author: Voorhies, J.

text:
    William Massey v. Thomas Hackett et al.
    A copy of a sale or deed of conveyance made and executed by any Sheriff in this State, certified to be a correct copy by the Clerk, has the same effect as evidence in every respect as a duly certified copy of an authentic act.
    Parol evidence is inadmissible either to create or to destroy title to real estate.
    A witness can only refer to memoranda made by himself to refresh his memory-
    Appeal from the Second District Court of New Orleans, Lea, J.

      Dunca/n & McConnell, for plaintiff and appellant.

      Cla/rTce <k Bayne, M. M. Cohen, 8. L. Johnson and C. Schmidt, for various defendants and appellees.
   Voorhies, J.

This is a petitory action, in which the plaintiff claims the ownership of a certain square of ground situated in the city of New Orleans, bounded by Common, Gravier, St. Adeline and St. Magdeline streets. He alleges that a certain tract of land, divided into squares, was seized under several executions and sold by the Sheriff, as the property of Jean Gh'aaier, on the 29th of January, 1825, said squares being designated by numbers according to a plan thereof which was then exhibited by the Sheriff; that the square in question, known and described as number nine, was adjudicated to Howan’d Henderson; and that the following conveyances of the same were subsequently made by authentic acts, namely: from Howan'd Henderson to Solon Hill for the account of Artemon Hill on the 10th of June, 1831, from Artemon Hill to petitioner and Timothy Donnellan on the 9th of March, 1836, and from the latter to petitioner, on the 3d of March, 1849. It is further alleged that the conveyances from Artemon Hill to petitioner and Donnellan, and from the latter to petitioner, contain a clerical error in the description of the square thus sold, which should have been described as bounded by Common, Gravier, St. Adeline and St. Magdeline, instead of Common, Gravier, St. Adeline and St. Jeanne streets ; and that said error was rectified by an authentic act, executed by Artemon Hill in favor of the petitioner, on the 18th of May, 1853.

The defendants pleaded the general issue, and set forth in their answer the various conveyances from their respective vendors, whom they called in warranty. They aver, in this answer, that those under whom their vendors more immediately hold acquired their title to the property in question by purchase from Benjamin Rod/'iguez, by authentic act executed on the 7th of June, 1843; that the lots thus convoyed to them formed part of tha square of ground bounded by Common, Gravier, St. Adeline and St. Magdeline streets, which ■was seized and sold by the Sheriff, as the property of Jean Grmier, to Pierre Gaillou, on the 17th of December, 1824; and that the following conveyances constitute this chain of title to Benjamin Rodriguez, to wit: Pierre Gaillou, sold to Jules LeBla/nc, on the 26th of March, 1831; Jules LeBlanc conveyed to •Mathew Rea, on the 31st of December, 1831; Mathew Rea conveyed to Henry D. Richwdson, a member of the firm of 8. T. Hobson S Go., on the 1st of August, 1838, and on the 29th of April, 1843, Rodriguez acquired Richardson’s title by purchase at a Sheriff’s sale, in the suit of Jonathan Montgomery, testamentary executor of the late William Hott, subrogated to the rights of the Citizens’ Bank of Louisiana, against 8. T. Hobson & Go. It is further alleged by the defendants, that LeBlanc and Gaillou, were, together with Solon Hill, under whom the plaintiff claims, parties to an act of compromise executed on the 14th of July, 1831, in which the parties declared that they accepted a plan drawn by Louis Bringier, on the 19th of May, 1831, dividing anew the Gravier property thus conveyed by the Sheriff, and that it should thenceforth be binding upon them, and the Gravier plan which was considered erroneous was to be null and void; that the plaintiff, claiming under Solon Hill, is estopped by said agreement, &c. We consider it unnecessary to notice the other grounds of defence.

It is in evidence that John Grmier was the owner of a certain tract of land situated in the suburb St. Mary, which was partially laid out into squares, designated by numbers, according to a plan made by him in 1820 ; that the squares thus laid out were sold by the Sheriff by virtue of an execution against him to different persons, among others, John McDonogh, John Longpré, Pierre Gaillou, Frangois Dubuc, Frangois Mem'ie P'erilliat, Jemes Lrwin, Henry de Fnde, Alexander W. 8. Palmer and Howard Henderson; that subsequently, on the 27th of April, 1831, John McDonogh acquired, by purchase at Sheriff’s sale, under an execution against Jean Grmier, the residuary interest of the latter to said tract of land situated within the following limits, to wit: “in front, or to the east by the line of St. Paul street, in its whole length from Périlliat’s line above to Common street below, on the upper side or to the south of Perilliat’s line, running back from its intersection with St. Paul street to its intersection with Bertrand street, on the lower side, or tC the north by Common street from its intersection with St. Paul street and a line parallel with Common street, continued until it intersects the line of Bertrand street, and in the rear, or to the west, by Bertrand street in its whole length.” It would seem that in attempting to take possession of their respective squares, under the Sheriff’s sales, it was discovered by the purchasers that Grmier’s plan was erroneous, inasmuch, as it encroached upon a tract of land belonging to Frmgois Marie Périllicet. On the 19th of May, 1831, a new plan of the squares embraced between St. Paul, Common, Bertrand and Hevia streets was made by Louis Bringier, Surveyor General of the State.

Under a written agreement entered into between the parties, or purchasers at the Sheriff’s sale, on the 14th of July, 1831, the plan thus made by Bringier was accepted as binding upon them, without any exception or reservation, and the Gravier plan declared tobe null and void. Solon Hill, under whom the plaintiff claims, was a party to that agreement, in which the square claimed by him was described as “ number nine, measuring 320 feet 2 inches front on Gravier street, 402 feet 6 inches front on St. Jeanne street, 230 feet 2 inches front on Common street and 402 feet 6 inches front on St. Adeline street;” and the square in controversy, to which the defendants derive their title from Pierre Ocdllou, was described as “ number thirteen, measuring 230 feet 2 inches front on Gravier, 402 feet 6 inches front on St. Adeline, 230 feet 2 inches front on common and 402 feet 6 inches front on St. Magdeline street.” Jules LeBlanc, the vendee of Pim'e Ocdllou, was also a party to the agreement. The claim of title from Pies re Ocdllou, to Benjamin Rodriguez is satisfactorily shown by the evidence as set forth in the defendants’ answer. The square thus acquired by Rod/riguez was divided into lots and sold by him at auction, on the 7th of June, 1843. The testimony of the auctioneer shows that the square was sold as represented on Louis Bringi&ds plan, which he says is in accordance with the general description of all the property there, the present location of the streets, and the measurement made at the time.

Under this state of the case we are enabled to examine understandingly the various questions presented by tho bill of exceptions contained in the record.

1st and 2d. The first two bills of exception present the same question. The defendant objected to questions propounded to two of the witnesses on the stand, on the ground of being leading questions. The object of the testimony was to prove the loss of the Gravier plan. As we consider the plaintiff estopped by the Act of the 14th of July, 1831, from setting up this plan as a muniment of title, it is, therefore, unnecessary to determine the question presented by these bills of exceptions; 18 L. 1; 4 R. 299; 5 R. 200; 2 An. 28; 2 L. 000.

3d. Wo do not think the Judge erred in overruling- the plaintiff’s objection to the introduction of a copy of the Sheriff’s deed of sale to Benjamin Rodriguez, on the ground that the original should have been accounted for or the impossiblity of producing it shown. The 11th section of the Act of 1828, declares that a copy of any sale or deed of conveyance made and executed by any Sheriff of this State, certified to be a correct copy by the Clerk, &c., shall be received as evidence in tho same manner and have the same effect in every respect as a duly certified copy of an authentic act. Under this enactment, the copy offered was clearly admissible as evidence. Session Acts of 1828, 154.

4th. The plaintiff objected to the introduction of an act of conveyance from Berncm'd McGcm'ty t8 Thomas IlaeJceti on the following grounds: 1st, that it was as to him res inter alios acta, unless given in evidence to prove rem ipsam only; 2d, that it was imperfect on its face, as it referred to a plan as part of it for the description of the lot therein mentioned, the said plan being the primary evidence of the location as well as the dimensions of the said lot, and 3d, that it also contained enunciations of certain judicial proceedings, of which an authentic copy could alone be received as the best evidence. The act was clearly admissible as proof of one of tho links of defendant’s chain of title. As the property is fully described in the act, the second objection is, therefore, untenable. It is a sufficient answer to the third objection to say, that it was incumbent upon the plaintiff to state specifically the recitals in the deed to which he objected as inadmissible against him, and to request the Judge to charge the jury accordingly.

5th. Parol evidence is clearly inadmissible either to create or to destroy title to real estate. In this respect the testimony of Louis Bringim' was properly excluded. So far as its tendency was to give effect to the Gravier plan it was also inadmissible, for the reasons which we have already stated. Hen. Dig. 525; 11 L. 251; 4 An. 441; 3 An. 193.

6th. The Judge did not err in ruling out conveyances offered in evidence to which the defendants were neither parties nor privies, on the ground of res inter alios acta. Besides, the object of the evidence was to destroy or change the limits which were assigned to the property in controversy under the Act of 14th July, 1831, which could not be done.

7th. The question presented by this bill of exceptions is the same as that decided in the preceding one.

8th. The plan offered as secondary evidence to prove the contents of the Gravier plan was, in our opinion, properly rejected. It was certainly entitled to no effect unless shown to be a correct copy of the original. Moreover, it was inadmissible to affect the location of the square under Bringieo’1 s survey.

9th. We do not think the Judge erred in refusing to permit the question referred to in this bill of exceptons to be answered by the witness. The object of the question was to elicit the opinion of the witness, a surveyor, in relation to the location of the square of ground in controversy, which was clearly inadmissible. See 7 L. 111.

10th. As the survey made by Albert G. Blanehard, to which the defendants were neither parties nor privies, could not affect the location under Bringier’s survey, it is obvious that the exclusion of the evidence offered to prove its genuineness was immaterial.

