text:
    Parham and Lowry v. S. M. Cobb and O. B. Cobb and W. H. Harris.
    The bond given by one partner to obtain an injunction against his copartner, is the property of the latter,^md not of the partnership.
    The right of action upon the hond arises immediately upon the dissolution of the injunction.
    The death of the principal in an injunction hond, is no reason for arresting the suit against the surety: his is a solidary obligation.
    Where the condition of the injunction bond given by the obligors, is to pay such damages “ as the defendant may recover against them,” the phrase “ may recover against them,” i applies to the surety in the same manner as it does to the principals. Recovery against the principals is not a prerequisite, therefore, to an action against the surety.
    APPEAL from the District Court of the Parish of Madison. Richardson, S.

      Snyder and Hynes, for plaintiffs.

      William Perkins, for defendants.
   By the court:

Preston, J.

The circumstances out of which the present suit originated, are stated, with some detail, in the case of Cobb and Husband v. Parham and Lowry, 4th Ann. 148.

This court affirmed the judgment of the District Court for the parish of Madison, dissolving an injunction obtained by Mrs. Cobb and Husband, against the execution of an award of arbitrators and amicable compounders of suits and controversies which had existed between them and A. J. Lowry in relation to a plantation and slaves, and the crops thereof, held in joint ownership by them. The award had been homologated by the court, and William S. Parham, in pursuance of its terms, appointed agent of the parties to carry it into effect.

To obtain.the injunction, the plaintiffs gave bond, with the present defendant, A. H. Harris, as their surety, in the sum of three thousand dollars. In dissolving the injunction, the district court, by its judgment, which was affirmed by this court, reserved the right of the defendant, Lowry, to sue for damages, or upon the injunction bond if he chose.

The present suit is brought upon the injunction bond against Mrs. Cobb and Husband and their surety, the plaintiffs alleging that they have suffered damages to more than the amount of the bond in consequence of the injunction. Mrs. Cobb died during the pendency of the suit. Its prosecution has been continued against Harris, the surety. Judgment has been rendered against him for the amount of the bond, and he has appealed.

It is contended that, by the terms of the bond, he is liable only for the amount which Lowry may recover against Cobb and Wife, his principals; that no judgment has been rendered against them, and, therefore, none can be had against the surety.

The terms of the bond referred to, are thus expressed: “ Now, the condition of the above obligation is such, that if upon the trial of this suit it shall be decided that the injunction obtained is illegal, and unjust and contrary to law, and if the said S. M. C. and A. B. Cobb and William H Harris, shall well and truly pay and satisfy all such cost's and damages as the said Parham and Lowry may recover against them in case it shall be decided that the said writ of injunction has been wrongfully obtained, then this obligation to become null and void, otherwise to be and remain in full force and virtue.” It is said, by these terms, there can be no judgment against the surety until there be a recovery against the principals.

The peculiar terms of this bond which gives rise to the argument are these : “Such damages as Parham and Lowry may recover against them.” The accusative pronoun, them, refers to Harris as well as Cobb and Wife, and all being bound in solido does not affect the right of recovery against either. The phrase “may x’ecover against them,” considering the object of the bond, means the right to recover, rather than the fact of recovery. It is surplusage^n the instrument, and if it throws any obscurity upon it we must x’efer to the condition of the bond required by the Code of Practice in order to obtain an injunction, and thus remove the obscurity by the legal condition of injunction bonds, to which, it is the presumption of law, that the parties intended to obligate themselves. “ In order to obtain an injunction, the party applying for the same must annex to his petition his obligation in favor of the defendant for such sum as the court may determine, after having examined what injury the defendant may sustain from such injunction, with the surety of one good and solvent person, to secure the payment of such damages as may have been sustained by the defendant in case it should be decided that the injunction had been wrongfully obtained.” Art. 304. This is substantially the condition of the bond in the present case, and neither more nor less.

The death of Mrs. Cobb is no reason for wresting the suit against her surety. They bound themselves in solido, and the sux-ety is liable severally for the amount of the bond, if damages have been suffered to that amount.

It is next contended, that Lowry and Mrs. Cobb were partners in the plantation and slaves, and that the damages claimed in this suit grow out of the partnership ; that therefore the partner cannot sue for them alone, but only for a general settlement of the partnership. The award of the amicable compounders fixed the mode in which the partnership should be conducted. The injunction was ohtained in violation of the award. It was, therefore, a violation of the rights of the other partner, sanctioned by a judgment of that character that commands the most favor with all men. Now the bond required, in order to obtain an injunction against a judgment, is provided by law, in order to place the parties in statu quo, if it should be decided that it was unlawfully obtained. If the injunction has caused the plaintiffs’ damages, the parties are notin the situation in which they were before the injunction. Yet, it is an equitable writ, and he who claims equity must give assurance that equity shall be done. It would not afford an equitable indemnification that the partner, whose rights being judicially ascertained, are afterwards violated by an injunction, should merely have a claim for damages at the winding up of the partnership. On the contrary, as soon as the injunction is dissolved, the bond given for this equitable process should place him in the situation he was before the injunction issued. The long and ingenious argument of the defendants’ counsel, on this subject, tends to this conclusion alone, that the bond is an asset of the partnership, which cannot be sued upon by one of the partners. We think, on the contrary, that it belongs to the defendant in injunction alone, and is given to him by law, to indemnify him against the losses he has sustained by the injunction of his rights, unjustly obtained,

Arriving, then, at the merits of this controversy, we will state the objects of the parties in forming the partnership, and the means of accomplishing that object, in the clear and precise manner stated by their amicable compounders. It is somewhat lengthy, but that statement and a very short examination of events, subsequent to the award, will be decisive of the present case.

They say: “ The evidence has developed circumstances that render it now impossible that the contracts (by which the parties became joint owners of the plantation and slaves, and regulated their partnership,) can be executed in the precise manner contemplated by the parties, whether we adopt the construction contended for by one or the other. But there are considerations that entered into and made a part of those agreements, and which, we believe, were a moving cause to the making of them, and deemed by both parties essential to their mutual interests and common protection, which we cannot overlook, and which we feel bound by every principle of justice and equity to enforce to the fullest extent of the powers conferred upon us.”

“ At the date of the sale, in 1S43, of an undivided half of the property by Mrs. Cobb to Lowry, she was indebted to him in a large amount of money, some forty thousand dollars, the payment of which he did not consider secure. The property owned by her, and sold to him, was mortgaged to Burke, Watt 8f Co. and to the heirs of Edward Mitchell, for upwards of forty thousand dollars, an amount sufficient, at that time, to have sacrificed, at a forced sale, the whole or a large portion of it. Lowry had a small force which he could put upon the place. On . the one hand, Loivry was in danger oí losing the whole or a large portion of his debt, in consequence of the mortgages existing on the property of Mrs. Cobb. On the other, she was almost sure of losing the whole property from the combined claims of Lowry and the mortgage creditors.

“ Hence it was natural that they should have made precisely such an agreement as they did make on the 10th of April, 1843, by which she sold to Lowry the undivided half of the Buckhorn plantation and slaves, and received as a consideration the release from the heavy debt owed by her to him, and also acquired a title to the undivided half of sixteen slaves, thus creating an additional force for the plantation, and increasing its revenues and augmenting her ability to liquidate the mortgage debts. By this sale she released herself from one heavy burthen, and increased her ability to raise the others.

“ But she was not yet safe, neither was Lowry, as the mortgages bore upon that part of the property that had been sold to him by Mrs. Cobb. It was liable to be swept from him by the mortgage creditors ; if so he lost his debt.

“ But the parties had now acquired the means, which if jointly and properly applied, would avert the consequences they both dreaded, the loss of his debt by the one, and the loss of her property by the other. By adopting the course they did, they believed that all the debts could be paid and the property saved.

“ Hence, it was agreed that, 1 all the aforesaid property should be used and cultivated jointly, and that the proceeds of the crops of the said plantation should be applied to the liquidation of the debts against said property.’ For the portion of the crops belonging to Lowry, so applied, he was to be secured in the manner we shall hereafter state.”

They then decide that a subsequent agreement, made in 1844, did not materially vary the first, and proceed: “ Considering, then, that the agreement made originally between the parties, that the whole net revenue of the property should be applied to the extinction of the mortgage debts upon it, which, though not nominally against Lowry, yet might be made to cause the destruction of his debt, to have been made for their joint interest, and to have constituted an important element in their contract, we feel bound to have that agreement executed to the extent of our power, in the manner hereafter stated.”

They then decide and settle many particular controversies between the parties, and continue: “Proceeding to carry into effect, to the extent of our ability, the original intentions of the parties, we order and direct that all the property constituting the Buckhorn plantation, the slaves thereon owned by the parties jointly, and every thing else belonging thereto, shall be kept together and cultivated as a whole until the first Monday of January, 1850.” They provide at that date for the partition of the land and some of the slaves.

And then declare : “ Wedivestfromthis date the said Alfred J. Lowry and the said S. M. C. Cobb, and her husband O. B. Cobb, of all personal right, authority and control over the said Buckhorn plantation, slaves, &c., and every thing appertaining thereto, both as relates to the management of said property and its cultivation, the control and disposition of its proceeds and revenues, and the manner they shall be applied and appropriated, and prohibit them from claiming or drawing any portion thereof, except a thousand dollars annually each, for their individual use.”

“We nominate and appoint William S. Parham, Esq., of the parish of Madison, and authorize him to take and have, from this date, the full, entire and complete control, management and administration of said Buckhorn plantation, slaves, &c., independent of and from any and all authority, control or dictation of the said joint owners or either of them, or of any one else, subject only to the rules herein laid down for his guidance for his duly to the parties and to the laws of the State,”

After prescribing some rules, it is said: “ The crops shall be shipped and the accounts kept in the name of the Buckhorn plantation, William S. Parham agent. The plantation expenses shall be paid; an annual salary of $750 allowed to Parham, and, as stated, a thousand dollars each, annually, to Mrs. Cobb and Lowry, and the balance remaining of the crop shall be appropriated annually and as soon as realized be paid over and credited upon the mortgage debts of Mrs. Cobb. Parham was required to render annual accounts on the 1st of March, 1848, 1849 and 10th of December, 1849.”

