author: Howell, J. Wyly, L,

text:
    No. 4356.
    S. A. Janney and Husband vs. A. G. Ober.
    This is an action íor tho balance of two notos, which it is alleged tho dofend,ant as- • sumod to pay as apart of the price of the “Live Oak” plantation, in the parish of Concordia, purchased by him from James B. Packard.
    Defendant can not be permitted to contradict by parol testimony the contents of a notarial act.
    Defendant can not be permitted to prove that tho motive of the contract was to secure a debt when the contract itself proves it to be a sale.
    Defendant's authority to his agent to accept tho act of sale ratifies it as such, and has the same effect as if defendant himself had accepted it unconditionally, and he can not be permitted to go behind it and contradict it.
    Plaintiff was not present at the conversations between the defendant and Packard. They are not admissible as evidence against her.
    But tho evidence as admitted in reference to the sale only shows tho original intention of the parties, which was afterward changed, tho defendant subsequently concluding to accept the act of transfer containing tlio assumption of these notes as a part of the price, leaving tho matter between him and the vendors to some future arrangement, which is not shown, and does not affect tho validity of the assumption to pay these notes as a part of the price of tho property purchased by the defendant. His subsequent effort to change this notarial act was purely ex parte, and was never acceded to by tho vendors.
    Tho denial of the right of the plaintiff to those notes because one only is indorsed, and it was indorsed by tho payee, a married woman, without special authority by her husband, was not made in tho answer, and as the defendant is not the maker, but is bound only by his notarial agreement, and the identity of the notes is not denied, the question in which defendant is concerned is, whether he can safely pay to the present holder. Of this there can bo no doubt, if this notarial obligation is binding, and this court thinks it is binding.

      k PPEAL from the Sixth District Court, parish of Orleans. Cooley, J.

      Labatt c& Aroni, for plaintiff and appellant,
    ¿femmes c6 Mott, for defendant and appellee.
   Howell, J.

This is an action for the balance of two notes which it is alleged the defendant assumed to pay as a part of the price of the Live Oak plantation in the parish of Concordia, purchased by him on the twenty-second of May, 1867, from James B. and John Q. Packard. The answer contains the general denial, a special denial that defendant over purchased said plantation, or assumed to pay said notos, and the aver-ments that John Janney, the husband of plaintiff, and the agent of defendant in the transactions, denied having signed the said act, which defendant believed, and as the act had been prepared in error, and was, to the knowledge of said Janney, intended as collateral security for moneys advanced by Ober, Atwater & Co. to said Packard, and tho alleged assumption was erroneously inserted, the defendant, having settled the affairs of said firm with said Packards, did, on the sixth of May, 1869, by act before Adolphe Mazereau, renounce and give a quit-claim conveyance of said plantation to said Packards, which was duly recorded in Concordia on the seventeenth of June, 1869, prior to tho seizure and salo of said plantation at the instance of plaintiff, and that, Janney being cognizant of all the facts, neither he nor his wife ever pretended to hold him (defendant) responsible on said assumption, and this suit was the first notice to him of such effort.

After hearing evidence, the case was continued on account of the absence of defendant’s witnesses to a day to be fixed. Two days prior to resumption of trial defendant filed an amended answer alleging that if ¡said act of. sale was signed by authority from defendant, it was with the ■condition and notice to all parties that there was error in said act which ■would be corrected between the contracting parties, and one of the principal errors was the alleged assumption sued on, and defendant never intended to bind himself to pay the debt sued on, all of which was ■known to plaintiff and her husband.

After the evidence was closed and before argument, plaintiffs’ counsel discovered for the first time that such answer had been filed, and moved to strike it out, on the grounds that it came too late and changed the issue made in the original answer. The court refused to strike out, and *the plaintiffs excepted.

As no evidence appears to have been offered with direct reference to or in connection with this amended answer, so as to notify plaintiffs’ counsel of its filing, we see little importance in passing on this bill of exceptions.

Defendant offered to prove by parol, first, that the act of sale from the 'Packards to Ober was not intended for a sale, but only to secure a debt; second, that he had not agreed to assume payment of the notes sued on, ;and, third, certain conversations which took place between Ober and Packard, to which plaintiff objected on the grounds—

First — Defendant can not be permitted to contradict by parol testimony the contents of a notarial act.

.Second — Defendant can not be permitted to prove that the motive of •the contract was to secure a debt where the contract itself proves it to b.c a sale. •

Third — Defendant’s authority to his agent to accept the act of sale ratifies it as such, and has the same effect as if defendant himself had accepted it unconditionally, and he can not be permitted to go behind it •and contradict it.

Fourth — -Plaintiff was not present at the conversations between the defendant and Packard, and they are not admissible as evidence against her.

¥e think the objections are well made; but the evidence as admitted in reference .to the sale only shows the original intention of the parties, ■which was afterward changed, the defendant subsequently concluding to accept the act of transfer containing the assumption of these notes as .a ,part of the price, leaving the matter between him and the vendors to some future arrangement, which is not shown, and does not affect the validity of the assumption to pay these notes as a part of the price of the property purchased by the defendant. His subsequent effort to change this notarial act was purely ex parte, and was never acceded to by the vendors. The denial of the right of the plaintiff to these notes (because one only is indorsed, and was indorsed by the payee, a married woman, without special authority from her husband,) was not made in the answer, and as the defendant is not the maker, but is bound only by his notarial agreement, and the identity of the notes is not denied, the question in which defendant is concerned is, whether he can safely pay to the present holder. Of this we think there can be no doubt, if his notarial obligation is binding.

In our comments on the above bill of exceptions we have clearly indicated that he is so bound. It is contended on his behalf that J. Q. Packard, one of his vendors, made judicial admissions in his suit against Ober, Atwater & Go., that the act in question was not a sale, but a giving in payment of an indebtedness of ten thousand dollars to said firm, and the plaintiff, deriving her right to sue through him, is bound thereby. Such is not our appreciation of the pleadings in that case, if they can have any application in this case. They were made up with reference to the annulment of a compromise between said J. Q. Packard and Ober, Atwater & Co., in which J. Q. Packard found it necessary to allege that the transfer of this property extinguished that amount of indebtedness, and no obligation was made, or was necessary, as to the other portion of the price. There is no allegation anywhere in said proceedings denying that the total price was seventeen thousand five hundred dollars, of which seven thousand .five hundred dollars was due to the vendor of J. B. Packard, and represented by the notes in this suit, or denying that defendant assumed to pay them. But the defendant here does not make this a ground of defense. The substance of the answer is, that he never became the purchaser of said property, and never assumed to pay'said mortgage notes, and that if it so appears in the notarial act, such stipulation was erroneously inserted, and was not the intention of the contracting parties.

The evidence does not, in our opinion, sustain the defense.

In the litigation referred to the decree of this court protected the defendants, of whom this defendant was one, from paying the amount of this assumption twice, by authorizing them to retain in their hands for a sufficient time the amount of the mortgage so assumed. The presumption is that the decree was complied with, and the défendants therein availed themselves of its provisions in this regard, and that the liability to the creditor in that mortgage is the only existing obligation to be. considered in the premises. The ■ decree in that case clearly the existence of the mortgage, and the liability on the assumption in the sale by the Packards to the defendant, Ober.

We can ñnd no legal grounds in this record to exempt the defendant from the obligation of his assumption to pay this debt as a part of the price of the property purchased by him, whether for himself individually or for the benefit of his firm.

It is therefore ordered that -the judgment appealed from be reversed, and that plaintiff recover of defendant, A. Gf. Ober, the sum of §5631 26, with eight per cent interest from November 6,1869, and costs.

Wyly, L,

dissenting. On the fifth of November, 1866, John Johnson sold to James B. Packard the Lrye Oak plantation, in the parish of Con-cordia, for twenty-five thousand dollars; seventeen thousand five hundred dollars thereof were paid in cash, and for the balance the purchaser executed his two mortgage notes, one for §4175 and the other for §3325, both to the order of Mrs. Elizabeth K. Johnson, the wife of said John Johnson, said notes maturing on the first of January, 1868.

This mortgage was foreclosed via executiva on the sixth of November, 1869, and the net proceeds of the sale, §3588, were credited on the said mortgage notes.

Plaintiff, Sarah A. Janney, wife of John Janney, now sues the defendant, A. G-. Ober, for $5631 20, the balance due on said mortgage notes made by said Packard, alleging that said Ober assumed to pay said notes in the act of sale of date of May 22,1867, whereby he acquired said Live Oak plantation from James B. and J. Q. Packard.

The court rejected the demand of the plaintiff, and she has appealed.

■ It is contended that if defendant is to be held liable on the alleged assumption in favor of Elizabeth K. Johnson, or the holder or holders of said notes, by reason of his contract with James B. and J.Q. Packard, plaintiff must show title to said notes, because said stipulation in favor of such third party or jDarties has never been accepted ; and it is only a suit by the owner or owners of said notes that would constitute an implied acceptance of the alleged assumption.

I find that the mortgage notes are in favor of Mrs. Elizabeth If. Johnson, the wife of John Johnson, and that she indorsed one of them without the authorization of her husband ; the other has never been indorsed by her or by him. As the legal title of said notes does not appear to be ■in plaintiff, this suit which she institutes can not be regarded as an implied acceptance of the alleged assumption of defendant arising’from the contract which he entered into with James B. and J. Q. Packard. But assuming that plaintiff is the. owner of the notes, notwithstanding the want of indorsement by the payee thereof, I think the case, on its merits, with the defendant.

It is well settled that a purchaser who, as part of the consideration of the purchase, has stipulated with his vendor to pay a debt due by him, may when sued by the person to whom the debt was due, set up the same equities that he has against the vendor himself. 9 An. 195 ; 2 R. 523 ; 22 An. 360.

Plaintiff, therefore, occupies no better position than James B. and J. Q. Packard, with whom defendant contracted.