11th. The Judge did not err in overruling the objection to the introduction of the document referred to in the bill of exceptions. In regard to the loss or destruction of the original Bringier plan and the document offered as a correct copy thereof, the proof appears to us to be conclusive.

12th, 13th and 14th. The Judge did not err in overrulingthe objection to the introduction of certain conveyances set forth in the bills of exception, on the ground that the documents therein referred to should be introduced at the same time. The plaintiff, as before observed, could have required the Judge to instruct the jury that recitals contained in acts were only binding upon the parties or privies to such acts.

15th. Considering the testimony referred to in the bill of exception immaterial to the decision of the case, the solution of the question which it presents becomes, therefore, unnecessary.

16th. We are of opinion that the Judge did not err in sustaining the objection to the introduction of the record of the suit of John McDonogh v. LeBreton, curator, &c., on the ground of res intm' alAos acta. See the case reported in 9th L. R. 531.

17th. The Judge did not err in sustaining the objection to the introduction of the supplemental answer of Howard Henderson in the suit of William Massey v. Heirs of Herman, on the ground that the defendants were not parties to that suit nor claimed under Howard Henderson.

18th. The plaintiff objected to the introduction of a deed of sale from W. W. Hoffman, as agent of Artemon Hill, on the following grounds: 1st, because the act extended beyond the power granted, and was therefore void; 2d, because the act itself did not profess to have any reference to the square in controversy, but appeared to be the contrary; and 3d, because the power of attorney was not authenticated .according to law, and the whole document was irrelevant to the issue. These objections could only go to the effect and not to the admissibility of the evidence.

19 th. The plaintiff offered to prove by the testimony of L. S. Filié that a plan in the handwriting of Joseph Filié, the witness’s father, was the same which was referred to by Joseph Filié as a copy of the original, in the testimony given by him in the matter of the Succession of T. O. Fates. The defendants objected to the showing of the testimony of Joseph Filié, then deceased, to the witness, on the ground that the latter could not refer to it, but could only refer to memoranda made by himself to refresh his memory. We think the objection was well taken. See the case of Pargoud v. Grice, 6 L. 77.

20th. We think it is clear that the conveyance from Levi Fierce and William Lambeth to Jame Plaeide on the 29th of April, 1833, was admissible to prove their ratification of the Act of the 14th of July, 1831. The plaintiff offered in evidence a deed of conveyance from the estate of J. O. Bates to Fierree and Lamibeth of the same property. Wo think it was properly rejected on the ground that the property therein conveyed formed no part of the matter in dispute, and could not affect the rights of the defendants.

21st. We concur in opinion with the Judge, that the documents purporting to be copies of original plans (not authentic) were not such as were admissible under the rule invoked by the plaintiff in relation to ancient documents. But, conceding for a moment their admissibility, still we do not think they could avail the plaintiff for the purpose of affecting or changing the location which was made under Bringiefs survey.

22d and 23d. We consider the questions presented by these bills of exceptions similar to some of those upon which wo have passed in the other bills of exceptions.

On the merits, we think the evidence shows clearly that neither the plaintiff nor any one of those under whom ho claims ever had the actual possession of the property in controversy. Whilst on the other hand it appears that the location of said property was in accordance to the Act of 14th July, 1831; that some of the defendants acquired possession by actual occupation immediately after the sale from Rocb'iguez and others shortly thereafter; that the vendees of Fodn'iguez and those claiming under them have continued ever since to hold openly and uninterruptedly the possession thus acquired by them; that there was another square contiguous to the one in controversy which was designated at the time as the plaintiff’s property, and the only one which was then claimed by him; that in several of the conveyances forming the plaintiff’s chain of title, the square conveyed to him is described as being bounded by Gravier, Common, St. Adeline and St. Jeanne streets, a square distinct from the one in controversy; that in the pleadings of a suit instituted by plaintiff against the heirs of Serrmam he claimed as his property the square of ground situated between Common, Gravier, St Adeline and St. Jeanne streets, according to the calls of his title; and that on the 18th of May, 1853, about three weeks previous to the institution of this suit, Artemon Sill executed an authentic act in favor of the plaintiff, declaring that he had, by an Act passed on the 9th March, 1836, sold to Timothy Donnellam and William Massey a square of ground designated by the number nine on a plan made by John Gramier, bounded by Common, Gravier, St. Jeanneand St. Adeline streets in the faubourg St. ftary, when in point of fact the said square is bounded according to the original plan of Jeam Gramier by Common, Gravier, St. Magdeline and St. Adeline streets.

Under these and other circumstances described by the record, we think it is clear that the defendants’ title should prevail over that of the plaintiff to the property in controversy. •

It is, therefore, ordered that the judgment of the court below be affirmed, with costs.


source: Caselaw Access Project

author: Mekkick, C. J. Buchanan, J. Lea, J.

license: Public Domain

text:
    Reuben Knight v. Melinda Knight.

      On motion to dismiss the appeal—
    The Supreme Court derives its jurisdiction from the Constitution, and the repeal of a statute which had conferred jurisdiction on it does not affect its powers.
    The affidavit of the^appellant, in a suit for divorce, that his interests involved in the suit exceed three hundred dollars, is sufficient to give the Supreme Court jurisdiction.

      On the merits—
    The plaintiff had filed a supplemental petition, after answer and reconventional demand by the defendant. A default was taken on the supplemental petition, which was aftewards confirmed eco parte upon the deposition of a witness examined under commission. The case did not stand fixed for trial at the time. Reid: That such a proceeding was irregular and that no judgment should have been rendered on the supplemental petition, until the whole case had been regularly tried.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Cotton & Dorsey and A. Lothrrop, for plaintiff.

      Lcvrue & Whitaker, for defendant and appellant.
   Mekkick, C. J.

This is an action for a separation of bed and board and for a divorce.

A motion has been made in this court to dismiss the appeal, on the ground that the amount involved in controversy does not exceed three hundred dollars, and the further ground that the Act of the Legislature of 1855, No. 307, having repealed all former laws on tile subject of divorce, leaves this court without jurisdiction.

As the Constitution confers upon this court its jurisdiction, it is only necessary to notice the first of these grounds. An affidavit has been filed showing that the interests of the appellant involved in this suit exceed three hundred dollars. Under the authority of the following cases we think this sufficient to sustain the appeal: Prieur et al. v. Commercial Bank, 7 L. R. 510; Perkins v. Nettles, administrator, 17 L. R. 253; State v. Hackett, 5 An. 92.

The motion to dismiss is, therefore, overruled.

Buchanan, J.

This suit commenced by a petition for separation of bed and board, and for a divorce, in case the defendant, who was alleged to have abandoned the matrimonial domicil, should not return after three summonses, according to the provisions of the Civil Code.

An answer and petition in reconvention was next filed by defendant, denying the allegations of the plaintiff’s petition, (except the marriage,) averring that plaintiff had cruelly and brutally treated defendant, that he had laid violent hands on her person, slandered her character, and deliberately attempted to poison her; and praying for separation of bed and board and for divorce, and that the care and custody of a child born of the marriage should be given to defendant.

Afterwards the plaintiff, with leave of court, filed an amended and supplemental petition, charging the defendant with adultery, and praying for a divorce.

No answer having been filed to this supplemental petition, a judgment by default was taken therefrom, which, on motion of plaintiff’s counsel, was confirmed expande, upon the deposition of a witness examined under commission, and judgment of divorce pronounced against defendant. It was admitted that the case did not stand fixed for trial at the time the judgment was entered up.

This proceeding was irregular. An issue was joined upon the original demand, and defendant had pleaded in reconvention; which cross action is also considered to be at issue, as no replication is required in our practice. The amended petition of plaintiff, alleging an additional ground of divorce to those already alleged on both sides, was properly allowed by the court, and the plaintiff was bound to take a default upon the amended petition, for want of an answer, in order to complete the comtaUo litis. See Freeland v. Landfear, 2 N. S. But it is very evident the final judgment was rendered upon the amended petition alone, leaving out of view the previous pleadings. The plaintiff had no right to divide the cause in this manner. Lanusse v. Massicot, 3 M. R. The case should have been regularly set for trial upon the issue made by the pleas of defendant filed, and the feigned issue presented by the judgment by default.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and the cause remanded for a new trial according to law, the plaintiff and appellee to pay the costs'of appeal.

Lea, J.

I think that the pleadings in this case, when considered together, presented an issue upon the question of divorce which could not be disposed of by a confirmation of the judgment by default. I, therefore, concur in the conclusion to remand the case.


text:
    Edward P. Chamberlain v. C. M. Chamberlain et al.
    The principles of law involved in this case were settled in the cases of the State of LovÁsiania v. Judge Burmaidez^ 14 La. 478; Same v. Same, 2 Rob. 160; Same v. Same, 2 Rob. 420; Succession of Richard Wirm, 8 Rob. 30S; Butler v. Her Creditor's, 6 N. S. 625; E. GonsouUn et al. v. Salvador Migues et al,y 5'Ann. 565; O. O. 832;
    Appeal from the Second District Court of New Orleans, Lea, J.

      Sunton & Pike, for plaintiff.

      PL. JD. Ogden, and Coxe & Breaux, for defendants and appellants:
   Voorhies, J.

William MeCanoley was appointed tutor to the plaintiff, FcZ wan'd P. Chamberlcdn, by the late Probate Court of the parish of Jefferson. He was subsequently interdicted as an insane person. After his interdiction he was removed from the tutorship, at the instance of the under-tutor, by judgment of the Second District Court of New Orleans, the place of his domicil. The defendant, O. M. Ohamberlcdn, was thereupon appointed tutor by the same court to fill the vacancy. Me Cawley through his curator, William F. Leverich, on rendering an account of his tutorship and delivering over to his successor the estate of his ward, was fully discharged and his official bond cancelled.

The present suit was brought to compel C. M. Chamberlain to render an account of his tutorship, in which the plaintiff also asserted his right of mortgage on certain property held by the other defendants as third possessors.

