salo on the ground of fraud they must bring their action within one year, otherwise it is prescribed.
    Appeal from the Fifth Judicial District Court, parish of East Baton Rouge. Posey, J.

      Favrot & Ramon and White and Robertson, for plaintiffs and appellants. Samuel P. Greves and A. S. Herron, for defendants and appellees.
   Taliaferro, J.

The issues involved in this case, with tho exception perhaps of one only, have been presented for the consideration of this court in two cases against the same defendants, at the suit of E. Fendler. See 19 An. 190 and 22 An. 289.

In this case the plaintiffs attack the account rendered to her children in 1861, the adjudication to herself at that time of certain property alleged to have belonged to her husband, and seek to have declared null, as simulated and fraudulent, the alienations and transfers of property made under sanction of the decree promulgating her account of tutorship.

It appears that Gilbert Daigre, husband of Mrs. Mary Daigre, one of the defendants, died in the year 1859. Mrs. Daigre became the tutrix of her minor children and in that capacity administered the estate. She caused to be adjudicated to herself by due legal proceedings the property belonging to her minor children, and this adjudication was homologated in April, 1860. In March, 1861, she filed a-provisional account of the tutorship and therein charged herself as indebted to her three minor children in the sum of $31,879 each. In 1865 she filed her final account. In her petition she sets out that since the filing of her provisional account she has had no further account to render, and prays to be authorized to settle with the heirs on the basis of the provisional account. After due notice the account was homologated in May, 1865. By the exhibit made, the tutrix owed two ot the children the sum of $63,758, for which they held a special mortgage on the Mulberry Grove plantation, under the judgment of the court homologating the account Mulberry Grove was sold at probate sale and was bought by Gilbert and Lucy, the two heirs to whom she was indebted. The property brought $23,000. In further satisfaction of the judgment Mrs. Daigre made a transfer of her interest in certain notes and movables amounting to $16,735. Subsequently, in further satisfaction of the judgment, a house and lot in Baton Rouge was sold and brought $1323, leaving a balance due of $22,700.

The plaintiffs hold claims against Mrs. Daigre arising from obligations contracted by her in the year 1863. These claims were sued upon and judgments obtained upon them in 1865. The two sales and the transfer made in satisfaction of the judgment obtained by the heirs against Mrs. Daigre, took place early in August, 1865, and the plaintiffs’ judgments were not rendered until the month of December following. This action to annul and set aside the various acts complained of by the creditors was not begun until the year 1870.

The creditors urge that the property they allege the defendant, Mrs. Daigre, sought to screen from their pursuit is more than sufficient to pay the whole amount she may justly owe the heirs upon a just settlement with them.

They allege that a large amount of the adjudication to the widow, in 1860, was illegally made up of the separate property of her husband which she had no legal right to have adjudicated to her. They also, contend that a large part in value of the property of the community which was legally adjudicated to her was composed of slaves, and to the extent of their value she was under no obligation to pay the heirs anything.

The defendants make a general denial and plead the prescription of one year in bar of the plaintiffs’ action to disturb the sales and transfer of the property they acquired in payment of their claims against Mrs. Daigre. There was judgment in favor of the defendants and the plaintiffs have appealed.

It is clear that the acts sought to be annulled and set aside in order to subject tlie property transferred to tlio payment of the creditors are not simulated transactions. The plaintiffs indirectly admit the indebtedness of Mrs. Daigle to her children, growing out of tho adjudication to her of their property in 1SG0, two or three years before she became indebted to the plaintiffs. At the time she filed her provisional account in 1861, she was wealthy, and if indebted at all to other persons than her own children, whose half of a large community estate unincumbered, she had acquired, the indebtedness was insignificant compared with tho ample means she then possessed. The acts complained of are without doubt actual and real contracts, notwithstanding they may be fraudulent in the matter of running up fictitiously .a larger indebtedness than really existed, in order to cover all the property of the debtor from the reach of the suing creditors.

The prescription of one year within which the revocatory action must be brought therefore prevails in this case against the plaintiffs. Civil Code, articles 1987, 1994, 3978. The simulated sale transfers no title, it is not a contract, a mere spectre, an empty shadow without substance, an airy nothing, presenting no barrier to the creditor in pursuit of his pledge, the property of his debtor. The actual though fraudulent contract is an impediment in his way which he is compelled to remove before ho can continue his pursuit, and he must set about the work of removal within a year after it is interposed, otherwise the barrier becomes immovable.

The judgment of the lower court is correct, and it is therefore ordered that it be affirmed with costs.

Rehearing refused.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    No. 3715.
    Succession of H. Johnson — On Rule of Emily Hoffman et als.
    A particular legatee, as a general rule, can only claim interest on the legacy from the day tho demand of delivery was made. R. O. C. 1626. But if, as in this case, the testatrix has fixed a day at which it "becomes exigible, and the executrix charged with the execution of tho will, which confers the legacy, has ordered its execution and has classed tho legacy as a debt against tho succession, then and in such case interest is duo on tho particular legacy from tho date at which the testatrix has classed it as a debt.
    Appeal from the Parish Court of Pointe Coupee. A. Bouanchaud, Parish Judge.

      Fdward Phillips, for opponents. JP. IT. Farrar, for executrix.
   Howell, J.

Mrs. Johnson, wife of the late Henry Johnson, by her last will gave her whole estate to her husband, except certain legacies to the plaintiffs in this rule, to be paid after the death of her husband, whom she appointed executor without security, and who probated the will and took possession without making an inventory, as suggested in the will. In his will he directed that tho legacies made by his wife to the plaintiffs be paid by his executor as soon as practicable out of tho first moneys collected of his estate. These legacies have been paid in principal, but tho plaintiffs are claiming, in this proceeding, interest ■thereon from the date of Henry Johnson’s death. The executor contends that these are particular legacies, on which interest can be claimed only irom the date of a formal demand on him, which has never been made, and he cites articles 1626 to 1630 R. C. C. and 17 La. 312.

These articles would apply if plaintiffs were claiming from tlie succession of the donor, Mrs. Johnson, but they are claiming from the succession of Henry Johnson, who admitted tho validity and binding form of his wife’s will, and has directed its execution. He accepted the legacy to himself, with the charges and conditions imposed on it by the testatrix, and he has by his conduct assumed tho payment of the particular legacies as debts at the time fixed by the said testatrix, to wit: the date of his death. They were, therefore, due at that date, and by law would bear interest from that date-. C. P. 989.

No question of the legality or validity of the dispositions of Mrs. Johnson’s will is raised. Her husband and universal legatee, as already remarked, has-recognized their legality and ordered their execution.

Judgment affirmed.


author: Ludeling, C. J.

text:
    No. 3862.
    Farmers’ and Manufacturers’ Aid Association v. E. D. Strawbridge et al.
    Tho appeal -will bo dismissed ou motion, if moto than three judicial days pass, after tho return day, before tlie record is filed in tlie appellate court.
    from the Sixth Judicial District Court, parish of St. Tammany. Ellis, J.

      J. M. Thomson, for creditors and sheriff. T. and J. Ellis and H. JD. Ogden, for defendants and appellees.
   Ludeling, C. J.

The motion to dismiss the appeal in this case must prevail. The return day for appeals from the parish of St. Tammany is tho second Monday of February of each year. Acts of 1870, No. 44, p. 99. Tlie second Monday of last month was tho twelfth.. This transcript was not filed until the twenty-eighth of February.. More than three judicial days having elapsed after the return day, and the date of filing the transcript, the appeal must be dismissed. C. P. 587, 88-1; 3 An. 226; 21 An 212.

It is therefore ordered that the appeal be dismissed at the costs of appellants.


author: Lxjdeling, C. J.

text:
    No. 3766.
    A. Levi v. Corkern and Husband, Co-Administrators, et al., W. H. Lecthford & Co., Intervenors.
    Tlio action for a separation of patrimony is proscribed by tbo lapso of three months.
    Appeal from the Sixth Judicial District Court, parish of St. Helena. Filis, J.

      Fuqua & KUbourne and MoVea & Hinder, for plaintiff and appellant. T. <£ J. Filis, for defendants and appellees.
   Lxjdeling, C. J.

The plaintiff sued the administrators of the succession of K. Thompson and hi* surviving widow and heirs on two promissory notes executed by the deceased Thompson, and to revoke certain donations made to his child en during his life, aud for personal judgment against tho widow and children, Letchford & Co., who had a judgment against Thompson before his death, intervened in tlio suit and prayed for the same thing.

If this bo regarded as a suit for a separation of patrimony, tho prescription of three months must be maintained; if it be regarded as an action to revoke, the sales before, tho death of the lather, on tile ground of fraud, they have failed to establish fraud At, the time the. donations were, made the father was perfectly solvent, and he continued to be solvent, until his death. The evidence in the record shows that at the rime ol his death he had in his possession several thousand dollars, which were divided, among the heirs after his death. Tho judgment against the widow in community and the heirs personally is correct. It is therefore ordered and adjudged that the judgment of the lower court bo affirmed, appellants to pay the costs of this appeal.


author: Ludebing, C» J.

text:
    No. 3817.
    Tom Bynum, Administrator, v. Caroline Bynum, Administratrix.
    Tho parish court lias uo jurisdiction in a contest between two .successions, where one claims an amount of money from the other above five hundred dollars.
    Appeal from the Parish Court, parish of Rapides. II. L. Baigre, Parish Judge.

      B. J. Bowman, for appellant. R. A. Hunter and J. Q. White, for appellee.
   Ludebing, C» J.

The petition represents than Polycarp Lemothe died in 1859, leaving a plantation with a large number of mules, cattle and sheep tliereou. and two thonsand bushels of corn and seventy bales of cotton, all of which was taken possession of by Editli Lomothe as survivor and usufructuary. That Edith died in 1869 without accounting for the personal property. Petitioner claims that the laud and property above mentioned was community property, and as the representative of Polycarp Lemothe’s succession claims to be eutilied to an undivided half oi the land, which he prays may be partitioned and for a judgment for tlie value of one-half of the said personal property against tlie succession of Edith Lemothe.

The defendant filed a plea to the jurisdiction of the parish court, which was sustained, and the plaintiff has appealed.

