text:
    Ellen P. Beauchamp v. H. F. Whittington et al.
    The minor who has been emancipated by marriage, since dissolved by death, may lawfully sue, without the aid of a curator ad litem.

    A renunciation by the wife of her right of mortgage on her property, sold by the husband, is not an alienation of her title.
    In a petitory action by the wife, for her property, sold by her husband, testimony to prove an account against the wife, and that the items thereof were a part of the consideration of the sale by the husband, and enured to her benefit, is inadmissable.
    When one is called in warranty, and there is no notice of the call in warranty in the judgment of the District Court, the omission will not be noticed in the Supreme Court unless the warrantor be made party to the appeal.
    from the District Court of St. Landry.

      T. H. Lewis and Porter, for plaintiff.

      J. E. King and Cullum, for defendant and appellant.
   Voorhies, J.

This is a petitory action, in which the plaintiff claims the ownership of three slaves, described in her petition as Elisha, John, and Sultey or Susan, whom she inherited from the succession of her decased mother, Mary Montgomery. She alleges that her husband, Herbert F. Whittington., sold these slaves to Thomas M. Anderson, the other defendant, for the price of $1500, by notarial act, dated the 29th of September, 1851, in which she was made a party, and induced by her husband to make a pretended renunciation of her right of mortgage on them, the said Anderson knowing full well her right of ownership, and her incapacity to contract, as she was then a minor; that said renunciation and sale being in contravention of law, and as such, null and void, the defendant, Anderson, is therefore liable to her, not only for the hire of said slaves, at the rate of $450 per annum, but for their delivery, or, in default thereof, for the payment of $3000, as their value, with interest. She, therefore, prays to be decreed to be the owner of said slaves; that said pretended sale and renunciation be set aside, and declared null and void; that she recover said slaves of said Anderson, together with the sum of $450 per annum, as their hire until delivered up, and in default of his delivering them up, that she recover of him the sum of $3000 as their value.

The defendant, Anderson, pleaded the general issue, and subsequently, by an amended answer, averred that he had recently learned that the plaintiff was a minor, and could not bring this suit; and further, that his co-defendant, Whit-tington, having died since the institution of the suit, it was necessary to revive the same against his legal representative to answer his call in warranty. An order was accordingly granted, and A. Garrigues, Clerk, as curator of Whitting-ton's estate, filed an answer, setting up the general issue.

Upon these pleadings, and the evidence adduced on the trial, the District Court rendered judgment in favor of the plaintiff, and the defendant alone appealed.

The first question presented for our solution is, whether the plaintiff was legally authorized by the District Court to bring this suit. We do not think the District Judge erred in considering the appellant’s objection on that score untenable. “ The minor is emancipated of right by marriage.” Thus emancipated, he can appear in courts of justice without the assistance of a curator ad litem._ C. C., 367, 368, 378. Under Article 105 of the Code of Practice, we think the plaintiff was properly authorized to bring the present suit, and, besides, if any disability existed, it was clearly removed by the death of her husband when the appellant’s amended answer was filed. And it is well settled, that the wife, who is a minor when her husband dies, does not return to a state of pupilage. 7 R., 346.

Our attention has been called to a bill of exceptions in the record. Under the pleadings, we are of opinion the District Judge did not err in ruling out the appellant’s evidence, offered for the purpose of proving the items of his account, exhibited against the plaintiff from the year 1848 to the date of the sale in question, and that the items thus furnished to her constituted part of the price of the property in controversy, and inured to her benefit.

On the merits, it is satisfactorily proved that the plaintiff acquired her title to the property in controversy by inheritance, as alleged in her petition. We think it is clear that the divestiture of her title did not result from the conveyance of her husband to the appellant. Even conceding her renunciation as binding upon her, still we are at a loss to discover how it could be viewed as a divestiture of her title, inasmuch as it was merely a renunciation of her right of mortgage. But it appears to us clear, under the Act of 1835, that her renunciation must be considered void.

It is objected by the appellant, that the judgment is erroneous, inasmuch as it is silent in regard to his claim in warranty. It is enough to say, in answer to this objection, that the representative of the estate of Whittington has not been made a party to this appeal.

It is, therefore, ordered and decreed, that the judgment of the District Court be affirmed, with costs.


source: Caselaw Access Project

author: Merrick, C. J.

license: Public Domain

text:
    F. L. Mudd v. Harrison Rogers, Sheriff, et. al.
    A surety who sues his principal to be indemnified on account of his liability, under Article 8026, C. 0., is not entitled to garnishee a debtor of the principal, by propounding interrogatories, prior to judgment.
    The surety of a Sheriff who is a defaulter for State taxes collected, and is insolvent, is entitled to a judgment against his principal for the amount of the defalcation — the officers executing the judgment, to pay into the Treasury the amount collected thereon.
    from the District Court of St. Landry.

      T. H Lewis & Porter, for plaintiff and appellant.

      Mouton & Linton, for defendant.

      King, for intervenors.
   Merrick, C. J.

This suit was instituted by the plaintiff, as one of the sureties of the defendant, Harrison Pagers, Sheriff of the parish of St. Landry, to compel the defendant to indemnify the plaintiff as such surety.

It appears that on the 23d day of May, 1848, the Sheriff and his sureties signed the official bond in favor of the Governor of the State, for the collection of the State taxes, of the year 1846, for the parish of St. Landry.

For a balance of the taxes of 1846, amounting to $8,484 74, as well as for the years of 1849 and 1860, (also for large amounts,) the Sheriff was reported by the Auditor in January, 1863, to be a defaulter.

This suit was instituted in February, A. D. 1863, praying that the defendant, Rogers, be decreed to indemnify the plaintiff, and also making the defendants, T. 0. Anderson & Oo., parties, and propounding interrogatories on facts and articles to them, requiring them to disclose the amount of funds they have on hand, on deposit, belonging to the defendant Rogers.

T. 0. Anderson & Oo. answer the interrogatories, admitting that they have, in the aggregate, $3,660 46, due by them to Harrison Rogers.

Plaintiff asks in his brief that T. O. Anderson & Oo. be decreed to pay the amount in their hands into the State Treasury, in order to indemnify the plaintiff as far as this sum goes against his liability as surety.

Certain sureties on the subsequent bonds of the Sheriff intervened and prayed that the fund in the hands of Messrs. T. O. Anderson <& Oo. be retained until the suits on the part of the State against Rogers and his sureties were decided, and that the sum be distributed equally among the “ respondents.”

The Judge of the lower Court dismissed the proceedings against T. O. Anderson & Oo., in the nature of a garnishment, and also'dismissed the intervention. He decreed in general terms that the plaintiff be fully indemnified by the Sheriff Rogers, against the payment of the sum appearing due by the Auditor’s report for the taxes of 1846.

The intervenors have not perfected their appeal by giving bond. The plaintiff alone brings up the record, and we are only required to pass upon the caase as presented by the original parties to it.

The plaintiff relies upon Articles No. 3026 and 3021, of the Civil Code for a reversal of the judgment, and insists that the sum of money in the hands of T. O. Anderson & Oo. ought to be applied by a decree of this Court to the extinguishment 'pro tanto of the liability of Rogers, for the taxes of 1846, and that unless this be done, the Article of the Code will remain, as to this case, inoperative.

If; is argued that, as the Article 8026 provides that the surety may bring his suit against the debtor to be indemnified, in the cases therein enumerated, that the mode adopted in this case, by way of garnishment, to compel T. G. Anderson & Go. to pay into the State Treasury the funds in their hands, is within the spirit and equity of the above-mentioned Article, and Article 21 of the Civil Code.

We think the difficulty arises in this case by supposing the word “ indemnified,” used in the Article No. 8026, has a more extensive signification than it really has.

If the plaintiff had actually paid the debt to the State he would not have had the right on the state of facts existing to commence his suit for re-payment by way of garnishment. It can therefore hardly be supposed that the Legislature intended to confer this extraordinary remedy in a case where there had been no payment at all. Were we to allow this mode of proceeding, it would give the surety a privilege upon such active debts of the principal debtor as he might choose to claim. The principle, once admitted, would extend also to the movables, immovables and slaves, and thus confer a complete privilege upon the surety, whore the creditor himself would be invested with no such right, and, consequently, could not subrogate the surety to a right of which he was not the owner.

We think, therefore, that there is no error in the judgment of the lower Court, so far as it dismissed the proceedings against T. G. Anderson & Go.

We think, with the Judge of the lower Court, that the plaintiff is entitled to the indemnity provided by Article 3026 of the Civil Code. The evidence shows that the debt on account of the obligation to collect the taxes was due by the expiration of the term for which it was contracted. In other words, the Sheriff having failed to pajr the balance due by him in the time reauired by law, was declared by the proper authority a defaulter.

The testimony tends strongly to show that he is also in insolvent circumstances.

It is difficult to conceive in what manner the judgment of the lower Court, which simply decrees that, “ The plaintiff be fully indemnified by the said Harrison Bogers, as his surety on his bond for the year eighteen hundred and forty-six, against the sum appearing by the Auditor’s report herein filed, to be due the State of Louisiana by the said Harrison Bogers, Sheriff, and the interest thereon accrued, and that the said Bogers fully indemnify said plaintiff against any eventual loss he may sustain, as his surety aforesaid, on his bond as collector of State taxes, for the year 1846,” can be enforced. Who shall determine what is a compliance with this-judgment ? Does it require real or personal security ?

The plaintiff, if entitled .to anything, is entitled to a decree more definite in its terms. XIV Duranton, No. 359..

