text:
    D. Y. Grayson et al. v. A. L. Sanford, Executor, et al.
    The right of an heir to an inheritance is not a litigious right within the meaning of Article 2630 of the Civil Code. Such a right may be sold. C. O. 2á2G.

      A. 3. died, leaving a will in which was the following clause: f‘ I will and bequeath to my wife A. L. 3the use of all of my property both personal and real, during her life.” “ However, if any of my ch ldren sue for a portion during her life, I then will and bequeath to her all of the property that I can dispose of by will, forever.” A child sued for partition, and the question was what were the wife’s rights under the will. Held: That the husband having made a will, his wife’s rights must be fixed by it, and she has no usufruct of his share of the community^ under the Act of 1844. In the absence of proof to the contrary, the law presumes a community. Afterpayment of the debts of the succession, the wife is entitled to one-half of the residue in her own right, and her husband having left three children, she is entitled to but one-third of his share of the community, and one-tliird of his separate estate.
    APPEAL from the District Court of the Parish of Ouachita, Richardson, J.

      J. L. Budding, for plaintiffs.

      McGuire & Ray, for defendants and ap' pellants.
   Cole, J.

Augustine Sanford died in the parish of Ouachita, sometime during the year 1855, leaving an estate, which was estimated to bo worth $3,G32 50, and seven children, issue of the marriage between him and his surviving widow, and two grand-children, issue of a deceased child, also the fruit of said marriage.

Many A. Langford, one of the children of deceased, sold, for a valuable consideration, her interest in the succession of her father, to B. Y. Grayson, one of the plaintiffs.

Grayson, and Bunctt B. Sanford, one of the children of deceased, sue for a definitive partition of the estate.

Ann L. Sanford, the surviving widow, in her answer, avers that A. L. Sanford left a last will, which has been probated and executed; that she has been appointed and qualified as executrix.

That by said will she is entitled to the use and usufruct of the estate, and to keep its effects in her possession during her life-time.

I She avers that one of the plaintiffs, Grayson, purchased a litigious claim, /and she has tendered him his purchase money.

The first question that arises is, was the interest of Many A. Langford, in her father’s succession, a litigious right ?

The Civil Code, Art. 2623, says : “ A right is said to be litigious whenever there exists a suit or contestation on the same.”

The right of Many A. Langford, as heir, was not contested at the time she conveyed her inheritance, and there was no suit relative to it. Her heirship is admitted by the defendant, and her rights in the succession of her father are definitively fixed by the will and the law.

Art. 2424 O. O. declares, that an inheritance may be sold. Art. 2620 C. C. says: “ When a man sells his right to a succession, without particularly specifying the objects of which it consists, he only warrants his right as an heir.”

Many A. Langford, by the act of transfer to A. Y. Grayson, as one of the heirs of her deceased father, Augustus Sanford, sold her right, title and interest to his succession.

As she did not specify the objects of which her right to his estate consisted, she then merely transferred her prerogative as heir; she consequently only warranted her right as heir, and in as much as her quality of heir is admitted, and has never been disputed, she did not then dispose of a litigious right; for a right is only litigious when there exists' a suit or contestation on the same. Vide 6 An. 238, Pearson v. Grice.

The principal point at issue in this cause is, whether the surviving widow is entitled to the usufruct of the half of the community belonging to the estate of her deceased husband, or whether she shall take the portion ’thereof, which her husband could dispose of by law.

The solution of this question depends on the interpretation of a clause of the will of Augustin Sanforcl, and the law applicable thereto. The said clause reads thus: •

“ I will an'd bequeath to my wife, Ann L. Sanford, the use of all my property, both personal and real, during her life.” “ However, if any of my children should sue for a partition during her life, I then will and bequeath to her all of the property that I can dispose of by law, forever.”

If deceased had made no will, his widow, unless she married, would have been entitled, during her natural life, to the usufruct of his share of the community of acquets and gains. Acts of 1844, p. 99, s. 2.

If he had made a will and bequeathed but the usufruct which the law allows, then the donation in the testament of only what the law gave, would not have impaired her legal rights.

In the case at bar, however, the testator donates to his wife the usufruct, but qualifies and limits the donation by the last part of the clause just quoted, to wit;

“ However, if any of my children should sue for a partition during her life, I then will and bequeath to her all of the property that I can dispose of by law, forever.”

One of his children, and the assignee of another, have sued for a partition', the contingency contemplated by the testator has happened; and the rights of the widow are now fixed by the will to the disposable portion.

As the Act of 1844 only gives the right of usufruct in the portion of the community coming to the deceased, when he has left no will, it is clear that he can give, by his testament, the usufruct of said portion, which would belong to the surviving widow, without any will, or can declare that in the event of a particular contingency, his widow shall inherit the portion of his property, which the law authoi-izes him to bequeath.

Augustin Sanford has done this, and we are now to ascertain what constitutes the property that he could by law dispose of.

Art. 1480 C. 0., declares: That “ donations inter vivos or mortis ca/usa, cannot exceed two-thirds of the property of the disposer, if he leaves at his decease a legitimate child; one-half, if he leaves two children, and one-third, if he leaves three or a greater number.”

“Either of the married couple may, either by marriage contract, or during the marriage, give to the other, in full, property, all that he or she might give to a stranger.” Yide Art. 21st March 1850, No. 300.

The testator left more than three children; therefore, his- widow is entitled, under the will, to one-third of all of his property, and the remaining two-thirds belong to his children. C. C. 1482, 1485, 1703. She is also entitled, by effect of law, to one-half of the community, if any exists,, for all the effects which both husband and wife reciprocally possess at the time of the dissolution of the marriage, are presumed common effects or gains, -unless they satisfactorily prove which of such effects they brought in marriage, or have been given them separately, or they have respectively inherited. C. C., Art. 2374.

It does not appear from the record, whether all of the property inventoried belongs to the community or not. The law presumes it does, but the parties have the right to rebut the presumption of law. Instead of giving one decree, as if all of the property belonged to the separate estate of the husband, as the judgment does, we will merely declare the principles which must govern the partition.

The surviving widow of Augustin Sanford is entitled to one-half of the community by effect of law; to one-third of the other half which belonged to her deceased husband, and to one-third of his separate property ;4 the children and legal heirs are entitled to the balance of the estate. The portions of said widow and children are, however, subject to the charges and debts of the estate, according to law.

The judgment of the lower court does not give to the widow her half of the community property. It may be that this is correct, but we- cannot say, because the record does not inform us whether the whole estate is separate property or not. If it is community, then the judgment is incorrect in not allowing to the widow one-half of the community and one-third of the half of her deceased husband. We deem it safer to leave open the question of the nature of the property, and to decide only the proportion to which the widow and the legal heirs are respectively entitled.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be amended, so as to declare that the surviving widow of Augustin Sanford is entitled to one-half of the property which may formerly have been in community between herself and her said deceased husband; to one-third of the other half of the community, being the part which belonged to the testator; and also to one-third of the separate estate of her said husband ; and that the children and legal heirs of said Augustin Sanford are entitled to the balance of the community and separate property of said deceased; the portions of said widow and heirs being, however, subject to the charges and debts of the estate, according to law. It is further ordered, adjudged and decreed', that the judgment be so amended as to order the notary in making the partition of the property to be divided among said widow and heirs, to follow the principles stated in the judgment of this court. And it is further ordered, adjudged and decreed, that the part of the judgment of the lower court, which is contrary to said amendments, be avoided and reversed; that the judgment so amended be affirmed; and the costs of this appeal be paid by the estate; and this cause be remanded to the lower court for the purpose of partition, and therein to be proceeded with according to law.


source: Caselaw Access Project

author: Cole, J.

license: Public Domain

text:
    Curtis & Phelps v. Parish of Morehouse.
    Plaintiffs claiming to have a charter of the Louisiana legislature to construct a turnpike road from Point Pleasant, in the parish of Morehouse, to Bceuff River, in the same parish, alleged that the police jury of Morehouse had opened a road running some distance, parallel with their turnpike» tind intersecting it at one point, thus diverting travellers from the turnpike and inflicting heavy damages in the way of loss of tolls. The action was for damages against the police jury. Held : The charter of the plaintiffs does not deprive the parish of the prerogative of making other public roads from other points even if these roads should cause a diminution of plaintiff’s receipts. •
    APPEAL from the District Court of Morehouse, Mehardson, J.

      Newton & Hall, for plaintiff and appellant.

      Todd & Brigham, for defendant.
   Cole, J.

This is an action for damages based upon the allegations of the petition, in substance as follows :

It is alleged that by an Act of the Legislature of the State of Louisiana, approved April 30th, 1853, Aiabel Curtis, one of the plaintiffs, procured a charter to construct a turnpike road from Point Pleasant in the parish of More-house to Bceuff River, in the same parish, a distance of about 25 miles.

That after obtaining said charter, the police jury of the said parish of More-house, “granted him the right to use for his said turnpike, and to construct the same upon the public road leading from said Point Pleasant, thr'ough Bastrop and Prairie Mer Rouge to Bceuff River.”

That after obtaining this grant, Curtis sold half his interest in said road to his co-plaintiff, Pfiebps.

That they proceeded to make and to construct their turnpike; and expended ten thousand dollars in making the same, and had finished a large portion of the road, and had put up one or more toll gates upon the finished portion of the road, in order to charge and receive the toll allowed by said charter, when the police jury of said parish, caused to be opened a new road from Point Pleasant to the Red Hill, a distance of some six or seven miles, running parallel with the turnpike, and intersecting it at the latter point named.

That by means of the new road, travellers were enabled to avoid the turnpike, and in consequence thereof, they had been damaged twenty thousand dollars in the loss of toll to which the)r were entitled.

To this demand defendant filed a peremptory exception, upon the ground that no cause of action was set forth in the petition, The exception was referred to the merits.