This is substantially a suit by one succession against another succession to recover real property, and for a judgment for the value of personal property, disposed of by the deceased widow, exceeding in amount five hundred dollars. Tho plaintiff’s attorney insists that this ease is similar to the case of Pennisson v. Pennisson, reported 22 An. 131, in which we held that the parish court had jurisdiction. Tho facts of tile two cast's are entirely different.. In the latter case nothing was asked for but a partition of the property of tlie successions among tlie co-heirs themselves. In the present suit, the succession of Edith, Pol.\ carp is sought to be made responsible for a large amount of money, the value of personal porperty, which she received and disposed of after the death of her husband. In the Pennisson case tho contest was among tho heirs alone; in the present suit, it is between the administrators of two successions. See 15 La. 456. B.idon’s Heirs v. Eaueher et al. 16 La. 89; 8 R. 18; Stewartv. Pickard; Constitution, article 87.

It is therefore ordered that the judgment of tlie court a qua be affirmed with costs of appeal.


text:
    No. 3773.
    Joseph Wetherow v. Jesse Croslin.
    An attachment that lias been granted on the oath of tlie creditor, that the debtor was about to convert liis property into money, or evidences of debt, with intent, to place it beyond tho roach of liis creditors, should not be dissolved on motion of the debtor, that tho aflidavit is false, if the evidence offered on the trial of the motion shows that the debtor was making an effort to sell his property, or place it out of his hands.
    APPEAL from the Thirteenth Judicial District Court, parish of Madison. Hough, J.
    F. F. Farrar, for plaintiff and appellant. TPeZZes <& Mamey, for defendant and appellee.
   Ludeling, C. J.

The plaintiff sued the defendant, on a promissory note, for six hundred and seventeen dollars and twenty-five cents, and he obtained an attachment against the defendant on the ground that he had reason to fear or believe that defendant was about “ to convert his property into money or evidences of debt, with intent to place it beyond the reach of his creditors.”

The defendant (without answering to the merits) filed a motion to dissolve the attachment, on the ground that the affidavit is false, “that defendant never made any attempt to dispose of liis property, nor desired to do so at any time prior to filing this suit.”

The motion was tried and tlie attachment was set aside. Prom this order tlie plaintiff lias appealed.

The defendant swore, on the trial, that he never offered to sell any of his property before the filing- of this suit, nor did he tell any one he wanted to sell Ms property, etc.

The plaintiff, on the other hand, swore that he was informed by different parties that defendant had proposed to transfer his property to them to avoid paying his debts; that J. W. Clark was one of the persons who gave him this information, and that one Otis had exhibited to him a paper, whereby defendant had turned over to Otis some ■of his property. And Clark testified, “that sometime during last summer, previous to the seizure of tlie property of Jesse Croslin, defendant proposed to turn over to witness his property, stating- as his reason for doing so, that he owed Mr. Witherow, plaintiff, and Mrs. Bauer, some money, and was unable to pay them at that time; that they wore going to sue him, and he wanted to keep Ms property, but wanted to pay them.”

It is manifest the judge of the court « qua erred in dissolving the attachment. C. P. 240.

It is therefore decreed that the order dissolving the attachment be •annulled, and that the attachment be reinstated, and that appellee pay costs of this appeal.


text:
    No. 3763.
    M. A. East et al. v. H. A. Ealer.
    Movables, such as bricks in tbe kiln on a plantation, do not pass to tbo vendee by a sale of tbe land, unless it is so expressed in tbe deed of sale. A purchaser of a plantation who converts tbe bricks in tbe kiln to bis own use, with tbo knowledge at tbe time of tbe purchase that they bad been previously sold to another person by bis vendor, is therefore liable to tbe owner for their value.
    from the Fifth Judicial District Court, parish of East Feliciana. Posey, J.

      Kilbourne & McVea, for plaintiff and appellee. Kernan & Lyons, for defendant and appellant.
   This case was tried by a jury in the court below.

Howell, J.

On the fifteenth of September, 1866, the plaintiff purchased of Mrs. Nolan a brick kiln, containing about one hundred thousand bricks, on the plantation of the owner, in the parish of East Feliciana, with the l-iglit to remove them at pleasure — the delivery being acknowledged by the purchaser. In the following year the plantation with appurtenances was sold to F. Powers,.who recognized plaintiff’s ownership of the bricks, and hired her his wagons to remove a part of them. The plantation was reconveyed to Mrs. Nolan, who early in 1868 sold it with the appurtenances to H. C. Ealer, residing in St. Louis, Missouri. His agent and manager II. A. Ealer, the defendant, moved upon the plantation and conducted the planting operations-During the year plaintiff sent teams to haul away the balance of the-bricks, but was prevented by the defendant from doing so, whereupon-this suit was brought for the value thereof. The defendant pleaded the general denial and alleged that at the date of filing the petitionIí. C. Ealer, who was the purchaser of the plantation and bricks, was-dead. It appears, however, that before he filed his answer he had' taken a title to the said plantation from the widow of the deceased, H. C. Ealer, and he filed no exception to the suit against himself. The a,ct of sale from Nolau to Powers is similar, in the description of the property, to the one from Nolan to Ealer, and neither one makes-any mention of the bricks, which, being movables, were therefore not conveyed by the said act. And there is evidence that defendant was-aware that plaintiff had purchased them from Mrs. Nolan before she-sold the land.

. ' Under these circumstances the plaintiff is entitled to the value of the bricks which have been converted by defendant to his own purposes. A jury found for plaintiff.

' Judgment affirmed.


author: Taliaferro, J.

text:
    No. 3819.
    Elizabeth Mangum v. W. A. Bacon, Administrator, et al.
    The widow, left in necessitous circumstances, has tlio right to recover from tlie succession of her husband one thousand dollars in preference to the mortgage creditors, in case-she has already received a portion of this amount from the sale of personal property, it will be deducted from the one thousand dollars, and she will recover the balance.
    Appeal from the Thirteenth Judicial District, parish of Carroll.. Sough, J.

      J. B. Leonard, for plaintiff and appellant. S. J.. Seloney, for defendant.
   Taliaferro, J.

Lane, Salter & Co. proceeded by order of seizure- and sale against certain lands mortgaged to them by the plaintiff’s-husband, whose succession is administered by the defendant Bacon. The plaintiff, the widow of W. A. Mangum, comes in by third opposition, alleging that at the death of her husband she was left in necessitous circumstances, and she prays to be allowed one thousand dollars under the provisions of the law in such case provided. The mortgage creditors answered this demand, setting up various grounds to show that the plaintiff should not succeed in her opposition. The judge a quo found that the opponent had received of the personal property of the estate to the value of one hundred and twenty-eight dollars, and deducting that- sum from one thousand dollars, he gave judgment in-favor of, the plaintiff. The creditors.have appealed.

There is no error in the judgment. The claims of the plaintiff are-clearly made out. It is therefore ordered, adjudged and decreed that-the judgment of the district court be affirmed, the appellants paying-costs in both courts.


text:
    No. 3769.
    Mary A. Wells and Husband v. C. W. C. Walker.
    In a sequestration suit tlio surety on the bond must resido in tho parish whore tho process is taken out. Tho samo rule applies in caso of appeal. The surety on the appeal bond must, therefore, reside in the parish from which the appeal is taken.
    Appeal from the Ninth Judicial District Court, parish of Grant. Orsborn, J.

      TV. B. Hyman and JR. J. Bowman, for plaintiffs and appellees. JR. A. Hunter, for defendant and appellant.
   Taliaferro, J.

There is a motion to dismiss this appeal on the ground that the surety on the appeal bond resides in the parish of Rapides, and not in the parish of Grant, where the judgment appealed from was rendered. The parish of Rapides is within the Ninth Judicial District. :

In cases of sequestration, it has been determined that sureties on bonds are by law required to bo residents of the parish whore the process is taken out. The same terms are used in the Code of Practice in regard to the sureties on appeal bonds that are used in reference to-sequestration bonds, viz : that a surety shall be given “ residing within the jurisdiction of the court.” We think the same reasoning applies-to both classes of sureties. JEadem ratio, eadem lex. 14 La. 245; 1 An. 306.

It is ordered that the appeal be dismissed.


text:
    No. 3827
    J. Wentz, Administrator, v. H. J. Ledoux et als.
    A sheriff who has boon ordered to sell property and retain tlie proceeds subject to the further order of the court, must account for the proceeds whenever called upon. And the sureties on his official bond, who have subscribed as such before he is called upon to pay, are liable in case of failure of the sheriff to pay over tho funds when demanded, although their liabilities as sureties was contracted since the sheriff came in possession of the funds which ho was ordered to hold subjoct to the further ordor of the court.
    from the Seventh Judicial District Court, parish of Pointe Coupee. Miller, J.

      Barrar & Montgomery, lor plaintiff and appellee. Edward JJMllips, for defendants and appellants.
   Howell, J.

This is an action against the sureties on a sheriff’s official bond, to recover a sum of money which the said sheriff was judicially condemned, in certain proceedings against him as sheriff, to pay to plaintiff.

The sureties seek to escape liability on the ground that the funds in question came into tho hands of their principal before the date of tho bond signed by them, and that, as he claimed to be entitled thereto, and to retain the same prior to said date, the act complained of was committed before they undertook fo insure his official faithfulness, their undertaking being for his future acts.

In March, 1868, he was ordered to sell certain property under scizure, and to retain the proceeds subject to tlie order of the court. The bond signed by the defendants is dated twenty-second July, 1808, and ■it recites that he (L. B. Dayries was elected sheriff of the parish of Pointe Cou-pee, thus bocoming his own successor, and charged with all the duties pertaining to the office. In 1870, legal proceedings were instituted against him as sheriff by the plaintiff, for the funds which he, ns sheriff, liad been ordered to hold subject to the order of the court, and lie was condemned to pay over the sum claimed herein, being the amount of the proceeds of the property sold by him as sheriff, less his official charges. He therefore received these funds in the first place as sheriff, and alter giving the bond signed by the defendants, he continued to hold them in the same capacity, and his failure to pay when demanded was a failure of official duty, while said bond was in force, for which his sureties for his official faithfulness are ."responsible. The fact that he had, during his previous official term, ■considered himself entitled to the whole of the proceeds of the property for costs, did not change the character in which he was holding them and in which, upon a hearing he was, during the present term, •ordered to pay. The act complained of is his refusal to pay when ¡legally called on.

