text:
    No. 186.
    J. B. Payne v. S. G. Ferguson, Curator.
    The acknowledgment in writing of service of citation of appeal by the attorneys of the* appellee, who is a nonresident, preves a legal service of citation of appeal.
    The allegation in tho petition of appeal that the appellant is a judgment creditor of tho succession to an amount above five hundred dollars, with a certified copy of the judgment annexed, is sufficient to establish an appealable interest from a judgment ordering the» sale of the property.
    APPEAL from the Fourteenth Judicial District Court, parish of Morehouse.

      James Bussey, Parish Judge. D. 0. Morgan, for plaintiff and appellant.

      Todd & Brigham, for defendant and appellee.
   Wyly, J.

The motion to dismiss this appeal for want of service off citation on the appellee or his advocate, according to article 582 C. P.,, and because the appellant does not show an appealable interest, can, not prevail.

The attorneys of record of the plaintiff, the appellee, a nonresident,, acknowledged in writing service of the citation .of appeal, and this. appeal is from the judgment they obtained in behalf of the plaintiff. We think the service acknowledged by the attorneys of record in this-case is the very thing that article 582 C. P. contemplates, in the ah■sence of the appellee. The duties of the advocate are presumed to ' ■continue till final judgment in tho court to which the appeal is taken.

The appellants, John Henry & Co., have annexed to their petition for an appeal a certified copy of the judgment for $800, which they •hold against the succession represented by the defendant. . They show .an appealable interest.

The plaintiff, an acknowledged and judgment creditor of the succession of James T. Payne, took a rule upon the defendant, representing ¡said succession, to compel the sale of the property thereof to pay his •claim, which amounted to upward of $20,000.

In answer to the rule, the curator averred that it would be injurious to creditors to sell the property at the time; that at the death of J. T. Payne the laborers on the plantations belonging to him were under ■contract for the year; that provisions, teams and farming implements •had boon obtained, and that under the circumstances he, the curator, with tho consent of the creditors, was carrying on said plantations for the use of tlie creditors; that the laborers have an interest in said ■crops, and it was impossible to place a proper value thereon; besides, tlie mules used on said plantations were needed to gather and prepare the crops for market. He therefore opposed the sale

The rule came on to trial, and on the fifteenth day of August, 1870, the court gave judgment for plaintiff, ordering the sale of all the prop■crty, and icqniring a supplemental inventory of certain other property ■omitted in the original inventory.

The appellants, John Henry & Co., obtained judgment against the ¡succession on the second of June, 1871, and on the thirteenth of the ¡same month obtained an order of devolutive appeal from the judgment ■on the rule obtained nearly twelve months previously. No fraud is •alleged, and the evidence on which the rule was made absolute audtbe •sale ordered, seems to be sufficient to justify the decree of the court.

We do not see that the plaintiff, an acknowledged creditor for a large sum, and holding a special mortgage on part of the property, was unreasonable or acted illegally in demanding the sale of the property to pay his claim. C. P. articles 990, 991,992. He had this right, and there is no ¿evidence that he ever renounced it. If he consented ¡to let the curator continue the cultivation of the crops after the death ■of J. T. Payne,’ that did not deprive him of the exercise of his legal rights. If the property has been sold under the order of the court, ■and the proceeds in the hands oí the curator represent its value tho •appellants, John Henry & Co., are not precluded from asserting their claim to the proceeds.

We see no reason to disturb the judgment.

It is therefore ordered that the judgment herein he affirmed. It is Luther ordered that appellants pay costs of appeal.


source: Caselaw Access Project

author: Ludeling, C. J.

license: Public Domain

text:
    No. 250.
    Succession of E. H. Dickson v. Succession of D. F. Dickson.
    In this case the evidence shows that E. H. Dickson, the administrator, sold a crop of cotton in 1859, belonging to the estate he represented, and placed the proceeds thereof in the hands of his commission merchants, Hawkins & Norwood, of New Orleans; that ho was an heir of the estate; that the other heirs were made aware of the fact, and made no objection thereto; that soon after the death of the administrator Hawkins & Norwood failod; that the heirs took no steps to get the proceeds of the sale of the cotton after the death of the administrator and before the failure of the commission merchants, Hawkins & Norwood.
    Held — That under this state of facts the heirs could not recover from the estate oí the administrator the amount of the proceeds of the sale of cotton belonging to the estate he represented which had been placed by him in the hands of the commission merchants, Hawkins & Norwood, who had subsequently failed, because the money was placed there with the knowledge of the heirs, who made no objection thereto, and because no misconduct on the part of the administrator was shown.
    APPEAL from the Parish Court of Bossier. Lewis, Parish Judge.

      Richard W. Turner, for plaintiff and appellant.

      Griffin & Snider, Tor defendant and appellee.
   Ludeling, C. J.

This suit was brought to recover $14,324 99, on tlio ground that during the administration of the succession of E. IT. Dickson, the administrator, D. P. Dickson, sold a crop of cotton belonging to the succession without authority of law, and that he left and placed the proceeds thereof in the hands of Hawkins & Norwood, ■commission merchants of New Orleans, until the said firm failed.

Tile succession of E. II. Dickson was opened in the spring of 1859, and David P. Dickson was appointed administrator thereof. The ¡property of the succession inventoried was appraised at $95,350 75. No cotton appears to have been inventoried. The evidence in the ■record shows that on the tentli of April, 1860, Hawkins & Norwood, •commission merchants of New Orleans, had to the credit of the estate •of E. H. Dickson, $1604 71, and on the fifth of June, 1860, the proceeds of cotton sold by J. P. Wyche & Co., amounting to $13,256 94, were transferred by them to Hawkins & Norwood, on the order of D. P. Dickson, administrator, and this sum was placed -to the credit of E. H. Dickson iu the books of the latter firm.

¡On the seventeenth of January, 1860, all the propoi'ty inventoried •was partitioned among the heirs, and in the month of August, 1861, David P. Dickson died, without having been discharged from the ••administration.

It is proved that there was no bank m Bossier parish receiving' ■deposits, and none in New Orleans which paid interest on deposits from 1859 to the period when D. P. Dickson died.

It does not clearly appear whether the cotton sold had been shipped "by E. H. Dickson or David P. Dickson, her administrator. But it does Appear that Hawkins & Norwood had been the factors of E. H. Dick-«on during her life; that she was in the habit of leaving her monej'' with them, and that the firm was in good standing. It further appears that D. P. Dickson was an heir of E. H. Dickson, and that his brothers,. M. II. Dickson and J. W. Dickson, the one of age and the other emancipated, were present in the parish of Bossier, and that when the partition of the property was made in January, 1860, the father and tutor of the children of a deceased daughter of Mrs. E. II. Dickson was. told by the administrator, D. P. Dickson, that there was a large amount of money belonging to the estate in the hands of Ilawkins & Norwood. This is. proved by the tutor, Simpson Newport, himself, and he further states that Ilawkins & Norwood told him they would pay him the portion belonging to his wards if he would get the proper-authority. Thus it appears that all the parties interested, personally or through their legal representatives, knew that he had this money intlie hands of Hawkins & Norwood, and they consented to let it remain, there, at least by their acquiescence, and after his death, in 1861, they neglected to attend to their interests or to have his succession opened until after the close of the late rebellion. Every administrator is. bound to take care of the property intrusted to him as a prudent person, and to render an account of the fruits and revenues of the property, and he is responsible for damages occasioned by his misconduct-C. 1147.

The record discloses no misconduct on the part of tho administrator-lie discharged all the debts of the succession, having paid the last ot them on the twenty-sixth of July, 1861, a few weeks before his death1

We think the evidence does not justify us in giving judgment on tho recon ven tional demand.

It is therefore ordered and adjudged that the judgment of the lower-court be affirmed, with costs of appeal.


text:
    No. 255.
    T. C. Kirk v. W. M. Folsom et al.
    If goods which have been shipxied in good order have been lost on the voyage it devolves on-the carrier lo show that the loss was occasioned by accidental and unconlrolable events, which, if'established, tho burden is then shifted on tho shipper, before ho can hold tho carrier liable, of showing that tho accident to tho boat by which tho goods were lost occurred through the fault of tho carrier.
    APPEAL from the Tenth Judicial District Court, parish of Caddo.

      Levisee, J. Land & Trnjlor, for plaintiff and appellee.

      Nutt dé Leonard, for defendants and appellants.
   Ludeling, C. J.

The plaintiff alleges that he shipped on the Mary Ellen, owned by defendants, certain goods which have not been delivered to him, and that the defendants owe him. the value of said goods. The defendants allege that they were prevented from delivering the goods by an accident, caused by no neglect or fault on their-part.

The goods having been shipped in good order aud lost, it devolved on the defendants to prove that the loss was occasioned by accidenta» and uncontrollable events.” C. C. 2754. This, we think, they have done in this case. They proved that the boat was seaworthy, and that she sunk through no fault of the defendants; and several experienced steamboatinen testified that “ it frequently happens that a steamboat will receive a jar, or strike something, not known at (.lie time, and in consi qucnce of which she will spring a butt and cause a leak, which will sink the boat while running, or even while at the landing, without there being any neglect *or carelessness on the part of the officers of the boat.” The evidence satisfies us that the sinking of the Mary Ellen was occasioned by accidental and uncontrollable events.” The accidental sinking of a boat is one of the perils of navigation excepted in the bill of lading; but if the sinking might have been avoided by skill and diligence, the carrier is liable. The burden of proof to establish want of skill or diligence in the officers of the boat, is on the plaintiff, who asserts it. 10 An. 413, Price, Frost & Co. v. Ship Uriel, Master and Owners; 12 How. 270, Clark et al. v. Barnwell et al.

