text:
    Mrs. Widow Lafaye v. Harris & Morgan.
    Tho refusal of a common carrier to take goods for a particular consignee is a violation of an obligation to the shipper and not to the consignee,—an action of damages in favor^of tho consignee yyill not lie in such a case.
    PPEAL from the Fifth District Court of New Orleans, Eggleston, J.
    C. Dufour, for plaintiff.

      Race & Foster, for defendants and appellants.
   Cole, J.

This is a suit for damages brought by the widow of John Lafaye, under the statute of 1855, amending the 2294th Article of the Civil Code.

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death, in favor of the minor children and widow of the deceased, or either of them.”

She avers that the defendants, being common carriers, on the third of May, 1854, and from that day continuously, until the month of July, 1855, issued orders to the captains and other officers on board of their steamships, commanding them to receive no goods or other articles of freight consigned to John Lafaye, nor to sign any bills of lading deliverable at Brazos St. lago, to the order of the owner, if it were suspected that the bills would be endorsed over to John Lafaye.

That, accordingly, the agents of the defendants, on their steamships, refused all goods consigned to J. Lafaye, and that merchants were thus compelled to abandon Lafaye, and to consign their goods to other forwarding merchants.

She further avers, that these acts of the defendants were malicious, and contrary to law and their duty as common carriers, and had for their object the ruin of Lafaye, which they effected ; that his business rapidly decreased; his health sank rapidly from disappointment and desolation, and in September, 1855, he died in distress, leaving a widow and six children.

She claimed fifteen thousand dollars as damages.

The cause was tried before a jury, who accorded five thousand five hundred dollars, deducting, however, $486 66, granted upon the reconventional demand of defendants.

It appears that Lafaye owed the defendants money which he had collected, as their agent at Point Isabel, and they were unwilling to carry any goods consigned to him until he should pay it.

This action cannot be maintained, because no cause of action is alleged in the petition.

It is true that, under certain circumstances, a common carrier is liable in an action for refnsing to take charge of goods and to carry the same. Angell on the law of carriers, p. 123, §124; 2 Kent’s Com. pp. 598, 599; Story on Bailments, pp. 532, 533.

But this action is not instituted by those who had demanded to ship goods in the steamships of defendants and were refused.

The statute declares, that every act whatever of man that causes damage to another obliges him by whose fault it happened,” &c.

The meaning of the statute is, that the right of action for damages arises to the one who has suffered from the active or passive violation of a legal obligation by another.

Even if it were conceded that the common carrier is hound in general not to object to any particular consignee designated by the shipper, still the refusal to take goods for a particular consignee would not give a right of action to such consignee. Eor the reason of such a rule would be based upon the obligations of common carriers to shippers, and not to consignees ; for, as the obligation of the common carrier is, under certain circumstances, to accept freight which is offered, this obligation might be partially evaded, if the common carrier had the unqualified right to object to every consignee that might be designated by the shipper.

If, then, in the case at bar, the defendant refused to comply with a legal obligation, it was not an obligation to the consignee but to the shipper, and the right of action lies with the latter, and not with the former, for it will not bo pretended that one can sue for damages, for his own benefit, a party, because he has violated his legal obligations to another.

It is, therefore, ordered, adjudged and decreed, that the verdict of the jury and the judgment of the court thereon be avoided and reversed, and it is further ordered and decreed, that there be judgment in favor of defendant against the demand of plaintiff, and that there be a nonsuit as to the reconventional demand of the defendant, reserving his right, if any such he has, to prosecute his claim against the Succession of John Lafaye, and that plaintiff pay the costs of both courts.


source: Caselaw Access Project

author: Mereick, 0. J.

license: Public Domain

text:
    Michael Boyce, Testamentary Executor, v. John Davis.
    The Fourth. District Court of New Orleans has no jurisdiction in matters of succession.
    A curator of a vacant succession who has been regularly appointed by a court of competent authority, cannot be called upon to account for any funds of the succession in his hands, before any other court than the one in which the succession has been opened.
    When the amount of a debt due the succession by the curator has been inventoried, he is thereby charged with so much money in his hands due tho succession—he cannot be sued for such a debt • the proper remedy is to call upon him to account for it as funds in his hands, before the court in which the succession has been opened.
    APPEAL from tbe Fourth District Court of New Orleans, Price, J.

      T. Gilmore, for plaintiff.

      G. Legardeur, for defendant and appellant.
   Mereick, 0. J.

The defendant, John Davis, was indebted to John McLaughlan, by note. McLaughlan died, and on the 2d day of November, 1857, Davis applied for letters of curatorshipi upon McLaughlan’s succession, as a vacant estate. On the 16th of November, an order was made appointing the defendant, on complying with the requisites of law. On the 18th, a will of the deceased was produced and ordered to be admitted to probate. The next day the plaintiff applied for letters testamentary and obtained an order that they should be delivered to Mm on taking the oath, no notice being taken of the previous order in favor of defendant appointing him curator.

The defendant having completed the inventory, returned the same, and on the same day, November 19, procured an order approving the same, and the bond tendered by him as curator, no notice this time having been taken of the application of Boyce for letters testamentary.

Letters of curatorship issued to the defendant, Davis, December 3d, 1857.

On the 17th of December, letters testamentary were granted the plaintiff.

On the 9th of December, 1857, John McLaughlan, Jr., presented himself as universal lagatee, and demanded an injunction against Davis, and to be put in possession as universal legatee. On the 24th day of December, this suit was instituted in the Fourth District Court by the plaintiff, as testamentary executor, against Davis, on the note which he owed the deceased, and which had been placed on the inventory. On the 11th of January, 1858, a decree was rendered in the Second District Court, where the succession was opened recognizing John Mc-Laughlan, Jr., as instituted heir and universal legatee, and ordering that he be put in possession of the succession in conformity to the will.

The same day, the defendant filed an exception to this suit in the Fourth District Court, setting up his appointment as curator, which he averred had never been annulled, and that he could only be called upon to account for any sums in his hands before the Second District Court. The exception being overruled, defendant stated the account of his administration, annexed the same to his answer, wherein he charged himself with the note, and claimed sundry credits, and prayed that plaintiff’s demand be decreed compensated.

On the trial, in order to sustain his answer, defendant offered to read in evidence the mortuary proceedings, but being objected to by plaintiff’s counsel, they were excluded, and defendant excepted.

The record, therefore, presents the question, first, whether the Fourth District Court had jurisdiction ? We think it had not.

The defendant was appointed by a court of competent authority, curator of the succession of the deceased, as a vacant succession and thus was his relationship to the estate fixed.

The obligation sued on was mentioned in the inventory, and the bond which he gave under Arts. 1119,1120 0. 0. covered this as well as the other items mentioned in the inventory. It is clear that it was a matter proper to be carried into the curator’s account, and his sureties on the bond became bound with him for that, as one of the assets of the succession, and the curator was chargeable with the same on the rendition of his account. In the case of Fusilier v. Babineau, 11 An. 394, we said, arguendo: “ An administrator is not compelled to collect the debt of himself, which would be absurd, but he is charged directly with so much money in his hands due the estate,” &c.

So, whenever the curator is called upon to render his account, it will be sufficient for him to charge himself with this and other funds in his hands, and claim such credits as he may be entitled to. It might happen that the administrator or curator had paid out all the funds due the estate, including his own debt. Now, if the heir or other party could sue him for a debt due the deceased, it would give rise to a circuity of actions which the law abhors. We think it is more reasonable to compel parties to call upon the curator to account in the proper court. The case of Grubb’s Heirs v. Henderson, 6 La. 53, 54, rests upon a very different state of facts. The notes, the subject of that controversy were not payable to the deceased, but to third parties, and the remark that the courts of ordinary jurisdiction were the proper tribunals to enforce debts due a succession, had reference to debts due by other persons besides the administrator.

The notes in that case being payable to other parties, not carried into the inventory, and a revocatory action being needed to declare the rights of the parties, it was clear that courts of probate, as then organized, had no jurisdiction.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed; that said exception filed by the defendant be sustained; and that the cause bo dismissed at the cost of the plaintiff in both courts.


author: Spofford, J.

text:
    Succession of Valery Martin—Opposition to Administration.
    Tho priority of application, has weight principally in tho appointment of curators to vacant successions, or to application by creditor^ to bo appointed, administrators, and then only among persons otherwise having egual rights.
    A Judge is not bound to appoint two beneficiary heirs, oven with equal claims, administrators of a succession, the law leaving it discretionary with him to appoint one or two, regard being had to tho solidity of the appointee.
    Allegations of fraud cannot bo noticed in an opposition to an application for administration, as thoy form the subject of an independent litigation, and should not be triod collaterally.
    APPEAL from the District Court of the Parish of St. Martin, Martel, J.

      BeBlanc & Fuselier, for plaintiff and appellant.

