text:
    Charles Levistones v. M. Marigny.
    Where defendant was interrogated os to whether lie had not promised plaintiff that he would never plead proscription against tho notos sued on—Held: That as far as tho interrogatory referred to a time prior to the acquisition of prescription, defendant could not be compelled to answer, as such an interrogatory is clearly illegal.
    The interrogatory is not illegal and might properly be answered, so far ns it relates to a promise made after tho prescription had been acquired.
    An acknowledgment by tho debtor, after tho prescription has boon acquired, that ho has not paid tho debt, would not bind him to pay it, because ho could still urge his plea of prescription.
    An acknowledgment in writing over his signature by the debtor, that a domand has been made upon him, is sufficient to put him in default and to make his debt bear interest from the dato of his acknowledgment.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      Q. § C. E. Schmidt, for plaintiff.

      Whitaker fy Fellows, and Collins §• Wooldridge, for defendant and appellant.
   Cole, J.

This is a suit on two promissory notes of $800 each, and due respectively on tho 24th of February and 24th of March, 1841. Defendant denies all the allegations of plaintiff’s petition, and pleads the prescription of five and ton years.

There was judgment for plaintiff, and defendant has appealed.

In order to defeat tho plea of prescription, plaintiff filed, on tho 20th November, 1851, a supplemental petition, containing the two following interrogatories : '

1. Are the notes sued upon in this cash signed by you, and have you promised plaintiff never to plead prescription against them ?

2. Have you, at any time within the last five years, recognized your indebtedness to plaintiff upon said notes ?

The first interrogatory contains two questions, viz : 1st, if the defendant had sigped the notes sued on ; and, 2d, if he had promised never to plead proscription against them ?

_ To the first of these questions, we can see abstractedly no objection. So far as the promise never to plead prescription in the second question of the first interrogatory refers to a time prior to the acquisition of the prescription, it is clearly illegal.

Article 3423 C. C. declares, “ one 'cannot renounce a prescription not yet acquired see also Carraby & Navarre, 3 La. 262. But we do not consider tho question illegal so far as it relates to a promise made after the prescription had been acquired. It has been urged by defendant, that Articles 3422 and 3515 of the Civil Code are opposed to this view, but we do not think so. Article 3422 of the Civil Code declares, that “ prescription by which debts are released, is a peremptory and perpetual bar to every species of action, real or personal, when the creditor has been silent for a certain time, without urging his claim”; hut this Article does not enjoin tho debtor from waiving the bar, if he wishes; the bar is a protection furnished by the law to the debtor ; but there is no statute which deprives him of the privilege of dispensing with this plea if he thinks proper to do so.

Art. 3515 O. O. provides that: “ Good faith not being required on the part of tho person pleading this prescription, tho creditor cannot compel him or his heirs to swear whether the debt has or has not been paid, but can only blame himself for not having taken his measures within the time directed by law; and it may be that the debtor may not be able to take any positive oath on the subject.”

This Article forbids the creditor to ask the debtor or his heirs under oath, if the debt has been paid, but it does not enjoin the creditor from asking under oath of the debtor or his heirs, if he or they have promised not to plead prescription against the debt, for the question is an admission that the prescription exists, but that its effect has boon destroyed by a new obligation created since the acquisition of prescription, and there is nothing’ in this article which forbids the interrogation of the debtor relative to such now promise.

Art. 3423 of the Civil Code expressly recognizes the right of renouncing prescription already acquired; it declares, “ one cannot renounce a prescription not yet acquired, but it is lawful to renounce prescription when once acquired.”

If a debtor can then renounce prescription, it must be lAwful to ask him if he has not promised to renounce it, and if he can be asked this question, he then can be interrogated whether he has not promised not to plead prescription, for a promise not to make this plea is a renunciation of prescription, for Art. 3424 0. C. declares, that a “ renunciation of prescription is either expressed or tacit; a tacit renunciation results from a fact which gives a presumption of the relinquishment of the right acquired by prescription.”

It is objected, that if it is not lawful to inquire if the debt has boon paid, it is equally unlawful to ask, if he has promised not to plead proscription, for the latter interrogatory includes the former and is based upon it; this objection is untenable, for the interrogatory tacitly admits that the debtor has a valid bar to the action for the debt, that it is deemed by the law to have been paid on account of the lapse of a certain time, and merely asks him if he has not entered into a new contract by which ho is bound not to plead this bar ; the question whether ho has paid the debt is essentially different from whether he has promised not to plead prescription. This same objection, if there was any force in it, would equally apply to the question, whether a debtor had not renounced prescription. If it be objected that a promise not to plead prescription is without effect, for it is a promise without consideration, it will bo a sufficient answer to this to say, that Art. 3423 C. C. allows it without reference to the moral obligation to pay what is due.

The second interrogatory inquires of defendant, whether or not he has at any time within the last five years recognized his indebtedness to plaintiff upon the notes.

A mere acknowledgment by a debtor after prescription is acquired, that he has not paid the debt, would not perhaps bind him to pay, because ho could still urge his plea of prescription when sued ; for he does not by such an acknowledgment promise not to make the plea, nor does he thereby promise to pay, nor does he acknowledge the debt. We are of opinion that the second interrogatory is subject to no legal objection, but it can have no effect unless the recognition of defendant’s indebtedness consisted of an acknowledgment of the debt, or of a promise to pay it without any express acknowledgment that the debt was unpaid, for a promise to pay includes the recognition that the debt is still due. See Butler v. Ford, 9 Rob. 113; Shiff v. Hertzogg, 12 La. 455; Wilson v. Bannen, 1 R. 556; Montgomery and another v. Levistones, 3 R. 147; C. C. 3486; C. P. Art. 13.

Art. 3420 0. 0. declares that “ prescription is a manner of acquiring property or discharging debts, by the effect of timo, and under the conditions regulated by law.” It appears to be a natural conclusion from this Article, and from Article 13 of the Code of Practice, which declares that prescription merely affects the remedy, that when a debt is proscribed, it is discharged, and the original debtor cannot bo held liable without a new acknowledgment of the debt or a promise to pay, or not to plead proscription, for these destroy the presumption of law that , the debt has been paid, and his new acknowledgment or promise binds him to pay the amount thereof. Butler v. Ford, 9 R. 113.

There is ah error in the judgment as to the time when interest begins to run on the note not protested. Defendant avers that he is not responsible for more than legal interest from judicial demand. We think he is liable on the note not protested for interest since the 1st of March, 1846, when ho signed a written acknowledgment on the note that plaintiff had made a demand of him for its payment. Art. 1932 O. 0. declares that in contracts which do not stipulate for the payment of interest, it is due from the time the debtor is put in default for the payment of the principal. Art. 1905 0. 0. provides three ways by which a debtor may bo put in default, one of which is by the act of the party, when at or after the time stipulated for the performance, he demands that it shall be carried into effect, which demand may be made either by the commencement of a suit, by a demand in writing, by a protest made by a Notary Public, or by a verbal requisition made in the presence of two witnesses. We think that the object of this Article is to provide modes of making proof of a demand, and that when a debtor acknowledges in writing under his signature, that a demand has been made of him, the object and reason of the law are accomplished, and this acknowledgment is sufficient to put Mm in default, and to make his debt bear legal interest from the day of the acknowledgment.

We woidd here observe, that the statute making all debts bear interest from their maturity, does not apply to this note, because it was made before the passage of the statute.

Wc have deemed it necessary to express our opinion on all the points of this case, as there is an objection urged by defendant which renders it proper to remand this cause; he avers he was willing to have answered the interrogatories, although he did not deem them legal, but being mislead by the rules of court, he was not present at the hour indicated in the order of court, and the interrogatories were taken for confessed, and judgment was rendered against him.

The rules of court alluded to are the following: “ The regular hour for the opening of court will be 10 A. H., but for the dispatch of business, the Judge • may fix another hour.”

“ Notice.—The hours from 9 to 11 A. M. of each day will be appropriated to the hearing of motions and trial of rules and exceptions, until all the cases now fixed for Friday of each week are disposed of. Counsel will bear in mind that every rule fixed on after Monday next, the 23d, will be returnable at 9 o’clock A. M. as above.
By order of the court.
“ November 17, 1857.”

In the supplemental petition, which contained the interrogatories, plaintiff had prayed that defendant bo ordered to answer them under oath in open court on the trial of the cause, on Monday, the 23d of November, 1857, at 10 o’clock A. M.

It appears also from the minutes of the court of 23d of November, 1857, that the cause was called up for trial, and that defendant failing to appear, on motion 0f coungoi f01. plaintiff, it is ordered, adjudged and decreed, that the intcrrogatorieg i)0 taken for confessed, and that there be judgment against defendant.

It thus appears that the cause was fixed for the 23d November, and the interrogatories were to be answered after the cause was taken up.

The counsel of defendant was justifiable in supposing that under the rules of court, the case could not be called until 11 A. M.

It appears he informed his client, who was proceeding before ten o’clock to the court-room, to answer the interrogatories, that by a rule of court posted up in the court-room, the hours from 9 to 11 had been set apart for rules, and the trial of this cause could not begin until 11 o’clock; his client came into court before 11 o’clock, and was surprised to find that the case had been decided.

These allegations are supported by the affidavit of defendant and Ms counsel.

It is objected, that defendant was bound to obey the order of court and be present at 10 o’clock A. M.; but as there was also another order or rule of court relative to the trial of causes, he naturally construed the one by the other, and supposed the real intent of the order was that he should be present at 11 A. M.