In this case we think the plaintiff should have judgment for the amount of the Sheriff’s defalcation to the State for the tax of the year 1846, and the interest thereon allowed by law, and that the money made upon such judgment be paid into the State Treasury, in extinguishment of the balance of taxes due by the defendant for the taxes of the year 1846, and that any payment which the defendant, Bogers, shall make upon said balance of taxes for the year 1846 be credited upon this judgment.

it is therefore ordered, adjudged and decreed by the Court, that so much of the judgment of the lower Court as dismisses this suit as to T. 0. Anderson & Go. be affirmed: And it is further ordered, adjudged and decreed, that the judgment against the said Harrison Rogers be avoided an d reversed; and now proceeding to pronounce such judgment as should have been rendered by the. lower Court, it is ordered, adjudged and decreed, that the plaintiff, Ferdinand L. Mudd, do have and recover judgment against said defendant, Hm'rison Rogers, for the said sum of eight thousand four hundred and eighty-four and seventy-four one-hundreths dollars, with interest thereon at the rate of ten per cent, per month, from the-day of January, 1849, until paid, and that the officers charged with the execution of this judgment do pay into the State Treasury, and to the proper officer of the State of Louisiana, whatever sum may be made upon this judgment, to be imputed to the balance of taxes due by said Rogers, for the taxes of the year A. D. 1846; and it is further ordered, that whatever payment the said defendant may make to the State of Louisiana, on said balance of taxes, and interest thereon, for the year 1846, be allowed as a credit upon this judgment — it being understood that a satisfaction of said balance due the State for the taxes of the year 1846, and interest, is also a satisfaction of this jugment; and it is further ordered that said defendant, Rogers, pay the costs in both Courts.


text:
    Richard E. Bolling, Under Tutor, etc., v. T. M. Anderson et al.
    IVhere the petition oí appeal does not contain a prayer for citation, and the appellee has not been cited, the appeal ttill.be dismissed.
    from the District Court of St. Landry.

      Swayze & Moore, for plaintiff.

      T. H. Lewis and Perrier, for defendant and appellant.
   Merrick, C. J.

The appeal in this case was applied for by petition at chambers, after the adjournment of court.

The petition for an appeal does not pray for a citation, nor does it appear that the appellant ever applied for one. The plaintiff and appellee prays for a dismissal of the appeal, on the ground that he has not been cited to appear in the appellate court.

The authority of the cases .of Walker et al. v. Martolo, 18 L. R., 50, and Hezekiah Pratt v. James Erwin, 6 An. Rep., 115, are decisive, and the motion to dismiss must prevail.

It is therefore ordered', adjudged and decreed that the appeal in this case he dismissed, at the costs of the appellant.


author: Spofford, J.

text:
    Leonora, f. w. c., v. E. P. Scott, Executor, etc.
    A bequest in these words, “ I give and bequeath to my child, J. D., $8000, to be paid him on his attaining the age of twenty-one years,” is an absolute gift which does not lapse by the death of the child before attaining his majority, but vests immediately in the heir of the child} on the death of the latter.
    When, in such a bequest, the testator directs interest on the legacy to be paid for the support and maintenance of the child, the heir of the child will be entitled to the interest also.
    from the District Court of St. Martin.

      E. Simon, for plaintiff.

      J. G. Olivier, for defendant and appellant.
   Spofford, J.

Certain provisions in the last will and testament of Douglas Wilkins, deceased, have given rise to this suit.

Several points were mooted in the court below, and generally decided in favor of the plaintiff. The defendant has appealed; and the plaintiff, in answer to the appeal, has prayed that the judgment be reformed in her favor, as to the interest alone.

The appellant’s counsel, in his argument,has raised hut one issue in this court, to which we shall accordingly confine our remarks.

The question is, whether a legacy in favor of a natural child of the plaintiff, who has died since the testator, lapsed by the subsequent death of the child, and fell to the residuary legatee ? In other words, whether the testamentary disposition in question was conditional upon an uncertain event, or absolute, so far as to vest a transmissible right in the child at the moment of the testator’s death, although accompanied by a condition which suspended its execution for a term ?

After acknowledging in his will that Joseph Douglas and Charles Dudley are his natural children by the plaintiff, a mulattress, and providing that the manumis. sion of the mother and children should be perfected according to law, the testa* tor made the following bequest:

“Thirdly, I hereby give to the said Leonora an annuity of one hundred and fifty dollars a year during her natural life, as a charge upon my whole estate.

“ Fourthly, I give and bequeath unto my natural son, Joseph Douglas, three thousand dollars, and unto my natural son, Charles Dudley, two thousand doR lars, to "he paid to them respectively on their attaining the age of twenty-one years. It is further my will that, as soon as they shall be old enough to be separated from their mother, my executors shall send them to some State of the. Union in which slavery is not tolerated, to be instructed in reading, writing andj arithmetic, and in some mechanical art or trade.

It is.further my wish, that interest at the rate of 8 per cent, per- annum on the. said sums of three and two thousand dollars, from the time of my death, shall be appropriated for the maintenance and instruction of my said natural children, as aforesaid, the said interest to he equally divided between the said children.

Douglas Wilkins, the testator, died on the 2d December, 1847, and his succession being opened in the parish of St. Martin, was inventoried at the sum of-$62,725 28.

The emancipation of Leonora and her two children was effected, the children, remained with the mother until early in 1849, when one of them, viz., Joseph, Douglas, died; the plaintiff is tutrix of the survivor, Charles Dudley.

The appellant maintains that there is dedueible from the whole will a manifest intention on the part of the testator to give a legacy of three thousand dollars to Joseph Douglas, only upon condition that he should live to the age of twenty-one years; and the-fact that so small an annuity is left to the plaintiff is urged as favoring this construction.

The case is controlled hy the following articles of the Civil Code :

“Art. 1091. Every testamentary disposition made on a condition depending on an uncertain event, so that in the intention of the testator the disposition shall take place only inasmuch as the event shall or shall not happen, is without effect, if the instituted heir or legatee dies before the accomplishment of the condition.”

“Art. 1092. A condition which, in the intention of the testator, does but suspend the execution of the disposition, does not hinder the instituted heir or the legatee from having a right acquired and transmissible to his heirs.”

“Art. 1705. In the interpretation of acts of last will, the intention of the testator must principally be endeavored to be ascertained, without departing, however, from the proper signification of the terms of the testament.”

To hold that the bequest to Joseph Douglas was conditioned upon his reaching the age of majority, would require us to depart from the proper signification of the terms used by Douglas Wilkins. The gift is absolute; the term of payment is fixed at the period of the legatee’s majority ; purum legatum esl, quia non condiiione, sed mora suspendilur. Dig. De Cond. et Demon., L., 79. The articles 1(391, 1692 of the Louisiana Code are identically the articles 1040,1041 of the Napoleon Code. In commenting upon the latter articles, Toulliev says: “ Je donne á Paul 3000f., qui lui seront comptés le jour de sa majorité. II n’y a U'l qu’un terme et non une condition. Si Paul meurt avant avoir atteint sa ma-jorité, le legs est transmis a ses héritiers,” etc. Toullier, vol. 5, No. 674.

The inference sought to be drawn by the appellant from the modicity of the bequest to Leonora, is too doubtful and remote to rebut the plain expressions of the testator’s will. If we were to resort to other parts of the instrument to elucidate the intention of the bequest to Joseph Douglas, we should also be obliged to consider that disposition by which the testator requests interest at the rate of 8 per cent, per annum to be paid thereupon from the time of his own decease, a provision difficult to be understood, if he had not absolutely bequeathed a principal sum to the legatee as a foundation for the demand for interest.

Upon this bran'ch of the ease we find no error in the judgment of the District Court.

But it appears that there was error to the prejudice of the appellee in not carrying out the intention of the testator as to the interest, which is due, by the terms of the will, upon the amounts of the legacies, from the day of his death.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be so amended as to allow the plaintiff interest upon the sum of three thousand dollars, awarded to her in her own right, as heir to Joseph Douglas, deceased, at the rate of 8 per cent, per annum from the 2d December, 1847, until paid, and a like interest from the same date, until paid, upon the sum of two thousand dollars, awarded to her as the tutrix of Charles Dudley. It is further ordered and decreed that, in all other respects, the said judgment be affirmed, the costs of appeal to be paid by the defendants and appellants.


author: Lea, J.

text:
    Succession of Thibodaux, On the Opposition of Mrs. Roger.
    The right of a wife to a distributive shave of a succession, is not compensated by law by a debt due the estate by the husband for the purchase of property at the succession sale.
    PPEAL from the District Court of St. Martin.
    iX A. Dablanc, for administrator.

      E. H. Moulon, for opponent and appellant.
   Lea, J.

The only question presented for solution in this case is, whether an administrator 'has a right to deduct from the distributive share of a married woman in a succession the amount of a purchase made by her husband.

In the account of the administration of the succession of Thibodaux, the administrator deducts from the share of Mrs. Roger the amount due by her husband for the price of a slave and gun purchased by him. To this she makes opposition, claiming the whole amount, witho it deduction, as her paraphernal property. The only question, therefore, is, whether compensation took place by operation of law between the debt due by the husband and the amount to be distributed to the wife by the tableau.

It may be assumed that a husband who administers the paraphernal property of the wife, may make purchases at a sale of the property of a succession in which she is interested, and where the portion of the wife is, by consent, impute d to the extinguishment of the price to be paid by him, that he will be responsible to her; but in the case at bar no such settlement of the husband’s debt was made. The administrator held the husband’s notes, (which, in the meantime, became prescribed,) trusting to be reimbursed from the amount which would be due to the wife from the father’s succession.

Mrs. Roger could receive nothing from the succession administered by Comeau until a distribution of the assets had been homologated; and before this was done, Mrs. Roger, by her opposition, claimed it in her own name as paraphernal property.

It is clear that there could be no compensation by operation of law in such a case, and equally clear that a debt due by the husband cannot, against her consent, compensate by anticipation claims subsequently accruing to the wife. We think, therefore, that there is error in the judgment of the District Court.

