text:
    Morton & Hamner v. Mark Valentine.
    In order to plead a’foroign statute of limitation, under the Act of 15th of March, 1855, in bar of a judgment rendered in another State, it must be shown that the prescription was complete, and that there were no adequate means of enforcing the judgment in the State where it was rendered.
    Where a judgment is rendered in the State of Mississippi, and barred by the statute of limitation, but is subsequently revived by a judgment on a writ of scire facias, the prescription of ten years in this State is interrupted by such judgment.
    Statutes pertaining to the remedy are merely such as relate to the course and form of proceeding, but do not affect the substance of'a judgment when pronounced.
    PPEAL from the District Court of the Parish of Carroll, Farrar, J.

      H. Short and A. R. Hynes, for appellant.

      Goodrich c6 Defrance, J. IV. Montgomery, R. G. Harper and H. M. Spofford, for defendant.
   Merrick, O. J.

At the November term of the Circuit Court of the Uuiled States for the Southern District of Mississippi, in the year 1841, the plaintiffs recovered judgment against the defendant for $5000, with eight per cent, interest thereon. The defendant changed his domicil to Louisiana about January 1st, 1846, but was in the habit of making frequent returns to Mississippi on business.

Iu 1850, the plaintiffs sued out a writ of scire facias upon the judgment, which was returned as to Valentine, the defendant, non est inventus. A second writ was issued in 1851, and returned executed September 2d, 1851. At the May term, 1852, the said defendant having made default,, the following judgment was rendered :

“ Therefore, it is considered by the court, that the said Morton & Hamner, plaintiffs, have execution of the judgment herein against the said Mark Valentine, defendant, for as well the debt and charges aforesaid in the said writ of scire facias specified according' to the form and effect of the recovery aforesaid, and also their costs and charges which they have sustained by reason of the delay of the execution of the said judgment so recovered as aforesaid.”

A fieri facias was issued within the year, and returned nulla bona.

The present suit is to recover said debt, and was commenced by service of cilat tion in November, 1856.

The defendant, among' other defences, pleads the prescription of seven years under the Statute of Limitations of Mississippi (admitted by our statute), and the prescription of ten years, under the Art. 3508 O. O. and the statute of 1853. The case, by agreement, was tried upon the pleas of prescription alone. Judgment having been thereon rendered in favor of defendant, plaintiffs appeal.

The plea under the Mississippi statute of limitations, is admitted by the Act of March 15th, 1 855, p. 224. It reads :

“ "Whenever any contract or 'obligation has been entered into, or judgment rendered between persons who reside out of the State of Louisiana, and to be paid or performed out of this State, and the said contract, obligation or judgment is barred by prescription or the statute of limitations of the place where the contract or obligation is to be performed or judgment executed, the same shall be considered and held as barred by prescription in Louisiana upon the debtor who is thus discharged subsequently coming into the State.

The statute of limitations of Mississippi relied upon, is the 8th section of the Act of Feb. 24, 1844, and is in these words, viz :

“ Judgments in any court of record in this State shall not be revived by scire facias; nor shall any action of debt be instituted thereon after the expiration of seven years next after the date of such judgment; nor shall any person sue out any execution on any judgment or decree after seven years from the time the last execution issued on such judgment or decree, provided, that the time that the person who is or shall bo entitled to the benefit of such judgment or decree, shall have been under the age of twenty-one year's, femme covert, insane or personally imprisoned, shall not be taken or computed a part of said period of limitation.”

It is seen, that the debtor established his domicil in Louisiana before the statute of limitations of seven years had run, and it admits of a grave doubt whether his subsequent visits to Mississippi and return home was such a coming into the State after the statute of limitation had been acquired, as to entitle him to the benefit of our statute. But without expressing au opinion upon this point., it is sufficient to say, that in order to plead such foreign statute, it must appear that the judgment is barred by it. That is, it must be completely barred. It is not sufficient to say, that it is partially barred; that a part of the remedy is cut off by the statute. For that is not barred, which can be enforced by a single adequate remedy. Now, without considering any other point, this judgment has not been barred by the statute of Mississippi, so far as to cut off the remedy of scire facias and execution, because it has been so adjudged by a competent court in a proceeding served upon the defendant, and neither the defendant nor any court in this Union has the power to say that, that is not true, which has been adjudged between the parties by such competent tribunal. Res judicata pro veritate accipitur.

We cannot consider any defence which the defendant may have had to the scire facias in the State of Mississippi. Ho should have pleaded it there. West Feliciana R. R. v. Thornton, 12 An. 736.

This brings us to the consideration of the prescription of ten years, under our ownjaws, which presents the real difficulty in the case.

It is argued by the distinguished counsel for the appellee, in substance, that the Mississippi statute gives the judgment creditor three modes of keeping alive his judgment, viz, by continued executions, by scire facias, and an action of debt; that if he resort to the mode of issuing execution, so that his judgment is still alive for that purpose, yet, if he suffer the seven years to elapse from the date of the judgment, he cannot resort to his scire facias, or action of debt, although the last execution was within seven years, and that it has been so adjudged; that the scire facias accomplishes nothing more than the reiterated executions; that it creates no new judgment, but simply authorized a new execution upon the old judgment, which is barred by the prescription of seven or ten years.

Again, because it lias been adjudged that reiterated executions do not interrupt the statute of limitations as to the process of scire facias, it is inferred by counsel that scire facias does not interrupt the running of the statute of limitation as to the action of debt. And then it is argued, that the present suit is in the nature of an action of debt, and the same rule ought to be applied here which would be applied in the State of Mississippi in regard to the action of debt upon the same judgment.

The argument would be more conclusive if it were shown, that by the law of Mississippi, an action of debt would not lie upon a judgment upon a scire facias, or that after debt had been brought upon the old judgment, scire facias would not lie upon the judgment in the new action of debt; that ever after, the only mode to revive would be by the action of debt. If we apprehend the decisions cited, they only prove that the single fact that the judgment creditor has taken out repeated executions, does not interrupt the statute of limitations as to scire facias or the action of debt. "Why? It may be because they are the simple acts of one of the parties, unaccompanied by any judicial sanction. But it is well known, that the action of debt may be brought upon a judgment for money rendered in any other form of action; and we are not advised of any law which prevents such action upon the judgment in scire facias reviving a former judgment.

But as we have no decision of the Mississippi courts on this point, and as it would be unsafe to infer that a judgment once revived by scire facias must always be revived in the same manner, because reiterated executions do not interrupt the statute of limitation either as to a scire facias or action of debt, we must endeavor to ascertain the nature of a scire facias, in order to know what effect must be given to it. For it must be conceded, that unless vitality has been given to the judgment of 1841 by the judgment in the scire facias, the prescription of ten years has been acquired.

A scire facias is an action. It is an original action when brought upon a recognizance, or to repeal patents. It is a continuation of a former suit when it is brought to revive a judgment. Bouvier Inst., vol. 4, p. 84.

It being an action, it may be supposed that it must have proper parties, aud that it admits of a declaration, defences and pleas adapted to its nature. We find that the defendant has precisely the same pleas in bar of the action of scire facias, that he would have had to an action of debt upon the same judgment. 4 Bouvier, p. 95 ; Ohitty, Pleadings, 104. In the scire facias, there must be a plaintiff and defendant, a contestation or its equivalent, and a judgment. This judgment is in itself something more than an execution, because, like all other judgments, it cuts off and consumes the defences pleaded or which might have been pleaded, and does itself award execution. And, on the other hand, if the defence be sustained upon the defendant’s pleas in bar, it seems to us that such judgment will have the force of the thing adjudged, not only as to another action of scire facias, but any action of debt which may be brought on the original judgment. That this judgment has a formula at common law different from assumpsit, or debt, or any other action, does not make it any the less a judgment. It is in form that “ the plaintiff have execution of the debt or damages, &c., in thescire facias mentioned,”(4 Bouvier, p. 97, No. 3722,) thus recognizing the debt and granting an execution, which is the object of every suit, and as Ooke says. “ the life of the law.” Neither is it any the less a judgment, because it is rendered upon a continuation of a former suit. Judgments merely awarding execution are not unknown to our law. The order of seizure and sale is a proceeding of this kind. It admits of appeal, and it interrupts prescription. The statute of 1853, (p- 250,) relied upon by defendant, also is an example of a proceeding to revive judgments similar to the Mississippi scire facias. We think, then, it admits of no doubt, that the conclusion of the court upon the final hearing upon the scire facias is something more than an execution. It is (as we have already said) a judgment. If so, then we are informed by the Constitution of the United States, and the Act oí Congress under it, what effect must be given to this judgment in Louisiana. It must have the same effect here, that it has m the State of Mississippi. Const. U. S., Art. 4, sec. 1; Act 1790, 26th May; 2 N. S. 600; 7 An. 334 ; O. P. 746.