The answer of the defendant contains first, a general denial, and further alleges, that if the police jury of the parish ever made such a grant of the public highway to plaintiffs, as is claimed by them, that said grant was a nullity, because the police jury had no power or authority under the laws of the State to make such a grant, or to bind the parish by the same.

That even if said grant was a valid one, that it was conditional, and plaintiffs have failed on their part to comply with the conditions therein contained.

That they have not made a turnpike road, nor otherwise constructed said I’oad in the manner required,

That in consequence of their failure to comply with said conditions prescribed, and of their charging toll beyond the rates allowed by their charter, they have forfeited both their grant from the parish and their charter from the State.

That for said'.reasons the gates erected by them across the public highway were nuisances which should! be abated, and that plaintiffs, by the trouble, inconvenience-and; expense- caused, by their said proceedings had damaged the-parish ten. thousand dollars.

It is further alleged; that the parish of Morehouse, or the police jury there!-of, had full-power and authority to cut out the new road complained of, or any other road they might deem: necessary for the convenience of the public, and that plaintiffs,, or no one else, had1 a right to question their authority or complain of their acts in the premises.

The answer concludes with a prayer for judgment in favor of the parish against the demands of plaintiff; that the gates ereetedlby plaintiff upon and1, across the public-highway be declared nuisances and orderedito be taken down, and plaintiffs be perpetually enjoined from again putting them up, and’ for' damages in favor of the parish for ten thousand'dollars.

Upon these issues and pleadings the ■ parties went to trial before a jury,, and from a judgment in favor of defendant, plaintiffs appealed.

We are of opinion that the police jury had the right to make the new road,, if they deemed it necessary for the public convenience.

The charter of plaintiffs does not deprive the parish of the prerogative of. creating as many other public roads from other points, as their wisdom may' dictate, and the public wants require.

The parish cannot be deprived of its legal right to make this new road, be» cause it may enable travellers to elude the toll gates on the road of plaintiffs,, at points of intersection beyond the gates, and thus to use a part of their turnpike without paying toll; it is for the- plaintiffs to-prevent this by the exercise, of their legal remedies against such travellers, if any such they have.

The grant by the parish of the old road to plaintiffs did not divest it of the privilege of making other roads from-, other points than those of the- turnpike-road, even if their creation should incidentally cause a diminution of the receipts of the latter.

We express no opinion on the legality of. the grant of the old road to plaintiffs ; if the police jury interfere with their vested rights, they can arrest their action by injunction.

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


author: Spojtobd, J.

text:
    Lavinia Chevalier et al. v. Julia Ann Whatley and Husband, Consolidated Cases.
    Insanity, which of itself, is sufficient to strike an act with nullity, cannotbe set up, unless the interdiction x>f the insane person had-been pronounced or-petitioned for previous to the death of such person, except in cases in which the mental alienation manifested itself within ten days previous to the decease, or when the want of reason results from the act itself which is contested.
    But when the contract is sought to be set aside, the state -of-mind of the party at the time, may be proven, although the proof tends to show imbecility and there has been no interdiction.
    Contracts made with weak-minded persons will be closely scrutinized, and a presumption of fraud will arise from circumstances, indicative of over influence or any advantage improperly taken, which would not arise in a strong-minded person.
    APPEAL from the District Court of Catahoula, Ba/rry, J.

      McGuire & Bay and Tailferro, for defendants.

      Smith & Spensei', for plaintiffs.
   Spojtobd, J.

The plaintiffs, in these consolidated cases, are the sisters and sole heirs at law of William Simmons, who died intestate in 1853.

The object of the suit is to annul two acts of sale executed by the said Simmons, one on the 26th February, 1848, conveying the slave Nancy, and ■one of her children, to the defendant, Julia Ann Whatley, and the other on December 28th, 1847, conveying the slave Mwria, to the defendant, Wooten Whatley. Julia Ann Whatley, was the aunt, and her son, Wooten, the cousin of William Simmons. The 'expressed consideration of the former sale, was “the sum of five hundred dollars in stock in cattle and hogs, paid by the said Julia, Ann Whatley." The other sale purports to have been “in consideration of the sum of two hundred dollars, cash in hand, paid to the said William Simmons, by the said Wooten Whatley

The petition is not framed with technical precision and fullness. But it sufficiently appears that two distinct grounds are relied upon to set' aside these ■sales: 1st, the idiocy or insanity of the vendor, Simmons: 2d, the fraud of the defendants, who are alleged to have practised upon the weak mind of Simmons, and contrived to procure these acts from him under the pretence of a purchase, when they really paid him no consideration whatever.

So far as the first ground is concerned, it is clear that the insanity which, of .itself, is sufficient to strike an act with nullity, cannot he set up by Simmons' heirs, in this -case. They did not provoke his interdiction, and it never was 'pronounced. “ After the death of a person, the nullity of acts, done by him, cannot be contested for cause of insanity, unless his interdiction was pronounced, or petitioned for, previous to the death of such person, except in cases in which the mental alienation manifested itself within ten days previous to the decease, or in which the proof of the want of reason results from the act itself, which is contested.” C. C. 396. See also Art. 1781.

But these rules apply to cases where the sole infirmity in the contract, necessary to he alleged, is the incapacity of the party to contract, ly reason of insanity. When the contract is sought to he set aside upon another legal ground, to wit: for fraud, the state of mind of the defrauded party, at the time, may be proven, although the proof tends to show inbecility, and there has been no interdiction. Otherwise, frauds might bo perpetrated upon weak-minded men with more prospect of impunity, in case of detection and exposure before the courts, than upon men of ordinary intellect.

Our law, upon the subject of interdiction, does not impair the force of the rule that contracts made with weak-minded men, will be closely scrutinised, and those who deal with them held to a strict standard of good faith. “ In respect to this class of cases,” says Story, “the law will raise a presumption of fraud from circumstances, indicative of any over influence, or any advantage improperly taken, when, if the case were of a strong-minded person, no such presumption would arise.” Story on sales, sec. 182. The inquiry into the character of WilUam Simmons' mind, was, therefore, pertinent and allowable in examining the question of fraud. See Holland v. Miller, decided at this term.

It is asserted by defendants’ counsel, that no other fraud is charged than the bare fact of their having purchased of an idiot. If this were so, the inquiry would stop there. But wo find a much more extensive and specific complaint of fraud than that; a complaint sufficient, we think, to have put the defendants on their guard, and, therefore, sufficient to justify the introduction of the evidence which was excepted to. The plaintiffs, in the first case, declare the sale to have been “a disguised donation, without consideration, gotten up and artfully contrived by said Julia Ann and Archibald, acting on an idiot, their nephew, for the purpose of inywring and defrauding him.”

Corresponding allegations are made in the other petition.

If these allegations are true, the deceased would have been entitled to relief against an imprudent bargain into which he had been decoyed, and his heirs are also.

It may be true, as said by the defendants’ counsel, that William Simmons, is not shown to have been insane, or an idiot, in the true sense of those terms. But he is certainly correct in the opinion that Simmons was an excessively weak-minded person, most easily duped and deceived. These sales of all his worldly estate must, therefore, be carefully scrutinized, and if he appears to have been defrauded out of his whole property by them, the parties who defrauded him, must be decreed to make restitution. The defendants were his relatives, and he was living with them. Their influence, as relations and protectors, over one of his small mental capacity, is obvious. The act attacked in the first suit, purports to be a sale; but, even upon its face, it is evident that it could not have been a sale; the price fixed in money, was not to be paid in money; it was to be paid in cattle and hogs; thorb was to be an exchange of a negro woman, aged twenty, and her child, for five hundred dollars’ worth of cattle and hogs ; but how many cattle and hogs that would be, seems to have been left t.o the discretion of the stronger minded party. The evidence leads us to the conclusion that the number was never fixed; that the deceased was amused with the belief that he was the owner of an indefinite portion of the Stock belonging to the Whatley place; that he was encouraged to boast about his cattle and hogs, apd thus lend an air of plausibility to the pretended sale; that he, on one occasion, sold a hog to tho trader with whom the Whatleys .dealt, and received something in return for it; but that when he undertook to trade upon a more extended scale in hig supposed acquisitions, the Whatleys refused to ratify his contracts, because ho had exceeded his powers. In short, the Whatley stock continued as before, and as they always intended it should continue, to belong to the Whatleys, and William Simmons, who seems to have worked faithfully enough for them to earn, at least, his living, died iñ their employ, and left nothing to put upon an inventory.

The two hundred dollars, the professed consideration of the other sale, it is proven, were never paid.

It seems from some testimony in the record, that shortly before his death, Simmons discovered and complained of the artifices by which he had been wheedled out of his property, and a conditional promise of restitution was made by his aunt. These suits were brought immediately after his death.

If the District Judge had not changed his mind on the question of the admissibility of the evidence of fraud, and told the jury to disregard it, we cannot doubt but they would have found a verdict for the plaintiffs in the other case, as they did in the suit against Wooten Whatley. We are satisfied with the proof of fraud in both cases.

It is, therefore, ordered and decreed, that the judgment in the case of Lacinia Chevalier et al., against Julia Ann Whatley and husband, be avoided and reversed, and that the verdict of the jury be set aside. And it is now ordered, adjudged and decreed, that the act of sale described in the petition be vacated and annulled, and that the plaintiffs, as heirs of William Simmons, be recognised as the true and lawful owners of the slave, Uaney, and her child, and recover possession of the same from the defendants, Julia Ann Whatley and husband. It is further ordered, that the judgment of the District Court, in the case of Lavinia Chevalier et al v. Wooten W. Whatley, be affirmed. And it is further ordered, that the defendants, in these consolidated cases, pay costs in both cases.


author: Spofford, J.

text:
    State v. Johnson Doyal
    Three persons signed a bond for the appearance of D., charged with an assault with a dangerous weapon. Two of the sureties delivered D. in compliance with their obligation under the bond. X>. escaped, after the delivery, and the State sought to hold defendant, the other su, ety, liable. Held: When one, of several sureties, on a single bond, avails himself of the privilege of surrendering the prisoner, it must be presumed to be done in the interest of his co-sureties, as well as nf himself, and it absolves all, if it absolves one.
    APPEAL from the District Court of Franklin, Barry, J.

