author: Merrick, C. J.

text:
    L. George v. H. Demouy.
    Proof that the owner of a slave intended he should be free, and that neither lie nor his heirs after his death claimed his services, will not entitle the slave to his freedom, it not being shown that he had ever enjoyed his liberty for the space of ten years.
    PPEAL from the District Court of the Parish of Pointe Coupee, Ratliff, J.

      T. J. & W. H. Cooley, for plaintiff. Provosty and Phillips, for defendant and appellant.
   Merrick, C. J.

The plaintiff sues to recover his freedom. Since bringing the suit he has become a fugitive from the services of defendant. Under such circumstances, we have some hesitation on the question whether plaintiff’s action ought not to be dismissed, as in case of nonsuit, and whether we ought to decide the case on the merits. But, as the defendant is appellant, we have concluded he has a right to a judgment upon the merits of the controversy.

It appears that Leon George, the plaintiff, and his mother were the slaves of one Guy Richard. Leon George was born in 1833, and, at the time the suit was brought, was about twenty-four years of age. In 1834 Guy Richard desired to place the plaintiff under the charge of the wife of the overseer of Benjamin Poy-dras, the plaintiff then being about twelve months old, the reason given was the bad behavior of the mother of the child. Richard died the next day of the cholera, and the child, with a servant to take care of him, was sent to the house of the overseer by Poydras.

Leon George with his mother and her other children were inventoried as belonging to the estate of Guy Richard.

Benjamin Poydras acted for the heirs (who resided in Prance) as agent, and made sale of the property with the exception of Leon George.

In 1838 he sold the mother of Leon George and her other children to the defendant and one Josephine. Leon George himself was expressly exempted from 1 sale, though then but about five years of age.

In 1843 the defendant obtained possession of the plaintiff, and kept him and enjoyed the benefit of his labor until he ran away, after the institution of this suit.

There is much testimony in the record introduced to show, that Guy Richard and his heirs intended that Leon George should be free, and some conversations are testified to in which the defendant promised to procure the freedom of the plaintiff, and one or two in which he said he was free. Witnesses also swear to some conduct of defendant which would he inconsistent with the idea of the plaintiff’s condition as a slave, were it not for the supposed defective title under which the defendant held Leon George with reference to the heirs of Guy Richard. Notwithstanding this proof, it is shown by witnesses of great respectibility, that defendant treated Leon George as he did his other slaves. The plaintiff, so far as the record discloses, never asserted his freedom, and never left the service of defendant until he absconded, after the bringing of this suit. The plaintiff appears to have only availed himself of the indiscreet indulgences of the defendant, without any thought of thereby claiming or asserting his freedom. On the contrary, he admitted he was a slave, to a person who wished to bargain for him.

However desirous the heirs of Guy Richard may have been that the plaintiff should become free, their wishes alone could not make him so.

This being a matter affecting the public order required the action of the public authorities before it could be brought about.

It is clear that in this controversy it is a matter of no consequence who is owner. Whether the defendant or the heirs of Guy Richard. C. C. 177 ; 4 M. 580 ; 8 M. 149.

The only question which we can consider is, whether the plaintiff had acquired the status of a free person of color prior to the promulgation of the Act of 1857, which now prohibits emancipation.

Waiving the question whether a slave child or a slave under twenty-one or even thirty years of age could have the legal intention to become free and exercise acts of freedom under our previous laws, it is quite clear that the plaintiff has never enjoyed his liberty for one week, much less the space of ten years. He has been all his life under the control of others, who have enjoyed the benefit of his labor. It matters not so far as this controversy is concerned, whether the defendant has acted in good or bad faith, nor whether he has acted against the wishes of the heirs of Guy Richard ; if the plaintiff cannot show the facts on which the law declares his emancipation or freedom he must fail in his action.

See Carmouch, administrator, v. Carmouch, 12 An. 721; and Verdun v. Splane, 6. Rob. 531.

The judgment of the lower court, which was in favor of the plaintiff, must be reversed.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment against the demand of the plaintiff and in favor of the defendant, and that the plaintiff pay the costs of both courts.

Cole, J., dissenting. Article 3510 of the Civil Code provides, that “ if a master suffer a slave to enjoy his liberty for ten years, during his residence in the State, or for twenty years while out of it, he shall lose all right of action to recover possession of the slave, unless the slave be a runaway or fugitive.”

The prohibition of emancipation in the State does not apply to the acquisition of freedom by prescription.

The statute of 1857 reads thus : “ That from and after the passage of this Act no slave shall be emancipated in this State.” Session Acts, 1857, p. 55. The statute is entitled “ An Act to prohibit the emancipation of slaves.”

Emancipation is used technically, and according 1.0 its meaning in the jurisprudence of Louisiana, it signifies the obtaining of freedom, after certain preliminary proceedings, by the decree of a court of justice. Eulalie and her children v. Long et al., 9 An. p. 10; Bullard & Curry’s Digest, p. 427 to 430; Sess. Acts 1852, s p. 214; C. C. Arts. 184, 185.

Article 3510 is not repealed by the statute of 1857 ; they are not upon the same subject-matter. The former provides for the loss of action of the master to recover possession of the slave after he has been permitted to enjoy his liberty for a certain time; the latter forbids the enfranchisement of slaves by the technical mode of emancipation.

According to Article 3510, if a master suffer a slave to enjoy his liberty for a certain, time, he loses all right to recover possession of him. The use of the word “slave” in the third line of this Article merely designates the person already spoken of in the first line, and it does not signify that he is a slave after the ten or twenty years. The slave after that time must then he free, and he becomes subject to the laws relative to free persons of color, for if the master cannot claim him, certainly no other person could. If the slave were not then free, there would be no sense in the Article, for if the master could not assert title to him, no other person ought to be allowed to do so, and if no one can claim him he is free. Spalding v. Taylor, 1 An. 191; Eulalie v. Long & Mobray, 11 An. 463.

The signification of enjoyment of liberty in Article 3510 is, that the master does not exercise any control over his slave. If the intention of the owner be clear, that for the time required by law he has not exercised or wished to exert any control over him, it is then evident that the dominion exercised over the slave by a stranger cannot interfere with the right of the slave to his liberty.

This Article does not limit its provisions to slaves over twenty-one years of age. The word slave applies to a minor as well as a major, and where the law makes no distinction the judiciary cannot.

The case of Verdun v. Splane, 6 R. 531, does not apply to the one at bar. In that case the mother had been emancipated when the slave claiming his freedom was about eight months old, and the infant was permitted to remain with the mother for ten years, in order to be suckled and raised. It was clearly shown that the master had not ceased to exercise control over his slave, and had had no such intention. The court very properly decided that the owner had not lost, under Article 3510, the right to claim him.

The old Code did not contain the provisions of Article 3510 of the Code of 1825 ; the case of Meilleur et al. v. Coupry, 8 N. S. 129, is not, therefore, applicable to the present controversy.

Under Article 3510 plaintiff ought to succeed in this suit.

It appears that since the death of his master, in 1834, he has not been under the control of his master’s representatives and heirs, and they have never claimed him as a slave.

The intention of the heirs to allow plaintiff to enjoy his liberty is clearly established.

Benjamin Poydras Delallande was the testamentary executor of the master of plaintiff and agent of Ms master’s heirs. In 1838 he sold the mother of plaintiff and two of her children, and in the act of sale it is expressly stipulated that he did not sell the plaintiff" Leon” with his mother : “ N’entendant pas comprendre dans la présente vente le fils ainé de la dite négresse Olive, nommé Léon, condition sans laquelle la présente vente n’aurait pas lieu, et serait de droit annullée si les dits acquéreurs venaient a l’exiger.

Delallande, the agent, having sold all the property of the estate, except plaintiff went to France and accounted to his constituents.

This clause in the act of sale and the conduct of the agent and heirs show that it was the intention of the master of plaintiff to allow him to enjoy his liberty, and that they did not wish to oppose this intention.

The evidence shows that in 1834, Richard, the master of plaintiff, died, and the plaintiff was then a year old.

That Richard had much affection for the infant, and said a day or two before his death that he wished to place Leon under the care of Mrs. Willis.

He died before sending the child, but shortly after his death the executor of Richarct sent him to her, and he remained with her till 1843.

After the death of the executor, defendant, who is the god-father of plaintiff, asked Mrs. Willis to send plaintiff to see his mother at his house, saying also, that he desired to make him some presents, and that he would not keep him but a week.

