author: Taliaferro, J.

text:
    No. 964.
    Joseph H. Harvey and Wife v. Jonathan Potter.
    The proprietor of atraotof land has aright to oxoavate within his own boundaries a canal, for the purposes of navigation, and to require payment for its use from those who choose to avail themselves of its facilities.
    If works, beneficial to the public, are constructed by private enterprise upon private property, and the public choose to avail themsolves of the benefits of such works, equity would require compon’ sation to be made for the benefits conferred.
    Persons availing themselves of such privileges form an implied contract to remunerate the owners of the property, and it is immaterial under what torm or expression such remuneration is claimed.
    A PPEAL from the Sixth District Court of New Orleans, Duplantier, J.

      A.. Saucier, for plaintiffs and appellees.

      Boselius é Philips, for defendant and appellant.
   Taliaferro, J.

The plaintiffs sue for “ tolls and charges,” which they aver defendant owes them for the use of a canal, constructed upon their own land, and kept in order at their own expense. The answer is a general denial, with the special averment that plaintiffs have no right to exact such charges. The plaintiffs had judgment in the Court below, and the defendant has appealed.

It seems that the plaintiffs, owning a body of land in the parish of Jefferson, right bank, extending from the Mississippi river five or six miles back to the Bayou Barrataria, have enlarged and much improved a canal constructed originally by the late Mr. Destretien, father of Mrs. Harvey, one of the plaintiffs. That this canal affords navigation for boats of considerable size, and that great facilities are offered by it for transporting from the interior, wood, lumber, fish, and other commodities destined for the New Orleans market.

The defendant, it is shown, has for a considerable length of time, availed himself of the use of this canal, in boating wood and lumber to market.

The plaintiffs have fully established the facts they have alleged, and the only question presented is: Has the proprietor of a tract of land the right to excavate, entirely within his own boundaries, and exclusively at his own expense, a canal for the purposes of navigation, and to require payment for its use by all who choose to avail themselves of its facilities ? It is not easy to perceive how, in such a case, the public become seized of the right to the gratuitous use of advantages afforded by individual labor and enterprise. The right of expropriation, it is true, belongs to the public, and the land and canal so Constructed upon it, might, under constitutional and legal provisions, become public property, and bo appropriated to public use. But where no public need exists for such conversion, and the property in its entirety is subjected to private ownership, it would seem that the proprietor has the right, in any manner he deems best, to render that property most productive, subject only to the rule sio viere iuo ut alienum non Icedas. We are unable to see that the means irsed by an owner, to increase the value of his property, makes any difference in regard to his right to avail himself of the profits arising from the lawful exercise of such means. If he constructs works useful for the public upon his private property, and the public think proper to enjoy the benefits of these works, equity would certainly require that for the benefit received, compensation should be returned. Private property shall not be taken for public uses, without ample remuneration first made to the owner. This is a fundamental principle. So it would seem clearly to follow that private property cannot be used by the public without compensation for that use. Suppose the plaintiffs, in this case, should refuse to' permit the defendant to use their canal, would an action of damages lie against the owner ? If not, it must appear that the defendant is not entitled to require the use of the canal free of charge, as he would have to require the free use of a navigable stream, or a public road. But the defendant bases his refusal to pay the charges demanded by plaintiffs, on the ground that these charges are presented in the shape of tolls,' or rather that'the plaintiffs call them tolls. The plaintiffs, in their petition, use the terms “ tolls and charges.” The objection is, that no one can exact the payment of a toll unless he had been vested with a franchise by an act of the legislature, which enables him to do so. This objection would be valid, if applied to the pretensions of a person who, without such franchise, should demand toll on a public highway. But it does not appear that the canal in question has in any manner been constituted a public highway. We are referred by the defendant to the case of Boykin & Lang v. W. A. Shaffer, 13 An. p. 129. In that case there was some color of right, under a franchise. The legislature had conferred, upon a navigation company certain privileges, and the company made a contract with Shaffer to do a part of the work, for which it granted to him the privilege of building locks, to improve the navigation of a bayou, and the right to demand toll for the use of the locks. The question seemed to turn upon the right of the company to delegate the privilege to require toll, and the Court, under all the circumstances shown, but with some hesitation, recognized the right. But it was shown that the bayou, although much obstructed by drifts, was, at some stages of water, to some extent navigable in small boats. The facts in that case differ widely from those in the case now before the Court. In the case referred to in 13th Annual, the bayou was indirectly considered a public highway.

We concur with the Judge of the District Court, that the plaintiffs’ claim arises from an implied contract, on the part of the defendant, to compensate the plaintiffs for the use of their property. We also consider, it unimportant what term or expression was used by the plaintiffs to denote the remuneration claimed for that use. They made no pretension to a franchise, or to be authorized by law to exact payment tinder the legal sense of “toll.”

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


source: Caselaw Access Project

author: Howekd, J.

license: Public Domain

text:
    No. 778.

      Perroux v. Lacoste.
    By refusing an order of seizure and sale, because tlie mortgage note was prescribed, the Judge would supply the plea of prescription.
    Prescription is a means of extinguishing a debt, bub can only be applied when specially pleaded.
    The questions of prescription, and of interruption of prescription, cannot be considered on an application for an order of seizuro and sale. The debtor is amply protected by Art. 739 O. P.
    A PPEAL from the Third District Court of New Orleans, Fellowes, J.

      L. Casiera, for plaintiff and appellee,

      E. Berrmudez, for defendant and appellant.
   Howekd, J.

On the rehearing of this cause, the plaintiff and appellee contends that the action of the Court, in requiring authentic evidence of the interruption of prescription to sustain the executory process, is supplying the plea of prescription, and, consequently, a direct violation of Art. 3426 C. C.

He insists that a compliance with the provisions of Arts. 732, 733, 734 and 735, C. P., is all that the Judge can require of Mm, and that if the debt be prescribed the debtor is protected by Arts. 739, No. 8, and 740 C. P., which enables him to arrest the sale upon his oath and without surety; that the only question for the Judge is, whether sufficient evidence is presented to authorize the writ, and that the evidence adduced by him (an authentic 'act importing a confession of judgment, with the note duly parap lied) was and is sufficient, unless some faot has made it insuffi. cient, which fact the Court cannot of its own motion suggest; that the Court must disregard and consider not written any endorsement of a credit or extension on the note which may be shown to be an interruption of prescription, a matter en pays, and in defence only. He also urges that an examination of the authorities will show that the jurisprudence on this point is not too firmly established to be questioned.

The question arises, is the requiring- of authentic evidence of the inter, ruption of proscription, before granting the order, supplying the plea of prescription ? If so, it is prohibited, and the Judge is not warranted ip refusing the writ, for the want of such evidence.

If there were nothing on the note (apparently prescribed), showing an interruption of its prescription, could the Judge refuse the order of seizure? Would not such action be supplying the plea of prescription, and calling upon the plaintiff, on behalf of the defendant, to defeat it ? We are constrained to answer the first query in the negative, and the second in the affirmative. “Prescription is a means of extinguishing a debt, but it is only when specially pleaded it can have that effect. Courts are not allowed to consider it an extinction of a claim, no matter what the evL dence may be, unless the plea is expressly put in.” 3 L. 204. O. C. 3426, 3427. . '

It is true that in an application, ex parte, for the writ of seizure and sale, the debtor has no opportunity of putting in the plea; but he is protected by Art. 739, O. P., and if his debt is extinguished, or extinguishable, he can easily establish the fact. The law says to the Judge, where a creditor presents an act of mortgage in authentic form, in which the debtor acknowledges the debt for which he gives the mortgage, accompanied by the note properly identified, the creditor is entitled to the executory process; and it says further, that the Judge shall not supply the plea of prescription; shall not presume the debt extinguished ; there is authentic evidence of the debt and mortgage, which is complete, until the debtor chooses to invoke the provision of law which annuls or paralizes the whole evidence. It is not the incompleteness or insufficiency of the evidence that relieves the debtor on the question of prescription, but that it causes to be evidence against him—an effect which the Court cannot permit, until petitioned to do so.

The argument that the remedy and not the right is denied, might have force, were it not for the express prohibition in Art. 3426 of the Civil Code, in connection with the articles of the Code of Practice, regulating the executory process.

We cannot perceive that any endorsements of extension or partial payments on the notes can make any difference in the character of the evidence requisite for the process. The act of mortgage remains authentic; the identity of the note continues, and taken together they constitute full proof of the debt, until prescription is specially pleaded, where ¡ho creditor must establish ciliuncle the writ of the endorsements. If the plea is not made, it is unnecessary to prove them, and they may be considered surplusage, or rather, not considered at all. The- fact of interruption is important only where prescription is pleaded, and as the Court cannot raise the plea, no evidence of interruption can be required by the Court, until the plea is made by a party authorized to make it.

The first case in which this point was raised, is that of The Union Bank v. Dosson et al., 7 A. 550, which was an appeal from the refusal of the Judge to grant a writ of seizure and sale, the refusal being based, on the want of reinscription of the mortgage within ten years. Prescription, however, was specially pleaded in the Supreme Court, and the action of the Judge a quo was sustained, because there was no authentic evidence of the interruption. We think the doctrine was there too broadly stated, and not necessary in such terms; that is, “as the obligation is prima facie prescribed, there must be authentic evidence of the interruption of the prescription, before the party can proceed by the via execuliva. ” In this case prescription has not been pleaded. The objection is raised only in the brief.

The only other case cited, or which we can find, is that of Fowler v. Beatty, 10 A. 275, in which the point does not appear to have been raised, and the reference to the doctrine may well be considered obiter dictum. In neither case is allusion made to Art. 3426, C. C., and we must think that for a court to consider an obligation prima facie prescribed, is to supply the plea of prescription. Non cornial, that the debtor would make the plea.

The interruption is no part of plaintiff’s evidence, and need not be noticed, because prescription cannot be presumed.