“ And within fifteen days after the rendition of each of said accounts, tho said Mrs. Cobb and her husband are required to execute a special mortgage, before a notary of the parish of Madison, on her entire interest in the Buckhorn plan*£tion, slaves, &c., in favor of Lowry, to reimburse to him such amount of the proceeds of the crops belonging to him as may have been appropriated to the payment of the aforesaid mortgaged debts, with six per cent, interest, from the date of the appropriation.”

Provision was afterwards made for the final settlement of the accounts of the partnership, partition of the slaves and other particulars.

The award was rendered in March, 1847, was homologated by judgment of the court in the fall, and was fully carried into effect that year. And had it been carried out, the parties, no doubt, would have had a large estate unencumbered with debt, except the accounts and indebtedness between themselves, to divide at the times and upon the terms provided for by the award.

In January, 1848, Cobb and Wife totally repudiated the award. Obtained and issued their, injunction against any control or management of the plantation and slaves by Parham or Lowry; took possession of all the property, and kept the proceeds of the whole crop of that year.

These proceeds should, under the award, have been sacredly applied to the payment of their debts, for which the property of Lowry as well as their own was specially mortgaged, and they should have given a special mortgage on their part of the property, in favor of Lowry, for his half of the proceeds of the crop. He did not even receive out of the crop, the thousand dollars provided for his family supplies.

Mrs. Cobb and husband having thus obtained possession of the property and its proceeds, in consequence of the injunction, and having failed to appropriate them according to the award, now that the injunction is dissolved, are bound, with their surety, to the extent of their bond, to supply and make that appropriation.

Instead of appropriating the crop of 1848 to the payment of the mortgages against the property, Cobb and Wife, during the pendency of their injunction, submitted to the jurisdiction of the courts in New Orleans, and confessed judgments in favor of the mortgagee creditors. They thus not only failed to diminish the claims, by the crop of 1848, but voluntarily aided to defeat the very object of the partnership with Lowry, and of the award of their amicable compounders. And executions were issued, evidently by their consent, against the partnership property, for their individual debts, with a view to sacrifice their partner.

But, as the day of sale approached, adverse circumstances occurred; the cholera was prevailing on the plantation. Cobb was sick; he had not the proceeds of the crop of 1848, even to the extent of $8000, which it appears might have relieved him; his friends deserted him, and he could not make arrangements with his creditors whom he had facilitated, by subjecting the property of his partner to their executions.

On the other hand, wealthy friends came to the aid of his partner, and purchased the property, no doubt, with the view of letting him have it when he reimbursed them the price. The violation of the award of the amicable compounders, and attempt to ruin their partner, will probably ruin Cobb and his wife’s estate, while it only straitened the defendant in their injunction, and subject him, temporarily, to the generosity of his friends. The loss of the one, and the possibility that the other may finally relieve himself from the consequences of the injunction, cannot be considered in fixing the immediate and direct injury to the defendant in the injunction.

As the partnership property, sold for the debts of Cobb and Wife, was fairly appraised at $68,300, and was sold even at twelve months’ credit for only $41,775, showing an immediate loss of $26,525, it might be a fair subject of inquiry, if. necessary to sustain the claim for damages to the amount of the bond, whether half this loss should not be chargeable to Cobb and Wife and their surety on the injunction bond, which loss amounts to far more than the amount of the bond.

There is no doubt Parham would have performed the duties of agent of the partnership property during the year 1848, but for the injunction, and have thus entitled himself to the salary allowed him by the award. There is no evidence that he actually resigned the office. He, therefore, is entitled to the amount of his salary, which is the damage allowed him by the judgment as caused by the injunction.

It is urged that but half the property was sold by the sheriff; that the estate of Mrs. Cobb owns half the remainder, and that her representative may compensate the fourth of the crops subsequent to 1848 against the bond, and that her surety may require the discussion of her remaining interest in the plantation and slaves, to indemnify him against liability on the bond.

The sale of at least half the plantation and slaves of the partnership for Mrs. Cobb’s private debts, has so materially changed the relations of the parties, and must produce such an effect upon the award of the amicable compounders, and the management of the remaining partnership property and final settlement of the partnership, that nothing in relation to these subjects can be considered in this suit. It appears there are suits pending for the regulation of the partnership subsequent to the sale, and for its final settlement. The sale having defeated the original object of the partnership and the award under it, the remaining property and the settlement of the partnership must probably be governed by the ordinary principles of partnership, subject to the acquired rights of the partners.

Mrs. Cobb’s estate can probably only claim a surplus on the winding up of the partnership, and, if so, the surety can claim no greater right. On these subjects, however, we express no opinion further than to show that the bond has not been compensated, and that the payment thereof cannot be delayed by the surety for the discussion of the property of his principal.

The judgment of the district court is affirmed, with costs.

Slidell, J. I had doubts, arising out of the peculiar phraseology of the bond, but have yielded them to the unanimous opinion of my brethren.


source: Caselaw Access Project

author: Slidell, J. Preston, J.

license: Public Domain

text:
    In the Matter of the Minor Celina, Cyrot Gentes, Opponent.
    There are somethings, that pass before the eye of a district judge, which cannot be preserved in evidence, and I will not disregard entirely his impressions arising from them when, in his written opinion, they are declared.
    Per Slidell, J. Bustis, C. J., concurring.
    I cannot consider the appearance (conduct and manner) of Genies, in the distinct court, as it is not presented in the form of testimony.
    I am inclined to think, that nothing hut a decree of interdiction, should deprive a parent of his child on the ground of insanity.
    Preston, J. Rost, J., concurring.
    APPEAL from the Second District Court of New Orleans,

      B. Bearegard, for plaintiff.

      Cyrot Gentes pro se.

      L. Castera, for defendant.
   The court was divided in opinion.

Slidell, J.

I have not been able to concur in the opinion prepared by Mr. Justice Preston, and will briefly state my reasons.

Joseph Higgins was appointed dative tutor of the minor by the district judge, under the authority of the 396th article of the code, which authorizes the judge to appoint a tutor to a foundling or a child abandoned, giving the preference to the person protecting it. This decree of a court of competent jurisdiction, was rendered upon evidence which is not before us. Gentes has, I concede, a right to attack it; but in doing so, he is the actor, and must make out a proper case for withdrawing the child from the custody of the person to whom the decree has entrusted her. The district judge declares, that he did not feel justified in placing the child in the custody or under the control of Gentes, from what he had himself seen of him, (I presume he means in the conduct of his own cause in the court below,) from a perusal of his petition, and from the facts disclosed on the trial of a previous case of habeas corpus-The testimony on this trial is not before us. But the petition which was pre" pared by Genies in proper person satisfies me, as it did the district judge, tha1' it was the production of a disordered mind. As to the manner of the petition before the court, 1 cannot agree with what seems to be the opinion of the counsel for the appellant, that we are to disregard the remarks of the district judge respecting it. Certainly, as a general rule, we are to look to the evidence in a cause. But there are somethings that pass before the eye of a judge that cannot be preserved in the statement of-evidence, and yet, which in the search for truth, he cannot conscientiously disregard ; nor can we disregard entirely his impressions arising from them, when, in his written opinion, they are declared. We are bound, on the contrary, to receive them with consideration, and derive what assistance from them we reasonably may, in forming our conclusions. For example: If a district judge should declare in his opinion that the manner of a witness on the stand created doubt of his veracity, we, in considering the testimony on appeal, would give great weight to the statement. The judge has in substance declared, that his conviction of the unsoundness of the father’s mind is such, that he could not, without doing violence to a sense of duty, grant his prayer to displace the dative tutor and put the child under his control.

I therefore think we should affirm the judgment, which was a dismissal of his petition, without prejudice to his right to renew the application hereafter, should circumstances appear to justify it.

Eustis, C. J., concurred with Justice Siidelu.

Preston, J.

Joseph Higgins alledged that his wife was entrusted by the Recorder of the Third Municipality, with the care of a female child, named Celina, about five years of age, which was taken from the custody of Cyroi Gentes, on account of ill-treatment; that the child is a foundling, abandoned) and her parents unknown or dead, and that no person was legally authorized to take care of the child.

In conformity with article 296 of the Civil Code, the Second District Court appointed Joseph Higgins tutor of the child. '

Cyrot Gentes immediately made opposition to this proceeding, alledging thaj; the girl was his natural child, whom he had duly recognized and legitimated by an authentic act. He alledged that the recorder had been deceived; that he was giving to his daughter all proper care, and had means to provide for her support, education and welfare, which he had devoted to her, by paying board for her, at the rate of twelve dollars a month. He alledged, that Mr. Higgins and his wife were not suitable persons to be entrusted with the care of his child, and prayed that the appoitment of Joseph Higgins, as her tutor, might be revoked. Higgins denied the allegations in the opposition,

The opponent produced an act before a notary public, by which, on the 3d day October, 1848, he acknowledged the child to be his natural daughter, and declared that he thereby constituted her his legitimate child.

There is sufficient proof that she is his natural child, and that her mother is dead, and the act of the 24th of March, 1831, authorizedher legitimation ; we therefore assume, that the opponent is a father claiming the custody of his legitimate child, and the exercise of his paternal authority over her.

The district court dismissed the opposition of Cyrot Gentes, on the ground, that by personal observation of his conduct and inspection of his pleadings, he did not consider him a proper person to be entrusted with the child, considering that his mind was disordered.

The evidence leads me to the conclusion, that whatever may have been the exeentricities of Cyrot Gentes, he possesses the affection for his offspring, which nature imprints on the hearts of all men ; that he has treated his child with ordinary care, considering his situation, and that he has means to afford her a support and education; and I concur with his witnesses, that ordinarily, the best situation of a child, is to be under the paternal power and care of its natural parents.