There was no error in not permitting him to testify in this snifc that ■prior to Ms election in 1868, ho considered himself entitled to the whole of the money, as it was not pretended that ho was condemned to pay more than ho was legally bound to pay. The fact that ho had ■set up such a pretension at that time, is no justification for his refusal •to pay what the court subsequently ordered him to pay.

Judgment affirmed.


author: Taliaperro, J.

text:
    No. 3649.
    State of Louisiana ex rel. The Board of School Directors of the parish of Bossier v. Thomas W. Conway, Superintendent of Public Education.
    A judgment of a court making a writ of mandamus peremptory is a final judgment wiiicli can not "be vacated or sot aside by the judge a quo on a rule taken by the defondant in mandamus. Suck judgment can only be annulled on appeal or by direct action of nullity.
    ¡4 PPEAL from the Eighth District Court, parish of Orleans. Dibble, J.
    ii. Dennee & Delden, for relators. D. Mlleul, for respondent.
   Taliaperro, J.

In this case a peremptory mandamus was issued to the defendant by the Eighth District Court of New Orleans commanclihg the defendant to register and file certain bonds tendered by the treasurer of the Board of School Directors of the parish of Bossier and to issue to the Auditor of Public Accounts and to the treasurer of the State the proper certificates according to law. He was further ordered to recognize Lambert W. Baker, J. W. Walker, William M.. G-riñin, J. K. O’Neal and B. P. O’Neal as tlie persons legally constituting tlie Board of School Directors of the parish of Bossier.

No appeal was taken from this order, rendered on tlie seventeenth' of October, 1871. On the seventh of December following the defendant Conway took a rule on tlie relators to show cause on tho twelfth of that month why the order previously rendered against him at the instance of the relators should not be vacated and annulled. The relators excepted to the proceeding to annul the judgment or order making their mandamus peremptory by the summary proceeding by rule. On the trial of this rule the court sustained the motion to set-aside and vacate the order, and from this judgment, annulling tk©peremptory order of the seventeenth of October, 1871, tlie relatorshave appealed. We think tho judgment erroneous. The order is a final decree or judgment. We regard the summary proceeding on motion “ to quash and vacate” a iormal judgment of the court as anomalous and not in harmony with the jurisprudence of the State.

It is therefore ordered, adjudged and decreed that the judgment of the lower court, purporting to annul and set aside the peremptory order of tlie seventeenth of October, 3871, be annulled, avoided and reversed. It is lurlher ordered that tho defendant pay costs in both courts.


text:
    No. 3754
    Amanda R. Richardson v. Mrs. E. E. Barrow et al., and Lehman, Newgass & Co. v. Mrs. E. E. Barrow et al.
    Iii this caso tbs judgment creditor.© of tho wife sought to enforce payment by a seizure and’ sale of her property. The husband brought suit by intervention, and alleged that tho property under seizure was encumbered by a tacit mortgage in favor of liis former wile and her heirs, to whom lie was tutor; that during the former marriage he was the owner of the property seized; that ho had received forty thousand dollars from his former wife of her individual funds, and had applied them to his own use for which ho had never accounted, and tho tacit mortgage attached to his property now under seizure. Ho further alleged his utter insolvency and asked that the proceeds of the sale of tho property be paid to him as tlie tutor of liis minor children by a former marriage, as their tacit mortgage on the property seized was superior to that of the suing creditors.
    Held — That tho tutor in order to pay a debt duo by himself to his minor children (ho being insolvent) could not bo allowed to reoeive the proceeds of tho sale of property subject to-a tacit mortgage, to secure said debt.
    from the Seventh Judicial District Court, parish of WestPeliciana, Miller, J.

      Samuel J. Potoell and Collins cO 'Lealce,. for tutor, opposing appellant. Winter & Butler, for .the creditors.
   Ludeling, C. J.

Amanda E. Richardson and Lehman, Newgas. & Co., having obtained judgments against Mrs. E. E. Barrow,, were proceeding to execute their judgments when John J. Barrow, the husband of Mrs. E. E. Barrow, instituted tho present suit. He avers that lie is the tutor of his minor children by a former marriage; that lie owed tlicm forty thousand dollars as the heirs of his former wife, in consequence of having received forty thousand dollars belonging to her and used it for his own benefit; and that the property now iu the name of his second wife, and against which her •creditors are proceeding, was burdened with tlie tacit mortgage in favor of his first wife for the forty thousand dollars, as the same property had belonged to him. lie avers that he is totally insolvent, and prays that tlie proceeds of the sale of the property be paid to him, as the tutor of his children, as tho tacit mortgage before mentioned is superior in rank to that of the creditors of his second wife. This might be a convenient arrangement for him, but what would become of the security, studiously provided by tlie lawmaker, 1 or the rights of the minors ? To jiay a debt due by himself to his children, he desires that the proceeds of property subject to a tacit mortgage to secure said debt he paid to him, the debtor, who is insolvent. It is the duty of courts to see that the rights of minors are not sacrificed, especially with their aid.

The judgment of the lower court rejecting tho plaintiff’s demand is •correct.

It is therefore ordered that the judgment of the lower court he affirmed with costs of appeal.


text:
    No. 3812.

    Succession of Wm. C. James — Opposition of McFeely to the Tableaux of Debts.
    Jn this case tlio wife became tho executrix oí her deceased husband’s estate, and placed herself on the tableaux, filed by her, as a creditor for the amount of her judgment against her husband. This item on the tableaux was opposed by the creditors on the ground that the judgment was void because it had not been executed.
    Held — That it being shown by the record that tho judgment of the wife against her husband liad never been executed, and that no proper effort to execute it had ever been made; that therefore it was absolutely void, and not properly placed upon the tableaux as a debt against the succession.
    In the same tableaux the executrix refused to place a judgment against her husband upon the tableaux as a creditor, on tho ground that it involved a slave consideration. Tlie record of the caso in which the judgment was rendorod being introduced showed that the plea of a slave consideration had been made, hut the proof offered failed to establish it. Held — That the judgment was 2n'02)erly ordered by tho judge a quo to ho jilaced upon the tableaux as a debt against the succession.

      & PPEAL from tlie Parish Court, of Rapides. Daigre, J.

      Eyan & 1A. White, for plaintiff and appellant. 11. A. llvnicr, tor opponent and appellee.
   Taliaferro, J.

The widow and executrix filed a tableaux of debts •of the succession, placing upon it her judgment against her husband for $7600, with legal mortgage from the twenty-third of October, 1865. This judgment was opposed on the ground that after obtaining the judgment no ulterior means of any kind were used to enforce it, and ■that it became a nullity.

The executrix refused to recognize McFeely’s judgment as a debt .«gainst the estate on the ground that it arose from a slave obligation ■■and to the refusal of the judge to hear evidence to that effect, the executrix reserved a bill of exceptions. The judgment of the parish •court ordered McFeely’s judgment to be homologated as a valid debt •against the succession, and rejected the judgment of the executrix as null and without effect. The record of the suit of McFeely v. James, ■the one in which McFeely obtained against James the judgment which the executrix refused to acknowledge, appears in the record. Evidence in that case was introduced to prove that the note was given for the .price of a slave, but it failed to establish the fact.

There was proof in regard to the wife’s judgment that it was rendered in 1865, and that no execution had ever issued upon it nor any .means used to enforce it. The succession is shown to be utterly insolvent. We see no reason for remanding the case, as we think the judgment was properly rendered.

It is therefore ordered that the judgment appealed from be affirmed, the costs of appeal to be borne by the succession. \


text:
    No. 3789.
    A. and Ed. B. Talbott v. The Parish of Iberville.
    As a general rule a parish ean not, through its police jury or otherwise, contract a debt or incur an obligation binding upon it without at the same time providing the means of paying such debt; but if the parish is involved in heavy litigations, the police jury have the right to contract with experienced attorneys, in addition to their regularly paid attorney, to aid in the defonse of such suits, and the parish is legally bound for the payment of their fees.
    from the Fifth Judicial District Court, parish of Iberville. Posey, J.

      A & P. B. Talbott, in propria persones, and*27Imore & King for plaintiffs. Breaux <& Fenner and Hall and George Wailes, for defendant and appellant.
   Taliaferro, J.

The plaintiffs bring this action upon a written -contract entered into between them and the president of the police jury of the parish of Iberville, acting on the part of the latter, whereby the plaintiffs, as attorneys at law, were engaged to render certain .specified professional services for the parish, for which they were to he paid $3600; six hundred dollars of which were to be paid in cash, the remainder to bo contingent upon the final termination of certain suits then pending in the courts against the parish j the plaintiffs to ■receive the whole amount in the event the cases should be finally -decided in favor of the parish. The cash payment was made, hut the remainder being withheld the plaintiffs instituted this suit, alleging ■.that they have rendered the stipulated services, that they have conducted the defense of the causes to a successful termination in favor of the parish, and therefore pray judgment for $3000 in conformity with the contract, and for legal interest from twenty-seventh of March, 1871.

The answer is a general denial. Several grounds are set up in defense. These are that Dubuelet, the president of the police jury?was without authority to contract the obligation declared upon. That the parish had its own attorney who received a salary from the parish, and whose duty it was to attend to all the legal business of the parish; the employment of other attorneys being improper and illegal.

The plaintiffs had judgment for the amount claimed, and the defendant has appealed.

The only grounds urged in opposition to this claim that we deem it necessary to consider, is that police juries are corporate bodies of special and limited powers which are to be strictly construed, and that they are by statute prohibited from contracting debts without “fully providing in the ordinance creating the debt the means of paying the principal and interest of the debt so contracted.” Revised Statutes, section 2786. Section 2743, Revised Statutes, confers upon police juries the right “to lay such taxes as they may judge necessary to. defray the expenses of their respective parishes.”

