author: Howeix, J.

text:
    No. 2565.
    Citizens’ Bank v. S. A. Knapp et al.
    Prescription does not run against a stock loan note, secured by tlie pledge oí bank stock of tlie bank irom which tbe loan was obtained.
    An engine and machinery in and attached to a sugar house forms a part of the realty, and is e subject to mortgage, but when detached, or removed irom the sugar house, it becomes movable property, and is not subject to mortgage.
    In a suit to recover damages lor the removal of an engine and machinery, by the mortgagor» • from a sugar house, the mortgagee must, in addition to showing bad laith, allege and show the actual injury done.
    APPEAL from District Court, Parish of Pointe Conpée. Miller, J.
    F. W. Farrar, for nlaintiff and appellant. A. Frovostu, for defendants and appellees.
   Howeix, J.

Mrs. Knapp procured a stock loan from the plaintiff, and, to secure the payment of the note given therefor, mortgaged a sugar plantation in Pointo Coupee, and pledged her stock- in said institution. In January, 1856, she sold said plantation and bank stock to Ponce Colomb, who specially assumed the payment of said stock loan note, and all the responsibilities of the ownership of said shares of tlie capital stock so pledged. Colomb paid the annual installments on the note up to April, 1861. In April; 1866, this suit was instituted on the note and assumpsit against both defendants, who severed in their defense — Mrs. Knapp pleading prescription and novation, and Colomb pleading the prescription of five and ten years. Pending the suit, tlie defendant sold the engine and machinery on the plantation to Patín & Cazayoux, who removed the same; whereupon plaintiff filed a supplemental petition, charging said vendor and vendees with fraud, and prayed that the latter ho made defendants; that the said engine, machinery, etc., bo decreed subject to and sold under said mortgage? and that the said vendees be condemned in solido to pay two thousand dollars damages.

Judgment was rendered against Mrs. Knapp, and also subsequently in favor of the other three narties. From this latter judgment nlaintiff appealed.

The defendant, Colomb, is evidently liable on his assumpsit. He specially recognized the pledge of the hank stock transferred to him with subrogation, and assumed to pay the note for which the pledge was given, “putting himself expressly in the place and stead of said Mrs. Knapp.” Tlie continuing interruption of prescription thus caused by the pledge binds him, and he is personally liable for the debt.

No exception being- taken by Patín & Cazayoux to the proceeding herein against them, the questions are presented:

First — Whether or not the machinery purchased and removed by them during the pendenev of this suit must he considered subject to the mortgage; and,

Second — Whether or not they are liable in damages'?

1. The first question, it seems, must he answered in the negative. When detached or separated from the sugar house, and removed from tho plantation, these things became again movables, and did not pass to the third or purchasers subject to the mortgage, not being, as movables, susceptible of mortgage. C. C. 3256. Their susceptibility of mortgage existed only while they remained as placed by the owner, to bo used in carrying on the plantation works. C. C. 459.

2. The liability of the purchasers for damages depends on their good or bad faith, and tho fact whether or not damages are proven. Their knowledge that the articles purchased by them were, at the date of their purchase, immovables by destination,- and subject to the mortgage on tho plantation, may establish bad faith; but unless it is alleged and proven that damage was actually sustained by the plaintiff, the mortgagees, in consequence of their act, none can be recovered of them. It would bo a case of “ damnum absque injuria.”

There is no proof of any damage in this case, but the judgment should be one of nonsuit as to these purchasers.

It is therefore ordered that the judgment appealed from be reversed, and that plaintiff recover of the defendant, Ponce Colomb, the sum of six thousand eight hundred and twelve dollars, with ten per cent, interest thereon from third of April, 1861, with costs.

It is further ordered that there be judgment on the supplemental petition in favor of Hubert Patin and Clair Cazayoux, as of nonsuit, with costs. The costs of appeal to bo paid by appellees, P. Colomb, H. Patin and C. Cazayoux.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 2578.
    Citizens’ Bank of Louisiana (William T. Brooks, Subrogated), v. Marius L. Bringier.
    A judgment against a garnishee, predicated on answers to interrogatories,«will not be disturbed on a* peal, where no evidence was offered by the defendant on trial of the garnishment in the court below,
    A PPEAL from the Fourth Judicial District, Parish of Ascension. íjl Beauvais, J.

      Glarh, Bayne & Bensluiw, for plaintiffs and appellees. William 0. Lames, for defendant and appellant. Trist & Oliver, for garnishees.
   Taliaferro, J.

The plaintiffs obtained judgment on the twenty-second of November, 1866, against the defendant for five hundred and eighty dollars, with interest. Prom this judgment .the defendant has never appealed. Tho plaintiffs, on the twenty-third of November, 1868, issued an execution, upon which the sheriff returned that he had seized, as property of the defendant, certain promissory notes in the hands of Benjamin Smead and wife. Subsequently they made the last-named parties garnishees, and propounded interrogatories to them touching their indebtedness to the defendant. The answers elicited the acknowledgment that they owed the defendant a sum exceeding the amount of the. judgment the plaintiffs obtained against the defendant. There was judgment accordingly rendered against the garnishees, in which they acquiesced. The defendant, however, has taken an appeal; but, as he introduced no evidence in the case on the trial in the lower court against the garnishees,- and we find nothing authorizing us to alter the judgment, it must remain undisturbed.

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


author: Wyly, J.

text:
    No. 2512.
    State of Louisiana, ex rel. W. S. Mount, Treasurer, and The City of New Orleans, v. The Judge of the Sixth District Court for the parish of Orleans.
    Tlie city of New Orleans lias a direct pecuniary interest in the funds in the custody and under the control of her Treasurer; and a mandamus may issue from the Supremo Court to compel the district judge to grant a suspensive appeal from a judgment against the Treasurer in all cases where the amount involved is sufficient to give the appellate court jurisdiction.
    APPLICATION for Writ of Mandamus.

      J. It. Beelaoith.. City Attorney, for relator. IF. H. Oooley, judge, respondent.
   Wyly, J.

The relators apply to this court'Tor a'writ or mandamus directing the judge of the Sixth District Court for the parish of Orleans to grant them suspensive appeals from two certain judgments rendered hy him on seventeenth December, 1869, to wit: The State, on the relation of Charles Fitz, v. W. S. Mount, Treasurer, and J. O. Landry, Comptroller, and The State, on the relation of Charles Fitz, agent for Widow A. Vogel, v. W. S. Mount, Treasurer, and J. O. Landry, Comptroller, No. 794 and 795 on the docket of the Sixth District Court; and also for a prohibition restraining the execution of said judgments pending this application.

The amount involved in each of the judgments sought to he appealed from far exceeds five hundred dollars, hut the district judge refused to grant the appeals because it did not appear to Mm that W. S. Mount, Treasurer, and tbe city of New Orleans had an interest in said judgments exceeding five hundred dollars.

It is difficult to conceive how the learned judge arrived at the conclusion that the city of New Orleans had no pecuniary interest in her own funds, amounting to twenty odd thousand dollars, which Charles Pitz, for himself, and as agent, was endeavoring, by legal process, to obtain from ber treasury. It is also difficult to conceive a want of interest in W. S. Mount, Treasurer of tbe city of New Orleans, who is proceeded against in his official capacity, to be compelled to pay large sums out of tbe funds confided to him. As an individual, W. S. Mount, of course, had no interest, but he was not proceeded against individually. He was brought into court in his official capacity. In that capacity his interest in the funds was commensurate with the amount claimed. If he believed the judgments erroneous it was not only his right, but his duty, as a faithful officer, to resort to the remedy of appeal. An erroneous judgment from which ho sought no appeal would not protect the City Treasurer from the consequences of a misapplication of the funds confided to him.

In support of his position the district judge cites the case of the State, on relation of S. Bolden, v. Markey, Kaiser et al. recently decided by this court. That case is not analogous to the one before us. There was merely a contest between individuals for office, here is a proceeding by individuals to collect large sums out of the city treasury. Here the city, as the proprietor, and W. S. Mount, as Treasurer, have a direct interest in the funds claimed. The other authorities relied on are also inapplicable.

If the principle contended for by the ‘district judge be correct, no administrator or officer can appeal from a judgment affecting the funds confided to him, however largo the amount involved, and however largo his fiduciary interest therein, because individually, he may have no interest.

The Governor of the State could not appeal, however large his interest as a public officer, because lie might not have a private or personal interest in the litigation. The effect would bo that no person occupying a representative capacity could appeal, however large the amount involved, and however erroneous and oppressive the judgment sought to be remedied by appeal.

The objection to the affidavit supporting this application urged by Charles Fitz docs not merit a serious consideration. 19 L. 174.

For the foregoing reasons and those assigned in the case of the State, ox rel. The city of New Orleans, v. The Judge of the Sixth District Court, No. 2550, lately decided, it is ordered that the mandamus granted herein ho made peremptory.


author: Howell, J.

text:
    No. 2550.
    State, ex rel. The City of New Orleans, v. The Judge of the Sixth District Court for the parish of Orleans.
    A mandamus will issue irom the Supreme Court to compel the district judge to grant a suspensive appeal irom a judgment against the treasurer of the city of New Orleans where the record shows that the city is the real party in interest. A writ of prohibition will also issue staying all proceedings in the lower court ponding the decision on the application of the city for a suspensive appeal.

      A PPLICATION for Writ of Mandamus.

      J. JR. Beelcwith, City Ü. Attorney, for relator. W. II. Cooley, judge, respondent. Charles .Fits, plaintiff, respondent.
   Howell, J.

The city of New Orleans asks for a writ of mandamus directing the judge of the Sixth District Court for the parish of Orleans to grant a suspensive appeal from the judgment in the case of the State, ex rel. Charles Fitz, v. W. S. Mount, Treasurer, which was signed on the twenty-seventh December, 1869, and also for a prohibition restraining the judge and the plaintiff in said proceeding from executing said judgment pending this application.