It is therefore ordered that the judgment appealed from be reversed ; and proceeding to render such judgment as, in our opinion, should have been rendered, it is ordered that Mrs. Melanie Roger do have and recover of Charles Comeau, administrator of the succession of Anselme Thibodaux, the sum of $819 44, as the distributive share for which she should have been placed on the tableau. It is further ordered that the appellee pay the costs in both courts.


text:
    White, Stevens & Co. v. Thos. M. Tucker.
    Where a factor’s agent makes an advance to a planter expressly on behalf of his principal, the planter cannot plead in compensation of the factor’s claim for advances an individual debt due him by the agent.
    from the District Court of St. Mary.

      E. C. Brent, for plaintiffs and appellants.

      J. G. Olivier, for defendant.
   Lea, J.

This is a suit to recover an alleged balance of an account growing out of transactions between the plaintiffs and the defendant.

;f|The plaintiffs claim a balance of $2230 75, due them for advances, commissions and interest, after deducting the proceeds of sales made for defendant’s account, as his factors; also, $78 61 for commissions on crops on which they had made advances, but which were not shipped to them as by agreement.

The answer is, substantially, a general denial of the allegations of the petition. The defendant denies that any advance was made by the plaintiffs or to any one for him, with his consent, or that he was under any obligations to send the crop of I860 or 1851 to the plaintiffs; but he alleges that the plaintiffs owe him the sum of $5014 72, the proceeds of 95 hogsheads of sugar and 120 barrels of molasses, sold by the plaintiffs for account of respondent.

Inasmuch as the proceeds of the sugar and molasses are credited to the defendant in the plaintiffs’ account, to the full extent claimed by him, it is only necessary to examine the correctness of the charges against him. These consist of an advance of $7000, with the difference of exchange thereon, and the interest as calculated in the account. At the time the advance was made, McMain, who was the agent of the plaintiffs, was indebted to the defendant ; but it appears from the testimony of both McMain and Vose that the advance of $7000 was made by McMain for the account of White, Stevens & Co., and as their agent, and was also made as an advance upon the defendant’s growing crop. It appears, further, that when the account of sales was presented to the defendant, he admitted its correctness, with the exception of a trifling charge for insurance, which is otherwise sufficiently proved.

The whole difficulty seems to grow out of the fact that at the time the advance was made, McMain was indebted on his individual account to the defendant ; but if the positive testimony of both McMain and Vose is to be believed, (and no attempt has been made to discredit them, nor has any allegation of fraud been made,) it is clear that defendant perfectly understood that the advance made to him was made by McMain in his capacity as agent of the plaintiffs, and for their account. If so, the balance cannot be compensated by the debt (if any) due to the defendant by McMain.

A majority of the court are of the opinion that the evidence is insufficient to support the claim for commissions charged on the crop which the defendant failed to ship them as stipulated in his alleged agreement.

It is ordered that the judgment appealed from be amended, so as to read as follows: It is ordered that the plaintiffs, White, Stevens & Co., do have and recover of the defendant, Thomas M. Tucker, the sum of $2230 75, with interest thereon at the rate of 5 per cent, per annum from the 1st day of November, 1850, till paid, arid that the defendant, Thomas M. Tucker, pay the costs in both courts.


author: Buchanan, J.

text:
    Pierre Wartelle v. Amelia M. King et al.
    Actions for torts sounding in damages are prescribed by one year.
    An action instituted on the 14th day of the month, for a tort committed on the 13th day of the same month of the preceding year, is prescribed.
    from the District Court of St. Landry.

      J. G. Olivier, and Garland & Lestrapes, for plaintiff.

      T. H. Lewis and Porter and Swoyze, for appellants.
   Buchanan, J.

The defendants purchased, on the 6th January, 1852, at probate sale, a tract of land belonging to the succession of George King, deceased. The plaintiff had, by sufferance of the owner, enclosed and cultivated this land, (which adjoined land belonging to himself,) for several years. That the plaintiff had no title to the land himself, and that the same belonged to George King's succession, is not only proved by his acknowledgments, as testified by his own witness, but by his act, in attending the probate sale, and bidding for the property. In fact, the ownership of the land is stated in the petition to have been in King’s estate.

Plaintiff’s evidence also shows, that after this probate sale, plaintiff made a voyage to Prance, and, on the eve of his departure, ordered his overseer to cultivate this land, after it had been thus adjudicated to the defendants, in his presence, and with his consent. In conformity to this order, plaintiff’s overseer planted corn and cotton on a portion of the land in question. It must be observed, that at the time of the adjudication, there was some stubble cane on the land, which plaintiff reserved the right of digging up, in order, as he expressed himself, “ that defendants would not get the benefit of the stubble.”

Under these circumstances, after demands of possession of the land, made verbally through a mutual friend of the parties, and in writing by a letter to the plaintiff’s wife, (plaintiff being absent from the State,) the defendants, on the 10th April, 1852, wrote formal notifications to the overseer of plaintiff, and to himself and wife, not to continue to cultivate and possess the land, under pain of being treated as trespassers.

The letter to the overseer is proved to have been delivered to him on the 18th April, 1852. The letter to plaintiff and wife is alleged in the petition to have been given to Mrs. Wartelle some days previously; but in the argument in this court, both the'letters are assumed to have been delivered on the same day, the 13th April, 1852. The letter to Mrs. Wartelle concludes as follows: “Now, therefore, you are hereby again warned, and for the last time, to desist at once from the further cultivation of said land, and required, as you have been heretofore repeatedly required, forthwith to remove, or cause to be removed, from said land, all the enclosures which you claim to belong to you. You are notified, that in the event of your refusal or failure to desist from the cultivation of said land, or to remove those enclosures therefrom, that they will hold you responsible in damages in a civil action; that they will proceed against you as trespassers, under the criminal laws of the State ; and further, that they will, immediately after the igth day of the present month, proceed to cause said enclosures to be removed, forcibly, if necessary.”

The plaintiff’s agent complied with this requisition, and removed the enclosures around the land purchased by the defendants at the probate sale, as aforesaid, on the next day after receiving the notices. The consequence of removing these enclosures, is alleged in the petition to have been, that the cattle from the adjoining prairies entered upon the land, and destroyed the growing crop of corn, cotton and sugar cane. For the loss thus sustained, plaintiff brought, on the 14th April, 1853, this action against defendants, assessing the damages in his petition at five thousand dollars, which sum he claims in solido from George R. King and his mother and sisters, who signed the letter to plaintiff and wife of the 10th April, 1852, and of Harrison Rogers, who has no interest in the land, but who was simply the bearer of the letter in question.

The above is a statement of the material facts, taken from the petition and the evidence; and it might well be questioned whether they disclose any cause of action whatever. No exception of this sort was taken, however, but the parties have treated the contest as a serious one; and the jury have assuredly so considered it, for they have given a verdict against all the parties, letter carrier as well as letter writers, in solido, for one thousand dollars.

A plea of prescription, interposed by II. Rogers in the District Court, and by his co-defendants in this court, will spare us the disagreeable task of investigating the merits of this family quarrel.

By Article 3501 of the Louisiana Code, actions sounding in damages for torts are prescribed by one year. Hennen’s Digest, page 1272, No. 3. This year must be computed from and after the day of the commission of the tortious act. C. C., 3430; 3 An., 528.

The alleged tortious acts, committed by the defendants, were the writing and sending of a threatening letter, by all the defendants, except Harrison Rogers, and the carrying and delivery of the said letter by defendant Harrison Rogers. The destruction of the enclosures around the crop planted by plaintiff, which destruction aforded ingress to wandering cattle, and the consequent destruction of the crop, were not acts of the defendants. The counsel of plaintiff contends that, plaintiff’s agents would not have removed the inclosüre, had it not been for the terror inspired by the threat, contained in the conclusion of the letter, that defendants would forcibly remove the enclosures, unless they were removed by plaintiff. Even so : But the fright caused by the reception of this letter cannot render defendants responsible for the subsequent acts of plaintiff’s agents, unless those acts were the inevitable consequence of defendants’ menaces; as if, for instance, the defendants had, with arms in their hands, compelled plaintiff’s agents to remove the fences, under the apprehension of bodily harm had they not done so. But so far is that from being the case, that defendants offer to plaintiff’s agents the option of removing the fences themselves, or of seeing them removed by defendants. And a day is fixed by the notice, two days after the reception of the same, on which defendants will proceed to remove the fences. This notice was given in ample time for the plaintiff’s agents to have applied to the competent court for an injunction against the threatened act of defendants; and we cannot presume that the defendants would have disregarded an injunction, had such a writ been issued.

Under these circumstances, the act of destroying the fences is net to he viewed as the act of defendants; and the prescription mentioned above, commenced running from the 18th April, 1852. The first day of the year following the tortious act complained of, was the 14th April, 1852, and the last day of that year was the 13th April, 1853. This action was instituted only on the 14th April, 1853, on which day some of the defendants were served with citation. But the prescription was already acquired.

It is, therefore, adjudged and decreed, that the judgment of the District Court he reversed, and that there be judgment for defendants, with costs in both courts.


author: Vookhies, J.

text:
    J. A. Bonnafon, Administrator, v. J. Wiltz.
    A bill of exceptions which does not set forth the grounds upon which testimony was ruled out, will not be noticed. And so, with a bill which does not show the inateriality of the testimony of a witness offered and rejected as incompetent.
    An action against a tutor is prescribed by four years from the majprity of the ward.
    The proper mode of recovering property held under a simulated title, is by the action of revendi-cation.
    PPEAL from the District Court of St. Martin..