■ What, then, is the effect of the judgment upon the scire facias in Mississippi ? It is certainly to give vitality and life to a judgment which was inert and lifeless. In the language of the law, it revived it. It awarded execution upon the debt and charges recognized by the former judgment. Now, from what judgment did the old debt receive its new life and vigor. Tire old judgment? That was inert. It must, then, if it has a new life, receive it from the new decree; the judgment upon the scire facias, which is the final judgment upon the proceeding. This last decree, by the law of Mississippi, authorized (we must presume, and it is admitted,} execution to run to any county in the State for seven years from its date, for the debt and charges mentioned in the judgment and writ oi scire facias.

The judgment upon the scire facias, which was served upon the defendant, had the effect, then, to interrupt prescription ; and so it was adjudged by this court in a similar case.

In the case of Orman v. Neville, decided in May last, we said upon the plea of prescription to a judgment revived in Ohio by scire facias •• “ As ten years have not elapsed since the revival of the judgment obtained by the plaintiff against the defendant in the State of Ohio, the plea of prescription cannot prevail in this instance.” 14 An. 392.

, It is further urged, that the law in relation to the scire facias is merely reme- , dial, and has no extra territorial effect. The case of Pillet v. Edgar, 4 Rob. 274, when attentively considered, does not sustain the position. On the contrary, it proves, that after a year and a day (as the law then stood), scire facias, or a new action of debt, was indispensable to an action upon such judgment here.

If the judgment upon the scire facias be a mere remedy, in the sense used by counsel, then every other judgment must be regarded as a remedy having no force beyond the territory where rendered, which would be a confusion of terms. Statutes pertaining to the remedy are merely such as relate to the course and form of proceedings, but do not affect the substance of a judgment when pronounced.

• As no prescription, or statute of limitations, has run against the judgment upon the writ of scire facias, and as that judgment may be executed, whether it give rise to the action of debt or not, wo are of the opinion that the pleas must be overruled, and the case remanded for further proceedings according to law ; and the.judgment will be so.entered.

It is ordered, adjudged and decreed, that the judgment of the court below be avoided and reversed; that the pleas of prescription be overruled, and the cause remanded for further proceedings according to law; the costs of appeal to be paid by the defendant and appellee.


source: Caselaw Access Project

author: • Buchanan, J.

license: Public Domain

text:
    Franklin Perin, Tutor, v. Charles McMicken’s Heirs et als.
    A disposition, in a testament, having for its object tho foundation and maintenance of colleges under tho administration of a municipal corporation, as trustee forever, is a prohibited fulei commissum and substitution.
    As personal properly has no situs, Article 483 of the Civil Code, which declares that persons who reside out of the State, cannot dispose of tho property which they possess here, iii a manner different from its laws, will not apply to such personal property, as, at the death of the testator abroad, happens to ho within our territorial limits.
    The trust estates of the common law were intended to be prohibited under the general term oi' fidci commism.

    The right of the cestui que trust, under the common law, cannot bo assimilated to the usufruct under our law.
    The absence of interest in tho trustee, will not take tho trust out of tho prohibition of our Civil Code.
    A bequest vesting a merely legal or apparent estate in a person, to be preserved and returned to his children and grandchildren, with the obligation upon such person, during his possession, to apply the fruits and revenues of the property devised to the benefit of a third person, who is neither owner nor usufructuary in tlu* sense of the Louisiana law, constitutes a fidci commissum reprobated by that law.
    PI’EAL from tlie Second District Court of New Orleans, Morgan, J.

      F. Perin, in pro. per., and C. Roselius, for plaintiff and appellant.

      Benjamin, .Bradford <& Finney, for defendants and appellant.

      Race & Foster and H. T. Hays, for intervenors and appellees.
   • Buchanan, J.

Charles McMicken died at Cincinnati, leaving a will, which has been admitted to probate in Cincinnati and in New Orleans, and by which he disposed of a large estate, real and personal, in Ohio, Louisiana and other States.

Mr. McMicken died without ascendants or descendants. His nearest of kin, him surviving, were one sister, and the descendants of another sister, and of a brother previously deceased.

The plaintiff is the surviving husband of a neice of the said McMideen, and brings this suit in behalf of his three minor children, who are, collectively, heirs at law, for one-ninth part, of the said McMichen’s estate, by representation of their mother, deceased.

His petition alleges that the will of Charles McMicken is null, so far as it disposes of his property in Louisiana, for the following reasons:

1st. That a certain bequest to the city of Cincinnati, in said will contained, is contrary to the law of Louisiana, prohibiting substitutions and fidei commissa.

2d. The said city of Cincinnati is a foreign corporation, and without capacity to take the property situated in this State.

3d. The said city is without the constitutional and legal capacity to take or hold property in trust for any purposes whatever.

4th. Tho said bequest involves a perpetuity of ownership, putting the property forever out of commerce.

oth. The colleges mentioned in said will, for whose use the said bequest was intended, were not in being at the testator’s death; and the “ white boys and girls” for whose benefit the said colleges were designed to be created, maintained, &c., are not described with sufficient certainty to show for whom the donation was intended; they are not designated as a class of persons belonging to any corporate or territorial limits ; the bequest is, therefore, void for a want of a devisee.

Gth. The will is not clothed with the formalities prescribed by the laws of Louisiana, to devise the immovable property situated in this State.

The city of Cincinnati, and the testamentary executor of Charles McMicken, have severally appeared and pleaded to this action, asserting' the validity of the will and of the bequests therein contained, to the city of Cincinnati.

To this suit has also intervened, Andreiu McMicken, who joins the testamentary executor in maintaining the legality-of the last will of Charles McMicken, and specially avers that the bequest contained in article four of said will, vested title, in fee, to all the property designated in the first seven sections of said article four, in the three minor children, issue of the marriage between Andreiu Mc-Micken and Rachel Ann, his wife; all of which children were alive at the death of said Charles McMicken ; and that the said Rachel Ann McMicken, their mother, has the usufruct thereof, during her life.

Plaintiff, answering the petition in intervention of Andrew McMicken, denies that the will has any legal effect or validity as regards the property mentioned in said intervention, and pleads that the devise of said property to said Andrew, in trust for his wife and children, is contrary to the laws of this State, prohibiting substitutions and fidei. commissa.

The District'Judge, upon these pleadings and the evidence adduced, decided, that the will of Charles McMicken, so far as it relates to the movable property in this State, left to the city of Cincinnati, and the bequest to Andrew McMicken. be maintained ; and so far as relates to the bequest of immovables in this State to the city of Cincinnati, that said will be declared null and void.

Prom this judgment, the plaintiff, the city of Cincinnati, and the testamentary executor of Charles McMicken, have appealed.

The dispositions of the testament under consideration, in relation to the city of Cincinnati, have for their object, the founding and maintaining of two colleges in that city, and under the administration of that municipal corporation, as trustee, forever.

These dispositions are identical in principal with those contained in the will of Isaac Franklin, (7 An. 399,) the legality of which was very maturely considered, and pronounced upon by all the Judges of this court seriatim. Throe of the four Judges who composed this court, concurred in a decree, that the bequest contained in the will of Isaac Franklin, in favor of James and William. Franklin, in trust for the purposes therein specified, be set aside, so far as it bears upon real estate, slaves and immovables in the State of Louisiana.

Upon the authority of that case, the first and fourth grounds of objection to the testamentary dispositions in favor of the city of Cincinnati, in plaintiff’s petition set forth, must be maintained.

The Civil Code, Article 483, declares that persons who reside out of this State, cannot dispose of the property which they possess here, in a manner different from its laws.

As personal property has no situs, this Article has not been considered to apply to property of that kind, which, at the death of the testator, resident abroad, happens to be within our territorial limits. See the case of Wehre's Succession, lately decided.

Bnt it is contended in argument, in conformity to one of the grounds of nullity charged in the petition, that the city of Cincinnati was without legal capacity to take or hold property in trust. Upon this point, the counsel for plaintiff rely apon the Constitution of Ohio, Article viii, section 6, Swan’s Rev. Stat., 22, and'the'Ohio Statutue of May, 3d, 1852, Swanfpp. 960 and 979.

We are spared the necessity of examining this subject, however, for it is admitted in argument, that the question of the capacity of the city of Cincinnati to execute this trust, has been decided by the Circuit Court of the United Slates in Ohio, affirmatively. It appears that an‘appeal is now pending from that decision, before the Supremo Court of the United States. A reservation will lie made in our decree, to meet the contingency of a reversal of the judgment of the Circuit Court.

The, decision of the intervention of Andrew McMicken, in this cause, turns upon the construction of clause IV of the will of Charles McMicken, which reads as follows:

• “ 1 give and devise to my nephew, Andrew McMicken, in trust, for the use and benefit of his wife, Rachel Ann, during the lerm of her life, and after her death, to their children, in fee, share and share alike : the issue, however, of any such child or children of the said Andrew, now or hereafter born, to take by representation, as I have already provided in Item No. 1 (one), in the words of the devise to the children of Charles M. Carr, deceased, and of his sister, Mary Carr, the following- real and personal estate, to wit: 1

1. All my real-estate in the county of Madison, and State of Illinois, with power on the part of the said Andrew, to sell at public and private sale, any or all of the said laud, and to convey the same to the purchasers in fee ; the proceeds of such sale to be invested in other real estate, or in good securities, to be hold for the use and benefit of said Rachel 'Ann and the said children, in trust as aforesaid.