The judge answers that he refused the appeal because he did not believe that the petition presented to him contained any allegation warranting the belief that the city had any interest ’ in the proceedings taken against the Treasurer, W. S. Mount.”

Fitz, the petitioner therein, answers that the two writs asked for can not issue in the same cause; that there is no ground for the writ oí prohibition; that the ten days having elapsed before this application was made, only a devolutive appeal, if any, can be allowed, and that the city not being a party below, has no right to appeal.

In reply to this party, it need only be said that the prohibition issued only as a conservatory measure to preserve the rights of the parties, until the question as to the right to a suspensive appeal could bosettled, the application for which was made in the court a qua within the ten days and the delay in presenting the application to this court does not seem to be unreasonable.

As to the position of the judge, it is to be remarked, that the x>otition presented to him for an appeal expressly alleges that the city of Now Orleans is the real party in interest in said proceeding; that the order1 making the mandamus peremptory against Mount, the Treasuer, is, in effect, a judgment against the city, he being the ministerial officer of the corporation, and that it is aggrieved by the judgment.

The documents brought up with said petition clearly prove the interest which the city has in the judgment ordering its money to bo paid to the relator in said proceeding.

It is therefore ordered that the mandamus issued herein be made peremptory.


text:
    No. 2497.
    Charles B. Evans v. Vincent Populus.
    The Legislature is competent to clothe the Governor with authority to remove an incumbent from office far failing or refusing to discharge his duties according to the requirements of the law by which the office was created.
    Where the Governor removes an officer under a special authority given by statute, courts will presume that he had proper cause for the exercise of that prerogative. This presumption may, however, be overthrown by countervailing proof. 19 An. 210.
    APPEAL from Sixth Judicial District Court, parish of St. Tammany.

      Filis. J. T. & J. Filis, for planitiff and appellee. F. 8. Ganter and F. G. Ohainberlain, for defendant and appellant.
   Taliaferro, J.

The petition of the plaintiff alleges that he is tax collector and assessor of the parish of St. Tammany, by virtue of appointment to those offices by the Governor of the State, under the act 114, of March, 1869, and he shows two commissions from the Governor, one dated eighteenth February of that year, appointing him assessor, tho other dated thirteenth of March following, appointing him •State collector of tho parish of St. Tammany. He sots forth further, that when in the discharge of his duties under these appointments, on •the ninth of April, 18G9, he was provisionally enjoined from proceeding to discharge the functions of his office. He further avers that tho 'Governor of the State, contrary to law, and without right so to do, appointed one Yincent Populus. assessor and collector of said parish, when there was no vacancy in these offices; that said Populous is proceeding to act officially under the pretended appointment of the Governor, to the groat damage of petitioner, etc. He accordingly prayed for and obtained a writ of injunction, restraining Populus from acting in tho capacities aforesaid.

Tho answer of Populus contains a general denial. The respondent •avers that tho plaintiff hold the position, he alleges, subject to bo removed, by tho Governor, according to the act of the Legislature of March 9,. 1869, numbered 114. That in pursuance of the spirit ana provisions of that act, the j>laintiff was duly suspended by the subsequent appointment of the respondent.

The case was tried by a jury, who found for tho plaintiff, with fifty •dollars damages against the defendant. Prom this judgment the-•defendant appeals.

By section 94 of tho act before recited, it is enacted that “any assessor, or member of the board of assessors or tax collector for the city of Now Orleans, or any State collector refusing or failing to do his ■duty as prescribed by this act, shall be liable to dismissal from office by the Governor.”

Here is an office created by law. The authority by which it was •created was competent to clothe the Governor with power to remove the incumbent of such office for failing or refusing to discharge his duties according to the requirements of tho law by which the office was created. In cases of removal by the Governor, where he is vested with the power to remove, courts- will presume that he had proper ■cause for removal when ho exercises that prerogative. This presumption may be overcome by countervailing evidence, where such is presented.

We find no suen counterpoising testimony in tho present case. Much stress is laid upon the fact that tho plaintiff was prevented from making returns, etc., owing to a temporary suspension of the functions of the Auditor of Public Accounts. But we find it no where intimated that that cause was assigned for tho removal of the plaintiff. We find from the record that tho injunction, which the plaintiff himself avers suspended provisionally his functions on the ninth of April, about a month after he was appointed, was taken out by a number of his sureties, who declared that they had good and sufficient reason to believe, and that-they did actually “fear and believe that Charles B. Evans has appropriated and is still appropriating to his own private use and purposes ” the public moneys and taxes received by him in his capacity of collector ■of taxes. It further appears that afterwards, on the twenty-sixth of April, another injunction to the same effect and for the same purpose, based upon the same declarations, and sworn to by others of his sureties on his official bond, was taken out. The object of these injunctions was to screen the sureties from liabilities which they feared from the defalcation of their principal. These proceedings of the sureties were dismissed at their own instance on the third of June, 1869. The commission of Populus bears date eleventh of May, 1869, and it is not unfair to imagine that the dismissal arose from a belief by the sureties thaí, another collector having been appointed, their liabilities were removed, rather than that their lost confidence in the trustworthiness •of the plaintiff was restored.

One of the witnesses stated that, in a conversation had with Evens; in March or April, 1869, the latter told him he intended to keep a part of the taxes collected as an offset for damages by him sustained,” ■and that “he said something to the effect that he intended to leave as soon as he could collect enough to make it an object.” This want of confidence on the part of plaintiff’s sureties in his “ trustworthiness ” seems to have been largely participated in by the jurors who sat upon the trial; for, after rendering a verdict in favor of the plaintiff, recognizing him as the lawful collector of their parish, they joined in a request to the judge that he would use his influence with the Auditor and Governor to immediately appoint an honest, capable and worthy man as assessor and collector of the xiarish of St. Tammany, as the same is necessary for the welfare and x>rosperity of this parish.”

This case is similar, in some respects, to that of Dubue v. Yoss, 19 An. 210, which has been adverted to in the argument. In that case, the Governor was authorized to remove. The second commission recites that Voss was appointed in x>lace of “Dubue, removed.” In the case now before us, the commission to Populus recites that he is ■appointed “vice Charles B. Evans.”

So' far from finding anything to rebut the presumption that the removal of the x>laintiff was without cause, the presumption that there .was good cause is greatly strengthened by the facts we have gleaned from the record, and which, after carefully comparing the dates of the prominent events the controversy gave rise to, leave no doubt that they were known to the Executive, and properly influenced his action in the premises.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that the defendant be, and he is hereby recognized as lawfully holding the office of assessor and collector of the parish of St. Tammany, in accordance with the commissions exhibited by him on the trial of this case. It is further ordered that the plaintiff and appellee pay costs in both courts.

Rehearing refused.


author: Howell, J. Ltjdelinc, C. J.

text:
    No. 1792.
    Heirs of Bastable v. The Succession of J. D. Denegre.
    A surety on an appeal bond may limit liis liability by a stipulation to that effect^ 21 An. 447, 730.
    A party acting as agent or employe tor a number of heirs in the prosecution of a land claim, under an agreement and contract, may withhold the payment of so much of the proceeds of the sale of the land, which he has received for them, as will be necessary to cover possible liabilities on account of suits brought by settlers for improvements made on the land, unless the heirs give satisfactory security against loss, resulting irorn such suits.
    Loyal Case and the heirs oí Bastablo made a contract whereby Case was to prosecute their claim to' the lands in the Bringier grant, in the parish of Concordia, Louisiana, and defray all expenses incident thereto, for óne-half of the land recovered. After judgment was obtained in favor of the heirs, Case sold and assigned his contract to James D. Denegre. Held by the court, that under this contract neither Case, nor his assignee, was responsible for the taxes on the land prior to the recovery of possession by the heirs, nor for claims for improvements, made on the lands. That those claims constituted an incumbrance on the land itself, and was not included among the expenses which Case bound himself to defray in establishing their rights to and recovering possession of the lands claimed.
    An agent or mandatary receiving notes for the sale of property belonging to bis principal, becomes personally responsible if he fails to use due diligence in cniorcing their collection..
    APPEAL from Second District Court of New Orleans. Thomas, J.

      George IF. Brown, and Kelly & Howe, for plaintiffs and appellees.. IF. II. Hunt, and Campbell, Spofford & Campbell, for defendant and appellant.
    Reporter. — This case was pending oil appeal before the former Supremo Court, which was superseded by the preseut court. The decision on the motion to dismiss the appeal on the ground that the-sureties on the appeal bond had divided their liability, was rendered by Mr. Justice Howell, of that court, adversely to the movers. The case was afterwards transferred to the present Supreme Court. It may be ' here remarked that the doctrine announced in the decision of this motion, that sureties on appeal bonds may limit their liability by stipulation to that effect, has since been reaffirmed by the present court. See 21 An. 447, 730.
   Howell, J.

A motion is made to dismiss this appeal on two-grounds:

First — Because the bond is not for a sum exceeding by one-half tlic amount of the judgment, nor is it for an amount fixed by the judge.