As defendant really intended to answer and failed to do so from a reasonable cause, he is entitled to a new trial. Wall v. Bry, 1 An. 312.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed ; and that the cause be reversed for a new trial, and that plaintiff pay the costs of ajipeal.

Spoffokd, J., took no part in this cause.


source: Caselaw Access Project

author: Meeriok, O. J.

license: Public Domain

text:
    Samuel B. Wiggins v. Philip Guier.
    Where evidence is certified by tlio Clerk, or a statement of facts is made out by tlio District Judge, Uio Supremo Court docs not examine the same as a Court of Error—but reviews and weighs tlio evidence and gives effect to that which preponderates, precisely as the jury or the District Judge ought to have done.
    Where parties dosire it the court will, in a proper case, find the facts in such a manner that the questions of law can ho fairly raised for the consideration of the Supreme Court of the United States.
    Ike title of the United States to the selections of Land made by the State of Louisiana, under the Act of Congress, approved September 4th, 1841, passed out of the government and vested in the State of Louisiana at tlio timo of the final approval of the selections by the Secretary of tlio Interior, unless there had been some legal claim to them, at the time, obtained from tlio General Government which prevented the acquisition by the State. Claims to these selections must be established by certified copies and other legal evidence, and tlie unconditional selection of lands under tlio Act, and the approval of them by the Departments at Washington, is superior in proof to any recital contained in subsequent lettors of the Commissioner of the General Land Oflice.to the Register and Receiver—mid to any report made by the Register and Receiver to the Commissioner favorable to the rights of those claiming these selections under tlie General Government.
    Although the action of tlio Gonoral Land Office is generally conclusive upon the subject of tlio grant of public lands, up to tho issuing of the patents or other divestiture of title, it could not by its subsequent action upon a fictitious claim defeat rights already vested.
    APPEAL from the District Court of the Parish of Carroll, Farrar, J.

      Goodrich ty De France and H. Short, for plaintiff'.

      Louis Selby, for defendant and appellant.
   Meeriok, O. J.

This case was before us last year and was remanded for a now trial. See 12 An. 177. The plaintiff, it is seen, claims in virtue of a location by the State, approved by the Secretary of the Interior, of the land in question as Internal Improvement land and a patent from the Governor of Louisiana. The defendant claimed under a patent issued by the President of the United Slates. There are charges of fraud made by the plaintiff against the defendant. Judgment was a second time rendered in iavor of the plaintiff and defendant again appeals.

As this case may go to the Supreme Court of the United States, we take occasion to correct an erroneous impression in regard to the powers of this court over the facts of the case. Where evidence is certified by the Clerk, or a statement of facts is made by the district judge, this court does not examine the same as a Court of Error, but passes upon the truth of supposed facts, disregards the testimony of witnesses unworthy of belief, reviews and weighs the evidence, gives effect to that which preponderates, and, in fine, pronounces upon the testimony in the case precisely as the jury or the district judge ought to have done. Jones v. Periera, 13 An. 102.

And where the parties desire it the court will, in a proper case, find the facts in such a manner that the questions of law can be fairly raised for the consideration of the Supreme Court of the United States, which, on a writ of error, has not the like power over questions of fact.

On an examination of the testimony of this case we find that the land in controversy was selected on the 19th day of July, 1858, by the State of Louisiana, under the Act of Congress, approved September 4,1841. (5th vol. Statutes at Large, p. 455, sec. 8.) This selection was finally approved by the Secretary of the Interior. This appears by an official communication from the Commissioner of the General Land Office at Washington to the Governor of Louisiana, under the date of November 26,1849. In this communication, showing the action of the land office, the approval of the selection by the State of the land in controversy appears, to have been unconditional, although another list accompanied the same, of what were called “ suspended ” selections. These were, where the selections were in conflict with preemption claims. On the final approval of the selections by the Secretary of the Interior, wo think the title of the United Slates to the land in controversy had completely passed out of the government and vested in the State of Louisiana, unless the defendant had some legal claim which prevented the acquisition by the State. And this question is now to be considered ; for, whatever right the State of Louisiana acquired, was convoyed to the plaintiff as the assignee of James Taylor Wade, the 20th August, 1850, by a formal patent.

The letters of the Register of the land office having been objected to, make no proof of the facts recited therein any more than did the testimony of the Register of the State Land Office, which was rejected. At most these letters only prove rem ipsam. Such facts must be established by certified copies and other legal evidence.

Looking then to the legal proof in this record (which, indeed, is not contradicted by_any recital of the Register,) we find it clearly established that Elijah Dempsey, for whose estate the defendant pretends to claim, was entitled, at one time, to a preemption of the tract of land in controversy, but that he sold the same in February or March, 1831, and having been suffered to remain on the same by the purchaser, he immediately commenced another improvement on the oast side of Bayou Magon, but died before he moved to the same ; that the widow had the house finished upon it (the new improvement) after the death of Elijah Dempsey ; that the widow married one James Dempsey and moved to her new house; that the place in controversy was cultivated in 1838 by C. D. Richardson as the lessee of N. T. Richardson, the purchaser from Elijah Dempsey; that Richardson sold to Moore fy Laughlan, by notarial act convoying possession. In like manner Moore sold to Laughlan and Laughlan to Foster, and that Outer acquired possession of the property from Foster in 1844, and then cultivated it himself and leased it as owner. That no inventory was ever made of the property as belonging to the succession of Elijah Dempsey, deceased; that Guier was not appointed administrator of the succession of Elijah Dempsey until the 2Gth day of December, 1848, and that hence his possession and acts of ownership over the tract of land in controversy were in his own right. It is thus apparent that whatever right Elijah Dempsey may have had in 1837 was forfeited by ten years abandonment by his widow and heirs; and it is further apparent, as we think, that the application for letters of administration by Guier was ior the purpose of protecting the possession which he had acquired in 1844, and of defeating the location and sale by the State.

Did the action of the Register and Receiver and Commissioners of the Land Office at "Washington give validity to this (in the eye of the law) fraudulent claim on the part of Guier, and thus defeat the location by the State ? Wo have just seen that the lands were located by the State on the 19th day of July, 1848, and as appears from the official communication from the land office at Washington to the Governor of the State of Louisiana, unqualifiedly approved by that department and the Secretary of the Interior, on the 26th day of November, 1849. On the 4th of August, 1849, more than a year after the lands had been located, the Register notified the Commissioner of the General Land Office of defendant’s claim, and on the 25th of January, 1850, after the selections of land had been approved by the Secretary of the Interior, the Register again called the attention of the Commissioner to the subject, stating- that the defendant, as administrator, had renewed his application to enter the land. In reply, the Commissioner says, notwithstanding his communication to the Governor that the selections were approved on the 20th of November, 1849, by the Secretary of the Interior, “subject to the usual conditions of such approvals,” and directs the Register, in his view of the facts .presented by him, to transmit to his office the proof in support of the claim, with his opinion and that of the Receiver. This letter is dated February 27,1850.

On the 28th of March, 1850, the Register wrote, that he considered the proof to sustain defendant’s claim ample, and recommended the claim be allowed. On the 13th of April, 1850, following, the Commissioner again wrote to the Register and instructed the Register and Receiver as follows, viz :

“ In the absence of any other conflicting interests, this office would have no hesitation in confirming your opinion as to 'the validity of the preemption claim, taking it for granted that the possession of 1837 had been continued by the heirs, or some one for them up to the time when the testimony was presented and the claim sought to be consummated, but as the land has been selected by the State and that selection approved by the Secretary of the Department, (subject, however, to the rights of others,) it is deemed necessary that testimony should be furnished going to show that continued possession, it not being in accordance with the spirit and intent of the law to grant, under these old preemption claims, lands which may have been cultivated and possessed as proscribed by law, but which was subsequently abandoned by the claimant, or those rightfully claiming under him. If such testimony is produced, you are authorised to allow the entry in the name of the heirs of Elijah Dempsey of said N. E. quarter of Sec. 23.”
“ Give the party holding under the State notice, when the additional testimony is to be furnished, and let him be heard in the matter.”

Notice appears to kavé been given, and the parties were present when this additional proof was taken. On the 30th of September, 1850, the Register or Receiver report to the Commissioner of the General Land Office favorably to the heirs of Elijah Dempsey, deceased, and on the 18th of October following the acting Commissioner directed the entry to be made on the payment of the requisite purchase money. The patent issued on the 1st day of December, 1851, to the heirs of Elijah Dempsey, deceased.

We incline to think that the official communication of the department at Washington of the unconditional selection of the tract of land in controversy to the Governor is superior, in proof, to any recital contained in the subsequent letters of the Commissioner to the Register and Receiver, and that such approval vested the title to the land in the State of Louisiana. It was then incumbent on the defendant, if any other and higher evidence existed showing that the approval was only conditional, to produce it.