The only question to consider here' is whether in providing for' expenses of the parish the police jury was authorized to provide for the-payment of the attorney’s fees in question as' a part of the necessary current expenses of the parish, and to determine this question we must advert to the facts and circumstances existing at the time. Suits for various sums, amounting in the aggregate to over forty thousand dollars, were instituted against the parish, which the police jury judged it important to the parish to defeat. To this end it was deemed prudent to employ able and experienced counsel to aid the parish attorney in the defense of these cases. The parish, as a political corporation, acting through -the members of the police jury as their agents, was clearly competent to use the ordinary legal means of defense when assailed by parties seeking to enforce against the parish heavy debts and liabilities. There was nothing to prohibit the corporation from employing other attorneys in aid of its own in defense of law suits which might seriously affect the interests of the people of the parish. The discretion to do so we think can hardly be questioned. The compensation to counsel so employed may fairly be considered a contingent expense, and properly ranked among other current expenses which the police jury is authorized to provide for. An estimate of expenditures for the year ending June, 1871, was made and adopted by the police jury on the eighth of September, 1870; one item in this estimate is “for lawyer’s fees, as per contract of late police jury, $10,000.” Several ordinances are found in the record, one of them showing the authorization of the police jury to Dubuelet to engage counsel;. another, the ratification of his contracts with tho plaintiffs anil the late-Hon. Zenon Labauve, as counsel for the purpose required, and a third directing the payment of tho six hundred dollars cash to tlieplaintiffs. The contract entered into with the plaintiffs is dated the tenth of January, 1870. There was an ordinance passed the second of January, 1871, repealing the one approving and adopting the estimates-of September 8, 1870. This could have no effect on the obligation of-the parish to the plaintiffs, who had contracted and rendered their-services previously.

There are two bills of exceptions in the record, but their examination is not called for in the decision of the case.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of the district court be affirmed with costs.


text:
    No. 3735.
    Webster & Co. v. Ross E. Burke.
    Tho testimony of one witness to the correctness of an account, above five hundred dollars, is sufficient to confirm, a judgment by default. 4 Rob. 258; 10 An. 270.
    from the Ninth Judicial District Court, parish of Natchitoches. Orsborn, J.

      J. P. Smith, for plaintiffs and appellees.. Pierson efi Levy, for defendant and appellant.
   Taliaferro, J.

The plaintiffs sue on an account for supplies furnished, amounting to $652 79, with interest from nineteenth November, 1870. The defendant was duly cited, a judgment by default regularly taken and afterward final judgment rendered. No defense was made. A witness introduced by plaintiffs testified that the defendant admitted to him that the debt was due and unpaid. There was judgment as prayed for by the plaintiffs and a third party has appealed. The appellant alleges that he is a creditor of the defendant and also his assignee and charged by him with tho administration of his property for tlio benefit of his creditors. That tho judgment confers an unjust preference in favor of plaintiffs over tho other creditors of the defendant, and that lie is interested in having the judgment-annulled and set aside. lie avers that the judgment was rendered upon sufficient evidence.

We see nothing, in the defense sot up in this court. It has been long, settled that a judgment, by default is a sufficient corroborative circumstance with the testimony of one witness to establish a claim amounting to more than five hundred dollars. 7 La. 181; 4 Rob. 258; 10 An. 270.

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


text:
    No. 3770.
    Mrs. A. LeBlanc, Wife, etc., v. Mrs. R. Dayries and Husband et al.
    "Where a judgment of separation of property lias been executed or partially executed by tlie husband giving to the wife in payment thereof certain real estate within a reasonable time after its rendition, a creditor of the husband can not maintain a seizure of the property thus given in payment or part payment of the wife’s judgment of separation, on the ground that such judgment is void for want of prompt execution thereof. In such a case the wife having established the validity of her judgment, and her title to the property, which she acquired from her husband in payment thereof, is entitled to an injunction to stay the sale of her property in payment of hor husband’s debts.
    from the Seventh Judicial District Court, parish of Pointe Coupee. Miller, J.

      A. L. Mohondeau and O. B. Schmidt, for plaintiff and appellant. Gollins & Lealce, for defendants and appellees.
   Howell, J.

In May, 1806, the plaintiff obtained judgment against her husband, J. D. Lacour, for separation of property and the sum of over $14,000. Soon afterward it was credited with the sum of $5700, amount of a notarial transfer of certain lands by the husband to the wife in part satisfaction thereof. In March following the husband made another notarial dation en ■paiement of certain notes and movable property in further satisfaction of said judgments. Among said notes was one made by Mrs. C. M. Lacour as principal and O. Le.jeune, Jr., as security in solido for $110(5, secured by mortgage. The note was lost or destroyed, and the maker gave an acknowledgment thereof to the plaintiff, Mrs. A. Lacour, with a confession of judgment in her favor. On this instrument a writ of seizure and sale was taken out in the name of J. D. Lacour the husband, whereupon the defendant, Mrs. Dayries, caused a seizure theroot to he made by the sheriff under a, fit,, fa. against said J. D. Lacour, and the plaintiff enjoined the sale, claiming to bo owner of the property seized, and from a judgment against her she has appealed.

The first ground urged by defendant for affirming the judgment is that the judgment of Mrs. Lacour against her husband is a nullity for want of prompt and bona fide execution, as provided by article 2428 It. C. C.

The record does not sustain this position. Within a month of its rendition tin's judgment was partially satisfied, as shown by the credit thereon. This is not assailed. The next proceeding was the transfer, in March following, 1867, about ten months after the date of the judgment, of the notes, etc., including the claim .in controversy. These two acts are authentic, and were duly recorded, and they seem to have been a timely execution of the wiie’s judgment by the payment, in that mode, of her rights and claims, as far as the estate of the husband could meet them. It. C. C. 2428. It was not until more than a year after the date of the second act, and after the attorney had by mistake, .as he states in the first petition of injunction brought suit on the claim in question in the name of the husband, that the defendant endeavored •to enforce her judgment against the latter.

'The second and third grounds are that the note in dispute was never delivered to Mrs. Lacour and notice thereof given to the debtor.

The instrument on which the writ of seizure and sale was issued, on the petition of the husband, shows that the note belonged to the wife and notice thereof had been given to the maker, for she therein confessed judgment in favor of the wife.

We think the plaintiff has satisfactorily established her ownership ■of the property seized by the defendant and her right to a perpetual injunction, with one hundred dollars for attorney’s fees as damages.

It is therefore ordered that the judgment appealed from be reversed, and that plaintiff be decreed to be the owner of the property seized in the suit of Rosa Porche v. W. L. Brown et al., No. 505, and that the injunction herein be perpetuated, and said Rosa Porche, wife of .Edward Dnyries, be condemned to pay plaintiff one hundred dollars ■damages with costs in both courts.


author: Wxly, J.

text:
    No. 3676.
    Succession of Samuel Weil — Opposition to Account of Administrator.
    .An indorsee or holder of a promissory note may recover thereon from the indorser, although the note itself was given for a slave consideration, and its enforcement against the maker is prohibited by article 128 of the Constitution. This right to recover Jrom the indorsor is based on the principal that every indorsement of a promissory noto forms a new contract between the indorsee and the indorsor.
    Appeal from the Second District Court, parish of Orleans. Duvigneaud, J.

      J’. Ad. JZosier, for appellants. T. Gilmore <& Son, for opponents and appellees.
   Wxly, J.

The motion to dismiss the appeal can not prevail, the .judgment not being acquiesced in as alleged, and the appeal being taken within one year from the signing of the judgment.

W. II. Letchford & Co. appeal from the judgment of December 11, 1871, dismissing their opposition to the account of the administrator -on the ground of the alleged slave consideration of their claim. ^

The pleadings are somewhat irregular, and several questions are presented for adjudication; hut the only one of any importance is the charge that the claim of the opponents is founded upon a slave consideration, and under article 338 of tlio Constitution can not he enforced, notwithstanding it was put into a judgment prior to the Constitution of 1868.

It is true the consideration inuring to the makers of the note was slave, but that moving betwe'ep the indorser, Samuel Weil, and the indorsees, W. II. Letchford. & Co., was not slave.

It is true W. II. Letchford & Co. sued the makers and indorsers of tlie note in the Twelfth District Court, parish of Ouachita, and they confessed judgment on April 16, 1866.

It is also true the makers of the note have successfully resisted the execution of the judgment in consequence of the slave consideration of the note on which it was founded.

Samuel Weil was held bound and condemned to pay W. Ii. Letch-ford & Co., not on the original contract evidenced by the note, but on his contract with them arising from the indorsement.

It is well settled that every indorsement is a now contract, which imposes a conditional obligation on the indorser in favor of tlio indorsee. It was this agreement which was enforced against Samuel Weil in the judgment of April 16, 1866, in the Twelfth District Court*

Now this judgmdnt can not be treated as an absolute nullity. It is. in no wise affected by article 128 of the Constitution, declaring that, “contracts for the sale of persons are null and void, and shall not b& enforced by the courts of this State.”

The court below seems to have based its judgment, rejecting the-claim of W. II. Letchford & Co., on the case of Groves v. Clark, 21 An. 567, where it was held that an indorsee, before maturity, could not recover against the maker of a note given for the price of slaves.

That decision does not support his judgment. There the maker was pursued upon his obligation, the consideration of •which was the price of slaves, and article 128 of the Constitution was held to be applicable, because the only obligation contracted by the maker of the note was to pay the amount thereof.

Here the indorsees, W. H. Letchford & Co., had judgment against Samuel Weil on his contract of indorsement, the consideration of which was slaves. This contract may be enforced and article 128 of the Constitution not violated.

In reference to the position that the administrator has turned over the property of the succession to the natural tutrix and taken her receipt, wo will remark that this was an idle ceremony.

No agreement or collusion between them can defeat the judgment creditors of the deceased, or place the property beyond the jurisdiction of the court and the administration.

It is therefore ordered that the judgment of December 21, 1870, recognizing W. II. Letchford & Co. as judgment creditors be affirmed;, and it is ordered that the judgment of December 11, 1871, dismissing their opposition be annulled, and it is ordered that the account filed by the administrator on June 7, 1871, be set aside as informal and illegal, and that the administrator render his account and proceed to the settlement of the succession according to law. It is further ordered that the costs hereof be paid by the succession.