The order for appeal directs the bond to be given according to law, and it is given for the sum of $32,000. The judgment is in favor of plaintiffs for the sum of $16,998 78, with legal interest on certain amounts respectively from different dates, running from July, 1856, to July, 1859, subject to various credits, at dates extending from November, 1851, to April, 1858, and decrees them to be the owners and entitled to possession of one-half of certain notes uncollected, amounting to $6152 49, and bearing eight per cent, interest from July, 1855, and some of which are in suit. The calculation which wo have made of theinterest on the principal and the payments included in the judgment, makes the amount to which plaintiffs are entitled under it about ninety dollars more than the bond. But considering the nature and dates of the notes to be delivered, and the fact that our calculation on the numerous debit and credit amounts may not be precisely correct, but may be erroneous, as we have found that of plaintiffs’ attorneys, to be, we are disposed to apply the maxim, “ De minimis,’1 etc., and hold the bond to be sufficient in amount. The more regular course, perhaps, would have been for the judge to estimate the value of the said notes, and the bond could have been given for a sum exceeding by one-half that ■amount, and the amount of the money portion of the claim. But the •■same end, we think, has been attained, the object being to have a bond in an amount sufficient in law to protect the appellees.

Second — The ground is, that the bond is signed by throe sureties, who limit their responsibility each for a particular portion of the bond, the three equaling the amount thereof, which appellees say is not legal, and they cite article 579 C. P. This article, as we construe it, -declares that the bond is given as surety that the appellant will prose•eute his appeal and satisfy whatever judgment is rendered against him, otherwise the surety on the bond will be liable in his place, and its object is to have a bond which will be ample security to the appellee, without reference specially to the number of persons who shall sign it as sureties, although the word “ surety” in it and other articles on the same subject is used in the singular number. Wo are not aware of any provision of law which prohibits more than one person to sign as surety, and for a less amount each than the bond. Wo are inclined to think the sureties may specify the amount for which they bind themselves respectively, but they can not change the nature of their obligation to that amount. The objection urged is one of convenience only, but not of such weight as to destroy the bond. It may sometimes be impossible for an appellee to procure one person good for the whole amount; and in other cases it may be as inconvenient for him to procure an unusual number, as for the appellee to pursue the different ones furnished. We are not to suppose that the appellant will increase the number in order to cause inconvenience to the appellee, but rather to obtain for him the security which the law requires, whether in one or more persons; the object being to furnish sufficient surety. We do not construe the law on this subject to confine an appellant to only one person as surety on his appeal bond.

It is therefore decreed that the motion bo set aside, at the costs of the movers.

On the Merits.

Ltjdelinc, C. J.

Emma Bastable, the widow of Isaac N. Taylor, of ■Ohio, and Mary Jane Bastable, wife of John S. Gano, of Illinois, the heirs of Jonah Bastable, deceased, sue to recover of the defendants, executors of James D. Denegre, forty-one thousand five hundred and thirty-three dollars, with legal interest and costs; this sum being the proceeds of the sale of their interest, an undivided sixth, in the lands embraced in the Bringier grant, and which, the plaintiffs allege, James. D. Denegre received from the sheriff and failed to pay to them. In this court the plaintiffs have limited their claim to twenty-four thousand, and sixty-two dollars and forty-four cents.

The defense is, that James D. Denegre only received seven thousand' and sixty dollars and ninety-six cents in money, and fifteen thousand one hundred and seventy-nine dollars and seventy-two cents in notes, as tho proceeds of the sale of the plaintiffs’ interest in the lands; that tho said Denegre had advanced large sums of money to the plaintiffs,, which is specifically stated in an account annexed to the answer, and that the money and the notes, less tho advances made, would have-been delivered to the plaintiffs by J. D. Denegre, but for the institution of several suits against J. D. Denegre and others, by settlors on, tho Bringier grant, for the value of improvements made upon the-lands, amounting, in the aggregate, to sixty thousand dollars. They aver readiness to deliver the money and notes to plaintiffs, subject to> tho deductions mentioned in tho account, so soon as the suits are decided and the succession is freed from responsibility.

Jonah Bastable, William Brother and Isaac Lambert purchased, on the tenth of May, 1828, at syndic’s sale, in tho case of - Louis Bringier v. His Creditors, for about one hundred dollars, a certain claim for forty or forty-two thousand arpents of land, situated at the confluence of the Ouachita and Black rivers, granted to said Bringier lay the Baron de Carondelet in 1796.

In 1846 the Bastable heirs, the plaintiffs in this suit, entered into ani agreement with Loyal Case, whereby they agreed to give him one-half of whatever he might recover for them under their,claim to the Brin-, gicr grant, in consideration of his attending to tho business and jmying all tho fees, costs and expenses incident thereto. In pursuance to this agreement a suit was instituted, in tho names of the Bastable heirs, against Curry & Garland for an undivided third of the lands granted to Louis Bringier, and there was a final judgment in their favor for an undivided sixth of tho grant. In 1854 there was a judgment ordering a sale of the lands embraced in the grant to effect a partition among the several owners thereof, and, at the sale, made on the seventh day of' July, 1855, tho lands, brought, in cash and notes, $237,921 36.

James D. Denegre, who had acquired the rights, and assumed the obligations, of Loyal Case, received tho portion of the price which belonged te said heirs, to wit: $7,060 96, cash, and $15,179 72, in notes.

The first question to be decided is, whether the plaintiffs can recover-any judgment against Denegre’s succession, until the suits, instituted by the settlers on the lands in tho grant, for the value of improvements, shall have been decided ?

The possible liability of tbe plaintiffs to the squatters for the improvements made on the lands, can not exceed five thousand dollars, and one thousand dollars would be ample to cover their proportion of the expenses of the litigation.

At the date of the sale the indebtedness of the plaintiffs to J. D. Denégro, for taxes paid and advances in. money to them, with legal interest, amounted to about $4,098 01. The cash received by J. D. Denégro from the sheriff was seven thousand and sixty dollars and ninety-six cents, being two thousand nine hundred and sixty-seven dollars and ninety-five cents in excess of the sum due to him, besides the mortgage notes of the purchasers for $15,179 72, which boro interest at the rate of eight per cent, per annum, and were to mature at one and two years from the date of the sale. The fear that the suits for improvements would be instituted could not justify the retention, of the whole proceeds of the sale of the plaintiffs’ interest in the lands. We think, however, that justice requires that the succession of J. D. Denegre should be fully secured against loss on account of the suits instituted against J. D. Denegre and others, for improvements, as aforesaid, and that, to that end, the executors should be permitted to keep in their hands six thousand dollars of the moneys received by J. D. Denegre on account of the sale of the interest of the Bastable heirs, until the final decision of said suits for improvements, or until the plaintiffs furnish satisfactory security to the executors against loss to the succession, resulting from the suits before mentioned.

We think a fair interpretation of the contract between Loyal Case- and the Bastable heirs justifies the conclusion that Case obliged himself to pay all the costs and expenses necessary “for the recovery and possession of said tract of landthat is, the law charges, attorneys’ feesandtraveling expenses of himself or others employed by him, incurred in the prosecution of the rights of the Bastable heirs, until they were put. in possession of their inheritance. The plaintiffs were absentees and poor, unable to prosecute their rights; they stipulated to give one-half of whatever might be recovered by suit or otherwise, in order that they' might enjoy the fruits of the other half of their property. All the parties to the contract knew that the rights of the plaintiffs consisted of an undivided interest in and to property which had to be divided in-kind or by sale before recovery or possession of the property could be had. - This seems to have been the view taken of the contract by the parties to it, for J. D. Denegre continued to attend to the business after he had sold his interest, acquired from Loyal Case, to Norment &. Preston. If the obligations of Loyal Case, under the agreement with-the plaintiffs, and assumed by J. D. Denégre when he bought from Loyal Case, had been performed, when the judgment was rendered in-the case of the Heirs of Bastable v. Curry et al., recognizing the plaintiffs as owners of one-sixtli of filio Bringier grant, why did J. D.. Denegre continue to attend to the business, until a final partition, by licitation, of the lands ? It can not be because he had bought at the tax sale, for ho never opposed that title against the plaintiffs. “ Ho recognized theirs be the real, ultimate and beneficial ownership, and his only the apparent and nominal title.” It is but just to the memory of J. D. Denegro to adopt the hypothesis of the defendants’ counsel, that “all that Avas wanted Avas to get the lands sold to the greatest adArantago. The use of Mr. Denegre’s name and credit, as one of the co-proprietors and warrantors, was of great benefit in this respect; whereas, the names of the non-resident and unknown plaintiffs would ha,ve been a drawback.” This was in the line of Ms duty. Therefore, the fees paid by J. D. Denegre, in suit for partition, ought not to be charged to Emma Taylor or Mary Jane Gano.

On the other hand, Case did not obligate himself to pay the taxes, or the Aralue of improvements placed on the lands, in case the courts should decide that anything was due for improvements.

The account of receipts and disbursements by J. D. Denegre, and filed in this case, is admitted to be correct, with the exception of two items : $2000 paid W. O. Denegre for professional services in the partition suit, and $1200 paid to Judge Curry.

We have already said that the first of these items was not due by the plaintiffs, being included in the expenses to be borne by Loyal Case or his assignee, under the agreement with the plaintiffs. For the $1200, Judge Curry had a judgment against the heirs of Bastable, and whether it Avas for “ one-sixth part of the expenses incurred by Thomas Curry i», procuring the confirmation of the grant, and onetliird of the taxes paid to the sheriff on his half of said lands,” or Avholly for taxes, it can not fairly be said to be embraced in “ the costs and expenses,” which Loyal Case agreed to pay. The costs and expenses, for which Loyal Case bound himself, were such as might accrue in proceedings carried on by him or his agents for the recovery of the property of the plaintiffs. The debt due to Judge Curry existed as an incumbrance on the property, a debt against the property, and Loyal Case, or his assignee, took the property cum onere. The plaintiffs are liable only for one-half of that sum. The defendents should be held responsible for the notes not collected. The last of these notes matured in July, 1857, and they were not placed in the hands of an attorney for collection until several years after their maturity.

The defendants have failed to furnish any good reason for this want of diligence. 4 N. S. 655; 14 La. 443 ; 6 An. 763; 4 An. 309; 4 An. 360; 10 An. 98.