In this view we do not abate the principle that, in proceedings via eaeculiva, being of great severity, the creditor must bring himself strictly within the letter of the law.

We conclude that the Court cannot require authentic evidence of the interruption of prescription, before granting an order of seizure and Sale, because the law prohibits it; and, at the same time, provides the debtor with ample protection against a prescribed debt. Any other conclusion would, in our opinion, render the eighth clause of the 739th Article of the Code of Practice, and the 3426 Article of the Civil Code, nugatory.,

As to the want of the internal revenue stamp, we must presume that the Judge acted according to law, and we take this opportunity to state that, in the case of McLearn v. Skelton, 18 A. 514, cited by appellant, the note was by consent of both parties brought into this Court, to prove the Want of the stamp; a fact which we omitted to state in our opinion in that case.

It is therefore ordered, that the judgment heretofore rendered by, jis be set aside, and it is now decreed that the judgment of the lower Court be affirmed, with costs.


author: Taliaeeeeo, J.

text:
    No. 987.
    John Rist v. A. L. Abbott.
    the matter of continuances for the most part addresses itself to the sound, legal discretion of the District Court, to be judged of according to the circumstances presented.
    A PPEAL from the Third District Court of New Orleans, Fellowes, J.

      John McKee¿ for plaintiff and appellee.

      Race, Foster & F. T. Merriele, for defendant and appellant.
   Taliaeeeeo, J.

The plaintiff sues the defendant on a promissory note for $2,000, dated November 30,1859, and made payable to the defendant’s own order forty months after date, with interest, at eight per cent, per annum from date, payable at the Citizens’ Bank, in New Orleans. A Credit of six hundred dollars was entered on the note for a payment of that amount on the 2d November, 1865. The payment of the note is secured by mortgage on land, in the parish of Natchitoches.

The only defence is that set up by exception to the prematurity of the action, on the ground that the plaintiff specially agreed with the defendant to extend the time of payment twelve months, from November, Í805, on condition that defendant payed at the time the extension was agreed upon, the sum of six hundred dollars. The defendant avers that he paid the six hundred dollars as stipulated, and that the plaintiff, in violation df the agreement, has instituted this suit. Upon affidavit made by defendant, he obtained a continuance, or delay of thirty-five days, to take the testimony under commission of a witness residing in the city of New York, The delay expired without the testimony of the witness being obtained. On the 14th of April, 1866, (the order for a commission to issue, having been issued on the 23d February preceding), the exception was overruled, and the defendant filed an answer containing, in substance, only the matter set up in the exception. When the exception was called up for trial, the defendant moved the Court to continue the case a day or two, to await the return of his attorney, then absent from the parish, in order that he might make affidavit of the use of proper diligence, without effect to procure the testimony desired, within the delay granted, and thereby be enabled to apply to the Court for further time to get the evidence. This was refused, and to the refusal the defendant reserved a bill of exceptions, which is embodied in the record. The matter of continuances, for the most part, addresses itself to the sound legal discretion of the Court, to be judged of according to the circumstances presented. The Judge of the lower Court saw no sufficient reasons for a continuance, and we incline to agree with him in that opinion. We do not think this case a proper one in which to award damages for a frivolous appeal.

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


author: Labauye, J.

text:
    N. 926.
    W. W. Washburn v. R. H. Offut.
    A party to a contract, the consideration of which is Confederate treasury notes, cannot recover thereon.
    A PPEAL from the Third District Court of New Orleans, Fellowes, J.

      L. F. Simonds and Face, Foster & F. T. Merrick, for plaintiff.

      Flmore <& King, for defendant.
   Labauye, J.

This suit is brought upon a draft of the following tenor :

“$2,940. Montgomery, May 30th, 1862.”

“At sight, pay to the order of W. W. Washburn, twenty-nine hundred and forty dollars, for value received, and charge to the account of

To Samuel Snodgrass, R. H. Oefut.

New Orleans.”

The defence is, among others, that the consideration of the bill of exchange, sued upon, was Confederate treasury notes, the unlawful issues of rebels in arms against the United States.

The District Court gave judgment for defendant, and the plaintiff appealed.

The testimony establishes clearly, that the consideration of the bill sued upon, was Confederate treasury notes.

It is settled, and it is now the jurisprudence of this State, that a party to a contract, the consideration of which is Confederate treasury notes, cannot recover thereon.

■It is therefore ordered and decreed, that the judgment appealed from bo reversed, with costs.

. Rehearing refused.


author: Ibsley, J.

text:
    No. 957.
    J. M. Beebe & Co. v. Kaiser & Bryan.
    ' The moro fact of tho witness being a party to the record, does not disqualify him as a witness.
    Whero testimony, taken by commission, has been improperly excluded on trial in the Court below, and is in the record on appeal, the Supreme Court will not remand the cause on that account, ’ but will render judgment on all the evidence in the record.
    A
    PPEAL from the Third District Court of New Orleans, Fellouies, J.

      F. W. Huntington, for plaintiffs and appellees.

      Geo. S. Lacey, for defendants and appellants.
   Ibsley, J.

This is an attachment suit instituted by the plaintiffs, a commercial firm, doing business in Boston, Mass., to recover from Isaac Kaiser and W. B; Bryan, residents of Woodville, Miss., the defendants, in solido, the sum of five thousand one hundred and twenty-six dollars and interest.

The plaintiffs attached, as the property of the defendants, a considerable quantity of merchandise upon the steamer Saratoga, then lying at the levee in the city of New Orleans.

The defendants, by the curator appointed to represent them, filed a general denial.

Robert Semple intervened, claiming to be the Iona fide and lawful owner of ah the property and effects attached, and alleged the same were not liable in law pr equity, to be seized as belonging to the defendants, and prayed that it might be decreed, contradictorily with the plaintiff, that he was the sole owner of the goods attached, and be quieted in his possession and ownership of the same.

The plaintiffs answered the intervenor’s-petition by a general denial, and by consent of the parties the property seized was bonded by the intervenor. Judgment was rendered in favor of the plaintiffs and against the defendants, in accordance with the plaintiffs’ petition, and the intervenor’s demand, having been dismissed, he appealed.

The case being on trial, the intervenor offered in evidence the depositions of Isaac Kaiser, one of the defendants, to prove that the property attached belonged to him; and there is a bill of exceptions taken by the intervenor to the ruling of the Court excluding Kaiser’s evidence, because he is a party to the suit, and interested. The mere fact of the witness being a party to the record, does not disqualify him as a witness. See 1 An. 228. 2 An. 890. 5 N. S. 464. & An. 67. If interested, he was incompetent at the time to testify. The success of the intervenor would have relieved the property seized from the attachment and the defem dant, whose evidence was offered, from the costs of suit, for the Court would then regularly have been without jurisdiction, and the suit dis* missed. -4 An. 187. 14 An.' 874. But, if the plaintiff could sustain his claim against the defendant, the witness would -testify against his interest in favor of tlie intervenor; because, if lie maintained' this intervenor’s title to the property, it would leave the deféndants’ debt to tlie plaintiff still due. . His interest, thus counterpoised, is against the party calling him. 11 An. 404. 5 Rob. 442. 8 Rob. 227.

We think his evidence was improperly excluded. As the evidence improperly excluded is in the record, it will be considered, and the caso will not be remanded. .14 An. 61. 13 An. 445, '12 A. 12 and 50. 11 A, 404. The intervenor’s claim, to the property attached, is clearly established.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court, dismissing the intervenor’s claims to the property attached, be annulled, avoided and reversed; and it is further ordered, that he be adjudged the sole owner of the goods, wares and merchandise, the property, and effects attached in this suit, that ho be quieted in his possession and ownership thereof, the costs of intervention to bo paid by the plaintiff and appellee.

Rehearing refused.


author: Taliaferro, 3.

text:
    No. 932.
    N. E. Bailey v. The City of New Orleans.
    In a question of damages, where private property is taken for public use, and the tostimony is so conflicting, that from it the Court is unable to do justice between the parties, the case will be remanded to the Court of the first instance, in order that the quantum of damages may bo ascertained by a jury of freeholders. (J. O. 2G08.
    A RPEAL from the Fourth District Court of New Orleans, TMard, 3.

      Buchanan <& Gilmoi’e, for plaintiff and appellee.

      Thomas FI. Hewes, for defendant and appellant.
   Taliaferro, 3.

The plaintiff claims damages of the city, for causing a canal to be constructed through certain grounds of his, alleging that the act has caused him great inconvenience and loss, and estimating the amount of damage he has sustained at thirty-five hundred dollars. He prays that he have judgment for the amount claimed, and that the city lie required by judicial decree to fill up the canal within his boundaries, and to restore his improvements. The answer is a general denial; The Court below awarded five hundred dollars as damages, up to the time of the institution of the suit, with judicial interest from judicial demand ; and decreed further, that thirty days from the signing of the judgment be allowed the defendant, within which to institute proceedings according to law, for the expropriation of such part of the property of the plaintiff as may be found necessary for purposes of public utility, on paying to the plaintiff a fair and just compensation for the same, and for such injury as may result to the remaining property of the plaintiff by such expropriation ; and in default of such proceedings being taken within thirty days, that the said canal upon the property of the plaintiff be filled up at the expense of the defendant.”

From this judgment the city has appealed; The plaintiff and appellee asks an amendment of the judgment, so that the whole amount of the • damages claimed may be awarded to him.