Rehearing refused.


author: Lddeling, C. J.

text:
    No. 3786.
    Widow L. Delacroix v. Mary M. Hart—Martha J. Barrow, Garnishee.
    A garnishment process is a suit, anil tlie garnishee must ho brought before the court by citation. A judgment against the wife as garnishee can not, therefore, be rendered unless sho has been first authorized by her husband or the judge to appear and defend the suit.
    Appeal from the Fifth Judicial District Court, parish of Iberville. Posey, J.

      Samuel Matthews, for plaintiff. Barrow cO Pope, for garnishee, appellant.
   Lddeling, C. J.

The plaintiff having issued an execution against the defendant, filed a iietition praying that M. J. Barrow he cited to answer interrogatories propounded to her, and for a judgment against her according to law. He prayed that her husband might also be cited to aid and authorize her to act in the suit.

No citation was addressed to the husband, but the wife alone was cited. She appeared, to file a plea to the jurisdiction of the court ■ratione materias, which was properly overruled.

Martha J. Barrow having failed to answer the interrogatories, on .motion they were taken for confessed, and a judgment against her' was accordingly rendered. On appeal, the judgment in this case was set aside on tlie ground that the wife had not been authorized either by her husband or the court, and the case was remanded to be proceeded with according to law. The plaintiff then obtained the authorization of the court for her to defend the suit, and then judgment was taken •against her.

It is now contended that tlie court could not give the authorization, as the husband was not absent nor had lie refused to authorize her; that he had never been cited, as the law requires, and therefore his wife was not properly in court. These objections seem well founded inlaw. In Henry v Brice, 11 An. 691, it was said that it is only when the answers of the party garnished are traversed, that the proceedings .partake of the character of a legal controversy; aud it is there intimated that the wife, in a case where the answers are not traversed, or where she fails to answer, need not he authorized by her husband, or the court. But the garnishment process is certainly a suit; there must be a petition and citation to got the garnishee before the court, and then follows a judgment in accordance with tlie evidence. If the garnishee confesses that he or she is indebted, either expressly or by •making default, a judgment will be entered up against the party so confessing. The wife can not bind herself by a contract without the .authorization of her husband; neither can she be sued without citing her husband to authorize her to defend the suit. How, then, can she -confess judgment without the authorization of her husband, either expressed or implied? This litigation, on the part of tlie garnishee, seems to be only for delay; but we have no right to disregard the law.. Article 118, C. P., declares, “When one intends to sue a married-woman, for a cause of action relative to her own separate interest, the-suit must be brought against her and her husband. Should her husband be absent, the plaintiff must demand that she be authorized by the judge before whom the suit is brought. C. P. 206; 2 An. 281; 9 An. 197; 1 An. 260. There is nothing in the record to show that the husband was absent.

It is therefore ordered and adjudged that the judgment of the district court be reversed, and that the case be remanded in order that the husband of the garnishee may be cited according to law. It is-further ordered that the appellee pay the costs of this appeal.


text:
    No. 3746.
    Carroll, Hoy & Co. v. Ann C. Manning and her Husband.
    The wife, whether separated in property from, her husband or nob, can not hind herself for-his debts, nor can she bind herself conjointly with him for debts contracted by him before or during the marriage. 14 An. 700; 21 An. 525. is incumbent upon a person who has contracted with a married woman, if he wishes to hold her, to see that the proceeds of the obligation sho contracts inures to her separate advantage. 1 An. 428,-7 An. 293.
    Appeal from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      B. A. Hunter, for plaintiffs and appellants. James-G. White, for defendants aud appellees.
   Ludeling, C. J.

The plaintiffs sued the defendant, a married, woman, on a promissory note, of which the following is a copy:

“ $4,957 46. Cotile, La., July 1, 1867.
Six months after date we, or either of ns, promise to pay to the order of Carroll, Hoy & Co., at the Canal Bank, in New Orleans, La., forty-nine-hundred and fifty-seven-dollars and forty-six cents, for value received, with interest at the rate of eight per cent, per annum after maturity until paid.
A. C. MANNING.
J. P. MANNING.”

The plaintiffs alleged that the note was given for moneys advanced and supplies furnished for the benefit of the defendant, for her separate advantage and for the improvement of her paraphernal property.

The defense is, that the debt for which the note was given was an obligation of the husband, contracted by him in his planting operations, in which she had no interest, and that she did not receive any separate advantage therefrom, etc.

There was judgment for the defendant, and the plaintiffs have appealed. The evidence discloses the following facts: That the note given was for an account created by Dr. Manning in cultivating the plantation belonging to the succession of Meraday Neal; that the defendant was the administratrix of the succession and tutrix of her-minor children; that the succession, was not closed, and that it owed debts, and that an undivided one-fourtli of the residue of the property of the succession, after paying debts, will belong to the defendant; that she is not separated in property from her husband. There is no proof that any improvements were placed upon the property of the estate, with the moneys received, nor that the moneys advanced or supplies furnished were for her separate advantage. Under this state of facts it would seem that the debtor was Dr. Mauning and not his wife, and that in signing the note she was binding herself for his debt. It is for those who treat with a married woman to be on their guard and see that the obligation she contracts inures to her separate advantage. Brandegee v. Kerr and wife, 7 N. S. 64; 10 La. 146; 4 R. 508 ; 2 An. 579; 5 An. 595; 1 An. 428 ; 7 An. 293. But in .this case the debt does not appear to have been created by the wife — she signed the note, which was for an 'account created by her husband for his benefit. The law forbids the wife from making such a contract. “The wife, whether separated in property by contract or by judgment, or not separated, can not bind herself for her husband, nor conjointly with him, for debts contracted by him before or during marriage.” C. C. art. 2398; 12 An. 725 ; 14 An. 700 ; 21 An. 525.

It is therefore ordered and adjudged that the judgment of the lower court be affirmed with costs of appeal.


author: Howe, J.

text:
    No. 3802.
    Wm. A. Burnett v. B. B. Cleneay — W. F. Witherell, Intervenor and Appellant.
    The lessor has a right of pledge on the movables on the plantation leased to secure the payment of the rent, ’which it is not necessary to havo recorded in order to give it a preference over the privilege allowed by law to tho purchaser of supplies.
    from the Fifth Judicial District Court, parish of East Baton Rouge. Posey, J.

      Fuqua <& Oallihan, for plaintiff and appellee.. S. P. Qreves, for intervenor and appellant.
   Howe, J.

We see no error in this judgment. The intervenor claimed a privilege as furnisher of supplies to a plantation. The plaintiff claimed a privilege as lessor of the plantation. The judge a quo decided the contest in favor of plaintiff and rejected the demand of the intervenor for a concurrent privilege, on the ground, among others, that hiS privilege was not recorded in such way as to have effect against tho plaintiff.

We consider it settled that the plaintiff’s privilege, or more strictly, right of pledge, does not require to bo recorded, hut that the inter-venor’s does.

Judgment affirmed.


text:
    No. 3729.
    James Milligan v. David M. Lyle.
    _A. person wlio lias boon acting as agent for another, can not be held personally liable for a draft which he has given in favor of a third person, if the consideration for which tho draft was given inured to the benefit of his principal, especially if it be shown that the payee of tho draft knew at tho time he took it that the drawer was only acting as agent or overseer for another; the agent would be still less liable if the draft itself showed on its face that it was not to bo charged to the drawer, but to be charged to the account of his principal.
    from the Ninth Judicial District Court, parish of Rapides.

      Orsborn, J. J. Q. White, for plaintiff and appellant. 32. A. Hunter, for defendant and appellee.
   Ludeling, C. J.

The plaintiff sues the defendant on the following instrument:

“Wellswood, March 12, 1867.
■“Messrs. Darby, Mouton & Co.:
“Sir — Please pay to the bearer, James Milligan, the sum of five hundred and seventeen dollars and fifty cents, for ditching on Wells-wood plantation, and charge the same to John N. Lyle’s account.
Oblige, yours,
DAVID M. LYLE.”

This instrument was given by the defendant, overseer of the Wells-wood plantation, cultivated by his brother John N. Lyle and Montfort Wells.

The plaintiff’s own testimony shows that, before he went to work on the Wellswood plantation, he had been ditching for the sons of Mont-fort Wells, in the neighborhood; that he knew that Montfort Wells lived on tho Wellswood plantation ; that he and other workmen went there to see General Wells to get work; that they were sent by General Wells to D. M. Lyle, who put them to work, and plaintiff declares that he “ did not know D. M. Lyle was anything more than a manager on the Wellswood plantation.”

James Rqagan swears that he worked on the Wellswood plantation; that the plaintiff was at work there before he went there; that for the work done by him David M. Lyle gave him a draft, signing the name of J. M. Lyle, which was paid.

David M. Lyle swears that he was only overseer on tho plantation ; that he never pretended to be anything else; that at the time he gave the draft he explained to the plaintiff how the draft was drawn, and that tho crop on the place was bound for the debt; that he tried to explain to him that the draft was John N. Lyle’s, and not his; and that he never received any consideration for the draft sued oil.

General Wells testified as follows: “When, or just before the plaintiff was employed on the place, the defendant in this suit came and asked me if the plaintiff should be employed on the plantation to do some ditching. I told liim it was needed on the plantation, and to engage the plaintiff to do it. . The defendant Lyle was nothing more than an overseer on the plantation. The plaintiff had been ditching on the Lodi plantation, for my sons, before he came to Wells-wood. My sons sent him to me after lie had finished with them.” He further states that David N. Lyle was the manager and overseer, and agent on the place of John N. Lyle. He contracted and paid debts, which liis brother recognized. Tlie plaintiff, Milligan, knew witness quite well, and'knew that ho owned the Wellswood plantation, and that tlie Lyles did not. He also know that witness was interested in the crop and its cultivation, at the time he worked there. He was also acquainted with John N. Lyle, the other partner, at the time he worked there. It was generally known that David N. Lyle was nothing more than a manager and overseer on the plantation.”

Thus it is shown that the defendant has acted throughout this transaction as an agent; and that the plaintiff know this. His failure, therefore, to add agent after Ids signature is not material. 3 M. 642; 10 La. 388; 3 R. 378; 3 2 R. 16; 18 An. 113; 21 An. 223. But we think the agency of the drawer is apparent on the face of the draft. He says, Charge the same to John N. Lyle’s account.” This clearly negatives the idea tiiat it should be charged to him. The case of Moher et al v. Overton (in 9 La. 115), is directly in point. It is clear that David N. Lyle never received any consideration whatever for the draft. It is stated on the face of tlie draft that it was for ditching on the Wells-wood plantation, with which he had no connection, except as an overseer. Nor is it proved that credit was given to 1dm. Even if he had exceeded his authority in giving the draft, under the impression that he had the right to do so, we do not think, under the circumstances of this ■case, that he would have rendered himself responsible; certainly not •on the draft. Parsons’ Mercantile Law, 147.