There are exceptions to this rule, but the law does not recognize them, unless the parent is removed from the tutorship of his child, by formal judicial proceedings.

The father is of right the tutor of his child. Code, art. 274. The tutor shall have the care of the person of the minor. Art. 327. The child owes honor and respect to his father. Art. 233. And as long as he remains under his paternal authority, is bound to obey him in everything, which is not contrary to good morals and the laws. Art. 235. He remains under the paternal authority, until his majority. Art. 234. And cannot quit the paternal house, without the permission of the father. Art. 236.

1 cannot consider the appearance of Gentes in the district court, as it is not presented in the form of testimony, and inclined to think, that nothing but a decree of interdiction should deprive a parent of his child, on the ground of insanity, whilst there remains a flickering of intellect; nature prompts the parent to do all for his offspring that he can do for himself, and parental affection is the last instinct that leaves the human mind.

I think the judgment of the district court should be reversed; the appointment of Joseph Higgins as tutor of the minor child Celina revoked; and that she should be restored to the paternal power and custody of her father.

Rost, J. concurred with Preston, J.


author: Slidell, J.

text:
    New Orleans Gas Light Company v. Webb, Administrator of Stephenson’s Estate.
    1110 sale of a litigious right to an attorney not competent to purchase, is a nullity. But the sale does not annihilate the obligation of the debtor of that right; he is still bound to the vendor. It is the sale of the litigious right, and not the right itself, which the law avoids.
    APPEAL from the District Court of St. Helena, Penn, J.

      J. S. Halsey, for plaintiff:
    What is prohibited? The sale of a litigious right to certain functionaries. What is the penalty of a contravention? The avoidance of that which is done in contravention of that prohibition. What has been done in this case ? The purchase of a litigious right. Therefore, it is the purchase of the litigious right which is void.
    If there could be any doubt as to the accuracy of this reasoning, or the correctness of this construction, it would be removed by ascertaining how similar expressions and provisions of the code must be construed. The 1139th article has a similar prohibition and a similar penalty. The purchase by a curator of property belonging to a succession entrusted to his administration, is forbidden, under pain of nullity, and responsibility for all damages caused thereby. Nullity of what ? Of the purchase, certainly ; not of the property purchased.
    Permit us to expose the opinions advanced on the other side by an illustration. Suppose that A. sells a slave to B., who furnishes his obligation for the price. Afterwards, the vendor sues the purchaser for a rescisión of sale, and for hire and damages, upon allegations of fraud. He obtains judgment, and B. appeals. Pending the appeal, A. sells his right to C., an officer of the court. The judgment is affirmed. C. attempts to enforce the right he has purchased, but is stopped by the plea of nullity, under article 2422 of the code.
    If the right be extinguished by the act of selling it, what are the consequences of the theory? Who is the owner of the slave? Not C., because his purchase is null; not B., because there is a final judgment avoiding his title ; not A., since his right is lost and extinct. It would be gratifying if the “ acumina ingeniorum” would favor us with a solution of this difficulty.
    ,E. T. Merrick, for defendant:
    Art. C. C., 2422, says, that the sale of a litigious right to an attorney, practising in the court in which said right is exercised, is under the “penalty of nullity, and having to defray all costs, damages and interests;” evidently meaning that the rights of the transfer vest in, and that he will recover, unless the penalty is invoked, by the interposition of the exception of litigious right. But the case at bar is still stronger; for the Gas Light Company, after the litigation had ceased, passed a resolution ratifying the transfer, thus doubly investing Waterston with all their rights; and, with this investure of rights, the final decree was passed against him. The Gas Light Company is now, therefore, attempting to exercise the rights then vested in Waterston, and is, so far, his “ayant cause,” and the judgment against him must be res judicata, as to the Gas Light Company claiming subordinate to him. See 10 Toul. No. 211. 12 R. R. 577. Irish v. Wright, as to judgment binding upon the “ ayant cause.”
    Second. Every person is presumed to know the law. Art. C. C. 12 announces that, “ whatever is done in contravention of a prohibitory law is void, although the nullity be not formally directed.” In this respect, our code agrees with the common law, and goes further than the Napoleon Code, which has no corresponding article with No. 12, of our code. Art. No. 2422 has formally decreed the nullity of the sale of a litigious right, to attorneys exercising their functions in the same tribunal. It must follow that the vendor and vendee both stand in the same position; violators of the law. they are in pari delicto. So are they viewed by Vinnius, in the passage cited by Troplong De la Vente, No. 196, “ Inter pacta quae contra bonos mores fiunt memoratur et pactum quo causídicas a litigatore litem redimet et convenit ut, nomine mercedis, certem partem hujus, pecunias et quas adjudicata fuerit vel majorem aliquam summam in 'eventual litis accipiat.” Duranton holds the same opinion, that the vendor is an accomplice, on account of the intended vexation to the opposite party, vol. 16, No. 145,' and so indeed is he viewed by the civil law, particularly by Lex, Ne liceat potentioribus (Code 2, 14, 2,) which is also embodied in art. C. C. 2422. In using the strong language above, I do not wish to reflect upon the parties to the transaction; I wish only to assert that the thing done is against the prohibitions of law, is malum prohibitum. It is not my wish, nor within my province to say more. It seems, then, under our law, to follow, that the Gas Light Company cannot stand in a better situation than Mr. Waterston himself. The law will leave the opposer where he has chosen to place himself, in violation of law. It will not interpose its aid. Gravier’s curator v. Carraby’s Ex., 17 L. R. 131, 143. Denton v. Wilcox, 2d Ann. 60. See the case of Milne v. Davidson, where the court refused to decree rent for a house let for an hospital in New Orleans, it being against a prohibition of law. 5 N. S. 409. See, also, John Y. Davis v. James H. Caldwell, 2 R. R. 271. Pickett and wife, v. Clark, 3 R. R. 81. The case of Mulhollan v. Voohries, illustrates the reason why art. 2422, was added to the code, of 1825. For there both the judge and sheriff were purchasers. The articles 12 and 2422, C. C., being general, an(j their provisions being salutary, it is submitted that the court will apply them alike to a^ cases which come within their letter and spirit.
    The common law authorities are as numerous as our own. See Patton v. Nicholson, 3 Wheaton, 204. Armstrong v. Toler, 11 Wheaton, 258. Ex. Cambiso v. Maffit, 2 Wash., C. C. R., 98. Craig v. Missouri, 4 Peters, 410. See also, particularly, Bartle v. Coleman, 4 Peters, 184. See also the numerous authorities collected in the United States Digest, vol. 1, p. 110, title Agreement. Validity as against Statutes, vi., sec. vii. on same subject. Also supplement to same work, vol. 1, p. 69, Verbo Agreement, sec vi.
    We urge upon the attention of the court the fact, that the provisions of art. 2422, did not exist in the code of 1808, and is a new provision of law, introduced in 1825, and that it ought therefore to be construed in reference to the other provisions of law then in force, and not in reference to any foreign system of laws in which other principles prevail. 3 Martin, 185. Agnes v. Judice, N. S. 164. Abat v. Waterman. 6th Ann., 300, Burrows v. Pierce.

    Again, were this to be made an exception to the general rule, it would place the parties who sell litigious rightB to attorneys, in a better position than those who make the like sale to any other person, because, while the sale to such other person could only be enforced for the price actually paid, C. O., art. 2623, yet, in this class of cases, the party would be subjected to a violent prosecution on the part of the attorney, and a renewal of the same litigation by the vendor, without any relief, except the payment in full of a demand, which the party, by his sale to the attorney, admits he is willing to take less for; which is against the policy of the law. Interest Republicae ut sitfinus liliwn. Bullard & Curry’s Digest, page 21, sec. 4.
    By reference to the Code of Justinian, it will be seen that it was the intention of the Lex. Anastasiana to benefit the person against whom the litigious right was sought to be enforced, find not the transferor or transferee. So if a person-was interposed, or a portion of a litigious right donated, still the transferee could only exact the amount paid, and neither the transferor or transferee could require any thing more, or make any profit from the debtor or his goods. Codex Liber 4, tit. 35, 1, const. 23.
    The introduction of art. 2422 into the Code of 1825, is a remedial statute, and should be so construed as to advance the remedy : To favor attorneys or their vendors, in preference to other persons purchasing litigious rights, would not advance the remedy. It would have the contrary effect. C. C., art. 18.
    That art. 2422 was intended as a remedial statute, I think will appear by reference to the old code, p. 368, sec. 130, which is the same as 2622, and permitted the sale of litigious rights, but regulated the amount which might be exacted of the debtor. Art. 2422 amounts to a prohibition; it says the thing cannot be done, and denounces the penalty for its violation. All parties consenting to its violation, stand towards the courts in the same relation.
    But this court will be urged to follow the modern decisions of the courts in France, and the commentators on the Napoleon Code. In reply I have to say, that, however distinguished for their profound learning they may be, those decisions and opinions are rendered upon a system of laws, in many respects radically different from our own; and this court, their equal in all things affecting the rights of citizens of Louisiana, has asserted the right to construe for themselves, all laws with reference to the customs and habits of the people of Louisiana, and the other laws passed on similar subjects by the legislature. Certainly the ancient decisions in France under the ordinances, are more in accordance with our legislation, and the tenor of American decisions, than those under the Napoleon Code. Merlin Verbo Droits litigeux, No. 3.
   By the court:

Slidell, J.

The plaintiff recovered a judgment against the succession of Stephenson, which was confirmed, (with the exception of the decree as to privilege,) upon an appeal by the administrator from the entire judgment. The case is reported in 2d Ann. 526.