      C. II. <§ E. Mouton and Simon á Gary, for defendant.
   Spofford, J.

Simeon Valery Martin, a grandson of the deceased Valery Martin, being one of his heirs by representation, and Balthazar Marlin, son and heir in his own right of the said deceased, filed their applications, on the same day, for the appointment of administrator of the succession. They afterwards filed mutual oppositions to each others claims. The surviving widow intervened in support of Balthazar’s claim, and in opposition to that of Simeon Valery Martin. The District Judge decided in favor of Balthazar, appointing him sole administrator, and Simeon Valery Martin has appealed.

The appellant contends that he should be appointed sole administrator, or, at least, co-administrator with his uncle Balthazar.

He bases his first claim upon the priority of his application, and upon certain allegations of fraud against Balthazar. The priority of application seems to have weight principally in the case of the appointment of curators to vacant estates, or to applications by creditors to be appointed administrators, and then only among persons otherwise having equal rights. C. 0. 1118. As to the alleged frauds, we cannot speak from the evidence in this record; they should be not tried collaterally in this controversy, as they form the subject of an independent litigation.

And as to the claim for a joint administration, we have to remark, that the Judge is not compelled to appoint two beneficiary heirs, even with equal claims, administrators of the succession.

“ If there be two or more beneficiary heirs of age and present in this State, the Judge shall select one or two, whom he shall consider most solid, for the administration of the succession.” C. C. 1036.

This leaves it discretionary with the Judge to appoint one or two. The nature of the controversies between these applicants suggests a reason why the succession should not be embarrassed by the appointment of two hostile administrators. Formerly, in case,of a vacant succession worth over $3,000, the administration of which was claimed by several persons, the Judge was hound, to give the curatorship to two of them, and no more. 0. 0.1116. But this was found to lead to such unseemly disputes in regard to the management of property under the joint administration of parties who disagreed, that, in 1854, the Legislature interfered and amended the Article 1116, by declaring that the Judge should appoint one of the several applicants to act as curator. Session Acts, 1854, p. 51.

In beneficiary successions the Judge may appoint one or two of the beneficiary heirs administrators, as he sees fit; regard being had to the solidity of the appointee.

The District Judge in this case thought the appellee, Balthazar Martin, the most solid ; his interest in the succession as heir in Ms own right, is larger than that of the appellant, who is one of several heirs by representation of his deceased father Placide Martin. We cannot say that the Judge erred.

Judgment affirmed.


author: Merrick, C. J.

text:
    James L. Overton v. Independence Alpha.
    An award cannot lie enforced when it appears that the arbitrators who rendered it were not sworn.
    APPEAL from the District Court of the Parish of St. Mary, Voorhies, J.

      R. <& T. Q. Wilson, for plaintiff.

      R. N. McMillan, for defendant and appellant.
   Merrick, C. J.

In one part of plaintiff’s petition he alleges that defendant is indebted to Mm in the sum of $469 87 on account. But as he immediately proceeds to state Ms cause of action as an indebtedness upon an award for precisely the same amount, ($469 87,) and the only account he offers in evidence is that stated by the arbitrators in their award, it is evident that this is really an action brought upon an award.

The arbitrators were not sworn. The award, therefore, cannot be enforced against the defendant. C. C. 3078 ; 9 An. 89. Testimony was received as to the declarations of the parties and the state of their accounts; but, as we differ from the District Judge in our conclusions upon the effect of the testimony, we think it best to render judgment upon the demand set up in plaintiff’s petition. It is possible that there may be some reason why the testimony of John Alpha should not receive full credit, although we have_ failed to perceive it in this record.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of defendant upon the demand upon the award itself, without prejudice to any demands the plaintiff may have against the defendant up on the matters submitted to the arbitrators, and vice versa respecting the demands of the defendant against the plaintiff. And it is further ordered, that the plaintiff pay the costs of both courts.


author: Spoffokd, J.

text:
    Succession of Antoine Ynogoso—Opposition to Tableau.
    A reinscription of a mortgage upon property belonging to a succession, is unnecessary after sucli property bas been sold and reduced to possession.
    The sale of succession property extinguishes the mortgages upon it, and the proceeds of the sale are held in trust by the administrator, to be distributed among the creditors according to the rights of priority, which existed among them, upon the property itself before it was sold.
    APPEAL from the District Court of the Parish of St. Landry, Martel, J.

      Swayze <& Moore, for plaintiffs and appellants.

      Lewis & Porter and J. E. King, for appellees.
   Spoffokd, J.

The only point in this case is, whether the Bank of Louisiana is to be ranked as an ordinary or as a mortgage creditor.

The bank obtained its judgment against Ynogoso, which was recorded on the 25th of March, 1847, before his death. It, therefore, attached as a judicial mortgage upon his lands and slaves. Ynogoso died previous to 1849. In 1849, his immovables and slaves were sold, and no credit was given beyond the 29th of January, 1852. The proceeds must have been reduced to possession by the administrator before the 25th of November, 1857.

The appellant contends that the bank has lost the right of preference growing out of its judicial mortgage, because the judgment was not reinscribed on or before the 25th of November, 1857. It was expressly decided in the Succession of Déjean, 8 An, 506, that a reinscription was unnecessary after the property of the succession, affected by a judicial mortgage, has been sold and the proceeds reduced to possession. The reason is obvious. The succession sale discharges all mortgages upon the immovables and slaves, leaving the mortgagees only a corresponding claim by preference upon the proceeds. The mortgages being extinguished by the succession sale, there is nothing to be kept alive by a reinscription. An inscription in the mortgage office, cannot affect money or notes in the hands of an administrator, for a judicial mortgage cannot attach to movables. C. C. 3296. See also 2 An. 111.

But the administrator holds in trust the proceeds of the sale of immovables and slaves, to be distributed among the creditors according to those rights of priority which existed among them upon the property itself the moment before it was gold. Their relative rank is then fixed, and cannot be changed by inscribing 3 o «/ o or failing to inscribe mortgages which were canceled by a sale whose proceeds have been reduced to possession.

In the Succession of Flower, 12 An. 216, it does not appear that the immovables and slaves had been sold at succession sale, or that a judicial mortgage upon them had been kept alive so long as the property itself belonged to the succession. The point decided in Déjean’s case, 8 An. was not overruled, nor did it seem necessary to be considered.

Judgment affirmed.


author: Merrick:, C. J.

text:
    Broussard wife v. François Robin, Administrator—Prejean v. same— G. Prejean v. same—Consolidated.
    Where the judgment of the lower court amended the tableau of distribution and charged the administrator with sums of money so as to give an additional amount to each of the heirs, and the administrator appealed, making only those heirs who had called on him to render his acoount parties to the appeal—Held: That the appeal should be dismissed, as all the heirs should have been made parties to it, bciug interested in maintaining the judgment appealed from.
    PPEAL from the District Court of St. Landry, Voorhies, J.

      B. F. Linton, for plaintiffs.

      Swayze & Moore, for defendant and appellant.
   Merrick:, C. J.

We are of the opinion that we should dismiss the appeal ex officio in these cases. The District Judge amended the tableau of distribution and charged the administrator with such sums as to give each of the heirs in addition $92 46.

The administrator has appealed, but has perfected his appeal only as to the two heirs who called on him to render his account, and who opposed the same. The other fourteen or fifteen heirs equally interested in maintaining the judgment, are not parties. The administrator demands that the additional allowance should be reduced from $92 46 to $79 73. It is manifest that he has not brought the proper parties before us, and we do not feel called upon in their absence to examine the complicated account of the Successions of Robin and wife, in order to ascertain whether the two appellees may not receive twelve dollars and seventy-three cents each more than their proportion of funds which appear to have been in the hands of the administrator for many years without interest. Succession of Perry, 4 An. 577; Swearingen v. McDaniel, 12 Rob. 205; Robert v. Ride, 11 An. 409; Simmons v. His Creditors, 12 An. 755; Condon v. Samory, 12 An. 801.

It is, therefore, ordered, that the appeal in this case be dismissed at the costs of appellant.


text:
    Josephine Castille v. L. V. Chacéré, Sheriff, et als.
    Under an execution issued against an administrator personally, his property was seized, and, pending an opposition made to the seizure, the property was sold • on the trial of the opposition the sale was set aside—Held: That such a decree was ultra peti'/ionem, as at the time the opposition was filed there had been no sale, and to attack the sale, the plaintiff should have filed an amended petition.
    Where creditors, whose claims were placed upon the tableau of classification by a judgment of the court, bring a suit against the administrator to dismiss him from office and render him personally liable for their claims—Held: That they could not issue execution against such administrator while the question of his liability was at issue and pending in such suits before the court.
    The proper course is to take a rule upon the administrator to show cause why execution should not issue against him personally, of which rule he is to have notice.
    APPEAL from the District Court of the Parish of St. Landry, Martel, J.

      B. F. Linton and /. E. King, for plaintiff.

      Dupré & Garland and Swayze <& Moore, for defendants and appellants.
   Spofford, J.

The plaintiff, Josephine Castille, administers the succession of her deceased husband, Onézime A. Boudreau. in the parish of St. Landry. •.