Two of the third possessors have taken an appeal from the judgment rendered by the court below in favor of the plaintiff.

The action is resisted by them on the ground, that the Second District Court of New Orleans was without jurisdiction, ratione materiae, to remove McCa/toley from the tutorship, the succession of the minor’s father having been opened in the parish of Jefferson, where the appointment was made ; and that the proceedings relating to the appointment of Ghamberlain, were consequently null and void and could produce no legal effect. It is also contended by thorn, that Ohamberlcdn could not be considered as tutor, even conceding the jurisdiction assumed by the court, inasmuch as he had failed to furnish the requisite bond and security.

We think the questions involved in both propositions may be considered as settled in our jurisprudence. See 14 La. 478 ; 2 Rob. 160 and 420; 3 Rob. 303 ; 5 N. S. 625 ; 5 Ann. 565. _ '

In relation to the right of subrogation in favor of the third possessors, resulting from the payment of certain claims secured by privilege or mortgage, having priority over that of the plaintiff, it is clear, as held by the Judge a quo, that such claims must be allowed and paid by preference out of the proceeds of the sale of the property thus mortgaged.

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

G. Boselius, one of the third possessors and appellant in the case, on application for a re-hearing, argued as follows:

That he had not advanced the proposition, “ that Ghamberlain could not be considered as tutor, inasmuch as he had failed to fm'nish the requisite bond a/nd secwity.” What he contended for was that the payment made by Leverich to Ghamberlain, before the latter had furnished his bond and security, was not a valid payment; and that, therefore, when he became of age, his money was still in the hands of Leverich. It would not be denied by any one, that if the plaintiff had sued Leverich, he would have been entitled to recover; indeed, it was difficult to imagine what defence could have been made to such an action. The pretended payment to Chamberlain would have afforded no ground of defence. When he bought the property of Ohambwlain, it is obvious that the plaintiff’s money was still due by Leverich, as the curator of the interdicted McOawley; and the question to be determined by the court is whether the plaintiff could, after he attained the age of majority, by ratifying the illegal payment made by Lemwich to his brother, subject his property, purchased previously in good faith, to the operation of a tacit mortgage in favor of minors ? It is not intimated that Leverich is not perfectly solvent, so that the claim of the plaintiff against him was unquestionably good and available. Under this state of facts, it is humbly submitted that if a loss is to fall on one of two innocent persons, it must be borne by him who was most in fault. It can certainly not be said that he committed any negligence or fault in buying the property ; but Leverich was guilty of a gross error in paying to a person who had no authority to receive payment. It may be said that the plaintiff has no longer any recourse against Leverich, but it is clear, that if he has lost that recourse, it is by his own act, in bringing the present action against him, which is a tacit ratification of the payment to his brother. Who is to bear the consequences of that act ?

No doubt, the tutor cannot take advantage of his neglect to furnish the bond and security required by law; such a pretension would be preposterous in the extreme ; no one can take advantage of his own wrong. This is >all that was decided in the cases of Butler v. Her Creditors, 5 N. S. 625, and in that of E. Gonsoulin et al. v. Salvador Migues et al., 5 Ann. 565.

As to the question whether a payment made to a tutor who has not given security is valid or not, it is free from all difficulty: the law is express in its provisions on this point. O. C. 332. Judge Mathews, as the organ of the court in the case of Verret et al. v. Aubert, 6 La. 354 et seq., says:

“ Tutors are bound by law to obtain the confirmation of their appointments by the Judges of probates ; to take an oath faithfully to discharge their duties, and to give security. The only exception, with regard to any of these requisites, has relation to tutors by nature, and no others.
“ Until a tutor complies with them, however he may render himself responsible for damages on account of an interference, or intermeddling in a succession, he can do nothing binding and conclusive on the rights of minors whom he represents. Now, as it is not shown that Codfroi V&rret was either confirmed in his office of tutor, took the oath prescribed by law, or gave security, the payment was made to him through error on the part of the defendant, and he is still liable to pay to the plaintiffs the amount of their portion of their grandmother’s estate.”

This decision has never been overruled, and no one will undertake to question its correctness.

The position assumed in argument that the intermeddling in a minor’s property; produced the same legal mortgage on the property of the intermeddler as that which attached to the property of the tutor, can be of no avail to the present plaintiff; first, because he does not place his right to subject the property to that mortgage on any such ground; but expressly and exclusively on the foundation that Charles If. Chamierhdn was his tutor; and in the second place, it is certain that if he had alleged, that the payment by Leverieh to C. If. Chamberlain was illegal and constituted an act of intermeddling on the part of the latter, is it not clear that on paying the debt, he, the appellant, would have been subrogated to his claim against Leverieh? But, instead of pursuing this course, he has, by the institution of the present action, released all recourse against Leverieh, and seeks to throw the loss on the appellant. He waits until his brother and pretended tutor has sold all his property, and absconded to California, then he commences these proceedings under the facts and circumstances disclosed by this record.

Re-hearing refused.


author: Spojtord, J.

text:
    Society for the Relief of Destitute Orphan Boys v. The Cities of New Orleans and Baltimore.

      John McDonogh% by his will, instituted as his universal heirs the city of New Orleans and the city of Baltimore; he gave as an annuity to the Society for the Belief of Destitute Orphan Boys, one eighth part of the nett yearly revenues of the rents of the whole of his estate,- until $£00,000 was realized; the said one-eighth part of the revenues to be set apart yearly or half yearly by the Commissioners and Agents of the general estate, (for whose appointment the will provided,) and deposited in some one or more of the banks of New Orleans until the same should amount to $£00,000. The will provided that the said amount should be invested in the purchase of real estate, from which a perpetual revenue from the rents of said estate should be drawn for the support of the Institution; that the Directors of the said society, assisted by the Mayor and Aldermen of the city of New Orleans should make the investments, and that the Mayor and Aldermen should approve of the purchases of real estate and become parties to the deeds by which the property should be acquired. Held: That the pendency of a suit between the cities for a partition of the succession, was no bar to an action for such instalments of the annuity as had fallen due; that the mode of investment was a matter of mere form which could not operate to annul or defeat the bequest ; that it was not in the power of the testator to compel the city, through its Mayor and Aider-men, to become a party to the purchases in real estate in which it was to have no interest, it being the intention of the testator that the Society for the Belief of Destitute Orphan Boys should be the recipient of the bounty; that the liability of the defendants to discharge the legacy was not affected by the control over the estate given in the will to the Commissioners and Agents whose appointment was directed; that it was contrary to public law and policy that the simple tenures by which alone our laws permit property to be held, should be so complicated; and that such illegal modes, conditions and charges imposed by the will are to be disregarded.
    APPEAL from the Sixth District Court of Now Orleans, Cotton, J.

      Duncan & McConnell, for plaintiffs and appellees,

      li. Hunt and J. J. Michel, for city of New Orleans.

      Bustis and Boselius, for city of Baltimore.
   Spojtord, J.

This is a new controversy growing out of the will of the late John McDonogh. Eor a copy of the will and a history of the litigation concerning it hitherto, we refer to the case of The State of Louisiana v. The Executors of John McDonogh, 8 An., 174, and the case of The Executors of John McDonogh et al. v. Murdoch et al., 15 Howard, 367.

In those cases, it was finally adjudged that the cities of New Orleans and Baltimore were the universal testamentary heirs of John McDonogh.

In instituting these cities his heirs, the testator declared that he bequeathed his property to them “ subject to the payment of the several annuities or sums of money hereinafter directed and set forth, which said annuities or sums of money are to be paid by the devisees of this my general estate, out of the rents of said estate.”

The present demand is for the third in order of these annuities which the testator left to the plaintiff in the following language:

“ Thirdly. I give and bequeath to the Society for the Belief of Destitute Orphan Boys, of the city of New Orleans, in the State of Louisiana, (of which institution B&verly Chew was President on the 28th day of April last, 1838,) for the express and sole purpose (and of no other) of being invested in the purchase of real estate, say lots of ground and houses situated in the city of New Orleans and its suburbs, from which a perpetual revenue from the rents of said real estate may be drawn for the support of said institution, an annuity of the one-eighth part (or twelve and a half per cent.) of the nett yearly revenue of rents of the whole of the general estate, as herein before willed and bequeathed to the Mayors, Aldermen and inhabitants of the cities of New Orleans, in the State of Louisiana, and of Baltimore, in the State of Maryland, which annuity of the one-eighth part of the nett revenues of rents, as above stated, shall be set apart yearly or half yearly by the Commissioners and Agents of the general estate, (to be appointed as hereinafter set forth,) and deposited in some one or more of the banks of the city of New Orleans (which pay interest on money deposited with them) until such time as said annuity shall amount to the sum of four hundred thousand dollars, (exclusive of any interest which may have accrued on it,) when it shall cease and be no longer paid.' And, as the said fund of four hundred thousand dollars accumulates in bank, the Directors of the said Society for the Belief of Destitute Orphan Boys, assisted by the Mayor and Aldermen of the city of New Orleans, who (the said Mayor and Aldermen) shall approve of the purchases of real estate and become parties to the deeds by which it is acquired, may, from time to time, (as good purchases offer,) invest it in purchases of real estate, (as aforestated,) lots and houses, and lots of ground lying within the city of New Orleans and its suburbs, yielding rents or likely to yield rents and to increase greatly in value, which real estate, once acquired, shall never thereafter be alienated or sold by said institution, but shall forever be retained and held by it, and remain its property. The title deeds of purchase, by which said institution shall acquire said real estate, shall set forth that it is made from funds of this bequest, and that said real estate cannot be sold or alienated by said Society for the Belief of Destitute Orphan Boys. The funds, (when accumulated,) as wanted for the payment of the real estate when purchased, (but for no other purpose,) shall be drawn from bank by the Commissioners and Agents of the general estate, and paid over to the Directors of said Society for the Belief of Destitute Orphan Boys, and the Mayor and Aldermen of the city of New Orleans. I recommend to the Directors of the Society for the Relief of Destitute Orphan Boys to keep such houses as may be purchased or built with the funds from this bequest regularly insured against all risk by fire, by which means, in case of accident, they would have the means to reconstruct them.”