Could James B. and J. Q. Packard recover against defendant on the alleged assumption contained in the act of sale from them to him of the Live Oak plantation ? Independently of the parol evidence in the record, which shows that the assumption of these notes by defendant was a stipulation inserted erroneously in the act of sale by the notary, and never agreed to by the parties, I find in the record evidence of the highest character, introduced by plaintiff herself, showing that the alleged assumption of these notes was no part of the consideration of the sale of the Live Oak plantation from James B. and J. Q. Packard to defendant ; and that really the contract was not a sale, but an act of giving in payment, the consideration thereof being an indebtedness of ten thousand dollars due by said vendors, James B. and J. Q. Packard, to the commercial firm of Ober, Atwater & Co., of which defendant was a member. And this evidence consists of judicial admissions in the suit of J. Q. Packard vs. Ober, Atwater & Co., introduced in evidence by plaintiff, wherein the petition alleges the real character of the act conveying to defendant the Live Oak plantation and the real consideration thereof as stated. In view of this proof that the contract whereby defendant acquired from James B. and J. Q. Packard the Live Oak plantation was really a contract of giving in payment, I fail to perceive any obligation that remains to be executed against defendant in behalf of plaintiff or the owner of the notes in suit. It is true the act purports to be a sale, and contains the assumption by the purchaser of the payment of these outstanding notes as part of the price; but the judicial admissions are that the contract was really not a sale, but an act of a giving in payment, and the price thereof was an indebtedness of ten thousand dollars due by said vendors to the firm of which defendant was a member, and to whom the conveyance was really intended to be made.

The judicial admissions of the party with whom defendant contracted are binding on the plaintiff; because it is through him plaintiff claims the obligation she seeks to enforce, and his judicial admissions-in regard to the character of the conveyance were made long before the stipula-lation was impliedly accepted by plaintiff when she brought this suit.

The assumption of these notes in addition to the cash price stated in the conveyance from James B. and J. Q. Packard to defendant, which the notary erroneously and of his own accord inserted in the act, is not binding on defendant; because by the judicial admissions aforesaid it appears that this was no part of the price of the conveyance, and there was no consideration given to defendant for said assumption.

That there may be no mistake in regard to these judicial admissions, I make the following extract from the petition of John Q. Packard vs. Ober, Atwater & Co., viz.: “ That on the twenty-ninth day of February, 1868, the said respondents instituted a suit in the Fifth District Court of New Orleans against petitioner and one Jamos B. Packard to secure the sum of §17,896 66 upon an account for moneys and supplies for planting purposes, etc. * * * To this demand petitioner answered, alleging-payment by deed of the Live Oak plantation in Concordia parish, by act before James Norment, recorder of the said parish of Concordia, of date May 22,1867, to the extent of ten thousand dollars. * * * And petitioner further says that before said settlement (a compromise which plaintiff was suing to annul) he was led to believe, and did believe, through statements made by defendants and testimony which the petitioner then believed, that the said deed made by him of said Live Oak plantation to defendant, Albert G. Ober, for the benefit of Ober, Atwater & Co., had not been accepted by one John Jannoy, the duly-authorized agent of the defendants, a fact which petitioner could not know, for the reason that the acceptance, if made at all, was made in his absence; and laboring under said belief he made said settlement without taking into the account the payment of ten thousand dollars to be credited for the conveyance of the Live Oak plantation.”

And to this suit of Packard to annul the compromise which was made between Ober, Atwater & Co: and John Q. and James B. Packard in regard to thp indebtedness of the latter to the former of §17,896 66, the said Packard filed a supplemental petition, from which I make the following extract, viz.:

“And petitioner further alleges that before entering into said compromise he was led to believe, and did believe, through statements made by Ober, Atwater & Co., and testimony which petitioner then believed, that a deed made by him of the Live Oak plantation to Albert G. Ober, for the firm of Ober, Atwater & Co., for the sum of ten thousand dollars, in discharge of that amount claimed from him by Obei’, Atwater & Co., had not been accepted by one John Janney, the authorized agent of Ober, Atwater & Co.,” etc.

If there ever was a clear and undoubted judicial admission, the one which John Q. Packard made in the suit referred to in regard to the true character, of the conveyance of the Live Oak plantation was certainly one. He there alleges, and repeats it several times, that the conveyance was in fact made to Albert G-. Ober, for the benefit of Ober, Atwater & Co.; that the price was not the payments alleged in the deed, but a credit of ten thousand dollars which he and James B. Packard were to receive on the account of ®17,896 66, which Ober, Atwater & Oo. had against them for advances and supplies. And he distinctly alleges that said deed was accepted by Janney, their duly “ authorized agent.”

The decision of this court in the ease of John Q. Packard vs. Ober, Atwater & Co., reported in twenty-sixth Annual, page 424, shows that all the judges agreed that the contract between Packard and Ober was really a conveyance of the Live Oak plantation to Ober, Atwater & Col; that the contract was an act of giving in payment, and the price ten thousand dollars, the right of redemption within a certain time being reserved. And it was upon this theory that the court in the decree authorized a stay of execution for seventy-five hundred dollars for ninety days, in order that the defendants might file in court within that time evidence of the payment; if made by them, of this amount in discharge of' the mortgage notes in suit, which the recorder, Norment, in drawing the* act of conveyance of the Live Oak plantation had of his own accord1 made Ober assume to pay. It was because Ober had not, in fact, con'tracted to pay these mortgage notes of seventy-five hundred dollars-■which the recorder in drawing the act had erroneously made him assume, and for fear that by a prompt acceptance of this stipulation by the then holder or holders of said mortgage notes Ober might be compelled to pay them, that this court, in the decree referred to, endeavored, of its own motion, to give Ober, Atwater & Oo. an indemnity; it allowed them to withhold for ninety days seventy-five hundred dollars of the' sum adjudged to J. Q. Packard.

Now, plaintiff contends that because the court allowed this guarantee- or limited indemnity therefore defendant should pay the notos or the-balance due thereon claimed in this suit. The answer to this proposition is, that this is a suit to enforce the legal obligation which plaintiff alleges-the defendant incurred \ylaen he accepted the deed of the Live Oak plantation; that if that obligation was not valid when this suit was-. brought.it could not become obligatory by reason of a reservation made in the decision subsequently rendered by this tribunal in the case of John Q. Packard vs. Ober, Atwater & Co., it being the duty of courts to-enforce contracts, not to make them.

An indemnity or security given against the payment of an apparent debt which one has erroneously assumed for another will not preyent. inquiry into the validity of such debt. If defendant did not owe the-debt, the protection which this court endeavored to give Ober, Atwater & Co. against paying- it will not defeat the defense which he -makes and1 which entitles him to relief.

I conclude, therefore, that the defendant, Albert G. Ober, is not liable on his assumption of the payment of these two mortgage notes which Norment, the notary, erroneously inserted in the act of conveyance of the Live Oak plantation, because:

First — The assumption of those notes of James B. Packard has never been accepted, and this suit on said notes does not amount to an acceptance, because they have never been indorsed, and plaintiff fails to show any title to said notes.

Second — Because by the judicial admissions of Packard, under whom plaintiff holds or assorts the right to recover (introduced by herself), the true character of the conveyance of the Live Oak plantation is disclosed; the real contract between the parties is brought into view, and in it there is no legal obligation binding Albert G. Ober to pay the outstanding notes of James B. Packard now sued on by plaintiff; there really never was an agreement between the parties that he should do so; in fact, there was no executory contract imposing duties subsequently to be performed by either party; on the contrary, the real contract was a conveyance of'the Live Oak plantation to Albert G. Ober for the benefit of his firm, Ober, Atwater & Co., to whom the Packards were indebted ?17,896 66, and the consideration of the conveyance was the sum of ten thousand dollars, to bo credited on said indebtedness. In-fact, the contract was not a sale to Albert G. Ober for any sum whatever. He did not pay the ten thousand dollars cash, as stated in the deed, nor did he assume to pay the two outstanding mortgage notes of James B. Packard for seventy-five hundred dollars, as represented in the deed. The truth is, as disclosed by the judicial admissions in the record, and as found in this court in the litigation between J. Q. Packard and Ober Atwater & Co., that the contract in regard to the Live Oak plantation was not a sale, but an act of giving in payment, whereby Ober, Atwater & Oo. acquired the Live Oak plantation and James B. and J. Q. Packard received a credit of ten thousand dollars on their indebtedness to Ober, Atwater & Co. If the contract in regard to the Live Oak plantation was a sale from the Packards to Albert- G. Ober, and, besides the ten thousand dollars stated to have been paid in cash, Ober assumed to pay the outstanding mortgage notes of J. B. Packard for soventy-fivo hundred dollars, why was it that this court, in the litigation between J. Q. Packard and Ober, Atwater & Co., allowed Packard a credit of ten thousand dollars on their claim against him for the price of the Live Oak plantation ? How was it that this court, of its own motion (impelled by a sense of the great wrong about to be inflicted on Albert G. Ober by this erroneous assumption of said outstanding mortgage notes), allowed Ober, Atwater & Co. to retain for ninety days seventy-iivo hundred dollars adjudged tó be the property of John Q. Packard, as an indemnity against the payment of said notes ?•

If Albert G. Ober owed this debt of seventy-five 'hundred dollars as part of the price of the Live Oak plantation, why should his firm of Ober, Atwater & Co. detain as an indemnity against paying it seventy-five hundred dollars of Packard’s money? It seems to me that the conclusion of the majority of the court in this case in regard to the character of the conveyance of the Live Oak plantation is totally at variance from the view taken of it in the case of John Q. Packard vs. Ober, Atwater & Co., 26 An. 424.

I dissent in this case.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    No. 6187.
    Joseph Hoy, Tutor, and Norton and Will Steven, Assignees, vs. J. J. Peterman and Sheriff.
    In this suit in injunction there is no evidence that Peterman recorded his claim as builder and moeli mic, and if the judgment which he obtained in February, 1868, upon being recorded, operated as a privilege on the house seized, it was lost by permitting said house to be sold without a separate appraisement. No claim is urged by virtue of a judicial mortgage on the whole property resulting from recording Peterman’s judgment, the execution being directed against the building only.
    The defendant seems to rely on the acknowledgment of the claim by Hoy and his partial payment of the judgment as sufficient to preserve defendant’s rights and make the dwelling responsible. This may bo good cause to defeat Hoy’s demand for reclamation, but will not fix a privilege on the property. Privileges are created by law, and do not arise from agreement or acknowledgment of parties.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. Oraboi'n, J.
    If. A. Hunter, for plaintiffs and appellees.