But whether the approval were absolute or subject to the rights of others, we are of the opinion that the State of Louisiana had, and the plaintiff through the State, has the better right, and that whatever title the defendant may have acquired under the patent issued in favor of the heirs of Elijah Dempsey should be held to inure to the benefit of the plaintiff, and that the judgment of the lower court ought to be affirmed. The State of Louisiana, whether the approval of the Secretary of the Interior were absolute or conditional, as just observed, acquired a vested right, which could not be defeated except by a real right on the part of those whom the defendant pretends to represent. The proof clearly shows that no such right existed, for the premises had been abandoned by all persons having a right to claim the benefit of the pre-emption claim of Elijah Dempsey more than ten years before the selection by the State of Louisiana, and although the action of the Land Department is in general conclusive upon the subject of the grant of the public lands up to the issuing of patent or other divestiture oi title, we are of the opinion that it could not by its subsequent action upon a fictitious claim defeat rights already vested, and that it is inequitable to permit the defendant to hold rights so acquired by his wrongful acts. See cases of Lytle v. State of Arkansas, 9 Howard, 314; Foley v. Harrison, 15 Howard, 432; Barnard's heirs v. Ashley’s heirs et al., 18 Howard, 43; Hood v. Martin, 11 An. 553; 10 An. 182; 13 Peters, 436.

This view of the case renders it unnecessary to consider the question of legitimacy raised by plaintiff’s counsel, or whether the defendant made his application to the land office within a year after the return of the approved township map.

Judgment affirmed.


author: Buchanan, J.

text:
    James A. Lusk v. Charles B. Church.
    In tho present legislation of the Stale an action by a slave for freedom cannot bo maintained.
    APPEAL from tho Pifth District Court of New Orleans, Eggleston, J.

      Mott & Fraser, for plaintiff.

      L. M. Day, for defendant and appellant.
   Buchanan, J.

Tho plaintiff purchased of one Dougherty, in Juno, 1846, a slave named Dennis, who had been purchased by Dougherty in March, 1846, from the defendant. In the sale from Dougherty to plaintiff, passed before a Notary Public in New Orleans, the seller, besides his own warranty, asssignedto the purchaser all his rights and actions of warranty against tho defendant. The slave ran away in June or July, 1847 ; and plaintiff, by tho present action, instituted in October, 1854, seeks to recover his value from defendant; not upon the warranty of the latter against redhibitory vices, but upon the warranty of title ; the plaintiff alleging in his petition that, at the time of tho sale from defendant to Dougherty, the boy Dennis was free. The petition makes no mention of the slave having ran away from service. It alleges that in the month of June or July, 1847, “ the said Dennis asserted that he was free, and that he never was the slave of the said Church, the said Dougherty, or of petitioner, and that, from that time, his services were entirely lost to petitioner.” The fact of running away is shown by the evidence offered by plaintiff on the trial of the cause.

There is no allegation that defendant, when he sold Dennis as a slave, was cognizant of his pretended freedom. No fraudulent practice is charged upon the defendant. This is purely and simply an action of warranty of title. The plaintiff says to defendant “ You have sold me a free man for a slave. The price which I paid you was therefore paid without a consideration, and you are bound to restore it to mo.”

A peculiar feature in this case is, that Dennis himself has never claimed his freedom in any legal proceeding. It would seem from tho allegations of the petition, that upon the negro’s simple assertion of his freedom made some years before the institution of this 'suit, the plaintiff had voluntarily relinquished all claims to his services.

But the facts, as disclosed by the evidence, are, that plaintiff who resides in New Orleans, having hired Dennis as a cabin waiter to a captain of a steamboat trading between New Orleans and St. Louis, the boy served faithfully in that -capacity during the running season in the winter and spring of 1846-47 ; that upon tho boat being laid up for the summer at St. Louis, the boy Dennis absconded at that place, and escaped into the adjoining State of Illinois; since which time there is no account of him, and his services have been lost to plaintiff A suit was brought by the present plaintiff against Captain Swon, his lessee, in October, 1848, for the value of the boy Dennis, on the ground that he had been lost to plaintiff through the lessee’s fault. The lessee defended this suit upon the ground that he was not liable, under his contract with plaintiff for tho boy’s running away; and on the further plea, that the boy was not the property of plaintiff but was free.

Judgment was rendered in that suit in favor of the defendant, Swon, against the present plaintiff, and in favor of the plaintiff against the present defendant, Ailiom ho had called in warranty. The present plaintiff did not appeal from this judgment; but the present defendant did appeal; and the judgment as against him was reversed by this court, upon an exception filed by him to the call in warranty, that the plaintiff had never been evicted by the judgment of any court, and that no suit had been brought, either by the negro himself to recover his freedom, or by any one else to evict him, and that plaintiff had no right to call him in warranty. See the case of Lusk v. Swon, reported in 9fch An., 367. In the reasons for judgment, this court said : “ The Article 2495 0. 0. authorizes a plaintiff to notify his vendor, when he is obliged to commence judicial proceedings against one disturbing him in his possession, of the action which he is commencing. But in an action like this, to which neither the negro himself is a party, nor any one else asserting a title adverse to the plaintiff, the Article 2495 of the Code is not applicable, and there is no rule of practice which would authorize the plaintiff to proceed against his warrantor, except by a direct action in which he assumes the burthen of proving that the negro was free when he purchased him, as a ground for annulling the sale and recovering back the price.”

Upon the hint contained in the passage above-quoted, the plaintiff has acted in instituting the present suit. He distinctly undertakes to prove that Dennis was free when.ke was sold by defendant as a slave. The action, in other words, is an-action for freedom of a slave, instituted not by the slave himself, but by a. party who holds a title to him as purchaser, against the party from whom he purchased.We are much inclined to doubt the right of plaintiff to institute such an action, unaccompanied with any charge of fraud against his vendor. But as the opinion of this court above-quoted, is not guarded by any qualification, we shall abstain, pro hoc vice, from deciding upon the right of a party to stand in judgment in this-form, although the argument is pressed upon us by the counsel of defendant.

It is not necessary that we should pass upon that point: for an examination of the record shows us that the state of facts exhibited by plaintiff; in the depositions-of witnesses examined under commission, is identical with that of the case of Louisa Marshall v. Watrigant, lately decided by us-, and upon which we held that, in the present legislation of the State, an action could not be maintained for freedom. The case referred to was a suit by the slave herself for her freedom. And-it will not be doubted that the plaintiff in the case at bar, is not in a more favored situation than the slave himself would be, were he before us as plaintiff.

The judgment of the District Court is, therefore, reversed, and judgment is rendered in favor of defendant, as in case of non-suit, with costs in both courts.

Spoffobd, J., took no part in this case.


text:
    Myra Jane Knox v. Payne & Harrison.
    A moro promise to soli when certain conditions aro complied witli, does not confer a tillo, "but only creates an obligation which may be enforced by an action to compel a specific performance, or for the recovery of damages.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      J. A. Rozier and C. B. Penrose, for plaintiff.

      J. M. Chilton, H. D. Ogden and Benjamin, Bradford § Finney, for defendants and appellants.
   Buchanan, J.

The plaintiff claims of defendants thirty-two slaves, by two distinct titles.

1st. By purchase from Maunsel White, in 1843.

2d. By testamentary devise from her brother, Alexander G. Prince, in 1829.

The claim under the will of the plaintiff’s brother, can scarcely be reconciled with the claim set up by her previous pleadings, under the Marshall’s sale to White, and White’s agreement to transfer to plaintiff his rights under that sale. For the Marshall’s sale was made in execution of a judgment against plaintiff’s husband, Andrew Knox, and the slaves were levied upon as the property of the defendant in that judgment; as such, they were adjudicated to White ; and White’s title being derived exclusively from Andrew Knox, it would seem that plaintiff can scarcely be allowed to dispute the title of White, under which she claims. Wo may dismiss, however, from consideration, the plaintiff’s alleged title by inheritance; for we are satisfied that as the law of Mississippi stood previous to 1839, the ownership of the slaves devised by Alexander G. Prince to the plaintiff vested in Andrew Knox, plaintiff’s husband.

We have, then, only to examine plaintiff’s claim under the Marshall’s sale to White, and White’s subsequent agreement to transfer to plaintiff the property purchased. The latter instrument is not a sale, but merely a promise to sell when certain conditions shall be complied with. It did not make plaintiff the owner of the property. It gave her only the right of becoming so at a future time. It created in her favor a contingent obligation binding on White, which if he refused voluntarily to fulfil, the contingency happening, he could be judicially constrained to a specific performance or be subjected to an action of damages. Peck v. Bemiss, 10 An. 160.

But, as the matter stands, White has never made a conveyance to plaintiff of his rights under the Marshall’s sale. Whether he was obliged to do so or not by the fulfilment of the suspensive condition on the part of plaintiff, does not concern us to enquire: as White is not a party to this suit. Mr. White, it appears, suffered Andrew Knox to treat these slaves as his own—to mortgage them for his debts— and finally, after many years, to surrender them to his creditors under the laws of Louisiana, in the parish where both White and Knox (and consequently Mrs. Knox,) had their domicil. They were regularly sold by Knox’s syndic, under an order of court, in this insolvent proceeding; purchased by the defendants; and the proceeds of the sale distributed among Andrew Knox’s creditors; all this has been done in the presence of plaintiff, and without any opposition on her part. It would be the height of injustice to compel the defendants, after paying their money for this property, to turn it over to the plaintiff, as the holder of an inchoate title, which has never been registered in Washington County, Mississippi, whore the plaintiff and her husband originally resided, nor until after the institution of this suit, in the parish of Plaquimines, where the plaintiff resided for ten years previous to her husband’s failure. By the plaintiff’s own showing, the legal title of these slaves was in Maunsel White, and not in herself, when the defendants acquired them at syndic’s sale. Maunsel White, or his assignee, Zunts, was a party to the insolvent proceedings of Andrew Knox, and had a distributive share in the proceeds of these slaves. He is therefore concluded from contesting defendant’s title if he had evinced any disposition to do so; which he has not. There is no privity of contract between plaintiff and defendants; nor any notice, actual or constructive, of plaintiff’s pretensions brought home to them.