While that appeal was pending, the company sold its claim to Waterston. After judgment was confirmed by this court, Waterston instituted proceedings upon the claim thus purchased, against Webb, praying for his dismissal from office, and for a personal judgment against him, for the amount of the judgment obtained by the company, and to him, Waterston, transferred. In the progress of that cause, after other pleadings and proceedings, which it is unnecessary to detail, the defendant, Webb, plead a peremptory exception, in which he pleaded that Waterston could not maintain the action, because his purchase of the claim was the purchase of a litigious right, then in litigation in courts wherein said Waterston was then exercising the functions of an attorney at law ; and the exception concluded with a prayer, “ that his, said Waterston’s, demand being null, be dismissed.” The cause being brought to trial upon the exception, it was decreed “that said exception be sustained, and plaintiff’s action dismissed, and that the plaintiff pay the costs.” This decree, upon appeal to this court, was affirmed. See Waterston v. Webb, 4th Ann. 174.

Subsequently, the Gas Light Company filed an opposition to an account rendered by Webb as administrator. In this opposition, the company alleges itself to be a judgment and mortgage creditor, by virtue of the judgment rendered in its favor, and affirmed by this court; and that the administrator had neglected to place its claim upon the tableau of distribution. It prayed that the tableau be amended, by placing its claim therein with its proper rank, and also opposed various charges in the administrator’s account rendered. Thereupon, the administrator filed what his counsel calls “a motion, in the nature of an exception, to strike out said opposition of the Gas Light Company,” on two grounds, which, as stated by the defendant’s counsel in his brief, are in substance as follows: 1st. That the rights of the company having been transferred to Waterston, and being outstanding in him at the time of the final judgment against Waterston, were barred by said judgment, which has the force and effect of the thing adjudged. 2d. The Gas Light Companyy, being in pari delicto with Waterston, in the violation of a prohibitory statute, is left without remedy, and cannot invoke the aid of the law, to relieve itself from the consequences of such violation.

Before considering the objection thus presented, it is proper to observe, that the reinvestiture of the claim in the company is not included in them, and we do not therefore consider ourselves called upon to notice that portion of the defendant’s argument, which turns upon an absence of proof, that Waterston had abandoned, or retransferred to the company, any interest he may have acquired by the transfer to him, or that they had mutually assented to treat it as a nullity. And it is not for the defendant to complain that he has been held by the district judge, and is now held by a strict construction of his own pleadings ; because he has himself, upon technical grounds, excluded evidence showing that the present suit by the bank is in its own behalf; that the sale to Waterston was annulled; and that there is no understanding between the plaintiff and Waterston, that he should participate in what the company may collect. And we are constrained here to add, that the record of this succession, which has been under the administration of Webb nearly thirteen years, contains abundant internal evidence of a disposition to weary out this creditor by delay; and that this course was probably the reason which drove the company to attempt to sell its interest for whatever it could get. The struggles by Webb before was to thwart the claim by delay. The attempt now is to annihilate it.

We shall therefore confine ourselves to the ground taken in the exception, and will proceed to consider them, inverting, however, the order in which they were presented by the defendant.

The art. 2422 of the Civil Code, is in these words : “Public officers connected COurts of justice, such as judges, advocates, attorneys, clerks and sheriffs, cannot purchase litigious rights, which fall under the jurisdiction of the tribunal in which they exercise their functions, under penalty of nullity, and of having to defray all costs, damages and interest.

This article is found under the general title of sale, and under the second chapter of that title, which treats “Of persons capable of buying and selling.”

There is another article of the code, which says, whatever is done in violation of a prohibitory law, is void. Art. 12.

The proposition of the appellant, substantially assumes, that the sale of a litigious claim to an attorney at law, practising in the court where the litigation is pending, virtually extinguishes the claim itself. This proposition pushes the penalty of the law, beyond its just and ligitimate consequences.

If the purchase by Waterston, was an utter and absolute nullity, then no title ever passed out of the company to Waterston. But the utter nullity of the sale, surely does not involve the destruction of the thing sold. Such an inference is not only illogical, but monstrous.

But was it a relative nullity ? We think it was; that is to say, the debtor could set up the nullity, and avail himself of it, in resisting an action by tho purchaser, as being a purchase reprobated by the law.

The thing sold was a litigious right. The law said to this purchaser, you cannot purchase it. If you attempt to do so, you do it under penalty of nullity. Nullity of what ? of the purchase. The law avoids, at the instance of the debtor, wbat is done in contravention of the prohibition. What was done in contravention? the purchase of a litigious right. It is the purchase of the litigious right, which is avoided, not the litigious right itself. The contract of Stephenson with the company, was not illegal or void. The judgment rendered in favor of the company against his succession, was not illegal or void. But it was against the law for Waterston to buy that claim; and Waterston, having made an illegal purchase, was not permitted to enforce the claim so purchased. The door of justice was closed against him, not because the claim he had bought was void, but because he was forbidden to buy it.

It is a sound principle, that the annulling of a right, should result only from a clear expression of the legislative will in the particular case, enunciated in the law, and should not be supplied by the court.

Let us see what has been said by juris consults, upon a similar provision of the Napoleon Code.

The 1597th article of that code, is in these words: Les juges, leurs suppléants, les magistrals remplissant le ministére public, les greffiers, huissiers, avoués, défenseurs, officieux et notaires, ne peuvent devenir cessionnaires, des procés, droits et actions litigieux qui sont déla compétence du tribunal dans le ressort, du quel ils exercent leurs fonctions á peine de nullité, et des dépens, dommages et intéréts.

Upon this article, Troplong, with both eloquence and force, comments as follows : De tels pactes sont en effet honteux et contraires aux mceurs. Ils ne font qu’attiser 1’esprit de tracassereé et de litige; ils transformen} ¡’honorable ministere de defenseur ou d’officier ministerial en un trade sordide, en une vile speculation, sur la position des pauvres plaideurs; ils sont une source de vexations pour les hommes timides, qui se voient aux prises avec des légistes enhardis par l’habitude des luttes judiciaires, animés par l’intérét personnel, et arnés de tous les piége3 de la chicane.

Remarquez toutefois que le droit litigieux ne subsiste pas moins, et que le débiteur ne peut se prévaloir de ce trafic deshonnéte pour se prétendre libéré. Aucune disposition de loi ne déclare la créanee éteinte. Seulement, la cession est nulle et le débiteur peut en requérir la nullité pour se soustraire aux pour-suites pleines d’ápreté d’un cessionnaire redoutable, et pour demander d’étre mis en face de son véritable créancier. Troplong’s Yente, No. 196.

Duranton also says: S’ils l’avaient entendu ainsi, ils l’auraient dit expressément, puisque l’annulation d’un droit ne doit résulter que d’une disposition formelle de la loi, les nullités ne pouvant étre suppléies par le juge. D’oú nous concluons que le droit n’est pas éteint par la nullité de la cession. Duranton lib. 3, tit. 6, No. 145.

The plea of res judicata is untenable/ The decree in Waterston v. Webb, decided that he, being a purchaser of a litigious right, could not maintain an action to enforce it. It shut the door of justice against him, by decreeing in substance, that his purchase was null as to the defendant, but it did not adjudge the nullity of the right so purchased. This suit is brought by another party, and involves other questions, than those decided in that cause. The question there was, shall Waterston be permitted to sue 1 The question here is, is the original debt avoided 1

The authority of the thing adjudged, takes place only with respect to what was the object of the judgment (á l’égard de ce qui a fait l’objet du jugement). The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them, against such other in the same quality. Civil Code, art. 2265.

The judgment of the district court is affirmed; the costs of appeal to be paid by the appellant.


text:
    Oakey and Hawkins v. Samuel Weil.
    When an account has been stated and a balance ascertained, and the account in this condition is presented to the debtor, and he acknowledges its correctness, the creditor may recover the balance of account without producing accommodation acceptances, notes, &c., the payment of which forms items of the account.
    APPEAL from the District Court of East Baton Rouge, Burk, J.

      J. M. Brunot, for plaintiffs.

      Geo, S. Lacy, for defendant,
    cited Ames v. The People’s Telegraph Company, 5th Ann. 184.
   By the court:

Slidell, J.

When an account has been stated and a balance ascertained, and the accountin this condition is presented to the debtor, and he acknowledges its correctness, the creditor may recover the balance of account without producing accommodation acceptances, notes, &c., the payment of which forms items of the account. See Greenleaf on Evidence, vol. 2, sec. 127. Allain and Tremoulet v. Lazarus, 14 L. R. 330. Freeman v. Howell, 4th Ann. 197.

In this case, the testimony satisfactorily proves, that the account annexed to the petition, and showing a balance in favor of the plaintiff of $1400 96, was exhibited to, and acknowledged as correct by the defendant’s partner. The district judge does not seem to have had any doubts as to the fact of acknowledgment, but appears to have been of opinion that the plaintiffs ought not to have judgment without producing the drafts. &c., that they might be restored or cancelled. In this view we think there was error.

It is therefore decreed, that the judgment of the district court be reversed, and that the plaintiffs, Oakey and Hawkins, recover from the defendant, Samuel Weil, the sum of $1400 96, with interest, as prayed for, from judicial demand, to wit, from the 16th of July, 1851, until paid, and costs in both courts.


author: Preston, J.

text:
    William Bell v. The Widow Bouney.
    A person who makes and sells a machine in violation of the rights of the patentee, cannot maintain an action to recover the unpaid purchase money. Nor can the purchaser, who has been prevented hy the patentee from using the machine, recover from the vendor the purchase money, where from the circumstances he should have known that the vendor had no right to sell,
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Race and Foster, for the plaintiff.

      L. Castera, for defendant.
   By the court:

Preston, J.

In August 1847, the plaintiff made and sold to the defendant a machine for making biscuit, for five hundred and ten dollars, of which he paid $250. He sues for the balance.

It is proved sufficiently, that it was a machine for which a patent in favor of John and Charles Bruce, was renewed by a resolution of Congress, approved the 22d of February, 1847.

The defendant denies her liability for the claim, and also, by reconvention, elaims the two hundred and fifly dollars paid by her to the plaintiff, and also three hundred and fifty dollars paid by her to the assignee of the patentees, for the right to use the machine.

The last sum, it is evident, she cannot recover. She paid the proper person for the use of a right belonging to him. But the plaintiff has entirely failed to show that he had a right to make and sell the machine called for by Bruce’s patent.