The plaintiff has failed to prove any want of skill or fault on the part of defendants.

It is therefore ordered, and adjudged that the judgment of the court a qua be avoided and reversed, and that there be judgment in favor of defendants, rejecting plaintiff’s demand, with costs in both courts.

Rehearing refused.


author: Howell, J.

text:
    No. 217.
    R. A. Phelps, Sheriff, v. J. C. F. Taylor et al.
    The possession of the lessee to the premises leased, is the possession of the lessor; the lessee can not therefore, during the time of the lease, contest the title of the lessor.
    A judgment that has been rendered against a party who has not been cited, is void and will be reversed on appeal.
    APPEAL from the Fourteenth Judicial District Court, parish of More-house.

      Hay, J. -Z>. 0. Morgan, for plaintiff and appellee.

      Tocld & Brigham, for defendants and appellants.
   Howell, J.

Plaintiff, in his official capacity, sues upon two notes given on third January, 1870, by the defendants in favor of D. B. Douglas, sheriff, or his successors, and due first January, 1871, for the rent, respectively, of two plantations during 1870. The movables on each plantation were provisionally seized. One of the defendants, Taylor, the lessor, sets up an anterior title from one Haddock to one plantation and a prior lease of the other from one Mrs. Cleveland, and alleges that the sheriff illegally seized both plantations, and not being able to resist him, he consented to make the lease and give the notes sued on, and he asked that his vendor and lessor be cited in warranty, and the plaintiff in said seizure be cited to answer bis demand for damages. The other defendant, Todd, was not cited and made no appearance.

Mrs. M. C. Cleveland presented a petition of intervention, claiming to be the owner of one of the plantations by purchase free of incumbrance, at a probate sale on first February, 1860, of the property ot J. W. Cleveland, deceased, as per deed from W. C. Tait, administrator, which property she alleges was illegally seized by the sheriff in the suit of D. Pipes v. W. C. Tait, administrator, and W. C. Tait, and under said seizure claimed and exereise'd the right to have the same for the year 1870, and took one of the notes sued on, to which she is entitled, and she prayed that the plaintiff and defendants be •cited and she have judgment on said note against the makers. This Xietition seems to have been filed by the clerk, and afterwards counsel moved that the intervention be allowed and served, which was refused ■on two grounds set out in the bill of excex>tions taken to the refusal, to wit: Because a suit was pending in said court for the same cause of action : Because intervenor claims the nullity of the lease and at the same time demands the fruits thereof. A judgment was rendered against the two defendants in solido, and they took a devolutive appeal. Mrs. Cleveland filed a bond lor a devolutive appeal, but we find no order of appeal asked for or granted on her behalf, without which there can bo no appeal.

We have stated the jdeadings at unusual length, because of their peculiar nature, and to make our ruling the "better understood.

The defendant Taylor took two bills of exception, one to the sustaining of xdaintiff’s objection to having the warrantors and the x>lain-tiff in the execution cited, and the other to the refusal to allow him to prove by the sheriff’s return that said officer was without authority to make the lease sued on. The action of the judge was based on the grounds that the xdeadings did not allow such parties to be brought in ■and such proof adduced.

The judge did not err. A lessee can not contest the title of his lessor during the time of his enjoyment of the leased premises. The possession of tho lessee is the lessor’s, whose title the former can not question. 10 La. 362; 2 R. 461; 6 R. 139; 10 An. 622. The lessee in this case did not offer to xu'ove that he was disturbed in his possession during the year for which rent is claimed as evidenced by his notes sued on. The judgment against him was correctly rendered, but that against Todd, who was not cited and made no appearance, is erroneous. This the plaintiff admits.

It is therefore ordered that the judgment appealed from be reversed -as to R. B. Todd, and affirmed in other respects/ Costs of appeal to be paid by defendant, Taylor.


author: Wyly, J.

text:
    No. 195.
    Byrne, Vance & Co. v. Isaiah Garrett, Executor.
    A judgment is prescribed within ten years from its rendition nndor the act of 1853. The fact that a case was several years pending on appeal does not prevent the plaintiff irom reviving the judgment, unless revived in the manner indicated in the statute, it may prescribe ponding the appeal, in case ten years elapses from the date of the signing óf the judgment. If the judgment be prescribed for want of revival within ten years, the surety on the appeal bond is discharged. Where the debt intended to be secured by the appeal bond is discharged by prescription, the judgment debtor, the principal obligor, is released. Therefore the surety on the appeal bond of that obligor is also discharged.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita.

      Bay, J. Moi'rison & Farmer, for plaintiffs and appellants.

      Franldin Garrett, for defendant and appellee.
   Wyly, J.

This is a suit against the surety on an appeal bond.

Tiie defense is the judgment, in which the bond was given in order to prosecute tiie appeal, has prescribed by the act of 1853, more than ten years having elapsed from its rendition in the district court before this suit was instituted, without an attempt to revive it under said act.

On this exception the suit was dismissed, and the plaintiffs have appealed.

Whether the prescription announced in the act of 1853 began from the date of the judgment in the district court or from the time it was affirmed on appeal, is no louger an open question. That act provides that: “Hereafter all judgments for money, whether rendered within or without the State, shall be prescribed by the lapse of ten years from the rendition of the judgment.”

“Rendition of the judgment,” in the act, means when it was completed by the signing thereof by the judge. 2L An. 295; 23 An. J76.

The object of the bond was to secure the execution of the judgment if the appellate court should render judgment against the appellants.

The debt intended to be secured by the bond lias been discharged by prescription; the defendant in that judgment no longer owes the plaintiffs therein; there is no longeva juridical necessity compelling the judgment debtor, the principal obligor, to pay the debt evidenced by the judgment. If the principal obligor he discharged, the surety of that obligor is also discharged.

Tiie judgment was tiie highest evidence of the debt which tiie principal obligor in this case, W. S. Grayson, owed to .the plaintiffs. After the rendition of that judgment he could not set up the same cause of action in another suit against tiie said W. S. Grayson. It stood as the most solemn evidence of the obligation subsisting between the parties. The moment this judgment was discharged in any of the modes provided by law, W. S. Grayson, tiie defendant therein, was released lrom his legal obligation to pay the plaintiffs. The discharge by prescription is just as effectual as by payment, compensation, voluntary remission, or any of the modes by which legal obligations become extinguished. There is no doubt, then, that W. S. Grayson was released by the prescription-of the judgment. It follows, as a necessary consequence, that the surety on his judicial bond of appeal, whose succession is represented by the defendant herein, is also discharged. The defense of prescription is an effectual bar to recovery in this case.

Tile fact that the case was several years pending on appeal did not prevent the plaintiffs from reviving the judgment. The act of 1853, fixing tile prescriptions of judgments at ten years from their rendition, also provides the only means by which it can be averted. If ’the plaintiffs have neglected to apply the' means provided in that act to arrest prescription the fault is attributable to themselves. A mortgage may perempt pending the litigation to enforce it, if not roinscribed. In like manner, under the statute referred to, a judgment may be prescribed pending the prosecution of- the appeal, if not averted by revival within ten years from, its rendition.

Judgment affirmed.


text:
    No. 208.
    S. Girod, Testamentary Executor, v. Martha Vines.
    In an action to rescind a sal© of immovable property on tlio ground of lesion beyond moiety, parol evidence is inadmissible to prove that there was another consideration which entered into the contract besides that expressed in the deed. In such action, parol evidence is only admissible to show the value of the property at the date of the sale.
    APPEAL from the Fourteenth Judicial District Court, parish of Richland.

      Bay, J. Todd & Potts, for plaintiff and appellant.

      Eiohardson <& McEnery, for defendant and appellee.
   This case was tried by a jury in the court below.

Howell, J.

The plaintiff, as executor of Thomas Williams, deceased, instituted this action to rescind a sale of immovable property made by Williams to the defendant on the twenty-third December, 1870, on the ground of lesion beyond moiety. The defense is that, for several months previous to the vendor’s death lie was infirm and in declining health; that plaintiff gave Mm constant care and attention, and nursed him at his urgent request; and that her services in that capacity were well worth $500, which sum, in connection with and in addition to the $100 expressed in the act of sale, was the cause and consideration of the property sold to her. She, therefore, alleges that it was not error, imposition, weakness or improvidence on the part of the vendor that induced him to make the sale, but that a full, just and legal equivalent was given by her for the land in question.

A verdict and judgment were rendered in favor of defendant, and plaintiff appealed.

On the trial plaintiff reserved bills of exceptions to' the admission bof parol proof of any price or consideration not expressed in .the act of sale.

Under article 2276,-R. C. C., the evidence objected to was inadmissible, as it was intended to prove something beyond what is contained in the act. “When parties have deliberately put their engagements into writing, it is conclusively presumed that the whole engagement- of the parties and the extent and manner of their undertaking was reduced to writing; and all oral testimony of a previous colloquium between the parties, or of conversations or declarations, at the time or afterwards, is rejected.” Green, on Ev., vol. 1, art. 275. “ When a contract has been reduced into writing, nothing which is not found in the writing can bo considered as part of the contract.” Starlde, vol. 2, p. 550.