Defendant having thus obtained possession of plaintiff refused to return him to Mrs. Willis, and has thus kept him at his house up to about the time of the institution of this suit in 1857.

It is shown that defendant treated plaintiff as a free child and admitted that he was free.

One of the witnesses also states, that defendant told him in the court-house yard, when he was there as a witness cited in this suit not to say too much, “ ne parle pas trop.”

The evidence in the record, establishing that the owners of plaintiff had not exercised the control of masters over him for the last twenty-five years, being full and clear ought to be at least considered sufficient when the contest is with a mere usurper, with one who got possession of plaintiff under the pretence of affection, of being his god-father, and in order to enable him to see his mother. One who could thus act ought not to have the favorable consideration of a court of justice in his attempt to reduce to slavery one over whom he has no right, but that of the strong over the weak.

Even if plaintiff never asserted his freedom until this suit, and did not leave the service of defendant until recently, still ignorance of his rights cannot divest him of them.

Besides he had no reason to abandon the domicil of defendant, as long as he was treated not as a slave, but a friend.

The control exercised over plaintiff during the greater part of his life by defendant, was not that of a master and owner, for defendant cannot, by his own will, change the nature of his tenure of plaintiff. He got possession of him under false pretences, and he ought not to be allowed to derive any benefit from a possession obtained by treachery, and from a control over the plaintiff, exercised without any permission from his master or heirs.

During the time of the residence of plaintiff with defendant, his master exercised no control over him. This action of the master for fourteen years, shows that his intention for the ten years previous was to allow plaintiff to enjoy his liberty. The residence of the first ten years of his life with Mrs. Willis, might not of itself be deemed absolute proof of the intention of the owner in leaving him with her, but when conjoined with the subsequent freedom from the control of the master, the intention of the owner, since, 1834, becomes conclusive.

"When a slave has thus, by prescription, obtained freedom from the right of action of the master, it is not necessary to have any action of the public authorities to enable him to be free of the control of private usurpers of his rights.

If the master could not successfully institute an action to recover possession of his former slave, certainly the latter must have the right of action to assort his freedom from the control of a mere trespasser ; otherwise the latter could exert a greater power over the plaintiff, than his ancient master.

If there were any doubt as to the right of plaintiff to recover his freedom as against the defendant, the doubt ought to be decided in favor of plaintiff.

For twenty-five years he has not been claimed by his former owners, and they have not for that time exercised any control over him. He now asks to be allowed to enjoy what they willingly gave him.

If defendant succeeds in this suit, his conduct will enable him to be enriched at the expense of the former owners, and plaintiff will be reduced to slavery and the dominion of one who has no title whatever to him.

In such a contest, the technical rules of law ought to be construed with as much rigidity in favor as against him, whose only hope is in the protection that this court may afford him.

I am, therefore, of opinion that the judgment, which was in favor of the freedom of plaintiff against the defendant, ought to be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Yeatman, Woods & Co. v. James Erwin.
    Where the seizing creditor becomes tho purchaser of property at Sheriff’s sale, retaining in his hands part of the price to pay a prior special mortgage on the property, which mortgage was after-wards discharged by the debtor himself — Held: That the seizing creditor, having a privilege on the proceeds of the sale, had a right to apply the amount thus remaining in his hands, to the unsatisfied balance of his own debt.
    The purchaser, who is allowed to retain in his hands the amount of prior special mortgages, as part of the price, is bound for the interest accumulated on such mortgage debts after the sale.
    from tbe Fourth District Court of New Orleans, Price, J.

      L. M. Bay, for plaintiffs. Durant & Hornor, for defendant and appellant.
   Merrick, C. J.

The plaintiffs, in 1847, recovered judgment against Erwin, the defendant, for $6,480 18 and interest. In 1850, they issued an alias ji-fa., on which they caused real estate of the defendant to be sold to the extent of $23,800, they becoming the purchasers for cash. The sale was made April 22d, 1850.

There were several anterior special mortgages in judgment, which the Sheriff authorized the plaintiffs, the purchasers, to retain in their hands. They paid the costs, $197 50. They retained $9,414 93, the amount of a judgment in favor of the Bank of Kentucky, to which they were subrogated; also, a judgment in favor of the Bank of Louisiana, (out of which the present controversy arises,) amounting to $5,668 73 ; and also a judgment in favor of the Union Bank for $5,854 60, to which they were subrogated.

These sums being deducted, left only $2,664 24, to be applied to plaintiff’s judgment.

The debt to the Bank of Louisiana was suffered to remain unpaid until the 2d day of April, 1852, when it was satisfied by the defendant, Erwin, or by the sale of his property, and not by Yeatman, Woods & Co. This payment released the amount of the price retained by plaintiffs to pay the Bank of Louisiana.

The present proceeding is a rule taken by Charles Fonda, as curator of the Succession of James Erwin, upon the plaintiffs, to show cause why they should not pay over to him the $5,668 73, retained to pay the Bank of Louisiana.

There was judgment in favor of Yeatman, Woods & Co., and Fonda appeals.

He contends, in this court, that inasmuch as the application of that portion of the price retained in the hands of the purchasers to pay the mortgage of the Bank of Louisiana, would overpay the remainder of the judgment of Yeatman, Woods & Co., and leave a surplus of $523 57, he is entitled to recover that sum even if the whole amount set apart by the Sheriff to pay the bank judgment, should not be held subject to the control of the curator.

We think it is quite clear that the seizure and sale of the property of Erwin, under their execution and judicial mortgage, gave Yeatman, Woods & Co. a privilege upon the proceeds of the sale. And this they would have had, though some third person had been the purchaser of the property. Their right is not the less valid because they, themselves, became the purchasers. When, therefore, so much of the price in their hands, as had been retained to pay the judgment in favor of the Bank of Louisiana, was released from such destination by the payment of the judgment by the sale of other effects of Erwin, Yeatman, Woods & Co. might well insist upon the application of that portion of the price in their hands to their debt; for the seizure had given them a privilege, and as between Erwin and themselves, he might also, as remarked by the District Judge, have been repelled by the plea of compensation.

It being conceded, then, that the plaintiffs, Yeatman, Woods & Co., had the right to apply the amount retained by them to pay the judgment of the Bank of Louisiana, to their own debt, the next question is, as of what time it must be applied ? for the Sheriff’s sale was made, as we have already observed, on the 22d of April, 1850, and the judgment of the bank was not released until April 2d, 1852, almost two years afterwards.

If applied as of the day of sale, the surplus in the hands of Yeatman, Woods & Co. would be about the amount claimed, viz, $515 21. If applied on the day the bank judgment was extinguished, (no interest being allowed on the amount retained,) there would be nothing due the curator, as it would not pay the interest which had accumulated on the judgment of Yeatman, Wood <& Co., between the sale and the 2d day of April, 1852. How, then, ought the matter to be adjusted ?

We think that as the amount retained to pay the bank judgment was so far due the bank, as to be subject to its demand in the hands of Yeatman, Woods & Co., and as the property even might have been re-sold to pay the same under the older bank mortgage, the application of this sum to the plaintiffs’ judgment must be made as of the 2d day of April, 1852 ; the day on which the debt was extinguished.

But the property was of the kind which produces fruits, and it would be unjust that plaintiffs should retain the price in their hands and not pay interest, whilst their judgment, to pay which the property was sold, was bearing interest.

It appears to us, that the Articles of the Oode of Practice which authorize the purchaser to retain in his hands the amount of the prior special mortgages and privileges, imply that the purchaser himself, like the property which he has bought, must become responsible and bound for the interest which may accumulate on such mortgages after such sale. Otherwise it would be to the advantage of the purchaser to delay the payment of the portion of the price left in his hands as long as possible, and the debtor would be deprived of his property, while interest would be constantly accumulating against him. O. P. 683, 706.

The purchaser, in the language of the Article cited, is authorized to retain in his hands, out of the price, the amount required to satisfy the privileged debts and special mortgages. If he delays payment, the accumulations of interest on these privileged debts and special mortgages must be at his own cost and charge, for the property is bound for the same, and he can have no action against the debtor to recover the interest which he appears to assume with the principle debt.