Now we consider the acts of Congress, giving treble damages as a penalty for violating another’s patent, as penal laws, and the act an offence. No one can acquire a right by the commission of an offence.

It appears that the plaintiff has compromised with the assignee of the patentee, for the damages, but that does not legalize his act, or give him any right against the defendant.

The counsel of the plaintiff contends, that he only made and sold the machine, not the right of using it. To give force to the distinction, he should have shown that the defendant knew of the patent at the time, and agreed to buy the machine without the right of using it.

The act of Congress, passed in 1800, prohibits the making, as well as using or selling the thing, whereof the exclusive right is secured to another; so that the making and selling the machine alone, without the right of using it, was an unlawful act, for which the plaintiff can recover nothing.

We are of opinion, that the defendant, from her vocation, knew, or should have known, that she had no right to buy and use the machine, without the consent of the patentee or his assigns, and that she cannot recover back money paid to the plaintiff for an unlawful purpose.

It is deseed, that the judgment of the district court, be reversed, and that there be judgment for the defendant against the plaintiff’s claim, with costs. It is further ordered, and decreed, that there be judgment for the plaintiff against the demand of the defendant in reconvention, with the costs of the same, and that the appellee pay the cost of this appeal.


author: Preston, J, Slidell, 3.

text:
    Thompson G. Bird v. S. G. Laycock, S. G. Laycock v. Thompson G. Bird, Adelia Bird, wife of S. G. Laycock, v. Thompson G. Bird.
    The district court refused to homologate an award, and referred it back to the arbitrators. Held: The judgment is not final,’ and there can be no appeal.
    The court will not set aside an award, upon the allegation, that the amicable compounders misconstrued the deposition of a witness, particularly where the party opposing the award had submitted the deposition, for it was his fault, that he did not obtain more explicit testimony from the witness. Nor will the award be interfered with, on the ground that one of the compounders had in his possession vouchers which would have benefited the party opposing the award, where those vouchers had been received by the referree, in the course of his business, before the submission ; for a party cannot complain, that the referees did not act upon testimony not submitted to them.
    APPEAL from the District Court of East Baton Rouge, Burk, J.

      Cyrus Ratliff, for Thompson G. Bird.

      George S. Lacy, for Laycock et al.

   On a motion to dismiss appeal:

Preston, J,

These three suits were referred to amicable compounders, and all matters in controversy between the parties.

They made their award on 14th of July, 1851. On the 15th, Thompson G. Bird filed a petition against Laycock and wife, praying that the award might be homologated, and made .the judgment of the court. Laycock and wife made opposition to it on several grounds. Although ten days may have elapsed after notice to them to oppose the award, they were still in time, as it had not, in point of fact, been closed by judgment. The arbitrators themselves also applied to the court, to refer the award back to them, because some vouchers in their possession, at the time it was made, had been overlooked. The court refused to homologate the award, but referred it back to the arbitrators. Thompson G. Bird has appealed.

He cannot do so, the judgment is not final; indeed there is no judgment.

Even if we err in this view of the case, we think there was sufficient reason to refer the award back to the arbitrators. Their award was under the control of the court, not to alter or amend it, to be sure, more than the verdict of a jury, but to grant a revision of it for any good and legal cause.

We think with the district court, that such cause existed.

The appeal is dismissed at the cost of the appellant.

This case was afterwards tried on its merits. By the court:

Slidell, 3.

These parties, having been engaged in litigation with each other, referred all the matters in controversy between them, to D. D. Awry and William S. Pike, as amicable compounders. After many sittings, at which the parties and their counsel were present, and after hearing oral and written evidence, the arbitrators finally returned their award, in favor of Bird, for the sum of $5169, with eight per cent interest, from July 22d, 1851.

Upon a rule taken upon Laycock and wife, to show cause why the award should not be homologated and rendered executory, they opposed the rule upon grounds which are also urged by their counselhere. One of them is, in substance, that the arbitrators misconstrued the evidence of Davidson, whose testimony was submitted, by Laycock and wife, in the form of a deposition. Another was, that at the time of the hearing by the arbitrators and of making the award, Pike, one of the arbitrators, had in his possession certain vouchers, which, if they had been brought forward, would have established a further credit in favor of the respondents against Bird.

Under the facts disclosed at the trial of the rule, it is questionable whether it would have been consistent with the usual rules of practice, to open the award, even if it had not been i-endered by amicable compounders. For if the deposition of Davidson was obscure, as seems to have been the case, it was the fault of the respondents that they did not use due diligence, and obtain further and more explicit testimony from him. We infer from the opinion of the district judge, that he thought there was remissness, in this respect, on the part of the respondents; and it was not upon this ground, that he ordered the award to be set aside. It is also proper to observe, that a new deposition of Davidson, which the respondents offered at the hearing of the rule, to support the suggestion that the arbitrators had misconstrued his testimony, is, itself, loose and indefinite. As to the vouchers, it appears, from the evidence offered at the trial of the rule, that vouchers did exist for two small sums, amounting to $138 paid for costs by Pike. But it is not pretended those vouchers were offered in evidence before the arbitrators. They seem to have come into the possession of Pike, not as arbitrator, but in the course of some anterior business relation in which he acted for the respondents. The respondents should not be permitted to complain, that the arbitrators did not act on vouchers which were never produced in evidence before them, and of the existence of which at all, one of the arbitrators seems to have been entirely ignorant, while the other’s knowledge of their existence was unofficial.

Viewed therefore as a case of ordinary arbitration, it would be quite questionable, whether an award prepared after abundant opportunities to produce evidence; after ample discussion by parties and their counsel; and after mature deliberation by the arbitrators, should be set aside on the lame showing- made by the respondents. But at all events, it is quite clear, that an award of amicable compounders ought not to be disturbed under such circumstances. This, we think, clearly results from the provisions of our codes on the subject of amicable compounders, and the decided cases.

Our Civil Code, under the title of arbitration, recognizes two classes of arbitrators : “ the arbitrators properly so called,” and “ the amicable compounders.” Art. 3076. The following article defines the difference between them, as to the principles by which they are to be guided in the discharge of their dufy. “The arbitrators, says article 3077, ought to determine, as judges, agreeably to the strictness of the law. Amicable compounders are authorized to abate something of the strictness of the law in favor of natural equity. Sont autorises á suévie 1’equiti naturelle.”

Such being the authority of amicable compounders, they are to be considered as in a peculiar degree, mediators of peace. When, therefore, parties embroiled in litigation, become alarmed at the prospect of its expense, its delays, its many perplexing, wearisome and irritating incidents, and seek among their friends ' judges of their own choice, and clothe them with the authority of amicable compounders, they are considered, to use the simple and expressive language of Domat, as saying to such arbitrators, that eachparty is willing to abate something of what they hope for in justice, and, for the love of peace, to forego a part of their interests; that they prefer the considerations of peace and quiet, to the rigor of justice, which might leave still occasions of strife and contention.

.But while our law regards with favor this mode of terminating differences, it takes care that the object for which the submission is made, shall not be defeated, when the spirit of forbearance and peace which elicited the submission to amicable compounders, has been ruffled in the breast of either party by an adverse award. Therefore, the lawgiver has made a wide distinction between ordinary arbitrators and amicable compounders. “As regards the award of arbitrators, the court may rectify the errors they contain, even though the parties had agreed that such award should be made the judgment of the court, unless the same have been rendered by amicable compounders.”

“ But if, from the submission entered into by the parties, it appears that they intended to give the arbitrators power to act as amicable compounders, the court cannot revise the award. It must be homologated as it stands, in order, that it may have the effect of a definitive judgment.” Code of Practice, articles 459, 460.

These articles have been repeatedly the subject of judicial comment. In Davis v. Leeds, which appears to have been elaborately argued, Mathews, J., remarks: “The submission in the present case, clearly contains a grant of power to the arbitrators to act as amicable compounders, and, consequently, deprives the tribunals of the country of all authority to revise the award rendered in pursuance of it. Whatever has been done in relation to the matters actually referred to their decision, if done honestly, must remain without the possibility of revision; and as a necessary consequence, without alteration or amendment. Acts done by such arbitrators, having no just relation to the matters in dispute submitted, would be absolutely void, and gross misconduct on their part, exhibiting a want of due respect to common and well established rules in regard to right and wrong, or extreme partiality in their award, would be good causes for setting it aside entirely, if proven to the court, on opposition to its homologation. But nothing of this kind is either alleged or proven in the present instance. The whole of the grounds assumed, in the numerous points presented by the counsel of the defendant, relate to want of precision in the manner in which the cause was laid before the arbitrators, and errors in their award arising from a mistaken view of the facts of the case. If parties will submit their disputes to be decided by men, chosen by themselves as judges, under the appellation of amicable compounders, they must abide their judgments, without hopes of having them revised by the courts of justice established by the Constitution and laws of the State. Such judges are not required to determine according to the strictness of the law. They are authorized to abate something of the strictness in favor of natural equity. L. Code, art. 3077.”

So in Canty v. Beal, the award of amicable compounders was attacked as being grossly erroneous, but not for fraud or misconduct on the part of the referrees. Morphy, J., cites, with approbation, the opinion in Davis v. Leeds and adds: “As to any errors alleged to have been committed in this award, even were they as obvious as represented by the appellant, (which, from an inspection of the record, we are by no means prepared to admit) we do not feel ourselves authorized to inquire into them. Whatever has been honestly done, in relation to the matters actually referred to, the decision of the amicable compounders cannot be revised or altered by a court of justice. Code of Practice, art. 459 and 460. L. Code, art-. 3077, 3096.