It is therefore ordered and adjudged that the judgment of the district court be annulled and that there be judgment in favor of the defendant for costs in both courts.


author: Wyly, J.

text:
    No. 3740.
    H. Ducote v. F. Bordelon et als.
    Tlie fact ’bliat tlie notary who took an. inventory of a succession, failed to cite the tutor to the minor heirs, is not a good ground for injoining the sale of tho succession property to pay its debts.
    from the Parish Court, parish of Avoyelles. S. JR. Thorpe, (attorney-at-law), judge ad hoc.

      JEdioards <& Dueote, for plaintiff. Waddill & JBwrbin, for defendants.
   Wyly, J.

The plaintiff, who for a time administered the succession of Eliza Rabalais in Ms capacity of tutor of her minor heirs, injoins the sale of the property of said succession provoked by the present administrator, E. Bordelon, to pay debts, on the ground that the appointment of the latter was not regular.

First — Because legal notice of Ms application for tlie appointment was not given and made.

Second — -Because the inventory was not legally made, the plaintiff',. the tutor, not being cited to be present at its taking.

Third — Because a creditor in a fiduciary capacity can not demand the appointment of an 'administrator wdien the estate is being administered by the surviving husband as natural tutor. The court gave • judgment for the plaintiff perpetuating the injunction, and the defendants have appealed.

Whenever it is necessary to protect their rights the creditors may demand the appointment of an administrator to manage the succes- • sion and when the application is ponding for the appointment of an administrator, is the time for those claiming preference to assort their rights. The tutor who has been administering- tlio estate can not defeat the right of the creditors to cause a regular administration of the estate to bo opened. That the notary neglected to cite the tutor at the taking of the inventory, is no ground to injoin the sale of succession property to pay debts.

The notice of the application of the defendant-, P. Bordelon, to bo appointed administrator, we deem sufficient.

Let the judgment appealed from be annulled, and let the injunction: herein be dissolved at plaintiff’s costs in both courts.


text:
    No. 3790.
    J. H. Rills v. Parish of Iberville.
    rJCho law wliioli creates tlio office of parish attorney and authorizes the police juries to fix the salary and emoluments thereof, docs not prohibit the police juries from maldng a contract for increased or extra compensation in particular cases. A contract with the parish attorney lor extra compensation, is therefore valid and binding upon, the parish.
    from the Fifth Judicial District Court, parish of Iberville. Fosey, J.

      Barrow <& Bope, for plaintiff and appellee. George Wailes and Breaux & Fenner, for defendant and appellant.
   Howell, J.

The plaintiff, as district attorney pro tern, for the parish of Iberville, claims of the said parish six thousand and ninety-five dollars as professional fees for successfully defending the parish in six several suits, involving large amounts. Three thousand dollars of said sum are claimed under a special contractas “ additional fees,’r and three thousand and ninety-five dollars as the five per cout. on the total amount involved in said suits, allowed by tbe law creating bis office. The answer denies the instrumentality of plaintiff in the success in said suits and his right of action against the defendant, and also tho legality and validity of tlio resolution of the police jury authorizing the special contract with plaintiff, “because tbe parish was fully aud ably represented at the time by authorized and eonipctent counsel, and the employment or pretended employment of said Rills was futile and unwarranted.”

When tho first of the said six suits was instituted, the police jury adopted a resolution authorizing their president “to engage additional counsel to assist J. Hamilton Rills, parish attorney, in the defense in the case to final decision before the Supreme Court, and to allow said parish attorney additional tees, and to agree on such fees as he may think proper and on such conditions as he may deem proper, taking into consideration the importance and tlie aggregate of all bonds involved;” their amount being over 835,000, with eight per cent, interest. Accordingly the president employed Messrs. Zenon Labauvo and A. & E. 15. Talbot, at certain stipulated fees, and agreed to allow plaintiff “as additional fees to attend and defend the suit of Emile L. Breaux v. the Police jury of Iberville to final decision before the district and Supreme Court, one hundred dollars unconditional, to be paid before tlie case goes up to the Supreme Court, and three thousand dollars besides and exclusive of the said one'hundred dollars, if a judgment he rendered in favor of said police jury.” The president reported his action to, and it was approved and ratified by, the police jury. Tho amount claimed in said suit was $1518 20 with eight per cent, interest, for about fifteen months. The plaintiff defended tho suit, and judgment was rendered in the Supreme Court in-favor of the police jury. By the statute creating the office of plaintiff and the resolution of tlie polico jury in relation to the subject, his salary was fixed at $500 per annum, and five per cent, commission on any amount he may recover in any suit in favor of said parish, and a fee of five-per cent, on the amount for defending any suit in which said parish is defendant, to he paid by tho parish. See R. S., sec. 1180. This law authorized the polico jury to require the services of the plaintiff as tho attorney of the parish, and to pay him a salary not less than one hundred dollars per annum, “and as much more as the police jury may fix, out of tho treasury of such parish quarterly,” on his own. warrant, and the commissions as above stated. The polico jury fixed the annual salary at $500, as already mentioned.

It is contended that under this law and the principle announced in Hoistand v. New Orleans, 14 An. 330, and Mandell v. New Orleans, 21 An. 9, it was incompetent for tho polico jury to make the contract with plaintiff for the additional foe of $3100.

In the cases cited it was held that tlie officer must he considered as having accepted office with reference to the legislation regulating tho duties and tho emoluments of the office which he accepted. If no special agreement had been previously made, this doctrine could ho successfully invoked against plaintiff for any claim in addition to tho compensation fixed; hut wo are not prepared to say that tho law amounts to a prohibition- to the police jury to make a contract for increased or extra compensation in particular cases. And if the police jury have power to make such contracts, the wisdom or improvidence of its exercise is not within the control of the courts. 12 An. 554, 14 An. 69'.

The reason sot up in the answer is not a sufficient one to declare the contract “futile and unwarranted.” Plaintiff is, hence, entitled to the $3000 additional fee.

In the various suits defended by him, judgments were rendered in the district court against the parish for an aggregate of about $35,663 48 in principal, with eight per cent, interest, for an average of about four years. These judgments were reversed in the Supreme Court, which released the parish from a liability of about $47,000; the five per cent commissions on this sum are $2350, for which plaintiff is entitled to a judgment on the prayer filed in this court, instead of $1570 90 allowed by the lower court.

It is therefore ordered that the judgment appealed from be increased from $4570 90 to $5350 with the interest allowed, and that as thus amended it be affirmed with costs of appeal.


text:
    No. 3590.
    —State ex rel. A. Hero, Jr., v. J. L. Laresche.
    rjbe fact that a person is a notary public does not of itself entitle him to the custody or control of the records of a deceased notary. Such person is not, therefore, entitled to an appeal from, an order of tlio judge a quo, directing him to deliver the records of the deceased notary to the proper officer designated by law to receive them. An oath of such notary that he has an interest in retaining possession of the records of the deceased notary above five hundred dollars is not sufficient of itself to vest the appellate court with jurisdiction of the appeal.
    from the Eighth District Court, parish of Orleans. Dibble, J.

      Hornor & Benedict, for relator, appellee. J. A. Dejean, for respondent.
   Howell, J.

A motion is made by relator to dismiss this appeal because defendant has no appealable interest in the controversy.

It is a proceeding by mandamus by the custodian of notarial records, of the parish of Orleans, to obtain possession of the notarial records of Paul E. Laresehe, deceased, withheld by Ms son, the defendant, who simply asserts that he holds them because be is a notary public, and the relator is not entitled to the custody thereof. He discloses no pecuniary interest whatever in the said records, notwithstanding Ms affidavit to the effect that his interest exceeds $500.

1-Iis being a notary public does not entitle Mm to any property in or control over the records of a deceased notary.

It is therefore ordered that the appeal herein be dismissed, with costs.


text:
    No. 3848.
    Dennis Redmond v. B. L. Mann et al.
    If a suspensivo appeal lias been dismissed because tlie appellant lias failed to file tlie record in tlie appellate court within three judicial days after tho return day, ho can not afterward bo allowed to talco a devolutive appeal from tho same judgment. 4 An. 30 j 9 An. 39.
    from tlie Sixth Judicial District Court, parish of Tangipahoa. Ellis, J.

      T. & J. Ellis, for plaintiff and appellee. Mace, Foster & E. T. Merriclc, for defendants and appellants.
   Ludeling, C. J.

A motion to dismiss this appeal has been made on the grounds, that having taken a suspensive appeal and having failed to file tho record seasonably, tho appellant can not take a devolutive, appeal, after the dismissal of the first appeal.

The first appeal was dismissed, because tho record • was not filed, until more than three judicial days after the return day. The appellant contends, however, that inasmuch as the appeal was dismissed on motion of the appellee, it can not be said that the appellant abandoned Ills appeal, and therefore the right to a devolutive appeal may still be exercised. Wo can not assent to this proposition. “When a party fails to take tlie necessary steps to prosecute his appeal, lie will be considered as having abandoned it, in the sense and meaning of article 594 of tho Code of Practice, and will not be allowed to renew it.” 1 R. 100. “When a suspensive appeal has been dismissed on account of the failure to file the record withiu three judicial days afeer the return day, the appellant can not afterward take a devolutive appeal from the same judgment.” 4 An. 30, Ducannau v. Levistones, 3 An. 245 j 4 La. 41; 9 An. 39.

It is therefore ordered that tho appeal be dismissed with costs.


text:
    No. 3565.
    Loyau Berhil v. G. G. Fisk.
    The district attorney of a district may, in caso of refusal, be compelled by mandamus to bring a suit under tlie intrusion act to test the right to an office. State ox rcl. Rills 1;. Lynch, 23 An. 786; ITayes v. Thompson, 21 An. C5G.
    from the Fifth Judicial District Court, parish of East Baton Rouge. Posey, J.