We gather from the record, that in 1864, the digging of the canal in question was authorized by an order of the city authorities, approved by the military authority then prevailing here, for the purpose of completing a system of drainage between the New Canal and Canal Carondelet, and which was deemed important for sanitary purposes. The square, or lots of ground belonging to the plaintiff, through which the new canal passes, lie within the district, the drainage of which was in contemplation. But it does not appear that legal measures were ever resorted to in order to divest the plaintiff of title to the portion of ground taken from him for the purpose of the canal, and to ascertain the amount of injury resulting to him, in other respects, from the construction of this public work, which is among the permanent improvements of the city. We understand the only matter in litigation to be the amount of compensation the plaintiff is to receive for the portion of his ground converted to public use, and the resulting damages. The testimony is conflicting, and from it we do not see that an estimate at all satisfactory, or one likely to do justice between the parties, can be made. We, therefore, think the oase should be remanded to the Court of the first instance, in order that the proper legal steps may be taken, and the quantum of damages ascertained by a jury of freeholders, as provided for by law. Civil Code, Arts. 2606, 2607, 2608, et seq.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that the case be remanded to the Court a quo, to be proceeded in according to law. It is further ordered, that within thirty days from the filing of this decree, in the lower Court, the defendant be required to institute against the plaintiff the proceedings required by law, in cases of compulsory transfer of property, to the end that the respective rights of the parties may be ascertained and adjusted. A failure on the part of the defendant to comply with this decree, to authorize the plaintiff to cause that po'rtion of the canal passing through his grounds to be filled up at the expense of defendant, with reservation also to the plaintiff, the right to recover by suit such damages as may be proved to have been sustained by plaintiff .from the act of the defendant, in causing the said canal to pass through his grounds. It is further ordered, that the costs of this appeal be paid by the plaintiff.


author: Howei/d, J.

text:
    No. 501.
    Goldsmith, Haber & Co. v. Meyer Michel.
    Where the wife, separated in property from her husband by a judgment of the Court, enjoins the seizure under.a fieri facias against her husband, on the ground that she is the owner of the property seized, she must establish her ownership with legal certainty, otherwise the injunction will be dissolved with damages.
    A . PPEAL from the Third District Court of New Orleans, Duplanlier, J.

      J. Ad. Bozier, for plaintiffs and appellants.

      Whitaker, Fellowes é Mills, for opponent and appellee.
   Howei/d, J.

Plaintiffs, having obtained a judgment against the defendant, issued execution, and caused to be seized “ all the goods, movable effects, furniture, etc., to be found in the premises No. 10 Victory street, and occupied by the defendant,” whereupon Mrs. Rosalie Levy, wife of said defendant, enjoined the proceedings, claiming to be the owner of said property by virtue of a notarial act of settlement of a judgment of separation obtained by her against her said husband. The plaintiffs, besides the general denial, aver that said judgment was obtained through fraud and ill practices; deny that she ever had any property, and declare the proceedings for a separation to be a sham, intended to shield the husband’s property from his creditors. Judgment wasrendered perpetuating the injunction, decreeing the property seized to belong to Mrs. Michel, and condemning plaintiffs to pay §100 damages, from which they appealed.

It appears that on 22d June, 1858, one Isaac Levy, by authentic act, made a donation to his sister, Mrs. Michel, of a house and lot, and all the goods and merchandise then in said house, or store, in Waterloo, parish of Pointe Coupee, where the parties then resided, the property so donated being estimated at §2,500; that the said goods and merchandise were estimated in gross by two witnesses, at from §1,500 to §1,800; that the business of said store was continued until 1861 or 1862, one witness says, in the name and for account of Mrs. Michel; and another says, in the name of defendant, that subsequently they came to New Orleans; that in June, 1861, after judgment was obtained by plaintiffs, Mrs. Michel instituted suit, and obtained judgment against her husband, decreeing a separation of property, and condemning him to pay her the sum of §2,500; that on 11th July following, the said Michel and wife appeared before a notary, and in the execution of said judgment, which it is admitted was published, Mrs. Michel acknowledges “ to have received from her husband the articles of merchandise described in an annexed invoice, signed, ne varietur, by the parties, notary and witnesses,” but which is not in the record—which merchandise was valued at §1,850; and for the remaining sum of $700 due on said judgment, the said Michel transferred “ to his said wife, who accepts all the right and title and interest which he has or may have on or to a certain property situated in Waterloo, in the State of Louisiana;” that the property seized under plaintiffs’ -fieri facias, on 10th September following (1861) was worth upwards of §500.

We think the evidence too vague to prove the wife’s ownership of the property seized. The act by which she claims to have acquired it, does not describe the merchandise conveyed as to character, location, or other particulars, there is nothing to identify the merchandise thus bought by her, with the goods seized. The only evidence bearing on this point is the statement of one witness that he “ saw some goods in Victory street, which was seized by the sheriff. She bought some of these goods from different stores here.” Nor is the evidence clear, that the goods, given to her in Waterloo by her brother, passed into the possession of and were used by her husband. He may have conducted the store there in the name and for the benefit of his wife, as one of the witnesses states, and (he business proved unsuccessful; and he may have established business in his own name in this city. The evidence, on which the judgment in favor of the wife was rendered, is in the record, and seems to be inadequate to sustain the judgment, and that which was introduced in this proceeding is not full and satisfactory. The parties may not have committed a fraud as charged, but the wife has certainly failed to prove her, title to the property seized, and the only evidence of the husband’s embarrassed circumstances, is the judgment in favor of plaintiffs.

It is therefore ordered, that the judgment appealed from be reversed; that the’injunction herein be dissolved, and that plaintiffs recover of Mrs. Rosalie Michel and Leon Blum, her surety, $100 damages and costs, in both courts.


author: Ilsley, J. Howell, J.

text:
    No. 901.
    Louis H. Pilie v. The City of New Orleans.
    The Common Council of the city ot New Orleans passed a resolution in the year 1856, whereby the city bound itself to pay to any person who should discover and make report, and give due information of the location, and description of any real estate in the city belonging to it, of which there was no record on the books of the city, and to which it shall appear that the city has a valid title, a commission of five per cent, on the value of the samo. In pursuance of this resolution, Louis H. Pilie, then holding the office of city surveyor, made examination, and discovered certain real estate previously unknown to the city, of which it took possession, and sold for the benefit of the corporation: Held—That in the absence of proof showing that the discoveries and report formed a part of his official duties, as city surveyor, ho is entitled to recover the per centage allowed by the resolution.
    A PPEAL from the Fifth District Court of New Orleans, Leaumoni, J.
    /. Ad. Rozier, for plaintiff and appellee.

      T. II. Ilewes, for defendant and appellant.
   Ilsley, J.

In the'year 1856, a resolution was adopted and passed by the common council of the city of New Orleans, whereby the city hound itself to pay to any person who should discover and make report, and give due information of the location and description of any real estate in the city belonging to it, of which there was no record on the books of the city, and to which it should appear that the said city had a valid title, a commission of five per cent, on the value of the same was promised. It is shown that the plaintiff did discover and make report, and give due information of certain real estate in the city of New Orleans, belonging by good title to the city, and of which there was no record in its books, to the value of sixty-three thousand one hundred and fifty dollars, and of which the city took undisputed possession, and sold in the year 1858, subsequent to its discovery and the report thereof by the plaintiff. The finance committee of the city, and the city comptroller, recognized tho services and the commissions due to the plaintiff, and the city, through its proper officers, paid the amount to the plaintiff. On tho 26th August, 1863, the plaintiff was arrested, and confined a prisoner under the order of General Weitzel, approved by Major-General Butler, and was detained in prison, in consequence of the receipt and collection by him from the city of the above commissions, amounting to $3,182 50, which he was forced to return under duress to the city.

The city filed a peremptory exception to the plaintiff’s action, -which was properly dismissed.

It was in effect a plea of res adjudícala; that the acts of the commanding-general complained of, done in time of war, while martial law prevailed, which was paramount, was therefore final and conclusive; and that the remedy, if any the plaintiff have, must be sought at the hands of of the government, and not from those of the courts.

This exception would, perhaps, have been worthy of consideration, had any trial of the question involved in this suit taken place before any military tribunal, and a final decision rendered thereon; but, apart from the query, whether the plaintiff, who was a civilian, and could notlegnlly be deprived of his property without due process of law, the action of the military merely forced the plaintiff to place matters in slain quo, until his right to the fund could be determined by some competent tribunal, either military or civil; and as the military authorities did not deem it within their province to pass upon the plaintiff’s rigid to the commission claimed, it behooves the civil tribunals of the country to do so, as the case is properly before them.

The plaintiff, at the time the services for which he claims commissions were rendered, was the city surveyor; and it is urged against him, by’way of defence, that he is not entitled to extra compensation, as those services formed a part of his official duties.

There is nothing in the charter, or the city ordinances, to sustain this defence; indeed, it can hardly be supposed, that had the duty devolved on the surveyor to discover properties belonging to the city, to which it had no clue, it would have offered a recompense to all persons, indiscriminately, to make -the search, without a preliminary requisition on their salaried officer to seek for the required information.

The discovery made by the plaintiff was not from plans, papers, or documents in Ms office; it was the result of his indefatigable and persevering exertions, that the information was obtained from the mortgage and conveyance offices, and from other sources.

The city, voluntarily, held out to whomsoever would prosecute the search in its behalf a liberal compensation, if it proved successful and in proportion to the services rendered; and it is abundantly shown, in the record in this case, that the plaintiff has performed his task faithfully, efficiently and profitably for the city; and upon every principle of law and equity the city should and must keep its faith with him.

His claim was duly credited by the proper municipal authorities, and but for the military interference not to be resisted, would have been long since definitely paid, without objection on the part of the city.

It is therefore ordered, adjudged and decreed, that the judgment of (he District Court be affirmed, at the costs of the appellant.

Howell, J.

I concur in the decree in this case, on the ground only'-' that it is not shown, as alleged, to have been the duty of the plaintiff, as surveyor, to furnisli the information for which ho is claiming payment. Under the 33d section of the city charter, the common council may havq. required this duty oí him, in his official capacity. And besides this, by sections 113, lié and 116 of the charter, it was the duty of the common council to have a book of plans, with a proper general index of every tract, square and lot of ground in the city, made and deposited in the office of the surveyor, whose 'duty it would then be to transcribe, daily, from the register of conveyances into said book, all changes of ownership which may take place of such property; which would make the surveyor the depositary of the information, of which the public authorities seemed to be unaccountably ignorant, and which they have obtained in the manner disclosed in the record.