2. All that tract of land in the parish of West Feliciana and in the State of Louisiana, in the Tunica settlement, containing five hundred arpents, and known as theOarendinc Core Tract,” and which was purchased at the sale of the estate of William Collins, about the year eighteen hundred and forty.

3. All my lots and lands in the town of Bayou Sarah and. other lands on Thompson’s Creek, in the parish of West Feliciana, in the State of Louisiana.

, 4. All that traet of land, containing about two hundred and fifty arpents, situated in the.parish of East Baton Rouge, on ihe Cypress Bayou, known as the James McGill tract. ■ ■

5. All that tract of land in the State of Kentucky, on the Big Sandy River, containing about ten thousand acres, and known as the Benjamin Wyncop tract or patent, and which is now the subject of a suit in ejectment; reserving-, however, if recovered, to the heirs of Joshua F. Doyle, one-third of the net proceeds, after the sale thereof, and after the payment of all costs and charges, and expenses.

6. All my land in the State of Texas, except the granfs in the names of Adam Carraway and James Brown, which are hereinafter devised to Levi S. McMicken. All the lands as above devised, (o he sold and disposed of by said Andreis, at his discretion.

7. All that lot of ground in Spring Grove Cemetery, near ■ Cincinnati, as a burial place for the family of my brother and sister, and of my nephews and neices, and of their descendants ; and also- my pew, No. 75, in the Ninth street Baptist Church. "

8. All debts now-due me in Cincinnati. New Orleans, or elsewhere, by judgment. bom], note, accounts, or otherwise ; all the rents, issues and profits, which at the time of my death may be due me, from the land above specifically devised to my nephew, Andrew McMidcen; my carriages and horses; all.my library and household furniture, of every description, and any other personal property not hereinafter specifically devised, which said library, furniture and personal property, shall be equally divided by the said Andrew, with my neice, Lizzie McMidcen.

9. I permit my nephew, the said Andrew McMidcen, and my neice, Lizzie Mc-Midcen, if either see fit, to occupy, free of rent, and for the period of five years after my decease, the house in which I now reside. This permission, however, shall not interfere with Ihe objects oí my devise to the city of Cincinnati, as to tlie lot by which the said building is surrounded.”

It will have been observed, that the above clause or item of the will, makes mention of the Item No. oue, as governing the heritable rights of the issue of the children of Andrew McMidcen, devised to such issue by the Item No. IV, now under consideration. It becomes, therefore, necessary to a perfect understanding of the scope and operation ,ol this item, that we should copy so much of the Item No. one, as is referred to therein. It is as follows :

“ I give and devise to Charles M. Carr and Andrew McMidcen, and to the survivors of them, his executors and administrators, ail my real estate in Clinton county, Illinois, and >St. diarios county, Missouri, in trust, nevertheless, for the use aud benefit of the children of the said Charles M. Carr and of Mary Carr, who intermarried with Henry Lear, who is now deceased, to be divided between the said children and their heirs, share and share alike, when the last child shall have attained the age of twenty-one years; that is to say, the said lands shall be divided by the said children into parts of equal value, and each child shall choose his or her respective portion by lot; but if the whole, or any portion of the said laud cannot be equally divided, or the said children should fail to agree upon a division, then such portion which cannot be divided, or upon a division of which said children fail to agree, I direct, shall be sold by the said trustees, who shall divide the proceeds thereof, equally among tho said children or their heirs. The issue of any child or children of the said Charles M. Carr, or of his sister, the said Mary Carr, or any grandchild, shall take, by representation of their parents respectively, such share, of tho said lands or of the proceeds thereof, as the said child would have been entitled to receive, had he or she been living at the time of the division or sale of the said estate.

. It is contended by plaintiff’s counsel, that tho item of the will No. IV contains a double trust, or fulei commissum; that the legal ownership is given to one, to preserve for another, for the term of a life ; and then to return to persons, even in tho fourth generation removed from the testator, in fee. C. C. 1507; Provost v. Provost, 13 An. 574.

This clause in the will created, and was intended to create, a trust estate of the common law. The property devised under it was situated in Illinois, Kentucky. Ohio, Texas and Louisiana ; and it cannot be supposed that the testator intended his words to be construed in a different sense in Louisiana, from their received signification in Ohio.

The trust estates of the common law, with their refined distinctions and complicated limitations, were intended to be prohibited under the general term of Jidei comrmssa. The legal estate, by that system of laws., is vested in the trustee. He alone can defend the possession in the courts of law • but the income ami profits thereof belong wholly or in part to another, tho ceslui que trust, The duties of the trustee are to permit the cestui que trust to receive the profits; to account; to execute such conveyances in accordance with the provisions of the trust, as the cestui que trust shall direct; and to defend the title to the land in any court of law or equity. The cestui quo trust is entitled to the beneficial interest in the estate, and may receive the profits, and even possess the estate, where he is the only person interested, or the duties of the trustee do not render it necessary to retain possession. Seo 2 Bouvier, 332, No. 1911 et seq.

Now, as the legal estate vests in the trustee, who alone can appear in justice to defend the title, the rights of the cestui que trust cannot be assimilated to the usufruct, whore the usufructuary has a real right and may stand in judgment to defend it. O. 0. 549.

Again, the trustee holds the legal title, not only for the benefit of the present cestui que trust, but for the benefit and protection of the remainder men and those claiming by representation, and in this case, until the partition which was to be made after the death of the cestui que trust, and the, last child had attained 21 years. 7 An. 419; 2 Howard 650, Gaines v. Chew.

It cannot bo said that this trust is one of those not prohibited by the Civil Code, because it is not coupled with interest in thetrusl.ee. Very few of the common law trustees have any interest. They merely stand seized of the estate for the benefit of others. Neither was it necessary, under the Roman law, in its origin, that the testamentary heir should derive any advantage from the execution of the fidei commissum. The Ealcidian and Trebellianic portions were invented for the purpose of making it the interest of the instituted heir charged with fidei commissa, to accept the succession; and, because substitutions and fidei commissa were prohibited by the Code, these portions wore also abolished. U. 0-1507,1008 ; Domat, Book 4, Tit. 3, and Book 5, Tit. 4.

The bequest contained in item IV of the will of Charles McMiclcen, vesting a merely legal or apparent estate in Andrew McMiclcen, to bo preserved and returned to his children and grandchildren, with the obligation upon the said Andrew, during liis possession, to apply the funds and revenues of the property devised to the benefit ol a third person (his wife,) who is neither owner nor usufructuary in the sense of the Louisiana law, constitutes a fidei commissum reprobated by that law.

It is clear, that the testator did not intend to confer any benefit upon the apparent legatee, Andrew McMiclcen, who is merely a person interposed for the purpose of creating and perpetuating through several generations an estate or title far removed from the simplicity of estates known to our laws; an anomalous estate in Louisiana, although familiar to, and even favored by the system of laws which governs Ohio and the other States of the Union. This complicated and artificial estate, it is the policy of our legislation to exclude from Louisiana. It becomes therefore our duty to declare the whole disposition in question, void, asió the property situated in Louisiana; which must consequently he divided among-the hoirs-at-law, as ah intestato.

The objection to the will, that it was not made in the form required by the law of Louisiana, seems to have been waived in argument.

It is, therefore, adjudged and decreed, that the judgment of the District Court, as regards the city of Cincinnati, be amended by reserving to plaintiff, in his capacity of tutor of his minor children, his action for the recovery of the personal effects bequeathed by the testator, Charles McMiclcen, to the city of Cincinnati, ja case the decision of the Supreme Court of the United States, upon the appeal now pending from the Circuit Court of Ohio, should be adverse to the city of Cincinnati; and that, as so amended, tho judgment of the District Court between the plaintiff and the city of Cincinnati, be affirmed; that the judgment of the District Court upon the intervention of Andrew McMicken, bo avoided and reversed ; and that- there be judgment upon the said intervention, against the said intervenor, and in favor of the plaintiff, annulling and avoiding the item IV of the will of Charles McMicken, as to immovable property situated in tho State of Louisiana; that the minor children of plaintiff named in the petition be recognized and sent into possession, through the plaintiff as their tutor, of the estate of Charles McMicken, their grand-uncle, deceased, situated in the State of Louisiana, as heirs-at-law, for one-ninth of said Charles McMichen’s succession ; that this cause be remanded to tho District Court, for the purpose of making a partition among the heirs-at-law of said Charles McMicken, of the property of his succession in Louisiana; and that the costs in both courts heretofore iucurred (inclusive of this appeal,) be paid by the city of Cincinnati and the executors of Charles McMicken, defendants, with the exception of the costs of the intervention o£ Andrew McMicken, which are to be paid by the intervenor.

Duffel, J., took no part in this decision.


author: Merrick, C. J.

text:
    Catherine N. Lea, Executrix, v. John Orin Terry.
    It is not necessary that tho description of property demanded in a petitory or rescissory action, should be described with such certainty, that tho Sheriil’, or any other person, could find the same without aid.
    Judgments of courts, as well as deeds and acts of parties, may be carried into effect by inquiries, outside the decree, deed or act, when there is a more latent ambiguity.
    A final judgment cannot be rendered on an appeal taken from a judgment rendered on a peremptory exception filed after issue has been joined by default, where the plaintiff did not treat such exception as an answer in tho lower com t. Such a case will be remanded, to be proceeded with according to law, and the exception permitted to stand as an answer.
    APPEAL from tho District Court of the Parish of Livingston, Wilson, J.