      W. JET. Ilaugh, District Attorney, for the State.

      A. Bonner, for defendant and appellant.
   Spofford, J.

Kinehen Lassiter, Philip B. Brown and Diehard Doyal, were accepted by the Sheriff of the Parish of Franklin, under judicial order, as bail for the appearance of Johnson Doyal, to answer a charge of an assault with a dangerous weapon. The usual appearance bond was given in the penal sum of §1,000, conditioned that the accused should appear at a certain term before the District Court of Franklin Parish, and there remain from day to day and from term to term, until discharged by the court. All the parties signed the same bond.

Two days before the arraignment of the accused, Hinchen Lassiter and P. B. Brown, two of the sureties appeared, “and in open court, surrendered and delivered into the hands of the sheriff, the defendant, Johnson Boyal, and asked to be released from his bond, which was granted, and they, Hinchen Lassiter' and P. B. Brown, were released from said bond.”

Afterwards, the prisoner escaped, and the bond aforesaid was forfeited against the remaining surety, LiiehardBoyal, who has appealed.

The bond was a single instrument. Non constat, that the sheriff would have accepted Bicha/rd Boyal alone, as sufficient bail for the prisoner, or that Bicha/rd Boyal alone, would have been willing to stand bail.

When two of the sureties availed themselves of the Statute and surrendered the accused “into the hands of the sheriff,” he became again a prisoner, and the contract of bail was at an end. The sheriff could enlarge the prisoner only by taking a new appearance bond. It does not appear that any new bond was taken and the appellant was improperly held upon the old one which had been discharged.

It is true the Statute reads “any surety may be relieved from responsibility by making a formal surrender of the defendant, or party accused, to the sheriff, or his deputy, in open eourt, or within the four walls of the prison of the Parish, and not otherwise.” Revised Stat., p. 170. But when one, of several sureties, on a single bond, avails himself of this privilege, it must bo presumed to be done in the interest of his co-sureties as well as himself, and it absolves all, if it absolves one.

Judgment reversed. And it is ordered that the State take nothing by its motion.

Those oases were not reported in the volume for 1850, in consequence* of the Transcripts not having been received by the former Reporter, W. M. Randolph, and they are now reported by him. — Rep.


author: Merrick, O. J.-

text:
    Lyons v. O. Hinckley. Hinckley v. Lyons.
    Article 443-of the-'Civil Code does not establish against the proprietor of the soil, on the banks of navigable streams, a servitude in favor of the public at large, for all purposes, but only for such as are incident to the nature and the navigable character of the streams washing the land of such pro-prietor.
    The Act passed Feb. 7th, 3829, relative to roads and levees, establishing a highway on the banks of bayous, &c, &c., does not apply to those streams or bayous running through a high country, not subject to overflow, and when the roads are made directly across the country and not along the winding of the streams.
    APPEAL from the District Court of St. Landry. Pupré J.

      Morrogh & Mouton and J. H. Overton, for Lyons.

      T. H. Lewis & Porter, for Minékley, appellant.
   Merrick, O. J.-

The defendants, Hinckley,, and others, are in possession of a lot of a ground of about three acres in the town of Washington, situated on> the bayou Oourtableau. This tract of land-was used as a tan yard-as long ago as 1833, for which purpose it is still occupied. No public road was laid out previous to this controversy, or used on this part of the Bayou, except to go to* defendant’s tan yard. About the time of the commencement of this litigation in July, 185!, the plaintiff put up a saw mill on the small tract or lot on the bayou above that of the defendants- He claims that the defendants shall suffer a road, to be opened in front of their tract of land, on the bayou. It is-proved that the land on the bayou beyond the mill is broken,- that the road is of no public utility further than to enable people to go to plaintiff’s mill, that the mill stands partially in the line of the road and that there would be not cause or reason to extend the road up the bayou beyond the mill, and that the plaintiff has no egress for carriages to the public roads, except across private property, unless it be determined that the public have the right to a highway across the front of the defendant’s land. It appears by so much of the plan of Washington as is in evidence, that no public street was laid out to intersect or touch the lot of the plaintiff, and the street forming the public landing of the town on the bayou, terminates at the lower line of defendant’s tract of land. The land on the bayou in the-town of Washington, appears to be high, and consequently not subject to overflow at any stage of water.

The defendants have enjoined the plaintiff in the second of these consolidated cases. Judgment was rendered in favor of plaintiff, sustaining his pretensions and for three hundred dollars damages, on account of the wrongful suing out of the injunction. The defendant in the first, and plaintiff in the second suit, have appealed.

It is contended on behalf of the plaintiff that inasmuch as the bayou Courtableau is a navigable stream and connected with the Mississippi river, that the plaintiff has a right to a road in front of the defendant’s land lying upon the' bayou, in virtue of the Act approved Feb. 7, 1829, relative to roads and levees, and Art. MG and 661 of the Civil Code. The ninth section of the Act of 1829, p. 80, is in these words:

“ That every owner of lands, situated on the banks of the river or bayous runningto andfrom the same or other waters connected therewith throughout this State, shall bebound to giveto the public, and to keep constantly in good repair, a highway at least twenty-five feet wide, on the whole front of his property, which highway shall he swelled in its centre, and be lined on each side by a draining ditch at least one foot wide, and one foot deep; provided that these two ditches shall communicate with each other by means of ditches at least two feet wide, which shall he made across the road at least one for every four arpents, arid which shall be extended in the depth of the land so as to drain the said highway, and to facilitate the running off of the waters which filtrate through the levees ; provided also that the portions of the ditches which shall cross the highway, shall be covered with bridges, each of which shall be at least twenty feet long and one-third wider than the ditch, and be made with' planks two inches thick, nailed or pinned on five joists, placed level with the road in such a manner that by means of each being added on both sides, the height of said bridges be not so sensible as to hinder the free passage of carriages or carts; provided that the' provisions of this section shall not apply to the parishes of West and East Feliciana and that part of the parish of East Baton Rouge lying above the town of Baton Rouge.”

It is evident that the above section is broad enough to cover the case before1 us. But it is contended by the defendant’s counsel, that the present case was-not intended to be embraced by the statute, because the land bordering upon the bayou being high land, does not possess any of the characteristics of the' land over which the roads mentioned in said section were expected to pass, and that as the lands now under consideration are like the' excepted lands in Baton-Rouge and East and West Feliciana they must, by a reasonable and fair construction of the statute, be considered as excepted from its operation.

To this it is replied that the Civil Code by making the banks of navigable rivers public, have given the public a right of way over them and the statute in question does not repeal the article of the Code, but is in aid of them by reg ulating the width of the road and manner in which the same shall be made. This reply is not well founded. Article 446 provides that “ the use of the banks of navigable rivers or streams is public, accordingly every one has a right freely to bring his vessels to land there, to make fast the same to trees which are there planted, to unload his vessels, to deposit his goods, to dry his nets and the like.”

Nevertheless, the property of the river banks belongs to those who possess the adjacent lands.

The character of the servitude which is due from the proprietors of the soil is here described, and instead of being for the use of the public at large for all purposes, is only for that which is incident to the nature and the navigable character of the stream washing the land of such proprietor. 5 Ann. 36. This servitude is also confined to the banks of the navigable stream. It has been judicially determined that the banks of the Mississippi are that portion between the levees and the water. 8 Rob. 214,

As to those water courses which are enclosed, or bounded by high lands, the banks are those portions of land between the water’s edge and the highest line attained by high water. Ripa eaputatir esse quae plenissimun flunen eontinet, Dig. 43, 12, 3, 1. The public cannot claim the use of the entire surface of the declivity of a hill or mountain, the base of which is washed by a navi, gable stream.

We think, therefore, that the articles of the Civil Code give no additional force at least to so much of plaintiff’s demand, as applies to that part of the road sought to be made above the true bank of the bayou, and the case therefore depends upon the construction of the Act of 1829. The title of this Act is “ An Act relative to Roads and Levees.”

The first section of the Act shows what was intended to be embraced in it, and at once indicates its scope and object. It is in these words. Be it enacted &c., “ That throughout all the portion of the State watered by the Mississippi and the bayous running to and from the same which are settled, where levees are necessary to confine the waters of that river, and to shelter the inhabitants against inundations, the said levees shall be made by the riparian proprietors in the proportions and at the time hereafter prescribed.”

Here, then, the object of the Act is apparent. It is a matter of public necessity, and to shelter the inhabitants against inundations. , As each proprietor was personally interested in his own protection as well as his neighbors, and as the roads must of necessity pass upon the front of the river or bayous, and the contribution of each land owner will be as equal as the same can be assessed, and as the property will be of no value without the levee, the legislature had the power to compel such riparian owners to make those levees and roads in front of their plantations without further compensation than the increased value which such works would confer upon then’ lands.

But this statute was not intended to apply to those streams or bayous running through a high country not subject to overflows, and where the roads are made directly across the country and not along the windings of the streams.

This being the character of the country about Washington, the reason of the law ceases, and the law itself must be held to have ceased particularly as otherwise it would be in direct conflict with Art. 105 of the Constitution, which declares that vested rights shall not be divested, unless for purposes of public utility, and for adequate compensation previously made.