Under the pleadings and evidence, I can urge no judicial reason why the contract thus made by the agents of the public should not be enforced, whatever may be its merits.

I concur with Mr. Justice Howell, in the opinion above stated.

James G. Tadiaeebbo, Associate Justice Supreme Court.


author: InsnEV, J.

text:
    No. 990.
    P. Boutte et als, v. Paul Maillard and Sheriff.
    A motion to dismiss an appeal, made moro than three judicial days after the filing of the reoord, comes too late.
    Where the amount in controversy is less than three hundred dollars, the Supreme Court will dismiss the appeal ex officio.

    Where a motion in the nature of a demurrer is made, the allegations of the petition are considered as time for the purposes of the motion; but if the cause is put at issue, it then devolves upon the plaintiff to establish his case by proof.
    A PPEAL from Fourth District Court, Parish of St. Charles, Beauvais, J.

      Breaux & Fenner, for appellants.

      A. Berbes, for appellees.
   InsnEV, J.

The motion to dismiss the appeal in this case comes too late, having been made more than three judicial days after the record was filed. 11 An. 613. 12 An. 475. If the amount in controversy was, as it is stated in the motion, less than three hundred dollars, we should notice that ex officio; but, ,in looking into the record, we find it records that sum.

The plaintiffs, in the injunction, represent that proceedings via executiva, have been instituted against them, to recover the price of certain lands which they purchased from the defendant, and that since their purchase they have discovered that _ on the 30th June, 1855, by private act, duly recorded in the conveyance office, prior to their purchase, the defendant, their vendor, had sold, or promised to sell the same property now seized, to A. Bouüé, and that the defendant cannot consequently insist on the payment of the balance of the price still due, until the incumbrance thus placed upon it is removed.

The defendant, Maillard, excepted, and moved to dissolve tlie injuction, because, among other things, the plaintiffs’ petition showed no cause of action; but he pleaded the general issue, and a trial, contradictorily, between the parties took place upon the merits.

The motion to dismiss, and for the dissolution of the injunction, was in the nature of a demand, and for that purpose the allegations in the plaintiffs’ petition were deemed to be true; but the case being put at issue, it was incumbent on the plaintiffs, on the trial, to make out their case by proof, which they failed to do. Johnson v. Hickey, 4 La. 203; 2 An. 221. 14 An. 703.

The Court below, therefore, properly dissolved the injunction, with interest and damages.

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


author: Taliafebbo, J.

text:
    No. 952.
    In the Matter of the Succession of Mrs. Thomas Peniston.
    Where the executor of a deceased tutor, under the order of the Court, files an account of the tutorship, he must show that the estate of the minor has been managed with a scrupulous regard for his interests. The casualty, by which the litigants have been deprived of written evidence, does not dispense them from the necessity of supplying it, as far as possible, by secondary evidence.
    A PPEAL from the Second District Court of New Orleans, Thomas, J,

      Roselius & Philips, for appellant.

      G, Puf our, for appellee.

      Brief of Roselius <& Philips, for appellcmi.

    -^-Tlhe presumption of law existing in favor of accounts of administration rendered, etc., and which will no doubt be invoked by the appellee, has no application here.
    Eor, besides the fact, that no regular account of tutorship was ever filed, but simply a small yellow book containing- one entry of debit, and one entry of credit for each year, (these yearly entries purporting to be an addition of the so-called vouchers, which were tied in separate packages, and together with the yellow book constituting the whole exhibit,) the book having been written by Hugh Madden, and the vouchers selected by him from a large lot sent to his office by the deceased in 1860, it appears “he picked up such of the papers and vouchers that he, witness, considered had reference to the succession, and rejected those that did not.”
    Wo do not know what justification there was in his selection, how his judgment was guided in this regard, or what constituted his basis of discrimination, except that Dr. Peniston gave him instructions as to which succession the different vouchers had reference to; and while he throws no light on this subject, and does not explain the nature or character of any of these vouchers, he does say, that as “auditor, he found that a great many of those vouchers bore no evidence upon their face of being-connected with either of these successions.”
    Grandmont, the other auditor, says, that as auditor, he examined the vouchers, and that some of them “had reference to the succession of Mrs. Avart, some of them to the succession of Mrs. Peniston, and some oí them to the succession of Dr. Peniston, and some of the vouchors had no reference at all to these successions. He has no recollection of the vouchers; there were some tax receipts on the property of Dr. Peniston, but these were neglected; and there were vouchers there for repairs done on property belonging to Dr. Peniston, but they were very few; there were a certain number of vouchers which had no relation to the interest of the minor. He remembers two mortgage notes, drawn by Dr. Peniston to his own order; x>resumos that they were mortgage notes, because they were j)araxDhed, and which x>uiported to have been paid in bank; as far as he recollects, he did not find a x>roof that these two notes had any reference to the account of tutorshix>,” etc. And C. Dufour says, the counsel for appellee, testifies: “ Do not know if the summary of the debts was correct or not, and took for granted that Dr. Peniston had charged correctly.” The yellow book was in Mr. Hugh Madden’s handwriting, the doctor’s notary. “The yellow book was headed, but not signed; there were several headings in the yellow book, all by the same penman.
    And again, Yoisin says: “ I think the average rent of the property was between six and eight hundred dollars per month.” “I knew no one, as I said before, but Dr. Peniston, being informed that all the property in this parish, except Camp street property, belongs to the minor.” The last fact is conceded. The inventories on file establish that all the property mentioned in this parish belongs to the minor, except the Camp street house. “Witness has never collected any rents from said Camp street property.” And yet, Grandmont, one of the auditors, says, “that about twelve hundred dollars a year was credited to the minor, in this account, but the same was increased every year to about sixteen hundred to eighteen hundred dollars.” A very liberal margin, to say the least of it, between twelve, sixteen and eighteen hundred dollars a year, and six to eight hundred dollars per month.
    The testimony of the auditors, Grandmont and Madden, throughout, as well as every circumstance in the record bearing upon this so-called account of tutorship, shows it to be a mere heterogenous -collection of desultory receipts, placed in x>ackages with the' single regard to contemporaneous date, and with no reference whatever to their connection with the tutorship. There is really no proof before the Court to support the account, except the statement of Yoisin, during his limited agency; beyond this, the Court will no doubt be told that the law will presume that the account is correct, until it is contradicted by proof.
    While the law, as heretofore interpreted in Louisiana, considers payments made in course of administration as prima facie correct, this principle has only been carried to the extent of contests on accounts which had been previously regularly submitted to the Court, and after due publication, etc., approved and homologated. Succession of Tucker, 13 An. 464; 7 An. 175; 3 R. 286. It has never been extended to a case similar to the one now before the Court. Eor the present purports to be an account of tutorship, embracing a period of eighteen years; no previous account or accounts having been submitted during that long period of time, as might have been done by the tutor in his own protection, under the act of 1855; -which previous accounts being duly homologated, Would have constituted prima facie evidence of their contents, as is expressly set forth in. the statute itself. But, da son tori, he neglected during his lifetime to pursue that course of conduct, which would have afforded him ample protection, and which it was his duty to his minor child to adopt. And now, with every indication of a studied neglect staring out from nearly every page of the record, his representative seeks the benefit of a legal presumption, only established in favor of vigilance and good faith.
    And even, supposing for argument, that the appellee is entitled to tho benefit of this presumption, wo do not know how it can be practically applied by the Court. There is no account of tutorship before the Court. The yellow book and vouchers are burnt. There is nothing left but tho general summary made by his counsel, C. Dufour, Esq., and ho simply carried down balances which he took for granted were correct, and sought to introduce a little classification and system into what was chaotic and confused. There is nothing to stand upon. No facts upon which to base any presumption, except those furnished by the account of opposition, and the moment tho Court goes beyond this, and the evidence adduced under it, everything is confusion. If a regular account had been furnished, no doubt a copy would have been reserved—the executor reserved a copy of his own account, as did also Mr. Dufour of his—and then tho Court at least would have been able to see in what consisted the charges, which it is now' called upon by the appellees to recognize as correct, without knowing anything about them. It will surely bo stretching a presumption too far, to ask for its application in this case, where certain figures, called the sum total of various transactions are alone given, and we are without any knowledge of how this sum dotal is arrived at, or of the current transactions which make up the same.
    And when it is further known that the yellow book and vouchers accompanying it, and dignified by the name of account of tutorship, had few of the essential elements of such an account; that it was written, and the so-called vouchers gathered together by a total stranger, who was in no manner connected with tho transactions which he sought to record, who merely gathered the vouchers from loose and floating papers contained in a newspaper bundle, rejecting or selecting such as his untutored discrimination suggested; that it does not appear that this so-called account ever met the approbation of the tutor; that he ever signified his assent to the same, either orally or in writing, or identified these papers as his own account of tutorship; but that tho samo were simply and only found in his x>ossession after his death; that at the same time the tutor administered on the succession of Mrs. Avart and Mrs. Penision, and the property of his minor son; that his altar ago mixed up and doubled charges and items of debit belonging to the two first successions, with the matters of the minor; that there were acknowledged double charges against tho minor, to exceeding five thousand dollars in amount, which were erroneous; that the showing was unreliable, erroneous, and made up principally of vouchers, which, on their face, had apparently no connection with the matter of tho tutorship, and in favor of which no explanation w'as offered. When all these things are known, we are utterly unable to see on what principle of law or equity the presumption of the law can be invoked, or its application allowed by the Court.