If she have any rights she can only execute them against the party with whom she contracted, in the form of a claim for indemnity for any loss that she may have suffered in the premises.

Judgment reversed; and judgment for defendants, with costs in both courts.


text:
    Eveline B. Castillo v. Anna F. Elliott, Executrix.
    A final account of administration of the estate of IF. St. J. 22., deceased, administrator of II L. C., deceased, was rendered by the defendant. The widow C.,on behalf of herself and of a minor daughter, specially opposed certain items, and prayed that the administrator might be charged with the value of a gin house, etc., belonging to II L. (7.’s estate, which were consumed by fire during W. St. J. 22.,s administration. Three of the heirs of II L. G., one of whom was thojplaintiff heroin, filed gonoral opposition, but did not seek to charge the administrator with the value of the gin house. A judgment was rendered on plaintiff’s opposition against the administrator for $2,6Y9 08. That judgment was not appealodfrom and is not now appealable.
    The plaintiff brought the present action against defendant, as administratrix of said W. St. J. 22., to recover damages sustained, as one of the heirs of IIL. G., by the burning of the gin house abovo mentioned. The defendant plead the aforesaid judgment in bar of this action.

      Held: that the plea was well taken. That judgment liquidated the account between the deceased administrator and the heirs, and particularly the balance due by the former to this plaintiff.
    APPEAL from the District Oourt of the parish of Concordia, Ratliff, J.

      J. N. Brickell, for plaintiff and appellant.

      H. B. Shaw, for defendant.
   Buchanan, J.

A final account of administration of the late William St. John Elliott, administrator of Henry L. Conner’s estate, was rendered by said Elliott’s widow, defendant herein. This account was rendered, after Mr. Elliott’s death, to the court which had appointed him administrator, and must have been notified to the widow and heirs of Conner., for they all filed oppositions to the account. The widow Conner, on behalf of herself and a minor daughter, specially opposed certain items of the account, and prayed that the administrator might be charged with the value of a gin house and of a large quantity of cotton belonging to Conner’s estate, which were consumed by fire during Elliott’s administration, and which, at the time of being so destroyed, were not insured. Three of the heirs of Conner, one of whom was Mrs. Castillo, plaintiff herein, filed general oppositions to the said final account of administration, requiring strict proof of the several items of said account, but did not seek to charge the administrator, as their mother had done, with the value of the gin house and cotton burnt. The parties went to trial upon these issues, and a judgment was rendered on the 20th December, 1855, which fixed the balance of account due at that date to the present plaintiff, as one of the heirs of Henry L. Conner, by the administrator (or rather by the estate of the administrator,) at two thousand six hundred and seventy-nine dollars and eight cents. That judgment was not appealed from, and is not now appealable. But the plaintiff has brought the present action, by petition filed the 2d October, 1856, against the defendant, as representative of William Si. John Elliott, for the sum of three thousand five hundred dollars for damages sustained by plaintiff as one of the heirs of Conner’s estate, by the burning of the gin house and cotton above mentioned. The defendant plead, in bar of this action, the judgment of the 25th December, 1855, upon the final account of Elliott’s administration, rendered by his widow. And wo think the plea well taken.

That judgment liquidated the account between the deceased administrator and tlie lieirs, and. particularly the balance due by tlie former to this plaintiff. The claim which forms the object of the present suit, has not arisen since that judgment ; and plaintiff does not allege that it was unknown to her when she filed her opposition to the account. Nor could she do so. Por this very claim was the subject of an opposition which had been previously filed by her mother and coheir ; although it formed no part of her own opposition.

Judgment affirmed, with costs.


author: Meerick, 0. J.

text:
    Succession of Levinia Hickman.
    The docroo of homologation of tho proceedings of a family meeting authorising tho tutor of a minor to borrow money, is a sufficient protection to the lender of the money, who is not bound to see to tho judicious application of the money.
    A clause in the nature of an antichresis in an act of mortgage, does not vitiate the instrument.
    Where tho use of slaves was given in lieu of interest for money loaned, and there was a groat disproportion between the value of the services of the slaves and the rate of conventional interest—Held : That it will be presumed that the contract was intended to secure usurious interest.
    APPEAL from the District Court of East Peliciana, Ratliff, J.

      Bowman fy Delee, for appellants.

      Muse & Hardee, for appellee.
   Meerick, 0. J.

This case was before us last year. See 12 An. The present appeal is from the judgment upon an opposition to the final account of the administrator.

We will consider the items objected to by opponents in the order in which they have presented the same in the brief.

I. The first item opposed is that allowed the attorneys for defending the former suit and filing the present account. It is clear that the services of counsel in the former suit were for the individual advantage of the administrator, and as he was condemned to pay the costs, there is no pretence for charging counsel fees to the opposite party. Probably the administrator should be allowed for attorney’s fees, for filing the present account, to the amount, say, of fifty dollars.

■ II. The next item objected to was a mortgage note of $500 paid by the administrator to Mrs. Mary Sturgis. The note was given by the former tutor of the minors, under the advice of a family meeting duly homologated, to raise money to pay debts. The decree of homologation was a sufficient protection to the lender of the money, and she was not bound to look beyond the decree in order to ascertain whether any debts of the succession were laid before the family meeting or not, neither was she bound for the judicious application of the money to the payment of the debts by the tutor after she had placed the money in his hands. See Rhodes v. Union Bank, 7 Rob. 63, and authorities there cited.

The Judge authorized the former tutor to borrow money upon a-mortgage oí the slaves. The act in favor of Mrs, Sturgis, by which the money was borrowed, was in the usual form of a mortgage, and so far in conformity with the order, but it also contained a stipulation that the mortgagee should have the use of the negroes in lieu of interest. We are of the opinion that the clause in the nature of an antichresis did not vitiate the instrument as a mortgage. C. C. 3148.

The question of usury in reference to the administrator who paid the note in full, without obtaining a deduction of the large excess in the value of the services of the slaves over the interest, depends upon the fact, whether the difference is so considerable that it must be presumed that the contract was intended to secure usurious interest upon the money loaned; for the administrator of the succession of Mrs. Lavinia Hickman (although acting in good faith) by taking up the debts made by a former tutor to her minor children, without any order of the Judge or tableau of distribution, cannot acquire any greater rights than the creditor held. The services of the negroes were at that time worth at least $120 a year, and the interest was but forty dollars; the difference is so considerable that the contract must, under the authority of Galloway v. Legare, 4 N. S. 169, and Baker v. Garlick, 9 Rob. 127, and in the absence of explanatory testimony, be held to be usurious, and the interest forfeited. Deducting the account for clothing and medical bill from the value of the services of the two negroes, it leaves $96 25, which must be credited on the note. Item Number 10 must, therefore, be reduced to $403 75.

III. The next item objected to is for $325 money alleged to hav.e been loaned the deceased by the administrator. The testimony is insufficient to show that this sum enured to the benefit of the separate estate of deceased. Moreover, the testimony was incomplete, inasmuch as the act of sale was neither produced nor accounted for. But we do not think that the administrator ought to have a final judgment against him on this item, as he may hereafter be able to establish the same.

TV. In regard to the costs, it is clear, that the former decree condemned G. W. Flannigan, individually, to pay the costs in that case. The decree was affirmed by this court, and those items of costs could not be carried to the credit of the administrator in the present account.

As the opposition in this case is made for the purpose of charging the administrator with the hire of negroes not allowed in his account, and to reduce his individual claims against the succession, in both of which particulars the opposition was sustained, he must be charged with the costs of the opposition.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be so amended as to reduce item No. 8 to the sum of $50, and item No. 10 to the sum of $403 75 ; and to reject item No. 15 for $335, the administrator being authorized to claim a credit for the same if he be entitled thereto in any subsequent account; and that said decree be further amended so as. to charge the administrator with the costs of the opposition, and that said judgment so amended bo affirmed, the said George W. Flannigan, paying' the costs of the appeal.


author: Spofford, J.

text:
    Succession of J. F. H. Pargoud.
    Tho tax of ten'per cent, required by tbo Act of March, 1855, sec. 7, to be paid by every heir, legatee or donee, domiciliated in a foreign country, upon all sums of money, or on the value of all property which he may havo received from tho successon of any person deceased, in this State, is not a debt due by tho succession, but is simply a debt due by tho heir who happens to reside in a foreign couutry.
    Foreign heirs havo also a right to accept a succession purely and simply, and to take possession of the property without interference by the State, unless there is an averment that they intend to remove the property to defraud the State.
    A suit to recover this tax should bo brought directly against the heirs who, under the statute, owe it to the State.
    APPEAL from the District Court of the Parish of Ouachita, Richardson, J.

      F. P. Stubbs, for appellant.

      McGuire & Ray, for appellee.
   Spofford, J.

The District Attorney of the 12th Judicial District applied to the District Court for the parish of Ouachita for an order to the Recorders of the parishes of Ouachita, Carroll and Morehouse, and to a Notary Public in the parish of Orleans, to make inventories and appraisements of all the property, etc., belonging to the Succession of Jean Frangois Hypolite Pargoud, deceased, late a resident of the parish of Ouachita, and also for an order appointing Robert W. Jamison administrator of the succession of said Pargoud.