Lobit fy Charpentier and Madame Francis Ritter were large creditors of the succession, and were placed upon the tableau of classification as such, by judgment of the court, on the 26th of Juno, 1856. On the 11th of December, 1856, the following entry appears to have been made upon the minutes of the District Court of St. Landry :

“ Lobit & Charpentier v. Josephine Castille, Administratrix—No. 7941.
“ It is ordered, that the administratrix, Josephine Castille, file within sixty days a brief statement of her condition as administratrix of the estate of Onézime A., Boudreau, showing the funds in her hands belonging to said estate, and that this case be continued as to the administratrix.”

A copy of this order was served on Josephine Castille, on the 12th of December, 1856.

The order was issued in a suit by Lobit & Charpentier against Josephine Castille, to procure an account to dismiss her from office, to make her pay ten per cent, damages, and to render her liable, in her personal capacity, for the plaintiff’s debt, and to obtain execution against her individual property therefore. Alexander Castille, the surety on her bond as administratrix, was also made a party defendant, and a similar judgment was prayed for against him. The only judgment we have been able to find in the record of this suit, is one dismissing the claim, as in case of nonsuit, against Alexander Castille, but continuing it as to Josephine Castille, who, it appears, had filed an answer.

We, therefore, consider this suit, as to her, still pending, and the question whether execution shall issue against her personally, for Lobit & Charpentier’s debt, is still in litigation between them.

The same thing may be said of the suit of Francis Ritter v. Josephine Castille and Alexander Castille, (No. 7911,) which was precisely similar to that of Lobit fy Charpentier, and in which the same orders were made.

This being the position of affairs, it would seem that, on the 26th of January, 1858, the Clerk of the District Court for the parish of St. Landry, issued executions against Josephine Castille personally, for the claims of Lobit Charpentier and Francis Ritter, upon the homologated tableau of distribution in the succession of Onézime A. Boudreau.

On the 27th of June, 1858, the Deputy Sheriff notified her, that by virtue of this writ issued in the Succession of Boudreau, No. 7358, he had seized in satisfaction thereof, all of her rights, title, interest and demand, in and to her father’s estate, Alexander Castille, deceased.

Thereupon, the plaintiff) Josephine Castille, brought the present suit against Lobit (f Charpentier, Francis Ritter and the Sheriff Chacéré, which is in the nature of an opposition to the seizure aforesaid ; first, because the creditors of Boudreau’s succession, Lobit & Charpentier and Madame Ritter, had then suits pending and undecided, to maker her liable, personally, for the payment of their claims ; and, secondly, because the large succession of her father, Alexander Castille, amounting to about $100,000, was still in a state of indivisión.

Por these, and all other legal reasons, she prayed that the seizure be set aside, and the defendants condemned to pay her $6,000 damages.

The defendants answered by a general denial.

It seems, from a record in evidence, that before this suit was decided, to wit, on the 3d of April, 1858, the plaintiff’s interest in the succession of her father, notwithstanding the pending opposition, was sold; when the creditors, J^obit & Charpentier and Madame Ritter, widow Augustin Boudreau, became the purchasers thereof, on twelve month’s credit, for $1,000, although by an appraisement in which Josephine Castille refused to join, it had been estimated at $9,000.

There was no amendment made to the pleadings in this suit attacking that sale, or praying any relief in relation thereto.

The District Judge, however,' ignoring the only demand contained in the plaintiff’s pleadings, on the 10th of the present month, entered up a decree that the sale of the 3d of April, 1858, be set. aside for the insufficiency of the description of the property sold, and that defendants pay costs. The defendants have appealed.

The decree is clearly ultra petitionem. At the time the plaintiff’s pleadings were filed, there had been no sale. If she wished, in this action, to attack the sale, she should have filed an amended petition.

We must, therefore, confine our attention to the only issue made by the parties, which are (first) should the seizure be set aside, and (second) should damages be awarded.

And we are of opinion that the seizure should be set aside, because the writ of fi. fa. issued unadvisedly against the defendant in her personal capacity.

The question, whether execution should be had against her personally, was a judicial question at issue_and pending before the court between these very parties. The defendants in this suit, plaintiffs in the demand for a personal liability, had no right to decide this question for themselves ; neither had the Olerk a right to decide it.

. It is the usual practice to take a rule to show cause why the execution should not issue against an administrator personally, of which rule he is to have notice. See Carrière v. Mayo, 16 La. 126. It is unnecessary to decide whether, in any case, the party complaining may demand of the Olerk such an execution without a judgment of the court to that effect, upon a petition or rule ; it is sufficient to say, that the defendants herein, having chosen to proceed by petition to fix a personal liability upon the administratrix, were premature in taking out execution before the issue joined between them and the administratrix was disposed of.

The question of damages, as also of the formalities, connected with the sale of 3d of April, 1858, must be reserved for future adjustment. We can only decide now upon the question of the seizure; although it is apparent that if the seizure was improperly made, the sale can be annulled in a proper proceeding.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed; and it is now ordered, adjudged and decreed, that the seizure complained of by the plaintiff be set aside and declared invalid, null and void, as having been made under a writ of fi. fa. improperly issued. It is further ordered, that the question of damages, as also all questions growing out of the proceedings of defendants subsequent to the said seizure, be reserved ; and that the defendants pay costs in the District Court; those of the appeal to be paid by the plaintiff and appellee.


author: Merrick, 0. J.

text:
    Lobit & Charpentier v. A. Castille.
    No action can bo brought against tho surety upon an administrator’s bond, until the necessary stops have been taken to enforce payment against the principal.
    APPEAL from the District Court of the Parish of St. Landry, Martel, J.

      Dupré & Garland, and Swayze <& Moore, for plaintiffs and appellants.
    /. E. King, for defendant.
   Merrick, 0. J.

This case is a sequel to the case of Josephine Castille against L. V. Chacéré, Sheriff, et al., just decided, to which we refer for a statement of the facts. After the return of their first execution against the estate, which was notified to the administratrix, and before the sale of the property of Josephine Castille under the second writ issued the 26th of January, 1858, Lobit & Charpentier and Mrs. Francis Ritter instituted the present suit against Alexandre Castille, the surety on the bond of the administratrix, to make him responsible for the amount of the judgments which they held against the estate of Onézime A. Boudreau. The suit was dismissed as being prematurely brought. The appellants strenuously controvert the correctness of the decision,' and contend that they have exhausted all their remedies against the principal, and therefore, are permitted to proceed against the surety.

The fifth section of the Act of 1855, p. 365, declares, that “ no suit shall be instituted against any security on any appeal bond, nor on the bond of an administrator, curator, executor, or syndic, until the necessary steps have been taken to enforce payment against the principal.'

We have just decided that the necessary steps have not been taken to enforce payment against the principal, in the case referred to, and which is in evidence in this case. The suit is, therefore, premature.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of tho lower court be affirmed, the appellants paying the costs of the appeal.


author: Spoitord, J.

text:
    John W. Minor v. Steamboat Picayune No. 2.
    In an action brought to recover damages alleged to have been suffered by plaintiff in consequence of a collision between his schooner and a steamboat, occasioned by the want of care on the part of such steamboat—Held: That the towage, costs of materials and repairs, to make the vessel as good as before, and her expenses while undergoing repairs, are the elements of damage to be estimated by the court. The remote or consequential damages, growing out of the supposed loss of proiits, should not be considered.
    APPEAL from the District Court of the Parish of St. Mary, Voorhies, J.

      II. C. & T. G. Wilson, for plaintiff.
    R. N. McMillan, for defendant and appellant.
   Spoitord, J.

This action was brought to recover the damages alleged to have been suffered by the plaintiff, in consequence of a collision in the Atchafalaya River, between his schooner, the “ Creole,” and the steamer “ Picayune No. 2.” There was a judgment in favor of the plaintiff for $368, and the defendant has appealed.

'It is insisted that the steamer was not in fault, or that the injury might have been avoided by ordinary care on the part of the schooner.

But it seems from the evidence, that every thing was done by the master of the schooner that could have been done to avoid the collision, and that she was in her proper place, with a light in her fore-shroud, hugging the shore so close that her keel was dragging in the mud. It was a clear star-light night, the river was wjde, and the conclusion is irresistible, that there was a want of due care on the part of the steamer.

As to the amount of damages, we find the evidence vague, conjectural, and inconsistent. The immediate, and not the remote or consequential damages, should be considered. The towage, costs of materials and repairs to make the vessel as good as before, and her expenses while undergoing repairs are the elements of damage to be estimated by the court, and not the supposed loss of proiits. Smith v. Coudry, 1 Howard, 35; Myers v. Perry, 1 An. 315.

It was probably in the power of the plaintiff to produce his bills for materials and repairs, and thus show the actual injury sustained by him. Instead of this, he has chosen to rely upon the opinions of witnesses who saw the schooner. One of the plaintiff’s witnesses supposes the total damage to have been $350, and another that the carpenter’s work would be worth $150; while one of the defendant’s witnesses, a ship carpenter, says he would have repaired her and furnished materials for $90.

Under this evidence, we do not think that more than $200 dollars should be allowed.