      W. C. Walker and D. N. Hennen, for plaintiff and appellant.

      Whittaker & Fellows, for defendant.
   Merrick, C. J.

This case comes up on a judgment rendered upon a peremptory exception filed by defendant.

‘‘ Petitioner states, that on or about the 26th of May, 1831, Franklin W. Lea executed, by act before Lyman Briggs, Notary Public at Covington, in the parish of St. Tammany, a deed of sale to John Or in Terry, now of the parish of Livingston, of the following described property, to-wit: ” (Here follows the description of tho land conveyed.)

“Your petitioner shows that the consideration expressed in said act was the sum of (§900) nine hundred dollars cash, and (§5,000) five thousand dollars in notes of various persons in New Orleans; but your petitioner shoivs that the true consideration and real character of said act was in this wise: that said F. W. Lea and J. Or in Terry having purchased, in 1836, a certain tract of land from one Richard Hagan, situate in the parish of St. Helena, and adjoining the town of Uncle Sam, caused the same to be laid out in town lots, sold the same; that part of the notes arising from the sale of said lots being in the hands of F. W. Lea aforesaid, at the time of the execution of said sale, and tho said Lea being then in embarrassed circumstances and insolvent, said Terry, with a view of obtaining a preference and advantage over the creditors of said Lea, induced said Lea to execute a pledge ol' said above described property, to secure the payment of the portion of said notes remaining due to said Terry, and arising from the sale aforesaid ; that in effect the said pretended act of sale is no more than an act of plede to secure the sum of five thousand nine hundred dollars, then owing by said Lea to said Terry, as will more fully appear by a counter-letter signed by said Terry, of which the following is a copy :

‘ 1 hereby acknowledge that the sale which Mr. F. W. Lea has this day made to me is for notes owned by me jointly with said Lea, and that when my half of said notes are returned, or the money paid for 'the same, I will malee a re-transfer of all the said property to said Lea. The notes above mentioned are given for the property bought of Richard Hagan, and in which we have a joint interest, only one-half of said notes being my property; and the balance being paid or delivered to me, the sale made of this'date will be void.

April-22,1837. John 0. Terry.’

“ Your petitioner is informed, and so alleges the fact to be, that said John Or in Terry has long since received the notes aforesaid, or the money, coming to him from said sale, and nevertheless refuses to re-convey the aforesaid lands to your petitioner, though thereunto amicably requested, &c., &o.”
“ Judgment by default was taken, and before the same became final, the defendant by his counsel, O. W. Waiterston, obtained an order setting the same aside, and that lie have leave to file peremptory exceptions.” '
“ The peremptory exception is as follows : John Orin Terry, the defendant in this ease, now appears and excepts to.the action of said plaintiff upon the following grounds :
“That the petition of said plaintiff, Catherine A. Lea, executrix of Franklin W. Lea, shows no cause of action, inasmuch as it makes the plaintiff’s demand rest upon a pledge of lands and immovable property.”
And upon a counter-letter alleged, dated anterior to the time of the transfer of land sold to the defendant by Franklin IV. Lea on the 26th of May, 1837, as stated by the said plaintiff.”

This exception having been sustained, plaintiff appeals.

The appellee urges in this court, that the property sought to be recovered is not sufficiently described in the petition, to warrant a judgment decreeing a re-transfer, uo copy of the act of sale being annexed to the petition.

It is a mistake to suppose, that the description of property demanded in a petitory or rescissory action must be described with that certainty that the .Sheriff or any other person can, without aid, find the same. It is a maxim of .the law, that that is certain, which can bo rendered certain ; audit is often the case that inquiries have to be made outside of a judgment, to ascertain its application. For example, service of citation is made upon a party by a wrong name, and he suffers judgment under that name : — the Sheriff, when he comes to execute the writ of execution, can find no person bearing the name of the debtor in execution. lie may make inquiries, and ascertain the person who was cited, and against whom judgment was rendered. A plaintiff may recover, in a petitory action, a slave of a certain name; the Sheriff, in executing the writ of possession, may inquire what slave, among a number of the same name or description, was intended. So a man may sell a plantation in his possession in a certain parish, at a certain date, without further designation; and, if a decree be rendered for the same property in the same manner, the Sheriff may inquire, in the execution of the writ of possession, what plantation the party had in his possession at a certain date. Judgments of courts, as well as the deeds and acts of parties, may be carried into effect by inquiries outside the decree, where there is a mere latent ambiguity; otherwise, great numbers of judgments could not be executed.

In this ease, the description of the lands demanded is as follows : “ 1st. A tract of land containing 640 acres, lying in the parish of St. Tammany, on the East side of the river Tangipaho, near the month of the creek called Washley, acquired by said Lea through Wm. Bowman, of Joseph and John W. Slater, being the same granted by the United States to said Joseph Slater as section 40 of township 6 south, range 8 east, and section 37 of township 6 south, range 9 east; 2d. A tract of land, 640 acres, situated in the parish of Livingston, on the Tangipaho river, adjoining the town of Uncle Sam, and known as the Derbin Place, under the certificate granted to the said Jeremiah Derbin, of date July 27,1824, and numbered 175.”

The foregoing description is sufficient. If the boundaries of the tracts, or the courses and distances are not given, still the tracts of land can be found by proper inquiries (if not at once known), and when found, their boundaries may be ascertained by reference to the government surveys. Id certum est quod certum reddi potest.

It is further urged, that there is no description in the counter-letter of the lands, and that it bears date prior to the sale from Lea to Terry.

The counter-letter is referred to in the petition only as proof. It was not exclusive of all other modes of proof. The plaintiff might have interrogated the defendant on facts and articles, or shown an error in the date of the counter-letter, or perhaps shown its application by other testimony. The defendant, by admitting the truth of the allegations in the plaintiff’s petition, has, as the case now-stands, relieved her of the necessity of offering the counter-letter, or making any other proof.

The prayer of the petition must be understood with reference to the allegations, and so construed, the terms “ the lands referred to in the counter-letter, ” and the lands described in the petition,” may be understood as the same, and the disjunctive conjunction “ or ” read as meaning “ or in other words.”

The plaintiff’s counsel contends, that the peremptory exceptions having been filed after a judgment by default, must be taken as an answer, and that we ought to render a final judgment against the defendant on the same, and they cite the case of the Citizens’ Bank v. Beard, 5 An. 41, in support of this position.

The reply to this is, that the plaintiff did not so treat the case in the lower court. If the exceptions were an answer, the case should have been fixed for trial under Article 463 of the Code of Practice, which was not done.

The record does not even inform us whether the exceptions were argued in the presence of both parties.

As there is no other defence filed to the action, except the exceptions, we will permit them to stand as an answer, and remand the case to the lower court, to be proceeded in according to law.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that this case be remanded to the lower court, there to be proceeded in according to law, the defendant paying the costs of the appeal.


author: Land, J.

text:
    A. D. Woodward v. M. E. Woodward.
    Tlio husband, when appointed curator of his wife interdicted for insanity, is bound to give security for the faithful ad-ministration of her estate confided to his caro.
    APPEAL from the District Court of the Parish of East' Feliciana, Ratliff, J.

      J. B. Muse, curator ad hoc, appellant, in pro. per.

   Land, J.

The question to be determined in this case is, whether the husband, when appointed curator of his wife interdicted for insanity, is bound to give security for his faithful administration of her estate confided to his care.

The law provides that the person interdicted is, in every respect, like the minor who has not arrived at the age of puberty, both as it respects his person and his estate; and the rules respecting the guardianship of the minor, concerning the oath, inventory, and the security, the mode of administering, sale of the estate, the commission on the revenues, the excuses, the exclusion or deprivation of the guardianship, the mode of rendering the accounts, and the other obligations, apply with respect to the curatorship of the person interdicted., (I. C. Art. 204.

The rules respecting the curatorship of minors require every tutor appointed or confirmed by the Judge, except the father or mother, to give good and sufficient security for the fidelity of his administration, in an amount equal to that of the credits, money and other movable efiects stated in the inventory, and such other sum as the Judge may deem sufficient to cover any loss or damage which the tutor may occasion to the minor by iris mal-administration. These rules further provide, that this security may be increased or diminished on the demand of tlie under-tutor or any relation of the minor, as the disposable funds of the estate may increase or diminish ; and the only cases in which the tutor may be exempted from furnishing this security, are those in which he proves that he possesses within tlie State, real property, unincumbered with mortgages or other liens, of the value of double the sum fixed for the security, and those in which he gives a special mortgage on immovable unincumbered property, equal in value to the amount of tlie security required. O. 0. 330, 331.