      A. Debíame, for plaintiff and appellant.

      E. Manejé and E. 3. Mouton, for defendant.
   Vookhies, J.

This suit is brought by the plaintiff as administrator of the succession of Sosthene Wilts, deceased. He alleges that the defendant was appointed the tutor of the deceased on the 4th of December, 1848, and as such received from the estates of Alexander Wilts and wife, as the inheritance of his ward, the sum of $1645 35; that at the sale of said Alexander Wilts's estate, the defendant purchased, apparently in his own name, but in fact for his ward, a slave named Marguerite, of whom the latter took immediate possession as owner, according to their mutual understanding, and continued to hold said slave as such until the period of his death ;, that the defendant promised to convey to his ward by public act, the legal title to said slave, but owing to the disorder of the affairs of the latter, it was delayed with a view and understanding to defraud his creditors, and in the meantime died; that, confiding in the honor and integrity of the defendant, and believing that he would fulfill his promise, the deceased gave him a discharge as his tutor, which was duly registered in the office of the Recorder of Mortgages; but neither at, nor subsequent to the execution of the discharge, did the defendant ever pay any money to his ward, the price of the slave in question being considered as given to him in payment; that the deceased also sold to the defendant property of the value of $1500 for the purpose of screening the same under a simulated sale, the possession of which having continued in the deceased; that the defendant has illegally and fraudulently taken said slave and property thus sold to him, out of the possession of the widow of the deceased, and has refused to restore the same, or to pay the amount which he owed his ward; and that the defendant having thus violated his promises and obligations, is liable : 1st, for the sum of $1645 35, received on account of his ward; 2dly, the sum of $1500 as the price of the property thus conveyed to him ; and 8dly, the sum of $1800 as damages sustained by the succession of the deceased in consequence of his illegal' acts.

The petition concludes with a prayer that the defendant he condemned to pay to the plaintiff the sum of $4915 85, with 5 per cent, interest from the 1st Saturday in September, 1854, and 8 per cent, interest on the balance from judicial demand, and for a trial by jury.

The defendant in his answer pleaded the general issue and averred that his ward, Sosthene Wilts, had given him a discharge or receipt in full for the amount which he owed as his tutor; and also pleaded in bar of the plaintiff’s action the prescription of four years, alleging that the deceased, his ward, had attained the age of majority more than four years previous to the institution of the present suit.

The case was submitted to a jury ; and from a judgment rendered on their verdict in favor of the defendant, the plaintiff has appealed.

Our attention has been called to two bills of exceptions in the record. On the trial, the plaintiff offered to prove by parol that the slave in question was purchased by the defendant for his ward, and to prove what the defendant had received from the estates of his ward’s parents, and also to prove the transaction which had taken place between the purchaser of the child of the slave Marguerite and the deceased. As the bill of exceptions sets forth none of the grounds upon which the evidence was ruled out, we do not think it is in our power to notice it. 13 L., 93 ; 5 An., IT. The other bill of exceptions is to the ruling of the Judge a quo rejecting the testimony of the wife of the deceased on the score of incoinpetency. The bill of exceptions does not inform us in what respect the testimony was important. "We have therefore no means of determining whether it was material and such as should have influenced the decision of the cause, or not. Hence we do not feel ourselves at liberty to grant the relief sought.

On the merits and under the pleadings, it does not appear to us that there is any error in the verdict'of the jury. The claim of the deceased against the defendant as his tutor, was clearly barred by prescription. Whether the slave in question belonged to Sosthene Wilt», in whose possession she was until the time of his decease, or not, is a question which we do not consider as presented by the issues. As to the other property alleged to have been sold to the defendant by the deceased, we do not think the present form of action, which .should have been one of revendication, authorized the jury to pass upon the .simulation of the sale. The answer, as we have seen, is silent on the subject. ;It'is the prayer of a petition which gives character to the action.

It;is .therefore ordered and decreed, that the judgment of the court below be iaffirmqd, .with costs.


author: Merrick, O. J.

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    Terence Boutte v. P. P. Bryant, President of Police Jury.
    Where a parish tax is levied to pay subscriptions of stock incorporations for works of internal improvement, the expenses of collecting such tax, must be borne by the parish, and not by the corporation.
    PPEAL from the District Court of St. Martin,

      A. Eeblane, for plaintiff and appellant.

      E. Simon and H. J. Heard, for defendant.
   Merrick, O. J.

This suit is brought to compel the defendant, in his capacity of President of the Police Jury of the parish of St. Martin, to subscribe a draft in favor of the plaintiff on the Treasurer of the parish, for four hundred and ninety-five dollars.

The defence rests mainly on the legality of an ordinance of the Police Jury, and no objection is made to the form of proceeding in this case.

It appears, that at the June session of the Police Jury of the parish of St. Martin, John E. Early was appointed collector of the railroad tax, levied on account of a subscription of stock to the Opelousas and Great Western Railroad Company; his commissions at two and a half per centum, were recognized, and he was required to give bond in the sum of $TO,000. At a session of the Police Jury held in September,, J. E. Early was treated as collector of the Railroad tax which had been subscribed by the parish of St. Martin, and instructions were given him by the Police Jury as to the institution of suits to test the legality of the tax imposed by the Police Jury.

At the same session of the Police Jury, the following resolution was adopted, viz:

“ Resolved, that whatever happens, if Mr. J. E. Early has done his duty, he be equally paid, and that he shall receive the sum of $495, amount of his. commission, at two and a half per cent, on $220,000 ($22,000?) of notices, served for the railroad tax.”

This sum was afterwards recognized as due J. E. Early, by the tableau of the probable expenses of the parish of St. Martin, published for the year-1854.

In March of the last mentioned year, the sum of $150 was voted to J. E~ Early, on account of his commissions for the collection of the railroad tax,, under the charge of continuing to collect the tax. But Earhj having refused, to receive $150, the resolution was the same day rescinded.

The transfer of the claim of Early to plaintiff, is made to appear by notarial act. The judgment of the lower court was in favor of the defendant.

It is contended, that the ordinance of the Police Jury, allowing a compensation to J. E. Early, was illegal; that the Police Jury transcended their powers, and that all they could do was, “ to pass an ordinance levying the tax,, and to appoint a collector of said tax, and that the commissions which said, collector would have been entitled to receive for the performance of his duties,, form a legitimate charge against the Opelousas and Great Western Railroad Company, and not against defendant.”

The Act approved the 12th of March, 1852, (Statutes of 1852, p. 128,), authorizes parish and municipal corporations to subscribe stock to corporations. undertaking works of internal improvement, and provides for the levying of a tax on the landed estate situated in the parish, the rate of taxation, and the period or periods when it shall be payable.

The Police Jury are also empowered to take the bond from the tax collector, in such sum as they may deem necessary.

The company holding the stock of a parish, would have the same right to exact its payment in full, as it would have to exact such payment from a private individual, who was a stockholder. It must follow, that the Railroad Companji' cannot be charged with the expense of enforcing and collecting the taxes, and giving notices, &c. This charge properly falls upon the parish, which subscribed the stock.

We, therefore, see nothing illegal in the resolution of the Police Jury, awarding J. E. Early, $495, and as this is the only serious reason urged why the President of the Police Jury should not sign the warrant on the parish Treasury, wo will make the order prayed for.

It is therefore ordered, adjudged and decreed, by the court, that the judgment of the lower court be avoided and reversed; and proceeding to pronounce such judgment as should have been rendered by the said court: it is ordered, adjudged and decreed, by the court, that plaintiff’s right to the sum of four hundred and ninety-five dollars allowed J. E. Early, by the resolution of the Police Jury of the parish of St. Martin, on the 5th day of September, 1856, be recognized, and the said defendant, in his capacity of President of the Police Jury of St. Martin, is hereby ordered to subscribe and deliver his warrant on. the Treasurer of the said parish, directing him to pay to the said plaintiff, the said sum of money ; and it is further ordered, that said defendant pay the costs of both courts.


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    Elizabeth Freeman, Wife, &c. v. J. Ryan, et als.
    A judgment creditor of the husband will be enjoined from seizing the paraphernal property of the wife, when she retains the administration thereof.
    The filing a petition by the wife, to enjoin her husband from disposing of her property, is sufficient evidence that she retains the sole control thereof.
    PPEAL from the District Court of Lafayette.
    -Cl. Grow & Girard, for plaintiff.

      O. H. Mouton, for defendants and appellants.
   Lea, J.

This is a suit in which a married woman, who is separated in property from her husband, seeks to enjoin a seizure made by a judgment creditor of her husband.

The plaintiff, in 1838, obtained a judgment of separation of property, as above stated, in which, a certain number of cows and horses, designated by the brand E. T., were recognized as her paraphernal property. In the petition filed by her, she prayed that her husband might be enjoined from selling or otherwise disposing of the property thus claimed by her. The defendants rely upon the alleged nullity of the judgment of separation, and of all the proceedings incident thereto.

The view we have taken of the facts of this case, makes it unnecessary to examine the issues which have been made with reference to the validity of the judgment. The evidence conclusively shows that all the stock marked with the brand E. T., at the time she was married, belonged to the plaintiff. It is not shown that there was any increase of this stock, between the date of her marriage, and the decree of separation. Indeed it does not appear how long a period elapsed between these two events. Now, assuming for the purposes of argument that the judgment of separation is without effect so far as the defendants are concerned, it is clear that it should be recognized as an assumption of the administration of her paraphernal property, inasmuch, as she sued out an injunction against her husband, prohibiting his interference. It appears that the increase of this stock has been marked ever since with the plaintiff’s brand, and it does not appear that the husband has, in any manner, contributed to the increase of the stock by purchases of his own.

Under the evidence, we think that the stock seized in execution by the defendants, must be recognized as the paraphernal property of the wife, subject to her separate administration.