If we apply these principles to the present case, the interest on the bank judgment would somewhat exceed the interest on the plaintiffs’ judgment, and there would still he as much due on the 2d day of April, 1852, as there would have been if the calculation and application of the money had been made, as of April 22,1850, viz, $515 21. And for this sum the plaintiff must have judgment. See 10 Rob. 65 ; and Perry v. Holloway, 10 Rob. 107.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed ; and that the said Charles Fonda, in his said capacity of curator, do recover of said Yeatman, Woods <& Co., the sum of five hundred and fifteen dollars and twenty-one cents, with legal interest thereon from the second day of April, 1852, until paid; and that said Yeatman, Woods & Co. pay the costs of both courts.


author: Land, J.

text:
    J. M. Timmons v. E. White.
    Wliere the plaintiff has resided out of the State, he is entitled to the benefit of the double term of prescription up to the date of the promulgation of the Act of the Legislature in 1848, placing residents and non-residonts on tho same footing as to prescription.
    PPEAL from the District Court of the Parish of East Feliciana, Ratliff, J.
    _OL W. F. Keenan and J. B. Smith, for plaintiff. Muse <& Hardee, for defendant and appellant.
   Land, J.

In the partition of the estates of John and Lydia White, deceased, the defendant obligated himself to pay to the plaintiff six hundred and sixty-six dollars and thirty-six and five-thirteenth cents, with ten per cent, interest from the 4th of June, 1845, and to pay to William J. Timmons the sum of six hundred and fifty dollars and ninety-seven and nine-thirteenth cents, on account of the portions coming to them from the estate of Lydia White, their mother.

This suit is to recover the debts mentioned — the plaintiff alleging the transfer to himself of the debt due to William J. Timmons.

The defence is, the prescription of five and ten years.

The obligation of the defendant bears date the 4th of June, 1845, and citation was served in this suit on the 7th of January, 1857.

The plaintiff was an absentee, residing in the State of South Carolina, and entitled, for a part of the time, to the prescription of twenty years, that is to say, from the 4th of June, 1845, to the 14th of March, 1848 — but still, according to the rule of computation in such cases, his right of action was prescribed, at the time of the commencement of this suit, and we regret to say that the evidence in the record is insufficient to establish an interruption of prescription. ,

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed, and the verdict of the jury set aside. It is further ordered and decreed, that there be judgment in favor of defendant, with costs in both courts.


text:
    Mary A. Leftwich v. The Mayor and Selectmen of the Town of Plaquemine.
    Where a public square is bounded on one side by private property, the owner cannot require that the town authorities, when the square is enclosed, should leave a space for a public way between ¿he enclosure and the line of his property.
    PPEAL from the District Court of the Parish of Iberville, Wilson, J.

      S. Mathews, for plaintiff. Z. Labauve, for defendant and appellant.
   Merrick, C. J.

The controversy in this case is in reference to a public square in the town of Plaquemine, known as St. John’s square. It appears by the map offered in evidence, that the square is bounded on two sides by public streets, viz, Main and Church streets, and on one side by the property of plaintiff, and on the remaining side by property pertaining to the Catholic church. The town authorities having passed an ordinance to inclose the public square, leaving gates only on two sides, the plaintiff has enjoined the execution of the work, and demands that the authorities shall leave a space sufficient for a public way on all sides of the square, or desist from inclosing the same. Her injunction was perpetuated.

The square would doubtless partake more of the nature of a public square, if a carriage way were to be left open on all sides of it, as then there might be entrances from all sides. But on referring to the map, it does not appear to have been originally laid out in this form ; for streets are laid out only on two sides of it. The plaintiff’s vendors bought with reference to this plan.

Now, as a public square is not designed for a highway or a thoroughfare for all sorts of conveyances, but is intended as an ornament of a town, and place of recreation and amusement, the city authorities appear to injure no one when they enclose the same. In this case the town authorities have ordered carriage ways on two sides, and entrances on each side of said carriage ways for persons on foot.

This ordinance may occasion the plaintiff some inconvenience, but it violates none of her rights.

There is a motion to dismiss the appeal, because it is said we have no jurisdiction of the demand. The corporation has expended $450 for the fence, which the Sheriff is ordered to remove. The defendant, it would thus seem, was injured to this extent by the decree, besides being deprived of the control of a public place. The motion cannot prevail.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed; and that there be judgment in favor of defendant as in case of nonsuit; the plaintiff paying costs of both courts.


author: Cole, J. Cole, J.

text:
    James Moodie v. J. B. L. Cambot — B. N. Fortier, Under-Tutor, Intervenor.
    When the under-tutor having intervened in a suit against the tutor for a debt of the minor, prosecutes an appeal from a judgment against the tutor, the appeal will be dismissed if the tutor is not made a party to it.
    PPEAL from the Second District Court of New Orleans, Morgan, J.
    Jc.Jl C. Dufour, for plaintiff. P. E. Théard and J. W. Duncan, for intervenor appellant.
   Cole, J.

The defendant being sued as tutor of his minor daughter, for work done by plaintiff upon a house belonging to the minor, the under-tutor intervened upon the ground that the tutor had contracted without the authorization of a family meeting ; that the minor was not responsible for a debt so created, and that there was a conflict of interest between the tutor and minor.

From a judgment against the defendant, in his capacity of tutor, the under-tutor has appealed.

A motion has been made to dismiss the appeal, because the tutor was not made a party thereto.

Although the under-tutor was entitled to intervene to watch over the trial and see that justice was done to the interests of the minor, yet the proceedings were conducted, not only contradictorily with him, but also with the tutor ; the latter was not ousted from his position of defendant by the intervention.

The defendant, as tutor, had the right to maintain the legality of his conduct, if it were in his power so to do; and he appears to have succeeded, for the judgment was against him, as tutor.

The intervention was based upon the alleged infidelity of the tutor and a supposed disposition in him to allow a judgment to go against the minor to save himself from future liability to plaintiff, on the ground of his personal responsibility for having contracted with plaintiff, as tutor, in the absence of any legal right so to do.

We are of opinion, that the tutor ought to have the opportunity of showing his good faith and the legality of his contract as tutor, and that he ought to have been made a party to the appeal. If he were not a party, his contract might be avoided, the minor declared free from responsibility, and the tutor left subject to a personal action.

Besides, the tutor is defendant in the action, and the judgment was against him in his capacity of tutor.

How then could this court affirm or reverse the judgment against Mm, when he is not a party to the appeal.

It is, therefore, ordered, adjudged and decreed, that the appeal be dismissed, at the costs of appellant.

Same Case — On a Re-hearing.

Cole, J.

The application for a re-hearing' is refused with the same remarks as í» No. 5134 of Toussaint v. Cambot.

Re-hearing refused, with costs.


text:
    W. Shaffet et als. v. James C. Jackson et als.
    The father, although he has not been, confirmed as tutor of his minor children, may provoke a partition between himself and his minor children, by the appointment of a curator ad hoe to the minor, under Art. 116 of the Code of Practice.
    The inventory of the property to be divided, may be made after tho sale is ordered.
    Where minors arc sued for a partition, a family meeting is not necessary to authorize the suit, or to fix the terms of sale, and it is not necessary the property should sell for its appraised value to make the sale valid.
    from the District Court of the Parish of East Feliciana, Ratliff, 3.

      Muse <& Hardee, for plaintiffs and appellants :

      William and Catharine Shaffet, the plaintiffs, seek to recover of the defendants, James C. Jackson and others, each one their portion of an undivided section of land situated in the parish of East Feliciana, which belonged to the community of acquets and gains which existed between their deceased mother, Mary Shaw, and John Shaffet, also deceased. They seek to recover their portion of the land in controversy upon the ground, that- the entire tract of land was illegally sold by their father after the death of their mother, at a probate sale made in 1829. Saving asserted their rights to the land claimed as heirs of their mother, they allege the following nullities in the probate sale, under which the defendants claim the land, viz:
    1st. That petitioners and their co-heirs were minors, and no tutor nor under-tutor was ever appointed to represent them.
    2d. Because no tutor nor under-tutor having been appointed, nor a special tutor, the Probate Court could not render any decree which would in any manner bind petitioners, they being no parties to the same.
    3d. Because no inventory had been made previous to the decree of sale.
    4th. Because no family meeting was. convoked to deliberate upon the terms of sale ; and said pretended sale was made without the advice of a family meeting. 5th. Because said land did not bring the appraisement at said sale.
    6th. Because said John Shaffet, the father of petitioners, and the said James C. Jackson, pretended to become responsible for the price of said pretended bid at said sale, whereas no person had been appointed to represent petitioners, who were minors of tender age, or collect such sum as might (had the proceedings been legal) have been due them.
    7th. Because the said proceedings and pretended sale, under which said James C. Jackson claims, are absolutely null and void, illegal and irregular, as will the more fully appear when produced by said James C. Jackson or petitioners.
    The petitioners pray that a partition may be made between them and the said James C. Jackson (who represents one heir, by inheritance from his two children, born of his marriage with one of plaintiffs ’ co-heirs,) and tho other co-heirs of petitioner. They pray that tho said James C. Jackson may be decreed to pay them ten dollars per month for the use of their portion of the said land so long as he retains it; also, for an inventory and for general relief in the premises, &c The defendant, Jas. C. Jackson, answers by general denial; admits his possession' of the land claimed, and pleads title under the probate sale, which he alleges was regular and legal; refers to suit 588 for a more perfect description of his title. He also pleads the prescription of five, ten and twenty years.
    The defendant, S'. W. Newport, pleads title to one undivided half of the tract of land in controversy under a syndic sale made in the suit of James C. Jackson against his creditors. He admits the probate sale as the foundation of his half of said land, and avers that it was regular. He also pleads title to two heirs’ portion of the remaining one-half, by purchase from two of the plaintiffs’ co-heirs. He admits'the heirship of plaintiffs, and adopts the answer of his co-defendant, James C. Jackson. He also avers that he sold his entire interest in the said tract of land of R. W. Newport, before his death — all the heirs of whom adopt and join in his answer.
    There having been a verdict and judgment in favor of the defendants, the plaintiffs have appealed to this court.