It is, therefore, ordered, that the principal sum awarded to the plaintiff as damages be reduced from three hundred and sixty-eight dollars to two hundred dollars, and that, as thus amended, the judgment of the District Court be affirmed, the plaintiff to pay the costs of this appeal.


author: Merrick, C. J".

text:
    Honoré Déjean v. Elizabeth Stilly et al.
    If the order granting an appeal does not mention tbe return day, and the appeal is filed after the next return day had passed, the appeal will he dismissed.
    It is the duty of the Supreme Court to notice, ex officio, irregularities in the proceedings of the court below.
    PPEAL from the District Court of the Parish of St. Landry, Dupre, J.

      Dupre & Garland, for plaintiff.

      Swayze <& Moore, for defendant and appellant.
   Merrick, C. J".

This suit is brought to recover the price of a tract of land. The defendant alleged that the title to a part of the land was in one Berand, and prayed for a deduction in the price. Plaintiff amended and caused the heirs of the vendor of the intestate to be cited in warranty, including Berand.

Berand alleged title in himself. Defendant amended, pleading prescription.

Judgment was rendered at the November term, 1856, allowing defendant a reduction in the price, giving plaintiff judginent against defendant for the residue, and a judgment over against the warrantors for such diminution and recognizing Berand’s title.

The order for an appeal made 29th November, 1856, does not mention on whose motion it was made, and it is as follows, viz :

“ Honoré Déjean, Administrator, v. Elizabeth Stilly et al.—No. 7374.
“Appeal granted, if devolutive, by furnishing bond in the sum of one hundred and fifty dollars ; if suspensive, in the sum fixed by law.”

It was the duty of the District Judge to mention the return day of the appeal, and fix the same for the third Monday of August, 1856. C. P. 574 and 583 ; Acts 1856, p. 72.

The vague order allowing the appeal (if it had any validity at all) had reference to the next return day for the Supreme Court in this District, viz : the third Monday of August, 1857.

It was therefore irregular to execute the appeal bond after the return day, and file the appeal on the second day of the subsequent term, viz, Aug. 17,1858.

The plaintiff and defendant alone have appeared in this court and filed briefs. The plaintiff’s counsel contends that he is entitled to judgment either against the defendant or the warrantors, for the amount in dispute.

It is, therefore, evident that the warrantors are necessary parties to the appeal. They were not bound to attend at the present term of the court, and in the absence of notice we cannot permit their rights to be prejudiced.

We consider it our duty to notice, ex officio, the irregularity in the proceedings, and to order the appeal to be dismissed.

It is, therefore, ordered, adjudged and decreed, that the appeal in this case be dismissed at the costs of the appellant.


author: Cole, J.

text:
    Edward Laplante v. P. P. Briant, Agent, et al.
    The general mandate to the husband, to act as agent for the wife separated in property from him, confers upon him only a power of administration; he must have an express and special authority to acknowledge a debt, or to draw or indorse bills of exchange or promissory notes.
    PPEAL from the District Court of the Parish of St. Martin. Martel, J.

      Martin Voorhies, for plaintiff.

      Simon & Gary, for defendants and appellants.
   Cole, J.

This is a suit on a promissory note executed in favor of the plaintiff, by the defendant, P. P. Briant, as the agent of his wife, Clara Fuselier.

There was judgment against Briant, as'agent, and against his wife personally. They have appealed.

It is established, that a separation of property has existed between the parties since 1843.

The first question that arises is, was Briant authorized to sign the note, as agent of his wife.

The whole evidence on the extent of the mandate vested in him by his wife, is as follows :

Judge Simon testifies that he saw P. P. Briant act as agent of his wife in acts or deeds relative to the property belonging to his wife; that he was employed through P. P. Briant to represent his wife in this case.”

J. A. Beblanc testifies “ that he is the Sheriff of the parish, and that for the last ten years P. P. Briant has been notoriously insolvent; that he has oftentimes received drafts drawn by P. P. Briant, as agent of his wife, without her signing the same, for the payment of her taxes; and that he acts generally as such in the administration of her property and plantation.”

In the act of compromise between the widow Jacques P. Briant and the defendants, it is declared, that the husband, P. P. Briant had administered or conducted a plantation, in which his wife had an interest.

The words .used in the act are “ L’habitation qui jusqu’á ce jour a été gérée par le sieur Pierre Paul Briant.”

The mandate to the husband, for the purpose of acting as agent of his wife, in acts or deeds relative to her projierty, does not embody the authority to acknowledge a debt, or to draw or endorse bills of exchange, or promissory notes.

The power to draw drafts, for the payment of taxes, does not include the general authority to acknowledge any other debts but those arising from taxes; or to execute drafts, notes, or bills of exchange for any other liabilities of the principal, save those of taxes.

The authority to conduct or administer a plantation does not authorize the agent to acknowledge debts or execute written obligations binding upon the principal.

The principal is bound to execute the engagements contracted by the attorney, conformably to the power confided to him. For any thing further, he is not bound, except in so far as he has expressly ratified it.” C. C., Art. 2990.

“ A mandate conceived in general terms, confers only a power of administration ; thus the power must be express and special to acknowledge a debt, or to draw or indorse bills of exchange or promissory notes.” C. 0.-2965, 2966.

Was the consideration of the note for the household expenses of defendants, the education of their children, or the separate estate of the wife. ' 0. 0. 2409.

The account is in evidence for which the note was given; and is made out in the name of P. P. Briant, and not in that of his wife. It consists of several items, amounting in all to $504 05.

The consideration of the following items is not shown, to wit: 4 notes, total amount $768 20; account of Madam Lassaline Briant, $115 30; Sabatier, $53 50; Hardy, $5 00.

It is alleged, that the account of Madam Briant was assumed by the wife of P. P. Briant, in the settlement before mentioned; but we can find no assumption of it therein.

The preceding items cannot be allowed, as it is not shown they are debts created personally by the wife, or for the household expenses of defendants, the education of their children, or the separate estate of the wife.

The goods purchased at the store of plaintiff, for $162 05, must be paid by the wife.

The bill of these, which is one of the items in the general account, is for such articles as are usually purchased for the use of families. It is also established, Mrs. P. P. Briant was in the habit of purchasing goods at the store of plaintiff, about the time this store account commenced, and that she had an open account therein at that epoch, and that her husband is insolvent.

If she had an account different from this, it was her duty to have proved it.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed ; it is further ordered and decreed, that plaintiff recover of defendant, Clara Fuselier, wife of P. P. Briant, and. separated in property from him, one hundred and sixty-two dollars and five cents ($162 05) with eight per cent, interest thereon from the first of April, 1856, till paid, and the costs of the lower court; it is further decreed, that plaintiff pay the costs of appeal, and that the rights of plaintiff, if any he may have, be reserved against the defendant, P. P. Briant.


author: Cole J.

text:
    Edmond Laparouse v. Lorenzo C. Rice.
    The 32d section of the Act of 1806, called the Black Code, justifies the firing upon runaway slaves who are armed, or who, when pursued, refuse to surrender, avoiding, however, if possible, the killing of them.
    If, however, the slave be killed, the homicide is a consequence of the permission to lire upon him, and the party killing him cannot be held liable for the value of the slave killed.
    APPEAL from the District Court of the parish of Vermillion, Voorhies, J.

      BeBlanc é Fuselier, for plaintiff and appellant.

      C. II. i& E. C. Mouton, and D. O’Bryan, for defendant.
   Cole J.

This suit is instituted to recover the value of the slave “ Plant,” the property of plaintiff on the ground that he was illegally killed by defendant.

The judgment was for defendant, and plaintiff has appealed.

The Act of 1855, relative to slaves and free ’colored persons, having been declared unconstitutional; and the Act of 1857, relative to slaves, not having been in force at the time of the killing of the slave, the decision of this cause must depend upon tlie effect of the Act of 1806. Session Acts, p. 150; Bullard & Curry’s Digest; p. 49.

The 32d section of said Act provides, that “ If any slave shall he found absent from the house or dwelling, or where his usual place of working or residence is, without some white person accompanying him, and shall refuse to submit himself to the examination of any freeholder, the said freeholder shall he permitted to seize and correct the said slave as aforesaid ; and if the said slave should resist, or attempt to make his escape, the said inhabitant is hereby authorised to make use of arms, but at all events avoiding tbe killing of said slave, but should the said slave assault and strike the said inhabitant, be is lawfully authorized to kill him.”

This section is substantially the same as the 65th section of the said Act of 1855. Session Acts, 386.

The 35th section of the Act of 1806 declares, that “ It shall and may he lawful to fire upon runaway negroes, who may he armed, and upon those who, when pursued, shall refuse to surrender.”

This section does not differ materially from the 41st section of the .Act of 1857, relative to slaves. Session Acts, 233.

It is established, that the deceased slave was in the habit of running away. In the act of sale to the plaintiff, it is stated he had run away several times. He was sold with full guaranty, except the vice of running away.

It is admitted that plaintiff lives about 45 or 50 miles distant from the place where the slave was shot.