      If all these considerations are not snfficient to show how inapplicable this presumption, established in favor of vigilance and good faith is to this case, then the broad and indisputable proof which has been adduced on the opposition, and to which the Court has been already referred, contradicting the so-called account of tutorship, and establishing the claims of the opponent, not only disputes the presumption, but makes out a positive showing in favor of the appellant.
    Our learned adversary, as well as the District Judge, considered this a fit occasion to read the opponent a moral lecture on the sacred duty of honor and respect which is due by the child to the parent.
    His honor, the District Judge, winds up h:.s opinion by observing that “ there is a consolation in the thought, that if there be any error in the conclusion to which I have arrived in this matter, no real distress can bo given the opponent, and that perhaps it may cause him to entertain a better opinion of his deceased father.”
    If the conclusion of the District Court Judge had been based on the facts found in the record, and the law applicable to them, there would bo some force in the observation.
    But we have already abundantly shown that the conclusion is founded on neither the one nor the other. It is certainly a- novel idea that it is of no great moment, whether a party loses a hundred and forty odd thousand dollars through the inattention or ignorance of a judge, provided he is not reduced thereby to absolute poverty and distress.
    The opponent and his counsel are well aware of the delicate position which they occupy, and have endeavored, as far as possible, to avoid saying anything that was not strictly necessary for the assertion and vindication of his right to his patrimony, which is sought to be wrested from him in this litigation.
    We will barely refer to the testimony of Judge Duplantier, found at page 157 el seq. of the record.

      Brief of Cyprien Bufour, for Appellee.
    -—Shortly after the death of Thomas Peniston, his son, Joseph Allard Peniston, claimed his emancipation, and obtained it. 'He then entered a rule against the executor of his deceased father for an acco'unt of tutorship, and the following order was issued:
    “Let Joseph Lallande, testamentary executor of Thomas Peniston, be ordered to file an account of tutorship to the petitioner, duo by Thomas Peniston, deceased, as natural tutor, within the legal delay. ”
    The tutorship embraced a period of nearly eighteen years. The executor knew nothing of this administration; of course, it was impossible for him to render upon his own responsibility the account required. But it is in evidence that the deceased, within a short year before his death, and no doubt in view of his approaching dissolution, had prepared and liquidated his accounts with his son, and for more accuracy had handed over all his vouchers to his notary, and had given him his instructions, so that the whole might be arranged with some system. This account, and the vouchers, were found at the late domicile of the deceased, and are thus described in the inventory:
    “An account boofe found aprongthe effects of said deceased, containing accounts of the deceased, with the estates and successions of Mad. Peniston and Mad. Avart, both deceased.”
    “Eighteen packages of receipts or vouchers, from the years 1845 to 1S62, both inclusive, having reference to and being a part of the account of said deceased, with the succession and estate of Mad. Peniston, hereinbefore inventoried.” “ Eight packages of receipts or vouchers, from 1855 to 1862, both inclusive, having reference to and being a part of the account of the deceased, with the succession and estate of Mad. Avart, hereinbefore inventoried.”
    These were naturally presented to the Court, as the accounts prepared by the tutor himself, with an addition by the executor, comprising the short interval which passed from the closing of those accounts until the death of the deceased.
    An opposition having been filed in the name of Joseph Allard Peniston, the matter was referred to auditors. These auditors withdrew from Court all papers having any connection with the tutorship. They took away the accounts and vouchers drawn up by the late tutor, the additional account of the executor with accompanying receipts, the mortuary proceedings in the succession of Mad. Peniston, and those in the succession of Mad. Avart; and whilst in their possession, a fire occurred in the office of Mr. Madden, and the whole was destroyed.
    After this deplorable accident, the opponent entered a new rule, claiming that “Joseph Lallando, testamentary executor of the last will of Thomas Peniston, natural tutor of his son, do show cause why he should not file another account of the tutorship of said Thomas Peniston, of the affairs of said appearer during his minority, in lieu and stead of the account of tutorship, so lost and destroyed as aforesaid, and also supply, by copies from his possession or to be iirocured, as far as possible, the original papers lost and destroyed as aforesaid; or in default thereof, why the opponent should not have judgment in his favor against said Thomas Peniston, deceased, as set forth in his opposition to said tutor’s account.”
    The executor, in his answer, referred to the original order, calling upon him to file the account of tutorship, and said: “That from personal knowledge he was unable to comply with such an order, but having found among the papers of the deceased a full account of said tutorship, with accompanying vouchers, prepared from year to year, until the first day of January, 1863, he presented the whole to the Oourt, together with an additional account prepared by himself, by means of such vouchers as he could find, and running from the said 1st of January, 1863, to the month of February, 1864, about three months after the death of the said late tutor, when his minor son obtained a decree dispensing him with the age of majority. And both these accounts were supported and justified by vouchers marked and classed under proper headings, and filed into Court, in compliance with the application of the said Joseph Allard Peniston. That he has kept no copy either of the account itself dr of the accompanying vouchers; but in the private record of his counsel, he has found the original draft of the report he made touching the accounts of the deceased, ending the 1st of January, 1863, which he producesinto Court in the same condition it was found. And he furnishes a copy of the additional account presented by him, and covering the remainder of said tutorship until the month of February, 1864, which copy he has prepared from his own notes and memorandum.”
    The precision and method, with which the accounts were prepared by the tutor, forbid' all idea of looseness or carelessness on his part. There was a separate account, with regard to the succession of Mrs. Avart, of whom the opponent was universal legatee. This estate consisted in slaves and vacant lands in the parish of Jefferson. The whole was sold, and the proceeds carried to the credit side. This fund was debited by the amount of all administrative and judicial expenditures incurred by the estate itself.
    There was another account entitled: ‘ ‘ Succession of Madame Peniston. ” This estate consisted altogether in improved property situated in the city of New Orleans. The account showed on one side the amount of revenues collected, and the other comprised the payment of taxes, insurance, repairs, and price paid on building contracts. There was an item of about four thousand dollars for a sumptuous tomb, erected to the memory of the mother of the opponent. All general disbursements were charged to this estate.
    The first account exhibited a balance in favor of the minor
    of...................................................§101,941 99
    The second account gave a balance in favor of the tutor of... 31,038 69
    Net balance in favor of minor............................. 70,903 30
    The additional account prepared by the executor himself
    showed a balance against the minor of................. 6,767 99
    Definitive balance in favor of the minor.................... 64,135 31
    The manner in which the accounts were prepared is thus described by the notary: “ Witness is a notary public for five years, and previous to that time he was in the office of Ricardo. He was personally acquainted with the late Dr. Peniston; was chosen by Jos. Lallande as the notary of the succession, and as such made the inventory. He recollects the account-book and vouchers stated by him in the supplemental inventory. This book was entirely written by witness, at the instance of Dr. Peniston, and the vouchers were put up by witness to the best of his recollection. He thinks he did this in 1860; it may possibly be in 1861. Ho thinks it was in 1860. He made the packages of vouchers under the date they bore; and if any of the packages are dated in 1862, he must have made them a second time in 1862. These were the same papers he found when he made the inventory, and they were the same papers he took from this Court as auditor. The book was a copy-book, with a yellow cover, with some printing in it; this book had a debit and credit side, and purported to be a recapitulation of the amounts contained in the packages of vouchers, and bearing a credit side of income received. One page of said book was a statement of different sales by auction, and the amounts realized thereby. The total of the receipt was brought up under one item for each particular year. The vouchers were classified by witness himself, and were put up under their respective dates, and the packages for each were labelled properly. These papers were in his office at the time of the conflagration, and were all destroyed, and he has not been able to get any of them since.”
    And upon his cross-examination, the witness said further : “Dr. Peniston sent all the papers and vouchers in a newspaper bundle, to the office of witness for the purpose of being classified by him. He requested him to look over the papers, and said they were receipts, and to make from them a statement; and, at the request of Dr. Peniston, he picked up such of the papers that he considered had reference to the successions, and rejected those that did not. Dr. Peniston gave him the instructions, as to which succession the different vouchers had reference to.”
    How those accounts were reported to the Court by the executor, how the copies furnished had been made, how and to what extent the whole had been revised and verified by the executor’s counsel, is fully set forth in the testimony of the counsel.
    The circumstances attending the preparation of the accounts entitle them to peculiar favor. It is in proof that Dr. Peniston had been suffering for years; in 1863, his lifo was rapidly wearing' away; he died in December, 1863. That a father and natural tutor, in articulo mortis as it were, should deliberately sit down and write out false accounts to deceive his minor son, is a thing that is not easily admissible. And in the performance of this duty, he was not alone; the employment of a notary to assist him is certainly not suggestive of any concealment. Mr. Madden was well known for his thorough business habits; had acquired much experience in the notarial profession, and the services required of him, on this occasion, wrere squarely within the line of his precedents.
    These facts are important features in the case. They raise presumptions ■ so strong, they impart rules so safe, that the law has never disregarded them. This Court said in an analogous case: “In 2 N. S. 298, the account of an executor, accompanied by the vouchers in support of it, was held to bejprima facie evidence of its correctness.” In 6 N. S. 335, it was said that the acknowledgment and payment of debts by tutors and curators, which they know to be owing by the estate which they administer, may be considered as prima facie evidence of their correctness. We think these principles are reasonable and just; and if no presumptions of bad faith or dishonesty are raised, they should have their proper effect. When anything of that kind is presented to rebut the prima facie evidence, such as extravagant charges, the purchase of articles or supplies not probably needed, or concealment of funds, or anything of the kind, Courts cannot be too vigilant and strict in their investigations and judgments; but -when there is every appearance of good faith and correct management, executors, administrators, tutors, and other fiduciaries, ought not, in the settlement of their accounts, to be held to ■ the strictest rules of evidence. It cannot be expected that they can always have witnesses to their various transactions, and were they obliged to prove the signature to every receipt for debts paid, supplies purchased, or other matters, the expenses of summoning witnesses, and of their attendance; the taking of depositions, and procuring testimony generally, would involve successions and the property of minors in heavy and oftentimes unnecessary expenses.” Succession of William Franlum, 3 R. 286.