It is therefore ordered and adjudged that the judgment of the district court be avoided and reversed, and it is decreed that the plaintiffs have judgment against the defendants for $6816 38, with five per cent, interest from the tMrtieth of April, 1858 ; for $2644 94, with five per cent, per annum interest from the twenty-fourth of July, 1859, and for $6207 49, with five per cent, interest from judicial demand, and costs of the district court. It is further ordered that there be a stay of execution on $6000 of this judgment, until the final decision of the suits ior improvements against J. D. Denégre and others, or until satisfactory .security be given to the executors of J. D. Denégre against loss on account of said suits. It is further ordered that tlio appellees pay the costs .of this appeal,

Rehearing refused.

Mr. Justice Howe recused.


author: Hoívell, J.

text:
    No. 2557.
    E. Rochereau & Co., (William Brooks, subrogated,) v. M. S. Bringier.
    Tlio husband and wife were garnisheed under a writ of fieri facias. The defendant and judgment debtor intervened aud contested the correctness of their answers to interrogatories. After the intervention was filed, the wife was allowed to amend and correct her answers so as to mate them conform to the allegations of the defendant in his petition of intervention. The husband stood on his original answers, which, in substance, denied any indebtedness to the defendant. Held — That the wife, by amending and correcting her answers to the interrogatories, so as to malic them conform to the allegations in the petition of intervention, she thereby rendered herself liable to the seizing creditor for the amount alleged to be duo the defendant in his petition of intervention, and that judgment was propei ly rendered against her as garnishee; but, as the husband stood on his original answers, no judgment could be rendered against him as garnishee.
    APPEAL from District Court, Parish of Ascension. Beauvais, J.

      Clark, Bayne <& Bcnsliaw, for plaintiffs and appellees. Burthe <£- Trudeau, for defendants and appellants.
   Hoívell, J.

Under a jfieri facias issued on the judgment against tlio

defendant, interrogatories were propounded to Benjamin Tureaud and his wife, who answered that, without their knowledge, judgment was obtained in the name of said Mrs. Tureaud against Mrs. A. Bringier, on five notes that were given by the latter to the defendant, M. S. Bringier, in payment of property purchased by her in the succession of her deceased husband, in 1858; that in the suit of D. & N. P. Trist et al. v. Mrs. A. Bringier, certain property was sold, and purchased by the plaintiffs in said suit (including Mrs. Tureaud), by which purchase the defendant became owner to the extent of his interest and by his consent, the title, however, being in the name of Mrs. Tureaud, and that the said interest or share of said defendant in said property is in the control of the garnishees, and is sufficient to pay the judgment in this suit.

The defendant, Bringier, intervened in the garnishment proceedings, traversed the answers of said garnishees, denied any ownership of said- property, hut averred that the garnishees are indebted to him for .the amount of the notes on which judgment had been obtained in the name of Mrs. Tureaud; that the said judgment is not the property of the party pretending to be the subrogated owner thereof, but really belongs to said garnishees, and is extinguished by confusion, and lie prays that it be so declared that their indebtedness to Mm, by reason of the judgment ou Ms notes, bo credited by the amount paid by them for the judgment herein against Mm, and he propounded interrogatories on facts and articles to the alleged subrogee.

Subsequently, Mrs. Tureaud was permitted to amend her answers, and to state that the instructions of defendant, M. S. Bringier, to make the said purchase for him were verbal, and that, as he repudiates the same, she is willing to accept his statement; and if the property belongs to her, then she will owe Mm more than enough to pay the judgment herein. Upon the trial, judgment was given against the garnishees,' Mr. and Mrs. Tureaud, in solido, for the amount of the judgment, interest and costs, against M. S. Bringier, and also in favor of the plaintiff and the garnishees, dismissing the intervention of the defendant, who appealed. Benjamin Tureaud, in Ms answer, asks that the judgment as against him be reversed, as he expressly denied being indebted to the defendant.

We can discover no error in the judgment to the prejudice of the defendant, Bringier. He complains that an application for a continuance was not granted him. There is nothing in the record, except what is contained in 1ns motion for a new trial, to show that such an application was made, and there is no evidence in support of the allegations of the petition of intervention. His allegations as to the indebtedness of the garnishees were accepted by Mrs. Tureaud, and her answers were corrected to accord therewith. This justified the judgment against her, hut not against her husband. No objection was made to her right to amend and change her answers.

It is therefore ordered that the judgment appealed from he reversed as to Benjamin Tureaud, with his costs in both courts, and in all other respects affirmed; costs of appeal to be paid by the annollant.


text:
    No. 2532.
    Citizens’ Bank of Louisiana v. Robert Murdock and G. W. Williams.
    An acknowledgment written on tlie back of a promissory note by tlie drawers, wlio are also indorsors, will not relieve tlie liolder irom tlie effect of the plea of prescription made by tlie other indorsers.
    APPEAL Afrom the Thirteenth Judicial District, parish of Tensas.

      Hough, J. Sparrow & Montgomery, for plaintiffs and appellants. Aroni tfi Collier, for defendants and appellees.
   Taliaferro, J.

The plaintiffs bring suit upon a promissory note, dated fourth of November, 1861, for the sum of $3100, payable five months after date, drawn by Hughes, Hylleston & Co., to their own order and indorsed by them and also by the defendants. At the maturity of tlie note, its payment was extended four months by consent of parties. An acknowledgment of tbe obligation was entered upon tbe note by tbe drawers on tbe fifth of November, 1866, but not by any of tbe other parties.

The defense is prescription, which must prevail. Suit was instituted against the defendants on the fourth of December, 1867, and citation was served on them tbe second November, 1868, more than five years having intervened between the time fixed by the extension of payment in 1862 and service of citation.

It is therefore ordered that the judgment of the district court sustaining the plea of prescription bo affirmed, with costs in both courts.


author: Howe, J.

text:
    No. 2696.
    J. G. D’Armond v. Samuel A. Dubose.
    A document having the requisite amount of United States internal revenue stamps thereon is admissible in evidence, although they are not canceled as required by the revenue laws. The failure to have tho stamps properly canceled subjects the parties to the penalties prescribed by the United States for such neglect, but does not invalidate or render the instrument inadmissible in evidence.
    APPEAL from the Fifth District Court, parish of East Feliciana.

      Posey, J. Cross & Iiardee and .'Race, Poster & P. T. Merrick, for plaintiff and appellee. Hernán & Lyons, for defendant and appellant.
   Howe, J.

Tbe defendant, appellant, contends that the court a qua erred in receiving in evidence the note sued upon, because, having upon it the amount of stamps required by tbe laws of tho United States, those stamps were not properly canceled.

We are of opinion that the court did not err. The internal revenue laws of tbe United States provide a special method of cancellation, and a penalty for its non-observance; but we are not advised that they anywhere provide that instruments on which the proper stamps have been affixed, but not properly canceled, shall be invalid, or incapable of being introduced in evidence.

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


author: ■Ludeling, C. J.

text:
    No. 2602.
    Etienne B. Pennisson et al. v. Jean B. Pennisson et al.
    The parish court has jurisdiction of a suit for the partition of a succession among the heirs, where it has not been accepted unconditionally, even though no administrator has been appointed. Constitution, article 87.
    APPEAL from Parish Court, of Assumption. Pintado, Parish Judge.

      Nicholas, Leblanc & Poise, for plaintiff and appellant. Carver & Sims, for defendants and appellees.
   ■Ludeling, C. J.

This suit was instituted in the parish court of the parish of Assumption by tbe beneficiary heirs of E, B. Pennisson and his wife, Rosalie Trahan, to affect a partition of the property of the successions of their parents, between themselves and their co-heirs, the defendants, some of whom are minors.

A plea to the jurisdiction of tho parish court, raiione materia), was filed by tlie representatives of the minor defendants, which was sustained, and the suit .was dismissed. The plaintiffs have appealed.

Etienne B. Pennisson died in 1856, aud his wife died in-1864. No administrator has been appointed to either succession. The plaintiffs have accepted the succession, with benefit of inventory. Several of the defendants are minors, and none of the heirs have accepted the succession unconditionally. The property to be partitioned is, therefore, still the property of the successions of E. B. Pennisson and Rosalie Trahan. The object of this suit is evidently a settlement of the successions of E-. B. Pennisson and wife; and “ all successions shall be opened and settled in the parish courts.’’ Constitution, article 87.

It is therefore ordered and adjudged that tho judgment of tho parish ■court be avoided, and that the exception to the jurisdiction of the parish court be overruled. It is further ordered that the case be remanded to the parish court, to be proceeded with according to law, ■ and that the appellees pay the costs of this appeal.


author: Ludeling, C. J.

text:
    No. 2730.
    S. Durbin v. G. P. McMichael.
    . Payment of a promicsor y note tlie consideration of which is shown to be a loan of Confederate notes, can not be judicially enforced.
    APPEAL from Sixth District Court, parish of Tangipahoa. JSUis, J.

      JS. J. JSllis, for plaintiff and appellee. Thomas G. W. JSllis, for defendant and appellant.
   Ludeling, C. J.

This suit is based upon the following promissory note: .

“Parish Sr. Helena, August 26, 1864.

' “Twelve months after date, I promise to pay to Skipwith Durbin, or order, tho sum of sixteen hundred and fifty dollars, to he paid in such money as is current at the time the note becomes due. If not paid when duo, to draw eight per cent, interest till paid, it being for .value'received of Mm. “ G-eorge P. McMichael.”

The defense is, that tho consideration of the note was Confederate money, etc.

The evidence satisfies us that the consideration of the note was Confederate notes loaned to the defendant. According to the settled jurisprudence of this State, the claim can not be enforced by the courts.