      T. G. Manning,- for defendants and appel.ants.
   Howell, J.

On the twenty-ninth of February, 1868, defendant, Peter-man, obtained judgment by confession against T. H. J. Bowles on a note for $1649 91, dated May 3,1866, with interest and lien and privilege of builder on the dwelling-house of said Bowles; which judgment was duly recorded on the fifth of March, 1868. On the twenty-first of September, 1872, execution issued on this judgment, subject to a credit of five hundred dollars paid in June, 1869, and five hundred dollars paid in June, 1870, and the said house was seized and advertised to be sold on the second óf November, 1872. Whereupon plaintiff, Hoy, individually and as tutor, enjoined the said sale on the ground that he and his minor children are the owners of the said house and the plantation on which it is situated, his children having inherited one undivided half thereof through their deceased mother, the sister of said T. H. J. Bowles, and he, plaintiff, having acquired the other undivided half, owned by said Bowles, at a sheriff’s sale on the sixth of February, 1869; that the said judgment against Bowles, so far as it affects the rights or property of plaintiff, Hoy, or his children, is null and void, because they were not parties thereto, and the claim on which it was founded "was prescribed by the prescription of three and five years, and the privilege allowed thereon was never recorded and was lost by the prescription of six months. Hoy further alleged that, upon the assurance of his then counsel that he was liable for said claim, he paid the two sums credited on the execution, and he now asks judgment for the same on the ground that they were made in error. E. E. Norton and W. Steven, assignees, made themselves parties to represent J. Hoy individually. The' defendant, Peterman, besides the general denial, averred as a defense that the dwelling-house seized was built under the direction oí T. H. J. Bowles, who with his sister, Mrs. Hoy, owned the plantation, and who occupied the dwelling until the date of the seizure and his death; defendant specially denied the grounds of error in the payments on the judgment and asks for damages upon dissolution of the injunction.

Judgment was rendered perpetuating the injunction and dismissing the moneyed demand of plaintiff, from which Peterman appealed. Plaintiffs ask amendment of the judgment.

The evidence shows that the plantation on which the house in question was built by Peterman was owned in common by T. H. J. Bowles and his sister, Mrs. Hoy, the latter residing in New Orleans, and the former on the plantation. In 1860 Bowles employed Peterman by the month to do the work. In May, 1862, Bowles gave his note for $1212 to Peterman for the amount due, which was several times renewed with interest added until the one was given in 1866 for $1649 91, on which judgment was obtained by Peterson against Bowles on confession. In 1863 Mrs. Hoy died leaving two children. On the twenty-ninth of February, 1868 (the day he confessed judgment in favor of Peterman), Bowles confessed judgment also in favor of Hoy for over ten thousand dollars, and on the sixth of February his undivided half of said plantation, improvements, and appurtenances were adjudicated by the sheriff to Joseph Hoy for something over seven thousand dollars, which was credited on his, Hoy’s, judgment. On the day before this sale, Petermanflled a petition of third opposition averring his privilege on the dwelling-house on said plantation and asking simply that the sheriff retain enough of the proceeds to pay his claim. After this sale Bowles remained on the property as manager for Hoy until his death.

There is no evidence that Peterman ever recorded his claim as builder and mechanic, and if the. judgment in February, 1868, upon being recorded, operated as a privilege on the house, we think it was lost by permitting the house to be sold without a separate appraisement. R. C. C. 3228, 3268. No claim is urged by virtue of a judicial mortgage on the whole property resulting from recording Peterman’s judgment, the execution being directed against the building only. The defendant, however, seems .to rely on the acknowledgment of the claim by Joseph Hoy and his partial payment of the judgment as sufficient to preserve defendant’s rights and make the dwelling responsible. This may be good cause to defeat Hoy’s demand for reclamation, but will not ñx a privilege on the property. Privileges are created by law, and do not arise from agreements or acknowledgments of parties.

We think the lower judge has done substantial justice between the parties.,

Judgment affirmed.


author: Lttdeling, O. J.

text:
    No. 6104.
    Parish of St. James vs. D. S. Hunsaker.
    The advertisement under which the adjudication of the ferry was made to defendant states that the adj udicatee may satisfy his bid either with currency, certificates of indebtedness of the parish, or parish, warrants. Had the defendant tendered, as he alleges, certificates of indebtedness in satisfaction of his debt, the judgment of the court a qua authorizing defendant to pay the price bid with said certificates of indebtedness would have been correct. But there is no evidence of any tender of such certificates in the record before this court.
    APPEAL from the Fourth Judicial District Court, parish of St. James. Flagg, J.

      B. Beauvais, Parish Attorney, for plaintiff and appellant.

      S. Bolden, for defendant and appellee.
   Lttdeling, O. J.

This suit is instituted to recover the purchase price of a ferry in the parish of St. James.

The defense is that the defendant has tendered in payment or satisfaction of his obligation certificates of indebtedness of. tlio parish, in accordance with the terms of his contract, but that plaintiff refused to receive said certificates, and demanded United States currency.

There was judgment for defendant, and plaintiff appealed.

There is no note of evidence in the record. The advertisement under which the adjudication of the ferry was made to defendant states that the adj udicatee may satisfy his bid either with currency, certificates of indebtedness of the parish,mr parish warrants. Ho alleges that he has tendered certificates of indebtedness in satisfaction of his bid, and the court a qua so decided. If that be true, the judgment authorizing the defendant to pay the price bid with the certificates of indebtedness is correct. But there is no evidence of any tender of such certificates in the record before us. This tender would have thrown the costs of the suit on the plaintiff and stopped interest if it had been proved, but in any event, the plaintiff was entitled to a judgment against the defendant for the sum of seven •hundred dollars, with interest as stated in the petition, to be paid either in currency or in the certificates of indebtedness of the parish, at the option of the defendant.

It is therefore ordered that the judgment of the lower court be reversed, and that there be judgment in favor of the plaintiff for seven hundred dollars, with interest as prayed for.

It is further ordered that defendant be authorized to satisfy the judgment either with currency, certificates of indebtedness of the parish, or parish warrants.

It is further ordered that defendant pay costs of both courts.


text:
    No. 6234.
    Henry W. Strickland vs. James W. Terry.
    Plaintiff sues defendant for an alleged balance due on the purchase by the latter of the interest of the former in their commercial partnership and certain items which plaintiff avers the said partnership owed him prior to the said sale of his interest, and which he says wore included in the debts assumed by the defendant. "Without clear proof that such a claim by the soiling partner was expressly assumed by the purchasing partner, it will be considered included in fixing the purchase price of the interest sold.
    APPEAL from the Sixth Judicial District Court, parish of St. Helena. Kemp, J.

      Julius JS. Wilson and James 11. Muse, for plaintiff and appellant.

      J. M. Wright, attorney ad hoc, for defendant and appellee.
   Howell, J.

Plaintiff sues'defendant for an alleged balance due on the purchase by the latter of the interest of the former in their commercial partnership and certain items which plaintiff avers the said partnership owed him prior to the sale of his said interest, and which he says were included in the debts assumed by the defendant.

The defense, by an attorney ad hoc, is that the purchase price has been paid; that at the date of said purchase no claim for the other items was made, and that plaintiff can not sue for a specific sum growing out of the partnership transactions until a final settlement of the partnership is made.

Judgment was rendered in favor of the defendant on the demand, dissolving the attachment with two hundred dollars as damages for fee to the attorney ad hoc. The plaintiff appealed, and the attorney ad hoc asks that his fee be increased to three hundred dollars.

The evidence makes out the payment and settlement pleaded by defendant, but does not establish the alleged assumption by defendant of the claim set up by plaintiff for items arising prior to the dissolution of the partnership; without plear proof that such a claim by the selling partner was expressly assumed by the purchasing- partner, it will be considered included in the purchase-price oí the interest sold.

We think the pleadings authorized the admission oí the evidence objected to by plaintiff. But under the circumstances of this case we think a fee of one hundred dollars is sufficient allowance to the attorney ad hoc, which under the law is to be taxed as costs and paid by the plaintiff.

It is therefore ordered that the judgment appealed from be amended by reducing the amount allowed as fee to the attorney ad hoc to one hundred dollars, and, as thus amended, it be affirmed; plaintiff to pay costs of the lower court, and defendant and appellee those in this.


author: Taliaeerbo, J.

text:
    No. 6211.
    Gustave S. Rousseau vs. F. Norbert Marionneaux.
    The plaintiff, an'attornoy-at-law, had agreed with defendant to collect certain promissory notes, with the understanding that in no case was he. to demand or receive fee for suit brought on said promissory notes until collected, which fee would then bo eight per cent on the amount.
    It appears that plaintiff obtained judgment on three notes, issued fieri facias, which were returned nulla bona, and never made any further effort to realize anything from these j udgments. Seven years elapsed before tlicro was any prospect of any thing being made by prosecuting the judgments; but when in the progress of events an opportunity.ocourred to collect something-, the plaintiff took no stop in that direction, although roauested to do so. He not only failed to take any action in the matter, but, it seems, ho oven discouraged the making of an effort to collect. The defendant then employed an attorney, with the plaintiff’s assent, and the last attorney collected over ten thousand dollars. The plaintiff now demands eight per cent commission on the amount collected, as duo him per contract. Uuder the circumstances of the case, the plaintiff is entitled to no fee.
    APPEAL from the Fifth Judicial District Court, parish of Iberville. Dewing, J.

      George Wailes and Barrow & Pope, for plaintiff and appellant.

      Samuel Mattheios, for defendant and appellant.
   Taliaeerbo, J.

The plaintiff, an attorney-at-law, sues the defendant for a fee, amounting to §912 67, which he alleges the defendant owes -him. The defendant answered by general denial. He admits entering into the written agreement declared upon by the plaintiff, but alleges that according to the terms of the agreement there is nothing owing to him, as the plaintiff never collected anything for the defendant on the notes referred to in his petition.