In a supplemental petition, the District Attorney prayed, in addition to the foregoing demands, that the State of Louisiana be recognized as a creditor of said succession to the amount of .ten per cent, upon the interest of Madame Marie II. Pargoud, Nicholas Hypolite Pargoud and Marie Léontine Steenacher, wife of FredericJc Steenacher; and further, that, in case an administration should be deemed unnecessary, the heirs of the deceased to be required to give bond and security upon ascertaining the amount due to the State by fair inventories, to pay' whatever claim the State of Louisiana may have against the succession of the said Jean F. H. Pargoud, deceased, and for general relief.

The application was opposed by Jean Francois Pargoud, a resident of the parish of Ouachita, who alleged that he was one of the heirs of said succession and agent and attorney-in-fact of all the other heirs, and that they had accepted the succession purely and simply, and no inventory or administration was necessary.

The court below, after ■ a hearing, dismissed the application, and the District Attorney has appealed.

It appears to us that the District Attorney has misconceived his remedy, if he is proceeding under the Act of March 15th, 1855, section 1. That section declares “ that each and every person, not being domiciliated in this State and not being a citizen of any State or territory in the Union, who shall be entitled, whether as heir, legatee or donee, to the whole or any part of the succession of a person deceased, whether such person shall have died in this State or elsewhere, shall pay a tax of ten per cent, on all sums, or on the value of all property which he may have actually received from said succession, or so much thereof as is situated in this State, after deducting all debts due by said succession, when the inheritance, donation or legacy consists of specific property and the same has not been sold, the appraisement thereof in the inventory shall be considered as the value thereof. Every executor, curator, tutor or administrator having the charge or administration of succession property belonging in whole or in part to a person residing out of this State, and being a citizen of any other State or territory, shall be bound to retain in his hands the amount of the tax imposed and to pay over the same to the State Treasurer or to the officer appointed by him ; in default whereof, every such executor, curator, tutor or administrator and his sureties shall be liable for the amount thereof.”

It will be seen by this statute that the tax is not a debt of the succession ; it is simply a debt of the heir who happens to be domiciliated in a foreign country. The State cannot be called a creditor of Pargoud’s succession, it can only be a creditor of some of Pargoud’s heirs.

But it is admitted that the heirs are in possession of the estate through their attorney-in-fact, Jean Francois Pargoud, himself an heir, and a resident of Louisiana. The State then has no interest and no right to provoke an administration of the succession; for the succession owes nothing to the State: and the heirs,, even if they do owe the State, have a right to accept the succession purely and simply and to take possession of the property without interference by the State, at least, unless there is an_averment that they intend to remove the property to defraud the State.

When an executor, curator, tutor or administrator is appointed to “ administer a succession, and there are heirs residing out of this State, and being citizens of any other State or territory, (to use the literal terms of the statute, as shown by an exemplification from the rolls,) then such executor, etc., shall be bound to retain in his hands the amount of the tax imposed, to be paid to the State Treasurer.

The suit should have been brought directly against the heirs (if any such there be) who, under the statute, owe the tax ; all the heirs are in possession through an agent resident here.

The present application for inventories and the appointment of an administrator was properly dismissed.

The grave questions respecting' the interpretation and binding force of the treaty or consular convention between the United States and France, concluded on the 23d February, 1853, and its application to the heirs of Pargoud, it would be premature to decide under such a form of proceeding as this record presents.

Judgment affirmed.


author: Merrick, C. J.

text:
    Alexander Martin et al. v. Richard Boler.
    Where a general allegation is made in a petition for letters of administration to the oflhet, that there is considerable property belonging to the estate—Held: that such au allegation cannot estop the party making it, further than it is shown to embrace certain specific property to which it was designed to apply.
    An allegation of such a general character cannot bind tho widow, tho heir or the creditor, to an admission of title to whatever should afterwards be embraced in tho inventory.
    An administrator may show that he signod an inventory under an error of fact.
    An administrator does not bind himself personally, and ought not to bo concluded by allegations which lie may deem it to the interest of tho estate to make, in a suit brought by him iu his capacity as administrator.
    Where a husband and wife remove with slaves to this State, from a State where tho common law prevails, it is the presumption of our law that the husband is the owner of the slaves.
    APPEAL from the District Court of the Parish of Franklin, Mayo, J.
    C. H. Morrison and Harper & Grice, for plaintiff.

      Baker & Harris, for defendant and appellant.
   Merrick, C. J.

The plaintiffs sue as the heirs of Margaret Hopper, the deceased wife of Richard Martin, to recover certain slaves which they allege belonged to the deceased in virtue of a deed of gift executed in the State of Mississippi.

Plaintiffs fail to produce any title to the property in their ancestor, and rely entirely upon certain alleged judicial admissions of the defendant.

The defendant avers that he acquired the slaves in controversy by virtue of a Sheriff sale, under an execution issued against Richard Martin and P. Tiffie, administrator of Callett Tiffie, deceased. The testimony in the record, independent of the judicial admission, is sufficient to establish title to the slaves in Richard Martin, prior to his sale to Callett Tiffie and the judicial sale to the defendant on the 5th day of February, 1848. It does not appear that the slaves in controversy were ever in the possession of the defendant, prior to his purchase at the Sheriff’s sale, and, consequently, could not have been in his hands, as administrator, prior to his purchase.

The judicial admissions relied upon are,

1st. An application for letters of administration of the estate of Margaret Hopper, and accepting the appointment and signing the inventory in which the negroes were described and appraised.
2d. A petition in his capacity of administrator and a sequestration bond in the case of Richard Boler, administrator, v. Richard Martin et al.

I. The recital in the petition for letters of administration relied on as a judicial confession, is the following, viz : “ 'Wherefore, inasmuch as there is considerable property consisting of negroes and stock belonging to said estate, also debts due by her as partner in community with her said husband, your petitioner prays,” etc. It is evident that a general allegation of this kind cannot estop the party making it, further than it is clearly shown to embrace certain specific property to which it was designed to apply. Petitions for letters of administration are usually in a similar form to this; yet this, we believe, is the first time that it has been contended that a general allegation bound the widow, the heir or the creditor to an admission of title to whatever should afterwards be embraced in the inventory.

But it also appears that the defendant signed the inventory in which the negroes in controversy were appraised as the property of the intestate, in his capacity of administrator.

We infer from the testimony that the property did not go into the possession of the defendant as administrator, for we find him a few days after the inventory was made instituting suit, in his capacity of administrator, to recover the same from Richard Marlin.

The administrator’s bond was for only $500, whilst the property was appraised at $1000, and one of the witnesses swears that Richard Martin continued in possession of the property until he sold to Callet Tijfie. The question is, therefore, not embarrassed by the fact of possession in an administrator, when called upon to account for effects coming into his possession as such, but is a mere question of ownership and title. We can, therefore, see no reason of policy, nor do wo find any provision of law which prevent the defendant from showing that he signed the inventory under an error of fact. Non fatetur qui errat nisi jus ignoravit. Dig. lib. 42, t. 2, s. 2; C. C. 2270; 6 An. 398.

II. On the second ground we find that the inventory was made on the 2d day of November, 1846, and on the 18th day of December following, the defendant, in his capacity of administrator of the Succession of Margaret Martin, filed a petition in the 11th District Court for the parish of Franklin, against Richard Martin and Callelt Tijfie, wherein he explicitly alleged that said negroes were the property of the deceased and belonged to her succession, or at least to the community, and he prayed for a writ of sequestration and judgment against the defendants. He also annexed an affidavit to his petition, in which he stated the negroes would be removed out of the jurisdiction of the court. The affidavit was silent on the question of title. The suit was dismissed on motion of plaintiff’s counsel on the 10th of March, 1848.

It appears to us that the allegations in this suit cannot bind the administrator personally. They must be viewed as made on behalf of the estate, and, we think, an administrator or person holding a trust ought not to be concluded by the allegations which he deems it the interest of the estate should be made. He ought not to be compelled to weigh his words in order to ascertain whether they might not some day be used against him individually, but should rather be considered as the organ of the succession and using the language on behalf of the same. And this we understand to be the doctrine of the civil law.

Souvent aussi, le mot personne n’indique que la qualité en vertu do laquolle quelqu’un a certains droits et est soumis a cortaines obligations. II arrive done fréquemment qu’un soul homme réunisse dans sa personne plusieurs de ces qualités (ut unus homo plures sustineat personas), et que par la sos droits et devoirs différent les uns des autres. II faut done, dans ce cas, examiner d’abord en quelle qualité il a agi; et co qu’il fait en telle qualité, no peut lui préjudicier en telle autre. II ne peut, d’un autre coté, transferee les privileges qui Ini appartiennent en telle qualité, a des droits qu’il a en telle autre qualité. Mackeldey, partie générale, sec. II, No. 122.

We, therefore, conclude, that the judicial confession made by the defendant, in his capacity of administrator, was not conclusive upon him. He appears to have been a creditor seeking to recover his debt. At the time he applied for letters of administration, it cannot be presumed that he was accurately informed of tho source of the title to the property.

He had the right at his own peril to dismiss his petitory action against Martin and Tiffie. The proof now shows that he was justified in doing so.