It is therefore ordered that the judgment of the district court be reversed, and that there he judgment dismissing the.plaintiff’s demand, with costs in both courts.


author: Ludeeing, C. J.

text:
    No. 2571.
    J. R. Jaffray & Sons v. Edward J. Bruff.
    The appeal bond must be made payable to tlie clerk of the court from which the appeal is taken, otherwise the appeal wilL be dismissed for want of a legal bond. Acts of 1869, page 11.
    APPEAL from Third District Court, parish of Lafourche. Oates, J.
    ■ Ft, If. Llalce, for plaintiffs and appellees. Knobloch & Attain, for defendant and appellant.
   Ludeeing, C. J.

The appellees move to dismiss the appeal on the ground that the appeal bond, executed on the tenth of May, 1869, is, not made payable to tho clerk of the court, in conformity to an act of the Legislature, approved thirtieth January, 1869.

We consider the provisions of that act imperative. An appeal is only authorized when the conditions imposed by the law are complied with. Acts 1869, p. 11.

It is therefore ordered that tho appeal be dismissed at the cost of the appellant.


text:
    No. 2585.
    Margaret H. Ogier v. A. Marchand, Administrator, etc.
    The statute requiring all appeal bonds to be made in favor of the clerk of the court from which the appeal is taken is satisfied, if the bond is made in favor of the judge, the clerk and the appellee.
    Where a case has been erroneously transferred from the district to tho parish court, andan appeal' is taken Irom the judgment rendered by the parish .judge, who was. without jurisdiction, the case will be remanded to the district court to be proceeded with according to law.
    APPEAL from the Parish Court, of Ascension. Maries, Parish Judge.

      Nicholas & Leblanc, for plaintiff and appellant. J. J. Loman, for defendant and appellee.
   Howe, J.

The plaintiff has moved to dismiss this ajipeal on several, grounds:

First — That the defendant, having previously obtained an appeal herein and filed the required bond, and said appeal never having been: brought up, abandoned it, and he could not afterwards obtain the appeal now before this court.

The record does not seem to sustain the allegations on which this-point is made.

Second — That the appeal bond herein is not made payable to the clerk of tho lower court, according to law.

The bond is made.payable to the judge of the lower court, to tho clerk, and to the appellee, and would seem therefore. to necessarily include a lawful obligee.

Third — Because the defendant, having acquiesced in the judgment by placing the same as a debt duo by the succession on his provisional account and tableau, can not appeal therefrom.

The record does not sustain this averment. Tho judgment is placed on the account in the following terms: “Amount retained to pay the judgment of Mrs. Ogier, in case it goes against the succession,” etc. It is plain that there is no acquiescence in this.

The motion to dismiss being overruled, we proceed to the merits of the appeal, and find that the court a qiia was without jurisdiction, /ratione materiathe amount in dispute being $690 66, with interest from April 1, 1862. The suit was instituted in the district court, and improperly transferred to the parish court.

It is therefore ordered that the judgment appealed from be avoided ■•and reversed, and the cause remanded to the district court, there to be proceeded with according to law; the appellee to pay costs of appeal.


text:
    No. 2651.
    Mary B. Waddill v. Payne & Harrison and the Sheriff.
    TYhere a third party lias purchased real estate, which is subject to a special mortgage without the stipulation therein, of the pact ele non alienando, the holder of the mortgage can only enforce it against the third pui chaser by the hypothecary action; the case would ho different in a simulation.
    APPEAL from District Court, parish of Madison. Hough, J.

      F. I). Farrar, for plaintiff and appellant. William J. Duncan and JBreaux <& Fenner, for defendants and appellees.
   Howell, J.

Mrs. Mary B. Waddill, as owner by purchase at sheriff’s sale, in the suit of B. Graham, tutrix, etc., v. Charles J. Hester, has enjoined the sale of certain lands under an execution, in the case of Payne & Harrison v. Charles J. Hester. Payne & Harrison, besides the general denial, answer that, they are the only mortgagees holding a special mortgage on the property seized, of which plaintiff was aware when she obtained the injunction.

All the evidence in the record is embraced in the following statement of facts:

“For Plaintiff. — Ransom Graham sold the land in controversy to Charles J. Hester on the third day of August, 1857, retaining a special mortgage and vendor’s lien upon the same. Graham died in 1859. On the twenty-ninth of October, 1861, a judgment was rendered in the Thirteenth District, parish of Madison, in favor of the succession of Graham, upon the notes executed by Hester, rendering the mortgage executory, and especially declaring the vendor’s privilege in favor of the succession. This judgment was immediately after its rendition duly recorded. Execution issued upon this judgment April —, 1869. The property mortgaged was seized, and on the-day of May following was sold by the sheriff, and Mrs. Mary B. Waddill, plaintiff herein, became the purchaser at two-thirds of its appraised value. The original mortgage retained in the act of sale Ayas never reinscribed and jperemjpted on the fourth of August, 1867.

“For Defendant. — On the fourteenth of December, 1859, and on the second of January, 1861, Charles J. Hester executed two conventional mortgages in favor of Payne & Harrison, defendants in injunction, upon the land in controversy. On the fifteenth of May, 1866, Payne & Harrison obtained judgment upon the notes secured by the mortgages above recited, in the Fourth District Court of New Orleans, against Hester, recognizing the mortgage, etc. In August, 1869, execution issued upon this judgment, and the property previously purchased by plaintiff was seized by the sheriff and advertised for sale. Mrs. Waddill enjoined. These mortgages in favor of Payne & Harrison were recorded in the recorder’s office of Madison parish, March 8, I860, and January 19, 1861.”

On this evidence the injunction was dissolved, and plaintiff appealed.

It is not pretended that the sale to Mrs. Waddill is simulated, nor is it alleged or proved that the acts of mortgage in favor of Payne & Harrison contained the pact de non alienando, and hence her title and possession could not be disregarded, and her property seized under an execution against a former owner. See 18 An. 732; 21 An. 271, 647. The sale to her must be set aside before the property sold can be seized and sold as that of another; or if it be subject, in her hands, to a mortgage superior to the one under which she purchased, but which does not contain' the non-alienation clause, such mortgage can be enforced against her as third possessor only by the hypothecary action. C. P. 709, 61 et seep; 3 N. S. 336; 6 L. 283; 6 An. 550.

The conclusion seems manifest that the defendants should, under the pleadings and evidence, be restrained from proceeding with the execution of their writ.

it is therefore ordered that the judgment of the district court be reversed, and that the injunction herein be perpetuated, without prejudice to the rights of both parties in other proceedings. Defendants to pay costs in both courts.

Mr. Chief Justice Ludeling recused.


text:
    No. 2588.
    A. Provosty, for the use, etc., v. Martin Carmouche.—Jules Levy, Third Opponent.
    A third opponent can not be permitted to aver the nullity of the judgment under which property has been seized, and at the same time claim the proceeds of the sale made under that judgment.

      APPEAL from District Court, parish of Pointe Coupee. Miller, J.
    IlL Thomas JI. Hughes, for plaintiff and appellant. Fdwcwd Phillips, for defendant and appellee.
   Howe, J.

In this suit the plaintiff, on the thirteenth of December, 1865, recovered a judgment for $1070 91, and interest, upon a note which had been given for the price of a slave. An execution was issued in December, 1869, and levied upon a tract of land, which was finally, on the seventh March, 1868, sold at twelve months’ credit to one J. D. Vignes. On the fourth of March, prior to the sale, Narcisse Beauvais, as tutor, filed his opposition, averring that he had a mortgage prior to that of plaintiff, and prayed for an order that the sheriff retain the proceeds. On the sixth April, 1869, Jules Levy filed his opposition, averring himself to be a judgment creditor of Carmouche, and judicial mortgagee, and entitled to the proceeds of the sale, because :

ffirst — The claim of Beauvais was prescribed; and,

Second — “ The note on which the plaintiff, Provosty, obtained judgment was given for the purchase of slaves or persons, and is null and void, and can not be enforced by the courts of this State •, and that, consequently, the contract for the sale of persons being null and. void,, the note given for the price was also null, as well as the judgment rendered thereon, and can not be enforced, and petitioner has the right to have the legal mortgage resulting from the same, and the registry of the same canceled and annulled, and to have said judgment erased from the mortgage book.”

And thereupon he prayed that the plaintiff’s judgment might bodeclared null and void, and erased from the mortgage book, and that the proceeds of sale be paid to him.

The plaintiff also pleaded prescription to the claim of Beauvais. The plea was maintained, and Beauvais has not appealed. As between the plaintiff and Levy, the parties in interest now before us, the court a qua decreed the claim and judgment of the plaintiff, Provosty, to be null and void, and directed the proceeds to be paid over to the opponent, Levy •, and the plaintiff appealed.

The main question before us, and which is presented by the exceptions filed by plaintiff to the opposition of Levy, is this: Can the opponent, Levy, be permitted to aver the nullity of the plaintiff’s judgment, and at the same time to claim the proceeds of a sale under that judgment? We think this question must be answered in the negative, for the reasons given in the case of Livaudais v. Livaudais. 3 An. 455.

It is therefore ordered that the judgment appealed from, except so-far as it dismisses the claim of Beauvais, tutor, be avoided and reversed. It is further ordered that the opposition of Jules Levy be dismissed, with costs in both courts; reserving his rights, if any he have, to relief in some other form of action.


text:
    No. 2731.
    E. Giquel v. M. C. Daigre et al.
    A. merchant who has supplied a minor with wearing apparel under the authorization and approval of the tutrix, may enforce the claim against the minor alter emancipation, provided the same has not been included in the settlement of the tutrix's account, and the amount docs not exceed the revenues of the minor. In such a case the tutrix has the right to hind the minor to the extent of the revenues, without the approval of a family meeting, and the minor having come into the possession of her estate is hound also.
    APPEAL from District Court, parish of East Baton Rouge. Posey, J.