The husband is not exempted expressly by law from giving security for the faithful administration of the property of his wife, who has been interdicted for insanity, although he is entitled of right to the curatorship of her person and her estate; and if his duty to give security is tested by the rules respecting the tutorship of minors, lie does not come within the exception of those rules, which dispense only the father and mother of the minor from giving the security required by law ; for it cannot be said, that the relation of husband and wife, either in nature or in law, is the same as that of parent and child.

It is true, that the law provides that the wife may be appointed curatrix of her husband interdicted for insanity, and expressly dispenses her from giving security for her faithful administration. 0. 0. Art. 400.

But this provision is against, instead of being in favor of the pretentions of the husband ; for if it was not the intention of the law maker to require security of the husband, why is he not expressly dispensed from the performance of that duty, in the same unequivocal manner that the wife has been, in the expression of the legislative will ? The only answer is, that such was not the intention of the law-maker.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be amended, and that the curator, A. J. W. Wortham, the husband of the defendant, be required to give security in an amount equal to that of the credits, money, and other movable effects stated in the inventories of the property of the defendant, for his faithful administration of her estate ; and that the judgment of the lower court thus amended be affirmed, and that the costs of this appeal be paid out of the estate of the defendant.


author: Buchanan, J.

text:
    William Bogel v. John M. Bell.
    The Sheriff is only liable for such damages, arising in the discharge of his official duty, as shall b© proved to have been actually sustained.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      Charles M. Taylor, lor defendant and appellant.

      Lacy & Upton, for plaintiff.
   Buchanan, J.

This is a suit against a Sheriff, for damages alleged to have been caused by seizing a drug store belonging to plaintiff, in execution of a judgment against oue Beach, from whom plaintiff had purchased said drug store a few days previous to the seizure.

The jury found a verdict in favor of plaintiff, for twelve hundred dollars damages, and five hundred dollars counsel fees. Defendant appeals from a judgment rendered upon this verdict, after a fruitless attempt to obtain a new trial. The ground alleged for a new trial was, that the verdict was contrary to law and evidence. The District Judge, in refusing the new trial, used the following language :

“ The court considers the verdict as high under the circumstances. But this is such an error as the Supreme Court will not hesitate to correct, if found to exist; and under the impression that whatever error does exist in the verdict can be remedied in the Supreme Court as the caso now stands, 1 think it unnecessary to grant a new trial.”

We agree with the District Judge, that the evidence does not justify the verdict. The law is well settled, that the Sheriff is entitled to be protected from exaggerated claims for damages in the discharge of his official duty. He is only liable, at farthest, for the damages proved to have been actually sustained.

In the present case, the plaintiff has not proved that he has suffered any loss or expense whatever by the seizure of which he complains, with the exception of his attorney’s fees for prosecuting this suit, five hundred dollars.

It may be observed, that this is a suit in vindication of property which cost twelve thousand dollar?.

It is, therefore, adjudged and decreed, that the judgment of the District Court be amended, and that plaintiff recover of defendant five hundred dollars, with costs of the District Court; those of appeal to be paid by plaintiff and appellee.


text:
    The State, on the relation of R. Castille, praying for a Mandamus, v. The Judge of the Second District Court of New Orleans.
    Where a tutor presents a petition to the court, praying that a special mortgage which he tenders to secure the rights of the minors may he accepted, and the tacit mortgage annulled, he is entitled to a formal judgment on his petition, and this judgment must he entered on the minutes of the court j and reduced to writing and signed hy the Judge.
    On the relation of R. Castille, praying for a mandamus against the Judge of the Second District Court.

      E. Bermudez, for relator.
   Merrick, C. J.

The relator having been appointed tutor to the minors Marie and Joseph Castille, filed his petition, praying that the special mortgage which he tenders to secure the rights of the minors, may be accepted, and the tacit mortgage annulled. The District Judge declined accepting the special mortgage, being of the opinion that the property was so incumbered by prior mortgages, as not to otter any adequate security to the minors. C. 0. 331; Phillips’ Dig. 338, sec. 13.

He, therefore, refused to receive the special mortgage, but declines to reduce to writing the verbal order which ho made, and he states that the practice in his court, both by himself and his predecessors, as far as he can learn, has been, (where he or they disapproved of the advice of a family meeting,) to deliver an oral refusal, without reducing the same to writing.

The relator complains that he is precluded from taking his appeal until the order of the lower court is reduced to writing ; that if he should undertake to appeal, there would be nothing of record to show that he had been aggrieved, or that the proceeding was not still pending.

It appears to us, that the relator is entitled to have a formal judgment rendered upon his petition, in order that he may appeal, if the decree be adverse to his pretensions. See the State v. The Judge of the Second District Court, 13 An. 481, 483.

This judgment, when pronounced, must be entered upon the minutes of the court, and reduced to writing, and signed by the Judge. C. P. 544, 546.

We cannot render the particular decree desired by the relator, nor pass upon the reasons which have influenced the District Judge to withhold the order.

We can consider those questions only, when presented on appeal.

It is, therefore, ordered, adjudged and decreed by the court, that a writ of mandamus issue to the Honorable the Judge of the Second District Court of New Orleans, commanding him to proceed to pronounce judgment upon the petition of said Ramond Castille, filed in said Second District Court, on the 2d day of December, 1859, and praying that a special mortgage be accepted, and that the tacit mortgage theretofore existing in favor of said minors be annulled, and for general relief; and that when such judgment shall have been pronounced, that said District Judge cause the same to be entered upon the minutes of his court, and reduced to writing, and that he sign the said judgment so to be rendered.


author: Voorhies, J.

text:
    Canfield S. Martin v. His Creditors and those of Thomas J. Casey & Co.
    The assignment oí' a warehouse receipt, in the absence of an express stipulation, that the property is given in pledge to secure the payment of a principal obligation, the amount of which is specified, does not confer a privilege upon the transferee.
    In order to create a pledge, it is necessary not only that delivery should accompany the private deed, but also that the instrument should exhibit the nature and extent of the reciprocal rights and obligations of the contracting parties.
    A creditor of an insolvent, whose indebtedness preceded the surrender of the insolvent, may plead his debt in compensation of any amount due by him to the insolvent.
    PFEAL from the Fourth District Court of New Orleans, Pnce, J.

      Bonford, Singleton <6 Clack, for opponents and appellants.

      Benjamin, Bradford & Finney, for syndic.

      Durant <& Hornor, for Reed <& Co.

   Voorhies, J.

The syndic of the insolvent estate of J. Casey & Co., presented a tableau of classification and distribution, to the homologation of which several oppositions were filed by different creditors. Five of these opponents, and the syndic himself a creditor, have appealed from the judgment of the District Court.

1. H. Renshaw, whose claim is classed as an ordinary debt, avers that it is secured by privilege on the proceeds of the sale of ten thousand bags of salt. His claim is based upon the transfer of a warehouse receipt issued to Levy, Summers <& Co., and endorsed over to him by the holders.

The assignment of a warehouse receipt, in the absence of a stipulation that the property is given in pledge to secure the payment of a principal obligation, the amount of which is specified, does not confer a privilege upon the transferee. H. W. Cater, use of, v. H. B. Merrill & Co., 14 An. 375.

Privileges are of strict right; and parties claiming them must conform to tho •requirements of the law. It is required, in order to create a pledge, not only that delivery should’accompany the private deed, but that the instrument itself should exhibit the nature and extent of the rights and obligations of the contracting parties reciprocally.

Our attention has been called to tho case of Martin v. His Creditors, (reported in 14 An. at page 393,) as not distinguishable from the present suit. There is a manifest difference between them ; one has reference to a contract of sale, and the other to a contract of pledge.

2. With regard to the claims of J. Egan & Co., and of Chouteau, Jr. <& Co. the tableau must be amended, for the purpose of refunding to the former tho sum of $818 50, and to the latter the sum of $935 90, paid under protest. They were carried on the account of the syndic as ordinary creditors, and at the same time denied tho benefit of compensating the amounts they owed to the insolvent, by the amounts due to themselves. As the mutual indebtedness preceded the cession or surrender of property, compensation took effect by operation of law. Boissier’s Syndic v. Belair, 1 N. S. 483; Beatty, Syndic, v. Scuddy, 10 An. 404.

3. The opposition of James Harrison & Co. must be maintained, so as to allow them to be refunded the sum of $811 89, paid by them to the syndic for storage. The merchandise kept in the insolvent’s warehouse was fraudulently disposed of, to an amount exceeding tlie charge for storage ; the opponents could not be called upon to pay these costs, without a compliance on the part of the warehouseman, with his corresponding obligations.

4. Tho opposition of S. II. Kennedy £ Co., for the sum of $1,226, is well founded. They paid the sum of $606, under protest, under similar circumstances as fames Harrison & Co.; and, with regard to the balance of $620, the same was compensated by operation of law, as the claim against James Eagan £ Co. and Chouteau, Jr. & Co.