The judgment of the lower court was in favor of defendant and rejecting the plaintiff’s demand. The plaintiff appealed.

The defendant placed in the hands of the plaintiff various promissory notes, amounting in the whole to about twenty thousand dollars, on the following conditions expressed in the written agreement of the parties: .“The party of the first part (Marionneaux, the defendant-,) agrees to pay all the costs of the suits in the district court, that is to say, clerk’s and sheriffs costs for the collection of the said notes above described. The party of the first part and the party of the second part have agreed that the said party of the second part is entitled to no fees, except when the said promissory notes are collected or part thereof, and then the said party of the second part is to receive eight per cent on all sums collected, whether through due course of law or otherwise, but in no case is he to demand or receive fee for suit brought on said promissory notes above described until collected.”

It appears that the attorney obtained judgments on these notes, issued fieri facias, which were returned 'nulla bona, and never made any further effort to realize any thing from these judgments. Seven years elapsed before there was any prospect of any thing being made by prosecuting the judgments; but when in the progress of events an opportunity oc■curred to collect something, the plaintiff took no step in that direction, although requested to do so. He hot only failed to take any action in the matter, but it seems he even discouraged the making of an effort to collect. The defendant then employed another attorney with the plaintiff’s assent, and the last attorney collected over ten thousand dollars, and the plaintiff now demands eight per cent commission on the amount collected as .due him under the contract between him and the defendant. We see no ground for such a demand, and conclude the decree of the lower court was properly rendered.

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


author: TaliaeeeRO, J.

text:
    No. 6205.
    Mrs. Delphine A. Taylor vs. R. S. Bowles et al.
    It is shown that Bowles; who is holder of the note of plaintiff that fell due on the first of January, 1873, became the owner of it in the spring of the year 1872. No successful effort has been made to overcome the presumption that he is a bona fide holder before maturity, and without knowledge of equities that may exist between the prior parties. This, then, disposes of the case adversely to the plaintiff in injunction.
    APPEAL from the Thirteenth Judicial District Court, parish of Carroll. Hough, J.

      A. W. Roberts, J. W. Montgomery, Labait, Aroni & Clinton, for plaintiff and appellee.

      J. JE. Leonard and Singleton & Browne, for defendant and appellant.
   TaliaeeeRO, J.

In this case a married woman, not separate in property, enjoins the execution of an'order of seizure and sale taken out against a tract of land and plantation, her separate property, which she had mortgaged to the commercial firm of Johnson & Goodrich, to secure them for certain plantation supplies and for money which they had agreed to furnish her. She alleges fraud and bad faith in the merchants, whom she •charges with having, under the contract made with them, obtained from her three several promissory notes, amounting to five thousand dollars, secured by mortgage, and in violation of their agreement with her had the notes discounted and applied the proceeds to the payment of a preexisting debt of her husband’s, contracted with them the year previous. The note upon which Bowles, the defendant in injunction, proceeded to obtain the order of seizure and sale, she alleges, is one of the three notes executed as aforesaid by her in favor of Johnson & Goodrich ; and she alleges that the same is null and without consideration, and was passed off by Johnson & Goodrich to Bowles, after its maturity, with the view to •¡prevent her from pleading equities between herself and Johnson & Goodrich, had they sued her directly on the note. She alleges various other illegalities in the proceeding taken against her, and prays that the order •of seizure and sale be rescinded; that the note held by Bowles be declared without consideration, and the pretended mortgage be deemed an utter nullity and ordered to be canceled and erased from the public records.

The answer changed the via executiva to the via ordinaria, sets up a ■reconventional demand for attorney’s fees, and prays a dissolution of the injunction with damages.

Judgment was rendered in favor of the plaintiff in injunction, decreeing the nullity of the note and mortgage, and that the mortgage be canceled, the defendant to pay costs.

It is shown that Bowles, who, is holder of the note of Mrs. Taylor •that fell due on the first of January, 1873, became the owner'of it in the •spring of the year 1872. No successful effort that wé see, has been made to overcome the presumption that he is a bona fide holder before maturity, and without knowledge of equities that may exist between the prior parties. This, then, disposes of the case adversely to the plaintiff in ■injunction.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be annulled and reversed. It is further ordered that the defendant recover from the plaintiff the sum of twelve hundred and fifty dollars, with interest thereon from the first of January, 1873, at eight per cent per annum; that the defendant’s rights of mortgage upon the property mortgaged to secure the .payment of defendant’s debt evidenced by the note for $1250 sued on be recognized and enforced against the property mortgaged; that the same be sold according to law to pay and satisfy the said claim ; that the injunction be dissolved with one hundred dollars damages for attorney’s fees and costs of suit.

Rehearing refused.


author: Moegan, J. Morgan, J.

text:
    No. 5673.
    Mrs. Elise Labauve vs. Henry R. Slack, Testamentary Executor.
    This court does not see how the discharge in bankruptcy of Joseph B. woolfolk, who before going into bankruptcy had sold to Austin Woolfolk a certain piece of property mortgaged to Labauve, can free said property from the incumbrance in favor of Labauve, whose mortgage was not interfered with by the sale. The mortgage was on the property when Austin Woolfolk bought it, and it is there now.
    APPEAL from, the Fifth Judicial District Court, parish of Iberville. Dewing, J.

      Barrow & Pope, for plaintiff and appellant.

      Samuel Matthews, Merrick, Pace & Foster, for defendant and appellee.
   Moegan, J.

Zenon Labauve held two special mortgages upon a plantation owned by Mrs. Emily Woolfolk and Joseph B. Woolfolk. These mortgages were converted into judgments in August, 1865. The judgments were recorded on the day they were rendered. J. B. Woolfolk sold his interest in the mortgaged premises to Austin Woolfolk in September following. Labauve’s mortgage was not interfered with by this sale.

In January, 1868, Labauve issued a writ of fieri facias on one of his judgments. Under this writ the property mortgaged was seized and advertised for sale. Before the sale J. B. Woolfolk petitioned the United States Court here to be declared a bankrupt. The sale took place notwithstanding his surrender. Labauve became the purchaser. Austin Woolfolk is dead. His succession is represented by his executor. This' suit is instituted in order to make the. property purchased by Austin Woolfolk from J. B. Woolfolk subject to the mortgage Labauve held against it at the time it was purchased. The defense both as to the defendant and the intervenor is that J. B. Woolfolk was declared a bankrupt and Labauve’s debt was discharged.

We do not see how the discharge in.bankruptcy of J. B. Woolfolk can release Austin Woolfolk’s property from an incumbrance in favor of La-bauve, that property never having been before the bankrupt court, and Labauve’s security never having been affected thereby. The mortgage was on the property when Austin Woolfolk purchased it, and it is there now.

Judgment affirmed.

On Rehearing.

Morgan, J.

In this case the error which we granted the rehearing to correct was in the decree. We affirmed the judgment of the district court, when we intended to reverse it.

A further examination of the record satisfies us that the principles upon which the case was decided were correctly stated.

It is therefore ordered, adjudged, and decreed that our former judgment be set aside and annulled, and it is now ordered, adjudged, and decreed that the judgment of the district court be avoided, annulled, ancl reversed, and'that tho property described in plaintiff’s petition be declared subject to the mortgage therein recited, and that the same be seized and sold, and the amount of the judgments as recited in the petition against Joseph B. Woolfolk be paid out of the proceeds thereof, with all the costs and costs of this suit.


author: Wyly, J.

text:
    No. 6219.
    Charles DeGreck & Co. vs. Murphy & Gaines et al.
    The defendant in rulo is not entitled to call in warranty Julius Aroni, who, in a separate act, had agroed to warrant his eo-obligor, Thomas It. Sutton, from liability on the appeal bond which they both signod. The liability of Sutton on the appeal bond had been fixed by tho return of nulla bona on the fieri facias issued by plaintiffs against the defendants in execution; and the legal representative of Sutton, the surety, had no right to dolay the summary proceeding of plaintiffs in order to enforce tho obligation of Aroni in favor of Sutton to which plaintiffs were not parties.
    As the ruling of tho court in refusing to strike out tho call in warranty subjected plaintiffs to unnecessary delay in the enforcement of their claim, they had a right to appeal.
    APPEAL from the Thirteenth Judicial District Court, parish of Ten-sas. Sough, J.
    James. G. Leach and Reeve Leiois, for plaintiffs and appellants.

      Brake & Curell for the legal representative of Sutton, the surety.
   Wyly, J.

This is a proceeding by rule against Mrs. M. A. Beaver, individually and as natural tutrix of the minor, Daniel Carroll Sutton, who have succeeded to the rights and obligations of Thomas B. Sutton, to enforce the obligation of the deceased on an appeal bond in tho above entitled case.

The defendant in rule called in warranty Julius Aroni, who was eo-obligor on the appeal bond, and who had, in a separate act, agreed to warrant the said Thomas B. Sutton from liability on said appeal bond.

The court refused to strike out the call in warranty on the suggestion of plaintiffs that it would cause unnecessary delay and it was not allowable in this summary proceeding, and ordered the call in warranty to be allowed and the case continued for service on tho warrantor. Thereupon plaintiffs took an appeal from this interlocutory order.

The question is, was tho defendant in rule entitled to call in warranty Julius Aroni, who, in a separate act, had agreed to warrant his co-obligor, Thomas B. Sutton, from liability on the appeal bond which they both signed ?

We think not. The liability of Sutton on the appeal bond had been fixed by the return of nulla bona on the fieri facias issued by plaintiffs against the defendants in execution, and the legal representative of Sutton, the surety, had no right to delay the summary proceeding of plaintiffs in order to enforce the obligation of Aroni in favor of Thomas R. Sutton, to which plaintiffs were not parties. To allow this would be to subject plaintiffs to all the delays attending an original suit, and the proceeding would, in effect, be the beginning rather than the end of a litigation. Plaintiffs are strangers to tho contract between Aroni and Sutton, ■and they are not to be delayed in tho summary proceeding to which they are entitled by a litigation to enforce the obligation arising from said contract.