This controversy, it must be borne in mind, is one in regard to the right of the plaintiff, Lyons, under the authority of the town of Washington to open and use a highway, or street, through the lands of the defendants, without making the indemnity required by the Constitution, and this decision must not be considered as an expression of opinion upon the power of the Corporation, if any such it have; under the Act of 1852, p. 77, to regulate the landing upon such parts of the banks of the Bayou Courtableau, within the town, as may be public.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided' and reversed; that the said suit of John Lyons v. Hinckley & Johnson, numbered on the docket of the lower court as No. 7250, be dismissed, and the injunetion therein dissolved; that in the suit of said Oraniel Einalcley, William Offit, Nathaniel Offit and James Johnson, against said John Lyons, there be judgment in favor of said last mentioned plaintiffs and against said John Lyons, and that swtLyonshe perpetually injoinedfrom making a road across the said' premises of said last mentioned plaintiffs, and from using their said premises for the purposes of a public highway, or private road, and it is further ordered that the said Lyons pay the. costs of both courts.


author: Merrick, C. J.

text:
    A. M. Templet v. J. Baker.
    The exclusion of warranty in an act of sale is not evidence of bad faith on the part of the purchaser,. But where the vendee in an act of sale declares that he is acquainted with the title, and when it is exhibited, the title appears defective, there is made out against the purchaser a prima facie case of the want of that good faith necessary in order to prescribe-
    APPEAL from the District Court of St. Mary. Gole, J.

      J. W. Wallcer, for plaintiff and appellant.

      J. G. Olivier, for defendant.
   Merrick, C. J.

This action is brought to recover of the defendant a slave which plaintiff claims as owner. Under our law, the question is, has the plaintiff a good title to the slave in controversy, and is it better than the defendant’s title ? The defendant claims title to the slave in suit by act of sale executed in Kentucky in favor of the defendant and his partner, made in August, 1841, and possession under his title in Louisiana, until 1844, when the slave ran away. He was taken from jail in 1851 by defendant. He had been lodged in jail as a runaway. The defendant, in December 1851, acquired the interest of his partner in the slave. One John Saunders, sold in 1841, in Kentucky, the slave in controversy to Bayles, the immediate vendor of defendant and his partner.

The iffaintiff’s title commenced in 1845. He presents an act of sale under private signature, hearing date May 25th, 1845, and acknowledged the same day before a Notary Public, wherein one John Scmnders of Buchanan County, Missouri, professes to sell to P. W. Johnson a slave named Cw'tw', about twenty-seven years of age, for $400.

On the 761 day of July, 1845, the slave having been for some time in the jail of the parish of Ascension as a runaway, P. W. Johnson by notarial act, sold the slave darter to the plaintiff for §400. The act of sale was made “ without any kind of warranty as to title or redhibitory vices or maladies ” and contains the following remarkable language, viz : and the vendee “ further declared, that he is fully acquainted of the manner in which said Johnson became possessor of said slave, and the character of vices of said slave, and is satisfied therewith, and requires no description herein.” The slave seems to have been in the possession of the plaintiff from the date of his purchase until 17th September, 1850, when he sold the slave to Edward Gaudin, with warranty, both as to title and redhibitory vices.

The slave ran away from Gaudin and was lodged in jail in Plaquemine about the 1st of December, 1851. The defendant having been informed by the jailor of the lodging in jail of the slave, obtained possession from the jail- or in the usual manner. Gaudin retroceded the slave to the plaintiff, and the action was instituted.

It is evident that there is a failure in the plaintiff’s claim of title, unless his possession for five years under his act of sale has given him title acquirendi eausa. For it is not shown that John Saunders of Buchanan County, Missouri, had any right to the slave in jail in Plaquemine, in the State of Louisiana.

If the plaintiff has acquired titlp under his deed by his possession, it is because he was a possessor in good faith, under a legal and sufficient title. C. CL 3445. We are not prepared to say that the exclusion of warranty in the act of sale is evidence of bad faith on the part of the purchaser, for there are, doubtless, many honest men who are unwilling to incur the risk of an action of warranty against them at a remote day, and therefore may be unwilling to warrant what they believe belongs to them by a just title ; nevertheless, we think where the vendee declares in the act of sale that he is well acquainted with the title, or in other words, the manner in which possession is acquired, and that title when exhibited, appears defective, that there is made out against him •a prima facie case of the want of that good faith necessary, in order to prescribe. The burden of proof is then upon him, to show that he was in good faith, and that the title which was made known to him, was not the defective one which has been exhibited in evidence. There being no such proof in the record on this point, the plaintiff fails in his title and the slave must be left in the defendant’s possession.

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


author: Buchanan, J.

text:
    Haven & Co. v. B. Hudson.
    The highest rate of conventional interest for the loan of money, and two and a half per cent, in addition thereto for advancing, is usurious.
    If a planter, for a consideration, engages to ship his crop to a factor, and violates his engagements, he will be liable for commissions on the crop.
    APPEAL from the District Court of St. Landry, A. Toorhies, J.

      J. W. Walher, for plaintiffs and appellants.

      Q-. Breaux and II. QiVbon, for defendant.
   Buchanan, J.

Plaintiffs sue for a balance of account current. The charges are for acceptances, cash advances, commissions and interest: and defendant is credited with proceeds of sugar and molasses, cash received, and interest.

Defendant pleads the general issue, and that the charges for interest and commissions are illegal. " •

The items of cash paid, and acceptances — also, the amount of cash and proceeds of crops received, are proved: and the questions really at issue may be reduced to two :

1st. Usury.

2d. Charges for commissions on crops not shipped by defendant to plaintiff, or their agent, Uewes.

I. As to the first of these questions, it is apparent that plaintiffs, in accordance with a commercial usage, very prevalent in this State, but which this court has frequently declared, is contrary to law, have charged defendant, not only with the highest rate of conventional interest, but with two and a half per cent, commissions upon cash advances. See Lalande v. Breaux, 5 Ann. 505.

We agree with the Judge of the District Court, that the commissions charged upon cash advances should be rejected; but we think that, as no contract for interest is proven, plaintiffs are entitled to recover legal interest. The counsel of plaintiffs, in this court, has appended to his brief, an interest account at five per cent, which we adopt as the basis of our judgment on this branch of the case.

We may observe, that no argument can be drawn in favor of the interest charged in the original account rendered, from the fact that defendant paid a large sum on account of the balance shown by that account. That payment must be imputed to the legal charges in the account, which exceeded the amount paid.

II. The charges for commissions upon crops of 1851 and 1852, are fully supported by the evidence, The defendant engaged, for a consideration, to ship those crops to plaintiffs or their agents in New Orleans, and violated those engagements.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and that plaintiffs recover of defendant, thirteen hundred and forty-eight dollars and nineteen cents, with legal interest on ten hundred and forty-four dollars and eleven cents, from 28th April, 1856, until paid, and .costs in both courts.


author: Lea, J.

text:
    T. Maskell v. T. Pooley—Trowbridge, Opponent.
    A credit appearing on a note, will not interrupt prescription, unless it is shown where and by whom the payment was made.
    Where a judgment creditor seizes property on execution and a third opponent sets up a privilege on the thing seized, it is competent for the seizing creditor to plead prescription against the opponent, nor will the circumstance that the opponent, since the filing of his opposition, obtained a judgment on his claim in a different court, affect the seizing creditor’s right to make the plea.
    APPEAL from the District Court of St. Mary, Voorhies, J.

      A. 8. Tucker for Trowbridge.

      J. G. Oliver, for Maslcell, Appellant.
   Lea, J.

The plaintiff, a judgment creditor of the defendant, having caused to be seized on execution, a twelve months’ bond, the property of the defendant, is opposed by Isaac Trowbridge, who avers that he has a privilege upon said bond or its proceeds of a higher rank than that of the seizing creditor: the said bond being a part of the proceeds of a property upon which he has a recognized privilege as a furnisher of materials, as appears from the note of the defendant, which is in the following words:

§404 65. Eranklin, La., June 20, 1848.

One day after date, I promise to pay to M. Walker & Go., or order, four hundred and four dollars and sixty-five cents, for value received in lumber and nails and other materials furnished for school house, dwelling, kitchen and store house, on which M. Walker & Go., have a privilege, and I hereby acknowledge their privilege tohe good and correct on the same, bearing interest at eight per cent., from the first of June until paid. Thomas Pooley.

This note is credited with a payment of $45 75, purporting to have been received on the 14th of January, 1853. To the claim thus set up, Maslcell pleads the prescription of six months, as against the privilege, and that of five years as against the note. We think it material to examine, only, the validity of the plea of prescription of five j^cars.

The third opposition of Trotobriclge was not filed until the 2d of Eebruary, 1855, nearly seven years after the maturity of the note. On the same day that the third opposition was filed, the opponent instituted a suit upon the note, against the defendant, against whom he, afterwards, obtained judgment.

The only proof offered to establish an interruption of prescription, consists in the endorsement upon the note of the credit of $45 75, purporting to have been made on the 14th of Januaiy, 1S53 ; but there is no evidence showing by whom or when this endorsement was made. We think the District Judge erred in considering the note as relieved from prescription by the endorsement appearing upon it; proof should have been made of the payment and of the date when it was made. The fact that the third opponent, after the filing of his opposition, obtained judgment, in a distinct suit, against the defendant, in no manner impaired the right of the plaintiff, as a judgment creditor of the same defendant, to plead prescription against the note sued upon.

It is ordered that the judgment appealed from, be reversed, and that there be judgment in favor of Thomas Maslcell, the appellant, and against Isaac Trowbridge, the appellee, decreeing that the demand contained in the third opposition of said Troiobridge, be rejected, and said opponent and appellee pay costs in both courts.


text:
    Elodie Lambert, wife, &c. v. M. King.
    Plaintiff employed K. as hev overseer and stipulated that he should receive a portion of the proceeds of the crop as compensation for his services. Plaintiff, on grounds deemed sufficient, dismissed him before h is time was up. Held: That K. was entitled to compensation for the value of his services up to the time of his discharge, and that in estimating the value, reference should be had to the stipulations of the contract; to the probable amount which the defendant would have received, had there been no violation of the contract: and to the probable receipts of the plaintiff, had K. discharged his duty in every respect.
    APPEAL from the District Court of St. Landry, Dupré, J.