This law of evidence applies to the instrument attacked in-this suit. In it the parties agreed and stipulated that the price of the land was §100, and they can not show by parol evidence any other price. Had they intended that the estimated value of the personal services of the vendee were a part of the price, in addition to the sum paid, they should have so expressed the fact and the amount in the act. The allegation that the vendor “was aggrieved by the said sale for more than half the value of said land,” does not bring the case within the rule invoked by defendant, which authorizes parol proof of error or fraud to annul written contracts, and the plaintiff has not opened the •door by adducing any proof of such error or fraud, but simply as to the value of the property at the date of the sale. The injury complained of is in the price agreed on between the parties, as evidenced by their written contract, which, by the rules of evidence, they can not contradict by parol proof. When the disparity in the price paid and the value of the property is shown, the law declares the injury, which authorizes the rescission of the sale. The defendant does not offer to prove that there was error in stating the price to be $100 when it should be $600, as was actually agreed on, but .another and further consideration, to wit: her services, which, she alleges, are worth §500.

Upon the question of value, the answer virtually admits it to be $600 and the testimony of several witnesses fixes it at a larger sum.

It is therefore ordered that the verdict of the jury and the judgment appealed from be reversed, and that there be judgment in favor -of plaintiff as testamentary executor of Thomas Williams, deceased, rescinding the sale of land described in the petition made by said Williams to the defendant on twenty-third December, 1870, upon the return of the price to said defendant, and thereupon said land be the property of the succession of said Williams; defendant to pay costs in both courts.

Rehearing refused.


author: Wixt, J.

text:
    No. 246.
    F. C. Peck et al. v. C. N. Gillis and Husband.
    A suit for separation of property by the wife implies a relinquishment of the community. When, therefore, as in this case, the wife has obtained a judgment separating her in property from her husband, and the husband retains certain lands in his possession and under his control during the time of the execution of the judgment, -which are not claimed or sought to bo placed in the community, but are treated as the separate property of the husband, she will be held and treated as ha-ving relinquished her community rights therein, and her heirs can not afterward maintain an action against the vendee of the husband l'or one-half of the land conveyed by him on the ground that it was community property.
    APPEAL from tbe Twelfth Judicial District Court, parish of Catahoula.

      Crawford, J. Garrett & Garrett and JB. W. JBivhardson, for plaintiffs and appellants.

      Mayo <& Spencer, for defendant and appellee.
   Wixt, J.

In 1841, John H. Lovelace married the mother of the plaintiffs, Patience J. Lovelace, owning at the time the land involved in this suit.

In 1848 this land was sold under a judgment against him, and was bought by Truman Phelps, and on the fifth day of April, 1850, it was sold by Phelps to the former owner, John H. Lovelace. This occurred during the marriage. In November, 1850, Patience Lovelace instituted suit against her husband for separation of property, and for judgment for $401)0 paraphernal funds. On the fourteenth day of June, 1851, judgment was rendered in her favor for $500, decreeing a dissolution of the community and authorizing her to administer her own property as a femme sole. This judgment was executed by payment, evidenced by notarial act, in October, 1851. In 1853 Mrs. Lovelace died. In 1866 the land was sold by John II. Lovelace to the husband of the defendant, by whom it was conveyed to her in 1868.

This suit was filed on the eighteenth day of February, 1871, by the heirs of Mrs. Lovelace, to recover the undivided half of the land described in the petition, and the value of the rents thereof for the years 1868, 1869, 1870 and 1871, on the ground that said property, so acquired in the transfer from Phelps, was community propertj1-, and at the death of their mother, in 1863, the ownership of said undivided half vested in them as her heirs.

The defense is:

First — That the sale to Phelps by the sheriff was so irregular that it operated no divestiture of title, which remained notwithstanding in John II. Lovelace, who owned the property long before the marriage with the mother of the plaintiffs; that the conveyance from Phelps to Lovelace was without warranty — was merely a release of a right which was not valid, for the purpose of securing peace and avoiding litigation, and was not such implied acknowledgment of the title in Phelps as to preclude him, Lovelace, from disputing it.

Second — Conceding the validity of Phelps’ title and the acquisition-of the property by the community in April, 1850, still the plaintiffs-can not recover, for the reason that their mother, under whom they claim, sued for and obtained judgment dissolving tlie community, and having failed to accept, is legally and conclusively presumed to have renounced it.

Tlie court gave judgment rejecting the demand of the plaintiffs, and (hey have appealed.

We entirely concur in the conclusion of the district judge.

The community of acquets and gains was dissolved in 1851, and the judgment ior the amount of her paraphernal funds has been duly executed. A suit for separation of property implies a relinquishment of the community. The judgment discharges the wife from its liabilities upon the implied relinquishment of her residuary right in the assets thereof. She can not have the advantages of the gains and escape the encumbrances imposed upon partners in community. It is true that article 2430 of the Revised Civil Code declares that “the wife who has obtained the separation of property, may, nevertheless,, accept the partnership or community of gains, which has existed till that time, if it be her interest to do so, and upon her contributing, in case of acceptance, to pay the common debts.’’ This is a right given to the wife, which she may exercise after her separation of property, piovided it bo to her interest to do so, and upon her contributing, in case of acceptance, funds to pay the common debts. By this article she is only restored to participation in the common property existing at the time of the separation of property, but not to the gains subsequently acquired by the husband during the marriage. It is a conditional restoration, based upon the consent of the wife to pay part of the debts, in order to take part of the property belonging to the community at the time of the separation of property.

It is not a right which the wife is presumed to accept. Having1 sought to escape the liabilities of the community, the presumption is. the incumbrances were greater than the value of the common property. Nevertheless, the article referred to gives the wife the right, if it. be to her interest, to accept the community of gains upon contributing to pay the common debts.

This right has never been accepted in the case before us. The condition upon which the partial restoration contemplated by article 2430' should take place, has never been consummated. The mother of the plaintiffs never consented to pay part of the community debts, after the separation of property, in order to participate in its gains existing at the time of the dissolution thereof.

We conclude there was no restoration of the gains of the community under article 2430, and that the heirs of Mrs. Lovelace have failed to establish their title to the property in dispute, and their petitory action must fail.

Judgment affirmed.


author: Taliaferro, J.

text:
    No. 244.
    John Ray v. J. P. Tatum, Administrator.
    If the administrator lias filed a classification of the debts due by the succession, and has obtained an order of the parish court homologating the same, then a creditor whose account has been thus homologated and ordered to be paid out of the funds in his hands, may, on his refusal, cause execution to issue from the parish court, notwithstanding the amount is above five hundred dollars or above the ordinary jurisdiction of the parish court, the jurisdiction of the parish court being unlimited in purely probate matters.
    APPEAL from the Parish Court, parish of Jackson. Nat. Hives, Parish Judge.

      James N. Ilamlett, for plaintiff and appellee.

      Kidd (& Smith, for defendant and appellant.
   Taliaferro, J.

The defendant, in his capacity of administrator, having, at the instance of the plaintiff, a creditor of the succession of Sherrand, filed, in obedience to an order of the parish court, a classification and order of payments of the debts of the succession, the plaintiff was placed on the tableau as a creditor to the amount of $985 90. This classification was duly homologated by the parish court and an order rendered by it for the payment of the creditors accordingly. After the lapse of more than ten days from the rendition of the judgment, and the administrator having failed to make payments jn coniormity therewith, the plaintiff took a rule against the administrator to show cause why execution should not issue against him according to law ior the said sum of $985 90, witli interests and costs. The administrator, in answer to the rule, excepted to the jurisdiction of the parish court, on the ground that the amount sought to bo enforced exceeds the sum of $500. The exception was overruled and the rule made absolute. From this judgment of the parish court the defendant appealed.

■ The proceeding is not a suit for or against a succession. In accord-■anee with the administrator’s own exhibit of the debts of the estate and with the order he proposed to pay them, a judgment was rendered without opposition, homologating the tableau and ordering the payment of the creditors whose debts were acknowledged and placed upon it. Article 983 provides that: “ All debts in money which are due from successions administered by curators appointed bjr courts and by testamentary executors shall be liquidated, and their payment enforced by the courts of probates of the place where the succession was opened.” The administrator having failed to pay over the money in his hands to the creditor decreed to be entitled to receive it, the creditor is authorized by articles 993 and 1057 to take out execution against him and cause his property to be seized and sold to a sufficient amount to pay the debt. We find nothing in the law to prevent a creditor from enforcing, in this manner, payment of a debt ascertained by judgment against a succession, whore the administrator, having-funds, refuses to pay it, especially when he is ordered by the proper court to make the payment.

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


author: W yly, J.

text:
    No. 203.
    C. H. Morrison v. A. F. Flournoy & Co.
    An attorney at law wlio has "been employed is under obligation to give advice when called upon by his client, and he is entitled to a- just compensation therefor.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita.

      Fay, J. Morrison & Farmer, for plaintiff and. appellant.

      Fichardson & McFnery, for defendants and appellees.
   W yly, J.

The plaintiff sued the defendants on an account of $860 for professional services, as follows:

Fee for defending suit of J. H. Brown v. A. F. Flournoy & Co. on a note for $752 25 and interest......................$100 00

Also, suit of J. A. Coon, administrator, v. A. F. Flournoy & Co. on note for $1050 and interest...................... 100 00

Fee for adjusting boundary line between Flournoy and Noble. 150 00

Fee for defending suit, R. W. & R. Richardson v. J. II. Brown & Co.; Flournoy & Co., garnishees.................... 10 00

Fee for advice and assistance in arranging and compromising ten to fifteen thousand dollars’ worth of debts due by the Flournoys in New York and Philadelphia.............. 50u 0;

$860 00

Tlie defendants denied generally the allegations of the plaintiff. ■iey admitted having employed the plaintiff in the suits of J. II. Urown & Co. against them, and J. A. Coon, administrator, against them, but aver that the former was compromised by their paying $500; and in the latter they were damaged by following the advice of the plaintiff in going to trial, in whiqh judgment was given against them for $600, whereas they could have compromised it at $200. They specially deny having employed the plaintiff in the compromise and settlement of the debts of A. F. Flournoy & Co., or that he in any manner assisted therein; and they deny that he was employed to adjust the boundary line between themselves and John H. Noble, and aver that he was the agent or attorney of Mrs. Copley, from whom they acquired the property contiguous to said Noble, and that it was his duty, as attorney of their vendor, to adjust said boundary.