The prayer of the petition is for an absolute judgment against the cities in Solido for the sum of four hundred thousand dollars, with interest from the testator’s death; or if that cannot be allowed, for a judgment for said sum and interest, to be paid in manner and form as prescribed in the will, and that it be decreed that the sum of seventy thousand dollars is now due as one-eighth part of the revenues hitherto accrued; there is also a prayer that the money arising from the judgment asked for may be ordered to be paid into bank, that the directions of the testator might be carried into effect in exact terms; and the petition closes with a prayer for general relief by such orders and decrees as may comport with law and equity and secure the rights of the plaintiff under the will.

To these somewhat confused demands, the cities filed separate answers. The city of New Orleans denied the plaintiff’s capacity, and after pleading the general issue, averred that, by the terms of the will under which alone the plaintiff has any claim, the annuity demanded was to be set aside by the Commissioners and Agents of the general estate until it should amount to four hundred thousand dollars, and that no portion of it was to be paid over to the Directors of the Society for Orphan Boys until then, but that it was to remain under the exclusive control and management of the Agents and Commissioners, and that the plaintiff could not ask that any of the conditions annexed to the legacy should be disregarded or modified; that the respondent did not have under its control any part of said annuity, and could not, under the will, take it from the possession and control of the said Commissioners and Agents; finally, this city denied its solidary liability.

The city of Baltimore, after a general denial, except as to the alleged provisions of the will, pleaded that the action could not be maintained on the face of the proceedings, and that a suit between the two defendants for a partition of the property of the succession, had been instituted, under a law of the State, in the Fifth District Court of New Orleans and transferred to the Circuit Court of the United States for the' Eastern District of Louisiana, the pendency of which suit was a sufficient reason why the present action could not be maintained.

A trial having been had under these pleadings, the District Judge gave a decree in favor of the plaintiff for the sum of four hundred thousand dollars, with the qualification that, until the further order of the court, the execution of this judgment should be confined to the mode pointed out in the will, to wit: by the application of one-eighth part of the nett yearly revenue or rents of the general estate of John McDonogh to be set apart yearly by the defendants, through their Agents or Commissioners, or such other department of administration as they may, from time to time, confide the administration of said property to; the same to be deposited in some regular chartered bank in the city of New Orleans, which will pay an interest on deposits, if any such there be, and if none, then in some duly incorporated bank, until such time as the whole sum should amount to $400,000 ; it was further adjudged that, as the eighth part of the yearly revenues which had been received by the defendants up to the 30th June, 1856, was found, under the evidence, to amount to the sum of $12,534 09f, the defendants should forthwith deposit said sum in bank as directed, to be withdrawn in the manner prescribed by the testator; it was further ordered, that if the defendants should divert any part of the said estate from the uses to which it was destined by the will by partition between themselves, or otherwise destroy said estate, or so administer the same that it could not be ascertained what the nett yearly revenues were, that, in such case, the plaintiff should immediately have execution for the sum of $400,000, or such part thereof as might be due thereon.

The defendants have appealed. The plaintiffs, joining issue on the appeal, have prayed that the judgment be amended in their favor, first, by making it absolute and executory for $400,000 and interest as prayed for; or, secondly, by ordering the defendants to deposit immediately in bank the sum of $75,000.

The plaintiff’s demand for $400,000, to be levied immediately by execution out of the property of the universal legatees, is not in accordance with the testator’s will.

The defendants’ refusal to do anything towards carrying into effect the charitable bequest in favor of the plaintiff, because some portions of the testator’s scheme for executing the charity are impracticable, is also repugnant to the testator’s intention as well as to protestations made by the cities while their own claims under the will were in jeopardy.

The testator has not bequeathed the sum of four hundred thousand dollars absolutely to the plaintiff. All he ever intended to give the society was an annuity, not of any fixed sum, but which should fluctuate with the profits of the estate left to his universal heirs, under a charge to pay the annuity out of such profits. It may happen that the eighth part of the yearly revenues will never reach the sum of $400,000 ; if they should, the annuity is to cease when that amount shall have been paid over. The estate left to the cities may perish or become fruitless before that amount can be realized. If so, the charge upon the cities in favor of the plaintiff will also perish. There being no fixed and liquidated debt due by the cities to the Society for the Relief of Orphan Boys, except so far as the past revenues are concerned, which alone are susceptible of ascertainment, it would be idle for us to endeavor to pierce the future and to regulate the rights of the parties hereafter. Those rights will depend upon facts which time alone can develop. There may be various causes which will operate eventually to defeat the annuity.

All that portion of the judgment which prescribes for the future claims of the society, must therefore be reversed; and our attention will be restricted to a consideration of this question: what legal «laim has the plaintiff to a present judgment against the cities, predicated upon past facts which are in evidence before us ?

The utmost limit of this claim is the one-eighth of the annual revenues accrued up to the time the evidence was closed in the court below. That sum, ending with the 30th June, 1856, was estimated, upon the report of an auditor, at $12,534 09f, and we are not satisfied that there was manifest error in the calculation. We are the less disposed to question its correctness, as it was the duty of the defendants so to have kept their accounts as to disclose the true state of the revenue. If there is any uncertainty, it is attributable to them, and they should not profit by their own neglect.

The capacity of the plaintiff to take a bequest is undeniable, and we do not understand that point to have been controverted in this court. The Society for the Relief of Destitute Orphan Boys existed as a legal corporation at the time of the opening of the succession. See Acts 1825, p. 02; do. 1837, p. 6.

The pendency of a suit between the two cities for a partition of the succession, is no bar to an action for such instalments of the annuity bequeathed to the plaintiff as have fallen due. As our inquiries are limited to this branch of the plaintiff’s demand, we need not speculate upon the consequences of a partition, should it be decreed, nor determine whether the cities will still be bound to pay pro rata out of the revenues of their respective shares of the property after a partition, without regard to the transmutations of form which the property may undergo.

AH the other defences pleaded may be considered under our general question : is the bequest to the plaintiff such a one as the defendants may be compelled by a decree of the court to execute with regard to such instalments of the annuity as have fallen due ?

We have no hesitation in answering this question affirmatively.

A comparison of all the parts of the will, touching this bequest, will show that the testator intended the Society for the Relief of Destitute Orphan Boys to be the sole recipient of this portion of his bounty. The legacy is made directly to that institution for the purpose of enabling it to invest the money in real estate for the benefit of the institution. The society was forbidden to alienate the lands acquired by the fund proceeding from the bequest, a prohibition entirely unmeaning if the testator did not intend the property thus acquired to belong exclusively to the society. Indeed, he expressly declared that the real estate so acquired should forever be retained and held by the institution and remain its property. The direction, therefore, that the Mayor and Aider-men of the city of New Orleans should assist in making the investments, approve the purchases, and become parties to the title deeds, was a matter of mere form, not intended to clothe the city with a beneficial interest in any portion of this bequest.

The inquiry then arises, whether this provision of the will, respecting the mode of investment, can operate to annul or defeat the bequest ? If it be regarded as a mere recommendation to the city to lend its advice to the society in investing the funds, it is plain that no such result could follow. If, on the other hand, it bo regarded as mandatory, and as imposing a condition, charge or mode upon the testamentary disposition in favor of the society, we are equally clear that it cannot operate to defeat the legacy. It was uot in the power of the testator to compel the city, through its Mayor and Aldermen, to become a party to purchases in real estate in which it was to have no interest. The condition, charge or mode was therefore contrary to law and is to be reputed as not written. O. C., 150C. The refusal of the city hitherto to take any steps toward the fulfilment of the testator’s wishes in this regard, shows that a voluntary compliance therewith is not intended.

In the vain hope of erecting his succession into a juridical person and endowing it with immortality, the testator sought to remove it from the direct control of his instituted heirs, by requiring the city of Now Orleans to elect annually throe Commissioners and the city of Baltimore three Agents, to whom he gave the seizin of his real estate, and who were to have the solo management of the pi'opcrty, collect the rents, pay the annuities, &c. The cities, accordingly, in defending this suit, seem to disclaim tho right to depart in any particular from the injunctions of the testator in this respect, and to intimate that they are not responsible for the acts of these Commissioners and Agents, and have no powers independent of them. This line of defence is inconsistent with the course of reasoning by which alone the cities were able to succeed in maintaining their title as testamentary heirs against tho heirs at law and the alternate legatees, the States of Louisiana and Maryland. It was an idle conceit of the testator that he could thus split up the title to his property, forever separate the seizin and the ownership, and constitute a perpetual Board of Commissioners and Agents, deriving their powers from his sovereign will, to keep watch over the cities whom he made his heirs.

It was contrary to law and to public policy thus to fetter the dominion of the cities over property which h?s been adjudged to be theirs. It w'as beyond the power of the deceased so to complicate the simple tenures by which alone our laws permit property to be held. No man’s will is above tho law.

The cities have followed the recommendation of the testator so far as to appoint Commissioners and Agents, and, in so doing, we do not intend to say they have violated any law. But it was their voluntary act, and it does not release them from tho obligation to pay tho lawful annuities out of tho revenues of property which they received and hold as absolute owners, subject only to the payment of the annuities. Those Commissioners and Agents derive all their powers solely from the cities which appointed them, and not from the testator’s will. All those portions of the will which might be construed as making- it compulsory upon the universal legatees to appoint such agents, and all those provisions which purport to g-ive the agents seizin, or to confer upon them any powers emanating from the testator’s volition, are as if they were never written; because such provisions defy the law, they are annihilated by the law.

In adjudicating upon this case, therefore, wo leave out of view the Agents whom the cities have seen fit to appoint, the principals themselves being- parties before us.