      T. H. Lewis and Partee, for plaintiff and appellant.

      J. E. King and Swcmjze & Moore, for defendant.
   Lea, J.

The defendant was employed by the plaintiff as overseer of her plantation in November, 1853. By the terms of the contract, which was reduced to writing, the defendant was to have the exclusive management of the plantation, and was to “do all the work necessary on said plantation, such as fencing, &c.,” for which he was to receive “ten dollars for every 1,100 pounds of sugar” he should make on said plantation, and “should there not be seed cane enough, said party (viz: Miehael King,) should plant cotton, and receive one-fourth of the nett proceeds of the crop, according to the return of the sales.” The defendant moreover agreed to plant com and “to save such other provisions” as might be necessary for horses, such as hay, fodder, &c. The plaintiff, on her part, agreed to furnish to the defendant, at the date of the contract, nine slaves, and on the first of January, 1854, to add two others to the number; also, such mules, oxen and horses, as might be necessary to the working of the plantation. About the end of August, 1854, the plaintiff considering that the defendant had been guilty of mis-conduct in the management o^ the plantation, and the treatment of the slaves, as well as in his personal demeanor towards herself, notified him to leave the premises, and discharged him from her service.

The defendant disregarded the notice, and claimed the right under his con tract of remaining on the place, whereupon the plaintiff brought suit, claiming that the contract be annulled; that the defendant be enjoined not to interfere further in the management of the plaintiff’s plantation, and that he be condemned to pay $2,000 damages. The defendant denies any violation of the contract on his part; alleges a fulfilment of all its obligations ; claims compensation in accordance with its terms, and $2,000 damages, with a trial by jury.

We think the evidence shows that the plaintiff was justified in dismissing the defendant from her service, and to that extent, we concur in the verdict of the jury. The defendant was also entitled to a fair remuneration for the value of his services up to the time of his discharge, in estimating which, reference should have been had to the stipulations of the contract; to the probable amount which the defendant would have received, had there been no violation of the contract; and to the probable receipts of the plaintiff, had the defendant discharged his duty in every respect. Considering these as demands in the assessment of the remuneration to which the defendant would he entitled, we think a larger sum has been allowed to the plaintiff, than is justified by the evidence, and that, under all the circumstances of the case, substantial justice would be done between the parties by a deduction of $250, from the amount allowed by the jury.

. It is ordered, that the judgment appealed from, be reversed, and that there be judgment in favor of the plaintiff, Elodie Lambert, decreeing that the in-j unction herein issued, be maintained and made perpetual, and that the defendant, Michael King, do have and recover of the plaintiff, Mrs. Elodie Lambert, the sum of three hundred and fifty (350) dollars, with interest at the rate of five per cent, per annum, from the 5th day of September, 1854, till paid ; that the costs in the District Court, incident to the injunction, be paid by the defendant, King, and all the costs in said court, be paid by the plaintiff. It is further ordered, that the costs of the appeal be paid by said King, the defendant and appellee.


author: Mereick, C. J.

text:
    M. White v. C. Baillio et al.
    Where husband and wife make a note during the coverture, judgment cannot be obtained against the wife, where there is no proof that she was not separate in property, and no evidence to show that the consideration enured to her benefit.
    APPEAL from the District Court of St. Landry, Buprb, J.

      T. 3. Lewis and Porter, for plaintiff.

      J. E. King, for defendants and appellants.
   Mereick, C. J.

This suit was brought against Cordie Baillio, wife of Appolinaire Baillio, Thomas C. Anderson and Thomas M. Anderson, upon the following instrument, viz:

“Washington, La., April 9, 1851.
$2,500. Twelve months after date, please pay to the order of Thomas C. Anderson & Co., twenty-five hundred dollar's, for value received, and charge to account of Cora plantation, and oblige yours respectfully.
(Signed) Cordie Baillio.
Appolinaire Baillio.
To Messrs. Maunsel, White & Co., New Orleans.”
(Endorsed) “Thomas C. Andeeson & Co.”
(Accepted) “ Maunsel, White & Co.”'

The plaintiff alleged, in his petition, that the defendant, Cordie BaillioT is separate in property from her husband; that the “Cora” plantation is hers, and said draft was accepted for accommodation, and the money paid on account ‘ thereof, enured to her benefit and advantage, as owner of that plantation. There was judgment by defendant, in favor of the plaintiff, against all the parties to the draft in solido. On the trial, or the making final of the judgment by default, no proof was adduced that the defendant, Cordie Baillio, was separate in property from her husband, or that the proceeds of the draft enured to the benefit of her separate estate. She appealed.

The judgment, by default, did not dispense with tho proof that the draft enured to the benefit of her separate estate. C. P. 312. Eor, the case in which the wife may be responsible upon her obligations, is exceptional to the presumption established by Art. 2372, O. 0., ‘that the debt was contracted on account of the community, and to Art. 2412, of the Civil Code, which declares that “ the wife, whether separated in property by contract or by judgment, or not separated, cannot bind herself for her husband, nor conjointly with him for debts contracted by him before or during the marriage.”

The judgment of the District Court therefore, so far as it affects the appellant must be reversed.

It is, therefore, ordered, adjudged and decreed, by the court, that the judgment of the lower court, as uto the said Gordie Ballio, wife of Appolinaire Ballio, be avoided and reversed, and that there be judgment in her favor and against the plaintiff or his said demand, as in case of nonsuit. And it is further ordered, that the plaintiff and appellee, pay the costs of both courts.


author: Lea. J.

text:
    A Duperrier v. B. Dautrive et al.
    Remarks made by a slave, in conversation, and consisting merely of a detailed narrative of a past! occurence, should not be received in evidence, as forming part of the res gestee.

    Two members of a patrol company while on duty hailed a slave, at night, who was riding into a-village. The slave attempted to escape, whereupon the patrol fired on him, and inflicted wotinds of which he died. In an action by the master, against the patrol who shot liis slave, for damgaes. Held: That the plaintiff could not, under the circumstances of the case, recover.
    APPEAL from the District Court of the Parish of St. Martin, A. Voorhies, J.

      S. G. Olivier, for plaintiff and appellant.

      Simon & Gory, for defendant.
   Lea. J.

The plaintiff claims from the defendants, Bernard Baulrieve and Joseph Borett'e, the value of a slave who, he alleges, was unnecessarily and wantonly shot and mortally wounded by said Dautrieve, assisted by said Barrette, on the night of the first of August, 1855, of which wound or wounds his said slave died, on tho ensuing day.

The defendants, in addition to a general denial, specially plead that,- on the night in question, they were called out and summoned to compose the patrol of the town of New Iberia, in accordance with the police regulations and by-laws of the town council; that having been stationed on the upper limits of said town, and, while on duty, a negro man on horseback, unknown to respondents and to the patrol, made his appearance on the public road, and was about entering said town, when, on being ordered several times to stop and surrender, (the said negro being, by them, considered, and being in fact, a runaway slave,) he, tho said slave, instead of surrendering himself,- as he was bound to do, turned back and ran away from said patrol, galloping as fast as the speed of his horse would permit; and that respondents were ordered to fire upon said negro, who, though fired upon, escaped. They further aver that the death of said slave, was the consequence of the lawful act of those composing the patrol, for which,, under the laws of the State, and the facts and circumstances of tho case, they are not responsible.

On the trial of the case, a witness was offered to prove the declarations made by the slave upon his return home after he was shot; These declarations were admitted as forming part of the res gesten of the transaction.

"We think that remarks made in conversation consisting merely of a detailed narrative of a past occurrence by a person himself, incompetent to testify, should not have befen received as formihg a part of the res gesten connected with the occurrence itself. We therefore reject all that part of the testimony which consists in the declarations of the slave, from the statement of the facts as detailed by those who accompanied the defendants as belonging to the patrol, and as developed in the testimony of other witnesses, we consider it conclusively established, that the plaintiff’s slave was not a runaway, but was a valuable and confidential slave; that he was going on horseback with the full assent and standing permission of his master, to the residence of Mrs. í)ubuclet, with whom his wife resided, in the town of New Iberia, but, that while on his way, in the public road, at about 11 o’clock at night, when about entering the town, he was ordered to stop by the patrol. That the slave did stop as he was ordered to do, but, either for the purpose of escaping because of his apprehension of the consequences of an arrest, or in consequence of the shyness of an unbroken horse, he started back in a gallop, when the defendants, both of whom were armed with shotguns, fired upon him three times when at a distance of about thirty'five yards, after having previously called upon him to stop. The negro being mortally Wounded, returned home and died the next day.

Under the circumstances, the defendants, who were charged with duties as members of the patrol, were authorized to infer that the defendant’s slave was endeavoring to escape a lawful arrest. Recent disorders among the slaves in and about the town of New Iberia, had made it a matter of importance that the laws relative to the police of slaves, should be strictly enforced. The slave in question was repeatedly called upon to Stop, and it was not until there was every reason to suppose that he would otherwise effect his escape, and that he could not be overtaken by pursuit, that the defendants fired upon him. In so doing, we think they were protected by the terms of the 65th section of the Act of 1855, Which provides that if any slave shall be found absent from his usual place of working, or residence, without some white person accompanying him, and shall refdse to submit himself to examination, any free holder may be permitted to seize and arrest him, and if he should resist, or attempt to make his escape, the freeholder is authorized to make use of arnis, but to avoid killing the slave; but should the slave assault and strike him, he is authorized to kill him. The “use of arms” without the desire, or deliberate intention of killing, necessarily implies at least a risk of killing, and this phrase was, we think, intended to embrace cases similar to that now under consideration.

It is ordered that the judgment appealed from be affirmed.


author: Merrick, O. J.

text:
    James G. Hayes v. Valentine C. Clarke et al.
    The facts of this case, it was hétela establish simulation.
    The original papers from other Clerks*' offices will not be received to complete* a record- in the Supreme Court.
    APPEAL from the District Court of St. Lancfry, Dxvpr'e, J.