      If such is the doctrine generally, with how much force will it apply to our case ? I have no reason to believe that any imputation against the memory of the father will result from the opposition of his son to his accounts, but it may not be out of place that the Court should see in what estimation Dr. Peniston was held by those who knew him best. Madame Avart, from whom the opponent has obtained every dollar he now possesses, was the adopted mother of Amélie Duplantier, and had married .her to Dr. Peniston. They lived together. Madame Avart continued to reside with the doctor, even after the death of her adopted child, and remained with him till the day she died. She had made her last will in 1845, and had appointed Mr. Canon her testamentary executor. In the year 1851, she issued four promissory notes to the order of Dr. Peniston, amounting to the sum of fifty thousand dollars, all dated the same day, 20th April, 1851.
    This was clearly a donation, which, however, the donee has never used: the notes were found among his papers after his death, and are thus described in the inventory: “Four promissory notes for the sum of
    twelve thousand five hundred dollars each, drawn by Yeuve Louis Avart, dated the 20th April, 1851, and made payable to the order of said deceased, in one, two, three and four years, respectively, after date.”
    On the 14th June, 1851, not quite two months after the making of the fifty thousand dollars notes, Madame Avart made a codicil to her testament, and appointed M. Peniston her testamentary executor, with full seizin.
    Such were the evidences of high regard bestowed by Madame Avart, which, combined with the presumptions drawn from nature and from law, will give to the deceased father fair standing in the unexpected assault sprung upon his memory.
    That there may be inaccuracies and unimportant flaws in the account leit by the tutor, I am not prepared to contest. If there be any, the Court will correct them. But, upon close scrutiny and general comparison, the account will be found correct in its main features.
    Mr. Peniston, as the executor of Mrs. Avart, presented a tableau of the estate on the 10th of June, 1856.
    From that day, he became seized of the clear residue of the succession as tutor of his son.
    This residue was classified as follows, viz :
    Real estate, appraised at................... $90,676 00
    Slaves unsold, do......................... 3,300 00
    Cash in Bank............................. 474 30
    Bills receivable........................... 1,617 00
    Claims inventoried........................ 31 25'
    $96,098 55
    This was the full measure of the estate to be administered by the father for the use of his son.
    Now, by reference to the various proces-verbctls of sales, we will at once determine how much the real estate and the slaves were sold for.
    The real estate was sold under two separate orders of Court; the first by Julian Neville, and the other by Beard & Co. The proces-verbals of these auctioneers were first introduced by the opponent; and duplicates were afterwards offered by Lallande’s counsel. This will explain how there are four proces-verbals in proof, when in fact there were only two sales.
    The slaves were sold by Gardner Smith.
    There is also in evidence another proces-verbal of a sale made by Vignié, but this was a sale made during the liquidation of the succession, and was included in the tableau. So that it has no connection with the tutorship.
    Let us sum up the proceeds of the several sales, viz :
    By first sale of real estate, as per proces-verbals............. $25,140 00
    By second sale of real estate, as -per proces-verbals.......... 83,820 00
    By sale of slaves, as per proces-verbals..................... 4,545 00
    $113,505 00
    Here is then the entire amount of the gross proceeds of the Avart estate, which the tutor has received for his son. If we turn to that portion of his account of tutorship, headed “Succession of Madame Avart,” we find that the minor is credited, after payment of all administrative and judicial expenditures incurred for the liquidation of this vast estate, with the net sum of $101,941 99.
    The margin for disbursements is shown to be less than twelve thousand dollars, which is very moderate. The correctness of this part of the account is therefore easily vindicated.
    It is true, the item entitled, Cash in Bank for $474 30, was omitted in the tutor’s account. This is an error the Court may easily correct.
    As to the two other items, for bills receivable, $1,617 00, and for claims inventoried $31 25, which were not accounted for in the tutor’s book, the witness by whom the omission was proved seems truly to have explained it in saying that the items referred to claims which perhaps had never been collected.
    In the other branch of the account, headed “Succession of Madame Penislon," there has been no sale. This estate consisted in city property, bearing monthly rents. The minor is here debited with a balance of $31,038 69. But on the other hand, new buildings were put up at a cost of twelve thousand dollars.
    The bill for repairs, and some of the taxes from December, 1858, to November, 1862, a period of about four years, is proved by Dr. Peniston’s agent to have amounted to the sum of $2,939 87.
    Mr. Yoisin testifies he has acted as agent for Dr. Peniston, from the 1st July, 1858, to the 31st December, 1862. During this period of time, he has collected all the rents, and paid out all the expenses upon the property. His book of agency, which is in evidence, shows the following result, viz:
    To amount of expenses from 1st July, 1858, to
    31st December, 1862...................... $17,218 68
    By amount of rents collected during the same
    time.................................... $16,48125
    Balance due by property situated in parish of
    Orleans.................................. 737 43
    $17,218 68 $17,218 68

      The Court will not fail to notice that the debit of the agent’s book does not contain a single item of personal expenses, either for Mr. Peniston or for his son, during these four years. All the charges refer to taxes, insurance, repairs, and new buildings.
    The xu'oof thus afforded by the agent’s book for a short term of four years, explains to a certain extent the balance found by the tutor against the minor.
    The opponent seems to ask with amazement what his father has done with his revenues. We must turn him over to Mr. Voisin, who shows that all his revenues for four years were not enough to pay the tutor for repairs and improvements made. And will not the opponent admit that his father had other expenses to incur, besides those for repairing his houses and building new ones for him ? Expenses of house-keeping ; wages of opponent’s nurses, for he was an infant when he lost his mother; charges for supporting, maintaining and educating him, according to his situation of fortune; travelling expenses, for he indulged quite freely in this luxury; all these very material details in human life, the opponent appears to have completely overlooked. Madame Avart, in her testament, had said:
    “ Je veux que les revenus de mes biens soient employes a son entretien et á son éducation, (meaning her legatee); s’il y a de l’excédent, il devra étre place en propriétés foncieres.”
    I take from the testimony of Joseph Lallande the following extract, viz :
    “All the items upon the debit side of that part of the account of tutorship, which is from my own vouchers, were based ujjon receipts received from Paris, and signed by opponent, and for money drawn there by him.”
    Another witness, Miss Armantine Duplantier, said :
    “Dr. Peniston’s son has partly been raised here; has been one year in Georgia, afterwards in Switzerland, and afterwards in Paris.”
    The opponent, however, passed pretty cleverly over these matters; and presuming he could do better than his deceased father, he has made an account of his own invention, which he offered to the District Judge as the one which should have been rendered. The folly of the author is apparent upon every page he has written. He puts down all he can reasonably imagine must have been collected for him; but throughout the eighteen years embraced in the account, there is not on the debit side a single payment allowed for taxes upon his property; not one for insurance; not one for repairs; not one for keeping the house where he was raised; not one for his maintenance; not one for his education; not one for his voyages; not a word is said about the three new buildings which were put up by the tutor, and have increased considerably the revenues he now enjoys; nothing is said of the sum of four thousand dollars expended up>on the tomb erected to 1ns mother and her'benefactress, Madame Avart.
    And what, at last, makes the thing utterly ridiculous, is the exhibit shown for the year 1848, where he gathers along an amount of rent going-up to $2,232 00, whilst liis'ingenuity could find only one item of expenditure to be carried to the debit side, and amounting to the sum of $175, for the whole year round,

      And in this way the opponent has run up his own account to the enormous sum of $199,599 99, including interests from year to year. Notwithstanding the cleverness displayed, I must confess, for the sake of justice to the other heir, his honor below was right in disregarding it.
   Taliafebbo, J.

The controversy in this case relates to a tutor’s account. Thomas Peniston died in the latter part of the year 1862. He had been the natural tutor of his minor son, Joseph A. Peniston, during a period of about eighteen years. During this time he administered a largo estate, exclusively the property of the minor.

Shortly after the death of the tutor the minor was emancipated, and required from the executor of his father’s estate the rendition of an account of the tutorship.

It appears that a short time before his decease, Dr. Peniston, father of the minor, had deposited in the hands of a notary a number of papers relating to his business generally, and among them the vouchers and documents of various kinds having reference to the tutorship of his minor son, and intended the notary to make out a statement of the tutorship. An account was made out accordingly, which in May, 1864, was presented by the executor, with accompanying papers as vouchers. The account was offered by the minor, and as the investigation of the subject involved the examination of a mass of papers relative to transactions running through so many years, the Court referred the matter to auditors. During the time the auditors were engaged in their functions, the building in which their labors were conducted took fire, and was entirely destroyed, and with it the tutorship account, the oppositions to it, the mortuary proceedings and all the papers of every kind connected with the settlement in contemplation were consumed.

In March, 1865, on the part of the minor, an order was rendered directing the executor to file another account. To this order he responded by filing an account identical as to amount of indebtedness of the tutor, with the former, stating that he was enabled to do so from original drafts of papers in the hands of his attorney, but averred his inability to render any more explicit or detailed account. This second account showing like the first, a balance due the minor of $64,185 31 was offered. ' On behalf of the minor an account against the tutor was presented of $199,959 26, made up as alleged of debts, revenues and income collected, the price of property sold, and interest; the amount claimed being as stated, a not balance after allowance made for all expenses, outlays, commissions, etc., as credits.

The opposition was dismissed, and the opponent has appealed.

We are unable to concur with the Judge a quo in the conclusion, that the account rendered by the executor should be confirmed. At its first presentation it was strenuously opposed, and we have no grounds to infer that the last evidence would have sustained it. Besides, there is not wanting in the record evidence to satisfy us of the probability, that the estate of the minor was not managed with a scrupulous regard to his interests. How, in the present state of the controversy anything satisfactory or conclusive can be arrived at, or how, under the pleadings and the meagre proof, or rather no proof at all in support of the tutor’s account, any judgment can be rendered that would do justice to the parlies, we are at a loss to conceive.