Richard Martin held the mother of the negroes in controversy, as owner in the State oí Mississippi, two or three years prior to his removal to Louisiana in 1838, and after his removal he claimed to be the owner, and held the slaves as such, until he sold them to Tiffie. It appears that he acquired said negroes from one David Thompson, between 1834 and 1837. Removing with the slaves from a State where the common law then prevailed, it is the presumption of our law, that the husband was the owner. Penny v. Weston, 4 Rob. 165.

It being shown that the slaves belonged to Richard Martin, nothing prevented the defendant from purchasing the same at the Sheriff’s sale. He was not a trustee for Martin, and violated no trust in purchasing property under the sale made on his judgment. Praintiffs assert title, and they must show themselves to be owners before they can complain of the acts of Richard Martin, their father, or the defendant, as possessor of property acquired through him.

This view of the casé renders it unnecessary to examine the bills of exceptions and other questions presented by the record and the briefs.

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 the defendant and against the demand of the plaintiffs, and that the plaintiffs pay the costs of both courts.


author: Oole, J.

text:
    Daniel Cole v. Oglesby & Griswold.
    The plaintiff had stored his cotton in defendant’s warehouse and taken a receipt, in tho margin of which were inserted tho words “ Fire-proof Warehouse.” The same words wore inserted at the head of their advertisements in the papers. Held: that the words so inserted formed no part of tho contract, and that without proof of tho plaintiff having been deceived thereby, or of fraud, or an attempt to deceive, the defendants could not be rendered liable for the loss of tho cotton by fire.
    APPEAL from the District Court of the parish of Oaddo, Egan, J.

      Hodge fy Austin, for plaintiff and appellant.

      Crain & Nutt, for defendant.
   Oole, J.

This suit is instituted to recover of defendants the value of seventy-five bales of cotton, alleged to have been stored with them as warehousemen by plaintiff, in October and November, 1853, in the city of Shreveport, and which was destroyed by fire in their warehouse.

It appears that the warehouse in which the cotton was consumed, was not fireproof ; and plaintiff seeks to hold defendants liable, on account of the insertion of fire-proof warehouse ” in their receipts for the cotton and in their advertisements in the newspapers. Plaintiff alleges that defendants induced him to store his cotton in their warehouse by representing it, by these advertisements and receipts, to be fire-proof.

The defendants deny any express or implied contract with the plaintiff beyond the quasi contract implied by the law of bailment.

This case was tried twice; the first jury could not agree, the second rendered a verdict for defendants, and plaintiff has appealed.

The first question that arises is, whether the insertion of “ fire-proof warehouse ” in the margin of the warehouse receipt and at the head of their advertisements in the papers would be .alone sufficient to create a contract between plaintiff and defendants, by which the latter would be bound to store the cotton of the plaintiff in a fire-proof warehouse, or suffer, in the event of the destruction of the cotton, the consequences of a breach of contract.'

The receipts are in this form,:

No. 71. Oglesby & Griswold’s Fire-proof Warehouse.
“ Eoceived, Shreveport, La., October 21, 1853, of P. Cole, five bales of cotton on storage, subject to order or shipment.
Marks, ‘ D. Cole.’ Oglesby & Griswold.”
The advertisement was as follows :
“ Fire-proof Warehouse.”
Oglesby & Griswold are now ready to receive cotton and all description of goods on storage, and would respectively solicit a share of public patronage.”

The insertion of the words “ fire-proof warehouse ” at the head of the cotton receipts and advertisements, did not constitute any part of the contract between plaintiff and defendants, so far as it is only proved by this species of evidence.

It is usual to put in the caption of receipts and advertisements words either to designate the building where business is conducted, or to attract attention ; sometimes pictures are placed on the margin of receipts and advertisements.

The objects of such words and pictures are well understood by the public, and they deceive none but those not versed in the ways of the world: they are not viewed by the public as constituting a part of the contract between the advertiser and the one that gives the receipt, and those that deal with them.

Although the insertion of “ fire-proof warehouse ” in receipts and advertisements would not alone suffice to be the basis of a contract between the parties to this suit, yet if defendants had made use of these words in his receipts and advertisements in bad faith, and had sought with them to create an impression in the mind of plaintiff, that his warehouse was fire-proof, and had used means other than the mere advertisement and receipt to impress plaintiff with this belief, then they might, under certain circumstances, be liable to compensate plaintiff for loss that he might have suffered on account of the warehouse not being fire-proof.

In the case at bar there is no evidence of such an attempt on the part of defendants, except the testimony of one witness, whose character has been impeached.

Besides, it does not appear that plaintiff was induced to store cotton with defendants on account of believing that their warehouse was fire-proof.

There was no advertisement in the years 1852 and 1853, and there is no proof in the record, either that plaintiff ever subscribed to the papers in which the advertisements appeared, or ever saw the advertisement.

Plaintiff must have been acquainted with the town of Shreveport, and must have known the nature of the warehouses of defendants. It would at least have boon easy for him to have given his written directions to defendants.

As there is no proof of fraud or an attempt to deceive on the part of defendants, and as the words “ fire-proof warehouse ” constitute no part of tho contract between the parties to this suit, plaintiff cannot recover.

Judgment affirmed with costs of appeal.


author: Spojtord, J.

text:
    Eliza Robertson v. A. L. Mershon.
    The hare fact that an inconsiderable portion of a settlement, or clearing, happens to extend into a section of swamp and overflowed land,—when tho main body of tho settlement, including the settlor’s dwelling, is upon land never donated to the State by the United States,—does not authorize the sottler to claim the swamp and overflowed section by right of pre-emption under our State laws.
    APPEAL from the District Court of the parish of Morehouse, Richardson, J.

      Newton fy Hall, for plaintiff and appellant.

      W. H. Compton, for defendant.
   Spojtord, J.

The plaintiff claims a right of preference to enter the west half of section No. 17, in township 21, range 7 east, it being apart of the swamp and overflowed lands granted to the State of Louisiana by the Acts of Congress approved 2d March, 1849, and 28th September, 1850. Her claim is grounded upon the Act of the Legislature of Louisiana approved March 17th, 1852, sec. 2, (Sess. Acts, p. 167,) as amended by the subsequent Acts of March 10th, 1853} (p. 22,) March 16th, 1853, (p. 35,) April 28th, 1853, (p. 156,) March 15th, 1855, (p. 259,) and March 19th, 1857, (p. 192.)

Her deceased husband made the “ settlement ” by virtue of which she sues. She is his universal legatee, having lived with him upon the place he settled before his death, and residing upon it still.

She owns some 800 acres of land in the neighborhood, principally in section 18, which adjoins the half-section in controversy. The dwelling house is in section 18, about a quarter of a mile from the division line between sections 17 and 18. Neither she nor her husband ever actually resided upon section 17. The groat bulk of them “ improvement ” was upon another section. The field, which they had fenced in, extended into section 17 so as to embrace four or five acres only of the last named section. There are said to be about thirty or forty acres deadened on section 17.

Under this state of facts, and without deciding the question whether the dwelling-house of the settler must, in all cases, be upon the particular tract which he seeks to enter by preference under tho Louisiana statutes cited above, we think the judgment of the District Court cannot be disturbed.

The bare fact that an inconsiderable portion of a settlement, or clearing, happens to extend into a section of swamp and overflowed land,—when the main body of the settlement, including the settler’s dwelling, is upon land never donated to the State by the United States,—does not authorize the settler to claim the swamp and overflowed section by right of preemption under our State laws.

Judgment affirmed.


author: Cole, J.

text:
    Dennis Rooks v. Mary Williams, Administratrix, and Sheriff.
    Allegations that a judgment was obtained through fraud and other ill practices, are too general to authorize the arrest of its execution.
    Where a judgment is sought to be executed after the person’s death, in whose favor it was obtained, it is not necessary that the /t. fa. should issue in the name of the deceased person’s legal representatives.
    Where a case is tried upon an exception alone, the allegations'in the petition are taken as truo, except where evidence has been admitted on the trial, which negatives the truth of those allegations.
    APPEAL from the District Court of the parish of Morehouse, Mayo, J.

      8. Q. Parsons, for plaintiff and appellant.

      Todd fy Bryham, for defendant.
   Cole, J.

This action is instituted to annul a judgment rendered in the District Court of Morehouse, in the suit of J. C. Williams v. Rooks & Douglas, which judgment was affirmed by the Supremo Court.

The grounds of the petition will be considered in their order.

1. “ Because no legal citation was served on the defendant, Rooks.” It is a sufficient answer to this to state, that an answer was filed by Rooks and his co-defendant.
2. “No issue was joined, either legal or tacit.” This is contradicted by the answer of Rooks fy Douglas.
3. “ Because the judgment sought to be annulled was obtained through fraud and other ill practices on the part of /. C. Williams.” This allegation is too general to authorize the arrest of the execution of a solemn judgment.

In the same petition plaintiff obtained a writ of injunction, based upon the following additional grounds :

1. “ That the fi. fa. improperly issued in the name of /. C. Williams, instead of his legal representatives.”

This could not injure plaintiff, for he could have been relieved of all difficulty as to the legality of the execution, by paying the judgment to the administrator of J. C. Williams or to his legal representatives.

2. “ That the execution issued for the recovery of rent for an improvement on public land, which had not been in possession of plaintiff since February, 1855, and which land had been sold by the government of the United States to one Z. Mills.”

This objection was one to be considered in the original suit, and is not a ground for an injunction.