      For a reversal of the judgment appealed from, and for a judgment in their favor, the plaintiffs rely upon the points stated in their petition, and before stated in this brief.
    In support of the first, viz ; “ That petitioners were minors, and no tutor nor under-tutor was appointed to represent them,” the court is referred to the following-authorities : 0. 0., Art. 1269 ; 2d Hen., p. 955, Nos. 42 and 43, and authorities there cited ; also, p. 959, No. 3. The court is also referred to pages 15 to 25 of the record inclusive, in which the entire mortuary proceedings of the deceased, Mrs. Shaffet, will be found, including the probate sale; from which it will be apparent that the first point relied upon is fully sustained by the facts. There was no family meeting ever convened to deliberate upon the interests of these plaintiffs, who were children of tender age when their mother died. There was no under-tutor ever appointed to them. There was no oath of fidelity ever taken by their natural tutor, as the law and the repeated decisions of this court require. The record also shows that the present defendant, James C. Jackson, was a party to all those proceedings, and cannot plead ignorance of them. On the first point, the court is also referred to 2d Hen., p. 917, No. 12.
    In support of the second point relied upon, viz : “ That the plaintiffs could not be bound by a decree of the Probate Court, to which they were not parties,” the court is referred to the 5th N. S., p. 655, Donaldson v. Dorsey.

    In support of the third point, viz : “ That no inventory of the estate of the deceased mother of the plaintiffs was made previous to the rendition of the decree for the sale of the same,” the court is referred to Articles 329 and 333 of the Civil Code.
    In support of the fourth point, viz: “ That there was no family meeting convoked to fix the terms of sale, &c.,” the court is referred to 2d Hen., p. 969, No. 35, and the authorities there cited; also, p. 970, No. 46.
    The fifth point relied upon by the plaintiffs is, “ That the said land did not bring the appraisement at said pretended sale.”
    On page 15 of the record, the court will perceive that the land in controversy was appraised on the 4th of April, 1829, at nineteen hundred and twenty (©1920) dollars. On page 22 of the record, the court will perceive that the said tract of land was adjudicated to the defendant, James C. Jackson for five hundred and ten ($510) dollars!! We invoke, in behalf of these children, the 337th Article of the Civil Code, which has been wisely designed to save the unprotected minor from such sacrifices as this. Nor will it be permitted to an unnatural father, (as we suppose,) under the pretence of obtaining a partition with his own motherless children, thus to sacrifice their little patrimony.
    The sixth point relied upon is, “ That- the father of plaintiffs became responsible, as the surety of the purchaser, James C. Jackson, for the purchase money.” See process verbal, p. 22 of the record. This surely cannot be regarded as a sale of minor’s property 1
    The seventh and last point relied upon for the reversal of the judgment of the court a quo is, “ That the entire proceedings, under which the property of these plaintiffs was sold, are absolutely null and void.” See 2d Hen., p. 967, No. 8.
    The defendants have relied upon the plea of prescription of five, ten, and twenty years, which, in the opinion of plaintiffs’ counsel, cannot prevail.
    In the notes of testimony, on page 11, the court will find the following admissions, viz : “ The heirship as set forth in this case is admitted. It is admitted that William Shaffet, one of the plaintiffs, was born in July, 1825. It is admitted that Catharine Shaffet was born in 1817, or 1818.”
    On the 6th of October, 1852, the citations in this case were served upon the defendants. From these facts it will be apparent, that but seven years and three months had elapsed from the date of the majority of the plaintiff, William Shaffet, when the citations were served. It will, however, be apparent, that some fourteen years had elapsed from the date of the majority of Catharine Shaffet before the institution of this suit. But we submit, with great confidence, that none but the longi temporis can avail the defendants in this case. See 2d Hen., p. 1270, No. 2 ; p. 1265, No. 2 ; p. 1266, No. 4.
    Should the court come to the conclusion that the plaintiffs are entitled to their respective portions of the land in controversy, the court will perceive that they are also entitled to recover their portion of the revenues of the land claimed, according to the evidence to be found on pages 11,12 and 13.

      P. Pond and J. B. Smith, for defendants :
    This is a suit to set aside a probate sale of a tract of land made in 1829, and to subject one-half of it to the ownership of plaintiffs, who claim solely by inheritance from their mother, Mary Shaffet. They allege that the land was held in common between their father and mother ; that their father, John Shaffet, provoked a probate sale ; that the proceedings under which the sale was made were illegal, and did not divest them of their mother’s half of the land ; that there were seven heirs at the death of their mother, one of whom subsequently died without issue. They ask that the sale be set.aside, and they be decreed to be the owners of one undivided half of said land, by inheritance from their mother.
    The defendant, R. W. Newport, admits the heirship as alleged ; denies any illegality in the proceedings and sale of the land, and alleges that he is the owner of one undivided half by virtue of a purchase at the syndic sale of the property of J. C. Jackson, made to R. W. Newport, and subsequently transferred to him ; that he also owns the undivided interest of Daniel and John C. Shaffet, as alleged in plaintiffs’ petition, by sale before a notary, and two-sixths of the heir’s portion that died, he having died before the transfers made by said John and Daniel. He pleads the prescription of five, ten and twenty years.
    Since this suit was instituted, R. W. Newport and his wife died. At their probate sale Mrs. Susanna Mills became the purchaser of the Newport interest in the land. The heirs of Newport now unite with Mrs. Mills, and ask that she be decreed to be the owner of one undivided half.
    The plaintiffs disclaim all ownership, except by inheritance from their mother.
    To sustain the probate sale of the land made in April, 1829, reference is prayed to the brief of J. C. Jackson. It is thought that the plea of prescription of ten and twenty years will relieve the defendants from plaintiffs’ claim, and cure any defect as to form that may be found to exist.
    The sale was made in April, 1829, and duly recorded in the office of the parish Judge.

      Jackson held possession as owner under a title translative of property, until the syndic sale ; that Newport and Jackson continued their possession under the syn-dic sale until this suit was instituted, 6th October, 1852, a period of twenty-three years.
    To sustain the plea of prescription, your honors are referred to 2 An. 466 ; O. 0.1024.
    The only grounds plaintiffs rely on is the absence, in the record, of some forms of law in the probate proceedings of Mrs. Mary Shaffet. This, they think, raises the presumption that there were defects in the proceedings, and the forms of law were never complied with, and throws the burden of proof on the defendants. This, after the lapse of near thirty years, would be requiring them to prove a negative. When it is known how very defective and irregular the papers have been kept and preserved at that early period, this court will hesitate before requiring a negative proof. The presumption is, that all legal proceedings and orders of court arc regular ; that courts do their duty, and he who alleges otherwise, must show it. It is respectfully suggested that a mere certificate of the Olerk that a certain number of papers referred to is all that he can find or knows anything about in his office, is not a presumption sufficient to satisfy the court, that there were no other proceedings had therein. A presumption of such a nature should be so strong, that the absence of other papers could not be otherwise accounted for. May not some of the papers, orders and proceedings have been lost ?
    If your owners should come to the conclusion that the probate sale was defective, and the plea of prescription will not prevail, then it is respectfully submitted that R. W. Newport was the owner by purchase from John C. and Daniel Shaffet of two-sixtlis of said land, and that he also is the owner of the father’s undivided half of one other sixth part of the land, the plaintiffs only claiming' by inheritance from their mother’s one-half Eive-twelfths, therefore, of the tract of land must, according to the petition of plaintiff, and acts of sale from said John C. and Daniel belong to the defendant, Susan Mills, who purchased the Newport interest.
   Land, J.