The court gave judgment, on the verdict of the jury, for $272 50 in favor of the plaintiff, and he has appealed.

The case presents mainly questions of fact, and the evidence is extremely conflicting. From the evidence, we are satisfied that the plaintiff was consulted in regard to the compromise which was subsequently accomplished by the defendants of their Northern debts. Whether they expected him to charge for advice or not, is immaterial. It is the business of an attorney to give advice when called upon, and he has the right to a just compensation therefor. From the evidence we estimate the value of this item of the account at $250.

From the evidence we estimate the value of the services mentioned in the other items of the account as follows: For defending the suit, Brown & Co. v. Flournoy & Co., $75; Coon, administrator, v Flournoy & Co., fee, $100; R. W. & R. Richardson v. Flournoy & Co., fee, $10; services in arranging the boundary between Flournoy & Co. and Noble, $50. The account of plaintiff is satisfactorily established to the amount of $485 in the aggregate.

In reference to the damage complained of in the conduct of the defense of Coon v. Flournoy & Co., we will say the charge is not supported by the evidence; and in reference to the services in the-adjustment of the boundary with Noble, the defendants have not shown-an obligation on the part of the plaintiff to serve them without the-right to exact remuneration for his labor.

It is therefore ordered that the judgment herein be increased to $485, and as thus amended let it be affirmed, appellees paying cost& of appeal.

Rehearing refused.


author: Lüdeling, C. J.

text:
    No. 220.
    John Watt & Co. v. A. R. Hendry.
    Citation of renewal of a. judgment must issue from the court that rendered tlio judgment,, whether the defendant resides in the parish where it was rendered or he a resident of some other parish of the State. C. P. 162. An exception that the defendant resides in. another parish is therefore unavailing. Such citation may, however, issue in the namer* of or on the application of any person having an interest in the judgment.
    Tho giving of a twelve months’ bond for tho price of property bid in under execution docs'* not extinguish the debt nor noyate the judgment. If tho bond be not paid, tho prescription applicable to judgments can alone be invoked by the judgment debtor.
    APPEAL from the Twelfth Judicial District Court, parisli.of Catahoula.

      Crawford, J. B. G. Smith, for plaintiffs and appellees..

      B. W. Bichardson and O. Mayo, for defendant and appellant.
   Lüdeling, C. J.

This is an action to revive a judgment. The-defendant filed an exception to the proceedings on the grounds-that liéis a resident of the parisli of Franklin, -and he can not be sued in- the-parish of Catahoula, and that the parties plaintiffs in' the suit are not the real plaintiffs, having sold their judgment to one Newman, and that Newman can not prosecute this suit in the name of John Watt &. Co., a firm which has been long dissolved.

There is nothing in the record to show whether or not the exception was tried. But there is nothing serious in it. The act of 1853 provides-that “any party interested in any judgment may have the same revived at any time before it is prescribed, by having a citation issued according to law to tho defendant or his representative, from the court wliicht rendered the judgment.” This is one of the exceptions expressly provided by law to the general rule that the defendant must be- suedi before Ms own judge. Ray’s R. S. section 2813; C. P. article 162.

The defendant, in his answer, alleged that the judgment was extin - guished, because a twelve months’ bond had been given in a proceeding under the judgment, that the twelve months’ bond was prescribed by the lapse of five years, and that therefore the judgment itself was prescribed. The twelve months’ bond did not novate the judgment, and whether the bond given for the price of property sold under seizure be extinguished by prescription or not, does not affect the judgment. The judgment is not prescribed, nor has the bond been paid.

It is therefore ordered and adjudged that the judgment of tho district court be affirmed, with costs of appeal.

Mr. Justice Taliaferro recused.


text:
    No. 210.
    State of Louisiana ex rel. James Graham, State Auditor, and A. Dubuclet, State Treasurer, v. The Judge of the Eighth District Court of the Parish of Orleans.
    The right of appeal is secured, not only to qll parties in the suit, hut to third persons when they are aggrieved hy the judgment, if the amount involved is sufficient to give the appellate court jurisdiction. C. P. 571. "When, therefore, tho State Auditor and State Treasurer are made parties defendants in a suit, to compel them to register bonds of the State which have been authorized hy law in favor of .a railroad company, which registry by these officers is required by law as a prerequisite to their delivery to tbe company, and the judgment of tho court requires them to make such a registry, then and in such case they or either of them have the right of appeal from such judgment secured to them, if the bonds sought to he registered aro sufficient in amount to give the appellate court jurisdiction, and a mandamus will issuo, on application of the Auditor and Treasurer or- . eitkor of thorn, from tho Supremo Court, directing the judge a quo to grant the appeal.
    APPEAL from the Eighth District Court, parish of Orleans.

      H. O. Dibble, Judge, respondent.

      John Day, attorney for relators.

      llornor & Benedict, tor Auditor.
   Ludeling, C. J.

The New Orleans, Mobile and Texas Railroad Company instituted proceedings against the Auditor and Treasurer of the State of Louisiana to compel them to register bonds of tbe State-in favor of tbe said company to the amount of $750,000, in accordance with the provisions of the act No. 31 of the G-eneral Assembly of 1870. Alter hearing, the judge made the mandamus peremptory, commanding- said officers to perform the acts required of them. They prayed for an appeal, which was refused by the judge. Thereupon a writ of mandamus was applied for to compel the judge to grant the appeal.

In his answer the judge assigns two reasons for his refusal:

First — Because the relators failed and refused to make proof in the lower court that they have an appealable interest.

Second — Because the Auditor and Treasurer “have no interest which would authorize them to prosecute an appeal before this honorable court, and they have no constitutional or legal right to prosecute such nn appeal in tho name of the State.”

I. The object of the proceeding against the Auditor and Treasurer is to make them register bonds of the State of Louisiana in favor of the New Orleans, Mobile and Texas Eailroad Company for $750,090, so that said bonds might be delivered to them, if judgment had been rendered against the railroad company, would it have had the right of appeal under the allegations in the petition? We can not conceive that there could be a doubt of this. The matter in dispute is the issuing of bonds to the amount of $750,000; the registration thereof by the Auditor and Treasurer being acts which, under the law of 1870, •should precede their delivery to the railroad company.

II. The Auditor and Treasurer are the defendants in the suit. It would be most strange if they could not appeal from a judgment against them, when the matter in dispute exceeds five hundred dollars.

The cases relied on by the judge a quo, reported in 9 An. 400, and 12 An. 498, are totally inapplicable to this case. Article 564, C. P., «declares that an appeal is the act by which one of the parties to a suit •has recourse to a superior tribunal, in order to have a judgment of an inferior court corrected.” This right is secured not only to all who are parties to the suit, but to third persons when they are aggrieved by the judgment. Art. 571 C. P.

We consider the answer of the judge a quo insufficient to justify his refusal of the appeal.

It is therefore ordered that the Judge of the Eighth District Court bf the parish of Orleans do grant a suspensive appeal as prayed for, according to law.


author: Howe, J.

text:
    No. 231.
    State v. R. W. Snow and John J. Hope.
    'The omission of tlie district attorney to sign the finding of the grand jury, will nob avail tlie sureties on the bond given by the accused before the indictment was found. 21 An. 600. 'The question as to how the amount came to be written in the body of a bond given for the release of a criminal can not be examined in a suit against the sureties for its forfeiture.
    APPEAL from the Eourteeuth Judicial District Court, parish of Ouachita. TF. J. Q. JBalcer, Judge, ad hoe.

    IF. TF. Farmer, District Attorney, Fourteenth Judicial District, for the State.

      J. & L. JD. MeFnnj and Stubbs & Cobb, for defendants and appellants.
   Howe, J.

This is an appeal from a judgment of forfeiture of a bail bond for $1000, given by defendant, Snow, as principal, and the defendant, Hope, as surety.

First — The appellants urge that the indictment found by the grand jury against Snow was not signed by the district attorney. The finding was signed by the foreman of the grand jury. Admitting that the ■omission of the usual signature of the district attorney at the foot of the indictment was an irregularity (and as to this we express no opinion), we do not perceive liow it can avail the appellants. They gave the bond about a year before the indictment was found, conditioned that Snow would “ appear at the next term of the court and from term to term, and there remain until discharged in due course of law, and not depart thence without leave oí the court.” Instead of appearing and urging the alleged irregularity of the indictment, Snow van away and Hope failed to produce him when called for. The condition of the bond is clearly broken. State v. Ainslie, 13 An. 293; State v. Loeb, 21 An. 600.

Second — The appellants complain that on proceeding to perfect the bond the State offered and put in evidence without proof of signature a letter of Hope dated February 15, 1868, authorizing the sheriff to fill up with the amount of the bail a blank bond which Hope had left with him. We are unable to perceive the force of this objection. The-letter was of no importance either for or against appellants. It bore date some time prior to the filing of the bond. There is no pretense-that the signature to the bond is not genuine, that the amount is incorrect or the recitals insufficient. It was offered by the State as a part of the record, and it is rather late now to inquire into the manner in which the amount came to be written in the body of the instrument, prior to its being filed.