The casualty by which the litigants have been deprived of written evidence, does not dispense them from the necessity of supplying it as far as possible by secondary evidence.

We feel it incumbent upon us to return the case to the Court of the first instance, in order that it may undergo further examination, with the view of adjusting more definitely the rights of the parties.

It is therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that the case be remanded to tho lower Court for further proceedings according to law, the costs of this appeal to be sustained by the succession.


author: Howelij, J.

text:
    No. 971.
    John E. King v. Huston, Hubbell & Co.
    A contract, tho basis of which, is Confederate notes, will not bo enforced.
    A PPEAL from tho Fifth District Court of New Orleans, Beaumont, J.

      Whitaker, Fello'wes c6 Mills, for plaintiff and appellee.

      Clarke & Bayne, for defendants and appellants.
   Howelij, J.

This is a suit by attachment to recover of defendants a sum of money alleged to have been received by them on or about the 16th of April, 1862, from Messrs. Soery & Gore, in Memphis, Tonn., to be delivered to plaintiff in this city.

The answer is a general denial.

It appears from the evidence, that on tho 2d or 3d June, 1862, Soery & Gore, at Memphis, entrusted to one of the defendants a lot of Confederate notes, to be delivered to plaintiff in New Orleans, for which tho following receipt was given :

“Received, Memphis, Tonn., 1862, of Soery & Gore, thirty-eight hundred and ninety-two dollars and fifty-two cents in Confederate notes, which amount we are to deliver to John E. King, at New Orleans.

(Signed) Hubbell, Huston & Co. ”

A portion of this amount was delivered to plaintiff in September, 1862, through the agents of the defendants here, and the balance is claimed in' this suit, for which plaintiff obtained judgment, and defendants have appealed.

On a motion for a new trial in the lower Court, the defendants, among other grounds, urged that the obligation, if any exists, arises out o E a consideration—Confederate notes—void in law, and cannot bo enforced. As has been so frequently held by this Court, this defence must prevail. It is unnecessary to notice other points raised and elaborately argued.

It is therefore ordered, that the judgment appealed from be reversed, and that there be judgment in favor of defendants, with costs in both courts.


author: Labatjve, J.

text:
    No. 1253.
    Abat & Generes et als. v. Emeline J. Penny et als.
    A mortgage was executed bv Mrs. E. J. Penny in 1857, for $8,000 on real ostate, in favor or Lobit & Oharpentier, commission merchants, for the purpose of securing and covering advances made, and to bo made by said commercial house, for the benefit of the plantation of Mrs. E J. Penny; after the execution of the mortgage, the commercial house of Lobit & Ohaipcnlier was changed by the addition of now parties, and styled Lobit, Oharpentier & Oo; in the year 1862, Mrs. E J. Penny executed three promissory notes in favor of the new firm of Lobit, Oharpentier & Oo; the holder of the notes brings suit to recover the amount, and claims the benefit of the mortgage in favor of the old firm, executed in 1857; Held—That the addition of another party in the firm dissolved the old firm, in whoso favor the mortgage was executed, and created a new firm, in whose favor the notes were given, and the new firm could not avail themselves of the mortgage given in favor of the old firm.
    In a revocatory action, where no allegation of insolvency is made in the petition, evidence cannot be introduced to prove the fact.
    Without the allegation and proof of insolvency the revocatory action cannot bo maintained.
    A PPEAL from the District Court, Parish East Baton Rouge, Posey, J.

      Favrot c§ Lemon, for plaintiffs and appellees.

      Dunn & Herron, for defendants and appellants.
   Labatjve, J.

This suit is brought to recover from Mrs. Emeline J. Penny, the sum of $8,500, with interest, and a mortgage on her plantation, and to íinntd a judgment obtained on the 24th November, 1865, on confession, in favor of Mrs. Jane E. Scott, against the said Mrs. Emeline J. Penny for $11,081, with eight per cent, interest per annum, and with a mortgage on said plantation, on the ground that said judgment was null and void, and rendered in fraud of petitioners’ rights; and an execution, having issued on said judgment, plaintiffs obtained an injunction to arrest the sale.

On the 4th March, 1852, Mrs. E. J. Penny mortgaged her said plantation to Bogart, Eoley & Avery, to secure the payment of $7,000, evidenced by her two notes, one due 4th February, and the other 4th March, 1853, each for $3,500.

On the 7th April, 1855, the said Mrs. Penny mortgaged the same property to said Mrs. Jane E. Scott for $2,206, evidenced by her note, payable one year after date.

On the 30th January, 1857, the said Mrs. Penny mortgaged the same, and other property, to the firm of Lobit & Oharpentier, to secure said firm for advances to be made to her by said firm, to the amount of $8,000, to carry on her said plantation.

The mortgage in favor of Bogart, Eoley & Avery, and Mrs. Jane E. Scott, were respectively reinscribed on the 14th and 16th of' October, 1865.

The judgment in favor of Mrs. Jane E. Scott was rendered upon the the notes and mortgage in her favor, and also upon the notes and mortgage in favor of Bogart, Eoley & Avery, which had been transferred to her by said mortgage creditors.

Mrs. Jane E. Scott answered by a general denial of all the allegations set forth in the petition. Admitted that she was a judgment and mortgage creditor of said Mrs. Penny, and that said amount was justly duo her. She prayed that the injunction be dissolved, with general and special damages.

The District Court, after hearing the evidence, decreed that the judgment in the case of Mrs. Jane E. Scott v. Emeline J. Penny, No. 627, in so far as the mortgages were therein recognized to have rank, tho one from the 4th March, 1852, and the other from the 7th April, 1855, be annulled and revoked; that it be so amended as to give the mortgages rank, the one from tho 14th October, 1865, and tho other from the 16th October, 1865; and that the land be seized and sold to pay plaintiffs’ debt, interests and costs. That tho defendant, Emeline J. Scott, wife of D. II. Penny, pay said plaintiffs the amount claimed by them, with the interest. That the petitioners’ rights of mortgage upon the land be recognized to date from the 30th January, 1857, and tho injunction dissolved, and the defendants to pay all the costs of suit.

The defendant, Mrs. Jane E. Scott, judgment creditor, alone appealed. Tho judgment debtor, Mrs. Penny, did not appeal, and is not before us.

There are several bills of exceptions taken to tho opinion of the Court below, but the view we have taken of the case, makes it unnecessary to pass upon them, except one which will be noticed hereafter.

The first question that is presented is : Does the mortgage, executed by Mrs. Penny, on tho 30th January, 1857, in favor of the firm of Lobit & Charpentier, to secure said firm for all allowances or acceptances to be made to her to the amount of $8,000, cover and secure the notes sued upon, and executed by said Mi-s. Emeline J. Penny, on the 1st February, 1862, the 12th February, 1862, and the 1st March, 1862, all payable to the order of Lobit, Charpentier & Co. ?

Wo are of opinion it doós not.

The evidence shows that one A. Testrou became a partner, and made tho company; from that moment the old firm was changed, and became a new one, with different parties, interest and liabilities; the creditors and debtors of the old firm, were not so of the new firm, and vice versa. It was two different houses in contemplation of law; creditors of the old firm could not have pleaded compensation against a debt duo the new firm. Suppose Mrs. Emeline J. Penny held notes of the old firm, and this suit were brought against her by Lobit, Charpentier & Co., in lieu of tho plaintiffs, she could not have opposed the plea in compensation, Ellis v. Fisher, 10 A. 479, 482.

We have concluded that the plaintiffs have no mortgage.

The second question is relative to the avoidance of the judgment by tho revocatory action.

On the trial of the case below, plaintiffs offered in evidence an extract from the assessment roll, to show the value of Mrs. Penny’s property, to establish insolvency; to which evidence Mrs. Scott’s counsel objected, on tho ground that there was no allegations in the petition under which such testimony was admissible, the Court overruled the objection, and admitted the evidence; a bill of exception was taken to the ruling of the Court.

We believe the Court erred.

, In actions of this kind, the allegation and proof of insolvency, is most essential, without which the revocatory action cannot be maintained. ■ The evidence should have been rejected.

It was incumbent on the plaintiffs to allege and prove that Mrs. Penny was in insolvent circumstances, when she consented to these proceedings, to the knowledge of Mrs. Scott, the judgment creditor.'

Nowhere in the petition, or in the record, are there such allegations or proof, 4 L. 256, 250. 4 R. 408, 438. 10 L. 363. O. O. Art. 1973, 79, 80. 12 R. 141. 11 L. 419. 6 An. 87. The solvency and insolvency must he alleged and proved as required by Article 1980 of the Oivil Code.

We are of opinion that the plaintiffs have failed to make out their case in their revocatory action against Mrs. Jane E. Scott, in not proving the insolvency of Mrs. Penny, and knowledge thereof in Mrs. Jane E. Scott.

We think that this case does not require damages, as the judgment bears eight per cent, interest.

It is therefore ordered and decreed, that the judgment appealed from, so far as it concerns and affects Mrs. Jane E. Scott in the revocatory action, be annulled and avoided, leaving in force the personal judgment rendered against Mrs. Emeline J. Penny in favor of plaintiffs. It is further ordered and decreed, that the revocatory action brought to annul the judgment and the mortgage in favor of Mrs. Jane E. Scott be dismissed, as in case of nonsuit. It is further ordered and decreed, that the injunction be dissolved, the plaintiffs and appellees to pay costs of this appeal.


author: Hyman, O. J.

text:
    No. 1314.
    Jean Bethancourt v. Nathan Stephens.
    Plaintiff enjoins an order of seizure and sale sued out by defendant. The injunction is dismissed ori arule taken by defendant, and plaintiff appeals without making the surety on his injunction bond a party to the appeal; Jleld— That the surety is a party to the suit, having an intevost that the judgment appealed from remain undisturbed, and should be made a party to the appeal.
    Where the record of appeal shows that the judgment of the lower Court ivas not signed, the appeal will be dismissed.
    The terms of the District Courts of New Orleans were fixed by the act of March 29th, 1865, from tlie first Monday of November until the last Monday of July.
    A motion to dismiss an appeal, because the transcript does hot contain certain evidence, will not be maintained, where the transcript does not show that such evidence was adduced.
    A PPEAL from the Sixth District Court of New Orleans, Buplanliar, J.
    -A. Robert, for plaintiff and appellant.