This is a petitory action for a tract of land, in which plaintiffs claim title by inheritance from their mother, Mary Shaffet.

They admit a probate sale of the land in 1829, under which defendants claim title, but allege its nullity, substantially on the following- grounds :

First — Because the plaintiffs were minors, and no parties tq the judgment, under which the land was sold, for the reason, that no tutor, nor under-tutor, nor special-tutor was ever appointed to represent them.

Secondly — Because no inventory of the property had been made previous to the decree of sale.

Thirdly — Because no family meeting was convoked to deliberate upon the terms of sale, and said sale was made without the advice of a family meeting.

Fourthly — Because the land did not bring its appraised value at the probate sale.

In 1829 John Shaffet instituted suit against his children, the issue of his marriage with Mary Shaffet, deceased, for a partition of the community property. At the time of the commencement of the suit for a partition the plaintiffs were minors. In pursuance of the prayer of the petition, a curator ad litem was appointed to represent them and their co-minor heirs. Experts were also appointed to determine whether the property could be divided in kind. They reported that a sale was necessary to effect a partition.

On the 23d of February, 1829, a judgment was rendered, ordering the property to be sold, and on 6th of April, 1829, the sale was made and the land in dispute was adjudicated to James C. Jackson, at the price of five hundred and ten dollars, on one and two years credit, with ten per cent, interest after maturity.

The defendants claim title under this sale, and plead the general issue and the prescription of five, ten and twenty years.

As to the first ground of nullity alleged by plaintiffs, it does not appear that the father of the minors was ever confirmed by a judgment as their natural tutor, or that an under-tutor was ever appointed, but it does not follow from these facts that the minors could not be sued, and that a judgment rendered against them would be necessarily void. Article 116 of the Code of Practice provides, that if the minor against whom one intends to institute a suit has no tutor nor curator ad litis the plaintiff must demand that a curator ad hoc be named to defend the suit.

In the suit for partition, the plaintiff prayed for and obtained the appointment of a curator ad litem for the minors to defend the action, and as against the purchaser in good faith at the judicial sale, the minors must be held at this distant period to have been properly represented in the suit, or at least to have ratified the proceeding by their long, silence and acquiescence.

The second ground of nullity is untenable. The evidence shows that an inventory of the property was taken on the 4th of April, 1829, two days before the sale, which was sufficient. Molinari v. Fernandez, 2 An. 553.

The third and fourth grounds are also untenable.

Where minors are sued for a partition a family meeting is not necessary to authorize the suit or to fix the terms of sale. C. C. 1237. Nor is it necessary in such a suit, that the property should sell for its appraised value to make the sale valid. Jacobs v. Lewis, 8 L. 179.

Sales directed by the court of probates are judicial sales, and the purchaser is protected by the decree ordering them, and if the court has jurisdiction the purchaser need not look beyond the decree itself. Lalannes’ Heirs v. Moreau, 13 L. 431.

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

Merrick, O. J., having been of counsel, recused himself.


author: Yookhies, J.

text:
    A. B. Foree v. J. H. McIntyre et al.
    Ia a sale under execution, when all the installments of a debt are not yet due, an appraisement of the property is nevertheless essential.
    Where the amount of the matured installments is less than the price for which the property is adjudicated, the surplus of the price only becomes exigible at the maturity of the other installments, adding interest to such surplus, so as to correspond with the term of credit allowed.
    PPEAL from the District Court of the Parish of Carroll, Farrar, J.
    Xjl Jones & Dougherty and L. Selby, for plaintiff and appellant. Sparrow & Montgomery, for defendant.
   Yookhies, J.

This is an injunction suit, presenting the question whether an appraisement is essential in a sale under executory process, where all the installments of the debt are not yet due.

It is urged by the defendants’ counsel, that in a sale under Article 686 of the Code of Practice, where such installments are not all due, an appraisement, instead of being essential, has in fact the effect of impairing the right thus secured to the seizing creditor.

The Article relied upon provides as follows, to wit:

“ When a seizing creditor has a privilege or special mortgage on the property seized, for a debt of which all the installments are not yet due, he may demand that the property bo sold for the whole of the debt, provided it be on such terms of credit as are granted to the debtor by the original contract for the payment of such installments as are not due.” 0. P., 686.

The interpretation thus urged appears to us inadmissible. We think it is clear that a sale under that Article may as .easily be effected with the benefit of appraisement as in any other cases of forced alienations. Such appraisement obviously secures to the debtor the protection'of his property from sacrifice. A waiver of the benefit thus conferred upon him can only be derived from an express stipulation in his contract, or clear intendment of the law. Neither of which, we apprehend, can be fairly deduced in this case. It is true that cases may and must necessarily occur, in which the amount of the matured installments will be less than the price of adjudication ; but in such cases the surplus of the price only becomes exigible at the maturity of the other installments, adding interest to such surplus so as to correspond with the term of credit thus allowed.

It is, therefore, ordered and decreed, that the judgment of the court below be avoided and reversed; that the injunction sued out in this case be made perpetual, or the Sheriff enjoined from making said sale without previous appraisement, the defendants and appellees to pay the costs of both courts.


author: Code, J.

text:
    Union Bank of Louisiana v. Foster and Mary Bradford.
    A credit endorsed on a bond at a time not suspicions by an officer of the bank in the regular discharge of his duty is sufficient evidence of the payment to interrupt proscription.
    from the District Court of the Parish of East Baton Rouge, Beale, J.

      Fuqua <& KUbourne, for plaintiff and appellant. A. M. Dunn and T. G. Morgan, for defendants.
   Code, J.

This suit was instituted by the Union Bank. Afterwards Henry Marston, having purchased the assets of the branch at Clinton and having been subrogated to the rights of the bank, was substituted for the original plaintiff.

This action is to recover a balance due on a bond executed in favor of the bank by Foster Bradford and his wife, Mary, on the 30th December, 1834, for eleven hundred dollars, payable in twelve months from that time, and secured by mortgage.

The suit is carried on against Foster Bradford, who plead the prescription of ten years. This plea was sustained and plaintiff has appealed.

The bond matured on the 30th of December, 1835 ; service was made of the citation and petition in this case on the 24th of June, 1848, and prescription had accrued, unless it had been interrupted.

There is a credit upon thejjond, as follows :

“ January 1st, 1859. Received installment. $137 50

Interest on balance. 39 06

$176 56

Henry Marston, Cashier.”

This indorsement is in the hand-writing of Marston., and he was cashier at the time it purports to have been made.

This is not of itself sufficient to interrupt prescription, for the indorsement may have been written after the bond was prescribed.

It is, however, established that the bond was protested for non-payment on the 27th January, 1840, nearly six years before prescription could accrue. In the protest the notary copies at length the bond and all the credits indorsed upon it, and, among others, that by Henry Marston, of January 1st, 1839.

Notices were given of the protest by the notary by a letter addressed to the defendant at his residence. The act was recorded in the book of protests by the notary on the day after it was made.

It is thus shown that the credit was indorsed upon the bond at a time not suspicious by an officer of the bank in the regular discharge of his duty. It is true that the indorsement does not state by whom the money was paid, but it is unreasonable to suppose it to have been paid by any other person than the defendant or his agent.

This protest also show's that the indorsement was made nearly eleven years before the purchase of the assets of the bank by plaintiff

The evidence of tlie cashier could not be introduced, for he purchased the assets on the 25th of November, 1851, and among the rest the bond sued upon with the indorsement in his hand-writing', and on the 31st October, filed his intervention and became the real plaintiff in the suit. Beatty, syndic, v. Clement, 12 An. 82 ; C. C. 3508 ; Barelli v. Réviere, 3 An. 46 ; 13 An. 294.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed, and that the intervenor, Henry Marston, recover of the defendant, Foster Bradford, five hundred and fifty dollars with interest thereon at the rate of ten per cent, per annum, from the 30th day of December, 1839, until paid, and four dollars cost of protest, and the costs of both courts, subject to a credit of four hundred and fifty-one dollars and ten cents, made at Sheriffs’ sale on the 1st of May, 184V ; it is further decreed, that the mortgage of the intervenor, Harston, be recognized upon the two slaves, Pinali and Elloch, mentioned in the Act of mortgage of Foster Bradford and wife to the bank of the I3th December, 1834, and that they be seized and sold to satisfy this judgment.


text:
    A. D. Grieff & Co. v. McDaniel & Watson.
    A notice sent to the Post-Office, where an endorser usualljr receives his letters, at the time the protest is made, is sufficient, although there he another Post-Office nearer his residence, at which he has not been m the habit of receiving his letters.
    PPEAL from the District Court of the Parish of St. Helena, Beale, J.