      Barrow & Pope and Bead & Goodale, for plaintiff and appellee. 8. P. Greves and A. 8. Herron, for defendants and appellants.
   Howell, J.

This suit was brought in February, 18C7, to recover of the defendants in solido the sum of $1149 82, the amount, of an account for dry goods sold to them during the years 1865 and 1866. In an amended petition, plaintiff declares that at the time the account was-made Miss Lucy Daigre, one of the defendants, was a minor under the tutelage of her mother, Mrs. M. C. Daigre, as natural tutrix; that the articles sold were for the use and benefit of said minor, being necessary for her maintenance in her position in life, and who has since been, emancipated, and is now in the full possession and management of her property.

The defense is substantially a general denial, the daughter specially pleading her minority. Pending the suit she married J. C. Beard, who was made a party, and plaintiff having died, his administrator made appearance to represent him. Judgment was rendered against Mrs.. Daigre for a part, and against Mrs. Beard for the balance of the account, from which the latter appealed, and plaintiff has asked that the judgment be made one in solido against the defendants.

The plaintiff assumed the burden, and accordingly offered evidence for the purpose of proving that the goods sold were for the use and benefit of the minor, and necessary and proper for her maintenance.

The account is made out against Mrs. Mary C. Daigre and daughter, Lucy Daigre,” and runs from November 4, 1865, to April 3, 1866. The articles are principally such as pertain to ladies’ apparel; the sale, delivery and prices of which are proven; and the only question is the liability of the daughter for any part of the indebtedness.

Evidence was admitted, without objection, to show what items were bought by and for her, and charged under special instructions from both; and that during the time she and her brother were in possession, as owners, of considerable property, including a plantation under cultivation, and purchased by them prior to the date of the account sued on, under a judgment obtained by them against their mother; and cash rnd notes amounting to near twenty thousand dollars, transferred to them in further satisfaction of said judgment. These transactions and settlements with the mother and tutrix were ratified by the daughter liter her emancipation, and some eight months before the institution, af bliis suit, but about two months subsequent to the date of the last item in plaintiff’s account. There is no evidence and no pretense that the tutrix included any part of this indebtedness to the plaintiff in her .settlement with her daughter. The district judge was satisfied that the articles shown to have been purchased by and for the daughter were necessary and proper purchases, considering her fortune, and were for her benefit; and, while there is no direct proof as to the resources of the minor, we do not feel authorized to disturb the judgment against her. It is not suggested that the sum ($661 13) allowed, ■caused her expenses to exceed her resources; and to us it does not seem very large, under the circumstances, for a young lady eighteen years oí .-age, who is shown to be worth over twenty thousand dollars in productive property. In such matters we must rely, in a great measure, •on the sound legal discretion and judgment of the judge a quo, who has the parties and witnesses before him, and can more readily determine the nature and extent of expenditures necessary and proper for a minor.

The purchases, in this instance, wore authorized by the tutrix, and were such as could have been made, if not exceeding the resources of the minor, without the intervention of a family meeting and court; and as the tutrix has not charged the minor for them, the latter can bo held responsible. C. C. 343, 1778; 18 An. 571.

If the tutorship still existed, there is little doubt that the plaintiff could, under the evidence, recover from the tutrix the value of the goods so furnished to the minor; but, as it is closed, and the latter has come into the enjoyment of her property in her own right, she is liable in law and equity. C. C. 1960.

The judgment of the lower court has done substantial justice between the parties, and is not in conflict with the law and jurisprudence relative to the protection of minors.

Judgment affirmed, with costs.


text:
    No. 2704.
    J. I. Daigle v. T. W. Bird.—S. P. Greves, Garnishee.
    .An attorney at law having possession of assets of the seized debtor, is not excused from answering interrogatories by the seizing creditor, and if the answers are traversed by the attaching creditor, an appeal will lie from the judgment given on the testimony offered to show their incorrectness.
    .A garnishee is only liable to the attaching creditor for the amount of his indebtedness or the amount of the assets in his hands belonging to the seized debtor.
    .An attorney at law having claims in his hands for collection is entitled to an allowance for his fees for collection in case they have been garnisheed in his hands.
    APPEAL from District Court, parisli of East Baton Rouge. Posey, J.

      Barrow <& Pope, and Puqua & Calliham, for plaintiff and appellee. Samuel P. Greves and A. S. Herron, for garnishee, appellant.
   Howe, J.

The motion to dismiss in this case, on the ground that 'the garnishee, appellant, has no interest or right to appeal, must be overruled.. Whatever may be the rule in a case where the judgment has been rendered upon the answers of the garnishee, considered as a confession of judgment — in this case, where the answers wore sought to be disproved, and judgment rendered upon the evidence thus solicited, we think the right to appeal is plain.

Upon the merits, this action is similar in many respects to that of-White v. The Same, 20 An. 188. The objection of the garnishee that he is the attorney at law of the judgment debtor, was, therefore, properly disregarded by the court a qua. Nor was there any force in his objection that no notice of seizure of assets in his hands had been given to the defendant, Bird. Hanna v. Bry, 5 An. 656; Walker v. Creevy, 6 An. 535; St. Romes v. Levee Press, 21 An. 291.

The plaintiff, appellee, has asked in this court that the judgment be amended by making it absolute against the garnishee for the amount of the claim against Bird, and by disallowing the claim of garnishee> which was recognized by the court below, for a fee in collecting the money decreed to belong to Bird. The Code of Practice, art. 264, docs not seem to authorize us to grant the first of these demands; and we are not prepared to say that the allowance of the fee was erroneous.

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


text:
    No. 2606.
    Succession of Jean Pardo.
    The parish court has jurisdiction over a contest about the validity of a will, without reference to the amount involved in the testament.
    A witness who does not understand the language in which the testament is written is not a competent witness to the will.
    A nuncupative will, under private signature is null, if it does not contain the number of subscribing witnesses required by law, who are competent to testify that it was dictated and written in their presence, or that it was read to them at the time of signing.
    APPEAL from the Parish Court, of Iberville. Moore, Parish Judge.

      Rousseau & JEstevan and Armond Pitot, for executor, appellee. Barroio & Pope and John Mareot, for opponents, appellants.
   Ludeling, C. J.

Ambroise Pardo jjresented to the parish court oí Iberville, for probate, a written instrument, purporting to be a copy of the last will of Jean Pardo, which, it is alleged, was lost.

The heirs at law of Jean Pardo opposed the' probating, on the following grounds:

That the requisite number of witnesses did not sign the will, as Forester Pardo, one of the subscribing witnesses, was not a resident of the parish of Orleans, the place where the will was made; and Alex. Kelly, another of the subscribing witnesses, did not speak or understand French, in which language the testament was written.

That it- is not proved that the deceased signed the will.

That the will is inoperative, because there is no testamentary disposition, and there are no debts to be paid, etc.

And that the widow and heirs have been put in possession of all the property of the succession.

The parish court allowed the probating of the will, and ordered its. execution.

The opponents have appealed.

In this court it has been urged that the judgment of the parish court is a nullity, because the parish court was without jurisdiction ratione materice, as the amount of the inventory of the succession exceeds five hundred dollars.

The contest is in relation to the validity of the will. It is purely probate in its nature; and in Hebert, tutor, v. Winn and others, we held that the parish court had jurisdiction of such cases.

There were six subscribing witnesses to the act, which was intended to be a nuncupative will by private act.

Forester Pardo, one of the witnesses, did not reside in the place where the will was made. Alexander Kelly, another of the subscribing witnesses, did not sufficiently understand the language in which the will was dictated and written to enable him to be a competent witness to the testament. Kelly testifies that he required the person who wrote' the will to translate it to him, so that he might understand what he was signing. Emma Pardo says: I have known Mr. Alexander Kelly about five years. Was acquainted with him in 1863. My mother tongue is French. Mr. Kelly never conversed with me in that language. Ho could say yes, or no, madam, and such ordinary words, in French, and that was the extent of his knowledge of the French language. I have never heard him converse with any one in the French language.”

Forester Pardo says: He is acquainted with Alexander Kelly. Knew him for a year previous to the year 1863. He was intimately acquainted with him during that time. He was courting a cousin of witness, a daughter of A. A. Pardo, and whom he afterwards married. His mother tongue was Spanish, and he spoke nothing but Spanish in his own family. In A. A. Pardo’s family French was generally spoken. When Mr. Kelly came to visit Mr. Pardo’s family they spoke English to him and in his presence. The reason was that he could not understand French, and they could not speak Spanish. "■ ,s * Witness-knew Mr. Kelly could not understand French, for the reason that questions were asked him in that language, he could not answer them otherwise than by yes or no, and from his answers showed that he did not understand what was asked him.”

It appears to us sufficiently proved that Kelly did not understand the French language, and therefore could not know whether the will contained the • dispositions dictated by the testator. It was impossible for him to compare what was written with what was spoken by the testator. Hence lie could not testify to tlie faithful execution of the will; and for all legal purposes in this case, he might.as well have been deaf. 11 An. 676 ; 14 An. 233.

The will, therefore, is attested only by four witnesses residing in the place where the will was made, and this is not a compliance with the law. C. C. article 1574.

It is therefore ordered that the judgment of the lower court be annulled; and it is adjudged' and decreed that the will be declared invalid, and that petitioner’s demand be dismissed, with costs in both courts.


text:
    No. 2716.
    H. W. Gribble v. F. J. Haynes.
    A commission merchant who purchased a mortgago note for one of his customers, for which he charged the amount in his account current, can not afterwards, and after the maturity of the note, transfer it and convey title to a third party. A third party gettiDg possession of the note under such circumstances can only hold it subject to whatever equities might be urged against the original owner.
    "Where the wife separated in property from her husband, has instructed her factor to purchase a mortgage note having a superior rank to her claim, on the property of her husband, which note the factor transfers to a third party after maturity, she may intervene in the suit to enforce payment, and be declared the true and legal owner thereof.
    APPEAL from District Court, parish of East Feliciana. Posey, J.