Article 380 of the Code of Practice has no application to the summary proceeding against the surety on an appeal bond. As the ruling of the court subjected plaintiffs to delay in the enforcement of their rights, they had the right to appeal. The motion to dismiss is denied.

It is therefore ordered that the judgment appealed from be annulled, and that this case be remanded to be proceeded in according to law, defendant in rule paying costs of appeal.


author: MougaN, J.

text:
    No. 6215.
    S. W. Davis vs. Mrs. N. P. Williams.
    This is a suit against defendant for tho value of certain mules which her husband is alleged to have bought on her behalf .and as her authorized agent. As tho mules wero delivered on her plantation, some seven of which were seen there just before the institution of this suit, and as tho testimony is not contradicted that the mules were bought for defendant's plantation, and as tho authority of her husband to contract for her is established, she must be held to perform th e obligations assumed for her by her agent.
    APPEAL from the Thirteenth Judicial District Court, parish of Carroll. Hough, J.

      Leonard tO Kennedy, for plaintiff and appellant-.'

      G. M. Pilcher and J. W. Montgoviery, for defendant and appellee.
   MougaN, J.

The defendant is the owner of a plantation called Sherwood. During coverture she was separated in property from her husband. Her husband held her power of attorney. He is now dead. He purchased for her account from the plaintiff fourteen mules, paying some of the price and leaving a balance due of §827, for which he gave a draft on a house in New Orleans. The draft was protested for nonacceptance. Plaintiff sues for the balance due.

The defense is that the mules did not inure to her benefit; that if. the plaintiff has any claim it is against the succession of her husband; that at the time the mules are alleged to have been purchased her husband was engaged in the cultivation of other plantations; and that, if purchased, they were intended for those plantations.

The mules were delivered on her plantation. Some seven of them were seen there just before the institution of this suit. As the testimony is not contradicted that the mules were bought for defendant’s plantation and that they were delivered there, and as the authority of her husband .to contract for her is established, she must be held to perform the obligations assumed for her by her agent.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be avoided and annulled, and that there be judgment in favor of the plaintiff for $827 60, with five per cent interest from judicial demand, with costs in both courts.


text:
    No. 6179.
    J. S. Leisey vs. Branch Tanner and T. B. Helm, Tutor.
    Tlie record shows tliat the heirs of Mrs. Desire Tanner, including the minors Holm through their deceased mother, owned a plantation in common, and that, for the purpose of cultivating it, they determined to execute a mortgage thereon to raise the necessary funds. A family meeting was duly convoked, who decided that it was to the advantage of the said minors that a mortgage should be executed on their ono-flftli of said property for said purpose. Their deliberations wore homologated, the execution of the mortgage ordered and duly effected to socuro the note sued on and identified with the act of mortgage. This is in conformity to the law and jurisprudence of this State.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      TV. F. Blackman, for plaintiff and appellee.

      T. C. Manning, for T. B. Holm, defendant and appellant.
   Howell, J.

This is an action by the holder against the joint makers of a note secured by mortgage on property of the makers. The defense on the part of T. B. Helm, tutor, is that the property of his wards could not be incumbered except for their sustenance and education; that if the-niortgage is valid it can affect only the property specifically mortgaged; and that the minors can not be bound solidarily with the other maker.

The tutor appealed from a judgment against him for one-half of the note with recognition of mortgage.

Tlio record shows that the heirs of Mrs. Desire Tanner, including the minors Holm through their deceased mother, owned a plantation in common, and for the purpose of cultivating it determined to execute a mortgage thereon to raise the necessary funds. A family meeting was duly convoked, who decided that it was to the advantage of the said minors that a mortgage should be executed on their one-fifth of said property for said purpose. Their deliberations were homologated, the execution of the mortgage ordered and duly effected to secure the note sued on and identified with the act of mortgage.

This is in conformity to the law and jurisprudence of this State. See R. C. C. 339; 14 An. 760; 13 An. 364; 12 An. 674; 11 An. 667; 4 An. 253, 543.

As to the second defense, it need only be said that it can bo considered when the occasion for it arises. In this case the judgment directs only the property mortgaged, the one-fifth interest in a certain plantation, to be sold.

As to'the third ground, the minors were not condemned solidarily with the other maker.

Judgment affirmed.


author: Taliaeeeko, J.

text:
    No. 6148.
    Mrs. Jeannette Wells vs. E. E. Norton and Will Steven, Assignees of J. Hoy & Co.
    During several years previous to this suit, tlie Wellswoocl plantation, of which plaintiff is part owner, was exclusively under (he control and management of plaintiff’s husband. He corresponded with the merchants, ordered supplies, drew drafts upon them, and the merchants’ accounts were charged to wcllswood plantation, and its products were shipped to the merchants. Dor abalance claimed by Joseph Hoy & Co. as duo to them suit was brought against Mrs. wells, the plaintiff in this case, judgment obtained, and, on execution having issued upon this judgment and her undivided half-share beim; seized by the sheriff, she sued out a" restraining the sale, and prayed that the judgment rendered again . u.-l bo declared null and void.
    The court below did not orr in annulling said judgment, under the circumstances of the case, the wife was not responsible for the indebtedness contracted by the husband. It is not shown that slio derived any benefit personally by the transactions that took place between Hoy & Co. and her husband, or that her husband acted as her agent by her authority. She is not separate in property from her husband, and the community of aeauosts and gains between thorn has never been dissolved. The debt is a community debt, for which the wife’s paraphernal property is not bound.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      W. F. Blackman, for plaintiff and appellee.

      Robert A. Hunter, for defendants and appellants.
   Taliaeeeko, J.

During the years 1869 and 1870 Joseph Hoy & Co., of New Orleans, as factors and commission merchants, furnished the Wells-wood plantation, in the parish of Rapides, with the necessary supplies and means required for its cultivation as a sugar estate, and transacted the business of the place generally. This plantation is owned by the plaintiff and her sister, Martha L. Wells, an interdict, and the succession of T. J. Wells, deceased. No division of the property, it seems, has ever been made. By an agreement between Montfort Wells, the plaintiffs husband, and the curator oí Mrs. Martha L. Wells, it was arranged that, for the support and care of the interdicted sister of plaintiff, Montfort Wells should have the use of and cultivate her portion of the property. During the years aforesaid the Wellswood plantation was exclusively under the control and management of Montfort Wells, the plaintiff’s husband. He corresponded with the merchants, ordered supplies, drew drafts upon them, and the merchants’ accounts were charged to Wells-wood plantation, and its products were shipped to the merchants.

' Eor a balance claimed to be due by Joseph Hoy & Co., amounting to §13,074 26, suit was brought against Mrs. Wells, the plaintiff, and judgment obtained on the fifth of January,1872. An execution having issued upon this judgment, and her undivided half-share of the Wellswood plantation being seized by the sheriff, Mrs. Wells sued out an injunction restraining the sale of the property seized, and prays that the judgment rendered against her be decreed null and void on various grounds. She alleges that in the proceeding thus taken against her, á judgment by default was entered before she, a married woman, was authorized in any manner to appear in court; that the petition was served alone on her husband; that no personal service was ever made on her; that the appearance of William A. Seay as her attorney, his filing an answer for her, and all the acts done by him in the proceeding were without her knowledge, authority, or consent; that the judgment rendered against her was for a debt contracted by her husband for his own use and benefit, or that of the community, to assist him in his planting operations on Wellswood plantation; that without her knowledge and consent the judgment was rendered on compromise and agreement between her husband and plaintiffs, a fact which she but recently ascertained, having had no knowledge that the judgment was rendered until it was too late to appeal. These ■averments are sworn to on the petition for injunction. Judgment was rendered by the lower court annulling the judgment against the wife, and the defendants in injunction have appealed.

If there were defects in the citation in the suit of Joseph Hoy & Co. vs. Mrs. Wells, they were cured by the answer of the defendant to the merits. The prominent inquiry in this case appears to be, is the wife responsible for the indebtedness to Joseph Hoy & Co. contracted by her husband? We think it results from the facts shown by the evidence that she is not. It is not shown that she derived any benefit personally by the transactions that took place between Hoy & Co. and her husband, or that the husband acted as her agent, or by her authority. She is not separate in property from her husband, and the community of acquests and gains between them has never been dissolved. The debt is a community debt, for which the wife’s paraphernal property is not bound. The merchants dealt solely with the husband, who was administering his wife’s separate estate. In the 'Wellswood plantation we have seen there were involved other interests than those of Mrs. Jeannette Wells. A part of it belonged to the succession of Jefferson Wells, and a part of it to Mrs. Martha L. Wells. This portion of the plantation was cultivated, together with that part of it belonging to Mrs. Jeannette Wells,, by Montfort Wells, and the whole of the place on his own account. In the agreement made by Montfort Wells and the attorney of Joseph Hoy & Co., by which it was arranged that a judgment should be rendered against Mrs. Jeannette Wells with stay of execution, and the indebtedness be discharged in installments of one, two, and three years, the wife was not a party, and knew nothing of this agreement. Montfort Wells employed Mr. Seay, an attorney, to attend to the matter and have the judgment entered up strictly in conformity with the conditions agreed upon. Mr. Seay, whose testimony was taken under commission, says that he was never consulted in any manner, nor authorized by Mrs. Wells to act in this matter; that his services were engaged by Montfort Wells. It is clear that the attorney had no authority from the wife to act in her behalf. It appears by an act of settlement between the wife and the husband entered into in the year 1843, and introduced in evidence on the trial of this case, that Montfort Wells, the husband, conveyed to his wife eight hundred acres of land now forming part of the Wellswood plantation in payment of paraphernal funds received by him and used for his own purposes. By this act the wife, declares that she resumes the control and administration of her separate paraphernal estate. It is, however, clear from the evidence, that during the period in which this indebtedness to Joseph Hoy & Co. was incurred, her husband alone had the administration of her separate- estate, and that without objection on her part, and not as agent of his wife.