      Penn & Martin, for plaintiff. Thompson <& Sheafe, for defendants.
   Land, J.

The only parties before this court are the piaintiffs, and John G. Watson, who is sued as the endorser of a bill of exchange, and the single question for decision is, whether he was legally notified of the protest of the bill.

The evidence shows, that Watson was Sheriff of the parish of St. Helena at the date of the protest, and that he was in the habit of receiving his letters at the Post-Office in Greensburg, the seat of justice for that parish, and that a letter containing the notice of protest mas mailed by the Notary to him at that place. The evidence also shows, that Watson resided in the country, and that St. Helena Post-Office was nearer to his residence than the office at Greensburg; but the evidence does not show that he ever received any letters at the St. Helena office.

A notice sent to the office, where the indorser usually received his letters, at the time of protest, is sufficient, although there be another office nearer his residence at which he had not been in the habit of receiving them.

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


text:
    Pauline, f. w. c., v. L. A. Hubert et al.
    An administrator lias tlie capacity to stand in judgment in a suit by a slave, inventoried as part of the succession, to have her freedom established.
    It must now bo considered settled, that effect will be given to parol proof of the sale of real estate, if it is received without objection.
    Tho heirs and creditors of tho estate will be bound by the acts of tho administrator, as to the mode of proceeding in the dofenco of a suit and the reception and rejection of evidence.
    The child of a statu libet'a who, by Art. 196 ofthe Code, is to becomo free at the time fixed for the enfranchisement of the mother, requires the consent of the public authorities to her emancipation, and since the Act of the Legislature of 1857, the emancipation cannot be affected.
    from the District Court of the Parish of Pointe Coupee, Ratliff, J.

      T. J. & W. Cooley, for plaintiff. T. H. Farrar and I. Yoist, for defendants and appellants.
   Merrick, C. J.

The plaintiff and her mother, Arsine, were the slaves of Onil Bourgeat. Arsene contracted, in 1850 or 1851, with Bourgeat, for the emancipation of herself and Pauline. The condition (it seems) being the payment of $1,500. Arsene not being able to raise the whole sum paid $600, the price of herself, and received an act of emancipation for herself alone. Subsequently a friend advanced the nine hundred dollars, and tendered the same to Bour-geat for Pauline, in her behalf, or as her agent. In the mean time Pauline, had given birth to a child named Julie, the subject oí the present controversy. At the time of the tender of the $900, Bourgeat insisted on being paid one hundred dollars more as the price of Julie. This was paid, also, on behalf of Pauline. In three or four days afterwards, it being in the year 1852, Bourgeat passed the act of emancipation of Pauline. Mention of the child was omitted in the act. It is conceded, that the acts of emancipation of Arsene and Pauline, were in due form and made with the consent of the proper authorities.

After the death of Onil Bourgeat, Julie was inventoried as the property of his succession, and an order obtained for her sale.

This suit is brought against the administrator and the auctioneer, to restrain them from selling, and to have the freedom of Julie recognized.

There was judgment for the plaintiff, and the defendant, Moore, the administrator, appeals.

The appellant relies for a reversal of the judgment, upon two grounds, viz :

1st. That the administrator has no capacity to stand in judgment; and 2d. The proof of the contract for emancipation of Pauline and her child being parol, no effect can be given to the same by the court.

I. We see no objection to the form of the action. The heirs may not have accepted the succession, and as the administrator must represent the creditors also, we see no objection to his standing in judgment for the protection of the rights of all parties in the effects entrusted to his administration. The Article of the Code of Practice relative to testamentary executors (Art. 123),is not applicable. The powers of the testamentary executor at the time of the adoption of the Code of Practice, were very different from those of the administrator.

II. The testimony to prove the contract for the emancipation of Pauline and her child, was parol. It was admitted without objection. It is conceded by defendants’ counsel, that if effect must be given to the parol contract proven in this case, there should be judgment in favor of the plaintiff. But it is contended “ that the contract for the emancipation of the slave is but a sale of the slave to herself, and that under Article 2415 C. C., a verbal sale of a slave is null as well for third persons as for the contracting parties themselves, and the testimonial proof of it shall not be admitted. That the law does not say that parol evidence of a verbal sale of a slave is inadmissible, if objected to ; but it says, that the verbal sale of a slave is void, even as between the vendor and vendee, and to say, that a certain form of sale declared void by express law, because made in that form, shall nevertheless be held valid because it is proved to have been made in the very form reprobated by the positive law, is an absurdity.”

Were the Articles of the Civil Code on the subject of verbal sales a new question, the argument urged might have occasioned us much trouble, for it is in the light of a sale, we think, in which the contract between Pauline and Bourgeat for Julie, should be viewed in the present controversy.

But the Article in question has been so often and with so much uniformity construed adversely to defendants, that the law on the subject must be considered as long since settled.

Article 2415 of the present Code is identical with Art. 2, p. 344, of the Code of 1808. Under that Code the Article was construed, first, as contended for by defendant’s counsel, but, after much discussion, it was held that a party who would object to parol evidence must except to its introduction. 5 M. R. 442. In the case of Bateman v. Cormier, 1 N. S., the court said, parties have certainly a right to acknowledge a parol contract for land and they have a right to consent that their stipulations in regard to it, may be proved by parol. In the case of Mills v. Hunter, 5 N. S. 121, the court, after comparing the other Articles of Code of 1808 on the same subject, arrived at the same conclusion. In the case of Strawbridge v. Warfield, 4 La. 22, the court considered the corresponding Articles of the present Code and amendments, and adopted the same construction as had been given to them in the old Code, and gave effect to parol proof of the sale of a slave, such proof having been received without objection. This decision has been uniformly adhered to since. Hopkins v. Lacoutere, 4 La. 64 ; Brown v. Frantum, 6 La. 46 ; Henry v. Dinkgrave, 19 La. 483 ; Jacob v. Davis, 4 An. 39; 7 An. 33, Packwood v. White; see also 3 An. 136. The question must, therefore, be considered as at rest.

But it is said that the administrator acting as he does in a representative capacity, cannot bind the heirs and creditors by the admission of illegal testimony. As the administrator has the capacity to stand in judgment, the usual rules as to the mode of proceeding and the reception and rejection of evidence must bind him.

The conclusion to which we have arrived, leaves the case where it is conceded by defendant’s counsel, there must be judgment for the plaintiff, for if the slave is not free, she was sold ; Bourgeat and his estate is not the 'owner.

But it has been observed, that the child Julie has never been emancipated by her former owner; nor have the public authorities ever authorized her emancipation. It is contended, by plaintiff’s counsel, that she is free by the express terms of Article 196 of the Civil Code, which is in these words : “ The child born of a woman after she has acquired the right of being free at a future time, follows the condition of its mother, and becomes free at the time fixed for her enfranchisement, even if the mother should die before that time.”

We think this Article must be construed with reference to the other provisions of the Code, and that the child of the statu libera, like the statu libera herself could only become free by the consent of the public authorities. For the public have an interest in the emancipation of slaves, both that they should be of good character, and that the person emancipating should support them, should they be unable to support themselves. O. C. 185,188 ; Henriette v. Barnes, 11 An. 454 ; Louisa Marshall v. Watrigant, 13 An. 619. And of this the courts ought to take notice, although not formally called to their attention.

The judgment of the lower court, therefore, so far as it decrees the freedom' of the slave Julie, must be reversed ; but the contract of sale having been'proven, the injunction can be maintained to prevent the sale of Julie, by the defendants, as the property of the Succession of Onil Bowgeat, deceased.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed ; and it is now ordered, adjudged, and decreed by the court, that the injunction granted in this case be perpetuated ; that said slave Julie be delivered to the plaintiff, she paying the costs of the appeal, and the defendants, those of the lower court.

Cole, J., dissenting. I am of opinion that the contract of emancipation is established by the parol evidence, which was admitted without objection.