Without then taking into consideration the peremptory exception filed by defendant, we think that the injunction could have been dissolved.

Plaintiff avers, that as the suit was tried on an exception alone, that all the allegations in his petition are to be taken as true.

This is generally correct; but in this case evidence was admitted, which negatived the allegations in plaintiff’s petition.

The injunction was dissolved with twenty per cent, damages; there is no error in the same.

Judgment affirmed.


author: Buciianan, J.

text:
    John Ballew v. Felix Bobb, Sheriff.
    A Sheriff cannot bo hold responsible for property seized by his predecessor in office, without proof that tho property so seized had como iuto his possession, or that ho had bound himself in some way for its production.
    APPEAL from the District Court of the Parish of Catahoula, Mayo, J.

      A. B. Hendry, for plaintiff.

      Smith Spenser, for defendant and appellant.
   Buciianan, J.

On the 1st June, 1853, the Sheriff of Catahoula parish, D. M. Pritchard, seized and took into his possession one hundred and fifty head of cattle and one hundred hogs, under a fi. fa. issued in the suit of Thomas C. Ballew v. Benjamin P. Curry, in execution of a judgment rendered in that suit in favor of plaintiff against defendant. The sale of the property thus seized, was enjoined upon the petition of a third opponent, who claimed the property. This injunction was dissolved by a final judgment of the Supreme Court at Monroe, in the July term of 1856.

The Sheriff, who had made the seizure, had, in the mean time, gone out of office and been succeeded by Timothy Spann, who qualified as Sheriff of Catahoula on the 11th January, 1854. Spann’s term of office had also expired, and Felix Robb had been elected Sheriff, who qualified March 13th, 1856. The present suit is brought to render the defendant liable for the amount of the judgment of Ballew v. Curry, for not having advertised and sold the property seized by his predecessor in office, Pritchard, under the execution, although formally required by plaintiff to do so. The defendant pleads specially that said property never came into his hands.

Upon this point, the evidence is, that all the papers found in the Sheriff’s office were taken possession of by T. Spann, as Sheriff, and by him delivered to Robb, his successor in office; but there is no evidence as to what became of the cattle and hogs seized by Pritchard, after the seizure, except the return of Pritchard, which states that he placed the plaintiff in execution (Thomas C. Ballew,) as keeper. Thomas C. Ballew appears to have left the parish and moved to Texas in November, 1853, and to have died in Texas some time previous to the 14th of March, 1854, when his brother (the present plaintiff) applied for and obtained letters of administration on his estate.

Upon this state of facts, we are of opinion that the plaintiff is not entitled to judgment against this defendant. The latter cannot be held responsible for property seized by his predecessor in office, without proof that tho property so seized had come into his own possession; or that he had bound himself, in some way, for its production, or that he was guilty of some neglect in taking possession.

The plaintiff’s petition alleges that the defendant was surety upon the official bond of his predecessor, Spann. But there is no proof of this in the record, although the defendant’s plea of the general issue, put plaintiff upon the proof of this fact. And even had it been proved, it would have been further necessary to show a privity of contract between Spann and Pritchard, which is neither proved nor alleged.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and that there be judgment in favor of the defendant, as in case of nonsuit, with costs in both courts,


author: Spofs-obd, J.

text:
    State of Louisiana v. John A. Whetstone.
    The language of a penal statute is not to be stretched by construction beyond its natural meaning.
    APPEAL from the District Court of the parish of Morehouse, Richardson, J.

      F. P. Stubbs, District Attorney, for the State.

      S. G. Parsons, for defendant and appellant.
   Spofs-obd, J.

The defendant has appealed from a judgment condemning him to pay the State eight hundred dollars, it being the penalty of fifty dollars per month for sixteen months, during which he is alleged to have violated the 18th section of the Act of 7th June, 1806, (Sess. Acts, p. 209,)—“ No person occupying, or being owner of a plantation, shall be permitted to keep such slaves on his plantation, without having a white, or free colored man as manager or overseer, under the penalty of fifty dollars for every month elapsed without complying with the provisions of this section.” See Greiner’s Dig., No. 3417.

The evidence is that the defendant owns two tracts of land in the parish of Morehouse, separated from each other by a forty acre lot owned by another person, who resides thereon; that defendant’s house is on one of these tracts, and his principal negro quarters and gin on the other, something less than a mile apart; that he works fifteen or twenty hands, who cultivate both the house and the quarter tract, some of them sleeping at the house and some of them at the quarter, but all of them getting their daily rations at the house; that he has about 200 acres in cultivation in corn and cotton at the house place, and about 180 acres at the other; that he had an overseer the greater part of the time for which the penalty sued for is claimed, and that he acted as overseer the rest of the time himself; and that both his overseer and himself slept at the house on the house place, and no white or free colored person slept at the quarter on the other place,, although the overseer was usually there until after dark, and before day in the morning.

Under these facts, we do not see wherein the defendant can be held to have violated the 18th section of the Act of 1806. His two tracts of land lying- in close neighborhood, are cultivated by him as one plantation, with the same set of hands. He has always had a white man as manager or overseer of this plantation and those hands. The Act of 1806 does not prescribe where the manager or overseer shall sleep. The language of a penal statute is not to be stretched by construction beyond its natural meaning.

It is, therefore, ordered and decreed, that the judgment of the District Court be ' avoided and reversed, the verdict of the jury set aside, and that there be judgment for the defendant.


text:
    Mary Meadows v. Robert L. Dick, her husband.
    In a contest of title between husband and wife, and when the property given to the wife has boon entrusted to the husband as hor agent, he cannot sot up the plea of prescription.
    Whero the husband has no adverse title, ho cannot defeat his wife’s claim to property on account of technical defects in her title, nor can he, being her agent, refuse to surrender the property on account of defects in the title of his principal.
    APPEAL from the District Oourt of the parish of Union, Egan, J.

      Baker & Harris and J. L. Barrett, for plaintiff and appellant.

      McGuire & Ray, for defendant.
   Oole, J.

The petitioner alleges she is the owner of certain negroes, and is entitled to the separate administration and control of the same ; she prays to be decreed their owner, to be vested with their separate administration, and also to be divorced from her husband.

There was judgment of nonsuit, and plaintiff has appealed.

It appears from a “ deed of gift,” executed in Alabama in 1849, that the father of plaintiff donated to her two slaves, one of which has since had three children.

Petitioner and her husband were married together in the State of Alabama in 1836, and moved to Louisiana in 1840; they brought with them Martha, one of the slaves mentioned in the act of donation, who had been loaned to plaintiff by her father for a nurse.

Afterwards, they visited Alabama, and on thoir return in 1841 brought with them Peggy, the other slave named in the deed.

The evidence clearly establishes, that the slaves were loaned to the wife for her use and subsequently were donated to her.

Defendant avers that he has been in possession of thorn, as owner, for a time sufficient to perfect the prescription applicable to slaves, and pleads the same; he further avers that the private act of donation can have no legal effect, and that the parol evidence was inadmissible.

When the contest is between husband and wife, and property given to the wife has been entrusted to the husband as her agent, the husband can not set up the plea of prescription. C. C. 3489.

It would also be improper to allow the husband, when he has no adverse title, to defeat Ms wife’s claim on account of technical defects in her title; he receives the property as agent, he cannot change the nature of his tenure, nor can ho, as agent, refuse to surrender it on account of defects in the title of his principal.

The allegations for a divorce are not sustained.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed ; further, that plaintiff is decreed to be the owner of the slaves described in the petition, to wit: of Peggy, of Martha and her three children, Ann, Elias and Sylva, and the separate administration of said slaves is given to plaintiff; it is further ordered and decreed, that the writ of sequestration sued out by plaintiff be sustained, that the Sheriff of the parish of Union be and is hereby ordered to deliver said slaves to plaintiff: it is also ordered, that there be judgment, as in case of nonsuit, for the claim of plaintiff for a divorce from defendant, and that defendant pay the costs of both courts.


author: Sfoeeord, J.

text:
    Succession of Arthur Yarborough—Opposition of R. W. Arnett et al.
    Under the Act of March, 1862, entitled “ An Act to provide a homestead for the widow and children of a deceased person,” the widow, when there arc no surviving children or other descendants of the deceased, takes the bounty provided by said Act in full property ; but where there are children or other descendants, she has merely a usufructuary right to it.
    APPEAL from the District Court of the parish of Bossier, Egan, J.

      Landrum & Williamson, for plaintiff and appellant.

      S. Wills, for defendant.
   Sfoeeord, J.

Arthur Yarborough died in 185V without ascendants or descendants, leaving a widow in necessitous circumstances, not possessing in her own right property to the amount of $1000.

She claims the sum of $575 from the succession of her deceased husband by virtue of the Act of March 17th, 1852, p. 171, entitled “ Am Act to provide a homestead for the widow and children of deceased persons.” This sum was awarded her by the District Judge, as it was admitted that she had in her own right property of the value of $425. The attorney for absent heirs has appealed.

It is contended that the widow could only claim this sum in usufruct, and that even the usufruct was forfeited by her second marriage, which took place before her claim was interposed.