The testimony shows, that defendant is a -planter and slave-holder, and lives in the neighborhood where the slave was killed.

It appears that defendant and one Mcrriman were hunting for some runaway negroes.

Merriimn testifies thus : When we eame across this boy he was in a thick palmetto swamp—he had a camp ; there was a large quantity of provisions there. He ran, hut picked up a belt, before running, to which was attached a scabbard. I ordered him to stop three times, and hollowed as loud as I could ; I was not more than twenty or twenty-five steps from him. So did defendant order him to stop. We were both afoot and had no dogs. If he had gone ten feet further he would have been out of sight. He was shot in the butt.”

The left arm of the slave was also struck by the discharge of the gun, and broken.

The defendant is, under the circumstances, justified by the law.

The object of the law is not that runaway negroes, who are armed, or who, when pursued, shall refuse to surrender, shall be killed. It-authorises the firing* upon them, avoiding, however, if possible, to kill them.

Unless there are particular reasons why a runaway slave attempting to escape, should he at once wounded, the policy of the law, humanity, and a just regard to the interests of slave-holders require that the gun should not bo aimed at him ; but that it should be discharged for the purpose of inducing him to stop.

When this is ineffectual, and it becomes necessary to fire upon him to prevent Ms escape, then the pursuer ought not to try to give him a mortal wound, but merely to cripple him, so as to arrest his flight.

If, however, the slave be killed, the homicide is a consequence of the permission to fire upon him. Duperrier v. Dautrive, 12 An. 665.

Judgment affirmed, with costs of appeal.


text:
    Executors of Moses Liddell v. M. E. Rucker and A. C. Kirkland et als.
    When a party sells the right of way across a tract of land wliiph .is mortgaged, the vendee has a right to demand security from eviction, before paying tho price agreed on.
    Tho failure to reinscribo a mortgage after tho lapse of ton years, does not extinguish the mortgage, but destroys the effect of the inscription, and gives a superior rank to those mortgages which have been inscribed since its first registry.
    The effect of the inscription of mortgages is to prevent third parties from obtaining mortgages superior in rank to those previously registered.
    The meaning of that portion of Article 3333 of Civil Code, which declares that their effect ceases, is not that the effect of tho mortgage ceases, but the effect of tho inscription.
    If no roinscription of a mortgage is made after the lapse of ten years, a party who gives a second mortgage to one, without informing him of the first mortgage which has not been romscribed, is no^. guilty of the fraud contemplated, or responsible for tho damages allowed by Article 3329 of the Civil Code.
    Whore property bearing fruits is sold, the vendee cannot avoid the payment of interest even when he has aright to require security against eviction, unless he makes a tender or deposit of the price.
    PPEAL from the District Court of the Parish of St. Mary, Voorhies, J.

      H. C. Wilson and A. L. Tucker, for plaintiff and appellant.

      J. 0. Olivier, for defendants.
   Cole, J.

The plaintiffs, in their capacity of testamentary executors of Moses Liddell’s estate, sue for the recovery of the last, installment of the price of a plantation, sold by the deceased Moses Liddell to the defendants.

It consisted of two distinct tracts, one the principal plantation, the other wooded, and plaintiff agreed in the act of sale to give the right of way or passage from the one tract to the other.

Plaintiffs have purchased the right of way, consisting of the space of thirty feet, over the Loisel tract, which intervenes between the main plantation and the land of plaintiff, and tendered it to defendants. The title of this right of way has been made in the name of the latter.

A right of way had been previously designated, from the junction of the Loisel tract with that of plaintiff, along the line pf the latter to the woodland tract; so that now the right of way is perfect between the two 'parcels of land purchased by defendants.

The payment of the last ndte, now sued upon, is resisted in this court on the ground, that the Loisel tract, across which the right of way has been granted, is affected with mortgages ; and, therefore, the vendor of this right of way cannot give a complete, absolute and unincumbered title.

Art. 746 of the Code provides, that an estate being mortgaged does not prevent the owner from establishing servitudes on it, saving always to the creditor the right of demanding his debt, if the establishment of the servitude evidently depreciates the value of the estate, or of causing the estate to be sold as free from all servitudes; but the person who has acquired the servitude, shall have in such case his action for the restitution of the value of the servitudes against the owner of the estate.

If the Loisel tract thus mortgaged belonged to plaintiff who offered a right of way across it, defendant could not successfully demand its absolute rejection; because the right to establish a servitude upon mortgaged property, is authorized by Art. 746, and defendant could not claim a more perfect right of way, than that which is provided by law.

Neither can defendants object to mortgages on the land, comprising the right of way, when granted by the owner of the Loisel tract; for they knew at the time of the sale, that this land was not the property of plaintiff, and if he granted them a passage between tlioir tracts of land, he would be obliged ,to purchase it of the proprietor of the Loisel tract.

It is immaterial to defendants whether the passage is donated on the land of plaintiff or on that of a third party, and the existence of mortgages on the land of the latter, across which the right of way is given, is no more a legal reason for its absolute rejection, than if the passage were designated across the property of the party who has obligated himself to grant it.

Even conceding that the land upon which the right of way is located, may hereafter bo sold free from the servitude, in satisfaction of the mortgages, still it is not certain that the defendants would lose the right of way, for Art. (¡99 of the Code declares that: When the place for the passage is once fixed, he to whom the servitude has been granted, cannot change it, but he who owes his servitude may change it from one place to another, in order that it may be less inconvenient to him, provided that it afford the same facility to the proprietor of the servitude.

The vendor of the right of passage to the defendants is, under this Article, entitled to change it from one place to another, if the latter afford the same facility to defendants.

Tire plaintiffs are, however, obliged to furnish security, to guaranty the defendants against the danger arising from the mortgages on the land upon which the right of servitude is granted.

The right of way was granted in the sale, and the plaintiffs guaranteed its perpetual enjoyment to the defendants.

Art. 146 of the Code does not liberate plaintiffs from the obligation to furnish security, for although it permits the owner of mortgaged land to grant servitudes upon it, still this article more particularly refers to the right of granting the servitude in despite of the mortgages of third parties. It docs not obligo a party entitled to a servitude, to accept it on land which is mortgaged, as the servitude is liable to be extinguished by the sale of the property, unless the person owing the servitude furnishes security against.its loss.

This Article declares the right of the owner of mortgaged property to grant the servitude.

In such a case, the obligee pays for the servitude'according to the danger of eviction, or exacts security. The condition upon which he accepts it, is determined by himself. This Article does not oblige the obligee to accept a servitude upon hypothecated land, without exacting security. It merely grants the privilege of giving such survitude, leaving it to the contracting parties to fix the terms upon which it shall be given and accepted.

In the case at bar, plaintiff guaranteed the right to a passage between the tracts of land sold to defendants. He offers a passage bought by him of a third party for their benefit. It is affected with mortgages; the right of passage may hereafter to be extinguished; they are therefore entitled to require security.

Art. 2535 of the Oode provides that: If the buyer is disquieted in his possession, or has just reason to fear that he shall be disquieted by an action of mortgage, or by any other claim, he may suspend the payment of the price, until the seller has restored him to quiet possession, unless the seller prefer to give security.

The defendants bought the right of way, and they cannot refuse to pay until a right of way is given upon land not subject to any mortgage, if the plaintiffs are willing- to give security. The right of way is a part of the property sold, and plaintiffs have the same privilege to exact payment after having- furnished security against the danger of eviction from it, as they would have, after having given security against the danger of eviction from any other part of the estate sold.

In this court, the defendants plead the prescription of ten years against the effect of the mortgage, and alleged that the mortgage, securing the note sued upon, is prescribed, because more than ten years have elapsed since its inscription.

This plea is submitted to be tried upon the face of the record.

Conceding that more than ton years have expired since the inscription of the mortgage, this does not destroy its effect between the contracting parties, in such a manner as to extinguish it.

The failure to reinscribe after ten years, gives a superior rank to those who have inscribed their mortgages, after the expiration of the ten years, since the registry in favor of other parties was made, and destroys the effect of inscription of the mortgage. C. C. 3333.

The effect of the inscription of a mortgage, is to prevent third parties from obtaining, by inscription, mortgages superior in rank to those previously registered.

When, then, the mortgage is not reinscribed, its former inscription, after the expiration of ten years, cannot prevent subsequent mortgages, which are registered, from having- a superior rank to the mortgage first registered.

The signification of that part of Art. 3333 of the Code, which declares that “ their effect ceases,” is not that the effect of the mortgage ceases, but the effect of the inscription. The French translation of this Article elucidates its meaning :

Les inscriptions conscrvent l’hypothéque et 1c privilege pendant dix annécs a compter du jour de lour date; leur effet cosse, m&me contre les parlies conlractantos, si ces inscriptions n’ont été renouvcllées avant l’expiration de cé délai, de la máme maniere qu’elles ont été prises.”