We think the judgment of the lower court was correctly rendered, and it is ordered that the same be affirmed with costs.


author: Mobgan, J.

text:
    No. 5145.
    F. Otto vs. Simeon Belden et al.
    In this suit against the indorsor on a promissory note, no demand, having boon made o£ the maker, the indorser is discharged..
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      Thomas J. Cooley, for plaintiff and appellee.

      J. Q. A. Fellows, in propria persona, defendant and appellant.
   Mobgan, J.

The only party before the court is J. Q. A. Fellows, the indorser on the note sued on. His defense is want of demand.

The allegations in the petition are that Belclen, the maker of the note, resides in this city, and that it was duly presented for payment at the maturity thereof, and payment refused. The certificate of the notary is that he went several times to the office of the drawer to demand payment thereof, and that he found the doors closed and no one in or about the premises of whom the demand could be made.

No demand was made of the maker. Therefore the indorser is discharged.

It is therefore ordered, adjudged, and decreed that the judgment of the district court as against J. Q. A. Fellows be. avoided, annulled, and reversed, and that there be judgment in favor of the defendant, J. Q. A. Fellows, with costs.

Rehearing refused.


text:
    No. 6101.
    R. F. Choppin et al. vs. Oscar J. Forstall et al.
    The district court erred in dismissing this suit for want of jurisdiction.
    The action is one to recover property, and, the value being sufficient, the court had jurisdiction under the constitution and laws now in force. In determining the validity of the sales in Question that tribunal has power to say whether or not the alleged proceedings in the probate court are valid, and sustain or annul the sales complained of without formally sustaining or annulling the said judicial proceedings. All that the plaintiffs ask in this respect is the annulment of the sales, and to have this done it is not necessary, as contended by the defendants, to obtain a judgment annulling the judicial proceedings and decrees resulting in the sale of the property.
    under the present constitution the district courts have j urisdietion of suits in which a succession is plaintiff or defendant, if the amount involved is over five hundred dollars. Such a suit is the present one. It is not a probate matter, nor are plaintiffs seeking to annul a judgment of another court.
    The other grounds of exception are not well taken. The parties named in the first exception were cited, or they accepted service and waived citation, and it is not perceived that any conflict of interest exists between the tutrix and the minors. IVhat she claims is the same in nature as that claimed for the minors. The question of estoppol and warranty does not arise in this action.
    APPEAL from the Fourth Judicial District Court, parish of St. James. Flagg, J.

      Bobert G. Fugué and Bandall Hunt, for plaintiffs and appellants.

      St. M. Berault, C. T. Bemiss, and F. Augustin, for defendants and appellees.
   Howell, J.

The plaintiffs, who are the widow and heirs of Valérion Ohoppin, deceased, allege that at the death of the said V. Choppin, in July, 1866, ho owned two plantations, known as the Homo Placo and Bay Tree, as his separate property, twenty thousand dollars in money, and other movable effects, and a standing crop which realized over twenty thousand dollars, and left no debts; that in August of the same year one. of his children, Eugenie Leda, died, leaving no debts; that both suecos-sions wore opened in the following month, September; that the widow and mother was confirmed as natural tutrix, and was put in possession of the two estates, free of debt, in her own right and as tutrix; that in the year 1871 the State of Louisiana instituted suit, which is still pending, against one Sosthene Theriot and his sureties, said Valérien Ohoppin being one, on his official bond as tax collector, for over seventeen thousand dollars; that for the purpose of protecting the estate of said Ohop-pin from responsibility therein the firm of Edmond J. Forstall & Co. caused mortuary proceedings to be had in his succession, and prevailed on the widow to be appointed administratrix, approve fictitious accounts, including one in their favor for over nine thousand dollars, and one in favor of O. 0. Olivier for six thousand five hundred dollars, and consent to a sale of the said plantations and other property; that under a decree thus obtained a simulation and fraudulent sale thereof was made by the sheriff to said E. J. Forstall & Co. for $>106,335; that no money or other consideration was paid for said property, which at the time was not the property of said succession; that plaintiffs continued in the possession thereof after said pretended sale, and are now in possession of the Home Place; that the defendants have always admitted the simulation and nullity of all the said probate proceedings and sale, and that only since the death of Edmond J. Forstall, father and grandfather of plaintiffs, the defendants took illegal possession of Bay Tree plantation, which they have, by a simulated and fraudulent act, dated ninth of September, 1874, transferred to the succession of saidE. J. Forstall; and they prayed that the said sheriff’s sale of September 2,1871, and the notarial transfer of the ninth of September, 1874, be avoided and annulled as simulated and fraudulent, and that they bo decreed the’owners of said property and quieted in possession thereof, and recover from the surviving members of said firm, and the succession and widow of E. J. Forstall, §285,208 17, revenues of the plantations recovered by them.

The defendants excepted that the forced heirs named in the exceptions, and all the parties to the proceedings complained of, had not been made parties to the suit. These exceptions were, by consent, maintained, and the parties named were cited upon a supplemental petition describing them.

Subsequently the defendants filed the following exceptions:

First — The order to make parties has not been complied with, the forced heirs not having been cited.-

Second — -O. C. Olivier, a party to the mortuary proceedings complained of, has not been made a party.

Third — -The court is incompetent, ratione materia3, to pass on and decide the issues presented in the petition, because it seeks the avoidance of acts performed under the decrees of another tribunal.

Fourth — There is a conflict of interest between the tutrix and her minor children, and she can not represent them in this suit, and the widow and E. F. Choppin are estopped by their own deed and warranty from questioning and asking the nullity of the sale of the second of September, 1871.

On trial of these exceptions the court dismissed the suit for want of jurisdiction, and plaintiffs appealed.

We think the court erred. The action is one to recover property, and, the value being sufficient, the district court'has jurisdiction under the constitution and laws now in force. In determining the validity of the sales in question that tribunal has power to say whether or not the alleged proceedings in the probate court are valid, and sustain or annul the sales complained of, without formally sustaining or annulling the said judicial proceedings. All that the plaintiffs ask in this respect is the annulment of the sales, and to have this done it is not necessary, as contended by defendants, to obtain a judgment annulling the judicial proceedings and decrees resulting in the sale of the property. Under the present constitution the district courts have jurisdiction of suits in which a succession is a plaintiff or defendant, if the amount involved is over five hundred dollars. Such a suit is the present one. It is not a probate matter, nor arc the plaintiffs seeking to annul a judgment of another court.

The other grounds of exception are not well taken. The parties named in the first exception were cited, or they accepted service and waived citation. And we do not see any conflict of interest between the tutrix and the minors. Wbat she claims is the same in nature as that claimed for the minors. The question of estoppel by deed and warranty does not arise in this action.

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


text:
    No. 6194.
    Executors of John Bird vs. Angelina A. Lobdell. Ocean Saw Mill, Third Opponent.
    The law declares that the act or other evidence of debt must bo recorded on the day that the contract was entered into in order to give such privilege a preference over creditors who have acquired a mortgage. The impossibility, as alleged, of registering the particular contract in this ease can not vary the law or its interpretation as fixed by the established jurisprudence of the State.
    APPEAL from the Fifth Judicial District Court, parish of West Baton Bouge. Deicing, J.
    & P. Grece?, for plaintiff and appellee.

      Favrot <£• Lamon, for third opponent and appellant.
   Howell, J.

This is a contest between a special mortgagee and the furnisher of materials for the building .of a sugar-house on the mortgaged premises.

The privilege accorded by law to the furnisher of said materials has not been preserved so as to rank the existing mortgage, that is, by recording tho evidence thereof on the day that the contract for the materials was entered into, as required by article 3274, Revised Civil Code. See 23 An. 286.

The impossibility of registering this particular contract, as alleged, can not vary the law or its interpretation as fixed by the established jurisprudence of the State. The law declares that the act or other evidence of the debt must be recorded on the day that the contract was entered into, in order to give such privilege a preference over creditors who have acquired a mortgage. ■

Judgment affirmed.


text:
    No. 6195.
    B. T. Beauregard vs. Parish of East Baton Rouge.
    In making out the descriptive list ior the hoard ol assessors, plaintiff, tax collector, was merely performing a duty pertaining to his office, for which the State had provided suitable compensation. Indeed, it prohibited him from receiving more than two thousand dollars, and reauired him to be paid by tho State Treasurer on the warrant of the Auditor of Public Accounts.
    That part of the ordinance of the police jury allowing remuneration for a service which was a duty imposed by law on the tax collector must he regarded as a mere gratuity, and it can not he the basis of a valid demand against the parish. A police jury has no authority to bestow a liberality on any one.
    Plaintiff, however, is entitled to reasonable compensation for making out tho parish tax-rolls, but he has failed to prove the value of this service.
    APPEAL from the Eifth Judicial District Court, parish of East Baton Rouge. Dewing, J.

      James 0. Fuqua, Andrew S. Herron, B. S. Posey, for plaintiff and appellee.

      G. A. Griffith, J. W. & G. W. Burgess, for defendant and appellant.
   Wyly, J.

Plaintiff, the tax qollector of the parish of East Baton Rouge, sues said parish for $3954 05 for listing the taxable property in said parish and making out the rolls for the years 1873 and 1874, being five per cent upon the taxes assessed during said years. The action is based on the following ordinance adopted by the police jury on the tenth June, 1871: “That the tax collector shall list all taxable property for assessment, and shall by the first day of August of each year furnish to the parish board of assessors a descriptive list of taxable .property in the parish. He shall procure at the expense of the parish all necessary blanks for this purpose, and he shall be required to make a roll, to be known as the parish roll, on which the name of all taxpayers who have property shall appear, and opposite to each name a description of his property, of land, its boundaries and number of acres, and on which shall appear the amount of the valuation of each taxpayer’s property,, and the amount of taxes he owes to the parish, said blank roll to be furnished Dy the parish. The tax collector shall receive the same commission for listing of property, collecting taxes and licenses, as is now provided by law for such services, and when no provision is or has been made for such services, then in that case he shall receive the same commissions that are allowed to him for like services by the State, and said commissions payable out of any money in the treasury on his own warrant.”