I cannot, however, concur with the interpretation given by the court to Article 196 of the Oivil Code.

This Article reads as follows :

“ The child born of a woman after she has acquired the right of being free at a future time, follows the condition of its mother, and becomes free at the time fixed for her enfranchisement, even if the mother should die before that time.”

This Article plainly declares, that at the moment the mother is entitled to be enfranchised, the child becomes free. The child being free, no ratification of it by a court of justice is necessary. It is different as to the mother ; for the Article says, “ after she has acquired the right of being free.” The Article distinguishes between the two, giving to the mother a “ right of being free,” which implies a right of action to have her freedom judicially pronounced, and giving to the child freedom at the moment the right of action of the mother commences.

Besides, the Article, as to the mother, speaks of her “ enfranchisement,” which implies some action for becoming free; whereas, as to the child, it says it “ becomes free,” even if the mother should die before the time fixed for her enfranchisement.

If my interpretation of Article 196 be incorrect, another serious question would arise, whether the plaintiff had not acquired under this Article, even as interpreted by the majority of the court, such a vested right to her liberty as she could not be divested of by subsequent legislation, prohibiting the emancipation of slaves. Sess. Acts, 1857, p. 55. Art. 174 of the Oivil Code declares, “ that a slave is incapable of making any kind of contract, except those which relate to his own emancipation.”

This Article, then, so far as emancipation is concerned, treats slaves as persons capable of contracting, and they are vested with the same right of contracting as to their emancipation, as freemen are as to any other species of contract.

Why, then, should slaves be deprived of the benefit of Article 105 of the Constitution of 1852, which prohibits the passage of any law impairing the obligation of contracts, or the divestiture of vested rights.

The law having authorized the contract of emancipation, and as to that, having treated slaves as persons capable of contracting, money having been paid according to the terms of the contract, and all upon the faith of the legislation which declared that the slave would become free at the time agreed upon by the parties to the contract, it becomes a serious question as to the power of the State to practically annul, by a subsequent statute, the anterior contract.

Another question also presents itself, whether the statute of 1857, prohibiting emancipation, would apply to one claiming freedom under Article 196 of the Civil Code. Vide George v. Demouy, 14 An., dissenting opinion.

I deem it unnecessary at this time to express any opinion upon these topics, on account of the manner in which I understand Article 196 ought to be interpreted.

I am of opinion that the judgment ought to be affirmed.


author: Cole, J.

text:
    The Police Jury of West Baton Rouge v. A. Crosely.
    The recording of tlie proces verbal of adjudication of work to he done on the road and levee, without giving the name of the proprietor or a description of the land, will not create a privilege on the land on which such work is done.
    from the District Court of the Parish of West Baton Rouge, Beale,

      H. M. Favrot, for plaintiff and appellant. D. N. Barrow, for defendant.
   Cole, J.

In the year 1849, plaintiff caused the work to be done on the road and levee of land of defendant to be sold at public auction, and it was adjudicated to one Marcelin Major.

The land was supposed to belong to one Wethersby, and the notices required in the proceeding for the sale of the work were addressed to him.

The proces verbal of adjudication of the work declared that the work adjudicated was to be done upon “ land belonging or said to belong to the estate of Dr. Wethersby, deceased.”

The parish having paid Major for the work done by him according to the price of adjudication, now claims a privilege by virtue of the recording of the proces verbal of adjudication, and asks to have the land seized and sold to satisfy the privilege for the amount paid by it.

There was judgment for defendant and plaintiff has appealed.

It is clear that the recording of the proces verbal cannot give any privilege upon the land of the defendant, Croseiy, for neither his name nor a description of the land are given. This is not an action on a quantum meruit, and if it were, it could not be maintained, for there was neither personal service nor attachment of property.

The District Court properly dismissed the suit.

Judgment affirmed, with costs.


author: Buchanan, J. Buchanan, J.

text:
    Susan King v. J. G. Neely et al.—Heirs of L. Inge et al., Intervenors—Ellen D. King, Intervenor.
    The son-in-law of one of the parties to a suit is a competent witness. The interest of the mother of the witness in the property in disputo, as belonging to the marriage community, she not being a party to the suit, is too remote to exclude her son’s testimony.
    The title to slaves may be proved by parol when it is shown that, by the laws of the State where the , facts testified to took place, and where the slaves then were, they could be transferred by verbal sale and delivery.
    By the laws of Mississippi, among collaterals, the kindred of the whole blood are preferred to the kindred of the half blood in the same degree; and by effect of representation, nephews and nieces of the wholo blood will exclude a sister of the half blood.
    PPEAL from the District Court of the Parish of Concordia, Ratliff, J.

    Xa. J. W. Montgomery and P. Alexander, for plaintiff. T. P. Farrar and A. N. Ogden, for the heirs of Inge. L. V. Reeves, for Ellen D. King, intervenor. II. B. Shaw and Durant & Hornor, for defendants and appellants.
   Buchanan, J.

These are two appeals from the same judgment rendered on the verdict of a jury ; one appeal being taken by defendant, and the other by two intervenors.

As regards the defendant, Neely, the issue is purely one of fact, namely, whether or not a retrocession was made by Neely to Albert Milton King, of certain slaves which King had sold and conveyed to Neely several years previously to the alleged retrocession.

The first question for our examination is presented by a bill of exceptions taken by defendant to the admission of the deposition of Robert King.

Defendant objects to the competency of King, because he is the son of the wife of Neely ; that although the witness’s mother is not a party to this suit, yet the same involves the interests of the community of acquests between the defendant and his wife. In support of this objection, the defendant relies upon Article 2260 of the Code, which provides that descendants cannot be witnesses for or against their ascendants.

We held, in the case of Porche v. Leblanc, 12 An. 782, that the Article in question is to be construed as applicable to cases in which the interests of an ascendant or descendant of the witness is directly involved in the controversy. That is not the case here. The mother of the witness is not a party to the suit. And her alleged interest in the marriage community is altogether too remote and contingent to have been considered by us as a sufficient objection, even had we not the case of Porche before us. The husband is the head and master of the community, and may alienate its effects, without the consent of his wife, whose interest is only fixed by the dissolution of the marriage, and is subject to the discharge of debts. She, or her heirs, may even renounce the community. The general rule laid down in State v. Levy, 5 An. 64, is, that all persons are competent to testify, except those whose incompetency is expressly declared by law.

Another objection which is made to the witness, King, in common with other witnesses of plaintiff, named Harris, Valentine and McRvaine, is that they are offered to prove a title to slaves by parol. It is admitted of record, that slaves are personal property in Mississippi, the State of the domicil of Albert Milton King, where the slaves were occupied and worked, where the retrocession is alleged to have taken place, and where the events occurred of which the witnesses testify. The counsel of defendant, in his printed argument indeed concedes that by the law of Mississippi, slaves may be transferred by verbal sale and delivery, and consequently, that such sale and delivery may be proved by parol testimony. But he insists that a price or consideration for the sale, and an actual delivery should be proved. It appears to us that this argument goes entirely to the effect, or sufficiency of the testimony, and not to its admissibility. The forms and effects of contracts are governed by the laws and usages of the place where they are made, and intended to have effect. O. 0.10. There can be no doubt that that place, in this instance, was Mississippi. And we concur in the inference which the jury has drawn from the facts stated by these witnesses, and corroborated by others.

The defendant has objected in argument, although his pleadings contain no such exception, that the plaintiff has not brought herself within the provisions of the law of Mississippi, for claiming the half of her husband’s estate by the action for assignment of dower.

It is sufficient to say, upon this point, that we have before us all the heirs-at-law of Albert Milton King, and that they make no objection of this sort, but concede the right of plaintiff to the half of the slaves which were in Mississippi at the time of her husband’s death, as awarded to her by the verdict and judgment of of the District Court.

The heirs at law of Albert Milton King, are the children of his two sisters of the Ml blood deceased, and a sister of the half blood.