The cities then cannot escape the plaintiff’s demand, by saying it is the duty of the Commissioners and Agents to deposit the moneys in bank; for, if it is, it is no less the duty of the cities to make them do so.

But the money was only to be deposited in bank until such time as the >Society for the Belief of Orphcms should want it for investment, not, as erroneously suggested in one of the answers, until the full sum of $400,000 should be realized from this portion of tho revenues. We think the intention was that the funds should be demandable by the society as often as once a year, if the Directors should see fit to make investments as often as that. Vo infer from the present petition that they now wish to invest what has accrued out of the revenues, towards the payment of their annuity ; and, disregarding all the illegal modes, charges and conditions to which we have adverted, we think the plaintiff is entitled to an absolute judgment against the defendants for the sum of $12,534 09-J, as constituting- the eighth part of tho revenues of tho McDonogh estate up to the 30th June, 1856, and that in all other respects the plaintiff’s demand should be dismissed.

We have not deemed it necessary to enter upon the enquiry, whether this bequest of an annuity may be considered as an usufruct sub modo under the Article 602 of the Civil Code. If it be, it is a very peculiar usufruct, unaccompanied by any right of possession in the usufructuary as to tho real estate burdened with it, and therefore not subjected to the rules of usufruct in general. It would be premature to decide now whether the annuity will cease at the expiration of thirty years by reason of the rule laid down in Article 607 of the Civil Code.

It is, therefore, ordered that the judgment of the District Court be avoided and reversed; and, proceeding to render such judgment as, in our opinion, should have been pronounced below, it is ordered, adjudged and decreed, that the plaintiff, the Society for the Belief of Destitute Orphan. Boys, do have and recover of the defendants, the cities of New Orleans and Baltimore, the sum of twelve thousand five hundred and thirty-four dollars and nine and five-eighths cents, the same being the amount of the annuity bequeathed to the plaintiff by the will of the late John, McDonogh, estimated to have fallen due up to the 30th June, 1866 ; and it is further ordered and adjudged, that all other portions of the plaintiff’s demand be dismissed as in case of non-suit, and that the costs of the District Court be borne by the defendants and appellants, and the costs of this appeal by the plaintiff and appellee.


author: Spofford, J.

text:
    John P. Mason, Ex’r, v. E. B. Fuller and G. M Williams, Sheriff.
    A judicial bondi must be construed by reference te the order of court,, in pursuance of which it was:
    ■When, by a clerical inadvertence, at the time of signing the bond, it was not filled up with the amount fixed as- the penalty, but a blank space left for its insertion, the law-implies that the bondi was given for the sum fixed by the order, and; the principal and sureties will be bound thereby for that amount.
    Clerks of court have not the power to grant orders of seizure and sale.
    The power conferred on Clerks of court (put of the parish of Orleans) to grant orders for the sale of succession property is confined to such orders as are required and asked for by Curators, Administrators and Executors in the.regular course of their administration. Such orders cannot be made by the Clerk, at the instance of creditors, to inforce the payment of a debt.
    Appeal from the District Court of Tensas, Snyder, J.

      Thomas P. Fwi'rar, for plaintiff and appellant.

      Stacy S Sp>a/i'row,fov defendants,
   Spofford, J.

The plaintiff has appealed, from a.juc%ment dissolving an injunction he had sued out against an order of sale.

The injunction was dissolved, below upon the ground that no legal bond was given.

The District Judge granted the order of injunction “upon petitioner giving, bond and. security, conditioned according to law,, in the. sum of fifteen hundred dollars.”

Thereupon, and on the same day, the petitioner, with two sureties,, signed a. bond reciting the cause for which it was given, and- conditioned, to pay all such, damages as might be sustained by the defendant, Ezra B.. Fuller, in case it be decided that said- order of injunction was improperly obtained.

By a clerical inadvertence the sum of fifteen hundred dollars was not stated in the instrument as the penalty of the bond, a blank space being left where, the penalty was referred to.

The District Judge thought this omission fatal to the validity of the bond.

We are of the opposite opinion. The principal and sureties could not have escaped from liability upon this bond on the ground of such omission. It being a judicial bond, it must be constructed by reference to the order in pursuance of which it was given. The order fixed the penalty at the sum of fifteen hundred dollars. The law, therefore, implies that the bond given under the order was given for that sum; no specific sum being named therein, but a hiatus left for its insertion.

It has been said by our predecessors that, in a judicial bond, “any clause which is superadded must be rejected, and any that is omitted supplied.” Slocomb v. Robert, 16 L. R. 174; Welsh v. Thorn, Ib. 196. And it has been several times held that a clerical omission of this character may be supplied afterwards, so as to bind the parties who sign a judicial bond with a blank space left for the penalty. See Breedlove v. Johnston, 2 N. S. 517; State of Louisiana v. Judge of First District, 19 L. R. 179; Eyssallenne v. Citizens' Bank, 3 An. 663.

We think the blank in this bond could have been filled up at any time with the sum for which it was given, and that the motion to dissolve on this ground should be overruled. '

But the appellee contends that the injunction should be dissolved upon its merits; that is, that the allegations and proofs did not authorize a stay of the proceedings enjoined. And it seems, from another injunction sued out by the same plaintiff, now before us, that the District Judge was of this opinion.

In this view of the case we are also unable to concur.

The order granted and enjoined was in effect an order of seizure and sale, an executory process of the most summary and stringent kind. An order and process which it was incompetent for the Clerk of the District Court for the parish of Tensas to grant, in this form, and under the petition filed by the ereditor Fuller.

In pursuance of the Article 76 of our present Constitution, the Act of April 30th, 1853, (Sess. Acts, 294,) empowered Clerks of courts (out of the parish of Orleans) amongst other things, “to grant orders for the sale of succession property.” We interpret this to mean such orders as are required or asked for by Curators, Administrators and Executors in the regular course of their admintration; such orders as they ask for the sale of so much of the property as may be necessary to pay the debts in general which are exigible, orders which are therefore properly granted ex pa/rte.

Here the applicant for the order is not the executor, but a creditor who iss really acting adversely to the executor, that is, he seeks to compel a sale of property under the administration of the executor which the executor is unwilling to have soldin the mode ordered; a proceeding which should be had contradictorily with the executor,, and would, therefore, require, in passing upon it, a judicial discretion which has not been vested in the Clerk of the District Court; and finally the order is not to sell property of the succession to pay debts in general,, but to sell a specific piece of property on which a vendor’s privilege is claimed, to pay by preference a specific debt held by the creditor who seeks to procure the order, in a petition drawn up nearly in the form of a petition for a seizure and sale.

■ The creditor should have resorted to the District Court,, either to procure an order of seizure and sale or a rule on the executor to show cause why the property should not be sold according to the Articles 990, 991 and 992 of the Code of Practice.

It is, therefore, ordered that the judgment of the District Court be avoided and reversed, and that the injunction sued out in this case be reinstated and made perpetual, with costs in both courts.


author: Lea, J.

text:
    Charles Gottschalk v. His Creditors.
    A syndic ivlio has a surplus in his hands, after paying all the debts placed upon his tableau of distribution, is not bound to pay over such balance to the ceding debtor, if subsequent to the filing of the tableau new debts were discovered to exist, The syndic is bound to administer any surplus in his hands for the benefit of such newly discovered creditors, and until all the creditors are paid the assets in the hands of the syndic must be applied to the payment of the debts of the insolvent.
    Appeal from the Fourth District Court of New Orleans, Reynolds, J.

      St. Paul & Bouny, for plaintiff and appellant.

      A. & A. Pilot, for defendants.
   Lea, J.

Oharles Gottschallc, being embarrassed in his affairs, made an application to his creditors for a respite, which being refused, his application, in accordance with the provisions of the law, was converted into a surrender of his property. B. Rodriguez, who was appointed syndic, sold the surrendered assets and filed a tableau of distribution, showing a surplus of $154:1 25, after paying all the debts on the tableau; several oppositions were made, and after trial, the tableau was reformed by the judgment of the court. From this judgment no appeal was taken.

To enforce the payment of the balance apparently due to the insolvent, as ascertained and recognized by the judgment of homologation, he obtained a writ offi. fa. against the syndic personally. The syndic obtained an injunction restraining the execution of this judgment, on the ground that, subsequent to the filing of the tableau, new debts had been discovered, of which the syndic had no previous knowledge, and which, as syndic he was bound to protect, and which, when paid, would absorb the balance remaining in his hands, with the exception of about $20.

From a judgment dismissing a rule taken to set aside the injunction, Qottsehalle has appealed. The syndic claimed the right, under the circumstances, to file another tableau before being compelled to pay over any balance to the ceding debtor.

We find no error to the prejudice of the appellant in the judgment appealed from, and the appellee has not asked for any amendment of the judgment in his favor. The District Judge abstained from rendering any judgment on the merits of the injunction suit, though the issues appear to have been presented on the trial of the rule. The only question, therefore, to be solved is whether a syndic who has a surplus in his hands after paying all the debts placed upon his tableau of distribution, duly homologated, can retain that surplus for the purpose of distributing the same among the newly discovered creditors of the insolvent.

The trust assumed by a syndic is that he will administer the assets surrendered by the insolvent for the benefit of his creditors. A tableau of distribution, duly homologated, constitutes, with some qualifications, a judgment conclusive upon the creditors, so far as it affects the fund distributed; "but the rights of creditors upon any part of the assets not distributed are not affected by such judgment, and the syndic is bound to administer any surplus in his hands for their benefit; and.until all the creditors who have any claims against the insolvent are paid, the syndic who has any of the surrendered assets in his hands cannot be said to have fully administered his trust.

In the case at bar, the syndic had assets in his hands which he contends were applicable to the payment of the debts of newly discovered creditors, and we find nothing in the evidence which would have justified the District Judge in setting aside the injunction on the grounds urged in the rule.