Indeed, the doctrine above enunciated, is as ancient as the Partidas. “La otra manera de jueces de avenencia es á que llaman en Iatin arbitratores, que quiere tanto decir como alvedriadores et comunales amigos que son escogidos por placer de amas las partes para avenir et librar las contiendas que hobieren entre sí en qualquier manera que ellos tovieren por bien: et estos atales después que fueren escogidos et hobieren rescebidos los pleytos et las contiendas desta guisa en su mano, han poder de oir las razones de amas las partes, et de avenirlas en qual manera quisieren. Et maguer non ficiesen ante sí comenzar los pleytos por demanda et por respuesta, et non catasen aquellas cosas que los otros jueces son tenudos de guardar, con todo esovaldrie el juicio 6 la avenencia que ellos ficieren entre amas las partes, solo que sea fecho á bona fe et sin engaño. Partida 3, tit. 3, lex 23.

In conclusion, we think with the appellant’s counsel, that if such excuses as are presented in this case, against the award of amicable compounders were recognized by courts, it would cease to be that salutary method of putting an end to litigation, which the law contemplates and favors. Compromissum ad finiendas lites pertinet interest reipublicae ut sit finis litium.

It is therefore decreed, that the judgment of the district court be reversed. And it is further decreed, that the award of the arbitrators be homologated and made executory, so that the said Thompson G. Bird do recover from the said Adelia Bird, wife of S. G. Laycock, the sum of $5169, with eight per cent interest per annum, from the 22d day of July, 1851, and the costs of this appeal, and of the collection of said sum and interest by execution. And it is further decreed, that the costs that had accrued in these above entitled suits, from the 12th March 1850, and in the homologation of the award, including the sum of $300, the compensation of the' arbitrators fixed by consent of parties, be paid in equal proportions by said parties, to wit: one half by said Thompson G. Bird, and one half by said Adelia Laycock and £. G. Laycock, her husband.


text:
    Mary Z. Grover v. S. M. D. Clarke.
    The interest of the mother in the estate of her deceased child must he governed hy articles 899, 900 of the Civil Code which treat of inheritance, and not by article 1481, which treats of donations. That interest, therefore, is one-fourth and not one-third of the child’s estate.
    APPEAL from the District Court of West Baton Rouge, Burk, J.

      George S- Lacy, for plaintiff.

      Lobdell, for defendant.
   By the court:

Preston, J.

Hyram, S. Grover, in his lifetime, entered into a copartnership with Hr. Nolan for the cultivation of sugar, upon a plantation owned by them jointly, lying in the parish of West Baton Rouge, which copartnership was in existence at the time of Grover’s death. It appears from the evidence in the record, that the plaintiff and Grover intermarried in the month of February, 1845, and that the latter departed this life on the 16th of October, 1846, leaving the following children his heirs : Harriet, Pauline, Hyram, Justus and James Hamilton, children by his first wife, and Mary Estelle the child of the plaintiff in this action. Previous to his death, he, Grover, made his last will, which has been duly probated, whereby he made in favor of his wife, the plaintiff, the following dispositions: “He gave her three thousand dollars for her own use and benefit, and also his barouche and horses. So long as she remained a widow, she was to have the use of the house, yard, &c.; to be furnished with necessary supplies; was to receive three hundred dollars per annum, and have the use of the slaves Ralph,-, Caroline, Charity and Kitty."

By the will, S. M. D. Clarke was appointed executor and tutor to the testator’s children.

Shortly after the death of Grover, Mary Estelle, his child by the plaintiff, also departed this life, leaving, as her heirs, her mother and half brothers and sisters.

This action was commenced for the rendition of an executor’s account, for the recovery of the legacy of $3000, and the further legacy of $300 per annum from Grover's death until the expiration of the plaintiff’s widowhood; for the recovery of the barouche and horses, and to obtain the use of the servants, and of the house, garden, &c., as set forth in the will; for the rendition, by Clarke, of his account as tutor of Mary Estelle ; for the recovery of plaintiff’s portion of the estate of her deceased child, Mary Estelle, with a decree of partition; and, lastly, to obtain a decree for the interest of the plaintiff in the community of acquets between her and her deceased husband, alleged to amount to $835 13.

The evidence in the- record satisfies the court that the annual allowance of $300 to -the plaintiff, by the will of her decased husband, has been paid to her during the years in which she remained a widow; and that having married Edward Boegle, who joins her in prosecuting this suit, she has lost any legal claim, on her part, for the continuance of that allowance, and has put an end to her right as usufructuary of the house and yard, the negroes Ralph,-, Caroline, Charity and Kitty, and the supplies necessary for her use and the rise of her family. Her demands in these respects, therefore, must be rejected.

It is admitted, by counsel, that Clarke acted as tutor of Mary Estelle for a very short time, and during that period he received and disbursed nothing in that capacity. Under such circumstances, he has no account to render as the tutor of the plaintiff’s child, and he must be discharged from that portion of plaintiff’s demand.

It is contended, on the part of the plaintiff, that judgment should have been rendered in favor of the estate of Grover, and against Clarke, as executor, for the sum of three thousand and seventy-three dollars and forty-five cents; and, furthermore, it is urged that the community is indebted to the plaintiff in the sum' of eight hundred and thirty-five dollars and thirteen cents. The settlement of these claims required the examination of long and intricate accounts, kept by John R. Shaw8f Co. with Grover and Nolan ; the accounts of Grover with Grover and Nolan ; and the accounts of Nolan kept with Grover and Nolan ; the investigations of a mass of testimony, and the perusal of a great many vouchers. These accounts, which are complicated and running through a series of years, should have been referred to auditors, and our examination of them is not satisfactory to ourselves. The counsel for the parties, at the same time, have pressed upon the court the necessity of a final judgment, and under such circumstances, from the best examination we have been able to give them, and taking into consideration the decision of the district judge, we have concluded to consider the community between the plaintiff and her deceased husband as about balanced as to money claims, leaving on hand, however, the boy William, who is found in the succession as communily property, to be partitioned as hereinafter set forth; the executor’s accounts being approved so far as they are not inconsistent with this decree.

Our attention has been next directed to the claim of the plaintiff for the legacy of $3000, contained in the will of her decased husband. It is admitted by the counsel for the plaintiff, in his printed brief, that the deceased was not permitted by law to bequeath in favor of his wife an amount exceeding the tenth part of his estate, or the usufruct of one-fifth part thereof. He contends, however, that the basis upon which the amount must be calculated, is the present condition of the estate, and not the condition which it had at the time of Grover’s death. We do not think the present case forms an exception to art. 1492 of the Code, and have concluded that “ to determine the reduction to which the donation of $3000, made to the plaintiff, is liable, an aggregate must be formed of all the property belonging to her deceased husband at the time of his decease. The debts due by the estate must be deducted from the aggregate amount, and the disposable portion calculated on the balance.” The legacy of #3000 has been reduced by the district court to one-tenth of the net estate of the testator, at the time of his death, which was fixed by the judge at $13,200 ; in fixing which amount, he is fully justified by the pleadings and evidence, and as the one-tenth of the amount is the sum of $1320, and as the plaintiff does not press her right to the usufruct of the fifth of the estate, the judgment of the district court, on this part of the case, must be affirmed.

The plaintiff, in her petition, claims to be the sole heir of her deceased child, Mary Estelle, and prays for a judgment recognizing her as such. In the brief of her counsel, however, she disclaims, under articles 899, 900, 907, 909 of the Code, any expectation of recovering the entire estate of her child, and limits her demand to one-third of the same.

In support of this position, it is argued that when these articles of the Civil Code are placed in contrast with article 1481, it will be seen that the plaintiff is a forced heir of, and, therefore, entitled to a third of her child’s estate ; and it is said that reason and a proper interpretation of the legislative will, both support the construction given to the code by the plaintiff. In these views we cannot concur with the counsel for the plaintiff. The last article seems inconsistent with articles 899 and 900. These, however, treat of inheritance, which is the subject under consideration, and-are explicit.

The article 1481 treats of donations, and does not expressly apply to the present case. Therefore we have concluded, that the interest of the plaintiff in the estate of her deceased child, Mary Estelle, must be governed by the arts. 899 and 900 of the code, and is one-fourth, and to that extent she is recognized by the court as the heir of her deceased child.

The defendant has filed an account, in which he has charged the plaintiff for the rent of the dwelling house, out houses, furniture, &e.; for the use of Caroline, Silva, Ralph, Charity and Kilty; for the provisions and articles of necessary supplies, and for the yearly allowance of $300 for the years 1847 and 1848, making the account against .the plaintiff amount to the sum of $2720. From the amount he has deducted $582, admitted to be a charge in favor of the plaintiff and against the estate, and prays for a judgment for the balance. The use of the property and the annual allowance were given to the widow by the will of the husband ; the tutor of the minor, so far from suing for a reduction of the donation in this respect, carried out the will, and, as executor and tutor, the defendantplaced the property and funds in the possession of the plaintiff. She received and used the same in good faith, with every reason to suppose that she was enjoying her own property. The executor ought not to be permitted to defeat the wishes of the testator ; nor should he, as tutor of the children, be allowed to recover the value of the use of certain property which was not only given as a dying bequest to their father’s wife, probably for their benefit, as well as her own, in keeping his family and property together, and which she has been permitted to use and enjoy, without any expectation, on her part, of being called upon to pay for such use. We will say, further, that the contract of partnership with Dr. Nolan was a community contract, and rendered this arrangement useful, temporarily at least, if not indispensable to the estate, to prevent controversies and the partition of the estate. The same consideration and principles laid down in the case of Young et al. v. Carl and Stephens, lately decided, but not yet reported, justifies us in rejecting the demand of the executor, and also the counter claim for $582, presented by the plaintiff, as an ordinary creditor. This claim is no where set up in the pleadings, and is established only hypothetically in the account of the defendant, which we have rejected, and therefore the credit must be dismissed with it.

The accounts filed by Clarke, as the tutor of the minor children, have been examined by the court, and as the under tutor who represented the minors was notified therewith, and has not appealed from the judgment relative to them, and we can see no objection to them, they must be approved, asprimdfacie at least correct.