By act No. 42 of the acts of 1871, which was in force when the foregoing ordinance was passed, it was made the duty of the tax collectors: in the respective parishes to make out and complete a descriptive list of all taxable property within such parishes, and to make oath to the correctness thereof and deliver the same to the board of assessors on or before the first day of August of each year. And by section No. 49 it is provided:

That the tax collectors, outside of the city of New Orleans, shall receive annually as compensation for taking a description of taxable-property five per centum on the amount of taxes assessed or levied on such property. * * * Provided, that no tax collector, outside cf the city of New Orleans, shall receive less than three hundred dollars nor more than two thousand dollars for performing the duties imposed on him by this section.”

We think the plaintiff can not recover from the parish five per cent on the amount of taxes assessed for making out a list of taxable property for the board of assessors for 1873 and 1874, because by law in force when the ordinance of the police jury was adopted .this service-was a part of his duty as tax collector, and for which adequate compensation was fixed. In making out the descriptive list for the board of assessors, plaintiff, the tax collector, was merely performing a duty pertaining to his office for which the State had provided suitable compensation; indeed, it prohibited him from receiving more than two thousand dollars, and required him to be paid by the State Treasurer on the warrant of the Auditor of Public Accounts.

That part of the ordinance of the police jury allowing remuneration for this service, a duty imposed by law on the tax collector, we regard as a mere gratuity; and it can not be the basis of a valid demand against the parish. A police jury has no authority to bestow a liberality on anyone. It can not-bind the parish by adopting an ordinance agreeing to pay any sum to a tax collector for the performance of a duty imposed oil liim by the State, and for which adequate compensation has been provided by law.

Plaintiff, however, is entitled to reasonable compensation' for making out the parish tax-rolls; but he fails to prove the value of this service.

It is therefore ordered that the judgment herein in favor of plaintiff for $3954 05 be annulled, and that the demand for listing the taxable property for 1873 and 1874 be rejected and the demand for making out the parish rolls be dismissed as of nonsuit.

It is further ordered that plaintiff pay costs of both courts.


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    No. 6206.
    Moss, Wise & Co. vs. Arthur Johnson. F. O. Minor, Intervenor.
    I£ intervenor’s suit be considered as founded on a sale, there was not á delivery so as to preclude the creditors of the vendor from seizing- the property for their debts; and if it be viewed as a giving in payment, it was ineffectual for want of delivery.
    APPEAL from the Thirteenth Judicial District .Court, parish of Ten-sas. Sough, J.

      S. W. Drake, for plaintiffs and appellees.

      Deere Lewis, for intervenor and appellant.
   Howell, J.

On the twentieth of December, 1872, Arthur Johnson acknowledged in writing that Moss, Wise & Co. had furnished him provisions and supplies to the amount of two hundred dollars to make the crop of that year, recognizing a privilege therefor, and obligating himself not to alienate or to incumber said crop to the prejudice of said lien. This writing was signed also by Moss, Wise & Co., and recorded on the day of its date. On the same day Moss, Wise & Co. instituted this suit against Johnson for $559 10, claiming privilege for $304 30 thereof, and caused ten bales of cotton on the 1’Argent plantation to be sequestered as the property of said Johnson. And on the twenty-third of December, 1872, they entered into a written compromise and settlement by which the ten bales of cotton, estimated to weigh forty-two hundred pounds, were sold to Moss, Wise & Co for $750, $519 10 thereof to go to the extinguishment of said claim, twenty-five dollars to pay costs of the suit, and the balance ($165 90) was paid to Johnson.

On the sixth of January, 1873, F. O. Minor filed an intervention, averring that, prior to the above seizure and recordation of privilege, the said cotton had become his property for a valuable consideration and by actual delivery to his agent, who afterward returned three bales thereof to said Johnson at his urgent request, leaving seven bales, worth $560, belonging to intervenor, of which he prayed to be decreed the owner and to recover the same or its value with interest, costs, and $150 damages from Moss, Wise & Co. and the sheriff as co-trespassers.

On the thirteenth of January, 1873, this petition with citation was served on plaintiffs, and on the sheriff on the twentieth of the same month. Default was taken on the twenty-second of April following, and on the twenty-second of April, 1875, answer was filed by the plaintiffs, who had made two unsuccessful efforts to dismiss their suit. From a judgment rejecting intervenor’s demand he has appealed.

We think the judgment correct. If intervenor’s suit be considered as founded on aisale, there was not a delivery so as to preclude the creditors of the vendor from seizing the property for their debts; and if it be viewed as a giving in payment, it was ineffectual for want of delivery.

Judgment affirmed.


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    No. 6200.
    Henry C. Bridge vs. John S. Ennis.
    There was no causo for suing out the attachment in this instance. The evidence wholly fails to sustain the allegation that defendant was about to convert his property into money or evidence of debt to defraud his creditors. Defendant is entitled to the damages he claims.
    APPEAL from the Thirteenth Judicial District Court, parish of Ten-sas. Hough, J.

      Beeve & Lewis, for defendant and appellee.

      Lcibatt, Aroni & Clinton, for plaintiff and appellant.
   Wyly, J.

Plaintiff sued the defendant for $984; and, alleging that defendant was about to convert his property into money or e\ ,daioo of debt with intent to place it beyond the reach of his creditors, he attached the following property belonging to defendant: Five bales of cotton in the seed, one horse, two mules.

Defendant moved to dissolve the attachment with damages cn the ground that the bond was insufficient in amount and the allegation to obtain the attachment was untrue. The court dissolved the attachment without damages, and plaintiff appeals.

Defendant, joining in the appeal, prays an amendment of the judgment so as to allow him fifty dollars damages for attorney’s fee.

It appears plaintiff had furnished defendant supplies for his crop, and had paid some small debts for him. Defendant, of the first ginning, had five bales of cotton. Four of these he turned over to plaintiff; he sold one, and with the proceeds he paid his taxes and bought a stove. The remainder of his crop had not been ginned, and defendant was on the place pursuing his usual business. There was no cause for suing out the attachment.

The evidence wholly fails to sustain the allegation that defendant was about to convert Ms property into money or evidence of debt with a view to defraud his creditors. Defendant is entitled to the damages he claims.

It is therefore ordered that the judgment dissolving the-injunction be amended so as to condemn plaintiff to pay defendant fifty dollars special damages as attorney’s fees, and, as amended, that the judgment be affirmed with costs.


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    No. 6147.
    State of Louisiana vs. David Williams.
    •There can bo no doubt thattho judge a qiio had the right to cause the minutes and records oí his court at the time specified to be corrected so as to conform to the truth. The fact in this instance is one within the knowledge of the court below, and this court has recognized and announced the light and duty of a judge to havo the minutes of his court, in criminal as well as civil matters, corrected nunc pro time.

      i -PPEAL from the Thirteenth Judicial District Court, parish of Con-cordia. Ilougk, J.

      J. E. Leonard, District Attorney.

      A. P. Field, Attorney General, for plaintiff and appellee.

      Q. Spencer Mayo, for defendant and appellant.
   Howell, J.

The defendant was charged with setting fire to the jail, was “ found guilty, as charged in the indictment,” and after being sentenced he appealed.

The first question presented is: “Had the judge who presided at the trial the right, after motion filed in arrest of judgment — the grounds set forth in the motion being that the records or minutes of the court did not show either that the information upon which the prosecution was based had been filed with the consent of the court, or that it had been filed at all (it being true that the minutes made ho mention of either)-— and after the jury had been discharged to cause the record to be amended so as to supply, in the manner indicated, what otherwise would bo fatal and what the accused points out would be fatal.”

There can be no doubt that the judge had the right to cause the minutes and'reoords of his court at the time specified to be corrected so as to conform, to the truth. In State vs. Gates, 9 An. 94, it was said : It would have been within the province of the court in the exercise of an inherent power, to have directed, upon proper suggestion, that the minutes be so corrected as to conform to facts which really existed; for it is well settled that whenever errors or omissions in ministerial acts in criminal proceedings are satisfactorily shown they may be amended at any time; and it has been held that it is no objection to the amendment that it was intended to supply an omission which occurred when a differ - ent judge presided; and the court referred to 1 ch. C. L. 335, 336; 1 Sand. 249, vol 1; 4 East. 176 ; 2 An. 274. In Bishop on Criminal Procedure, {¡909, it is said: “ The court in determining whether a record or a docket entry requires amendment in order to represent the iact is not bound by the ordinary rules of evidence. It may resort to any proof which is satisfactory.” We think the fact in this instance one within the knowledge of the court, and we have ourselves recognized and announced the right and duty of a judge to have the minutes of his court, in criminal as well as civil matters, corrected nunc pro tunc.

The other question, not being one purely of law, is not within our jurisdiction.

Judgment affirmed.


author: Mok&an, J.

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    No. 6087.
    The State of Louisiana vs. Charles Hill, alias Vincent.
    The error complained of in this ease is that counsel for prisoner was not allowed to read in the presence of the jury the instructions which he had prepared for the judge, and was requested to hand them directly to the judge to he by him passed upon without oral discussion. In this it is impossible to see how any of the rights of defendant were invaded.
    It would not have been proper for defendant’s counsel to argue the merits of his requested instructions. The only question which could be inquired into was whether the charge of the judge was erroneous, or whether he had improperly refused to charge what the defendant asserted was the law governing his ease-This is not attempted.
    APPEAL from the Fourth Judicial District Court, parish of St. James. Flagg, J. Criminal case.

      Morris Maries, District Attorney.

      A. F. Field, Attorney General, for plaintiff and appellee.

      Legendre & Foche, for defendant and appellant.
   Mok&an, J.

The accused, charged with murder, was found guilty, without capital punishment. He relies upon a bill of exceptions to reverse the judgment of the district court.