Whether the syndic has fully administered or not, and whether there are debts due by the ceding debtor yet unpaid, are questions of fact, which, under the pleadings, we think should be disposed of on the final adjudication, upon the issues in the injunction suit. At any rate, we think, under the pleadings and evidence, as presented in the record, the District Judge could not with propriety have set aside the injunction. The case of Laforest v. His Creditors, quoted in the brief of counsel is not in point. In that case the judgment was based upon the fact that all the assets surrendered had been distributed among the creditors, and that the functions of the syndic wore consequently at an end.

Judgment affirmed.


text:
    P. F. Nouvet, Syndic, v. Heirs of J. B. Armant.
    ■When the defendant in a petitory action has called in his warrantor with whom issue is joined, the plaintiff cannot appeal from a judgment against him. without making the warrantor a party to the appeal. If there be no appeal bond given in favor of the warrantor the appeal will be dismissed.
    If the appeal bond was insufficient at the time the appeal was brought up, the defect cannot be subsequently cured by the substitution of another bond.
    Appeal from the District court of the parish of St. James, Ratliff.| J., presiding.

      Collins, for plaintiff and appellant.

      Bercmlt & Legendre, for defendant.
   Voorhies, J.

The defendants and appellees claim the dismissal of the appeal in this case, on the ground that no appeal bond has been given in favor of the defendants’ warrantors by the plaintiff and appellant, and that said warrantors have not been made parties to the appeal.

This is a petitory action brought by the plaintiff for the recovery of a female slave and her child, in which the appellees’ vendors were called in warranty, and joined issue in the case. A devolutive appeal from the judgment rendered in favor of the defendants against the plaintiff was granted, generally, on the motion of the latter, returnable to this,court, according to law. The appeal bond, executed and filed by the plaintiff on the 24th of November, 1856, is in favor of the Seirs of J. B. Armant alone. Appeals from the parish of St. James are returnable, under the Statute, on the fourth Monday of January. The transcript in this case was filed on the 6th of January, and the motion to dismiss on the 19th of January. The next day after the return day, on the argument of the motion to dismiss, the appellant tendered a new bond, executed in favor of the defendants and warrantors, and also applied for a writ of eertiorm'i, in order to complete the record by inserting the new bond in it.

We are of opinion that the motion to dismiss the appeal is well taken. It is well settled, that all the parties having an interest in maintaining the judgment, sought to be reversed or amended, should be made parties to the appeal. The warrantors in this case clearly have such an interest. It was, therefore, essential to give a bond in their favor. See the case of Hewson v. Creswell, 10 An. 232, and the authorities there quoted.

But it is insisted by the appellant that he is entitled to relief at our hands, inasmuch, as he has made an application within three days after the return day to bo permitted to supply the requisite bond. The case of Bouligny v. M. White & Co., 5 An. 31, on which he relies, does not, in our opinion, authorize us to grant him the relief which he asks. As the record was complete when filed in this court, it is clear, therefore, that there is no ground to authorize the issuing of the writ of certiorari. The only inquiry which can be made in this case is, whether the bond was, at the time the appeal was taken, such a bond as the law required. If the bond was insufficient at the time the appeal was brought up, the defeat cannot be cured by the substitution of another bond. 10 An. 155; 6 L. 586.

If is, therefore, ordered that the appeal be dismissed at the appellants’ costs.


author: Vooriiies, J. Merrick, O. J.,

text:
    Succession of T. F. Minvielle.
    'VHiere % tableau of distribution, filed by the executor, has been advertised and published in the manner required by law, after the expiration of the delay given by such notice, if no opposition be made the law makes it the duty of the Judge to grant an order authorizing the executor to pay the creditors according to his tableau.
    If, at the expiration of the legal delay, the tableau is homologated, except so far as opposed, those creditors whose claims are not contested have a right to immediate payment, without waiting for the delay for a suspensive appeal from the judgment of homologation.
    The executor is bound for five per cent, interest on the dividends allowed by the tableau to the creditors whose claims are not opposed, from the date of the service of a rule on him to coerce payment.
    Appeal from the Second District Court of New Orleans, Morgan, J.

      H. Griffon, for appellants on rule.

      G. Dvfowr, for defendant and appellee.
   Vooriiies, J.

This is an appeal from a judgment dismissing a rulo taken on the dative testamentary executor by several of the creditors of the succession.

The appellants were classed as ordinary creditors on the provisional tableau of distribution, filed in this case on the 13th of February, 1856, for their respective claims amounting in the aggregate to the sum of $12,282 53.

Oppositions were made to several of the claims on the tableau, but to none of those of the appellants. The tableau, so far as not opposed, was duly homologated on the 26th of February, 1856, giving to the ordinary creditors a dividend of sixty-one per cent. But, on retaining a sum sufficient to pay certain claims in contestation, it would seem that the dividends had to he reduced, making it about fifty-seven per cent

There was no appeal taken from the judgment thus homologating the provisional tableau.

On the refusal of the executor to pay them their respective shares in the surplus to bo thus distributed among the ' ordinary creditors, the appellants took a rule upon him on the 29th of April, 1856, to show cause why he should not be compelled to do so.

The executor filed an answer to the rule on the 12th of May, 1856, alleging, as grounds for his refusal, that the delay for a suspensive appeal from the judgment of homologation had not then expired, so as to authorize such distribution or payment.

We consider the grounds taken by the executor to be untenable. On filing a statement or tableau of distribution by an executor, public notice thereof is required to be advertised and published in the manner prescribed under the provisions of Article 1172 of the Civil Code. After the expiration of the delay given by such notice, if no opposition be made, the law makes it the duty of the Judge to grant an order authorizing the executor to pay the creditors according to his statement or tableau. After such authorization no discretion is left to the executor, he must pay immediately the creditors whose debts or privileges are not contested. He can only retain in his hands a sufficient sum to pay such claims as are in contestation -, O. O. 1178, 1174, 1175. In this case, we think, the executor was bound to pay the appellants, on the homologation of his tableau, their proportion of the surplus in his hands after making-such reservation. It is true, on the trial of the rule, the executor made a proffer to distribute the funds according to the judgment, provided the creditors would give him a full receipt. But such a conditional proffer did not, in our opinion, afford a legal or equitable-excuse for him to withhold the payment of the appellants’ claims. We are of opinion he is bound for the payment of interest on the dividends coming to the .appellants at the rate of five per -cent, from the service of the rule upon him. C. P., Art. 1007; 10 R. R. 479.

It is, therefore, ordered that the judgment of the court below be reversed, that the rule so taken be reinstated and made absolute, the appellee to pay the plaintiffs interest on the dividends to which they are respectively entitled from the 29th of April, 1856, until paid, and the costs of’both courts.

Merrick, O. J.,

dissenting. I think the executor is not bound to pay the sums proposed to be distributed by his account until the delay for a suspensive appeal has expired. Otherwise, he might be ruined by a suspensive appeal and a reversal of the judgment on an assignment of errors. The delay having expired in this case, and the judgment having become executory, I concur in the decree, although not in the reasoning of the majority of the court in this particular.

Re-hearing refused.


author: Lea, J. Merrick, C. J.

text:
    Waldo & Hughes v. E. Angomar et als.
    Several distinct causes of action cannot be cumulated against several defendants in one suit, unless the defendants have a common interest to be adjudicated upon in one judgment.
    Proceedings, under the Act of 18á0, against a defendant for fraud, may be cumulated with a revocatory action for the rescission of the alleged fraudulent sale; and in such a proceeding it is not only the right but the duty of the plaintiff to make parties to the suit all who have an interest to be affected by the judgment.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      George L. Bright, for plaintiffs and appellants.

      Gla/rlce & Bayne, Singleton & Glack and Price & Bay, for defendants.
   Lea, J.

The plaintiffs allege that, being judgment creditors of Eugene Angoma/r, they caused to be seized on execution the steamer Red River, the property of said Angoma/r.

They further allege that certain judgment creditors of James TP! Moore have seized the said steamer, by virtue of writs of fieri facias issued in their respective suits; that said steamer is not the property of Moore, but that of their .judgment debtor, Angoma/i'; that the sale made to Moore, if any such sale was made, is simulated and made to defeat the rights of the plaintiff; they pray that the steamer Red River be decreed, contradictorily with the judgment creditors of Moore, to be the property of Angoma/r, and that they be paid the amount of their judgment out of the proceeds of the sale of the boat. They further ask that Angoman' be decreed guilty of fraud, and punished in accordance with the provisions of the Act of 1840.

To this form of proceeding the defendants have excepted, Gooper & JJeibert, on the ground “that the allegations are too vague and general, that the judgments of the court cannot be annulled or avoided in this form, and that this is not in truth and in fact a revocatory action,” wherefore they ask that the plaintiff’s petition be dismissed.

The other judgment creditors of Moore.)o\n in the exception. Angoma/r also excepts, on the ground “that he cannot be joined with any of the defendants in this-proceeding except Moore, and that the joining of the other parties with this defendant is contrary to the rules of pleading and inadmissible.”

The defendant Angoma/r, as well as the other parties defendant, have a right to object to a cumulation of several distinct causes of action against several defendants, unless they have a common interest to be adjudicated upon in one judgment.

Upon principle, there can bo no objection to the comulation of a proceeding, under the x\ct of 1840, against a defendant for fraud, with a revocatory action for the rescission of the alleged fraudulent sale; and in such proceedings it is not only the right but the duty of the plaintiff to make parties to the suit all who have an interest to be affected by the judgment. To test the validity of the exceptions filed in this case, therefore, it is proper to consider how far the defendants, who are creditors of Moore, can be legally affected by the judgment prayed for in this case.

Though it is not distinctly averred in the petition, it has been assumed in argument, and indeed it follows necessarily from the nature of the demand, that the judgment creditors of Moore have, in virtue of their execution, seized and sold the steamer Red River as the property of their debtor. A prayer claiming the proceeds of the sale, not only presupposes a sale, but implies a ratification of it. The creditors of Moore have possession, therefore, of nothing but the proceeds of a sale made under an execution against the property of their judgment debtor.