For the reasons stated, it is ordered, adjudged and decreed, that the plaintiff’s claim against the executor for an alleged balance due by him, and against the community formerly existing between the plaintiff and her deceased husband, with the exception of the slave William, be rejected. It is further decreed, that the plaintiff do recover from the heirs of her deceased husband, thirteen hundred and twenty dollars, with five per cent interest from judicial demand until paid. And, moreover, that the plaintiff be recognized as the heir of one-fourth of the estate of her deceased child, Mary Estelle Grover, and that the executor do account to her, in that capacity, for one-sixteenth part of the crops of 1847, 1848, 1849, 1850 and 1851, or so much thereof as may be left after paying the debts of the estate and the deduction of charges; and that the matter be refei'red to a notary public, to make a partition of all the property belonging to the succession of the deceased, the plaintiff to receive one-sixteenth part of the same, the balance to be held jointly by the surviving children of Hyram S. Grover, or to be equally divided among them. It is furthermore ordered, that the slave William, belonging to the community, be sold to effect a partition, and that the plaintiff do receive from the proceeds arising from the one-half and the sixteenth of the other half of said proceeds; the balance to be equally divided among the said children of Grover.

It is further ordered and decreed, that the executor’s and tutor’s accounts be approved and homologated according to the principles of this opinion; and that the costs of both courts be paid by the succession.


author: Eustis, C. J.

text:
    Fletcher’s Heirs v. Charles McMicken.
    No lesion can be predicated of a mere adventure, where there was no deceit, and the parties were equally apprised ofthe state of facts .
    APPEAL from the District Court of East Baton Rouge, Burk, J.
    /• M. Brunot, for Charles McMicken, curator ad hoc:

      F. Perin, for appellees.
    No case has heretofore been presented to the court where they felt authorized from the facts, to order the recision of the sale on this ground. And yet, in all the cases reported, the right has been clearly recognized. The testimony stands uncontradicted to prove: 1st. That the title of the Fletchers to the plantation, was complete and perfect, and that they had possession under that title. "Where a judgment has not been reversed or annulled, it must have its full force and effect. 16 L. R. 442. Patterson v. Bonner et al. 14 L. R. 233. 2d. That the value of it under that title, was at least $41,250. 3d. That the defendant never gave one dollar more than $10,100, knowing the necessity of the sellers to make a saci'ifice of their property.
    The letters and the implied confessions ofthe defendant; the deed of sale and testimony of Mr. Elam and others, amply establish these facts; and so did the jury and court consider them.
    Here is then a clear and indisputable case of lesion beyond moiety, and comes within the provision of the code. Arts. 1854, 2567. “ Lesion is the injury suffered by one who does not receive a full equivalent for what he gives in a commutative contract. The remedy for this injury is founded on its being the effect of implied error or imposition; for in every commutative contract, equivalents are supposed to be given and received.”
    C. C. 1855, 2d clause. “In sales of immovable property, the vendor may be relieved, if the price given is less than one-half the thing sold, &c.”
    For the rules of ascertaining whether there is lesion, see C. C. 1864, 2567, &e. If this case is to be governed by the principles laid down in Copley v. Flint et al. (16 L. R. 387, and 1 R. R. 128) and Reviere v. Bossiere, (5 L. R. 382,) it is conceived that the court will entertain no doubt as to the legality, propriety and justice of affirming the judgment of the lower court. Beale v. Ricker, decided Feb. 23d, 1852.
    In addition to the code and the decisions of the court, on the subject of lesions, I refer to the following: Lahaye, Code Civil Annoté, p. 743, art. C. N. 1674, Duranton T. 16, No. 435.
    “ If the purchaser has purchased with a stipulation of no warranty, or if he expressly purchased at his own risk, he may be relieved.”
    In this ease there is a title in complete form, “with an express clause of all lawful warranties.” Samep. Troplong, N. 796. “ It will not destroy the rights of the vendor of the property, it a greater sum is inserted in the deed than is paid by the purchaser.”
    If, therefore, there had been forty deeds, expressing a fictitious consideration of millions, the case would be governed by the actual amount paid.
    Same, Duvergier, No. 85. “ The price paid by the purchaser, and the true value of the immovable, are the two terms of comparison in ascertaining the fact of lesion.”
    Same, p. 744, under C. N, 1675, Domat, No. 3. “As there is always more or less value attached to things, the estimate of the true value, to ascertain whether there is lesion, should be made at the highest price, at which the thing has been justly appraised, at the time of sale, because this price is just, and the injured vendor should be favored.” 1 Domat, p. 228, 3d ed. 1850. See No. 5, on p. 229.
    The highest price fixed by McMicken himself, is $70,000. See rule in Do-mat, p. 933, part 5. ed. 1850 — “not granted easily.”

      F. Q. and P. H. Morgan, for appellant.
   By the court:

Eustis, C. J.

This appeal is taken by Charles McMicken, from a judgment ofthe Court of the Sixth District, by which the plaintiffs recovered three-fourths’ interest in a tract of land, situated on the east bank of the river Mississippi, in the parish of East Baton Rouge. The judgment gave the defendant the right to retain the property on paying an additional price, and directed the sum paid by him, to be refunded in the event of his not electing to keep the property. The recovery was based upon lesion, in the purchase of the plantation from the agent of the plaintiffs’, by the defendant.

On this appeal, the only question presented, is that of lesion. It is not necessary to notice the complication in which this matter is involved, the parties themselves having no interest in it.

On the 19th of October, 1848, the plaintiffs, some of whom reside in Mexico, and others in Spain, by their agents, Otham L. Ddbestdn and Bernard Turpin, in the city of New Orleans, sold to the defendant, Charles McMieken, for $10,100, their three-fourths’ interest in the property, also their right, title and interest in a suit, in the Circuit of the United States for this district, against the heirs of John Davenport. Drafts were given for the price, which were duly paid.

The jury found the cash value of the property at the time of the sale, to be forty-one thousand two hundred and fifty dollars, thus establishing the lesion in the purchase, to be far beyond moiety. The property in dispute is known as the Davenport plantation, memorable in the annals of litigation, and the plaintiffs were adjudged to be the proprietors of three undivided fourths of it, as far back as August, 1832. 4th L. R. 275. A reservation was made in the judgment, which prevented any execution from being had of the judgment, until payment should be made for the improvements, &c. Fletcher's heirs v. Cuvelier, 10 L. R. 119.

It appears that on the 25th of June, 1848, previous to the sale to the defendant, the plaintiffs had recovered judgment against the heirs of Davenport, in the suit in the United States Court, for their three undivided fourths of the land, and that possession was delivered under said judgment, to the agents of the plaintiffs.

The charge against the defendant of taking advantage of the necessitous circumstances, and of the ignorance of the plaintiffs, and of imposing on them, is without the shadow of evidence. It is clear, that the agents of the plaintiffs, who sold the land, knew its value as well, if not better, than the purchaser, and no reason whatever is assigned for their sale to the defendant. They, sold to him, because they found it for their advantage, and could get a better price than from any body else.

We have recently given our views relating to the proof required to establish lesion, in order to avoid a sale. See the case of Ricker et al v. Beale, ante.

It is plain, that the value of an undivided interest in an estate, the title to which is drawn in question, is very difficult to be appreciated. In the present case, we deem it sufficient to state, that the lesion is not proved. That the defendant thought he had made a good bargain, and asked a large price for it, proves nothing. What did he make the purchase for except to make money? IkTc-Micken made a speculation, the result of which remains yet to be ascertained, and the defendants sold, because their agents thought they got a good price. No lesion can be predicated of a mere advantage, where there was no deceit, and the parties are equally apprised of the state of facts.

It is plain, that Me Mickcn having bought from the plaintiffs their rights in the suit in the United States Court, the validity of his title is dependent on the ultimate judgment in that suit, in which, even at this day, an appeal may b.e taken, by writ of error, by the heirs of Davenport.

The judgment of the district court is therefore reversed, and judgment ren¿ere(j for jhe appellee, Charles McMicken, on the plaintiffs’ claim on intervention, with costs in both courts, without prejudice to the rights of the plaintiffs to set aside the sale on other grounds.


author: Slidell, J. Preston, J.,

text:
    Horace Lozengheim v. Ursule Martin and Evans, Sheriff.
    The judgment of the district court was, that there he a separation of property between the parties, and that the wife recover one half of the property acquired during marriage. In order to effect a partition, the sheriff was directed to sell the property of the community and to pay one-half of the net proceeds to the wife. There was no specification of the community property in the petition, in the judgment of the court, nor in the evidence; nor was there any settlement of the community. The judgment of the district court was held to be erroneous; for, by Slidell, J., the judgment, on which the Jierifacias was issued, did not ascertain what property belonged to the community.
    from the District Court of St. Tammany, Penn, J.

      Griffon, for appellant. '

      Jones, for appellee.
   By the court (Preston, J., dissenting):

Slidell, J.

In March, 1850, TJrsule Martin brought a suit against her husband, Meyer, for a separation from bed and board, and obtained an order that he be enjoined from disposing of the community property during the pendency of the suit. No writ of injunction issued, but a citation was served upon Meyer, in April, 1850. Judgment of separation from bed and board was rendered in favor of the wife, -in October, 1850; and the decree further adjudges as follows: “It is further ordered, that a separation of property take place between said parties, and that she recover one-half of the property acquired during the marriage; and to effect a partition, that the sheriff be ordered to sell said community property and to pay one half of the net proceeds of the same to the plaintiff.” It will be observed, that this decree does not specify what was the community property; the plaintiff’s petition contained no such specifications; the evidence was equally silent on the subject, and no settlement whatever of the community appears to have taken place. Upon this judgment the wife obtained a fieri facias, in June, 1851, and caused a house and lot of ground, in the psssession of Lozengheim, to be seized. Thereupon, he brought the present suit to enjoin the sale, alleging that he bought the lot from Meyer in September, 1850; has paid the price, and has expended $400 in improvements. Mrs. Meyer answered, admitting the seizure, but alleging that the property belonged to the community which existed between herself and husband, and was lawfully seized under her judgment. There was judgment in the court below, dissolving the injunction, and condemning the plaintiff, and his surety in the injunction, to pay damages. The plaintiff has appealed.