J udgment affirmed.


author: Wylt, J.

text:
    No. 277.
    E. E. Marion v. B. M. Johnson, 8228. E. E. Marion v. B. M. Johnson, 8231.
    A party who makes a wall that has heen constructed by the adjoining proprietor, one in common, incurs the obligation to pay the party who erected it one-half of the original cost thereof. This obligation to pay one-half its costs is not affected by the fact that the* party who makes it one in common, is the owner of more than one-half of the soil on-which it is built. 14 An. 338; 20 An. 554; 22 An. 114.
    A party who, by his own act has made a wall that has heen built between himself and his* neighbor, one in common, can not thereafter put any additional wall, or put an iron iront to his building which extends beyond the centre of such wall. Any attempt to do so will' be restrained by an injunction, and the party thus attempting will he considered a trespasser, and will he condemned to pay-the damages caused to the wall in common, with* vindictive damages for the tort. ZR. C. C. 676.
    APPEAL from the Tenth Judicial District Court, parish of Caddo.

      Levisee, J. JSgan, Williamson & Wise, for plaintiff and appellant.,

      Zand & Taijlor, for defendant and appellee.
   Wylt, J.

These two suits were tried together.

In the first, the plaintiff sues to recover half the value of the partition wall which the defendant is making — a wall in common.

In the other, she enjoins the defendant from removing bricks beyond the middle of said wall, for the purpose of inserting his iron-front, averring that he has removed bricks for a considerable space to-the injury of her building, called the Phcenix House, thereby exposing; the inner wall and plastering of said house; and she claims $1500 damages for the said trespass and injury.

In the first case, the court gave judgment for the plaintiff for $100; and in the second, dismissed her demand and dissolved the injunction. From these judgments the plaintiff appeals.

The questions presented in these cases are neither now nor difficult of solution. Under the settled jurisprudence of this State, “a party who exercises his right of making a wall, one in common, can not resist the demand of his neighbor who erected the same, for one-half of its value, although he, may have a claim to the soil upon which more than one-half the wall was built.” Davis v. Grailhe, 14 An. 338 The facts of the case before us are almost identical with those iu the case referred to, and ior the reasons therein expressed we think this case ¡should have the same conclusion. It is also well settled that the party building a wall which has become a wall in common, may remover from the other one-half the original cost of erecting it. 20 An. 554; 22 An. 114; and authorities there cited.

From the evidence we fix the cost of the wall at one thousand dollars. For one-half thereof, to wit, five hundred [dollars, the plaintiff should have judgment.

In reference to the second suit, we will remark that the defendant having made the wall, one in common, had no right to put his iron front beyond the centre thereof; and that the removing of the brick beyond that point, so as to expose the inner wall of the building of the plaintiff was a trespass for which she ought to recover actual and vindictive damages. The actual damages we fix at one hundred and fifty dollars, and the vindictive damages at three hundred and fifty ■dollars. There is no force in the plea of compensation. The plaintiff is not the debtor of the defendant for the soil occupied by the wall beyond one-half of its width. It stiff remains the property of the latter. The construction of a work on the soil of another imposes no ■obligation on the builder thereof to pay for the land. The remedy of the owner in such case is provided by article 670, Revised Civil Code. This remedy tlie defendant should have sought, if desirable, before making the waff, a wall in common. Having claimed the right ac~ ¡corded to him by article 676, he can not escape the conditions accompanying’ the exercise thereof.

It is therefore ordered that the judgments in these cases be reversed, ¡and it is now ordered that the plaintiff recover judgment in the first •case, to wit, No. 8228, for five hundred dollars, and all costs; and in the other case, to wit, No. 8231, it is ordered that she have judgment against the defendants in solido, for five hundred dollars, and also perpetuating the injunction herein, and requiring the defendants' to remove all the constructions placed by them beyond the centre of tbe -common waff, and also pay costs of both courts.


text:
    No. 192.
    Mrs. Sarah A. Bell v. Francke & Danneel. Same v. D. B. Douglass, Sheriff, et als.
    An injunction will not lie to restrain tlio execution of a judgment on the ground that it contains illegalities which affect tlio validity of the judgment itself.
    .Per curiam. — If it ho conceded that the wife, separated in property from her husband, can attack a judgment that has been confessed by her for a debt which sho has contracted with the authority and sanction of the judge under the act of 1855, then, and in such case, she must i>roceod by direct action to annul it.
    APPEAL from the Fourteenth Judicial District Court, parish of Morehouse. W. N. Compton, attorney at law, Judge, act hoe.

      JD. ■O. Morgan aud C. M. Morrison, for plaintiffs and appellants.

      Todd & Brigham, and Newton <& Mall, for defendants and appellees.
   Howell, J.

Executions having issued against plaintiff, on judgments confessed by her in suits of Francke & Danneel v. S. A. Bell, and B. Silbernagel & Co. v. S. A. Bell, she obtained an injunction against both on the grounds that the debts for which the judgments were confessed were the debts of her husband, and the confessions were obtained from her through fraud and under marital influence. In the petition for injunction she asked only that the injunction be perpetuated, and that an act of mortgage in favor of Francke & Danneel be ;annullel and cancelled. Sho subsequently brought an action to annul the judgment in favor of Francke & Danneel on the same grounds, .and these two suits were tried together below and are now before us in one transcript. The judge a quo dissolved the injunction against Francke & Danneel’s judgment and perpetuated it in part against the judgment of B. Silbernagel & Co.

The defendants in the injunction suits severally moved to dissolve on the ground, among others, that if the facts alleged be true, plaintiff is only entitled to relief from the judgments confessed and enjoined by her in an action of nullity or on appeal.

As to the defendants, B. Silbernagel & Co., this position must be maintained. If a judgment be so illegal as to be a nullity, resort should be had to an action of nullity and not an injunction. 16 L. 288. While a judgment exists it is a warrant for the execution, which can not be restrained for illegalities inherent in the judgment itself. Plaintiff does not ask that the judgment enjoined be annulled. Her injunction therefore, should be dissolved.

As to the other defendants, Francke & Danneel, there was a demand to annul their judgment, which appears to have been considered in connection with the injunction suit, and conceding that the plaintiff, separated in property, can attack a judgment confessed by her, and .an act of mortgage made in conformity with the act of 1855, and by virtue of a certificate of a judge, the evidence of the defendants, invoked by plaintiff, satisfies us that the debt secured by the mortgage and for which she confessed judgment with stay of execution, was one for which she was held liable.

It is therefore ordered that so much of the judgment in the case of S. A. Bell v. D. B. Douglass, sheriff, et al., rendered on thirty-first-May, 1871, as perpetuates in part the injunction herein of the judgment in favor of B. Silhernagel & Co. be reversed, and that said injunction be dissolved, -with twenty per cent, damages on the amount injoined, with costs of both courts in favor of said B. Silhernagel & Co., and that in other respects said judgment and the one of same date in the case of S. A. Bell v. Tranche & Danneel be affirmed with costs,


text:
    No. 228.
    State v. Friday Riley et al.
    The Parish Court has jurisdiction to try criminal cases "when tho penalty is not necessarily imprisonment at hard, labor or death, if the accused shall have -waived trial by jury. Constitution, art. 87.
    Being once vested -with jurisdiction of a criminal causo the parish court lias the power to-pass sentence and inflict suoh penalty as tho law prescribes.
    APPEAL from the Parish Court of Morehouse. James Bussey, Palish Judge.

      W. W. Farmer, District Attorney, Fourteenth Judicial District, for the State.

      O. T. Bunn, for the defendants and appellants.
   Howe, J.

The accused having been indicted for larceny waived a trial by jury and were tried by the parish court, found guilty, and sentenced to imprisonment at hard labor in the penitentiary. Appealing, they admit that the parish court had jurisdiction to try their case, but not to impose a sentence of imprisonment at hard labor.

Article 87 of the Constitution declares that “in criminal matters-the parish court shall have jurisdiction in all cases where the penalty is not necessarily imprisonment at hard labor or death and when the-accused shall waive trial by jury.”

Such was the case at bar. The offense was punishable by imprisonment with or without hard labor, and the accused waived a trial by jury. We are unable to understand how a court can have jurisdiction of a cause and at the same time be without the power to render 'the judgment provided by law. Jurisdiction, in the sense in which the word is here used, means the right of judging. It would have been an idle ceremony for the judge a quo to exercise his judicial faculty in-determining whether the accused were guilty or not guilty, if he had not further proceeded to sentence them when found guilty. It is conceded that he could pass sentence. But he could only pass sentence-according to law, and the law in respect to larceny accords to him a further judicial discretion to determine whether the imprisonment should be with, or without, hard labor. Between these two he had the “right of judging,” and it would be just as logical to say that he had the right to commit to the penitentiary but not to the parish jail, as to say that he had a fight to commit to the parish jail but not to--the penitentiary.

Judgment affirmed.


text:
    No 271.
    Jonas Robeson v. Joseph Howell.
    In an action oí' "boundary of town lots, if it "be shown "by survey aiul plats of tho town that, certain squares have "been laid out-, ma'ked and surveyed, starting from a given point with a fixed dimension in each square, and if it be shown further that certain contiguous-squares have been subsequently laid off wluch touch and appeal io run into the squares, or lots first laid our, then tho lots or squares last laid out, surveyed and marked must stop at the boundary line of the older siirv.eys. And if any diminution of quantity occurs in the measurement of ibo lots or servers it must be borne exclusively by those-holding under 5ho surveys last made.
    APPEAL lrom the Tenth Judicial District Court, parish of Caddo.

      Levisee, J. Nutt <fi Leonard, for plaintiff and appellant.

      Looney cC TFeWs, (or defendant and appellee.
   Taliaferro, J.