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


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    Martha Harmon, Wife of L. C. Temple, v. J. Ryan.
    A donation, propter imtpUas, not duly registered until after a third party has acquired a judicial mortgage upon the property donated, is not valid as against the creditor, who has previously recorded his judgment.
    Such a donation, when made by one who is insolvent to the knowledge of the donee, and when it embraces the whole of the donor’s property, is not valid as against creditors.
    PPEAL from the District Court of Calcasieu.

      T. H. Lewis & Porter, for plaintiff.

      B. F. Linton & J. K. Elgee, for defendant and appellant.
   Buchanan, J.

Leonard O. Temple made a donation, propter nuptias, to the plaintiff, by authentic act before the Recorder of Calcasieu parish, of certain slaves and other property, on the 22d March, 1851; and on the same day, after said contract was passed, the parties thereto were married.

This donation was recorded in the parish Register of Conveyances, on the 24th March, 1851.

On the 22d March, 1851, the same day with the marriage, a verdict of a jury and judgment thereupon were rendered and signed in the District Court of Calcasieu parish, in favor of defendant against Leonard C. Temple, which judgment was recorded on the 22d March, 1851. On the 'Tth April, 1851, the slaves mentioned in the marriage contract aforesaid, were seized in execution of the judgment of defendant against Temple; and on the Yth June, 1851, said slaves were adjudicated at Coroner’s sale, to defendant, who has had possession under said sale, up to the time of the institution of this suit, in 1858.

Plaintiff claims said slaves, as owner, under the donation propter nuptias aforesaid. Defendant resists the claim on the ground that plaintiff’s title was not recorded at the time of the registry of defendant’s judgment against Temple ; and also that the donation in question was illegal and void, as to third persons, being a donation of all the donor’s property, (said donor being insolvent to the knowledge of the plaintiff,) and made for the purpose of defrauding donor’s creditors, and particularly to frustate and defeat the collection of defendant’s judgment against the donor.

Both these grounds of defence are made out by the evidence.

The law gives no effect to acts of alienation against third persons, unless they have been regularly enregistered. Hcnnen’s Dig. 1860. The proper place for enregistering marriage contracts, is the Recorder’s office of the parish. Acts of 1846, page '72.

The defendant had acquired a judicial mortgage upon these slaves, before the registry of plaintiff’s title.

On the other ground of defence, the evidence is equally explicit. The donation of Temple to plaintiff, comprised all his property. It was made on the same day that a judgment for a larger amount than the total value of the property, was entered up against him. The circumstances were the subject of general attention and town talk in Marion, and were viewed by the public as a race between a creditor and debtor.

A title acquired under such circumstances, cannot avail the plaintiff. Her counsel has objected to the allegations and proof of fraud in this case, on the ground that the defendant should have instituted the revocatory action. But this is a petitory action. No opposition was made to the seizure and sale of the property-, it had been in possession of defendant for two years, when he was cited in this suit; the plaintiff must succeed by the strength of her title; and all legal defences against her title are competent to the defendant, whose possession she seeks to disturb.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and that there be judgment in favor of defendant, with costs in both Courts.


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    Succession of B. A. Curtis—On the Opposition of Thomas Maskell.
    The holder of a negotiable note made by the husband, and acquired before maturity and without notice, is entitled to enforce the same against the community property, after the death of the husband, notwithstanding the note was given for the individual debt of the husband. The holder will not be compelled to proceed against the separate estate of the husband.
    from the District Court of St. Mary.

      J. G. Olivier, for administrator.

      E. 0. Brent, for opponent and appellant.
   Merrick, O. J.

The only question presented in this case is, whether Thomas Maslcell, who holds certain promissory notes, signed by the intestate, shall be paid out of the community or separate estate of the deceased.

As the notes are negotiable and were given during the existence of the community, and it has not been shown that the present holder acquired them after maturity or with notice, we do not feel called upon to decide, whether notes given in extinguishment of the individual debts of the husband can, after his decease, be exacted of the community, or whether they should be paidby the separate estate.

The holder of promissory notes, negotiable on their face, acquired before maturity and without notice, is entitled to inforce them against the community, during the existence of which they were given.

We think, therefore, the judgment of the lower Court is erroneous, so far as it refuses to recognize Thomas Maslcell, as a creditor of the community, for the amount of the notes set forth in his opposition.

The record does not justify us in declaring the dividend to be paid the oppo-sers and other creditors, and we remand the ease for the filing of a new tableau accordingly.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower Court be reversed, so far as it refuses to recognize said Thomas Maslcell., as a creditor of the community, for the amount of the said promissory notes,, and interest specified in the said account and tableau of distribution, and the said Thomas Maslcell is hereby recognized as such clinographic creditor, and it is ordered that he be paid concurrently with the other clinographic creditors out of said fund, hereby recognizing the claims of the community against the separate estate of said Bennett A. Ourtis, as a clinographic creditor for the amount of such payment; and it is further ordered that the claims; of all other parties as recognizeded by the account, and the judgment ■of the lower Court, be confirmed and approved; and it is further ordered that said administrator and administratrix do, within twenty days after the filing of the mandate of this Court in the lower Court, file a new tableau of distribution, wherein he shall place said Thomas Maslcell and John Garrett tutor, with the other creditors, in conformity to the direction contained in this decree, and so much of the decree of the lower Court as is hereby affirmed ; and it is further ordered that the decree of the lower court, be, in all other respects, affirmed, and that the appellee pay the costs of appeal; and this case is remanded to the lower Court for further proceedings herein, •directed.


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    L. B. Ledoux, Wife of J. A. Boyd, v. Her Husband.
    -A. divorce 4vinculo, will be granted on the ground that defendant has committed adultery in the matrimonial dwelling, or kept a concubine openly and publicly in another, without a prior or contemporaneous judgment of separation, &mmza>etthoro.

    A donation inter vh>os, made in favor of marriage, is not revoked to the amount of the disposable portion by the birth of children, issue of the marriage.
    The revocation, declared by Art. 1556, C. 0.,is effected by the birth of children, issue of a marriage other than that in favor of which the donation was made.
    A condition in the Act of donation, that the property shall revert to the do.norin case the donee “ shall in any manner or form, be separated from the donor, her husband,” Held : not to apply to a separation obtained against the donor, and for his fault. Such a condition is in derogation of Art. 152, 0. 0., and is null. 0. C 11.
    The limitations over, of the property donated, in the event of the death of the donor or donee, cannot properly be noticed during the life of both parties ; and the donor is entitled to the possession until the contingent event happens.
    PPEAL from the District Court of St. Martin.

      -LX. A. Deblane, for plaintiff and appellant.

      E. Simon, for defendant.
   Buchanan, J.

This is a suit for divorce. The petition alleges that defendant has committed adultery, and has kept and keeps concubines in the common dwelling; also, that defendant has assaulted and beaten plaintiff on various occasions.

The defendant excepts to the action, on the ground that it has not been preceded by a judgment for separation of bed and board; and on the further ground that the petition in this case does not pray for a separation of bed and board, as well as for a divorce.

The law upon which the counsel relies in support of this exception, is the Act of 1827, relative to divorces, page 130, Session Acts. The Judge did not err in overruling this exception. Had the plaintiff claimed the divorce for ill treatment alone,'the divorce could only have been granted two years after a judgment of separation of bed and board. Act of 1827, Section 4. But where the husband has committed adultery in the matrimonial dwelling, or has kept a concubine openly and publicly in any other, a suit may be immediately commenced for divorce by the wife ; and the expression of the Act of 1827, that in such case, “a judgment of divorce may be granted in the same decree which pronounced the separation of bed and board,” is not to be taken as re" quiring either a prayer, or a decree fora separation specifically; for, a subsequent section of the Statute (the seventh), declares that the effects of a divorce include all those which appertain to a judgment of separation of bed and board, and, in addition thereto, a dissolution of the bond of matrimony. The greater decree, which is the divorce, therefore includes the less, which is the separation from bod and board, and is virtually, a decree of separation of bed and board, although the same be not specified. Upon the merits,' the proof makes out abundantly the charge of adultery, contained in the petition. The decree of divorce, is, therefore, correct. We also approve of that portion of the judgment appealed from, which gives the custody of the children, issue of the marriage, to the plaintiff.

The next question to be examined, the divorce being confirmed, concerns the right of the wife to recover of her husband the property given to her by the latter in the marriage contract. The District Judge considered this donation as revoked to the amount of the disposable portion by the birth of children of the marriage. This portion of the judgment is the subject of plaintiff’s appeal; and a careful examination convinces us that the learned Judge has mistaken the meaning of the Article 1556 of the Civil Code, upon which, this decision has turned. That Article declares that donations inter Divos shall be revoked by the subsequent birth of children to the donor. But there are two excepted cases to this rule, expressed in the Article itself. The first, where the donation is one made in favor of marriage by the ascendants of the married persons; the second, when the donation is made in favor of marriage by one of the married persons to the other. The present case comes entirely within the second of these exceptions. .Some discussion has arisen at bar upon the phraseology of the Article, which we deem unnecessary here to analyse more particularly, because the construction, contended for by the learned counsel of defendant, would lead, as we conceive, to a direct contradiction in terms. The object of marriage, it cannot be disputed, is the perpetuation of families; and the procreation of children is, of necessity, in the contemplation of the parties, to that contract. The interpretation which would make the Legislature declare a donation made in favor of marriage, to be revoked by the happening of .that event (the birth of children) which, as all the authorities agree, is a principal object of marriage, is inadmissible. The revocation of which the Article 1556 speaks, is a revocation, produced not by the birth of children, issue of the same marriage in favor of which the donation has been made, but by the birth of children issue of some other marriage, and offspring of a donor, other than a party to the marriage in favor of which the donation was made, or than the ascendant of such party. Viewed in this light, the Article 1556 is consistent with itself and with general principles. Marriage is a contract highly conducive to morality, and to the good order of society. It is, therefore, favored by the law, which has secured to children born in wedlock, a portion of their father’s estate, which the latter is not allowed to alienate, to their prejudice, by a donation made, even in favor of a marriage of another person, unless that other stand to him in the relation of a child.