5. Woodruff £ Co. paid the sum of $65 for storage of salt, belonging and adjudicated to them. They are entitled to recover this amount, because the insolvent failed to deliver a portion of the merchandise, to an amount equal to the costs for storage.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be qmended, so as to conform to the several amendments made by this court iu favor of the appellant, to wit, J. Eager £ Co. for the sum of eight hundred and eighteen dollars and fifty cents ; Chouteau, Jr. £ Co., for the sum of nine hundred and thirty-five dollars and ninety cents; James Harrison £ Co. for the sum of eight hundred and eleven dollars and eighty-nine cents ; S. II. Kennedy £ Co. for the sum of twelve hundred and twenty-six dollars; and Wood-ruff £ Co. for the sum of sixty-five dollars; and that, in other respects, the judgment of the District Court bo affirmed, one-half of the costs of appeal to be borne by the insolvent’s estate, and the other half by II. Iienshaw personally.

Merkick, C. J., took no part in this case.


text:
    State v. Benjamin Butman.
    It is not necessary, in changing au offence in an indictment, to follow the words of the statute, it Is sufficient if it be distinctly charged in other words.
    Although tho defendant in a prosecution for libel, may prove the truth of the charges that gave rise to the prosecution, yet evidence of common reports, or of publications in newspapers upon the subject, is inadmissible.
    A party is just as much responsible, criminally and civilly, for giving currency to slanderous and libelous reports, and publications, as if he had originated them. His only excuse in such a case, is to show the truth of tho charges preferred, and not the truth of the preferment, by others, of such charges.
    The extra-judicial declarations of the person against whom the libel was preferred, arc not admissible in evidence, as the admissions of a party, he being merely a witness in the prosecution. It is otherwise in a civil suit, which the injured party may institute for the recovery of damages.
    "When tho defendant, for the purpose of discrediting the witness, offers to prove these statements, after directing the latter’s attention to the fact that they had been made, the evidence is admissible.
    APPEAL from the District Court of the Parish of St. Tammany, Beale, J.

      T. J. Serrones, Attorney General, for the State.

      A. P. Field and H. Duncan, for defendant and appellant.
   Voorhies, J.

The defendant is appellant from a judgment imposing upon him a fine of one thousand dollars, for the crime of libel, of which he was adjudged guilty by the verdict of the jury.

He asks relief upon three distinct grounds :

1, He sets up error in the first place, that the. indictment does not follow the words of the statute. This is not necessary, if the substance of the offence be given; and, although it is safe to charge it in the terms of the statute, it is now well settled, that any words that will convey substantially the ingredients of the offence, will suffice. State v. Stiles, 5 An. 324; State v. Smith, 5 An. 340; State v. Vanderlip, 4 An. 444.

The indictment charges distinctly, that Benjamin Butman acted maliciously; that he wrote and published defamatory language, and gives specifically the language used in the alleged libel. The allegation that various other language in defamation was written and published by the defendant, must be considered as surplusage, the charge of libel being otherwise distinctly enunciated.

2. The defendant had the right to prove the truth of the accusations which gave rise to this prosecution. But evidence of common reports or of publications in the newspapei’s upon the subject, is inadmissible. In giving currency to slauderous and libelous reports and publications, a party is just as much responsible, criminally and civilly, as if he had originated the defamation. His only excuse, in such a case, is to show the truth of the charges preferred, and not the truth of the preferment by others of such charges. Act 1855, p. 152, s. 14.

The District Judge, therefore, did not err in ruling out the testimony offered by the defendant to prove the currency of the rumors and the fact of the newspaper publications.

3. The person, against whom the libel was preferred, being merely a witness in the prosecution, his extra-judicial declarations were not admissible in evidence as the .admissions of a party. It is otherwise in a civil suit, which the injured party may institute for the recovery of damages. The ruling- of the court a qua in rejecting evidence of statements made by W. H. Merritt, the injured person, was in accordance with the rules of evidence in a criminal prosecution for libel.

Had the defendant, for the purpose of discrediting ¡the witness, offered to prove these statements, after directing ths latter’s attention to such statements having been made, the evidence would have been admissible. Such, however, is not the case presented by the bill of exception.

The prisoner was fined in the sum of one thousand dollars, and in default of payment, ordered to be incarcerated until the fine and the costs be paid. The maximum of imprisonment is not to exceed one year. Act of 1855, p. 151, s. 4.

It is, therefore, ordered and adjudged, that the judgment of the lower court be avoided and reversed, and that this case be remanded, with instructions to the District Judge to pronounce sentence upon the accused upon the verdict of the jury according to law.


author: Duffel, J.

text:
    Charles C. Bier v. His Creditors.
    An insolvent cannot recover from the syndic, tools of his trade, which ho, of his own accord, permitted to be included in his schedule.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      Mott & Fraser, for plaintiff and appellant.

      Clarice <£• Bayne, for syndic. T. B. Hart, attorney for absent creditors.
   Duffel, J.

Charles C. Bier applied to the Judge of the Fourth District Court of New Orleans, for a respite, which was refused by his creditors. Annexed to his petition is a statement of his liabilities and of his property, sworn to, verbatim,, as required by the 5th section of the Act relative to the voluntary surrender, &c. Acts of 1855, p. 532.

The insolvent took, subsequently, a rule on the syndic of his creditors, to show cause why certain tools, which he avers are necessary to enable him to carry on his trade, should not be returned to him. This appeal is taken from a judgment dismissing said rule.

The 4th section of the above Act of the Legislature declares: “ That the debtor is not obliged to comprehend in his surrender any property that is not sulyect to be seized and sold on execution against him,” and the 8th section states, “ that all the property of the insolvent debtor, mentioned in the schedule, shall be fully vested in his creditors,” &c.

The evidence shows, that the insolvent retained and still holds in his possession a set of carpenter’s tools, and non constat, that the syndic is in possession of any other tools than those voluntarily surrendered by the insolvent.

Prom the above statement of facts, it is clear that the insolvent cannot now recover the tools which, of his own accord, were included in his schedule.

Judgment affirmed, with costs.


text:
    J. Corning & Co. v. J. C. Wood et als.
    A suit brought against the acceptors of a bill of exchange does not interrupt prescription as lo the drawer and endorser.
    APPEAL from the District Court of the Parish of W. Baton Rouge, Avery, J.

      Frank Haynes and G. S. Lacy, for plaintiffs and appellants.

      Andrew S. Herron, for defendants.
   Voorhies, J.

The plaintiffs, as holders of a bill of exchange, sue the drawer and the indorser. The defendants plead the prescription of five years.

The bill of exchange is on its face prescribed, unless prescription has been interrupted by the institution of a suit against the acceptors.

In the- case of Allain v. Longer, 4 La. 152, the court decided that a suit, brought against an endorser of a promissory note interrupted prescription as to the maker and other endorsers. But this decision was overruled by the case of Jacobs v. Williams, in which the question was elaborately considered by the court. 12 R. 183. Since that time the ruling in the latter case was uniformly adhered to, as being a correct exposition of the law. There being no privity or reciprocity between the different obligors of a commercial instrument, and their respective obligations arising from different and successive contracts, the parties are not debtors in solido, within the meaning of the Civil Code. Tide C. C. Arts. 2072, 2077, 2086, 2087, 2092, 3517.

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


author: Merrick, O. J.

text:
    J. M. Brown v. Jane Brown.
    In a petitory action, the plaintiil*, to recover, must show a title which can be traced back to an author, who had in himself the right of property in the thing sold.
    Whore it is shown that the plaintiff’s vendor acquired his title to the property in dispute, by an amicable act of partition made of the effects of a succession of which he was an heir, it will not suffice, to sustain a petitory action, to produce alone the act of partition — the plaintiff must, in addition, show that the succession of the person from whom his vendor inherited, was the owner of the property which he acquired under the act of partition.
    APPEAL from the District Court of the Parish of East’Baton Rouge, Beale, J.

      J. W. Burgess, for plaintiff and appellant.

      A. M. Dunn, for defendant.
   Merrick, O. J.

This is a petitory action for the recovery of a slave named ' Samuel or Jack.

The plaintiff’s title consists of an amicable act purporting to be a partition of property belonging to the succession of Joseph and Elizabeth Brown, deceased, in 1846, in which the slave in controversy was allotted to Terry B. Brown, and an act of sale in 1848 from Terry B. Brown to the plaintiff.

The defendant shows possession as owner for eight or ten years, and produces letters from the plaintiff proposing to hire the negro in controversy from the defendant ; giving an account of him while hired; remitting to her the wages, and finally offering to buy the negro.

A verdict of the jury and judgment of the court having been rendered in favor of the defendant, plaintiff appeals.

In.this court, the authenticity of the letters is disputed.

The letters are shown to be genuine with the usual certainty of the proof of handwriting, which is rarely positive. The jury had the witnesses before them, and gave credit to their statements, and we cannot say they erred.

Again, in the petitory action, the plaintiff must himself produce title; not a mere paper title, but a title which is traced back to an author who had in himself the right of property in the thing sold. In this case, it was not enough to produce an act of partition; the plaintiff ought to have shown that the successions of Joseph and Elizabeth Brown, deceased, were the owners of the slave to which the heirs succeeded. In the absence of this proof, the defendant was not obliged to produce further evidence of ownership than her possession as owner. But she has not rested her case here. She produces five letters of the plaintiff, recognizing the defendant as owner, showing that plaintiff had become her lessee, and finally offering to buy the slave of the defendant.