      J. E. Zing, for plaintiff' and appellant.

      T. 3.. Lewis and Porter, for defendants.
   Merrick, O. J.

The defendants seized under an execution, as the property of Joseph E. Andrews, against whom they had judgment, a tract of land and two slaves, in his possession. The plaintiff opposed the sale on the ground that the property had been previously conveyed to him by Andrews. It is proved that at the sale JLcm/es counted down the price in the presence of the Notary and the witnesses. But it was shown that he was the son-in-law of Andrews; that he was comparatively without means; that Andrews must have had funds in his hands as administrator, and could easily have produced that amount of money for the purpose of the simulation; that he was embarrassed in his individual affairs; that the property remained in his possession notwithstanding the plaintiff was in- a condition to need the services of the slaves which he pretended to have purchased, and that the property sold constituted almost the only remaining property of Andrews, and' that the sale was made during the pendency of the suit of Otarle against him, and only thirteen days before the judgment was rendered.

We are not prepared to say that the District Judge, who probably knows the parties and witnesses, erred in concluding, on this evidence, that the salar was a simulated one. C. C., 1915, 2456.

Under the peculiar circumstances of this case, we have looked into the original records sent up and completing the record of the case. But as the original-records are liable to he lost, when taken from the proper office,, we take this occasion to say that hereafter the original papers of other offices will not he-' received to complete a record of a case pending in this court.

It is ordered, adjudged and decreed, that the judgment of the lower court he affirmed with costs.


author: Merbick, O. J.

text:
    A. Furguson, Widow, &c. v. Glaze.
    The casestof Taylor v. Jeffrey's estate, 10 La , 435, decided in 1836, and 3fic7iai v. Floite’s admwiis* iraiot'f 32 La. 129, decided in 1888, deciding that the functions of an administration of an estate, did not, like those of an executor, cease at the end of a year, bus continued until the administration. was finished, correctly declared the law.
    A judgment against the principal debtor is prima facie proof of the amount for which the surety on an administrator’s bond is liable, and until rebutted by sufficient evidence, no other proof is required.
    An action brought against the principal debtor, interrupts the prescription on the part of the surety. a C. 3518.
    Neither the principal nor his surety can introduce parol evidence to vary a written contract.
    APPEAL from the District Court of St. Landry, A. VoorMes, J.

      J. K. King, for plaintiff.

      J. K. Lewis and Porter, and Swmjze & Moore, for defendant and appellant.
   Merbick, O. J.

This suit is brought against the defendant as surety on an administrator’s bond, and was before this court last year on an exception to the jurisdiction of the District Court for the parish of St. Landry. 10 An. 635. It is a branch of the same case decided by our predecessors at Alexandria, and reported in 12 Rob. 215.

The administrator’s bond, on which the defendant is sought to he made responsible, hears date May 1st, 1837, and was made payable to the parish Judge of the parish of Avoyelles, 'for $29,120.

In 1840, the plaintiff instituted proceedings against Patricio H. Glaze, the principal in the bond, as administrator of the succession of Silas F. Thomas, to render his account and to pay petitioner eight thousand dollars, the amount .of her interest in the estate as widow in community. The administrator having fried his account of his administration, it was opposed by the plaintiff in this action, by a formal opposition filed 21st of February, 1841. That suit appears to have been obstinately litigated by the parties, and resulted in a final judgment rendered on the 2Gth day of October, 1850, decreeing a balance to be in the hands of the administrator of $8,661 12J-, hearing five per cent, interest per annum from the 1st day of February, 1841, the date of the filing of the account, until paid.

This suit was commenced against the surety on the bond of the administrator, the 1st day of May, 1851.

It is contended, in substance, that the term of the office for which P. H. Glaze was appointed administrator, was from year to year; that at the end of the year, his administration not having been prolonged, terminated, and he was functus officio, and, that being out of office, after the first day of May, 1888, his subsequent acts were but those of an intermedler, for which his sureties were not responsible.

It is contended further, that the Act of the Legislature, approved 15th of March, 1837, and which was not promulgated in the official gazette until April 8, 1837, and consequently was not in force in the parish of Avoyelles until 8th of May, 1S37, could not effect or change the bond given eight days previously: the seventh section of this Act continuing in office all executors, a&mvrAsPrators, curators and syndics, until the estate is wound up. Acts 1837, p. 96, 97.

It is further contended, that by the Civil Code, Arts. 1197, 1199 and 1201, the office of the curator of a vacant succession terminates at the end of one year, and that Article 1042 of the Civil Code, and Articles 992 and 994 of the Code of Practice, prescribe that administrators shall have the same powers, and are subject to the-same duties and responsibilities, as the curators of vacant estates; that administrators and curators of vacant estates having been placed on the same footing as regards their duties and responsibilities, the argument is as applicable in the case of the former as the latter; that if administrators have the same powers as curators, their powers cannot be greater or less ; that “ if the curator became functus officio, and could not act after the expiration of a year without a prolongation of his administration, neither can. the administrator. If he can, then he has greater powers than the curator, and not the same powers — which is a contradiction,” 10 R. 457 ; 7 R. 24.

“ Whether the administrator becomes functus officio at the end of the year or not, he is certainly ‘ subject to the same duties.’ The Article 1199 of the Louisiana Code, required a renewal of the security, and commanded the Judge to exact it. If the Judge neglected it, the parties interested should have required it. At all events, the law, by requiring a ‘ renewal of the security,’ did not hold the first security any longer bound. Else why require a renewal of the security” ?

It is a sufficient answer to this argument to say, that the question was considered by the Supreme Court, and settled after a full argument in the case of Taylor v. Jeffries estate, 10 L. R. 435, decided in 1830, one year before the Act of 1837 was passed, and the bond in this case signed, and “it was there held, that the term of office of the administrator was not limited to one year. In 1838, it was again decided in the case of Michot v. Flottés administrator, 12 L- R. 129, that the functions of an administrator of an estate do not, like those of an executor, cease at the end of the year, but continue until the administration of the estate is finished.” These decisions appear to have been acquiesced in by the profession and must now be held as conclusive. The surety on the bond was, therefore, responsible for the acts of said P, 3. Glaze as administrator, after as wall as before the expiration of the one year from the date of his appointment.

The defendant further contends, that it is the duty of the plaintiff to prove the amount of funds of the succession received by the principal, in order to recover against the surety, and cites the case of the Succession of Johnston, 1 Ann. 75.

In this case, the judgment against the principal debtor is prima facie proof of the amount for which the surety is responsible, and until rebutted by sufficient evidence, no other proof is required.

It is further contended, that the obligation sued on, is prescribed by the ten years which elapsed previous to the inception of this suit.

Proceedings were commenced against the principal debtor within about three years of his appointment, and interruptedly prosecuted until 1850. This interrupted the prescription as to the surety. O. O. 3518.

It is further contended, that the administrator is entitled to a credit of $5,000, because it is urged, that “on the 5th day of June, 1835, Patrick, 3. Glaze sold to Silas F. Thomas, deceased, a tract of land on Bayou Boeuf, together with the improvements and the merchandize contained thereon.

“ The consideration of the sale was five thousand dollars. Pato'ialc 3. Glaze, the administrator, in the contest between himself and the plaintiff alleged that the sale was simulated; that the price, although stated in the act to he paid cash, was never so paid, and that the transfer was intended to give Thomas credit, in order that he might the more successfully prosecute his mercantile business.”

This point was fully considered in the case of this plaintiff against P. 3. Glaze, (12 Bob. 217,) and it was there held, that the credit was properly rejected. The parol proof can no more affect the case, as to the surety on the bond, than it could his principal. There is no written evidence which gives a different complexion to this part of the case, from that which it bore when before our predecessors.

On the trial of the case against P. 3. Glaze, in the parish of Avoyelles, certain large items of credit claimed by the administrator, were reduced one-half, sis being the payment of certain joint obligations of the deceased and the administrator. A number of other items were rejected, because the payments thereof were not produced.

On the present trial the principal in the bond having been released by the surety, was placed on the stand as a witness, (to which a bill of exception was taken,) and testified: that he paid all the items charged in his account of administration ; that certain items were the exclusive indebtedness of the deceased ; and that the intestate assumed a note of $2,239 39.

Even if it be conceded that the witness could be heard to contradict a judgment imparting absolute verity against him, we are not prepared to say that the District Judge erred upon testimony of this general character, and in the absence of tlje obligations, or at least copies thereof alleged, so to have been assumed or paid, in concluding that the testimony was insufficient and too uncertain to show error in the judgment rendered against the principal debtor, and now produced against, the surety. O. O. 2257.

The judgment must be affirmed.

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


author: Meeeick, C. J.

text:
    T. M. Anderson v. R. B. Stille, Tutor.
    Ule District Judge of the Parish in which the slaves ave situated, lias jurisdiction to try an action for their partition.
    Plaintiff need not, in order to sustain a sequestration, swear that he fears defendant will conceal, part with, or dispose of, the property sequestered. It will be sufficient if he make oath of his interest in the property sequestered, and that he fears that defendant will send it out of the jurisdiction of the co-irt during the pending of the suit.

      k üPPEAL from the District Court of St. Landry, Dupré, J.

      J. L. King, for plaintiff and appellant.

      Swcmjze & Moore, for defendant.
   Meeeick, C. J.

The plaintiff being the owner of the one undivided sixth part of the slaves in controversy, by the judgment of the District Court of St. Landry, brought the present action to effect a partition.

The slaves were in the possession of the defendant, in the Parish of St. Landry, and about being removed to the Parish of Sabine, where the defendant resides.

The plaintiff also sued out a writ of sequestration, to prevent the slaves from being removed beyond the jurisdiction of the court.

The defendant excepted to the plaintiff’s action, which, being dismissed, plaintiff appealed.

It is contended, 1st. That the defendant’s domicil being in the Parish of Sabine, this action ought to be instituted there; 2d. That no sufficient ground for the resort to the harsh remedy of a writ of sequestration, has been shown by the plaintiff in his affidavit.