The court below charged the jury that one-half of the slaves and personal property of King, in Mississippi, should be divided into three parts, the minor child of Laura King taking one part, the minor children of Olivia King taking another part, and the remaining third part to be taken by Ellen B. King.” The statute of Mississippi regulating the distribution of estates among collateral Jaeirs, is in the following words : “ When there shall be no children of the intestate, nor descendants of such children, then the estate descends to the brothers and sisters of the intestate and their descendants, in equal parts; the descendants of a sister or brother of the intestate to have, in equal parts among them, their deceased parent’s share.” “ And there shall be no representation among col-laterals, except with the descendants of the brothers and sisters of the intestate.” And there shall, in no case, be a distinction between the kindred of the whole and half blood, except the kindred of the whole blood in equal degree shall be preferred to the kindred of the half blood in the same degree.” (Revised Code of Mississippi, p. 452 and 453, Art. 110.) Portions of this Article are badly worded, and are, in some respects, vague. Two ideas, however, are distinctly enunciated in it, viz: 1st, that representation among collaterals takes place only with the descendants of the brothers and sisters of the deceased. “ Representation is a fiction of the law, the effect of which is to put the representative in the place, degree and rights of the person represented.” C. 0. 890. By representation, then, Hibernia Inge stands in the same position in point of heirship to A. M. King, as her deceased mother, Laura King, deceased; and the minors, Howard Wailes Albert M. Wailes and Olivia Wailes stand in the place of their deceased mother, Olivia King. 2d. That the kindred of the whole blood in equaldegree, shall be preferred to the kindred of the half blood in the same degree. The minor children, then, of Laura and Olivia King, sisters of the whole blood, are to be preferred to Ellen D. King, a sister of the half blood, and under the statute would, we presume, exclude her from the inheritance of A. M. King, in Mississippi.

The judgment is farther erroneous in decreeing the slaves Jack,' Gardner, Dan, Ralph, Flora, and her children Henry and infant and Harriet, and increase, and their hire, to all the intervenors indiscriminately. These slaves being found in Louisiana at King’s death, are to be distributed among his heirs, according to our laws.

According to the provisions of Art. 909 O. 0., these last mentioned slaves and their hire are to be distributed as follows, viz : the minor heirs of Laura King and Olivia King, as being of the whole blood, take together five-sixths interest therein, and the half-sister, Ellen D. King, takes the remaining sixth thereof.

It is, therefore, adjudged and decreed, that the judgment of the District Court, as between the plaintiff and the defendant, John G. Hedy, be affirmed.

It is further ordered, adjudged and decreed, that the judgment appealed from be reversed as to the appellee, Ellen D. King, and so amended that the appellant, Hibernia Inge, in right of her deceased mother, Laura King, do recover of the defendant one undivided fourth of the slaves, Len, Celeste, Walton, Margaret, Caroline, Jay, Milton, Easter, Munroe, Ann, Alexander, Christina, Kitty, Flora, Philip, Harp, Lydia, Ellen, George, Jinney, Sam, Elias, Letty, Angeline, Bill, Lucy, Milly, John the Baptist, Liz, Martha, Lithy, Tyler, Punch, Jake, Eli, Kate, Little Lithy, Rachael, Nat or Mat, Maria, Joseph, Bob, Lucy, Harrison, Frank, Davy, Eliza, Celia, Mandy, Rose, Milly, Mason, Charles Marshall, Nat or Mat, Sally, Armstead, Prosper, Harry, Alfred, Jim, Lewis, Ike or Isacre, Dennis, Judy and Madison, together with one undivided fourth of their increase, and also one undivided fourth of the hire of said slaves, at the rate of $4,200 per annum, since the last of March, 1856; and it is further decreed, that the minors, Howard Wailes, Albert M. Wailes, and Olivia Wailes, in right of their deceased mother, Olivia King, do jointly recover of the said defendant one undivided fourth of all of the aforesaid slaves and their increase, and also one undivided fourth of the hire of said slaves, fixed at the rate of $4,200 per annum, since the last of March, 1856. And it is further ordered, adjudged and decreed, that the judgment appealed from be further amended, by dividing the slaves Jack, Gardner, Dan, Ralph, Flora, Henry, an infant, and Harriet, and their natural increase, and their hire since the last of March, 1856, at the rate of $1,400 per annum, among the intervenors, as follows, viz: one-half of five-sixths thereof to the minor Hibernia Inge, another half of five-sixths thereof to the minors Howard Wailes, Albert M. Wailes and Olivia Wailes, jointly, and the remaining sixth thereof to the minor Ellen D. King; the costs of the District Court to be paid by defendant; and those of appeal, one-half by defendant, and one-half by the intervenor and appel-lee, Ellen D. King.

Same Case — On a Re-hearing,

Buchanan, J.

The intervenors have brought to our notice, by a petition for re-hearing, an omission made, through inadvertence, in the decree heretofore rendered. The judgment of the court below in favor of plaintiff against defendant, Neely, which has been affirmed by us, allowed Mrs. King twenty-five hundred dollars, with interest, as one-half of a sum of five thousand dollars, the value of mules, horses, cattle, farming utensils, &c., converted "by Neely to his own use. Upon the principles of our decision, the minor children of Albert Milton King’s two sisters of the full blood deceased, are entitled to the other half of this sum ; and it.was our intention to have so decreed.

It is, therefore, adjudg'ed and decreed, that, in addition to the allowances made by our judgment herein, rendered on the 28th March, 1859, there be judgment in favor of Hibernia Inge, as heir of her deceased mother, Laura King, against the defendant, John G. Neely, for the sum of twelve hundred and fifty dollars, with legal interest from the last day of March, 1856, until paid ; that, in addition to the allowances made by our judgment of the 28th March, 1859, there be judgment in favor of the minors, Howard Wailes, Albert M. Wailes, and Olivia Wailes, in right of their deceased mother, Olivia King, against the defendant, John G. Neely, for the sum of twelve hundred and fifty dollars, with legal interest from the last day of March, 1856, until paid; and that the judgment heretofore rendered by us herein, remain, in all other respects, undisturbed.


author: Buchanan, J.

text:
    India Bagging Association v. B. Kock & Co.
    An agreement was entered into by several commercial Arms, by which they bound themselves for the term of three months, not to sell any India cotton bagging, except with the consent of the majority of them. — Held: That it was a combination to enhance the price of the article, which is in restraint of trade and contrary to public order, and that the agreement could not be enforced in a court of justice.
    from the Second District Court of New Orleans, Morgan, J.

      G. LeGardeur, for plaintiff. E. Briggs, for defendants and appellants.
   Buchanan, J.

On the 7th August, 1856, an association of eight commercial firms in New Orleans, holders of 1410 bales of India cotton bagging, was formed into what they called a copartnership for the sale of India bagging, but which, ought rather to be called a partnership to prevent the sale of India bagging; for, by their articles of association, the subscribers bound themselves, for the term of three months, not to sell any bagging, nor to offer to sell any, except with the consent of the majority of them,- expressed at a meeting; under the penalty of ten dollars for every bale so sold, or offered to bo sold. It must be observed that the 7410 bales of India bagging held by the members of this association, in unequal proportions, did not cease to be the property of the individual members. It is indeed said, in the fifth article of association, that the bagging is accepted by the association for the benefit of its members individually and separately, at the rate of 20 cents per yard. But this clause means nothing, if it does hot mean that each member of the association accepts his own stock of bagging at that price. Por at the end of three months, each member was to resume the uncontrolled disposal of his own stock of bagging; and it is admitted by plaintiffs that two of the members, holders of 2605 bales, withdrew from the association before the expiration of the limited term of three months.

This suit is brought against one of the members, by the manager of this association, for the recovery of a penalty of seven thousand four hundred dollars, for having sold seven hundred and forty bales of bagging, in contravention of the articles of association.

Defendant denies having sold as alleged, and -claims in reconvention, of plaintiffs, three thousand dollars and upwards, for so much paid them for sales made by him in excess of twenty cents per yard..

From the argument, the whole dispute seems to be about a lot of 101 bales of bagging sold on the 7th November, 1856 ; one party asserting that date to have been within the term of the association, while the other party contends that its term expired on the 6 th November.

This is a case which ought never to have come before us. The agreement between the parties was palpably and unequivocably a combination in restraint of trade, and to enhance the price in the markot of an article of primary necessity to cotton planters. Such combinations are contrary to public order, and cannot be enforced in a court of justice. C. C. 1889, 1887 ; Merlin, Rep. de Jurispr., verbo Monopole ; Blackstone’s Oomm., book 4, chap. 12, $ 8 and 9 ; Ohitty on Contracts, edition 1855, p. 678 ; 1st Smith’s Leading cases, 367, 381; French Penal Code, Art. 419 ; Pardessus, Droit Comm., vol. 1, p. 265 ; Lang v. Weeks, 2 Ohio Repts., N. S., 519 ; Thomas v. Tiles, 3d Ohio, 274.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and that this suit be dismissed, at costs of plaintiff in both courts.

Com, J., recused himself in this case.