The Article 1739, O. 0., is not applicable between these parties, or at this time. That Article refers to an event which is certain to happen, but which has not yet happened — the death of the donor, and to another event, which is uncertain, and which may never happen — the survivorship of the donor’s children or other legitimate descendants. Again, the lot of ground and the three slaves which were donated by marriage contract, may be more or may bo less than the tenth part in value of the property, which the defendant may have at his death. But this can only be determined at the defendant’s death, and the donation, if excessive, can only be reduced at the instance of the defendant’s forced heirs, or of their heirs or assigns. C. 0. 1490, 1491.

The learned counsel of defendant has also urged the terms of the marriage contract in support of the decision of the District Court, in relation to this donation. They are as follows : “ To have and to hold the said parcel of ground, with its improvements, and the said three slaves, unto the said Ludevine Le-doux, and her heirs forever, in consideration of the aforesaid marriage, and on the express condition that should sho die before the said John A. Boyd, or in any manner or form be separated from him as her husband, then the said property and slaves, with their increase, shall be returned to him, and shall be his property, or, should the said John A. Boyd die first, having children born of his said marriage, then the said property and slaves are to belong to the said children, but should he die first, without leaving children as aforesaid, then the same is to be full property of the said Ludevine Ledoux, and her heirs forever.”

By the above clause of the marriage contract, relative to separation, we do not understand that the donated property reverts to the donor in case of separation obtained against him, because, even if the ambiguous expressions used are to be construed as a prospective renunciation of a legal right on the par?, of the wife, the convention would be in derogation of Article 152 of the Civil Code, which is a law eminently conducive to public order and good morals j and would be null, according to Article 11 of the Code, In the language of Toullier, vol. 2, p. 78, No. 744, “ II n’est pas permis de promettre d’avance, l’impunité d’une action que la loi désapprouve et punit.”

As to the limitations of the estate on the property donated, to the don,or In, case of the predecease of the donee; to the children of the marriage upon the. predecease of the donor; to the donee and her heirs forever,, in ca,se of pnede*. cease of the donor, without issue of the marriage« these are matters, which it would be premature to examine at present. The donation is an absolute con*, veyance: “ the said John A. Boyd, does by these presents convey, cede, transfer and and deliver to the said Ludevine Ledoux, and her heirs forever.” The donee is entitled,' by the Article 152 0. C., to the advantage thus given, — to the property thus donated. Should she die before the donor, the question may arise whether the donor shall take the property in preference to the donee’s heirs, — , whether the limitation shall control the words of conveyance to donee and her heirs ; but now, that both donor and donee are living,, there can be no question, of the right of the latter to the possession and enjoyment of the property.

The judgment decreeing the divorce, but rejecting the claim of the plaintiff to the property donated, was rendered on the Sth of October, 1854. A judgment was also rendered on the 8th of October, 1854, upon an injunction sued out by defendant against an execution for alimony. The petition of appeal of plaintiff was filed on the 9th of October, 1854. But from the terms of that petition, and of the appeal bond given by the appellant, it is not understood by us that plaintiff has appealed from any judgment except the final one of the 5th of October, 1854.

It is therefore adjudged and decreed, that the judgment of the District Court be amended: that the plaintiff be put in possession of the property mentioned in the second article of the marriage contract between the defendant and the plaintiffs, passed before P. P. Briant, notary public, in the parish of St. Martin, on the 17th of September, 1846, being a lot of ground, with improvements, and three slaves, therein described; that as so amended, the judgment of the District Court be affirmed; and that defendant pay costs in both courts.

Note. — Duprr,. J.,, presided at the District Court.


author: Spofeokd, J.

text:
    C. H. Mouton, Administrator, v. E. F. Beauchamp.
    If no fraud or deception bq practised upon a surety, the obligation is valid as to him, if it be valid as against the principal.
    An administrator, who purchases property of the succession, and gives his note for the price, cannot plead .the nullity of ithe sale and resist payment of his note, without tendering back the property purchased.
    A note payable to the agent of the maker for the use of the succession of which the maker was administrator, is valid. The real obligees are the creditors and heirs of the succession.
    Payment of a note will not be presumed, from the fact of its having matured, whilst in the hands of an administrator, who was also the maker, when it is found uncancelled in the hands of a sub, sequent administrator. In such a case, the burden of proving payment is thrown on the obligor.
    "Where the term of payment has not been prolonged in favor of the principal, and no act has been done by the holder of a note, which would prevent the surety, on payment, being subrogated to all the rights of the holder,against.the, principal, the holder will not be considered guilty of ladies, such as to discharge the surety.
    from the District Court of St. Martin, Dapre, J.

      M. Voorhies, for plaintiff.

      Grow & Girard, for defendant and appellant.
   Spofeokd, J.

The defendant appeals from a judgment rendered against him, as surety on certain notes given by Walter B. Brashear, in favor of Bob-ert Perry, agent of 'Walter B. Brashear, for the use of the succession of Maria Grow.'

Brashear was administrator of the succession of Ma/ria Grow, at the time the notes were given, but has since been displaced and the plaintiff is now the administrator. The notes sued on form part of the assets of the succession, in the administrator’s hands.

The sur.ety urges, that a part of the consideration of the notes was the price of certain slaves bought at the succession sale of Maria Grow, by Brasheao', at the time he was administrator; that ho was legally incompetent to purchase; that the sale was an absolute nullity,.and therefore that the notes are void.

No fraud or deception having been practised upon the surety, the obligation is valid as to him, if it is valid as against the principal.

It is admitted in the defendant’s answer, that Brashear got possession of the slaves sold to him, and that he had possession of them three years after the purchase, when he was sued on the notes by the present plaintiff in the parish of Jefferson. Brashear could not have resisted the payment of the notes on account of the alleged illegality of his purchase, without tendering back the slaves; no more can the surety. But Brashear was by law an heir to the succession of Maria Grow, and it is not clear that his renunciation could be set up by him, as destroying his capacity to purchase, whilst the creditors of the succession, through the administrator, were seeking to enforce the sale for their benefit. “Nothing contained in Articles 1189 and 1784 of the Civil Code, shall be so construed as to prevent any administrator, &c., from purchasing at the sale of the effects of the deceased, whose estate they may respectively represent, when the said administrator, &c., is an heir or legatee of said deceased ; and all purchases so made, shall be considered as valid and binding as though the same had been made by any disinterested third party or parties.” Acts 1840, p. 123.

Again : the surety asserts that' the notes--are null, because they were made payable by Brashear to Brashear’s agent,-, for the use of-the succession. The argument is, that there must be an aggregatio mentiwm between the obligor and the obligee, and when they ai-e represented by the same person, no obligation can arise. The surety cannot be released upon such a plea. The real obligees are the creditors and heirs of the succession of Grow, who, through the administrator, are now seeking 'to enforce an obligation consented to in their favor, by both the principal and surety.. The parish Judge accepted the notes for the benefit of the parties interested, at the time he made the sale.

The surety contends, that three of'the notes sued on, having matured while still in the hands of Brashear, as administrator, must be presumed to have been paid, or at least to have -bfeen extinguished by confusion. Their appearance uncancelled in the hands of-the present administrator, throws the burden of proving payment upon the surety. Extinction by confusion was impossible, as the administrator' did not hold them in the capacity in which he was indebted, but held them in trust for the benefit of other persons.

Finally: it is insisted, that the surety has been discharged by the laches of the plaintiff, in pursuing the principal debtor, and seeking to enforce the mortgage upon the slaves -bought by him.

There is no evidence that the term of payment has been prolonged, or that the present administrator has been guilty of any act, neglect, or want of reasonable diligence, by which the subrogation of the defendant to his rights, mortgages, and privileges, can no longer be operated. On the contrary, the plaintiff seems honestly but ineffectually to have sought payment from the principal by judicial process.

The judgment of the District Court is affirmed, with costs.


text:
    James Todd et al. v. Daniel P. Sparks.
    The ratification by the heirs, of a purchase of succession property, by the administrator, who was > incompetent by law to buy, does not release the official surety of the administrator from his liability, for the price of the property which the administrator fails to account for.
    from the District Court of St. Mary, Voorhies, J.'

      J. G. Olivier & T. 3. Lewis, for plaintiffs.

      3. Gibbon, for defandant and appellant.
   Merrick, C. J.

This suit is brought by the heirs of Nancy Kemper, deceased, against the defendant as surety on the bond given by A. B. Splane, as administrator of the estate of the deceased.

At the probate sale, A, B, Splane, the administrator, purchased a tract of land, notwithstanding the relation in which he stood to the estate.

Sometime afterwards the heirs, by two separate acts, ratified the sale, and also relinquished any mortgage and privilege they had upon it.

The proceeds of the tract of land in the hands of the administrator, were carried into his account, which was afterwards finally adjusted by a decree of this Court.

The heirs having been unable to collect of the succession of A. B. Splane ■ the amount due them, as shown by the account thus become res judicata as to 'the principal obligor, instituted the present action to recover the amount of the defendant, as surety on the administrator’s bond.

This recovery is resisted on the ground that the heirs having ratified the illegal sale of the property and afterwards released any mortgage and privilege they might have on the land, had thereby made the sale of the land their own, and released the surety.

We do not think that the act of ratification can have the effect for which it is contended. The obligation of the administrator is to administer faithfully and according to law the effects of the succession entrusted to his care. The surety guarantees the faithful performance of those duties.