This case is before us for the third time, having-been twice remanded to enable the parties to obtain additional evidence. It has been tried before the district court three times, the decision on the first trial being- in favor of the plaintiff, and on the subsequent trials judgments were rendered in favor of the defendant.. A large amount of evidence is in the record. The testimony of several surveyors, all of whom it appears are competent men in their line of business, and conversant with the plan of the city of Slneveport and the method used in laying out its squares and lots. Most of them have held the oilice of city surveyor, and one of them is now occupying that position. These men have been commissioned from time to time to-make surveys in Shreveport, to determine controversies that have heretoloro arisen there in regard to boundaries. They seem to have taken great pains to he accurate in their measurements and calculations in regard to the lines necessary to be ascertained and traced, in order to-determine the proper limits oí the lots of ground of the litigants, forming the subject of this lawsuit. They have testified orally in regard to their surveys, and the City Surveyor presents in connection with his evidence a diagram of his survey. Documentary evidence in abundance is also presented. An act of paitition, notaiial deeds, judicial sales as muniments of title are introduced. These are valuable auxiliaries in aid of the inquiry, as they indicate the localities'of the contiguous lots of ground, if they do not accurately express their boundaries, and they show the quantity of ground the contestants, bought and the periods of time at which they became owners.

With all this array of facts derived from tho sources from which they have been obtained, it would seem at the first view that there could he no difficulty in adjusting the boundaries and settling the controversy between tho patties. But an examination of the record with all the care we have been able to bestow upon it, admonishes us that there are difficulties in the way, for we find there are important discrepancies in the surveys of the experts from whom was mainly to bo expected the data necessary to a clear and satisfactory view of tho-•case. The judge of the lower court, in a long and. elaborate decree which he rendered in the case, points out these discrepancies and remarks: *

“It seems to have been the fashion with all subsequent city surveyors to ignore the work of Iheir predecessors.” * * * “All proceed more or less upon theory, regardless of what had previously been done. Each new measurement differing in some degree from the former, makes the linos and courses more unsettled, and the oitener the town is measured the greater will be the uncertainty as to boundaries.”

Such then is the condition of things that some degree of uncertainty may be feared in any conclusion that can be arrived at; still we think the case may bo determined without prejudice to the rights of the parties, notwithstanding the obscurity and contradiction which pervade the testimony. The controversy has existed for more than ten years, and wo deem it proper that it should be terminated.

The judgment of the court a qua was adverse to the plaintiff, and he has appealed.

The map or diagram presented in connection with his report by the “City Surveyor is part of the record, and is marked II. In rendering his judgment the judge a quo used this map, and we shall also refer to it in the remarks we ma5>- have occasion to make in regard to lines and boundaries.

The plaintiff owns block No. 9. This'block is bounded by Common street, Lake street, Louisiana street and fractional ten acre lot No. 9, •owned by the defendant. The contest arises from an alleged conflic.tiou of the limits of these two lots of ground; the line claimed by the defendant ns the true boundary, cutting off, as the plaintiff complains, from block No. 9, a strip of ground by which the area of that block would be materially reduced. At the point K, in the blue line EL C, is a rock planted in the ground. This rock the defendant contends was placed .at that point in 1843 by Hall, a surveyor, who ran off the “ten acre lots,” and that this rock indicates the point of intersection of ten acre lots six and seven, and fractional ten acre lots eight and nine. The plaintiff contends that the line B E forms the boundary between the .lands of himself and the defendant, and not the line EL C, as held by defendant. The judge a quo arrived at the conclusion that the evidence establishes that Hall planted the rock in its present position when he made the survey of the ten acre lots in 1843, and that it is the •enduring monument indicating the point of intersection just mentioned. There are some facts shown that seem to favor that conclusion, and there are others that do not. The Shreveport Company, it seems, in 1843 had its lands not previously laid out in blocks and lots divided in parcels of ten acres each. Some of these lots were necessarily fractional. This work was performed it appears by Hall. But Shreveport had been laid off as a town anterior to that time. The block No. 9, belonging to the plaintiff, had its locality fixed as a block within the •town limits before Hall was' called upon to lay off the ten acre lots. The dimensions of each block were fixed, to wit: three hundred and ■twenty feet square. Block No. 9 has well defined boundaries on three sides, as we have seen. It is not shown to have been fractional or its area less than that of the others. The width of the streets and the ■dimensions of the blocks are known.. It is not easy to see how Hall ■could, after the company had laid off blocks and sold them, run off the outside lands into ten acre lots to interfere with the survey of lots previously made. That Hall did plant the rock at the point K as a land mark for any purpose, we think there may be reasonable doubt. Parsons and -Watts, old and experienced surveyors, do not by any ■means concur in the opinion on the subject. The latter made surveys in Shreveport in 1851; the former in 1854. Watts is clear that the rock •was planted by Hall as the common corner of lots six, seven, eight and mine, as the witness (Watts) verified the lines by using Hall’s field notes and his courses and distances. Parsons on the other hand, in •conjunction with Bafteny, another surveyor, had the field notes and map of Hall when they made a general survey of Shreveport in 1851. Again, in 1860 these surveyors iound the monument somewhere about the corner of ten acre lots six and seven and fractional lots eight and mine, and Parsons says: “We had no evidence that Hall put it there. Had we been so satisfied we would have established it.”

The testimony of the present City Surveyor tends, we think, to weaken the belief that the rock monument was planted at the point K to indicate the intersection of the corners of the lots six, seven, eight and nine. By Hall’s map, taken from book I), the line dividing fractional sections eight and nine and that dividing sections six and sevgn, do not come together at the same point to form a common corner for-all four of' these lots. By Hall’s map, Howell’s fractional lots Nos. 8 and 9 call for fifteen acres and one hundred and twenty perches; the lines claimed by him are shown to embrace sixty-four perches more than that quantity, while he bought, as his deeds show, only fourteen acres. These facts are adverse to the opinion that the rock planted at the point K marks the proper corner as contended of tho four sections referred to, and rather tend to produce the impression that if planted there for that purpose it was so done in error. The blue line K C passing through the point K cuts off from the plaintiff’s block a strip as it seems of about the width of twenty-seven feet, and runs at an angle into the blocks lying in the same tier with that of the plaintiff; whereas the line dividing ten acre lots six and seven passing through the point B, and extended would coincide with the line forming the sides of blocks nine, ten, twenty-seven, etc. This would, as it seems to us, preserve the area and symmetry of form originally given to the blocks when the city was laid off.

It must be borne in mind that the blocks, of which the plaintiff is owner of the one numbered nine, were lots of ground laid off and having their appropriate areas and dimensions fixed several years before the division of the lands adjacent to and outside of the limits of the town as originally laid off. Many of these blocks were doubtless sold and in possession of third owners before the survey of the outside lands by Hall in 1843. The limits of the town were certainly not intended to be encroached upon by this later survey of the ton acre lots. The purchasers of blocks or lots within these limits are entitled to the quantities of ground they contain. We do not concur with the judge a quo that as between the litigants in this case they must be considered as having purchased per aversionem. For aught that appears, a proper adjustment of boundary between them may be made without taking from either his proper quanlity. On this basis-we believe from all that is in evidence before us the boundary may be established, and if there be a deficiency in quantity it must be sustained by 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 original dimensions and area of the block No. 9, owned by the plaintiff, be maintained by giving to each of its sides the length of three hundred and twenty feet as originally laid off, and as shown by the map or diagram in evidence, marked H; the said block being-bounded on three of its sides respectively by Common, Lake and Louisiana streets; that the fourth side, to complete the square of four equal sides of the length of three hundred and twenty feet each, form the boundary between block No. 9, owned by the plaintiff, and fractional ten acre lot numbered nine, the property of the defendant. It-is further ordered that defendant pay the costs of this suit.


text:
    No. 214.
    State v. Alfred Holmes.
    In an indictment for larceny, if an amendment correcting the name of the owner of the property stolen bo allowed without objection, the trial may go on at the discretion of the-judge, without a new arraignment or the jury being resworn.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita.

      Fay, J. W. W. Farmer, District Attorney, for the State.

      W. J. Q. FaJcer, for defendant and appellant.
   Howe, J.

The defendant who has appealed in this case was indicted the larceny of property belonging to Sanford Green. It appearing-’on the trial that the real name of the owner was Sampson Green, the District Attorney moved to amend accordingly. The amendment was-allowed, the defendant making no objection. The jury then rendered a verdict of guilty, and the defendant, having been sentenced to imprisonment at hard labor, has appealed.

' The appellant makes the point that the amendment having been allowed, it was indispensable that a new arraignment should be had and a new jury sworn, or at least the same jury resworn. He did not ask for any of these formalities at the time, but he claims that it was the duty of the State to have provided them, and that the omission was fatal.

"VVe are unable to assent to this view. The amendment was proper. 11. S. section 1047. The court had a discretion to proceed with the trial before the same jury; and the statute expressly declares that, when so proceeded with, it shall be conducted “in the same manner in all respects as if no such variance had occurred or amendment been made.”

Judgment affirmed.


author: Ltjdeling, C. J.

text:
    No. 270.
    L. D. Arick v. Walsh & Boisseau et al.
    A lessor 1ms a superior right to the proceeds of the sale under execution of cotton, mules and T other property on the leased premises, for the payment of the rent, to that of the seizing > creditor.
    The lessor may take the movable effects found on the leased premises into his actual possession, and retain them until the rent is paid. This right of pledge which the lessor has accorded to him by law on the movables on the premises leased, need not be registered to preserve it.
    ■When, therefore, as in the present case, a judgment creditor of the lessee seizes and sells the movable effects on the leased promises, the lessor has the preference on the proceeds of the sale over that of the seizing creditor for the payment of tliorent, without reference to whether the pledge in favor of the lessor of the movables on the promises leased has been registered or not.
    APPEAL Bom the Tenth Judicial District Court, parish of Caddo.
    Levisee, J. Land & laylor, for plaintiff and appellant.