      J. O. Stafford and B. W. Knielcerboelcer, for relators. G. G. Fislc, District Attorney, respondent.
   Ludeling, C. J.

The only question, necessary to bo decided in this case is, whether or not tho district attorney can be compelled by mandamus to bring an action under the intrusion act. .

This is not now an open question. We held in Hayes v. Thompson, 21 An. 656. that the district attorney could he compelled by mandamus to bring the suit, and the same doctrine has been several times: reaffirmed siuce. State ex rel. Rills v. B. L. Lynch, 23 Au. 786.

It is therefore ordered and adjudged that the judgment of tho lower court be affirmed with costs of appeal.


author: Wxlx, J.

text:
    No. 3836.
    Warren & Crawford v. J. J. B. Kirk.
    A sale of a certain number of bales of cotton to be delivered thirty days after demand, is at the risk of the seller until delivery. The defense that the cotton of the defendant was destroyed during the war will not avail, if by the terms of the contract no x>articnlar lot of cotton was indicated as being sold; but the seller in such case is roquired to fulfill his contract of sale by delivering the number of bales sold or by paying the price in money.
    from, the Seventh Judicial District Court, parish of Avoyelles. Miller, J.

      A. B. Irion, for plaintiffs and appellees. Edward Phillips, for defendant and appellant.
   Wxlx, J.

This suit was instituted upon the following obligation:

Thirty days after demand, I promise to deliver in New Orleans, in good condition, to Messrs. Warren & Crawford, or order, one hundred bales of cotton, the same having been sold by W. & C. for my account, at eight and a half cents for middling, and on which I am to receive an advance of thirty dollars per bale, the balance to be paid when said cotton is delivered.
J. J. B. KIRK.”
.“New Orleans, December 12, 1801.”

On the first of August, 1865, the plaintiffs addressed a letter to the •defendant demanding the fulfillment of his obligation. The defendant refused to comply with the demand, and in the month of April, 1866, suit was instituted for the recovery of the cotton, or its value. The court gave judgment for plaintiffs for $3000, and the defendant has appealed. In the answer to the appeal the plaintiffs pray that the judgment be increased to $16,000. There are several defenses pleaded, but none of them is established by the evidence. The defendant has received the consideration agreed to ho advanced to him under the contract. lie attempted to show that the one hundred bales he agreed to deliver was of a particular lot which was destroyed during the war; but in this ho failed.

“The sale is considered to bo perfect between the x>arties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered, nor the price paid.” Revised Code, 2456. “ But if the object contracted to be given be not a tiling particularly specified, but is uncertain, indeterminate, or described only by quantity or number, it is at the risk of the creditor only from the time he is in legal default for not receiving the thing after it has been tendered. A contract to deliver a certain number of bushels of wheat to pay a certain sum of money, or to ship a certain number of hogsheads of sugar, without further identification, comes under this rule.” R. C. C. 1915. There is an exception to the rule “ when the object of the contract, although indeterminate in itself, makes part of a whole that is determinate and certain, and the ■ whole, of which it forms a part, is lost or destroyed by inevitable ae- ' cident before delivery, the loss will fall on the creditor of the thing sold.” * * “ Art. 1916.

“In the case provided by the last article, it must appear that the ■ designation of the mass, from which the particular object of the contract is taken, was intended by the parties as restrictivo; that is to say, that their intention was confined to that particular property, and no other of the same kind. When such intent is not clearly expressed, it shall be presumed that no such restriction was intended; and that the thing -is at the risk of the debtor, wntU, delivery or default.'1'1 Art. 1917.

“When the goods, produce, or other objects are not sold in a lump, ■ but by weight, by tally or by measure, the sale is not perfect, inasmuch -as the things so sold are at the risk of the seller until they be weighed, ■counted or measured; hut the buyer may require either the delivery ■of them or damages, if there bo any, in case of non-execution of the ■■contract.” R. C. C., art. 2458.

Here the defendant unconditionally bound himself to deliver to the plaintiffs in New Orleans, in good condition, one hundred hales of cotton, of’middling quality, thirty days after demand. He has long since received the advance of thirty dollars per bale, stipulated in the contract, but lias failed to deliver the cotton notwithstanding the demand -of the plaintiffs. He now says his cotton was destroyed during the. -war ; hut it is not shown that the number of bales mentioned in the ■contract was restricted, or intended by the parties to be restricted, to any particular lot of cotton; and “when such intent is not clearly expressed, it shall he presumed that no such restriction was intended.” 'Until delivery, the cotton was therefore at the risk of the seller; and however unfortunate he may have been with it, he must hear the consequences of his voluntary agreement. Ho got the consideration he stipulated for, and he must now perform his part of the contract. But in his brief the defendant contends that the plaintiffs have failed to disclose either in their pleadings or in the evidence any right of action or any interest in the suit.

In the evidence we find the letter of the plaintiffs to the defendant ■as follows : “We have the pleasure to advise sale of one hundred bales of your cotton, to bo delivered in New Orleans thirty days after demand on a basis of eight and a half cents for middling, the buyer ■ advancing thirty dollars per halo on receipt of within document signed by you; the buyer bolding ns responsible for the fulfillment of the contract; we will have to insure the cotton and charge to your account. IPlease sign the within and return by first mail, and on receipt of the ■ advance we will advise you. Your friends,

WARREN & CRAWFORD.”

It appears that the defendant agreed to the sale, signed the contract and returned it to the plaintiffs, his factors. On the twenty-sixth December, 1861, after the contract had been signed and returned, the plaintiffs wrote to the defendant: “We have completed, as far as circumstances will admit, the sale of your cotton, and can, therefore, remit you the amount or pay your drafts to the extent of the advance.”

How the defendant, making a contract in which he knows that the plaintiffs are responsible for its fulfillment, and in which he unconditionally binds himself to them, can then turn round and say they have no interest and can not enforce it, we are at a loss to understand. It was on the responsibility of the plaintiffs that the defendant got tho money, and it was doubtless for that reason he contracted to deliver the cotton to them. They are the obligees of the contract and certainly have an interest to enforce it.

It is shown that the value of the cotton at the time the defendant was in default for delivery, was $16,000. Tho defendant must, therefore, deliver tho cotton or pay that amount.

It is therefore ordered that the judgment appealed from be set aside, and it is ordered that the defendant deliver to the jdaintiff according to the terms of the contract one hundred bales of cotton' averaging four hundred pounds per bale, of middling quality within sixty days from date hereof, and in default thereof that he be condemned to pay. the plaintiffs sixteen thousand dollars, with legal interest from judicial demand, less the sum of four hundred dollars, the balance due the defendant on delivery of the cotton under the contract. It is further ordered that he pay costs of both courts.

Rehearing refused.


text:
    No. 3135.
    Edward Phillips v. Chas D. Stewart.
    In a suit for the value of attorney’s fees for professional services rendered, if tho amount allowed by the judge a quo seems reasonable and fair, the judgment will not be dis- • turbed on appeal.
    PPEAL from the Seventh Judicial District Court, parish of Points ■ Coupée. Miller, J.

      John Yoist, for plaintiff and appellee. Thomas H. Hemes, for defendant and appellant.
   Ludeling, C. J.

This is a suit by an attorney at law to recover the-amount of an account composed principally of charges for professional-services rendered for the defendant.

The evidence showed that the defendant employed the plaintiff, and the services were rendered. Indeed these facts are not disputed. We are of opinion that the amounts allowed by the judge a quo ave reasonable and fair.

It is therefore ordered and adjudged that the judgment of the district court be affirmed with costs of appeal.


text:
    No. 3813.
    Wm. A. Vestal v. Geo. H. Sallis.
    A bond given in a soquestration suit for tho amount fixed by tho judge, signed by the plaintiff in tho sequestration suit and two ether persons, and filed by tho cleric with the number of tho suit in tho district oourt, is a sufficient compliance with tho law to render-it incumbont on tho defendant in sequestration to urge any objections lie may have to its informalities in limine litis.

    from tlie Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      H. A. Hunter, for plaintiff. JIT. llyctn, for defendant.
   Howell, J.

This is an appeal from a judgment ou a verdict of a jury in favor of plaintiff for the account sued on and sustaining a writ of sequestration. The defendant contends that no sequestration bond was furnished, because the one in the record does not mention the court, the date, the title of the suit, nor tho names of tlie plaintiff and. defendant. The bond is for the amount fixed by the judge, is sigued, by tho plaintiff and two other persons, is filed by tbe clerk on a particular date in the district court with the number of this suit. This is a sufficient compliance with the law, to make it incumbont at least upon tbe defendant to object to it in limine litis, which ho did not debut gave a bond of release, and defended and tried tlie suit without having made any objections, which appear of record. It is too late for him to object.

Upon the merits we see no reason to disturb the verdict and judgment.

Judgment affirmed.


text:
    No. 3743.
    S. Meyer et al. v. M. J. Smith & Co. et al.
    In a suit by tlio -wife against Jior husband for a separation of property, tho allegation that “ owing to tlie insolvency of her husband ib becomes necessary for the preservation of' lior acquisitions, the maintenance of herself and family, that a dissolution of the community be decreed,” is deemed sufficient to admit proof that she has tlio ability to make acquisitions.
    In a suit by the wife for a separation of property from her husband, she is a competent wit* ness in her own behalf.
    irom the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      J. O. While, for plaintiff and appellee. H. A. Hunter,. for defendants and appellants.
   Howell, J.

The principal question in this casa is whether plaintiff’s judgment of separation of property is valid. The objection to it is that she did not specially allege in her suit against her husband that she possessed a separate industry by which she could make acquisitions and support herself and family, and lieuce there was no basis for the-judgment. Iler allegation was that, owing to the insolvency of her husband, it becomes necessary for the preservation of her acquisitions,, the education, maintenance and support of herself and family, that a dissolution of the community, etc., be decreed.” This sufficiently implies her ability to make acquisitions and support herself and family, to ■authorize the proof thereof. Such proof she has adduced in this suit, and we must presume it was before the judge who rendered the judgment of separation of property on ihe issue regularly joined between the parties in the suit for separation of property. The court a qua did not err in admitting this evidence, nor tho testimony of the plaintiff, who is competent to testify in her own behalf in this controversy with the defendants. She was not testifying in favor of her husband, but in her own behalf against defendant.