It is to be remarked that the proceedings in the suit of the plaintiffs against Angomct/r are entirely independent of those instituted against Moore by his creditors. Upon what principle, then, can the plaintiffs claim the proceeds realized under the execution against Moore. Not on the ground that they have any privilege upon the proceeds, for they have no claim whatever against Moore, nor indeed have they alleged any ground upon which a privilege could be recognized. Neither can they claim a participation in the proceeds, on the ground that they had a right to ratify the sale and claim the price; for, in the érst place, the steamer was not sold as the property of their judgment debtor, and secondly, no one but the real owner could ratify a sale of his property made without lawful authority.

Again, if the steamer Red River is not the property of Moore, but is the property of Angomar, we are at a loss to perceive how any of the rights of the plaintiff have been infringed by the acts of Moore's creditors.

The sale of the property of another is null. The plaintiffs themselves ask that we shall decree the property in this case to be the property of Angomcvr. This is substantially asking for a judgment decreeing the nullity of the sale, though, at the same time, they virtually sue in affirmance of the sale by asking for a distribution of the proceeds.

If the steamer Red River belongs to Angomar, she is now in every respect as liable to seizure at the suit of Angoma/r’s creditors as she was before proceedings were instituted by the creditors of Moore. It is true that, in case of an eviction, the purchaser under the judicial sale at the suit of Moore's creditors would have recourse for reimbursement against both the seized debtor and the seizing creditors. But the plaintiffs stand in no such relation to the defendants; there is no privity of contract between the plaintiffs and the creditors of Moore in reference to Moore’s title to the steamer, nor can the plaintiff rely upon any implied warranty of a title which they are themselves attacking. We cannot perceive, therefore, upon what principle the judgment creditors of Moore can be made parties to this litigation, since they have no interest which can be legally affected by the proceedings.

The District Judge, therefore, was right in refusing to allow the proceedings against Angomcvr and Moore to be cumulated with those against Moore's judgment creditors. The defendant Angoma/r has joined in the appeal taken in this case, and asks that the judgment bo amended in his favor by dismissing the plaintiffs’ suit altogether, but we think the decree of the District Court is supported by the provisions of the statute of 1840, and is sanctioned by authority and practice.

It is ordered that the judgment be affirmed.

Merrick, C. J.

I do not think it necessarily appears from the petition that the steamboat was sold prior to the institution of the suit. Even if it did so appear, I am not prepared to say that the plaintiffs might not in a proper case claim the proceeds of the boat, where they might have claimed the boat itself, as the property of their debtor.

Nevertheless I concur hi the decree in this case, on the ground that the petition is too vague to maintain the action. The plaintiffs allege no prior seizure nor superior privilege upon the boat, neither do they allege that Angomar is insolvent and has no other property to satisfy their judgment. If Angomar has other .property to meet their judgment plaintiffs are not injured.


author: Vooriiies, J.

text:
    Antoine Audrich v. Clementine Lamothe et al.
    The wife who had obtained a separation of her property from her husband in his lifetime, in order to exercise the right of accepting the community, is bound, on the death of her husband, to cause an inventory to be made. .
    The law presumes the acceptance of the community by the wife, when it is dissolved by the death of the husband, but where it had been previously dissolved by a judgment of separation of property, the renunciation by the wife is presumed if, at the death of the husband, she does not cause an inventory to be made.
    Notwithstanding such implied renunciation, the concealment by her, or making away with any of the effects of the community, would render her liable as a partner.
    Appeal from the District Court of Lafourche*Randall, J.

      Beatty & Bush, for plaintiff and appellant.

      J. J. Roman and G. Belcher, for defendants.
   Vooriiies, J.

The plaintiff, a creditor of the succession of the late Jacques Folse, seeks to make the defendants, the widow and heirs of the deceased, liable for the payment of his claim, on the allegation that they have taken and retained possession of the property and effects of the estate of said deceased.

It is shown by the evidence that, on the 1st of June, 1849, the widow obtained a judgment against her husband, Jacques Folse, for a separation of property and the recovery of a certain tract of land and slaves, which she claimed as her separate property, and also for the recovery of the sum of $394 09, the value of her movables. Her judgment was duly published in a newspaper, but its execution was not followed by a writ of possession or fieri facias in consequence of the death of her husband, which took place shortly afterwards. Her title to the land and slaves, recognized by the judgment as her separate property, is however not questioned in this case. The tract of land upon which she has been living upwards of twenty-five years is her patrimonial estate. Since the date of her judgment she has been making crops thereon with her own slaves, buying stock, mules, &c. For the last two years previous to his death, her husband lived apart from her on his own land: Her children continued to live with her. After his death it does ndt appear that his widow or children ever-took any steps to have an inventory made of his property and effects, or an actministrator of his estate to be appointed.

There is no evidence to show that the heirs have accepted the succession, either expressly or tacitly; hence they are clearly not liable for the payment of the debts.

But it is argued, as regards the widow, that the mere fact of not having had an inventory made within the legal delays has rendered her responsible for the debts of the community. It is clear that her judgment, not impugned by the pleadings, must have its effect. O. O. 2403. The question then arises whether, under these circumstances, it was her duty to have had an inventory made, in order to preserve the faculty of renouncing the community of acquets and gains.

The Civil Oode evidently makes, we think, a distinction between the surviving spouse who has obtained a judgment of separation of property and the one who has not. It is the duty of the former to cause an inventory to be made, in order to exercise the right of accepting the community, if such be her interest; whilst the latter must comply with this formality, in order to secure to her the privilege of renouncing it. In other words, the law presumes the acceptance of the widow when the community has been dissolved by the death of the husband; and the presumption of renunciation takes place when a judgment of separation has put an end to to the community. O. O. 2382, 2404.

“Jusqu’á declaration contraire faite par elle dans les formes et sous les conditions voulues, elle est ici présumée acceptante, et cette qualité lui est définitivement imprimée á défaut de l’accomplissement de ces conditions dans le délai fixé; tandis que, dans 1’autre cas, (where a judgment of separation has been obtained,) c’est la renonciation qui se présume jusqu’á declaration contraire, et qui demeure definitive d d'efcmt de declaration.” 5 Marcadé, p. 597, § 1.

Article 2404 of our Oode is borrowed from the Napoleon Oode, and differs from it in this respect, that the former uses the words: “The wife who has obtained the separation of property may nevertheless,” &c., whilst the latter speaks of “la femme divorcée ou séparée do corps.” Yet Marcadé holds that this Article applies also to the wife separated in property, and that the presumption is established in her case. He says: “Nous avons dit que notre article, bien qu’il ne parle que de la séparation de corps, s’applique égal'ement au cas de séparation de biens, dontlaloi parait n’avoir pas songé á parler ici, sans doute parce qu’elle venait de s’en occuper longuement dans la section précédente, et que l’applieabilité do l’article á ce cas était d’ailleurs chose évidente et découlante par a fortiori du cas de séparation du corps. 5 Ib. p. 606. § 3.

Although there is some diversity of opinion in France, as to the application of the presumption of renunciation where the widow is separated from her husband only in property, yet there exists none in cases of separation from bed and board and divorce. The whole difficulty may bo considered as done away with by the change introduced in our Oode, the words “la femme qui est séparée de biens,” being substituted for ula dAvorcie ou separée de corps."

By presumption of law Mrs. Folse had renounced the community of acquets and gains, and having failed to have an inventory made,' she has forfeited the right of accepting. Notwithstanding such implied renunciation, the concealment or making away with any of the effects of the community would, however, make her liable as a partner. O. O. 2387.

But there is no allegation in the plaintiff’s petition of any such concealment or making away with any of the effects. Hence the objection to the evidence in relation to the sugar-mill was well taken by the defendants on the trial below, and we have disregarded it.

It is, therefore, ordered that the judgment of the court below be affirmed, with costs.


author: VoouniES, J.

text:
    William Massey et al. v J. J. Steeg et al.
    The adjudication to the surviving father or mother of property held in common with the minor child, under Articles 838 of the Oivil Code, is not restricted to immovables and slaves.
    Where such adjudication takes place, the special mortgage in favor of the minor, resulting from the adjudication, attaches to such of the property adjudicated as is susceptible of mortgage. The right of mortgage in this case is not restricted to the individual share of the minors, but the whole property remains specially mortgaged for the security of the payment of the price of the adjudication
    Any one whose rights are affected by such mortgage, may require that the exact amount of the testator’s indebtedness to the minors be judicially ascertained.
    Appeal from the Second District Court of New Orleans, Morgan, J.

      Dwrant & Mornw, for plaintiffs and appellants.

      A. Pitot and A. W. Jowrdan, for defendants.
   VoouniES, J.

The plaintiffs allege that two judgments were respectively facias were issued and partially executed by the seizure and advertisement of his real estate for sale by the Sheriff; but that the sale thus announced could not be effected, in consequence of a legal mortgage on the property seized established in favor of Steeg's minor children by a judgment of the court below, rendered on the 8th of May, 1854, whereby said property, including certain movables, was adjudicated to said Steeg as property belonging to the community which had existed between him and his late wife, Clvi'istina Merman, mother of the minors. They further allege, that the rights of said minors in then- mother’s succession could not exceed the undivided half of the real estate, appraised at $2,000, and the movables, appraised at $800, as shown by the inventory; that this right of mortgage by law should be restricted to one undivided half of said real estate, to secure the payment of $1,000, the price of the adjudication thereof to said Steeg, under the Article 338 of the Civil Code, &c. The petition concludes with a prayer, that the judgment rendered on the 8th of May, 1854, adjudicating said property to Steeg, together with the legal mortgage resulting therefrom, be declared null and void; that the one undivided half of said real estate be decreed to be free from any incumbrance whatever in favor of said minors, and the Recorder of Mortgages ordered to erase said mortgage and to issue a certificate accordingly. obtained by them against the defendant, J, J. Steeg, on which writs of fieri

The defence set up in the answer is the plea of res judicata and the general issue.

The court below gavo judgment in favor of the defendants, and the plaintiffs appealed.