After the evidence was closed and counsel for the State and the prisoner had argued the case the judge inquired if either counsel required that any special charge or instructions should be. .given to' the jury, whereupon counsel for the accused informed the court that he had prepared three special charges which he proposed to read to the judge with a view to their being given to the jury. The district attorney objected to the charges being read to the judge and discussed in the presence of the jury, for the reason that such of the charges as might be overruled or refused by the judge might bias the minds of the jury. The objection was sustained; counsel for the prisoner was not allowed to read the instructions which he had prepared to the judge in the presence of the jury, and was required to hand them directly to the judge to be by him passed -upon without oral discussion. This is the action of the court which the appellant complains of.

We can not see wherein any of his rights are invaded. It would not have been proper for his counsel to argue the merits of his requested instructions. The only question which could be inquired into was whether the charge of the judge was erroneous, or whether he had improperly refused to charge what the defendant asserted was the law governing his case. It is not contended that there was any error in the judge’s charge.

Judgment affirmed.


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    No. 6103.
    John Kerwin et al. vs. Hibernia Insurance Company.
    Tliis is a suit in injunction restraining- tho defendants from interfering with the plaintiffs in the possession and enjoyment of a certain piece of property alleged to ho inherited from their father and for judgment annulling a certain act of mortgage illegally granted thereon by tlioir mother, and also annulling the sale of said property by the sheriff to tho defendants, perpetuating the injunction, decreeing the said property to belong to plaintiffs and to be exempt from execution for debt as their homestead, and for one thousand dollars damages.
    The defendants rely on a clause in the original act of purchase of said property by Mrs. Honora Kerwin, authorized and assisted therein by her husband, the father of the plaintiff heirs, in tho following words: “ The said Mrs. Kerwin declared that she makes the present purchase with her own funds, which she acquired from her late father and mother, and with a portion of which she has paid the hereinbefore mentioned purchase-price, and is to pay at their respective maturities the notes heroin granted and described, wherefore, the property herein sold is to be and remain her paraphernal property.”
    Articles 2230 and 2238 of the Code do not apply here. In this ease tho claim invoked is not an agreement between the vendor and vendee, but simply an acknowledgment by the husband and wife as between themselves. Agreements or acknowledgments between husband and wife are restricted in their effect and operation to specific subjects, and the one in this case can at most be only a commonee- ]>■ "lit of proof, and the heirs of tho husband are not estopped from questioning it as they might be if the acknowledgment was in favor of any one other than his "wito.
    The authorities cited by the defendants do not apply to this particular acknowledgment of tho father in regard to the paraphernal rights of his wife, which are fixed and regulated by special laws. Could such declarations bo conclusive against.the heirs of either spouse, it would be an easy, matter to change tho rights of succession and tho character of separate and community property.
    As to inconsistent and contradictory allegations in the petition, if there bo such, the right of tho defendants is to require plaintiffs to elect or to object to evidence at tho right time, but not to dismiss tho suit. If the allegations of the petition be true, there is a sufficient cause of action, and the heirs of tho father should havo an opportunity to try tho issues presented. Wherefore, the ease is remanded.
    APPEAL from the Superior District Court, parish of Orleans. Haw-Idns, J.

      J3. B. Forman, for plaintiffs and .appellants.

      T. G-ihnore & So)is, for defendant and appellee.
   Howell, J.

John Kerwin and Kate Kerwin, major heirs of Michael Kerwin, in their own behalf and in behalf of their minor brothers and sisters, five in number, and of tlioir mother, Honora Mansfield, who is alleged by them to be of unsound mind and incapable of taking care of herself, and the said Honora Mansfield, individually and as tutrix of said minors, allege the marriage of the father and mother, the death of the former, the community of acquests and gains between them, the purchase by the father during the marriage of a certain piece of property in the name of his wife, but with his own means, which became the -property of the community, and was inherited by his children, their mother, in a lucid interval, having renounced the community; the application on her behalf of the mother for letters of administration, but its abandonment when the attorney became aware of her notorious insanity; the homestead character of said property; the seizure and sale thereof by the Hibernia Insurance Company of New-Orleans upon a writ issued from the Sixth District Court for the parish of Orleans on a pretended mortgage executed in favor of said insurance company in 1873 by the said Honora Mansfield, who was then notoriously insane and incapable of giving consent, and was ignorant of the contents of said act of mortgage; the sale, for an insignificant sum, of said property, which never belonged to said Honora Mansfield, nor did she ever receive the money for which the said mortgage appears to have been executed; the continued possession by the plaintiffs, heirs of their father, of said property; the want of jurisdiction of the said Sixth District Court to issue the writ of seizure and sale; the threats of the insurance company and the civil sheriff to forcibly eject plaintiffs from their possession; the slander of their title and damage to them; and they pray for an injunction restraining the defendants from interfering with them in the possession and enjoyment of their said property, and for judgment annulling the said act of mortgage and the sale of said property by the sheriff to the insurance company, perpetuating the injunction, decreeing said property to belong to the heirs of Michael Kerwin, and exempt from execution for debt as their homestead, and for one thousand dollars damages.

The Hibernia Insurance Company moved to dissolve the injunction on the grounds:

First — The court is without jurisdiction.

Second — The matters alleged in the petition áre res judicata, the plaintiffs having previously applied to the Sixth District Court, where the ex-ecutory proceedings took place, for an injunction, on- the same grounds, which was refused.

Third — The allegations of the petition do not warrant the issuance of the writ.

Fourth — The bond and security are insufficient, and not such as the law requires.

An exception was also filed, on the grounds:

First — The court has no jurisdiction.

Second — If it had, there is pending in the Sixth District Court a suit for tho same cause of action.

Third — And if the court has jurisdiction, tho petition sets forth no sufficient cause of action.

Fourth — The allegations of the petition are inconsistent and contradictory.

Fifth — Mrs. Kerwin can not be heard to allege her own insanity.

In case said exceptions are overruled, the answer is made setting up tho purchase at sheriff’s sale, and a special denial of the invalidity of tho mortgage.

The exceptions and rule were tried together, the injunction was dissolved, the exception sustained, and the suit dismissed. Tho plaintiffs appealed.

¥e think the record does not sustain the judgment. The insurance company relies on a clause in the act of purchase by Mrs. Honora Ker-win, authorized and assisted therein by her husband, the father of the plaintiff heirs, in the following words: “ The said Mrs. Kerwin declared that she makes the present purchase with her own funds, and which she acquired by inheritance from her late father and mother, and with a portion of which she has paid the hereinbefore-mentioned purchase price, and is to pay at their respective maturities the notes herein granted and described. Wherefore, the property herein sold is to be and remain her paraphernal property.”

It is urged that as the husband and father, who signed the said act, could not question the truth of the above enunciation, acknowledgment, and recital, the plaintiffs, his heirs, can not do so, and articles 22.3(5, 2238, 5 An. 367, 9 An. 242, and other authorities, are cited. Tho articles of tho Code cited are to tho effect that an authentic act is full p>roof of the agreement contained in it against the contracting parties and their heirs and assigns, unless it be declared and proved a forgery, and is proof of enunciations therein, provided they have a direct reference to the disposition; enunciations foreign to the disposition can serve only as a commencement of proof.

In this case the clause invoked is not an agreement between tho vendor and vendee, but simply an acknowledgment by the husband and wife, as between themselves, which is foreign to the disposition in tho act of sale, and is not conclusive in favor of or against any one. Agreements or acknowledgments between husband and wife are restricted in their effect and operation to specific subjects, and the one in this case can, at most, bo only a commencement of proof, and the heirs of the husband are not estopped from questioning it, as they might be if the acknowledgment was in iavor of any one other than his wife. The vendor had no concern about the source from which the funds were derived, a question confined only to the husband and wife, and which, by our law relative to marital rights, is taken out of the rule invoked, by the defendant. The authorities cited by the defendant do not, in our opinion, apply to this particular acknowledgment of the father in regard to the parapher-nal rights of his wife, which are fixed and regulated b.y special laws. Could such declarations be conclusive against the heirs of either spouse, it would be an easy matter to change1 the rights of succession and the character of separate and community property.

As to the other grounds of the motion and exception, it need only be said that the action is not one enjoining the execution of a writ issued from the Sixth District Court, but to. annul the act of mortgage and the sale made under it. There is no suit pending in said court, nor is the action res judicata. The petition for injunction, it is true, was filed, but the court refused to issue the injunction, and the defendant was not cited.

As to inconsistent and contradictory allegations, if there be such, the right of the defendant is to require plaintiffs to elect or to object to evidence at the right time, but not to dismiss the suit. Whether Mrs. Ker-win can be heard or not to allege her own insanity, it does not prevent the other plaintiffs from doing so.

We think, if the allegations of the petitions be true, there is a sufficient cause of action, and the heirs of the father should have an opportunity to try the issue presented. There is no evidence as to the surety on the bond.

It is therefore ordered that the jridgment appealed from bo reversed, the motion and exceptions overruled, and the case remanded to bo proceeded in according to law, appellees to pay costs of appeal.


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    No. 5542.
    State of Louisiana vs. Jesse Powell and Levi Gibson.
    tilio information charges that the accused “ did willfully, maliciously, and feloni-ously take, steal, and carry away one hog worth the suni of live dollars.” It was unnecessary to use the word “ petit,” as the law declares that where the object is under the value of one hundred dollars the crime is petit larceny. The value mentioned in the information being less than that srun, the crime is by the law petit larceny.
    APPEAL from the Twelfth Judicial District Court, parish of Franklin. Taliaferro, J. Criminal case.

      D.B. Gorham, District Attorney, and
      A.-P. Field, Attorney General, for plaintiff and appellee.

      A, B. Iiendry and G. H. Bailiff, for defendants and appellants.
   Howell, J.

The defendants have appealed from a judgment sentencing each of them to fifteen months imprisonment in the Penitentiary for the crime of larceny. They filed a motion in arrest of judgment on the ground that the information does not state that the crime of larceny was grand or petit larceny.

It charges that the accused “ did willfully, maliciously, and feloniously take, steal,’ and carry away one hog worth the sum of five dollars.” It was unnecessary to use the word “ petit,” as the law declares that where the object is under the value of one hundred dollars the crime is petit larceny. The value mentioned in the information being less than that sum, the crime is by the law petit larceny.

We find no error in the record to the prejudice of the appellant.

Judgment affirmed.