Now, a sale by the administrator to an incompetent person is a violation of his duty as administrator, where the administrator himself is the cause, or a participator in the sale. The heir has his option to annul the sale so made or charge the administrator in his account with the price of the thing sold. If he brings a suit (to do which, his right is unquestioned,) to compel his admin-iistrator to account for the price, such suit is a ratification of the sale. The ■¡mere fact of having previously ratified the sale by a notarial act, ought not to prejudice his right, as it is but doing the same thing directly, which the institution of the suit for the price accomplishes by implication,

i The heirs have no mortgage against the administrator, and the release of the mortgage released nothing.

It is, therefore, ordered, adjudged and decreed by the Court, that the judgment of the lower Court be affirmed with costs.


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    Louis Legere v. Francois Richard.
    The mother of a minor, who is represented by another as his qualified tutor, is incompetent to maintain an action on behalf of the minor, for personal injuries done him.
    Proceedings for the protection of the person or property of the minor, of a conservatory character, may sometimes be taken by persons n(pt legally representing the minor; but such cases are rare, and are eminently within the discretion of the District Judge.
    The right of a party to a suit, to repudiate under oath, the authority of those who represent him in Court, cannot be questioned.
    PPEAL from the District Court of St. Landry, Dupre, J.
    XX B. F. Linton, for plaintiff and appellant.

      F. & F. W. Oullom, for defendant.
   Lea, J.

The only question to be determined in this case is, whether a mother, who is not the the tutrix of her minor child, can maintain an action against a third party, in the name of her child, against the wishes and without the consent of one who is his tutor. The suit was originally instituted in the joint names of the tutor and the mother, but the tutor having denied under oath, that he authorized the institution of the suit, it was dismissed so far as he was concerned ; and an exception taken to the right of the mother to stand in judgment, while the minor was represented by a tutor, was maintained and the suit dismissed.

It is contended that the action being for damages, for an alleged outrage upon the person of her child, (who, it is alleged, had been severely flogged with a cowhide by the defendant,) the Court should allow the mother to maintain the suit for the purpose of protecting the child. Under the extensive discretionary powers of a Court having probate jurisdiction, proceedings, having for their object, the protection either of the person or the property of minors, may occasionally be maintained for conservatory purposes, even when undertaken by those who do not legally represent the minor, (see 2d Annual, 333, Daigre v. Daigre,) but such cases are eminently within the discretion of the Judge. In the case at bar the proceeding is not of a conservatory character ; the claim is for damages as before stated.

We think that one, not legally representing the minor, is incompetent to maintain such a suit, and that the exception was properly maintained.

The bills of exceptions are substantially disposed of in the foregoing remarks. The right of any person, who has been placed as a litigant, whether as plaintiff or defendant, upon the records of a Court, to repudiate under oath, the authority of those who apparently represent him, cannot be questioned. As the decree of the District Court is, however, open to some misconstruction with reference to the final disposition of the minor’s rights, we think the form of the decree should be amended.

It is, therefore, ordered that the judgment of the District Court be amended as follows: The Court considering the exception filed herein to the right of the plaintiff, Louise Legere, to represent the minor, Alexander Diehard, Dr., to be well founded in law, it is ordered that the exception be maintained, and the suit dismissed. It is further ordered that the appellant pay the costs of this appeal.


author: Spobtord, J.

text:
    J. Gradnigo, f. m. c., v. J. M. Moore, Curator.
    The service of citation by one who is Sheriff defacto, and with color of office, is good.
    A party litigant cannot collaterally except to such a service, on the ground that the acting Sheriff is not Sheriff de jwre.

    from the District Court of St. Landry, Dupre, J.

      T. S. Lewis & Dorter, for plaintiff and appellant.

      J. M, Moore, for defendant.
   Spobtord, J.

This suit was brought to destitute an administrator of his office, upon the ground that he had left the State without rendering an account of his administration of the succession, and without appointing an attorney in fact to represent him in his absence, according to law.

The appellant was appointed curator ad hoa to represent the absent defendant; he excepted to the suit, and objected to answering upon the ground that the citation was not legally served upon him. His objection to the service is that Jean Baptiste Demid (whose deputy made the return) had no right at the time, to exercise any function of his office as Sheriff, because he had failed to give the security required by law, for the collection of taxes, or the discharge of his duties as Sheriff, and because he was a defaulter to the State.

The District Judge very properly overruled the exception.

The capacity of Sheriffs duly commissioned to exercise the duties of their office, is not to be brought in question by third persons, in this collateral manner ; nor are the rights of litigants to be made to depend upon a possible future controversy between the State and one of its officers.

Eor the determination of this cause, it is enough for us to know that Jean Baptiste David was, at the time his deputy served the citation, de faeto Sheriff of St. Landry, under color of title; it would not vitiate the service, as between these parties, though it should ultimately turn out that Demid was not Sheriff de jure. Dorsey v. Vaughn, 5 An. 156; Beard v. Gresham, Ib. 161; The State v. Gilbert, 10 An. -; McKinsty v. Tanner, 9 Johnson, 135; Citizens’ Bank v. Bry, 3 An. 633; The People v. Collins, 7 Johnson, 549.

This is the only point presented for our solution by the appellant’s brief.

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


author: Rost, J.

text:
    Antoine D. Megret v. The Parish of Vermillion.
    The establishment of the seat of justice of a parish is an act of severeignty, and the change of that seat by the sovereign cannot give rise to an action of damages.
    from the District Court of Vermillion, Overton, J.

      Mouton and Nicholls, for plaintiff and appellant.

      J. W. Walker, for defendant.
   Rost, J.

In 1845 the Legislature authorized the people of Vermillion to select, by a popular vote, the seat of justice of the parish. An election was accordingly held, when the choice was in favor of a place owned by the plaintiff, who made a donation of the land, which was definitively accepted, and also of the courthouse and ferry then established upon said land, which the Police Jury accepted only provisionally.

A portion of the inhabitants of the parish being dissatisfied with the location, another act was passed by the Legislature, in 1848, authorizing the inhabitants to change it, and it was accordingly changed.

. The object of this suit is to set aside the vote given under the Act of 1848, for various alleged informalities. And should the plaintiff fail in this, he prays for $10,000 damages against the parish, for the violation of the contract, which he alleges they entered into with him, of establishing the seat of justice on his land.

The defendants pleaded the general issue, and the judgment of the court below was in their favor.

There is nothing in the record which would authorize us to set aside the contested vote, if it was considered that we have the power to do so. The principles involved in the question of the violation of contract have been sufficiently examined in the cases of Reynolds v. Baldwin, 1 An., 162, and Police Jury of Bossier v. Corporation of Shreveport, 5 An., 664, and little more is necessary than a reference to those cases. The establishment of the seat of justice in the different parishes of the State, is an act of sovereignty, at all times under the control of the sovereign, and the change of places cannot give rise to an action of damages. The plaintiff may have the right to claim the property which he had given to the defendants, when the seat of justice was established on his land, but that claim is not made in this suit.

The judgment is affirmed, with costs.


author: Voorhies, J.

text:
    Eugenie Bossier v. Thos. Maskell.
    The purchaser of land sold for taxes who does not show that the sale was made according to the requirements of law, has not such a title as can form the basis of the prescription of ten years.
    The purchaser at Sheriff’s sale who does not show a description of the land sold, cannot maintain the plea of prescription of five years, under the Act of 1834.
    from the District Court of St. Mary, Voorhies, J.

      J. G. Olivier and Swayze & Moore, for plaintiff.

      J. W. Walker, for de* fendant and appellant.
   Voorhies, J.

The plaintiff claims by inheritance the ownership of a tract of land described in her petition. She alleges that the defendant, who has never been in possession of said land, has slandered her title to the same. It is, in effect, an action of jactitation of title. The defendant has attempted to deduce his title from Némésis Bossier, the plaintiff’s ancestor. He alleges, in his answer, that he purchased the land in controversy from Alexander Brelte, by notarial act, dated the 7th of March, 1848, whereby he was subrogated to all the rights of action and of warranty to which Brelte was entitled by virtue of a sheriff’s sale to him on the 3d of July, 1847, at the suit of J. E. Lacy v. J. Y. Sanders; that, in case of eviction, he has his recourse in warranty against the arties to that suit, whom he prays may be accordingly cited.

Lacy, in his answer to the call in warranty, averred that he transferred to Bretle certain claims, one of which was that against Sanders, with the express understanding that the latter should take the same without any recourse against him, etc.

The other warrantor, Sanders, pleaded the general issue, and averred that the defendant was the owner and possessor of the land in controversy by virtue of good and sufficient titles translative of property; and that the defendant and those under whom he claims, have been in possession for more than ten years, a period sufficient to acquire title by prescription.

The defendant, in an amended answer, pleaded the prescription of five years, under the Act of the 10th of March, 1834, as a bar to the plaintiff’s right to attack the sale of the Sheriff at the suit of Lacy v. Sanders; and also averred that the plaintiff’s right to attack the Sheriff’s sale for taxes due by Némésis Bossier in the years 1823 and 1824 was also barred by the prescription of five years, under that statute.

The defendant is appellant frcm a judgment rendered against him on these issues in favor of the plaintiff. In this court, he has waived the peremptory exception which he had interposed in the court below, and asks that the controversy may be determined upon its merits.

The record shows that the only evidence of the divestiture of Némésis Bossier’s title are the following receipt and extract from the tax roll of 1819, viz:

“ Received of J. Y. Sanders the sum -of seven dollars and fifty cents, the amount of tax due on a tract of land assessed to Nemesl Bossier, and this day sold to satisfy the State and parish tax for 1822.

“ This 2Sth August, 1823. J. B. Murphy,

“ Collector of the Parish of St. Mary.”

extract:

“ Year 1819, No. —. Némésis Bossier, 30 arpents, third quality, valued $1500.”