      Autt cü Leonard, for defendants and appellees.
   Ltjdeling, C. J.

The only question for decision in this case is whether a lessor who has not recorded his lease has a better right to the proceeds of cotton, mules, etc., on the leased premises, sold under execution, than the seizing creditor, who has not himself registered his seizure. Article 3218 of the Civil Code declares that “the right which tl¡e lessor lias over the products of the estate, and on the movables which are found on the place leased, for his rent, is of a higher nature than mere privilege. The latter is only enforced on the price arising from the sale of movables to which it applies. It does not enable the creditor to take or keep the effects themselves specially. The lessor, on the contrary, may take the effects themselves and retain them until he is paid.” This right of pledge need not he registered to preserve it. There is no law which requires its registry, nor does the reason of the law which requires privileges to be registered, apply-to-the rights of the lessor. Every one is presumed to know that the products and movables found on a leased {dace are pledged for the payment of the rents, and whoever deals with the lessee, does it at his risk. The possession of the lessee is that of the lessor. C. C. 3433. And the sheriff could not lawfully take away the property without first satisfying the lessor’s claim for rents. 5 An. 111.

On the other hand, the right which the seizing creditor acquires by his seizure to be paid in preference to all others who have not at the-time of his seizure a mortgage lien or privilege, results solely from his superior diligence. It does not spring from the nature of his debt, nor-does it inhere in the debt, for the right exists only while the seizure is maintained. This right of the seizing creditor can not defeat rights, existing at the time of and prior to the seizure. 7 An. 1.

It is therefore ordered and adjudged that the judgment of the court of the first instance be' avoided and reversed, and that there be judgment in favor of the plaintiff, perpetuating the injunction and recognizing his superior right on the proceeds of the property sold under-the execution of the defendants to the extent of his rents, and that, defendants pay costs of both courts.


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    No. 276.
    State of Louisiana ex rel. etc. v. J. B. Gilmore et al.
    In a contest lor tlic right to an office under the intrusion act, No. 156 of 1868, the defendant-has accorded to him the right to a trial by jury, if he asks for the same in the answer to ■ the suit. If ho tile an exception to the action which is afterward adjudged to be an answer, he may. still file an amendod answer asking for a jury. Rut if tile question of' the character of the oxcoption be not determined until the trial of the cause, and it then be held that it is an answer, the defendant is not theroby deprived of the right to a trial, by jury which he has prayed for in the answer.
    APPEAL from the Tenth Judicial District Court, parish of Caddo.

      Lewises, J. J. 8. Ashton, District Attorney, Land <& Taylor and JR. J. Looney, for plaintiffs and appellees.

      JEgan, Williamson <& Wise, for-defendants and appellants.
   Ludeling, C. J.

This is a contest for office under act No. 156 of the-General Assembly of 1868.

The defendants prayed for a trial by jury, which was refused by the judge a quo because he thought the application was made too late, and because the defendants had not asked when first-notified of the suit fora special jury to be summoned.

We think the judge erred in refusing the jury. Whether the exception filed could have been regarded as an answer or not, it was treated as an exception, and the defendant was allowed to file an answer, in which he asked for a jury. If, at the time the exception was filed, it had been held by the court to be an answer, defendants might stilL liave filed an amended answer asking for a jury, and we do not think they lost that right, because it was not decided that the exception was substantially au answer, until much later in the proceedings. State ex rel. v. Head, 21 An. The act, under which the relators are proceeding, accords the defendants the right to a trial by jury, and we do not think they have waived it.

It is therefore ordered that the judgment of the court a qua be reversed, and that the cause be remanded to be proceeded with according-to law.


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    No. 264.
    Wells & Jones et al. v. Caldwell & Cox et al.
    Where, in an action of boundary between certain lot owners in the city of Shreveport, a survey has been made by the city surveyor, and by othor surveyors who differ with the city surveyor in their marks and lines, and the weight of the testimony is in favor of the correctness of the survey, marks and lines made by the city surveyor, then and in such case judgment will be given in favor .of the boundaries established by the city surveyor.
    APPEAL from the Tenth Judicial District Court, parish of Caddo.

      levisee, J. Wells <& Jones, for plaintiffs and appellees.

      Nutt <£ Leonard and 11. J. Looney, for defendants and appellants.
   Taliaferro, J.

This is an action of boundary. It involves the settlement of the proper boundaries between the ton-acre lots numbered 32. 33 and 34, in the cily of Shreveport.

The plaintiffs allege that the boundaries between these lots, as fixed by Hall in the year 1843, under authority of the original Shreveport Company, are no longer to be seen, and in consequence the adjacent proprietors have eucroaclied upon their lot, No. 33, and that it becomes necessary that the proper limits between the lots named should be fixed anew.

The defendants deny these allegations, and say there is no loss or obliteration of boundaries between the lots in question, but, on the contrary-, that they are clear, distinct and well defined; that these boundaries have been for years recognized by the city authorities and the owners of adjacent lots. They aver that the centre line of Sprague street, at its intersection with Common street, has from time immemorial been recognized as the starting point of the surveys of the ten-acre lots of Shreveport, and established by forty years’ usage and undisputed until now by the plaintiffs. The defendants annex to and make part of their answer the survey and report of W. R. Devoe, the city surveyor of Shreveport, who, together with II. Watts and P. P. Leavenworth, surveyors, were appointed by the court to make surveys of the disputed limits and return a procés verbal of their work.

The separate survey and report of the city surveyor, relied upon by defendants and made part of their answer, is marked C. The other experts presented a report, which is in evidence.

The judgment of the lower court, predicated upon tlio report of Watts and Leavenworth, was rendered in favor of the plaintiffs, and the defendants have appealed.

A difference of opinion arose between the surveyors in regard to the •essential matter of the true starting point, two of them adopting what is called the “ rock corner,” recognized by some as an ancient landmark of Hall, the surveyor, in 1843, of the ten-acre lots. The city surveyor, on the other hand, adopts the point of intersection of the centre line of Sprague street with Common street.

We had occasion to examine recently, in the case of Robeson v. Howell, a mass of evidence on a question of boundary which involved both the authenticity and the accuracy of the point called the' rock corner,” as indicating the true corner of the ien-acre lots six and seven and the fractional lots fourteen and fifteen. We came to the conclusion that it was not so established. The evidence in the present case tends to strengthen ns in that opinion and to conclude that the survey made by the city surveyor and appended to the defendants’ answer, should bo adopted, and the boundaries between the litigants in this case he thereby established.

It is therefore ordered, adjudged and decreed that the judgment of the district court he annulled, avoided and reversed. It is further ordered that the boundaries between the ten-acre lots numbered 32, 33 and 34 he established as ascertained by the lines run, marked and designated hy William R. Devoe, city surveyor of Shreveport, and displayed and expressed in his map of survey and report accompanying the same, and which are filed in evidence in this case. It is further ordered that the plaintiffs pay costs of this suit.


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    No. 241.
    H. McFarland v. E. K. Russ, Sheriff, et al.
    "Where several writs of attachment havo issued from inferior jurisdictions, each, for an amount less than that required to give the District Court jurisdiction, and the sheriff levies upon and seizes a certain piece of property, or a lob of cotton, all of which, is claimed hy a third party, if the valuó of such cotton thus attached hy viituoof the several writs amounts to a sum above five hundred dollars, then and in such case the ownership of the cotton being the question at issue, the District Couit has jurisdiction.
    APPEAL from the Tenth Judicial District Court., parish of Bossier.

      Bevisee, J. J. J). Watkins & ¡S. L. B. Watkins, for plaintiff and appellant.

      T. M. Fort, for defendant and appellee.
   Howell, J.

The main question in this case is one of jurisdiction. Under several writs of attachment issued from the parish court and the court of a justice of the peace the sheriff levied upon certain cotton in the gin house of the plaintiff, who enjoined and claimed to be the owner, alleging the said cotton to he worth $1500.

The defendant Connell, plaintiff in the seizures, excepted to the jurisdiction of the district court on the ground that the returns of the sheriff show that the value of the cotton seized in each case is less than $500.

This fact does not control the jurisdiction. The plaintiff claims to be the owner of all the property seized, and the issue presented is his title to or ownership of the. same, the value of which is alleged and shown to be above $500. It is this matter in dispute that Axes the jurisdiction. The court below therefore erred in sustaining the exception.

On the merits there is no serious controversy. The evidence establishes the title to the cotton to be in plaintiff.

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


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    No. 178.
    The State of Louisiana v. Jolly Gasting.
    The notes or bills issued by tbo Hat-ional Banks of the United States, which are authorized by law to circulate throughout tho Union as a medium of trade, are included in the phrase “United States currency.”
    Larceny of such notes is therefore larceny of United States currency,
    APPEAL from the Eleventh Judicial District Court, parish of Union.

      JSgan, J. IF. IF. Farmer, District Attorney of the Fourteenth Judicial District, for the State.

      J. &J. IF. Young for defendant and appellant.
   Howe, J.

The defendant was indicted for larceny of ten dollars in ‘•United States currency,” ten dollars in gold coin, and ten dollars in silver coin. He was tried, convicted, sentenced to hard labor, and has appealed.

The only question presented is raised by the defendant’s bill of exceptions, and is substantially whether notes or bills of national banks are included properly in the phrase “United States currency.”