The evidence in the record sustains plaintiff’s right to purchase, and her ownership of the goods seized by the defendants, and also her right to recover counsel fees in this case, which we fix at two hundred dollars, and allow upon the answer to the appeal.

It is therefore ordered that so much of the judgment as rejects plaintiff’s demand for damages be reversed, and that she recover of Marshall J. Smith & Co. the sum of two hundred dollars damages, and that in other respects the said judgment bo affirmed with costs of appeal.


author: Ludeling-, C. J.

text:
    No. 3760.
    E. Boedicker v. John East et als.
    An injunction will not be dissolved on bond if tlie injury caused thereby would be irreparable. The injury would be irreparable if tho damages resulting from its dissolution conld not bo passed upon in tho final decree in tho case, or if its dissolution would work a chango in tho possession of real estate.
    from the Fifth Judicial District Court, parish of East Feliciana. Posey, J.

      Kernan & Lyons, and Kilbourne <& MeVea, for plaintiff and appellant. K. A. Gross, for defendants and appellees.
   Ludeling-, C. J.

The plaintiff brought this action to have the boundary between bis land and that of tho defendants recognized and fixed; he alleged that the defendants wore disregarding the ancient boundary, and he obtained an injunction to restrain defendants from disturbing his possession.

The defendants disregarded this injunction and took possession of about one hundred acres of the cleared lands of plaintiff, and commenced to cultivate it. The plaintiff obtained á second injunction to prevent defendants from passing the ancient boundary, and from occupying and cultivating the said one hundred acres.

The defendants then obtained an order to sot aside the injunction upon giving bond, and upon executing their bond the injunction was ■dissolved.

At the first term of the court thereafter held, the plaintiff moved to have the order setting aside the injunction rescinded, on the grounds that the said injunction could not he set asidfe by giving bond, as tbe injury complained of was irreparable.

This motion was refused, and the plaintiff then appealed from the 'interlocutory decree allowing the defendants to set aside the injune■tion by giving bond.

The question is then, was or was not the injury complained of, and ;to prevent which the injunction was granted, irreparable?

“Where the consequences of the order are such as cannot be reme•died by a final decree, and the party will be driven for protection of ¡his rights to another suit for the same cause of action, the injury is irreparable.” . 14 An. 57, White v. Casanave, 7 R. 442, 12 An. 455. In Marion v. Johnson we said “when the acts complained of amount 'to a trespass, and the effect of dissolving the injunction wrould be a «change of possession of immovable property,” the injury is irreparable. 22 An. 512. Such, it would seem, would be the result of the dissolution of the injunction in this case.

It is therefore ordered and adjudged that the order appealed from be rescinded and annulled, and that the injunction be reinstated. It •is further ordered that appellees pay costs of the appeal.


text:
    No. 3864.
    Rosalie Durand v. J. & J. Dubuclet — On rule against J. P. Ader.
    Under the act of 1869, minor’s property held in common may be sold for tho purpose of affecting a partition at private sale, if any of the heirs having an interest desire it to be made in that form, hy complying with tho formalities prescribed hy tho statute in such case. Articles 341 and 1336 of tho revised Civil Code which provide that tho sale of minor’s i>roperty must bo made at public auction, is not in conflict with nor irreconcilable with tho act of 1869 on tho same subject, and those articles of the Code do not, therefore, repeal hy implication the act of 1869.
    A private sale of minor’s property mado in pursuance of tho forms and requirements of tho act of 1869 is, therefore, valid and binding upon tho minor.
    from the Second District Court, parish of Orleans. Duvigneaud, J.

      Charles Loque, for plaintiff and appellant. Ernest Morel, 'for defendants in rule appellees.
   Ludeling, C. J.

The only question presented in this case is whether the law of 1869, reproduced in articles 1500, 2667 and 3719 R. S. Statutes, is repealed by the article 341 and 1339 of the Revised Civil Code. The act of 1869 is in the following words: “When heirs of a succession hold property in common, and it is the wish of any one of them, or of a minor represented hy his tutor or tutrix, to effect a partition, on the advice of a family meeting duly convened according to law, to represent the minor or minors, said property may be sold at private sale for its appraised value, said appraisement to be made and tho terms of said sale to he fixed by the family meeting, and said proceeding to be homologated by the judge of probate of the parish in which the said minor resides.”

Article 1339 of tho Civil Code is in the following words: “When the property is indivisible by its nature, or when it cannot be conveniently divided, the judge shall order at the instance of any of the-heirs, on proof of either of these facts, that it be sold at public auction, after the time of notice or advertisement prescribed by law, and in the manner hereinafter prescribed.” And article 341 declares that “the sale of the property of the minor shall be authorized by the judge, and made at public auction, after having been duly advertised1 in the manner required,” etc.

The law of 1869 is nob in conflict with the articles above quoted. The different provisions of the law might well be incorporated in the-same act.

' Thus, for instance, “the sale of the property of minors shall be-authorized by the judge and made at public auction, after having been-duly advertised in the manner required for other judicial advertisements,” unless it be the wish of any of the heirs interested therein to-have the sale made at private sale to effect a partition, in which event, it may be sold at private sale, on the advice of a family meeting duly convened according to law, to represent the minor or minors, at theappraisement and on the terms fixed by the family meeting, if the proceedings of the family meeting be homologated by the parish judge-of the parish where the minor resides. The laws are not irreconcilable with each other, and therefore the former law is not repealed by implication. C. C. 23. Repeals by implication are not favored. 12. M. 697; 2 N. S. 33; 3 N. S. 190; 7 La. 166; 1 An. 54; 2 An. 919; 5-An. 121; 6 An. 605.

We are therefore of opinion that the title tendered the defendant in. accordance with the act of 1869 is valid.

It is therefore ordered that the judgment of the lower court be-annulled, and that there be judgment decreeing J. P. Ader to comply with the terms of the sale agreed upon with him, and condemning the appellant to pay costs of both courts.


text:
    No. 3800.
    Eliza C. Johnson v. Wm. D. Phillips.
    Payments which haye been made on a debt, which at the timo of payment aro imputed by ■both partios to the interest due, can not afterward be recovered back nor imputed to the capital on the ground that the interest duo was usurious.
    Prescription may he pleaded at any stage of the proceedings, even on the appeal, but it must be pleaded expressly and specially before final judgment.
    from the Fifth Judicial District Court, parish of East Baton Rouge. Posey, J.

      Puqua & Oallihan, for plaintiff and appellee-. Samuel P. Grevvs, for defendant and appellant.
   Howell, J.

The order of seizure and sale herein was enjoined by the defendant on the ground that the note is paid and extinguished by payments of usurious interest, as shown by the various credits indorsed on tiie note. It was given on twenty-fifth April, 1854, for $2750 duo ■one year from date with eight per cent, interest after maturity. A few days after its maturity a credit of $250 is indorsed on it “for interest on account up to twenty-fifth April, 1855,”' and annually thereafter up to twenty-fifth April, 1861; the same amount is credited “for interest,” as stated by defendant. The note not bearing- interest before maturity, the first payment is imputed by plaintiff to tho principal, and the demand is made for the balance ($2500) with eight per cent, interest thereon from twenty-fifth April, 1861, to which date it is alleged the interest was paid, and subject to those subsequent credits paid as interest. These three credits are not alleged to be usurious, hut it is ■contended that all tho previous payments were, being ton per cent, annually upon the money loaned, and therefore worked the forfeiture of all interest and should he imputed to the capital, leaving due only $1000, which has been more than paid subsequently.

Tho usurious payments having been expressly imputed by the parties to the interest, can not now he recovered hack nor imputed to the capital, the plea of prescription having been filed. See 6 An. 471; 15 An. 395; 18 An. 715. Prescription may be pleaded in every stage ■ of a cause, even on tbe appeal, but it ought to he pleaded expressly and specially before tho final judgment. R. C. C. 3464.

Judgment affirmed.


author: Howeix, J.

text:
    No. 3806.
    S. Whittington v. W. W. Whittington, her Husband.— Frellsen & Stevenson, Intervenors.
    In considering tlio rulings of tlie judge a quo on tbe objections made to tlie admissibility of testimony, tbe appellate court -will bo guided by tbe bills of exceptions taken to bis rulings on tbe admissibility of a certified copy of tbe recorder of an abstract, showing tbe wife’s claim against bor husband, on the ground, that the oatb attached to the instrument was made before a notary public who was incompetent to administer an oath in such a ease; and if tbe certificate shows also that tho notary was a justice of the peace, .then the presumption is that the officer administered the oath in his proper capacity and tho document is not inadmissible on that account.
    from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.
    £. G. White, for plaintiff and appellee. M. Ryan, for defendant and appellant.
   Howeix, J.

The intervenors have appealed from a judgment recognizing plaintiff’s mortgage upon her husband’s property, dating from 1854 and 1855.

They reserved a bill of exceptions to the admissibility in evidence -of the parish recorder’s certified copy of tbe statement of plaintiff’s claim against her husband, required by the act of 1869, on the grounds, Jirst, that it was sworn to before a notary public, who is incompetent to administer an oath in such a case. Admitting that the notary is-incompetent, we find in the hill of exception the fact stated, that the said notary was also a justice of the peace, a fact which is not denied and which under the circumstances we must presume was properly established. We must be guided by the bill of exceptions as to the objections made and the grounds of the ruling. The oath was therefore administered by a competent officer. The second ground is, the “statement” does not appear to have been recorded in the mortgage book as the law directs. The certificate of the recorder on the date of recording is, that it is “ a true record,” and subsequently that the copy offered is “ a true and correct copy of the original on file and of record in my (the recorder’s) office.’’ We must presume from this that the recorder did his duty and made the recordation in the book designated by the law. The objection in the brief that the “statement” is so vague as not to show that tho moneys received by the husband were the moneys of his wife derived from her mother’s estate, is not well founded. It is sufficiently clear, from the language used, that the sums acknowledged to have been received by the husband at the dates specified, were moneys inherited by his wife from her mother, for tho security of which tho law accorded the wife a mortgage upon the mortgageable property of the husband.

Judgment affirmed.