The effect produced by the inscription between the contracting parties is referred to in the Article 3329 of the Code, which declares that: If a person who has given a: mortgage on his property, takes advantage of the neglect to register the mortgage, and engages the same property afterwards to another person, without informing- him of the first mortgage, he shall be considered guilty of fraud, and shall be subject to such damages towards the party suffering thereby, as the nature of the ease may require.' ■

If no reinscription be made at the termination of ten years, a party who gives a second mortgage to one, without informing him of the first mortgage, is not considered guilty of fraud, and is not subject to damages, and thus the effect of the first inscription ceases.

After the expiration of ten years the mortgagees have the right to reinscribe, subject in rank to those creditors who have inscribed their mortgages before the prior mortgagees have been rcinscribed, and after the ten years had expired within which they were obliged to have reinscribed their mortgages. 2 An. 100, Shepherd v. Orleans Cotton Press Company.

Defendants contend, that if they be held liable, they are not responsible for interest on the note. If they had wished to avoid the interest, they ought to have made a tender or deposit of the amount of the note. They cannot enjoy the fruits of the land without paying interest on .the price due.

The judgment of the District Judge rejected the demand of plaintiff, as in case of nonsuit.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and that the plaintiffs recover of the defendants three thousand two hundred and fifty dollars, with interest thereon, at the rate of eight per centum from the 1st of March, 1849, until paid, and the costs of both courts.

It is further ordered and decreed, that the mortgage existing on the property described in the petition, sold on the 31st of March, 1846, by Moses Liddell to defendants, be recognized, and that the said property be sold according to law to . satisfy the judgment rendered in this case.

It is further ordered and decreed, that no execution issue in this case until the plaintiffs shall have furnished their bond, with one or more solvent securities, in the amount of the note, for which judgment is given in this suit, -frith interest thereon to the time of executing the bond, payable to the defendants, their heirs, assigns or representatives, and until tho said bond be approved by the Clerk of the District Court sotting' in and for the parish of St. Mary.


text:
    Edward M. Millard v. Sosthène N. Richard.
    To sustain a possessory action, it is incumbent upon tho plaintiff to prove that lie bad tho real and actual possession of tho property at tho instant when tbe disturbance occurred, and that bo lias suffered a real disturbance cither in fact or in law, within a year before the suit was brought.
    A transferee of a preemption claim to a quarter section of land belonging to the United Statos, unsurveyod and undefined, except that bis transferor in the deed locates it in a certain township, giving him no limits, can have no civil or constructive possession under such a transfer ; he possesses inch by inch only so far as ho cultivates and encloses.
    from the District Court of the Parish of St. Landry.

      Martel, J. I. H. Overton, for plaintiff and appellant.

      C. H. Mouton, for defendant.
   Spofford, J.

This is a possessory action relative to a tract of land. There was a judgment for the defendant, and the plaintiff has appealed.

Tho view we have taken of the case renders it unnecessary to notice the bills of exceptions.

It was incumbent upon the plaintiff to prove that he had the real and actual possession of the property at the instant when the disturbance occurred, a mere civil or legal possession not being sufficient, and that he had suffered a real disturbance cither in fact or in law, within a year befm-e suit was brought. C. P. 49.

The evidence fails to show these necessary facts. The plaintiff possesses the land claimed by him, not as owner in presentí, but as the transferee of a right oí preemption to a quarter section of land belonging to the United States Government, unsurveyed and undefined, except that his transferor stated in the deed that it was situated “ on the Bayou Bourbeux, in the woods adjoining the prairie Grand Ooteau, in Township No. 7, south of Range No. 4 East.” This title gave him no limits. He can have no constructive or civil possession under it. He possesses inch by inch only so far as he cultivates and encloses.

Now, it does not appear that the defendant has, within a year before suit, brought, disturbed the plaintiff in his possession of any land then under enclosure or cultivation by him.

The judgment in favor of the defendant is, therefore, affirmed, with cosls.


text:
    The State v. George White and Clarence Ward.
    The defendants wore indicted for inflicting inhuman and cruel treatment on a slave, tlio property of one ol* them—Held: That the sections of the Act of the Logislaturo of 1806, callod tho Black Code, under which the indictment was framed, aro not repealed by the Act of 1855 relative to crimes and ollbnces, nor by the Act of 1857 relative to slaves.
    The terms conviction and offence used in the Act, imply a prosecution by information or indictment, and not a proceeding by suit to recover a flne.
    The appellate court has no powor to reverse the judgment of tho lowor court on tho ground, that the jury disregarded the instructions of the Judge.
    PPEAL from the District Court of the Parish of St. Martin, Voorhies, J.

      P. D. Hardy, for plaintiff.

      DeBlanc.& Fusilier, for defendants and appellants.
   Merrick, 0. J.

This is an indictment under the sixteenth and seventeenth . sections of'the section forty-one of the Act of 1806, called the Black Code. Bullard § Curry, p. 61. A fine of f400 was imposed upon the defendant, White, and he appeals.

The indictment was found on the 6th of May, 1857, and charges the offence on the 27th day of November of the same year (1857).

No bill of exception having been taken to the admission of the declarations of Ward, in evidence or the charge of the Judge in reference to them, we are without power to reverse the judgment of the lower court on that account, although the jury may have disregarded such instructions. The District Judge had the power, and it was his duty to grant a new trial, if he thought the verdict of the jury was against the law and the evidence.

The defendant did not object to the indictment before the jurors were sworn, and as time was not of the essence of the offence, we must presume that an of-fence committed before the finding of the indictment and not barred by the statute of limitations, was proven. Act 1855, p. 175, sec. 17 and 18.

We are of the opinion that the offence charged in the indictment, was not repealed by the Act of 1855 relative to crimes and offences, (Acts 1855, p. 131,) nor by the Act relative to slaves of 1857, p. 229. No section in either of those Acts treats of the subject-matter of the sections No. 16 and 17 of sec. 41 of the Act of 1806, nor are they in conflict with the same. Neither are we prepared to say, with reference to these two-statutes, that the Legislature intended us to look elsewhere for the subject-matter of them, than, in the body of the Acts themselves.

We know no law which requires the prosecution under these sections of the Act of 1806 to be conducted as a civil suit. On the contrary, we think that the terms, conviction and offence, used in them, imply a prosecution by information or indictment. Moreover, the first offence specified in section 16, viz, the offence of killing the slave of another, could be prosecuted in no other manner. Const. 1852, Art. 103. The case of the State v. Linton, 3 Rob. 55, is not in conflict with these views.

Judgment affirmed.


author: Spofford, J. Merrick, C. J.

text:
    Heirs of Leufroy Provost v. Celestine Provost, Widow.
    Where a will was probatod before the Clerk of the District Court, and an order granted that it bo executed, recorded and deposited m the Clerk’s office—Held: That such a decree is not conclusivo upon the heirs not cited, and that when set up as a muniment of title against their claims to property belonging to their inheritance, the validity of the will thus probated may bo called in question by them collaterally.
    Where the following disposition was contained in a will, viz: “ I give and bequeath to my beloved wife, the plantation upon which I reside, and Ihefollowing slaves, dec., dec. Ifurther will, that upon the demise of my said wife, that the property bequeathed her relurnio my brothers cmd sisters and be equally divided between them. ’ ’—Held: That such a disposition is a prohibited substitution—null oven as to tho legatee— and that tho prohibition contained in Article 1507 of the C. C., being m tho intorest of public order, the bequest clashing with it is an absolute nullity, incumbió by tho prescription of five years.
    PPEAL from tlie District Court of the Parish of St. Mary, VoorMes, J.

      DeBlanc & Fvselier, for plaintiffs.

      Henry Gibbon, for defendant and appellant.
   Spofford, J.

The plaintiffs aver that they and their brother Edward Provost are tho solo heirs at law of Leufroy Provost, who died in the parish of St. Mary in 1849 ; that his widow, the defendant, has taken possession of the property of his succession, as described in an inventory annexed to the petition, and has reaped the fruits thereof since his death ; and that they are entitled to recover the said property from her, and also its revenues, which are worth $1200 per annum. They pray for a decree accordingly.

The defendant answers that she holds the said property, as owner, by virtue of her husband’s last will, which has not been set aside by any judgment or decree of court, and if the said will be ineffective to transfer to her the property, she, nevertheless, holds it by good title in her own right, as partner in community with her late husband, being absolutely owner of one-half, and, by law, usufructuary of tho other half. She also pleads the prescription of five and ten years.

The judgment recognized the legal heirs of Leufroy Provost as the owners of all his separate property left in tho succession, and of one-hall' of the community ; reserving all other matters for adjudication on the liquidation of the estate.

Tho defendant has appealed.

Her counsel makes but two points in this court: first, that tho will having been admitted to probate, and its execution ordered by a competent court, must have its effect until set aside by a direct action, and cannot be questioned collaterally ; and, secondly, that the defendant’s possession under a will thus probated entitles her to avail herself of the prescription of five years, as to tho slaves and other effects, the plaintiffs’ claim to the lands having boon relinquished.

I. The will was probated ex parte before the Clerk of the District Court upon the same day that it was first presented. The order was that it be'executed, recorded and deposited in the Clerk’s office. No opposition was made to the probate, and, so far as appears, no notice was given to those plaintiffs.