On the first question, it is urged that the term “real property,” used in Art. No. 105, No. 11 Code of Practice, is intended to embrace land; that the suit for a partition of slaves, is governed by the general rule, that one must be sued before the Judge having jurisdiction over the place where the defendant has his domicil. O. P. 162.

A judicial construction was put by our predecessor upon the term, real property, as used in the Article 162, O. P., in the case of Scott v. Bowles, 3 Ann. 637, and it was there held, that “slaves being immovable by operation of law, plaintiffs had their election to institute an action for their recovery, either in the parish where the property was situated, or at the domicil of the defendant.”

We see no reason why a different construction should be put upon the same words occurring inthearticle under consideration, which provides, that in matters relative to the partition of real estate between co-proprietors, the suit must be brought before the court of the place whore such property is situated, though the co-proprietors may reside in different parishes.

We have not overlooked the language of the French text, d'un bien-foncls, but wo think the English text, which is in accordance with Article 1304 of the Civil Code, should govern. The article last cited from the Civil Code, is under the head of partition of successions, and is in these words: “All the rules

established in the present section, with the exception of what relates to collections, are applicable to partitions between co-proprietors of the same thing, where, among the co-proprietors, any are absent, minors, or interdicted, or where the co-proprietors of age, present, cannot agree on the partition and on the manner of making it.

But in these hinds of partitions, the action must be brought before the Judge of the place where the property to be divided, is situated, wherever the parties interested may be domiciliated.

The District Judge for the Fifteenth Judicial District, for Parish of St. Landry, had jurisdiction of the action of partition.

It is further contended, that the affidavit for the sequestration, is insufficient, and that it does assert that plaintiff feared that defendant would conceal, part with, or dispose of the slaves.

It was not necessary in this action, that the affidavit should show such apprehension. It was sufficient, under the 2d paragraph of Article 275, of the Code of Practice, that the plaintiff should make oath of his interest in the property, and that he feared that the defendant would send the slaves out of the jurisdiction of the court, during the pendency of the suit.

No person can be compelled to hold property in common with others. O, O. 1215. The plaintiff had the right to institute his suit at any moment he saw fit, and having brought his action whilst the property of which he was a co-proprietor, was in the Parish of St. Landry, the jurisdiction of the District must be maintained.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court he avoided and reversed; that the defendant’s exception be overruled; that the sequestration be maintained, and that this cause be remanded for further proceedings according to law, and that the defendant and appellee pay the 'costs of the appeal.


author: Buciianan, J.

text:
    J. H. Stokes v A. Forman, Administrator.
    S. purchased property at the succession sale of tf. and gave his note for the price. S. having mar* ried P’s widow, and suit having been brought on the note, he plead in compensation the interest of his wife in the community of P. and herself. But held, the plea was bad, because the quality of-debtor and creditor Was not united in the same person, and because, also, the debts were not-equally liquidated and demandable.
    APPEAL from the District Court of Vermillion. YoorMes, J.
    D. O'Brien, for plaintiff and appellant.

      O. E. Mouton & A. lie Blame, for defendant.
   Buciianan, J.

The plaintiff purchased a slave at the succession sale of* Eeville .Forman's effects, and gave his notes for the price, secured by special mortgage upon the slave. At maturity the notes being unpaid, suit was brought via exeeutiva and the slave was seized. Plaintiff now enjoins the sale on the' grounds, 1st, That he is entitled to plead in compensation, the share of huswife (who had been the widow of Eeville Forman,) in the community of ac-quests and gains formerly existing between her and said Forman.

2d. That there was no proof of the notes having been demanded of him, at the place where they were made payable.

I. In the case of Fhibodeaux’s succession, 10 Ann. p. 653, it was held that the-administrator of a succession could not compensate the unpaid price of a purchase of succession property, against the share coming to the wife of the’ purchaser as an heir of the succession. The converse of the proposition is here presented, and must receive the same solution. It is evident that to effect compensation the quality of debtor and creditor must be united in the same person, which is not the case before us. Again, the two debts must be equally liquidated and demandable, which is not shown in the present instance.

As to the necessity of proving presentation at the place where the note is payable, as a prerequisite to recovery against the maker, this cannot be considered an open question since the case of Ripka v. Pope, 5 A. 61, in also 5 Ann. 188, Ibid, 720, 3 Ann. 90, Ibid, 131.

The appellee has asked for damages for a frivolous appeal, and we think him-entitled to them.

It is therefore adjudged and decreed, that the judgment of the District court be affirmed, with eighty dollars damages for this frivolous appeal, and- costs in-both courts.-


text:
    John Devalcourt v. M. E. Dillon—same v. same—Consolidated cases.

      A, being indebted to S, deposits in his hands, merchandize to be sold, and the proceeds to be applied to the extinguishment of the debt. This constitutes a contract of mandate between A and J3,which obliges the former to reimíravse’the latter, whatever necessary and useful expenses have been incurred in fulfilling the object of the mandate.
    A nonsuit entered up against a party who does not appear when called in court, is not such an abandonment of the suit, as prevents it from, interrupting prescription.
    APPEAL from the Bistrict Court of St. Martin, Dupre, J.-

      J. C. Oliver, for plaintiff.

      Martin VoorMes, for defendant and áppellíint
   Buchanan, J.

The receipt filed with this answer, does not prove a payment of the note, which is fhe basis of the first of these suits, as contended for by defendant’s counsel. It shows that a bill of lading of certain merchandize had been put into plaintiff’s hands, the proceeds of which merchandize to be applied in extinguishment of the note of defendant. But the depositions of witnesses examined under commissions, and the record evidence from New York, establish that this shipment of molasses and sugar, did not benefit plaintiff, but was, on the contrary, a source of great trouble and expense to him; and that, far from realizing anything from the proceeds of said shipment, he was compelled to disburse money in costs and charges; of which he claims reimbursement in the second of these consolidated cases.

The prescription of five and ten years, pleaded by defendant, has not been acquired. It is well settled, that a nonsuit entered up against a party who does not appear when called in court, is not such an abandonment of the suit, as prevents it from interrupting prescription: and in this case, the absence of plaintiff at the October term of 1854, is accounted for by the epidemic which, then prevailed, and’ the death of' his counsel.

Neither is the prescription of one year, applicable to the second of those suits. This is an action ex contractu, not ex delicto. A, being indebted to B, deposits in his hands merchandize to bé sold, and the proceeds to be applied in extinguishment of the debt. This constitutes a contract of mandate between A and B, which obliges the former to reimburse the latter whatever necessary and useful expenses have been incurred in fulfilling the objects of the mandate.

It is not perceived that the article 8508, of the Code, has any application to these actions.

The amounts allowed by the court below, appear to us correct.

It is proved that the plaintiff paid a bill of exchange drawn upon him at one day’s sight for the costs and charges incurred in New York by reason of the shipment of the molasses and sugar in question, and a witness, John Compton, proves that those costs and charges were actually incurred. The schedule or account, of those charges, includes a charge of interest at fhe rate of seven per cent, per annum, by Compton, in New York, which is believed to be in accordance with mercantile usage. The charge of half commissions on cargo was properly rejected.

Judgment affirmed, with costs.


text:
    B. R. Gautt v. Gautt.
    A party who offers proof, that would be inadmissible under our law, of a contract said to have taken place in another State, must show that such proof would be admissible, to prove the contract, in the State where it took place.
    I PPEAL from the District Court of St. Landry, VoorJdes, J.

      JR. F. Linton and J. Dupré, for plaintiff and appellant.

      J. M. Porter, for defendant.
   Buchanan, J.

This case is before the Supreme Court for the second time, having been remanded in order to enable the plaintiff to amend his pleadings. See 6 Ann. 677.

Plaintiff bow claims,

1. Eor cash advances and hire df slaves, from the year 1840 to the year 1849.

2. Eor slaves sold by the mother of the parties, to pay defendant’s debts.

3. Slave Rachel and two children.

I. There is a document in evidence which is regarded by us, as a settlement of the respective claims of these parties against each other, to the day of its date, to wit: December 7th, 1844. It is a notarial act, by which plaintiff sells to defendant, a slave named Hiram, four mules, a gin stand, and all the vendor’s interest in the crop of cotton and corn, of the year 1844, upon the plantation where defendant resided, for and in consideration of the sum of three thousand dollars, which plaintiff acknowledged to have received in the proceeds of the crops raised on said plantation in 1841 and 1842, collected by and appropriated to the use of plaintiff.

The testimony on the subject of cash advanced by plaintiff to defendant, is vague, and refers, in a great measure, to dates anterior to the settlement aforesaid, The District Judge has allowed $349 81 on this head of plaintiff’s claim, and it is not clear to our mind that there is error in this allowance. As to the hire of slaves, it is barred by prescription, except for the three years preceding the institution of the suit. O. O. 3503. The District Judge has allowed two years’ hire of five slaves, Hiram, Alfred, Daniel, Judith and Lina, at one hundred and forty dollars per annum, for each. In this, we think there is error.

The title of Hiram, Alfred, Daniel and Judith, was in defendant, up to the 6th April, 1849, about which time they ceased to work on his plantation. JAna, alone, appeai-s to have belonged to plaintiff, while at work there. Under the evidence, we allow one hundred dollars per annum, during three years, for the services of JAna.

II and III. The claim for the price of Arthur and Aimée, and that for Rachel and children, were properly disallowed by the District Judge. The proof on the first of these claims, is improbable and unsatisfactory. As to the second, it appears that plaintiff bought Rachel, without children, at a probate sale in 1840, but never paid her price; and that upon execution issued against him therefor, defer.c..v.',i became the purchaser of Rachel and her infant child in 1844, at sheriff’s sale, for cash. The title oí Rachel and child, consequently, vested in defendant.

Both parties appealed from the judgment of the District Court, and we find in the record, three hills of exceptions, taken by plaintiff, to the rejection of evidence.

The first bill of exceptions is to the rejection of parol proof of sale of a slave in Alabama, the plaintiff not having laid a basis for the admission of such proof, by proving the law of Alabama, in relation to the form of such sales.