      Me Vea 16 Hunter, and D. J. Wedge, for plaintiff and appellee. Oross & Hardee, for defendant and appellant.
   Howell, J.

This suit was instituted iu February, 1868, on a note for $2530, with eight per cent, interest after maturity, dated January 30, 1861, due January 23, 18C2, drawn to the order of the maker (the defendant), indorsed by him and J. B. Dribble, at whose office, iu New Orleans, it was payable, and secured by mortgage on the plantation of defendant, in East Feliciana. The plaintiff claims ownership by virtue of the said indorsements, and alleges that the defendant recognized his liability on the same while it was in the hands of J. B. Dribble.

The defendant denies any indebtedness to plaintiff, and avers that J. B. Dribble purchased the note from a third party for defandant’s wife, who is separate in property, and who has paid for the same by cotton and compensation, and if it was ever transferred to plaintiff, it was so done fraudulently, and long after its maturity.

Mrs. Haynes, the wife, was permitted to intervene and ask to be decreed the owner of said note, upon the grounds that, as the mortgage securing it ranked hers on the property of her husband, she instructed J. B. Dribble, her factor in New Orleans, to purchase it for her, which he did, and on the twenty-fourth of November, 1866, charged her with the price paid in the account current rendered by him, and that she shipped cotton to him to pay for the same, the proceeds oi which were applied accordingly.

The said account current, which seems to have been closed oil the first of Majr, 1867, including interest to the first of December folio-wing, shows that on the twenty-fourth of November, 1866, J. B. G-ribble charged Mrs. Haynes with $1265, cash paid for said note, and that on the fourth and fifth of the next month lie placed to her credit the proceeds of seventeen bales cotton, amounting to $1933 12. The evidence in connection with this account leaves little doubt that fourteen bales of this cotton were shipped to said factor to pay the price of this note, and the subsequent refusal of Mrs. Haynes to give her note, as requested, for the balance due the factor on the account rendered by him, did not change the character of the transaction and divest her of the ownership of the note. There was no such stipulation or condition in the mandate to purchase, and the attempt of the agent to transfer the note, long overdue, and held by him for his principal, was unauthorized, and, under the circumstances, could not convey title to the alleged transferee, whose agent was also the agent and cleric of J. B. Gribble at the time of these transactions.

It is therefore ordered that the judgment appealed from be reversed, that the demand of plaintiff be dismissed, and the intervenor, Mrs. M.. A. Haynes, be decreed to be the owner of the note on which this suit was instituted; plaintiff to pay costs in both courts.


text:
    No. 2693.
    E. Eichelberger v. George A. Pike.
    In a suit to enforce payment of a note against a banker in whose hands it had been placed for collection, who had lailed to have it protested, whereby the indorser was discharged, the execution against the original maker with the return of the sheriff that no property was-found, together with the certificate of the recorder that the maker of the note had no-property standing in his name in the parish of his domicile are admissible in evidence to> show that the maker of the note was insolvent.
    The indorser of a promissory note beforo maturity, made payable to himself, is bound to the-holder as indorser, under the law merchant, and not as an ordinary surety.
    The right to recover of a banker for failing to protest a note whereby the indorser is discharged, is only prescribed by ten years. G. G. 3508.
    APPEAL from Fifth Judicial District Court, parish of East Baton
    Rouge. Posey, J. J. 0. Stafford, for plaintiff and appellee. Fuqua & Oalliliam, for defendant and appellant.
   Taliaferro, J.

The plaintiff seeks in this action to render the defendant, who is a banker, liable for $921 20, the amount of a promissory note placed in the hands of the latter for collection, who, failing-to have the note protested at its maturity, recourse was lost upon the indorser, the only solvent party to the note. The defendant pleads, prescription of one year. The plaintiff had judgment, and the defendant appeals.

The defendant has two bills of exceptions in tbe record. The first is to the admission in evidence of a writ of fieri facias issued on a judgment obtained in the parish of West Baton Rouge, by the plaintiff in-this suit, against Dubroca, the maker of the note in relation to which the defendant in this suit is sued. The execution shows, with sufficient certainty, that it was issued to enforce payment of the same-note, and the return upon it shows that no property of Dubroca was-found, and none pointed out to the sheriff for seizure. The admission of the evidence, we think, was proper. The plaintiff, by. the terms of his action, had to show that the indorser of the note was his- only reliance for payment, and it was competent for him to show that he had used the appropriate means to recover the debt from the maker,, without effect. No attempt was made, in rebuttal, to show that the-drawer was solvent.

The second bill of exceptions was to the admission of the recorder’s-certificate to the effect that, by the records of the parish of West Baton Rouge, the domicile of Dubroca, it did not appear that he-owned any property in that parish, and that there was of record in that parish a judicial mortgage against Dubroca in favor of Mrs. Cade for $19,286 91.

This objection to the evidence goes more to its effect, we imagine,, than to its admissibility; and, in connection with the execution and return, was properly received.

The defendant- argues, that the plaintiff, by his pleadings, fixes the character of Lefever as surety on the note, and therefore, no protest oí the note was necessary to hold him, and. that no injury arises from failure to protest. It is true the plaintiff makes the averment in his-petition, that “ Lefever, the surety, is solvent and able to pay the-note; ” but the very next allegation is, that by the negligenee of the said Pike, banker, by not protesting the said note at maturity, the solvent surety, Lefever, was released from the payment of the note.

The note is drawn by Dubroca, to the order of Lefever,- and indorsed in blank by him, .before maturity. The note is made part of the petition, and obviously the obligation of Lefever was that of an indorser under the law merchant, and not that of an ordinary surety. The gravamen is the failure of Pike to have protest made, and the-resulting loss of recourse upon Lefever. The meaning and purport of the whole is not to be mistaken, although the term “surety” is used by the plaintiff. Lefever desired protest to be made, if the note-should not be paid when due, and he states in his testimony that “ Mr. Pike, sometime after, told me he had grumbled a good deal with Mr. Skolfield for having neglected to protest the note, and asked me to see Dubroca, and get him to- correspond with plaintiff, and see if some arrangement could be effected.”

The plea of prescription of one year is not applicable in this case. The agent’s obligation to Ms principal is a personal one, and subject-to the prescription of ten years. C. C. 3508. The liability of a banlring establishment that receives notes for collection, and fails to use the proper diligence to fix the liabilities of the parties to such instruments, is well settled. 2 La. 416 ; 15 La. 414; 3 N. S. 344.

It is therefore ordered, adjudged and decreed that the judgment of the district court to affirmed, with costs in both courts.


text:
    No. 2729.
    A. Johnson, wife of Wm. M. Johnson, v. Thomas K. Stevens.
    A claim for stock lyitli its increase founded on a donation or gift by tbe father to Ms daughter, can not be enforced, when the evidence shows that the property never passed into the possession of the donee, and that the donor had revoked the donation on the ground of disobedience of his daughter in contracting a marriage.
    APPEAL from Sixth Judicial District, parish of Livingston. Mils, J.

      Divncan é Davidson, for plaintiff and appellee. T. é J. Mlis, for ■defendant and appellant.
   Taliaferro, J.

The plaintiff, who is the daughter of the defendant, sues him to recover certain personal property or its value, which she estimates at $1740. This property, she alleges, consisted, at the time of her marriage in 1853, of thirty-four head of horned cattle, cows and lieifers, and a mare of the value of one hundred dollars; that the defendant has had the benefit of the increase, since that time, of tlio cattle, which she avers is worth fully one hundred dollars per year.

The defendant denies all the allegations of the plaintiff, and claims in rcconvcntion a sum much larger than that demanded by the plaintiff. The case went before a jury, which rendered a verdict in favor of the plaintiff for twenty-one head of cattle, or in default thereof, the sum of $252.

. From the judgment of the court rendered thereupon the defendant appeals. The plaintiff asks of this court an amendment of the judgment, decreeing in her favor the whole amount she claims. Many witnesses testified in the case, and among • them the plaintiff and defendant. The ungrateful task of examining this record, which portrays the sad spectacle of father and child contending against each other in the courts of the country, has not enabled us to concur with the jury in their conclusion as to the rights of the parties. The evidence shows that, when the plaintiff was two years old, her uncle gave her a heifer. The plaintiff swears that the cattle she claims were the increase of that heifer. The defendant swears that the heifor died when, three years’old, and-that she had no increase. Various witnesses testified that certain- cattle in possession of the defendant were known and spoken of as belonging to the plaintiff, and that they had a different mark from those of the defendant; also, that a certain mare in defendant’s possession was called the property of the plaintiff. None of these witnesses knew that the cattle bearing the mark assigned to the plaintiff were the increase of the heifer given to her when she was ■only two years old; and the plaintiff herself could have no distinct remembrance on the subject. The testimony of the father is not in any manner impugned. He states that the heifer died without increase; that the plaintiff is his sole surviving child; his other children having-died when small; that to gratify his daughter in her childhood, he permitted certain cattle among liis stock to be called hers, and also the mare in question, at that time a colt; that he placed a different mark on the cattle thus called his daughter’s; hut that they had the same brand with those of his own; that it was his purpose to give these cattle to his daughter; but that she was disobedient, and left his house to contract a marriage which he was opposed to ; that he then determined not to give her the stock she claimed; that she was divorced from her first husband, and that ho raised from infancy her child by her first marriage, and that he gave the stock originally intended for his daughter to his grandson. The testimony of the grandson corroborates in several particulars the testimony of the grandfather. This witness was engaged in attending the stock on the place, hired until he became of age, with his grandfather; states that there were no ■cattle there within his recollection belonging to his mother; that all the cattle had the same brand; that a different mark was placed on those intended for him.