It is perfectly well settled, that such a decree is not conclusive upon the heirs not cited, and that, when set up as a muniment of title against their claim for property belonging to their inheritance, the validity of a will thus probatod may be called in question by them collaterally. In Sophie v. Duplessis, 2 An. 725, it was said that “ the decree of the probate court ordering a will to be executed, does not amount to a judgment binding upon those who are not parties to it; and that, notwithstanding’ such order, when the will is offered as the title in virtue of which property is claimed or withheld, its validity may be inquired into.” The court, in that case, added that they were not prepared to say that the mere order of the Judge for the execution of a will has the effect of a judgment, binding even upon those at whose instance it was made, so far as to conclude them from subsequently contesting the validity of the will, unless upon the probate the question of its validity was expressly put at issue.” See also Succession of Dupuy, 4 An. 572; Succession of Duplessis, 10 Rob. 196; Rachal v. Radial, 1 Rob. 116; Robert v. Allier, 17 La. 14; O’Donnegan v. Knox, 11 La. 388; Aubert v. Aubert, 6 An. 104.

II. The will has a patent nullity upon its face. “ I give and bequeath unto my beloved wife, Celestine Irma Provost, the plantation upon which I reside, and the following slaves, &c., &c. I further will, that upon the demise of my said wife, Celestine Irma Provost, that the property bequeathed her return to my brothers and sisters and be equally divided between them.” This disposition is the origin and basis of defendant’s title. It is manifestly a prohibited substitution—null oven as to the legatee. O. 0.1507. And the prohibition contained in that Article being in the interest of public order, the bequest clashing with it is an absolute nullity, incurable by the prescription of five years. Lagrange v. Barré, 11 Rob. 312; Vaughan v. Christine, 3 An. 329. The Article 3507 of the Code is, therefore, inapplicable to this case. And the ex parte order of the Glerk of the District Court for the execution and registry, of the will, upon which there was no contestation, does not transform what is absolutely null into a just title, which will support the prescription of five years. The defendant can not change the nature and origin of her possession. She holds only by a title void upon its face.

We express no opinion as to the applicability of the prescription of five years (C. C. 3507) to any other nullities in a will than such an absolute nullity as is involved in a prohibited substitution, because this seems to be the only point at issue in the present case.

The plaintiffs have prayed for an amendment of the judgment, so as to award to them the fruits and revenues of the property while in defendant’s possession. The evidence upon this subject is too vague, and the District Judge in his decree has reserved these matters for future adjustment, upon the filing of a proper account, showing the nature of the property and its revenues. The right of the widow to the usufruct of the half of the community inherited by the plaintiffs must also be considered as reserved by the judgment. .

The judgment of the District Court is, therefore, affirmed, without prejudice to the questions of revenues and community rights, the appellant paying the costs of appeal.

Merrick, C. J.

I concur in the opinion of Mr. Justice Spofford as applicable to the present ease. But, in order to prevent any misconception, I think it prudent to say, that when a will is once admitted to probate it creates, prima facie, the presumption of the correctness of such probate, and the party who attacks it, whether directly or indirectly, must defeat such presumption by some sufficient proof. And that prescription, under Article 3507 may, in a proper case, protect a party holding under a will so admitted to probate, but where a legatee claims under dispositions in a will which are absolutely null, (as in this ease, by reason of the substitution,) the proscription of five years cannot apply, because the title with which the decree invests the legatee is itself invalid.

The probate of the will ex parte could only give validity to such dispositions in a will as wore not in violation of the prohibitions of law and the settled policy of the State. And this is what I understand my colleagues to have expressed in other words.


text:
    Peter W. Hennegin v. Thomas W. Wilcoxon.
    A partner cannot sue his copartner, oven after the dissolution, for special items advauced to the partnership—his action is for an account and settlement of the partnership affairs, or, if a settlement has hcon made, for the balance shown to bo duo to him by such settlement.
    APPEAL from the District Court of the Parish of St. Mary, Voorhies, J.

      J. W. Walker, for plaintiff and appellant.
    J. G. & A. Olivier, for defendant.
   Spofford, J.

The plaintiff sued to recover of defendant certain sums of money alleged to have been advanced for the steamboat Huron, whilst owned and run by them in partnership ; he also claimed the surrender of a note for §1500, given by him to defendant as part of the purchase price, which the latter, after the wreck of the boat, agreed to restore, in consideration of a sale by plaintiff to the defendant, of his half of the wreck.

Besides; there was a demand for damages, of which there is no proof, and which appears to have been abandoned. • '

The plaintiff had judgment only for the return of the §1500 note, and all costs ; ho has appealed for the purpose of testing the validity of an exception pleaded in the answer to that portion of his demand which relates to the sums said to have boon advanced for the use of the partnership.

It is very clear that a partner cannot in general sue his copartner, even after the dissolution, for special items advanced to the partnership—his action is for an account and settlement of the partnership affairs, or, if a settlement has been made, for the balance shown to be due by such settlement.

The plaintiff seeks to escape the rule in this case, by averring that the sale of his share of the wreck to his copartner, which put an end to the partnership, imposed upon the latter, by operation of law, the duty of paying all the boat’s debts, including the plaintiff's alleged advances. This proposition cannot be maintained.

I-Ie further alleges a special stipulation on the part of defendant at the time he bought plaintiff’s share of the wreck, to pay him the amount of his advances.

The only proof upon this subject is that of the witness, Cannon, who says that, as well as he recollects, Captain Wilcoxon was to pay Hennegin thirteen hundred and odd dollars, return the §1500 note, and pay all the liabilities of the boat, in consideration of the sale of half the wreck, which sale this witness wrote. Aside from improbabilities, patent upon this testimony, we may remark that the written act speaks of the return of the jdaintiff’s note for §1500, as the only consideration of the sale; aud that another of plaintiff’s witnesses, present at the sale recollects nothing of the assumpsit testified to by Capt. Cannon, so that the covenant to pay over $1300 is testified to by but a single witness, whose account, so1 far from being corroborated, is contradicted by the,circumstances in evidence.

There is no error in the judgment to the prejudice of the plaintiff and appellant.

The appellee tendered the note claimed by plaintiff, in his answer filed July 3d, 1855, and ho contends that all costs subsequent to that date should be paid by the plaintiff, who failed in all other portions of his demand. We think the amendment prayed for by the appellee in this particular should not be allowed, for it does not appear that the defendant also made a tender of the costs up to that date.

Judgment affirmed.


author: Mebriok, C. J.

text:
    Maunsel White v. T. C. Anderson & Co.
    A party, after having movocl for tho homologation of aj*eport made by auditors, cannot go behind tho same and demand judgment for maltors submitted to them, but not allowed by their report.
    APPEAL from the District Court of the Parish of St. Landry, Mariel, J.

      Lewis & Porter, for plaintiff and appellant.

      J. E. King and J. H. Overton, for defendants.
   Mebriok, C. J.

This suit was originally commenced upon two drafts drawn by defendants on Maunsel While & Co., in favor of Hudson & Robertson, and taken up by plaintiff.

Defendants in their answer alleged that there were large commercial transactions between plaintiff and defendants, and .that the plaintiff is indebted to them in the sum of $5,000, on tho settlement of accounts,

They interrogated the plaintiff on facts and articles. Plaintiff answered that he had taken no active concern in the affairs of the firm of Maunsel White & Co. for some time previous to their suspension, and therefore, could not answer positively/ but he annexed an account taken from the boobs, which he considered correct, showing an additional indebtedness by defendants to the firm of Maunsel White & Co. (with the liquidation of which firm plaintiff is charged) of $17,163 55.

Plaintiff then amended, by claiming this additional sum of the defendants in solido, and by reference to the original petition, as commercial partners.

The matters in dispute were referred to auditors who reported a balance in favor of the plaintiff of $9,506 00.

The plaintiff took a rule upon the defendants to show cause why the report of the auditor? should not be homologated. They filed an opposition to the account stated by the auditors, and on a trial of the 'same, the District Court deducted certain items with which defendants were charged, added an item not contested, and rendered judgment in favor of defendants for $973 38, and plaintiff appeals.

We think plaintiff, after having moved the homologation of the auditors’ report, cannot now go behind the samo and demand judgment for matters submitted to them, but not allowed by the report. St. Romain v. Robeson, 12 Rob. 196. We shall, therefore, confine our investigations to the items allowed the defendants by the District Oourt and deducted from the balance found by the auditors, and will briefly consider them in their order.

The first item allowed by the District Judge as a credit, is one of $700 for errors in the account current stated January 31st, 1852, from which the auditors take the balance upon which they principally predicate their account.

We cannot say that the District Judge erred in allowing defendant a credit for this sum. It would seem that the sums composing it wore paid by defendants, and erroneously figure .in the account.

The District Judge correctly allowed defendants a credit for Charles Jones’ draft accepted by Maunsel White & Co. for $1570, and held by defendants.