The act of Congress by which the associations known as National Banks were authorized, is entitled “ An act to provide a national currency, secured by a pledge of United States stocks, and to provide for the circulation and redemption thereof,” and its title seems to be a correct index to its contents. The notes or bills issued are not only receivable at par, in all parts of the United States, in payment of taxes, excises, public lands and all other dues to the United States (except for duties on imports), but also they are a legal tender for all salaries and other debts and demands owing Inj the United States to individuals, corporations and associations within the United States, (except interest on the public debt). Laws of 1863, p. 670, § 20. They are prepared by the officers of the Treasury and bear their engraved signatures and seal. The words “ National Currency ” are emblazoned conspicuously upon them, being derived evidently from the title of the act. They circulate in all parts of the Union, being every where received at par as a medium of trade, without regard to-the local domicile of the associations, respectively.

Currency may be properly defined as something which circulates as-a medium of trade. It conveys at the present time the idea of paper money, of some sort. National currency is that which is issued under the sanction of a nation. The nation which authorizes the issue of what we term national bank notes is the United States. Considering therefore tlie title and terms of the act of February 25, 1803, above cited, in connection with these familiar definitions, we think it fair to decide that the phrase “United States Currency” includes the “national currency” authorized by the United States — declared to be for many important purposes a lawful tender — and designed to circulate as a medium of trade in all parts of our country.

Judgment affirmed.


author: Ludebing, C. J.

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    No. 265.
    Georgaline Hastings v. Rebecca Brantley, Executrix, et als.
    A judicial salo of cotton made during tlie late war, wliile Confederate notes was the only-currency in circulation at the place wliero it was made, is protected by article 149 of the Constitution of 1868. Such a sale is not therefore void because the price bid and paid into the hands of tlie sheriff by the purchaser was Confederate Treasury notes.
    APPEAL from the Tenth Judicial District Court, parish of DeSoto.

      Levisee, J. JElam tb Wemple for plaintiff and appellant.

      T. T. &■ A. D. Land for defendant and appellee.
   Ludebing, C. J.

Harris Brantley died in April, 1868, leaving a last will and testament, by which he constituted his wife legatee of a portion of his property, and appointed her executrix of his succession.

The will was duly probated and the executrix confirmed, and duly qualified.

On the eleventh February, 1864, Rebecca Brantley, executrix, prayed for the sale of the movables of the succession, including seventy thousand pounds of cotton in the seed, more or less, and ten bales of ginned cotton, in order to pay debts. The order was granted directing the property to be sold for cash, at the appraisement, on the seventeenth March, 1864, and a commission or execution was issued to-J. W. Elam, sheriff, to make the sale. After having complied with the formalities of the law, the sheriff adjudicated to Jules Tardos seventy thousand pounds of cotton in the seed, more or less, for seven thousand six hundred and fifty dollars, and ten bales of cotton in,the lint ior one thousand eight hundred dollars.

The proces verbal recites that “it was announced by me, sheriff, that the lot of cotton offered in the seed was estimated at'seventy thousand pounds, more or less, but in the event the cotton should be burnt or destroyed, before it was weighed, the purchaser should be-bound to pay for .said seventy thousand pounds; and the cotton in the-lint, ten bales, the purchaser to pay for ton bales, averaging four hundred and fifty pounds per bale.”

The sale was made for Confederate money, the only currency then in circulation in that part of the country, and the price was paid to the executrix. The oral evidence and the proces verbal show that the, cotton was sold in a lump, and the price was paid. The sale was perfect. C. C. 2459, 2478.

It was an executed judicial sale, which is protected by article 149 of the Constitution. See Lee v. Taylor, 21 An.; Allen v. Cutliff et al.; and Heirs of Brown v. Jacob, 23 An.

The claim of the plaintiff to the cotton or its proceeds, predicated upon the supposed nullity oí the judicial sale, is unfounded.

It is therefore ordered and adjudged that the judgment of the district court be affirmed, with costs of appeal. e


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    No. 253.
    Succession of William Arick, in Opposition to Tableau of Debts.
    The inferior court is bound to confino its examination of a cause that has been remanded to the questions that have not been finally passed upon by the appellate court.
    A due bill for money can not bo compensated by a conditional obligation or liability of a surely on an administrator's bond.
    APPEAL from the Parish Court of Bossier. Balter, parish judge.

      T. M. Fort, for the heirs appellees.

      J. D. Watlcins, for opponents- and appellants.

      Griffin & Snider, and Bichará W. Turner, -for intervenor and appellant.
   Howe, J.

This cause was before this court in July, 1870. 22 An. 501. It was then finally decided as to all items of the tablean save One — item No. 8 — and was remanded for the sole purpose of deciding the amount of credits due on that item.

Instead of confining- the contest to the point thus indicated the judge a quo permitted certain heirs, who in the contest before us had been represented by the attorney of absent heirs to come in and dispute item No. 7, which liad been finally homologated by this court. 22 An. p. 503, 504.

In this we think the judge a quo erred. The heirs were represented before us, the only defense made against item No. 7 was decided adversely to their views, and the judgement upon it was final.

The judge a quo then permitted the item No. 8, a due bill, to be compensated by an alleged claim of tho succession, or its heirs, against Stinson, the holder of the bill, which claim is founded upon the fact that Stinson was surety on the official bond of a former administrator of this succession, and the allegation that the said administrator was indebted to the succession. We apprehend that -this ruling was erroneous. A written due bill, or promise to pay a certain sum, ought not to be compensated by a conditional obligation like that of Stinson as surety.

Considering that the item No. 7 was finally adjudged last year to be a valid and subsisting debt of the succession in favor of its holder, Stinson, we have only to consider, as already stated, the credits due on the item No. 8. In addition to fhe credit thereon indorsed February I, 1850, of $5,942 99, which is a settlement up to that date, and behind which we will not inquire, we find that the succession is entit.ed to a further credit of $1,490 12, as of Juno 1, 1859.

It is therefore ordered that the judgment appealed from be reversed. It is farther ordered that the item No. 8 on said tableau of debts, to wit: a due bill of $13,743 10, dated March 8,1858, reduced by a credit of $5,942 99, as of February 1,1859, and the further credit of $1,490 12, as of June 1, 1859, be homologated and decreed a valid and subsisting debt of this succession, jointly with B. F. Looney, in favor of R. T. Stinson, and the said succession liable for the one-half of the balance due thereon with interest at five per cent, per annum, to be paid in due course of administration, and that the appellees pay costs ot appeal.


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    No. 230.
    E. W. Warfield et al. v. G. W. Oliver.
    If the suit he commenced before the entire obligations sued upon are due, but such obligations become due before judgment, the court may, in its discretion, allow an amendment of tho pleadings so as to cover the wholo demand.
    The lessor has, as a secuiity for the payment of the rent and the other obligations of the lease, a right of pledge on the movable effects of tho lessee which are found on tho property leased. The obligation by the lessee to repair and to keep in repair the premises leased, gives the lessor a right of pledge on the movables of tho lessee found on tlm place for its faithful performance.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita.

      Ray, J. Garrett & Garrett, R. IF. Richardson and TF. J. Q. Balcer, for plaintiffs and appellees.

      Stubbs c& Oobb for defendant and appellant.
   Howe, J.

This was an action to enforce the obligations of a plantation lease executed by the defendant as lessee. A writ of sequestration was issued. There was a judgment in favor of plaintiffs, and defendant appealed

First — The defendant filed an exception to the prematurity of the action begun December 15, 1870, because a portion of the' claim for rent was not then due, and d d not become duo till December 31, 1870. On the eleventh of April, 1871, the exception was sustained, with leave, however, to amend, it appearing that the rent, nearly due when suit was begun, was now long past due, and the amendment was made and issue joined thereon. We see no error, but good sense and justice in this permission to amend. 4 An. 184; 17 La. 212. The case differs irom Catlett v. Heffner, lately decided.

Second — The defendant moved to dissolve the writ of sequestration on the grounds that there was no privilege for the claim of $5000 for the non-performance of the obligations of the lease (other than that to pay rent), the same being for damages unliquidated; that the claim for rent depended, by the terms of the lease, on a potestative condition, not yet fulfilled, and that the allegations in the affidavit were untrue. We think the motion was properly-overruled. As to the first ground, the lessor has, for the payment of his rent and other obligations of the lease, a right of pledge on the movable effects of the lessee which are found on the property leased. Rev. C. C. 2705. The other obligations” of this lease involved in this discussion sprung from Oliver’s agreement in that instrument to put the plantation in repair a.nd to keep it in repair. As will be seen by the evidence iu the record, this obligation was of great importance, and we see no reason to decide that it is not secured by the right of pledge above mentioned,

As for the second ground, it appears that by the lease the rent was fixed at six dollars per acre, and the exact number of acres was to be ascertained by “ survey.” This word “survey,” it is claimed, means the survey mentioned iu article 823 ei seg. Rev. C. C., and such a survey not having been made, the rent is not due. We do not suppose this argument is made with entire seriousness, or that we shall he expected to reply to it at great length. It seems clear that the survey here provided meant an accurate measurement, in order that the amount due might be made mathematically certain.

The last ground refers to the merits.

Third — Upon the merits, we are not prepared to say that there was error in the judgment. It was provided by the lease that the amount expended by tlie defendant in making certain improvements should be credited on the rent; hut the judge a qiio gave judgment for the rent, and compensated the claims of defendant for improvements made with the amount found due to plaintiffs for the non-performance of the other obligations of the lease. It may well be that the method adopted by the judge below was erroneous, but if the conclusion he reached was. accurate in amount, it being a money judgment merely, and both branches of the plaintiffs’ claim being privileged, the error of method would furnish no reason for a reversal. We are of opinion that the amount of the judgment is correct.

J udgment affirmed.