      Honor & Benedict, for defendant and appellee.
   Hyman, O. J.

Plaintiff obtained an injunction prohibiting the defendant and the sheriff from selling a lot of ground under an execution in the case of Nathan Stephens v. Mr. and Mrs. Decheaux.

Defendant obtained arule on plaintiff to show cause why the injunction should not be dissolved with damages, and on the trial of the rule the District Judge made it absolute, and dissolved the injunction, with damages.

This judgment was signed on the 28th January, 1867.

On the 30th January, 1867, the plaintiff appealed- from this judgment, without making the security on his bond for injunction a party to the appeal, whom the law declares, in such a case as this is, a party plaintiff in the suit.

Defendant has filed a motion to dismiss this appeal on various grounds, one of which is, that all parties in interest have not been made parties to the appeal.

It is apparent that the security on the injunction bond, who is a party to this suit, has an interest that the judgment appealed from should remain undisturbed; and, therefore, he should have been made a party to the appeal.

On the 30th January, 1867, the District Judge rendered judgment, dismissing the suit, and omitted, as the transcript shows, to sign the same.

On the 1st February, 1867, plaintiff and his security obtained on motion in open Court an order to appeal from the judgment of the 28th January, 1867, and the unsigned decree of the Court dismissing the suit.

A judgment dismissing a suit is a final judgment, and final judgments must be signed by the Judge. Without his signature they are not judgments, and have no effect, and of course cannot be appealed from. It is only from judgments, final or interlocutory, working irreparable injury, that appeals are taken.

The defendant has also filed a motion 1 o dismiss the appeal taken on 1st February, 1867. The first ground for dismissal is, because the bond given for appeal is not sufficient in amount to warrant a suspensive appeal.

If the bond be sufficient in amount, either for a suspensive or devolutive appeal, the appeal cannot be dismissed on this ground.

The bond is given for $1,200, the amount fixed by the Judge in his order for appeal. This amount covers the cost of suit, and therefore the bond is sufficient in amount for a devolutive, if not for a suspensive appeal.

The second ground is, that the appeal was taken at a different term of the Court from that in which the judgment was rendered, and that appellant should have proceeded by petition for appeal, and given citation.

A party may, by motion, obtain from the Court, an order for appeal from a judgment, at the same term of the Court in which the judgment was rendered. When he does so, he is not required to present a petition for appeal, nor is he bound to have citation or notice of appeal served on the appellee.

The question then is, whether the appellant obtained the order for appeal at the same term of the Court in which judgment was rendered.

The act relative to the District Courts, for the parish and city of New Orleans, of March 29th, 1865, declares that the District Courts of New Orleans, shall be opened from the 1st Monday of November to the last Monday of July. This act repeals all other provisions of law on the same subject-matter.

What were the terms of the District Courts of New Orleans before the passage of this act it is needless for the purposes of the motion to enquire; for by the act their terms were, when the appeal was taken, from the 1st Monday of November to the last Monday of July.

The order of appeal was granted in the term in which judgment was rendered.

The third and last ground for dismissal is, that the transcript does not 'contain certain evidence which appellee declares was introduced.

The transcript does not inform us that such evidence was adduced.

It is decreed that the appeal taken by plaintiff on the 30th January, 1807, be dismissed; that the appeal taken by plaintiff and his security from the unsigned judgment,- decreeing the dismissal of the suit, bo dismissed.

That thus far the motion of appellee to dismiss bo sustained, and that in other respects it be overruled.


author: Ilseey, J.

text:
    No. 756.
    Adele E. Westholtz, Widow of David Smith, v. H. William Westholtz.
    Heirs entitled only to tlie residuum of a succession, should not interfere lo talco property out of the hands of the administrator until the debts and charges of the succession are paid, and the final account of the administrator homologated.
    A PPEAL from the Second District Court of New Orleans, Thomas, J.

      Roselius & Philips, and G. JS. Schmidt, for appellee.

      Burcinl & Boriim•, and G. Redmond, for appellant.
   Ilseey, J.

The plaintiff, one of the children, and legal heirs of Mrs. Elizabeth Retaud, deceased, has instituted against her co-heirs and co-proprietors, the present suit for a partition of certain parcels of real estate, found in the succession of the said Elizabeth Retaud.

The only party in interest, who interposed an objection to the partition, was Guillaume Retaud, acting as the natural tutor of his minor child, and for himself as entitled to the usufruct of the property, to be divided under a clause in the marriage contract between the deceased Elizabeth and himself.

Ho filed in Court exceptions to the plaintiffs’ action, which, after argument of counsel, were overruled, and he subsequently filed an answer, in which reserving the benefit of his exceptions, he claimed the usufruct of the whole of the estate of Ms deceased wife, and opposed a partial partition, on the ground that the sale of real estate must be made at a great sacrifice; whereas, if the estate were liquidated it would be easy to effect a partition in kind, as the eventual share of each heir would then be known.

On the merits, the District Court decreed a partition of the property by licitalion, and one-seventh part of the proceeds of the sale was ordered to be delivered to Retaud, as usufructuary, on his furnishing bond and security according to law. From this judgment Retaud, acting as tutor, and in his individual capacity, and Louis Dupurres, under-tutor, have appealed.

The grounds of Retaud’s exceptions were in substance :

1. That a partial partition of a succession is unknown to our law, and if it can be ordered, it can only be done by reason of some extraordinary circumstances and peculiar urgency, of which the petition fails to make any mention.

2. That the succession is still under administration, and that the heirs have not been put in possession, and that the rights of Guillaume Betaud, as universal usufructuary under the marriage contract with the deceased, ascertained or determined, and that the litigation pending between said Betaud and the administrator in the Sixth District Oourt, and tho appeal therefrom, constitutes a bar to this action.

3. That the under-tutor of Betaud’s minor daughter is a necessary party to this suit, and also the administrator to the succession.

4. That quoad the minor heirs of the deceased a family meeting is required to support the demand for a partial partition.

It is only necessary to examine one of the grounds of Betaud’s exception, which is, that a partition of property found in a, succession and under administration, cannot be provoked by the heirs.

It is unquestionably the legal right of the heirs of a deceased person to claim the partition of property inherited by them, and it is not necessary that the co-heirs or the party commencing the action should be in actual possession of the succession or of the thing to be divided. C. O. 1213. But it is, nevertheless, irregular, that heirs, some of whom are beneficiary, who are only entitled to the residuum of a succession, should interfere with the administration, and take the property out of the administrator’s possession, until all the debts and charges of the succession are paid, and the final account of administration homologated. It is impossible to ascertain from the mortuoria of the succession on file in the suit what is the condition of it; and, although from the fact that the administratrix, but in her own name only, is the plaintiff in the partition suit, it is probable that the incumbrances interpose no obstacle, still the presumption is not a legal one, and is not entitled to any weight.

The heir, who makes opposition, has an interest in having the succession liquidated according to law, and his exception therefore, must bo sustained.

It is therefore ordered that the judgment be reversed, and tho suit bo dismissed at the costs of tho plaintiff and appellee.


author: Labauve, J.

text:
    No. 1386.
    T. C. Twichell v. Bernard Avegno.
    Tho plaintiff died while the suit was pending in the lower Court. The widow, in her own right, and as tutrix to her minor child, and the other children as heirs, were made parties to the suit, and 3udgment was rendered in their favor. Defendant appeals, and gives bond in favor of the -widow in her own right, and as tutrix of her minor children, naming not only tile minoxs but those of age: Jfahlr-That the children of age were not made parties to tho appeal.
    The Supreme Court will take no notice of documents not making a part of the record of appeal.
    A PPEAL from the Fourth District Oourt of New Orleans, Théard, J.
    . Cooky <& Phillips, for plaintiff and appelleo.

      Budd <fi Murphy, for defendant and appellant.
   Labauve, J.

This case is before us on a motion to dismiss the appeal on the ground that all the plaintiffs and appellees are not made parties to the appeal, the bond not being given in favor of all of them.

The plaintiff having departed this life while the case was pending below, his widow and heirs were made parties, and tho judgment rendered in their favor as follows:

The defendant was decreed to pay to Mrs. L. A. Twichell, in her own right and as natural tutrix of her minor child, Jenny B. Twichell, Henry T. Twichell and Benjamin S. Twichell, and Irino T. Twichell, and her husband, Thos. J. Poole, legal heirs of plaintiff.

The bond is in favor of Mrs. L. A. Twichell, in her own right, and as natural tutrix of her minor children, J. B. Twichell, Henry T. Twichell and B. tí. Twichell, and to I. T. Twichell and her husband, Thos J. Poole.

The pleadings show that Mrs. L. A. Twichell acts for herself, and as natural tutrix to one of her children; the others arc of ago, and act for themselves. Tho question arises : Is tho bond given in that form, good in favor of the parties of age, although executed in favor of one as their tutor, shown not to be such by tho record ?

Wo believe that the' bond is not in favor of the appellees, who are of age and represented as minors in this bond, which is made to a person in a capacity that does not and cannot exist.

The appellant contends that he has been misled by a copy of the judgment, and which ho has annexed to the record. Wo can take no notice of documents not making part of tho record.

The motion must prevail.

It is ordered that the apjreal be dismissed, at appellant’s costs.