The item of $1040 carried from one side of the account to the other, and thus credited as $2080 to defendants, we think should be" simply deducted from the balance.

.In the account annexed by plaintiff to his answers to the interrogatories, he has allowed defendants a credit for the sum of $1040. But if the debt paid were the debt of defendants, as it seems, justice will be done by simply deducting it from the balance found by the auditors.

5. We cannot find that the auditors have charged the defendants with the draft in favor of Wolf & Bishop for $1000, and the draft in favor of Corning <& Co. for $807 45, both taken up by defendants. Nor were they carried into the account prior to January 31st, 1852, when the balance of $13,519 67 was stated by Mauusel White <& Co. as due defendants.

The next item rejected from the auditors’, report was an individual draft of Thomas C. Anderson, given as the price of certain negroes bought of a negro trader. The suit is against the defendants, as commercial co-partners, and they have excepted to its introduction. If the defendants are indebted to the plaintiff under the pleadings, it is in virtue of their dealings and contracts as commercial co-partners. The pleadings do not contemplate a suit upon the several or indi-. vidual contracts of either of the partners. The item was properly excluded, leaving the plaintiff to his recourse against Thomas C. Anderson individually. Wo come now to state the account in accordance with these views.

Plaintiff has paid on account of defendants, since the report
of the auditors.................................... $ 678 07
Add amount allowed by the report..................... 9,506 00
Total.......... $ 10,184 07
Deduct credits allowed defendants, as above, viz :
No. 1, $ 700
No. 2, 1570
No. 3, 1040
No. 6. 5000 $ 8,310 00
Balance............................. $ 1,874 07

For this sum plaintiff must have judgment reserving his right against Thomas C. Anderson on the $5000 draft.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and that the plaintiff do now recover and have judgment in his favor against the defendants, Thomas C. Anderson and Thomas M. Anderson, in solido, for the sum of one thousand eight hundred and seventy-four dollars and seven cents, with five per cent, interest on $1196 from the fifth day of July, 1852, until paid, and the like rate of interest on $618 01 from the Ith day of January, 1851, until paid, and that the defendants pay the costs of both courts, reserving to the plaintiff any right he may have to recover of Thomas C. Anderson said draft for $5,000 drawn in his own favor.


author: Srofford, J.

text:
    Bryce Elliott v. J. B. Brown, Executor.
    Whore a reconventional demand founded on a promissory note was set up, and "by a consent judgment the plaintiff’s suit was dismissed—Held: That it was a voluntary abandonment of the reconventional demand and did not interrupt the prescription on the note.
    An admission by a party, that a person holds a note against him is*not, of itself, an admission that he justly owed to such person the amount of the note; there must bo an acknowledgment of the creditor’s rights.
    APPEAL from the District Court of the Parish of St. Mary, Voorhies, J.

      H. C. St T. G. Wilson, for plaintiff an:d appellant.

      J. G. Olivier, for defendant.
   Srofford, J.

The defendant pleads the prescription of five years to an action upon a negotiable promissory note.

The only question is, has prescription been interrupted ? The District Judge decided that it had not, and the plaintiff has appealed.

In a suit brought by the deceased, George Elliott, against Bryce Elliott, (the present plaintiff,) in 1851, for the supplement of the. price of a plantation, the latter pleaded in reconvention a promissory note, said to be the note now sued on. But, by a consent judgment, the suit was dismissed. This was a voluntary abandonment or discontinuance of the reconventional demand, and, so fer as its mere institution is concerned, the interruption is considered as never having happened. O. O. 3485.

But it is said that Bryce Elliott’s answers to interrogatories propounded to him by the plaintiff in that suit, herein represented by Brown, executor, did interrupt prescription. He was not interrogated as to the note now in question, but upon quite other and distinct matters. But he added to his last answer the following statement: “ I also hold a note of ten thousand dollars against plaintiff, after paying $15,000 for him.”

This is no more an acknowledgment of the debt by George Elliott, than was the admission testified to by the witness, Tafkington, offered by the plaintiff in the present suit. TarJcington says, that he has heard George Elliott say, within the last five years, that Bryce Elliott held a. note against him, but did not acknowledge that he owed the note or state the amount, but, on the contrary, stated that Bryce Elliott was largely indebted to him.”

There must be an acknowledgement of the c%editor’s right. O. C. 3486. An admission by the alleged debtor that a third person holds a note against him, is not, of itself, an admission that he justly owes to such person the amount of the note.

Judgment affirmed.


text:
    William Berger v. Alanson Spalding.
    A new trial will not be granted on the ground of newly discovered evidence, when tho party applying for it fails to show in his affidavit that ho had used due diligence to procure or discover the evidence. Where no bill of exceptions has been taken to the ruling of the Judge in refusing to grant a continuance, the Supremo Court will not notice such refusal.
    PPEAL from tho District Court of the Parish of Vermillion, Voorhies, J.

      William, Berger, in pro. per.

      E. Simon, Jr., and A. L. Tucker, for defendant and appellant.
   Merrick, C. J.

The plaintiff sued the defendant for $630, alleged to be due him as wages as a clerk, and for money lent. The defendant claimed throe hundred dollars in reconvention. The cause was tried by a jury, who found a verdict in favor of the defendant for twenty-six dollars, on which judgment was rendered, and plaintiff appeals.

The plaintiff states thirteen grounds on which he expects a reversal of the judgment of tho lower court. The grounds which plaintiff numbers from five to thirteen inclusive, relate to the supposed error of the Judge a quo in refusing a continuance and also refusing a- new trial on the ground of newly discovered testimony. The plaintiff can derive no advantage from the decision of the Judge on these two questions, inasmuch as he has failed to show in his affidavits that he had used due diligence to procure or discover the testimony, and moreover took no bill of exception to the ruling of the Judge upon the question of continuance.

Tho second, third and fourth grounds urged by appellant are disposed of by the single remark, that the record does not show that plaintiff objected to a trial by jury, and there is no sufficient proof in the record of the misconduct of the jury after they were empannelled.

The remaining ground to be considered is the first, wherein it is alleged that the verdict is against the law and the evidence. We must decide the case upon the evidence adduced. The suspicion that the plaintiff who undertook to manage his own case, might have presented a stronger case had it been confided to a member of the bar conversant with judicial proceedings, cannot supply the proof which is wanting, and wo must pass upon the case as we find it, whatever hardship it may occasion the plaintiff. We cannot yield to his inexperience or rashness that which would not be yielded in another case to any other suitor. The plaintiff has not only interrogated the defendant on facts and articles, but he appears to have him'placed on the stand as a witness. This testimony must be considered, and giving effect to the same in connection with the other testimony in the record, it fully sustains the verdict of the jury.

There is no ground on which to amend the judgment in favor of the defendant.

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


text:
    Jane M. Johnston v. George W. Johnston.
    An interlocutory judgment sotting aside a writ of sequestration, is one calculated to work an irreparable injury, and consequently may be appealed from.
    APPEAL from the District Court of the Parish of St. Martin, Voorhies, J.

      Simon If Gary and E. Simon, Jr., for plaintiff and appellant.

      DeBlanc <& Fuselier, for defendant.
   Cole, J.

Plaintiff instituted this suit against her husband, demanding the administration of her paraphernal property; and setting np many claims against him for money and property received by him during the marriage, and praying also for a writ of sequestration against all of his estate.

The writ issued and his property and that of his,¡wife, under his administration, were sequestered.

On motion, the writ, for various causes, was set aside, and plaintiff appealed. A motion has been made in this court to dismiss the appeal, on the ground, that there is no appeal from an interlocutory order dissolving a writ of sequestration.

Art. 566 of the Code of Practice provides that-: One may likewise appeal fronj all interlocutory judgments, when such judgments may cause him an irreparable injury.

The Oode of Practice entitles a party to the writ for various causes, based upon the hypothesis that he may be deprived of some of his rights and claims upon property. O. P., Art. 275.

If there were no danger of the loss of these rights and claims, there would be no necessity of issuing the sequestration.

When, then, it is set aside, the party may 'suffer an irreparable injury, and is entitled to an appeal. 12 La. 150; 2 An. 826; 9 An. 120.

Upon the merits, plaintiff has failed to sustain lier obligations and affidavit in justification of the issuance of the writ.

The District Judge, in his opinion, remarks-Mrs. Johnston’s affidavit is to the effect, that she fears her husband will part with the slaves and movables sequestered during the pendency of this suit. This constitutes prima facie evidence of the cause which entitled her to the issuance of the writ under consideration.

It then behooves the defendant to l-ebut this presumption by showing that it was not Ms intention to part with these slaves and immovables.

The evidence show's that the defendant has taken by far the greater portion of standing cane for seed for the coming year,; that he is making active preparations for a crop of sugar for next year, and that he has employed an overseer for that purpose.

Finally, that he has selected an overseer, a married man, for the purpose of having the service of his wife in attending to the children that will be sent to the school, which he is on the eve of opening.

I do not consider it of any importance, that.the defendant has sold a mare and the undivided half of a stallion named Marshal ISfey.

Judgment affirmed, w'ith costs.