There is no error in this ruling. It is clearly the duty of a party who- offers proof,, that would be inadmissible under our law, of a contract said to have taken place in another State, to show that such proof would he admissible to prove the contract in the State where it took place.

The second bill of exceptions is to the rejection of parol evidence to prove title to land and slaves in Louisiana, and a partnership in the fruits of such land and slaves.

The questions involved in this bill of exceptions wore decided by our predecessor on the former appeal, (the depositions of the witnesses having been- taken before that appeal, and their admissibility being the only matter passed upon therein.) See 6 Ann. 678. We have reason, therefore, to be surprised at the pertinacity with which the point is pressed. A slight variation in the form, does not disguise the identity of the substance of the question, with that already decided.

The third bill relates to the rejection of oaths taken by two of the witnesses in other suits, offered to sustain the credibility of those witnesses in this-suit. This evidence was properly rejected.

It is, therefore, adjudged, and decreed, that the judgment of the District Court be reversed; that plaintiff recover of defendant, six hundred, and forty-nine dollars and eighty-one cents, with legal interest from judicial d-emandj and costs of the District Court: those of appeal to be paid by plaintiff.


text:
    W. & D. Urquhart v. E. B Scott, Tutor—Beauchamp, Intervenor.
    In an action against a Tutor for advances, supplies,,&&., furnished to the estate of his wards, the under-tutor, who alleges that the advances &c., &c., went to the benefit of the tutor, personally, and not to the wards, shows sufficient grounds tejustify an intervention
    "Where the Tutor has created an indebtedness without authority of law, the burthen of proof is thrown upon the creditor, to show that the indebtedness thus created, was absolutely necessary either for the support of the minors, or for the preservation of their property; and that the supplies thus furnished, actually enured to the benefit of the minora.
    APPEAL from the District Court of St. Landry, Dupré, J..

      Duncan & Overton, for plaintiff.

      Swayze & Moore and Kingr for the under-tutor.
   Lea, J.

The plaintiffs have sued the defendant in his capacity of tutor to. his minor children, for the sum of $6,166 60, being for a balance of account due to the plaintiffs for alleged advances made, and supplies furnished to said Scott in his capacity aforesaid, for the use and benefit of a plantation belonging to said minors; alleging that said advances and supplies were absolutely necessary for the proper administration of the property, and the maintenance and education of said minors.

In this suit the under-tutor of tho minors has intervened, alleging that there exists a conflict between tho interests of the minors and that of their tutor, who is responsible, personally, for the payment of the plaintiff’s demand against the minors. He denies the indebtedness of the minors as alleged; denies that the alleged advances and supplies ever enured to the advantage of the minors ; denies the right of the tutor to incur obligations on behalf of his wards without the advice of a family meeting, duly homologated. The intervenor moreover avers, that if any supplies or advances have been made accruing to the benefit of said minors, that they have been more than repaid by the proceeds arising from the crops of the plantation.

The plaintiffs have excepted to the right of the under-tutor to intervene, on the ground that the petition sets forth no legal ground of intervention, and ¡that there exists no opposition of interests between the tutor and the minors. We think the petition of intervention sets forth a sufficient ground of intervention, and that there does exist such an opposition of interests between the tutor and his wards, as justifies the proceedings of the under-tutor.

It is shown that in October, 1850, the defendant was qualified as tutor ofhis minor children. That they inherited a plantation and slaves from their mother.

It is not shown that the estate was embarassed with debts at the commencement of the tutor’s administration, nor does it appear that the revenues of the minors were inadequate to their support. The tutor is prohibited, under the •stringent, but wise provisions of our law, from borrowing money on behalf of the minors. If their support, or the preservation -of their property require an expenditure beyond their revenues, it is the duty of the tutor to cause to be convened, a meeting of the family or friends of the minors, to deliberate upon the propriety of making a loan. In the absence of such authority, the tutor can make no contract, binding as such,, which creates an indebtedness on the part of his wards.

Those who deal with tutors, acting on behalf of minors, must do so at their peril.

Where the tutor has created an indebtedness without authority of law, the burthen of proof is thrown upon the creditor to show that the indebtedness thus created, was absolutely necessary, either to the support of the minors, or to the preservation of their property, and that the supplies thus furnished, actually enured to the benefit of the minors. The creditor’s claim in such case would not rest upon any contract, but would be based upon the broad principle •of equity, that no one has a right to be enriched at anothers’ expense. Tested by this rule, the question to be determined in the case before us, is: To what (extent over and above the proceeds of the crops received by the plaintiff, have the minors been actually benefited by the alleged supplies and advances made on their behalf? It appears to be conceded, that supplies to the amount of $1,312, were actually furnished and used for the benefit of the minors, (a liberal concession when the evidence is considered.) On the other hand, the account is credited with the nett proceeds of sales of sugar and molasses amounting to $2,579 70, from which should be deducted the proceeds of 25 hogsheads of sugar bought by the tutor and shipped to plaintiff, say $589 21, leaving $1,990 50, applicable to the payment of any claims legally binding upon the heirs.

The items of the .account (with .the exception of those for supplies furnished, and money actually advanced to the tutor) consist of the payments of certain drafts drawn by the tutor and paid by the plaintiffs.

The only items which are supported, even in part, by the evidence, are those for the payment of accounts alleged to have been owing to T. C. Anderson, J. M. Johnson and Burbridge & Adams.

As respects Anderson's account, the evidence wholly fails to establish an indebtedness exceeding the credit to which the minors are entitled, viz: $2,281 06. A large portion of the account consists in .drafts paid by Anderson, the consideration of which, with one or two exceptions, is not shown, and in loans of money to Scott. The supplies, except such as were absolutely necessary for the management of the plantation, are not chargeable to the minors, and those are not shown by the evidence to exceed the credits above referred to.

The same remarks are applicable, in part, to the account of Burbridge & Adams. It is not shown that the articles enumerated therein, ever accrued to the benefit of the minors. Even if the court were to give the plaintiff the benefit of a presumption to that effect, so far as respects the materials for the construction of a sugar house, it would not benefit the plaintiffs in their litigation, for allowing a credit for the assumed value of these materials, there would still remain a balance against the plaintiffs upon their account, and the allowance of a credit for the payments made to Johnson, would pot alter the result.

An objection has been made to our consideration of the correctness of the judgment appealed from, on the ground that C. H. Beauchamp has appealed in his own name, and not in his capacity as under-tutor. It was as under-tutor, that Beauchamp intervened ; it was as intervenor, that ho appealed, and he is expressly so designated in the order of the court, and the appeal bond is signed by him as under-tutor.

We think he stands before this court as properly representing the minors.

It is ordered that the judgment appealed from be reversed.; that there be judgment in favor of the intervenor and against the plaintiffs; that the plaintiff’s claim be rejected, so far as it affects the said minors, Paunel, Henry and Fanny Seott, or their said tutor, in his capacity as such, reserving to said plaintiffs their claim against the said Fdwin B. Scott, individually. It is further ordered that plaintiffs pay costs in both courts.


text:
    Succession of W. Irwin—Opposition of Casheu.
    There is no principle of law which forbids a man who is threatened with violence, or deems it neces» sary to his personal security, to employ about him persons capable .of rendering him efficient as» sistance in time of need. '
    APPEAL from the parish of St. Landry, Bupré, J.

      Overton, for opponent and appellant.

      Hartell & Hardy, for the succession,
   Merrick, C. J.

The testator, in the language of one of the witnesses, having been assaulted, and “ having apprehensions for his life or great bodily harm,” retained the opponent as his protector. He kept him about his person and was in the habit of sending away those who came to employ Casheu, who was a carpenter. He stated repeatedly, that he preferred paying five dollars a day, than to let the opponent go. Irwin, by his will, bequeathed Oasheu $100, but it is shown that Oasheu, who was present, stated that he did not wish to-be put in the will.

The testimony leaves no doubt that Oasheu was employed as a protector by Inoin, and that the latter expected to pay him the value of his services.

We know no principle of law which forbids a man who is threatened with violence, or deems it necessary to his personal security, to employ about him persons capable of rendering him efficient assistance in case of need. Wharton Am. Grim. Law, 389.

The opponent is not compelled to content himself with the legacy which is not shown to have been intended as a remunerative donation, but may recover for his services. The length of time he was in the employment of the testator, has not been established with much certainty, and, we think, two hundred and fifty dollars a sufficient allowance.

It is, therefore, ordered, that so much of the judgment of the District Court as rejects the opposition of Henry Oasheu, be reversed; that the said Oasheu be recognized as a creditor of said succession, for the sum of two hundred and fifty dollars, and legal interest thereon, from the filing of said opposition; and that said opponent be placed upon the tableau of distribution for said sum, as a creditor; and that the costs of the appeal, as well as of the lower court, on the opposition, be borne by the succession of said William Inoin, deceased.


text:
    State v. J. Hollin.
    The proceeding against a person for retailing spirituous liquors, without previously obtaining a license, should be by indictment, and not by civil suit.
    APPEAL from the District Court of St. Landry. The record does not disclose the name of the who tried the case.

      W. Mouton, for the State.

      B. ff. Linton, for defendant and appellant.
   Buchanan, J.

This is a conviction under the 94th section of the Act of 1855, “ relative to crimes and offences,” for retailing spirituous liquors, without previously obtaining a license.

The appellant contends that the proceeding should have been by civil suit, and not by indictment.

The cases quoted by him (3 Rob. 55, and 12 Rob. 48) have no application to the present. Those were prosecutions under Statutes of 1806 and 1814, totally different in their objects and phraseology from that now under consideration. In both those Statutes, the penalty was nothing more than afine, which, by the Act of 1806, was to be recovered by suit before any competent tribunal ; and by that of 1814, on motion of the District Attorney.

In the present case, no such forms of proceeding are prescribed; and in case of conviction, the offender is not only fined, but is sentenced in default of payment of the fine to imprisonment.

Judgment affirmed, with costs.