It is not shown that any of this in’oporty claimed by the plaintiff was ever in her possession. The intended donation was never perfected. Wo think the weight of the testimony preponderates on the side of the defendant, and that he should have judgment in his favor.

The reconventional demand set up by the defendant was not passed on in the lower court; is not insisted upon in this court, and wc infer that it was made with the view chiefly to show the obligations the plaintiff is under to the defendant.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided 'and reversed. It is further ordered that the claim set up by the defendant be rejected, but in other respects that he have judgment in his favor, the plaintiff and appellee paying costs in both courts.


text:
    No. 2708.
    N. Bauer v. N. Antoine.
    "Where property has been attached and released on bond, and judgment has been rendered, the surety on the bond of release may show, on a rule to make him liable on tho bond, that the property attache*! did not belong to the original defendant at the date of the seizure.
    APPEAL from the Fifth Judicial District, parish of East Baton Rouge.

      Posey, J. A. S. Perron, for plaintiff and appellee. White & liobertson, for surety, appellant.
   Taliaferro, J.

The plaintiff, it seems, under a writ of attachment taken out against the defendant caused a seizure to be made on the eighteenth of September, 1867, of a stock of wines, liqu'ors and other personal properly, amounting-, by the sheriff’s inventory and appraisement, to $770 50.' Tlie defendant executed a bond of release according to tho provisions of article 259 of the Code of Practice, and gave, as sureties on tho bond, C. Quintero and James McVay, tho bond bearing date thirtieth September, 1867. ' On the eighteenth of July', 1868, the plaintiff obtained judgment on his claim against the defendant for $705 75, with interest and costs. On the twentieth of February, 1869, execution issued on this judgment, and was returned “no properly-found.” The plaintiff subsequently proceeded by rule against McVay, one of tho sureties, to show cause why he should not be condemned to pay the amount of the judgment which plaintiff had obtained against the defendant, Antoine.

Tho surety alleged for cause that the property attached byr plaintiff did not belong to tho defendant; on the contrary, that one Rickcrt., oí New Orleans, was the owner by a notarial act of sale dated the seventeenth of September, 1867, and who was the possessor thereof in good faith at the time of the seizure; that the plaintiff had knowledge of this act of salo, which, the respondent avers, was recorded on tho fifteenth of October, 1867.

On trial of tho rule, judgment was rendered against the surety-, and ho has appealed.

Before proceeding- to trial the defendant in rule moved to continue the case to procure witnesses by which he expected to prove that the ownership of tho property was not in the defendant at the time the seizure under the attachment was made. This motion was supported by tho usual affidavit. The court refused to grant the continuance, on tho ground that the testimony, if obtained, would be inadmissible, as the surety on tho bond could not be allowed to show that the property attached did not belong to the defendant. To this ruling of the court tho defendant in rule reserved a bill of exceptions, as he also did to a subsequent refusal by the court, on the same ground, to permit the defendant to introduce the notarial act of sale from Antoine to. Rickcrt.

We think there is error on the part cf tho court in declining to receive flic evidence tendered by the surety. In 2 R. R. page 512, Judge Morphy, as the organ of the court, said : “It has been frequently held, that tho giving of a bond is no waiver of a party’s right to show that the facts on which an attachment has been obtained aré unfounded, or that the property attached does not belong to the defendant.” This ■doctrine has been steadily maintained by subsequent decisions. 2 An. 154 ; 9 An. 3(31.

Wo think tho case should be remanded.

It is therefore ordered,- adjudged and decreed that tho judgment of the district court be annulled, avoided and- reversed. It is further ordered tliat this case be remanded, with instructions to the court to admit evidence on the part of the defendant in the rule, going to show, that the defendant in the original suit was not the owner of the property released by the bond at the time it ivas attached. It is-further ordered that the plaintiff and-appellee pay the costs of this appeal.


author: Howell, J. IIowell, J.

text:
    No. 1674.
    S. A. Block, wife of J. W. Demarest, and husband, v. David Melville.—D. Melville, administrator, etc.
    The marriage contract between A and B shows that B,^the intended wife, brought iu marriage, five thousand dollars, which A, the husband, received before the marriage. After the marriage A invested the amount in real estate in the name, and for the benefit, of the wife. The wife afterwards sold the property to D, a third party. After this she brought suit against the purchaser to annul the sale and recover back the property, on the ground that the sale was made to settle an old debt, which, it was alleged, her husband owed the purchaser before the marriage. Interrogatories were propounded by her in this suit to the purchaser, in answer to which he stated that the husband had admitted to him that at the time he received the money before the marriage, from the uncle of his intended wife, he was acting as the clerk of the purchaser, and that ho did not pay the same by investment in the property which he had purchased from her. It was held by the court, that these answers of the purchaser to the interrogatories, if admissible in evidence against the wife, only raise a presumption or suspicion of bad faith on the part of the intended husband. It was further held that this state of facts brought the wife within the rule, that she must show, dehors, the act of purchase that the property claimed by her and acquired during the existence of the community was purchased with her separate iunds.
    The recital in the contract of marriage that the wife brings into the marriage five thousand dollars, which sum is paid over to the intended husband in the presence of the notary and witnesses, is prima facie proof of the paraphernal character of the fund, and the burden falls on the purchaser of property from her, claimed to be bought with such funds that the property was actually bought with the funds furnished by the husband, and that said iunds , were furnished by the husband to the injury of the purchaser.
    APPEAL from TMrd District Court of Now Orleans. Fellowes, J. -

      Cooley & Phillips, for plaintiffs and appellants. Breaux & FennerT for defendants and appellees.
   Howell, J.

This case was before this court in 1855, and is reported-in 10 An. 784, where the main question involved was stated to be, whether the plaintiff, a married woman, has established a title to the property claimed by her as her paraphernal or separate property. It was further said: “her alleged separate interest in the property has been specially put at issue, and no testimonial proof has been offered to show that she ever had any paraphernal funds, with which to make the purchase.”

It is shown that the notary and witnesses before whom an ante-nuptial contract between the plaintiff and her husband was passed, were all dead at the date of the last trial in the court below, but the plaintiff, as a witness in her own behalf, testifies that the sum of money, ($5000) mentioned in said marriage contract as having been paid in the presence of the notary and witnesses, was actually so paid to her intended husband, and that after their marriage she examined the property .in controversy, and requested her husband to purchase it for lier, which he did. The purchases were made in her name, and the acts recite that they were made with her separate funds.

The evidence relied on to contradict this consists of answers of defendant to interrogatories, and parol and documentary proof as to the fortune of plaintiff’s father.

The answers of the defendant, even if admissible against the wife in this respect, at the most, only raise a presumption or suspicion, from alleged acknowledgments of the husband to the defendant, that the said husband as clerk of the defendant, had purloined the money, which was paid to him by the uncle of the intended wife before marriage. The statements are too vague as to facts and dates to fix upon the jjarties the crime implied. They do not make it appear that the husband was clerk of defendant prior to the marriage, while it does appear that a grand jury refused to find a true bill against him on defendant’s charge. They can have no legal weight in rebuttal of plaintiff’s proof. The evidence as to the small fortune of plaintiff’s father at his death, six or seven years prior to her marriage, does not disprove her possession of the money at the latter date.

The record brings the plaintiff within the rule, that a wife must show, dehors the act of purchase, that the property claimed by her and acquired during the existence of the community, was purchased with her separate funds. See succession of Wade, 21 An. 343, and authorities there cited.

It is unnecessary to pass on the bills of exception in the record.

As to the question of rents and revenues on the one part and the payments and'improvements on the other, the evidence does not enable us satisfactorily to adjust the respective rights of the litigants; and, although the controversy has existed since the fall of 1853, justice requires the cause to be remanded on this part of the dispute for better proof.

It is therefore ordered that the judgment appealed from bo reversed, and that the act of sale passed before George Rareshide, notary, on fifth May, 1853, by James W. Demarest and his wife, Susan A. Block, to the defendant, David Melville, of three certain lots of ground and improvements, described in the petition, be declared null, and the said property to belong to the said Mrs. Block, wife of J. W. Demarest, who is entitled to the possession thereof upon a settlement of the question of rents and revenues due her and the sums paid thereon by defendant as a debt resting on the same, and the taxes paid and improvements made by him, for which purpose the cause is hereby remanded to the lower court. Costs in both courts to bo paid by the defendant

On Application roe Reiieaiíino.

IIowell, J.

In refusing- a rehearing in this case, wo take occasion to so far modify that portion of our opinion which refers to.tlie answers of defendant to interrogatories, as to recognize tlioir admissibility, under the circumstances as hold by the judge a quo; but wo consider them insufficient to prove that tho money paid at tho execution oí the marriage contract belonged to tho defendant, Melville, or that tho husband, at that date, was indebted to the defendant as intimated.

The recital in tho act that the intended wife brings into marriage and settles upon herself, as paraphernal, the sum of five thousand dollars, which sum was paid over to the said intended husband in presence of the undersigned notary and witnesses,” is at least -prima facie proof of tho paraphernal character of the funds, (2 R. 478, Lambert v. His Creditors) and throws upon the defendant the burden of showing, in this case, not only that they were furnished by the intended husband, but that they were so furnished to the injury of tho defendant; for it is only upon tho concurrence of these two facts that the theory ot the defense can. be sustained. .

The fact of the-.payment in tho presence of tho notary and witnesses, is one to which the notary could certify, and is quite different, as evidence against third persons, from the statement that tho parties to the act acknowledged the payment.

Rehearing refused.