The prescription of one year has also been pleaded by the defendants in this court, as a bar to the plaintiff’s right of action.

In the matter of the succession of Christina Merman, deceased, which was lately before us on appeal, a rule was taken on the defendant Steeg to show cause why the property which had been adjudicated to him should not be sold to pay the debts of the community, of which he was the surviving partner. The application was resisted on the ground that WilUarn Massey, the plaintiff in the rule, was not a creditor of the community. The defence thus setup was sustained by the judgment of this court. The plaintiffs, under that decision, must therefore he viewed as creditors of J. J. Steeg, and not of the community. See 11 Ann.

The Oivil Code, Article 888, declares that: “ Whenever the father or mother of a minor has property in common with him, they each can .cause it to be adjudicated to them, either in whole or in part, at the price of an estimation made by experts appointed and sworn by the Judge, &c.; and in this case the property so adjudicated shall remain specially mortgaged for the security of the payment of the price of the adjudication and the interest thereof.” The term “property in common,” used in this article, is general in its application. We do not think the adjudication, under the last clause contained in the article, is restricted, by implication, to immovables and slaves, as contended for by the appellants. The evident object of that clause, it strikes us, was to secure to the minor the right of mortgage only upon such of the property adjudicated as was susceptible of mortgage. Hence, we conclude, that the title to all the property of the community was legally vested in Steeg by the adjudication. The heirs of Glvristina Sermon, deceased, it is perfectly clear, can only claim one-half of the price of the adjudication in right of their mother, after deducting therefrom the debts of the community which may have been extinguished either by novation or payment effected by Steeg, their father and natural tutor, and costs incurred in the proceedings relative to the administration of the estate and adjudication of the property to him. It is also clear, that the right of mortgage given by law to the minor on his tutor’s property, can only be coextensive with his claim. Hence, it appears to us obvious, that any one whose, rights stand affected by such mortgage may require that the exact amount of the tutor’s indebtedness to the minor be judicially ascertained.

It is contended by the appellants that the minors’ right of mortgage in this case should be restricted to the undivided half, as their share, of the property adjudicated to their father. We do not think so. The law expressly declares that the property held in common — not the undivided half thereof — may be adjudicated to the surviving parent, and so adjudicated shall remain specially mortgaged for the security of the payment of the price of the adjudication. But conceding it to be as contended for, still it is difficult to perceive in what manner such restriction could possibly enure to the benefit of the appellants, inasmuch as the law creates in favor of the minor a tacit, independently of the special mortgage on the property of his natural tutor, from the day on which the tutorship devolved upon the latter, as security for his administration and the responsibility resulting from it. O. O. 354; 5 Ann. 565.

It is, therefore, ordered that the judgment of the court below be affirmed, with costs.


author: Merrick, O. J.

text:
    George Connolly v. John H. Martin.
    Xhe certificate oí the Clerk that “ the transcript contains a true copy of all the papers and documents filed and all the proceedings had, all the orders of court of record and all the evidence adduced by the parties on the trial of the cause, cannot be contradicted by an affidavit in the Supreme Court that the original citation to the defendant was among the papers when the judgment 5>y default was rendered and when the appeal was taken.M
    APPEAL from the District Court of Carroll, Snyder, J.

      Short & Pw'ham, for plaintiff.

      L. Selby, for defendant and appellant.
   Merrick, O. J.

This is a suit upon a promissory note. A judgment by •default was made final against the defendant, and he appealed.

A motion is made by the plaintiff and appellee to dismiss the appeal, on the ground that the record does not contain the original citation on which the action was commenced.

The Clerk, in his certificate to the record, certifies that the transcript contained a true copy of all the papers and documents filed, and all the proceedings had, all the orders of court of record and all the evidence adduced by the parties on the trial of the cause.

The defendant assigned as error the want of citation; after the transcript of appeal was made out and filed in this court, the certificate of the Clerk was produced in which he states that he finds he charged for making out the citation and verily believes that the citation issued. The plaintiff’s attorney has filed his affidavit in this court, wherein he swears that the citation was among the papers of the cause when the judgment by default was rendered, when the ¡statement of facts was made out, and when the motion to appeal was taken, and that (since the appeal) he pid the Clerk made diligent search for the citation in vain.

No application for a writ of certiorwi has been made. Being of the opinion that the certificate to the transcript of appeal cannot be corrected in the manner attempted in this case, we are obliged to take the certificate to the transcript as true, for the purposes of this trial. The motion to dismiss is therefore overruled.

In regard to the errors assigned, we have no evidence in the record that the ■citation was served upon the defendant. The citation being the foundation of the action, for the want thereof, in this case, the judgment of the lower court must be reversed.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment •of the lower court he avoided and reversed; and that this cause be remanded to the lower court to be proceeded in according to law, and that the appellee pay the costs of appeal.


text:
    La Selle & Brother v. N. B. Whitfield — Wood & Oliver v. The Same — Rule on J. M. Bell, Sheriff.
    When the Sheriff, before the return day of the writ, had notified the plaintiffs of his release of the seizure of a slave on account of an adverse title set up by another, and had called upon both parties to point out property subject to seizure, which they failed and refused to do. Held: That the subsequent neglect of the Sheriff to return the writ on the return day, did not subject him to the statutable remedy by rule, which is not applicable to such a case. The plaintiff should have resorted to an ordinary action for damages.
    The Legislature in 1855 having re-enacted the 17th Section of the Act of 7th April, 1826, without change, thereby ratified the judicial construction the Act had received.
    APPEAL from the Third District Court of New Orleans, Kennedy J.

      Bradford & Finney and Ohmios A. Taylor, for Sheriff Bell, appellant.

      Pen'in & Smiley, for appellees.
   Spofford, J.

We think the'plaintiffs in the present case mistook their remedy.

The cause of action really is the improper release by the Sheriff of a seizure made by him under the plaintiffs’ writs.

The neglect to return the writs on the return day did not operate any damage to the plaintiffs, for the Sheriff, long before the return day, promptly notified the plaintiffs of his release of the seizure on account of an adverse title sot up to the slave seized, and called upon both parties to point out property subject to seizure, which they failed and refused to do.

In the case of Lay v. Boyce, 3 An., 622, it was said that the statute under which (as reenacted in sec. 2 of the Act of March 15th, 1855, p. 478) this rule was taken “ presupposes that the acts or omissions for which the officer is held liable, have been prejudicial to the plaintiff in execution. It is not' to be presumed that the latter was prejudiced by the failure of the Sheriff to advise him in the fwticula/r form of a return, of a fact which that officer had previously communicated in another form, in which he is equally required by law to convey it.”

In that case the Sheriff was released because he had verbally, but seasonably notified the plaintiff of all that the return could have apprised him of, although the return was not actually made until long after the return day.

Here it is conclusively shown that the plaintiffs were notified in time by the Sheriff of all that he did, and that they have not suffered at all from his alleged laches in not returning the writs on or before the return day, which neglect is the only basis of the rule, but that the error of the Sheriff in releasing the seizure of a slave is the sole ground of the damage suffered.

We are of opinion that the plaintiffs should have resorted to an ordinary action in damages, and not to the statutable remedy by rule, which was not intended for a case of this description.

We concur with the District Judge in the opinion that the General Assembly of 1855, in reenacting the 17th section of the Act of 7th April, 1826, -without change, ratified the judicial construction which it had received.

And wre are furthermore of the opinion that the Act of March 15th, 1855, (p. 253,) in requiring- officers who have made seizures undor writs o£ f. fa. to return such writs on the return day thereof, even though the property is still unsold, does not take away the basis for that current of decisions by whiph the Sheriff, when proceeded against in the summary mode invoked in this ease, has been allowed to excuse himself on showing conclusively that the delay in the return has worked no injury to the complainant.

It is ordered, therefore, that the judgment of the District Court be reversed and the rule taken in this case discharged, reserving to the plaintiffs their right to proceed against the Sheriff and his sureties in an ordinary action; it is further ordered, that the costs in both courts be paid by the plaintiffs and appellees.


author: Sfobfobd, J.

text:
    Adam Beatty, Syndic, v. Rose Clement, Widow Tête.
    Endorsements of partial payments in the handwriting of the holder of a written obligation, are not of themselves sufficient proof of an interruption of prescription. They will, however, when other facts are shown leading inevitably to the conclusion that the holder of the obligation made the endorsements before prescription was acquired in favor of the debtor, and against his own interest.
    The assignee of a bank mortgage which, by the charter, is not affected by a succession sale,.has the same right as the assignor to disregard such sale.
    Appeal from the Fifth District Court for the Parish.of Assumption, Gole, J.

      A. Beatty, for plaintiff.

      O. Belcher and A. Gentile, for defendant.
   Sfobfobd, J.

(Buchanan, J., absent.) The defendant and appellant contends that her plea of prescription should have been sustained.

Taking into view all the circumstances of the case; we think an interruption of prescription has been satisfactorily shown.

Endorsements of partial payments in the handwriting of the holder of a bond are not of themselves sufficient proof of an interruption. But it is proved here, not only that the endorsements were in the handwriting of the; creditor, but other facts are shown leading inevitably to the- conclusion that he made them before prescription was acquired in favor of the debtor, tempore non suspecto, and against his interests ; that these credits amount to nearly one third of the original obligation; that it would have been as easy for the creditor to put the bond in suit and thus interrupt prescription, as to place false credits upon it, at the time when the endorsements must have been made; and, finally., that the defendant’s co-debtor in solido recognized the payments as having been made at the dates they purport to have been by acknowledging a specific balance with interest from the date of the last payment to be due, after the term required for prescription had elapsed See the case of Beatty, Syndic, v. A. Tête, 9 An., 131.

On the only other point presented, we concur with the District Judge in thinking that the assignment of the debt carried with it the rights and privileges of the assignor, the Union Bank, and that the land in the hands of Mrs. Jourdan is therefore liable, notwithstanding the succession sale-

judgment affirmed-