Némésis Bossier was, it appears, a non-resident. Nothing shows that the land in controversy was sold under the authority of the Treasurer, in accordance with the requirements of the Act of'the 20th of March, 1818. (Session Acts of 1818; p. 90.) We consider this evidence clearly insufficient to constitute a title trans-lative of property, and such as can form the basis of the prescription of ten years. In the receipt and extract from the tax roll no description is given of the land alleged to have been sold. This we consider as a fatal defect, which cannot be cured by the prescription invoked under the Act of 1834. Wilson v-Marshall, 10 An.

As to the prescription of thirty years, pleaded by defendant, we think the evidence is clearly insufficient to sustain it.

It is therefore ordered and decreed that the judgment of the District Court be affirmed, with costs.


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    Norbert Malveaux v. Celestine Lavergne, et al.
    When, the term of the Supreme Court at which an appeal is returnable entirely fails, the record of appeal may be filed at the next term of the court.
    A party who seeks to avail himself of the plea of prescription, must establish it by proof.
    Xhe legal mortgage resting on the property of a tutor embraces his interest in real estate, bought by a commercial partnership, of which the tutor is a member, and such mortgage cannot be defeated by a sale of the partnership land for a partnership debt.
    An extract copy taken from the records of a church and certified by the officiating priest, is not admissible in evidence to prove the age of a party.
    from the District Court of St. Landry, Dupré, J.

      Swáyze & Moore, for plaintiffs.

      B. A. Martel, for defendants and appellants.
   Merrick, C. J.

There is a motion in this case to dismiss the appeal. The judgment was signed and the appeal allowed at the May term of the District Court, 1854. It (the appeal) was made returnable at the next term of the Supreme Court of Opelousas. By law, this term commenced on the first Tuesday of September, but as there were not Judges enough present to form a quorum, the court, after being adjourned from day to day by one of the Judges, finally adjourned, no quorum having been present and no judicial business having been transacted by the court. On the second day of the term of the Supreme Court for 1855 the record was filed. The motion to dismiss is based on the alleged ground that the record ought to have been filed in this court at the time fixed by law for the last term of this court, and that more than one year had elapsed after the appeal was granted before the record was filed. The doctrine seems to be well settled, that where the term to which an appeal is made returnable entirely fails, the record m ly be filed at the next term. Wills' Heirs v. Lamothe, 10 L. R., 411.

The proof adduced in this case does not clearly establish the plea of prescription. The party who would avail himself of this plea, must establish it by proof. Andrews v. Rhodes, 10 R. R. 53.

The objection that the tract or lot of land was owned by commercial partners, is not tenable. The land did not properly enter into the commercial partnership, and we know of no law which withdraws real estate from the ordinary rules of law, merely because it is owned by persons composing a commercial firm. ■

In this instance one of the parties was a tutor when lie owned the one-half of the lots or tracts of land in controversy. This undivided half became subject to the tacit mortgage of the minors, and it was not defeated by the subsequent sale of the property at the suit of the creditors of the commercial firm.

There was no error in reference to the facts disclosed, in refusing the copy of the certificate of baptism certified by the priest of St. Charles Church, showing the age of one of the plaintiffs.- he priest has no legal authority to certify copies from the records of his church, and the copy offered was clearly inadmissible.

A careful examination of the record has not satisfied us that there is any error in the judgment of the court below in the matter complained of.

Judgment affirmed, with costs.


author: Spoitoed, J.

text:
    John Mullen, et. al. v. Mary King, Widow, &c.
    A judgment discharging a curator from all further responsibility, on the filing and homologation of a final tableau, does not operate his discharge, unless the attorney for absent heirs had been previously cited.
    Service of notice of his appointment, upon the attorney, after the filing of the tableau, is not a sufficient service.
    The publication of notices in a newspaper is not a citation to the absent heirs.
    PPEAL from the District Court of St. Landry, Dupre, J.

      Swayze & Moore, for plaintiffs and appellant.

      Garland & Lastrapes, for defendants.
   Spoitoed, J.

The plaintiffs, alleging themselves to be the heirs at law of Henry Bideman, deceased, sued the defendant as the legal representative of John Cooh, for an account of the administration of the latter upon the estate of their deceased ancestor.

The defendant excepted to the action on the ground that John Coo7e was released and discharged from all liabilities on account of his administration as curator of Henry Bideman, by judgment, on the 7th January, 1854, and that the plaintiffs’ right of action should be exercised contradictorily with the counsel for absent heirs, under Article 1193 of the Civil Code.

The District Judge sustained the exception, and dismissed the suit, and the plaintiffs have appealed.

Counsel argue that the cause must turn upon the question whether the judgment rendered by the Clerk of the District Court, discharging Ooolc, on the 7th January, 1854, is binding on the plaintiffs, and that that question can ' only be solved by deciding whether the evidence in this record shows the counsel of absent heirs to have been duly cited before the homologation of Boole’s final tableau of distribution.

From a close inspection of the record we have come to the conclusion that there is not sufficient legal evidence of the service of such citation. See § 2, Act of March 18th, 1852, (Sess. Acts, p. 206.)

The utmost that appears is the service of a notice of his appointment as attorney for absent heirs shortly after the final tableau was filed.

He made no appearance in the cause. The publication of notices in a newspaper did not operate as citation to the absent heirs. Millaudon v. Cayus, 6 L. 225.

We have confined our examination to the only point raised by the exception already filed. The fact of the plaintiffs’ heirship, and the sufficiency of the defence of Mrs. Mary King upon the merits, are not at present in controversy.

It is, therefore, ordered that the judgment of the District Court be reversed, the exception filed by the defendant overruled, and the cause remanded for further proceedings, according to law, the defendant paying the costs of this ¡appeal.


text:
    Succession of Julie Derouen—On the opposition of F. Bourriaque.
    The needy surviving spouse cannot in any caáe take from the succession of the deceased spouse, more than a child’s share.
    When the surviving spouse has already inherited a deceased child’s share, such survivor will not be allowed to take.from the succession another’s share as a marital portion.
    In applying the law with reference to the marital portion, the circumstances of the surviving spouse must always he taken into account.
    from the District Court of St. Martin, Dapré, J.

      A. Deblanc, for administrator and appellant.

      M. Voorhies, for opponent.
   Buchanan, J.

Julie Derouen, wife of M'angois Bourriaque, died, leaving a separate estate of $21,282 33.

Her surviving husband appears to have had no separate estate.

There was property belonging to the community of acquets subsisting between the deceased and her surviving husband, amounting (nett) to $6100, of which her husband, of course, owned one half, or $3000.

The deceased, Mrs. Bourriaque, left eight children, namely, five, issue of her first marriage with one Segura, and three by her second husband Bourriaque. The share (one eighth) of each child in the succession of Mrs. Bourriaque, including her separate estate and her interest in the community of acquets with Bourriaque, was, it is evident, no more than about three thousand dollars.

Since the death of Mrs. Bourriaque, one of the children of her second marriage has died, and Bourriaque, as its father, has inherited one fourth of its share of the mother’s estate, or about $750.

In addition, Bourriaque now claims a child’s share of his wife’s estate, in usufruct, as the marital portion.

It is plain that this case does not fall within the scope of the Article 2359 of the Civil Code, upon which the opponent founds his claim. The intention of the legislator, in that Article, is clear, that the needy surviving spouse shall not, in any case, take from the succession of the wealthy predeceased spouse, who. has left children, more than the share which will be coming to each of those children : thus, if there be one child, the surviving spouse takes J- and the child 4; if there be two children, the spouse takes 2-8 and each child -J ■, if there be three children, the spouse takes 1 and paeh child i; if there be more than three children, the spouse takes the usufruct of a child’s portion — which,, in the present case, would not be one-seventh, as erroneously calculated by the District Judge, but one-ninth : because, by adding the spouse to the eight chib-dren, the estate must be divided into nine portions, in.order to give to each an equal share. But Bourriaque had already a full child’s portion in absolute ownership, as his interest in the marriage community. To give him more,, would be to impoverish his children and step-children for his benefit, contrary to the policy of the law, which is, not to disturb the order of inheritance, but,, in certain cases, to count a surviving spouse as one of the children of the de--ceased spouse. An evidence of that intention is found in the concluding clause-of the Art. 2359, which obliges the surviving needy spouse to collate a legacy of the wealthy spouse predeceased. By parity of reason, the spouse should collate his interest in the community. In the application of the law in relation to. the marital portion, the means possessed by the needy spouse are always to betaken into account. See Succession of Fortier, 1st An., 105 ; Gregorio Lopez, Commentary on Law 7, tit. 13 of the 6th Partida.

The language of an arret of a French tribunal, quoted in the argument of counsel, is in accordance with our view of the law: “Mais, en allouant le quarte au conjoint pauvre, le magistrat doit surtout considérer ce qui revient aux en-fans du défunt. II n’est pas entré dans l’esprit du législateur romain de dé-pouiller des enfans qui souvent n’ont pas d’asile ; qui sont livrés aux soins de l’amitié secondaire de parens éloignés, indifférens peut-étre ; et qui seront pendant des années sans travailler et sans pouvoir travailler — au profit d’un homrne qui est toujours présumó pouvoir exploiter une industrie. Bn un mot, le ma-gistrat ne doit pas faire le survivant des époux plus riche que les enfans; ce sorait injuste, contraire á la loi écrite et á la loi naturelle.”

See also Art. 1745 of the Louisiana Code, in corroboration of the view here expressed.

It is, therefore, adjudged and decreed, that the judgment of the District Court bo reversed; that the opposition of Francois Bourriaque to the account of administration- herein, be dismissed ; and that the appellee pay costs of the opposition in both courts.