The statute upon the construction of which this case tons is carelessly and obscurely framed. The first section is in the alternative, and declares that “ whenever the widow or minor children of a deceased person shall be left in necessitous circumstances and not possessed in their own right of property to the amount of one thousand dollars, the widow, or the legal representatives of the children, shall be entitled to demand and receive from the the succession of their deceased father or husband a sum which, added to the amount of property owned by them or either of them, in their own right, will make up the sum of one thousand dollars, and which said amount shall be paid, in preference to all other debts, except those for the vendor’s privilege, and expenses incurred in selling the property.”

If this section had stood alone, the inference would be that the indigent widow would take the bounty in full property ; and if there were no necessitous widow, but necessitous children of the deceased person, then such children would take the bounty in full jiroperty, and, in either case, the right of the claimants would vest instantly upon the death of the husband or father.

But the second section modifies the right of the necessitous widow in this wise: “ that the surviving widow shall have and enjoy the usufruct of the money so received from her deceased husband’s succession, during her widowhood, afterwards to vest in, and belong to, the children or other descendants of said deceased.”

No provision is made for the naked property when there is a needy widow surviving, save in the case where the deceased leaves children or other descendants. We, therefore, infer, that the absolute right given to the widow by the terms of the first section of the law is modified into a usufructuary right only in cases where children or other descendants survive the deceased. If he dies without leaving any descendants, the necessitous widow takes the bounty in full property, and not in usufruct merely.

Such is the construction we have given to this law in a recent case at New Orleans.

Judgment affirmed.


author: Buciianan, J. Merrick, C. J.

text:
    Ann M. Downs v. Charles H. Morrison.
    Money belonging to the wife, received by the husband during the marriage, constitutes a charge against the community.
    APPEAL from the District Court of the Parish of Ouachita, Mayo, J.

      Baker & Harris, for plaintiff.
    C. H. Morrison, for defendant and appellant.
   Buciianan, J.

The only question of law which this case presents is, whether the amount of the paraphernal effects received by the husband in cash, during the marriage, is a debt of the community or a debt of the husband’s separate estate.

It is admitted that the community of acquests between plaintiff and the testator was worth over fifty thousand dollars, and that plaintiff has accepted the community, and has received her portion.

The testator has left, besides, a large separate estate.

It thus interests the plaintiff to have her husband’s separate estate charged with the debt which he has contracted by the receipt of her paraphernal funds ; because, if charged to the community, her share in the net assets of the community will be reduced by one-half of the debt so charged. In Harrell v. Harrell, 12 A. 550, it was held that moneys inherited by the wife during marriage, and received by the husband, constituted a charge against the community. The same thing was decided in Mercier v. Canonge, 12 Robinson’s Reports; Civil Code, Art. 2372.

The amount of cash received by General Downs for account of his wife, the plaintiff, from her father, during marriage, is correctly stated in the judgment of the District Court at $4378 97. This being a debt of the community which has been dissolved and settled, the plaintiff is entitled to recover one-half the amount from tho executor of her husband; the other half being extinguished by confusion. 4 Rob. 175.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed ; and that plaintiff recover of defendant, in his capacity of executor of Solomon W. Downs, the sum of two thousand one hundred and eighty-nine dollars and forty-eight cents, with costs of the District Court; those of appeal to be paid by plaintiff and appellee.

Spofford, J., dissenting. As between husband and wife, I think the husband’s separate estate should be held responsible to her for the paraphernal property, including money, received by him during the marriage, unless it be shown affirmatively that he used the proceeds of the property, or the paraphernal money, to swell the community.

When he or his legal representatives do not account in any way for her paraphernal funds admitted to have been received by him, the presumption should be that he applied them to his individual use rather than to the aggrandizement of the community.

I think the judgment appealed from should, therefore, be affirmed.

amended decree.

Merrick, C. J.

The parties having consented to waive the time upon the application for a re-hearing and that a decision of the court be now rendered upon said question of interest, it is ordered that the judgment rendered by us in this case be amended so as to award the said Ann M. Downs five per cent, interest on said sum of $2189 48, from the 21th day of April, 1851, until paid, and that in all other respects said decree remain undisturbed.


text:
    Tutorship of Melinda J. Hughes—Opposition, &c.
    A judgment confirming tlie appointment of a testamentary tutor to a minor, cannot be treated asan absolute nullity by an application for another appointment, nor can it be attacked collaterally in tbo form of an opposition. A direct action should be brought to annul it.
    APPEAL from the District Court of the Parish of Ouachita, Richardson, J.

      McGuire § Ray and Stubbs fy Jamison, for appellee.
   Spofford, J.

The appeal in this case is not from the judgment of the 16th of December, 1851, recognizing the instrument signed by Mrs. Bradley, deceased, as her last will, and ordering it to be executed as such; but it is an appeal from the judgment of the 21st December, 1851, upon William Hughes’ so called opposition, filed on the 18th of December, and his supplemental application of the same date.

The District Judge considered his judgment of the 16th of December, ordering the execution of an alleged will of Mrs. Bradley, whose only disposition was to appoint her husband tutor of her minor child, Melinda Jane Hughes, as a judgment confirming this appointment of a testamentary tutor, which confirmation had been expressly prayed for in the petition of Mr. Bradley for the probate of the will; to that petition there was no opposition filed.

We cannot say that the Judge erred in this construction, given to his own judgment; and the correctness of the judgment itself cannot be inquired into now, because that judgment is not appealed from.

Considering that decree as a judgment confirming Mir. Bradley as testamentary tutor of the minor, it is obvious that it could not be treated as an absolute nullity, or attacked, collaterally, in the form of an opposition, or an application for an appointment to a place already filled. The appellant should resort to a direct action.

Judgment affirmed.


author: Merrick, O. J.

text:
    Martha Clark v. James O’Neal.
    Tho neglect of tho voncleo to havo the act of salo recorded whereby a creditor of the vendor is enabled to attach the proporty and have it sold for his debt, docs not release the vendor from his obligation of warranty.
    APPEAL from the District Court of the Parish of Caddo, Creswell, J.

      Landrum & Williamson, for plaintiff.

      Land & Winans and Hodge & Austin, for defendant and appellant.
   Merrick, O. J.

This suit is brought upon two promissory notes given as the price of a tract of land. The defence to the action is the failure of consideration. It appears that in March, 1849, the plaintiff sold the defendant the land by an act under private signature. The act of sale not having been recorded in November, 1850, one Robert Burns instituted a suit by attachment against tho plaintiff, before a Justice of the Peace in the parish of De Soto, where the land is situated. After the return of citation and attachment was made, showing that they had been served, judgment was rendered against the defendant in that suit. Execution having issued on the judgment, directed to the Sheriff, he seized the tract of land as. the property of Mrs. Clark, and after advertising the sale, sold it for the sum of $75 cash.

In regard to the judgment, it does not appear that Mrs. Clark ever made any effort to have it set aside, or even took an appeal from it. It acquired the force of the thing adjudged, and must be held to have been rendered in conformity to law and for a just debt. As between herself and Burns, it was her duty to pay the debt; to acquit and discharge her obligation resulting from her debt, and the judgment of the court and the law. Instead of fulfilling her obligation in this respect, she suffered the property which she had sold, and which she had covenanted to warrant and defend, to be seized to pay her debt. The record does not show that she made any effort to relieve the property or even to substitute the promissory notes given as the price (and which she still held), in the place of the seizure of the land.

The mere fact that the vendee had neglected to record the act of sale did not release the plaintiff from her obligation to warrant the title. The unregistered act has its full force between the contracting parties, so much so, that a second sale of the same property to a third party is viewed as a fraudulent act. C. C. 2417; Rev. Stat. 453.

The sale being valid between the partios, and having force as such, the rules of law in regard to warranty, have their application.

The seller is bound to deliver and warrant the thing which he sells. C. C. 2450. The warranty respects the buyer’s peaceable possession of the thing sold (C. C. 2451) and the vendor warrants the buyer against the eviction of the whole or a part of the same. C. C. 2477.

The proof shows that the defendant has violated this obligation by a neglect of her own duties, and she has suffered the property to he sold for her own debt, and thus has she been instrumental in evicting her own vendee, and thus has she hound herself to maintain the new vendee in possession. C. P. 711, 712, 713 ; 6 La. 737.

But it is said that Art. 2478 0. 0. exempts tho defendant from this sort .of eviction. This Article, it is true, declares that in order that the warranty should have existence, the right of the person evicting should exist before the sale. But this evidently applies to some right acquired of persons other than the vendor himself. The last paragraph of the Article says : If, therefore, this right before the sale was only imperfect and is afterwards perfected by the negligence of the buyer, he has no claim for warranty.” Now an example or two will at once show that the Article has no application to the acts and omissions of duty of the vendor. Take this case : A sells a tract of land to B for $10,000, B, having the utmost confidence in A’s integrity, omits or is prevented from recording his act of sale. Thereupon A sells the same land to 0, an innocent purchaser, for $11,000, and C records his title. C sues B to recover the land. B cites A in warranty. A defends the demand of B in warranty on the ground, that O’s right did not exist at the date of the sale, and cites the Article 2478 in support of his position. Will it avail him ? Again, D sells E a tract of land for $10,000, but before the act is recorded, a recent judgment creditor of D seizes the land and sells the same and pays a debt of D’s of $10,000. Is E to lose his money ? It is apparent to every one how these questions must be answered. We think, therefore, that the obligation of warranty continued upon the plaintiff, although the act of sale was not recorded, and that the defendant has a valid defence to the notes, both under the Civil Code and the commercial law. 8 La. 547.

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

Spoffokd, J., took no part in the decision of this case.