The judgment of the lower court must be affirmed.


text:
    D. B. Samford, Adm’r, v. A. R. Toadvine, Ex’r, et al.
    Whore it is shown that a person claiming an estate is the legal heir of its deceased proprietor, in the absence of proof that there are other heirs, he will bo considered tho sole heir.
    The transfer of tho offocts of a succession to tho widow in community, in usufruct, made by the legal heir, is an act of heirship which vests tho whole succession unconditionally in such heir ; it is an acceptance of the succession purely and simply.
    Under such circumstances, the property is vested in the heir, and not in the succession, and the administrator cannot disturb the heir, or those holding under him, in their possession.
    APPEAL from the District Court of the Parish of East Feliciana, Haralson, J.

      1). £. Sanford, in pro. per., plaintiff and appellant.

      Muse & Hardee and Fuqua & Iiilbourne, for defendants.
   Merrick, C. J.

The plaintiff sues in the capacity of administrator of the succession of John Crocker, who died in 1825. He represents that Jane Crocker (the widow,) afterwards Jane Muse, was appointed curatrix of his estate, and qualified as such September 14, 1825 ; that said John Crocker left property inventoried and described in the petition, amounting to $4,796 52£; “ that on the 19th day of January, 1826, Samuel Shaw Crocker, the son and heir of said John Crocker, deceased, by authentic act passed before, Thos. W. Scott, Parish Judge, transferred to the said Jane Crocker the usufruct of all the property above mentioned, and estimated in the said inventory of the estate of John Crocker during her natural life, and that said Jane Crocker, accepting said transfer, took possession of all of said property as usufructuary thereof, and enjoyed the same to her own use and benefit, under the stipulations and conditions contained in said act of transfer, until tho time of her death, when said usufruct terminated.”

Petitioner further represents, that said Jane Muse, by her last will and testament made 24th of August, 1858, (the year of her death), has attempted to dispose of the property settled in usufruct; avers that he is entitled to recover the property so settled in usufruct, or its value; and prays for judgment accordingly.

The petition does not allege that there are any debts to be paid, neither does it disclose when petitioner was appointed administrator; but his brief leaves it to be inferred that he was appointed after Mrs. Muse’s death.

The defendants except, on the ground that the plaintiff’s petition discloses no cause of action, inasmuch as it shows that the succession was accepted purely and simply by the heir, and the property taken possession of by him.

The exception having been maintained, plaintiff appeals.

The son and heir mentioned in the petition must, in the absence of any allegation or proof to the contrary, be considered the only heir.

The law presumes that every person has ascendants, but not that he has descendants.

The existence of one descendant being shown, does not raise the presumption of others. When, therefore, the plaintiff avers Samuel Shaw Crocker to be the heir of John Crocker, deceased, it must bo intended as sole heir. 6 La. 406.

'The transfer of the effects of the succession to Jane Crocker in usufruct, with a release of her rights, on her part, was an act of heirship, and vested the whole succession unconditionally in tho heir. No one but the owner can establish an usufruct upon property; lienee, the act passed before Judge Scott, supposes, necessarily, the acceptance of the succession. O. C. 988, 996, 997, 1009, 525, 594 and 600 ; 9 An. 517.

Having accepted the succession purely and simply, the effects became absolutely those of Samuel Shaw Crocker, the sole heir. They no longer belonged to the Succession of John Crocker, deceased. The usufructuary and his heirs and legatees may be responsible to Samuel Shaw Crocker, but they are not bound to the Succession of John Crocker, deceased.

Now, the question presented by the pleadings, is one of ownership and title between these parties. Plaintiff must recover, if at all, because the effects still belong to the Succession of John Crocker, deceased. The defendants may set up the outstanding title and thirty-three years possession of Samuel Shaw Crocker, and those claiming under him. It seems to us quite clear on principle, that the administrator cannot, under such circumstances, disturb the heir and those holding under him in their possession of the property. Whether an administrator subsequently appointed might or might not apply to the Probate Court for the sale of joroperty in the possession of the unconditional heir to pay debts, is a question which this record does not present.

It is argued by plaintiff, that it is not protended that the estate of John Crocker was ever settled up, and that Mrs. Crocker continued curatrix thereof until her death, and that not having been dispossessed, she continued to hold the same for the succession, and that in the act passed, she bound herself to pay the debts, and stipulated that at her death the estate should descend to the lawful heirs of her deceased husband.

This argument is inconsistent with the allegations in plaintiff’s petition. Samuel Shaw Crocker could not have established the usufruct without accepting the succession, purely and simply. Mrs. Crocker could not bind herself, as usufructuary, without surrendering the effects of the succession to the heir, and receiving them from him under tho conditions of the usufruct, and this the plaintiff has in substance alleged. Her obligations were no longer towards the succession, but towards the heir with whom she had contracted.

We think this disposes of all the questions considered in the elaborate argument of the plaintiff

Judgment affirmed,


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    Charles D. Stewart v. John Boyd et al.
    The notion of supplement of tho pnce on the part of the seller, where the overplus exceeds a twen lietli part of the extent of the premises sold, is subject to the proscription of one year.
    The principles as to prescription, governing ordinary contracts of sale, are applicable to public sales in general.
    The United States surveys and approved township maps must control tho action of surveyors appointed by the court to establish the boundary line between parlies both of whom derive title under a patentee of the General Government.
    APPEAL from tho District Court of the Parish of Pointo Coupee, Haralson, J.

      Louis Janvn and A. Provosly, for plaintiff.
    7Í. H. Bradford and F. H. Farrar, for defendants and appellants.
   Land, J.

This is an action of boundary, and its decision depends on a collateral question arising out of the facts, that the lines between the lots of land purchased by the parties were never run upon the ground by the United States Surveyor, and that the lots contained a surplus of some one hundred and thirteen acres of land.

The defendants purchased on the 27th day of July, 1850, at a Sheriff’s sale, as the property of Henry T. Williams, the patentee of the General Government, six lots of land numbered 3, 4, 5, 6, 7 and 8, in township No. 2, ranges 7 and 8 East, fronting on Lake Depasseau, in the parish of Pointe Coupée, and declared in the act of sale to contain one thousand eight hundred and fifty-three superficial acres and twenty-seven hundredths. And on the 30th day of March, 1854, the plaintiff purchased, at a probate sale of the effects of Henry T. Williams, lots 1 and 2 in the same township and range, also fronting on Lake Depasseau, contiguous to the lots previously purchased by the defendants, and declared in the act of sale to contain three hundred and ninety-three and fifty-two hundredth acres.

In the United States survey of these eight lots, (although the lines between them were not actually run), and in the approved township maps, each one of the lots was declared to contain a certain number of superficial acres, and called for a front on Lake Depasseau; and in reference to the approved township maps, the patents to Henry T. Williams, the common vendor of the parties, were issued.

After the parties had purchased, as above stated, it was ascertained on a resurvey of the lots, that they contained a surplus of some one hundred and thirteen acres; and they not being able to agree in respect to a division of the surplus, the plaintiff instituted this action of boundary, in which the question of title to the excess incidentally arises.

The survey, the approved township maps, and the patents issued in reference thereto, were conclusive upon Henry T. Williams, the common vendor of the parties, and are equally so upon them, his vendees.

The plaintiff, however, contends that the defendants are only entitled to claim the quantity of land mentioned in the act of sale to them, and that he is entitled to claim to the boundary of the defendant’s land, for the reason, that the sale to him was a sale per aversionem.

Whether this position is tenable depends on the question, whether the defendants were entitled to the excess in the six lots purchased by them, as against their vendor, or his heirs, at the date of the purchase of the lots 1 and 2 by the plaintiff. If the defendants were entitled to the surplus contained in the lots purchased by them, as against their vendor, at the date of the sale to the plaintiff, it cannot be contended that the latter acquired any right thereto by virtue of the probate sale to him.

The sale to the defendants was of six separate lots of land declared to contain one thousand eight hundred and fifty-three superficial acres and twenty-seven hundredths, and the surplus contained in them was something near a hundred acres, and exceeded by a very small amount one-twentieth part of the extent or quantity of land declared in the act of sale to them. Eor such a case, Art. 2469 of the Civil Code has expressly provided in these words : “ If, on the other hand, there exists an extent of more than what is specified in the contract, the buyer has a right, either to give the supplement of the price, or to recede from the contract, should the overplus exceed a twentieth part of the extent which is declared.” And Art. 2474 further provides : “ The action of supplement of the price on the part of the seller, and that for diminution of the price, or for the canceling of the contract on the part of the buyer, must be brought within one year from the clay of the contract, otherwise it is barred.”