We think the judgment of the district court was erroneous. The judgment on which tine fieri facias was issued, did not ascertain what property belonged to the community. It is uncertain, under the evidence in this cause, whether the property in question was bought by Meyer before or after his marriage. The wife should have resorted to an action against the purchaser, and so have that decreed, which her judgment against her husband has not decreed, namely, whether this property is or is not community property.

It is said that the judgment obtained by Mrs. Meyer became null, for want of seasonable execution, pursuant to article 2402. Our views above stated, render it unnecessary to expi'ess an opinion upon the point.

It is therefore decreed, that the judgment of the district court be reversed, and that the injunction be perpetual; the costs in both courts to be paid by the defendant, Ursule Martin, reserving to her her right to bring an action against the plaintiff to set aside the alienation.

Preston, J.,

dissenting. On the 4th of March, 1850, TJrsule Martin commenced a suit against her husband for a separation of property, and enjoined him from disposing of their community property during the pendency of the suit. On the 12th of October, 1850, she obtained judgment in her favor, and decreeing, that a lot in the town of Mandeville should be sold, and the net proceeds divided between them. She, however, did not issue execution until the 15th of June, 1051. But, during the pendency of the suit, on the 9th of September, 1850, the husband, in the city of New Orleans, sold the lot to the plaintiff, who alleges that he placed improvements on it before the execution was issued, amounting to $400. In fact, from some cause, he commenced improving the property before the bill of sale was passed.

The plaintiff contends, that the decree of separation is forfeited, and the community not dissolved, as it has not been followed by a prompt and bona fide execution. I am unable to say there has been such neglect on behalf of the wife, in following up her judgment by execution, as to forfeit her rights under the judgment. Third persons can take advantage of the failure of the wife to issue execution on her judgment, only so far as they are injured; and, the district court would undoubtedly provide, in the distribution of the proceeds of the sale of the property, by allowing the plaintiff for any valuable improvement made after the judgment and before execution.

2d. It is contended, that it is not alleged, or shown that the parties were married at the time the properly was acquired by the husband. I think the evidence leaves no doubt of the marriage; and it appears by plaintiff’s bill of sale, that he knew a suit was pending for separation from bed and board. Now, at the dissolution of the marriage, all property is presumed to belong to the community of acquets, and it becomes those who are interested to show the contrary, to prove it.

3d. It is argued that, even if the property belonged to the community, the husband could legally alienate it. He cannot do so after suit brought for a separation of property, and an order of court to the husband forbidding him to dispose of it.

4th. That no injunction was obtained, or notified to the husband, to prevent his alienating the property during the suit. It was not necessary. He was ordered not to do so, and an order accompanied the petition.

The 5th ground taken has no relevancy to the case.

6th. That the defendant cannot be made to profit by a state of things which she has brought about by her own laches.

I think that she was neglectful in executing her judgment, and that the court, in distributing the proceeds of the sale, should provide equitably for any value the plaintiff added to the property after judgment and before execution; and, indeed, for any other improvements, so far as they may add to the saleable value of the properly, unless it should appear that the plaintiff acted in bad faith, which does not, so far, appear.

The wife has a right, by her judgment, to the half of the community property; and, as that in controversy is indivisible in kind to its partition by licitation, that would be the only effect of the execution.

I think the judgment of the district court should be affirmed.


author: Rost, J.

text:
    Jefferson and Pontchartrain Railroad Company v. Thomas Hazeur & Co.
    On an applicaiion by a railroad company to expropriate lands, if it should appear that the company has already a sufficient quantity for its purpose, the court should refuse an order to summon a jury to assess its value; and should such an order be improvidently granted, before action upon it, it is proper for the court to rescind it.
    Upon such an application it is not necessary for the owner to raise the objection, in his pleadings, that the company has already land enoughforits purpose. The court, upon ascertaining the facts, will act upon them and refuse the order, or if granted, rescind it.
    The right of expropriation should only be enforced by inches, and upon conclusive proof of the necessity upon which it rests.
    APPEAL from the District Court of the Parish of Jefferson.

      Benjamin and Micou, for plaintiffs.

      Ogden and Duncan, for defendants.
   By the court:

Rost, J.

We concur with the district judge, that the plaintiffs have not made out a case which entitles them to the order for which they applied, for the purpose of expropriating the defendants’land. The tract of land which they already own, and through the centre of which the railroad passes, is three hundred and eighty-three feet wide, and has that extent of front on Lake Pontchartrain. Their charter limits the right of expropriation, which it gives them to the width of one'hundred feet for the railway, and.to such lands as may be necessary for car-houses and other works connected with the railroad. In the absence of all proof to the contrary, the district judge correctly considered the land already owned by them as sufficient for all those purposes.

It is said that the defendants have not raised this objection in their pleadings. We think that when application was made to the district judge ex parte for an order summoning a jury of commissioners to estimate the land of the defendants, it would have been his duty to refuse it if he had known, at the time, that the plaintiffs had sufficient land of their own; and as he ascertained, before any action was had on the order, that it had been improvidently granted, he acted properly in rescinding it and dismissing the petition.

The right of expropriation should only be enforced by inches, and upon conclusive proof of the necessity upon which it rests.

The judgment is affirmed, with costs.

Slideli,, J. The case came before us on exceptions taken in limine litis to a petition for expropriations under a special act. See Acts of 1840, p. 86, sec. 13.

The district judge dismissed the proceeding.

Without expressing an opinion upon other points, 1 consider it a sufficient reason for not disturbing the judgment, that one of the exceptions is well taken. The survey annexed to. the petition does not comply with that portion of the requisition contained in the 13th section, which relates to the quality of the land proposed to be taken, and the improvements thereon.


text:
    Rogers v. Walker.
    A. who had a son by a former marriage, married B., by whom also he had a child; both A. and B.died. C., the brother of B., obtained administration on both successions; the child of B. dying, the tutor of the child, by the former marriage, sought to annul the letters of administration of C., and obtain them for himself. Held: B. left a child, the issue of her marriage with A.; the subsequent death of that child, cannot render the administration of C. illegal
    APPEAL from the Fifth District Court of New Orleans.

      Benjamin and Micou, for plaintiff.

      T. A. Bartlette, for defendent.
   By the court:

Rost, J.

The reasons given by the district judge, to set aside the appointment of James Walsh, as administrator of Charles O'Keefe and of his second wife, Ellen Walsh, are not satisfactory to us.

Rogers, as tutor of a son of O’Keefe by a former marriage, had no claim whatever to the administration of the succession of Ellen Walsh, at the time of the appointment, she having left a child, the issue of her marriage with O’Keefe ; the subsequent death of that child, cannot render the administration of Walsh illegal.

From the very circumstance that Walsh applied for the administration, the court must have presumed that there were heirs present; they are presumed to have had notice of the application, and if they did not see fit or were not at the time in a situation to oppose it, the appointment made, according to the forms of law, should be sustained. If the minor has been injured by the acts of the administrator, he has his recourse against him, and his surety on then-bond ; but we see no ground for disturbing the sale of the house and lot made to Mrs. Walker.

It is ordered, that the judgment in these consolidated cases be reversed. It is further ordered, that in the case of David J. Rogers, tutor, v. Mrs. C. L. C. Walker et al., there be judgment in favor of the defendants, with costs in both courts.

It is further ordered, that in the case of the succession of Charles O’Keefe and wife, the account of administration, filed by James Walsh, be reinstated, and the case remanded for further proceedings on said account, according to law. The costs of the appeal to be paid by the succession.


text:
    William Ward v. John Valentine, Curator.
    In an action, brought many years after its alleged maturity, to recover the contents of a destroyed promissory note, and the only evidence of the original contract is the testimony of the plaintiff's brother that the maker acknowledged it; and it also appears that the maker lived two years after the alleged acknowledgment, and was solvent, yet, that no steps had been taken to recover it during his lifetime. Upon such testimony, it was held that the plaintiff could not recover without strong corroborating circumstances.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      John Finney, for plaintiff.

      A. A. Frayser, for defendant.
   By the court :

Rost, J.

The plaintiff claimsfrom the curator of Hiram, Goodrich, deceased, $500, it being the amount of a negotiable note of Goodrich, alleged to have been destroyed by fire, together with interest at the rate of six per cent per annum since the maturity of the note on the 9th day of August, 1840, according to the laws of Pennsylvania, where the note is said to have been given.

This action was commenced in 1849, and the defendant has pleaded the general issue and the prescription of five years; there was judgment in his favor, and the plaintiff appealed.

The only evidence'of the original contract is contained in the acknowledgment of the defendant, relied upon to get rid of the plea of prescription, and that acknowledgment is attempted to be proved by the naked testimony of the plaintiff’s own brother. Under the peculiar aspect of the case, his evidence was not satisfactory to the district judge to prove even the original obligation, and we cannot say that he erred.

Near relationship of witnesses to the parties to the suit, goes to their credibility, and the present record discloses a circumstance which makes it necessary to give effect to that rule. Goodrich lived two years after the alleged acknowledgment and promise to pay were made, and is shown to have been solvent; yet no steps were taken by the plaintiff to coerce payment in his lifetime. The evidence of his declarations, given after his death, by one whom the law presumes a partial witness, is not of such a character as a court of justice can act upon, unless it is attended with strong corroborating circumstances, which are totally wanting in this case.

The plaintiff relies, also, upon the testimony of Postley, in whose hands a note, purporting to be signed by Hiram Goodrich, had been placed for collection by the plaintiff, in the State of Pennsylvania; but as that witness states that he did not know the signature of Goodrich, and could not say that the original note, or the statement at the foot of the copy, made of it after it was destroyed by fire, while in his possession, were in the hand-writing of Goodrich or signed by him, his testimony, taken by itself, proves nothing, and is insufficient to verify the declarations of the other witness.

The judgment is affirmed, with costs.

        Eustis, C. J., did not sit in this case.