The sale to the defendants, as stated, was in 1850, and that to the plaintiff in 1854, nearly four years after the date of the contract by which defendants acquired their title, and nearly three years after the right of the vendor to sue for a supplement of the price was barred. Under these circumstances, there can be no doubt of the right of the defendants to the surplus of the land contained in the six lots purchased by them, against their vendor, Henry T. Williams, and his legal heirs, or other representatives. And this right is not impaired by the fact that the sale to them was a judicial sale, because such sales are subject to the rules prescribed for public sales in general, and the latter are subject to the same rules which govern the ordinary contract of sale. C. C. Arts. 258G, 2595. It therefore follows, that the defendants are entitled to all the land embraced in lots 3, 4, 5, G, 1 and 8, purchased from Henry T. Williams, as shown by the United States surveys and the approved township maps; and it also follows, that in running the boundary line between lots 2 and 3, the United States surveys and approved township maps must control the action of the Surveyor appointed by the court to establish the line between these two estates. And as lots 1 and 2 also contain a surplus, there can be no difficulty in running a boundary line which will give to both parties the full extent of their legal rights.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed, and that the cause bo remanded to the lower court for further proceedings according to law, and that plaintiff and appellee pay the costs of this appeal.


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    A. C. Green v. Mrs. C. Bowen—McRae and Wife, Warrantors.
    It is no part of the duty of the Clerk of the Court to prepare the appeal bond, and when the appeal bond was left with the Clerk in blank, to bo filled up with the names of the proper obligees— Held : That the omission to insert the proper names, is not an irregularity from which the appellant may be relieved under the statute of 1839.
    APPEAL from the District Court of the Parish of East Feliciana, Ratliff, J.

      Mu',e & Hardee and S. E. Hunter, for plaintiff.

      B. E. Chaney and J. B. Smith, for defendants and appellants.
   Buchanan, J.

The motion to dismiss must prevail.

The Succession of Mrs. Ranaldson, represented by L. R. Ranaldson, administrator, was interested in maintaining the judgment appealed from, and was, therefore, a necessary party to the appeal bond. The fact, alleged on oath by the appellant’s attorney, that the bond was left with the Clerk of the Court in blank, to be filled up with the proper obligees, does not bring this case within the statute of 1839. It is no part of the duty of the Clerk to prepare the appeal bond. 2 An. 902.

Appeal dismissed, at costs of appellants.


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    The New Orleans Insurance Company v. Francisco Tio.
    A minor cannot claim a legal mortgage on tho property of a person who interferes with the administion of Ins estate, unless tho person so interfering was domiciliated in Louisiana, and tho property within its jurisdiction.
    After tho removal of a minor to Louisiana, through the agency of one who had intermeddled with the minor’s estate abroad, a legal mortgage attaches to protect the minor against an unauthorized administration of his property situated here.
    Where there is a question of imputation of payment, the pajunent will be imputed to tho debt bearing a mortgage, rather than to those which do not bear a mortgage.
    A PPEAL from the Fourth District Court of New Orleans, Price, J.

      Benjamin, Bradford <& Finney, for plaintiff.

      H. M. Spofordmá E. FiUeul, for defendant and appellant.
   Merrick, O. J.

The opinion of the District Judge is as follows :

“ Plaintiffs, tho holders of a mortgage note for $2,500, drawn by defendant, took out executary process and caused the mortgaged property to be seized and sold, to satisfy said mortgaged note, Joseph Marcos Tio et ais., file their third opposition, and claim to bo judgment creditors of said defendant, with a legal mortgage on all his property, from 27th August, 1837, by reason of a certain judgment rendered in their favor by tho Fifth District Court of this city against Eranáseo Tio, No. 1138G of the docket of said court. By reference to the proceedings in said suit, it appears that said judgment exceeds $200,000, and ivas obtained against the defendant for having despoiled plaintiffs of the entirety of the succession of their ancestor, situated in Tobasco, Mexico, and Pensacola, Florida ; and they claim that by virtue of Art. 3283 C. C., they have a legal mortgage on the property of the defendant, reckoning from the day on which the first act of interference was done. From the evidence, it appears that the defendant, took possession of the valuable estate of Tio, situated in Tobasco and Pensacola, and converted the same to his own use. Does such a spoliation and conversion of the ancestor’s property, give a legal mortgage on all defendant’s property in this State, to the prejudice of bona fide resident creditors of this State ? At the time of the death of Tio, and the spoliation and conversion of the estate, the opponents were all residents of Tobasco, and tho conversion took place at Tobasco and Pensacola. I consider that the Article 3283 only applies to interferences with the minor’s property, which is situated and is the subject of administration in this State, and cannot be extended to interferences or conversions of the minor’s property situated abroad. See Pratts v. His Creditors, 12 Rob. 508; Arnold v. McBride, 6 An. 703; Stewart v. His Creditors, 12 An. 89 and 849.

“ So that to entitle a minor to claim a legal mortgage on the property of a person who interferes in tho administration of his property, it is necessary that tho person interfering, as well as the property interfered with, shall be domiciled or located in this State. The debt must originate here, and the properly interfered with, must be the subject of administration in this State.”

Tho foregoing opinion, which wo adopt as our own, disposes of the whole case, except as to the, slave Nancy. We, think, that after the minors wore removed to Louisiana, through, tho agency of defendant, a mortgage attached upon his property, under Art. 3283 C. C. to protect them against liis unauthorized administration of their property situated here.

But we agree with plaintiff’s counsel, that inasmuch as this is the only debt bearing a mortgage, the payment already made must be imputed to this debt. Sec C. C. 2162; Forstall & Co. v. Blanchard, 12 La. 6; Dunlop, Moncure & Co. v. Tarkington, 5 An. 569.

The administration of the defendant having affected only a single thing in this case, there is no reason to apply the rule recognized in the case of Brown v. Roberts, 14 An.

We think the judgment of the District Court must be affirmed, which is accordingly done.


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    Julia D. Stillman v. J. J. Bryant.
    Unless the lender is made in the form required by law, the plamtifl’ will not be liable, under the Act of 1839, for the eosts of the provisional seizuro issued before the maturity of the installments of
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      A. G. Semmes, for plaintiff.

      George L. Bright, for defendant and appellant.
   Merrick, O. J.

This suit was commenced by provisional seizure to secure rent not yet due, on the ground of the removal of the furniture in the leased premises.

We think the District Judge fell into an error in allowing the plaintiff twenty-five dollars rent per month for the room on the back gallery. She willfully prevented defendant from the use of the water from the water pipes, which was necessary to the use of the bath, &c., and ho was justified in tendering her the key.

It is true, the Act of 1839, requires the plaintiff to pay the cost of the provisional seizure issued before the maturity of the installments of rent, if the defendant pays the rent as if falls due. But the tender in this ease does not appear to have been made in the form required by law, and it was not accepted in the form made.

The payments, as shown by the receipts, amounts to f1700, which leaves f 600 only due the plaintiff.

It is, therefore, ordered, adjudged and decreed by the court, that the -judgment of the lower court be avoided and reversed ; and we do now order, adjudge and decree, that the plaintiff recover of the defendant, the sum of six hundred dollars, with five per cent, interest thereon, (by equation,) from the first day of September, 1858, until paid, and costs of the lower court; the plaintiff paying the costs of the appeal.


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    E. S. Morgan v. John Knox et al.
    Whei'o a note was given by the owner of a slave, who was suspected of having destroyed valuable property of the payee, m settlement of the damages supposed to have been caused by the act of the slave in setting fire to his stables — Held: That there was nothing illegal in such a settlement, and the payment of the note could not be avoided, unless it was shown that a capital felony had boon compounded, by making it a condition of the settlement that the slave should not be prosecuted for the crime of arson, of which ho was suspected.
    APPEAL from the District Oourt of the Parish of East Feliciana, Haralson, J.

      J). B. Gainford, for plaintiff.

      Citarles Me Visa and R. J. Bowman, for defendants and appellants.
   Buchanan, J.

Plaintiff sues on a promissory note executed by defendants jointly and severally, payable to plaintiff or bearer, for the sum of four hundred dollars, with interest.

The defence is, that the note was made for an illegal consideration, to wit, an engagement on the part of plaintiff, not to prosecute a slave of one of the defendants for the crime of arson.

The case was tried by a jury, who found in favor of plaintiff. There were several witnesses examined for plaintiff and for defendant in relation to the matters involved in the plea ; and we cannot say that the jury erred in the conclusion at which they arrived, upon the facts of the cause.

The loss suffered by plaintiff by the burning of his stable or crib, and of his horses, fully equalled the amount of this note ; and if it could have been proved that the slave of the defendant burnt the same, defendant would clearly have been liable to plaintiff for the damage sustained, unless he had preferred to surrender his slave.

And if the defendant, convinced of his liability, settled with plaintiff for liis loss by this fire, without being sued, there was nothing illegal in such a settlement, unless it was a condition of the settlement, that the slave should not be prosecuted. This would have amounted to a contract to compound a capital felony; a contract in the highest degree immoral and unlawful.

But we are unable to say, with the testimony before us, and in opposition to the verdict of the jury, that it is proved that this illegal condition was attached to the settlement of which the note, sued upon, is the evidence.

It is even proved, that there were some steps taken towards a criminal prosecution in the premises. A witness for defendant says, that he thinks the matter of the burning was inquired of by the Grand Jury of East Feliciana; thinks there was a bill drawn up ; was called before the Grand Jury as a witness in the case.

It is, therefore, adjudged and decreed, that the judgment of the District Oourt, upon the verdict of the jury, be affirmed, with costs.