text:
    George R. King v. Louis Lastrapes et als.
    In cases where the law makes it imperative upon the Judge ex officio to appoint an executor, it does not dispense with the necessary formalities. An appointment made under such circumstances, should be made only after due notice to all parties interested.
    The appointment of a dative testamentary executor without notice of the application, is null.
    The power of tho Judge to appoint a successor to an executor or administrator who has not qualified after tho expiration of ten days from his appointment, cannot bo exercised without first notifying such executor of his appointment.
    PPEAL from the District Court of the Parish of St. Landry, Martel, J.

      J. E. King, for plaintiff.

      Dupré & Garland, for defendants and appellants.
   Cole, J.

Sarah H. Ogden, wife of James Alcenhead, died about the 4th of October, 1857, leaving an olographic will, and appointing the plaintiff and John Glaze, executors of her estate.

On the 21st of October, John Glaze presented a petition for the probate of the will.

It was probated, and the executors named wore appointed by the Clerk, but they never qualified; and on the 16th of March, 1858, the Cleric appointed Robert Benguerel, executor of the estate. He qualified on the same day.

The object of this action is to destitute Benguerel of his trust, and appoint plaintiff in his place.

The judgment decreed the appointment of Benguerel to be null, vacated the same, and ordered the Clerk to deliver letters testamentary to the plaintiff.

Benguerel has appealed.

The decision of the cause depends on the solution of two questions :

1st. Has the appointment of Benguerel been made according to law and is it valid ?
2d. Was plaintiff subject to the penalty of the fifth section of the Act of 16th of March, 1842, entitled “ an Act explanatory of tho 924th Art. of the Code of Practice for the administration of the succession of strangers dying possessed of property within the State of Louisiana, and for other purposes ?” Session Acts of 1842, p. 300.

I. The Act of 1842, reenacted in 1855, Session Acts, p. 79, $ 7, provides: “ That whenever the testamentary executor, or any other administrator of a succession, shall suffer ten days to elapse after his confirmation or appointment, without having either qualified- or caused an inventory to be at least begun, the Judge shall forthwith and ex officio appoint a successor in office, as if no such officer had been confirmed or appointed.”

This Act is principally based upon Art. 1671 of the Code, and 924 of the Code of Practice, sections 7 and 8.

Those Articles confer on the Judge the power of appointing a testamentary executor ex officio, if the testator has omitted to name one, when the person designated in the testament refuses to accept, will not, or cannot perform the duties, or is dead or absent; and authorize him to remove or supply the places of such executors, in the cases provided by law.

These Articles did not, however, oblige the Judge to assume the initiative steps for the appointment of an executor in the several cases therein mentioned, and the Act of 1842 was passed, which enjoins upon the Judge in certain events, of “ forthwith and ex officio appointing a successor in office.”

The words “ forthwith and ex officio," do not authorize the Judge to act independently of the forms and requisitions of the law.

Arts. 1671 and 924 were judicially interpreted previously to the passage of the Act of 1842, and our predecessors held, that in all cases of administrators of successions, of whatever denomination, to be appointed by courts of probates, public notice of the applications should be given in the manner pointed out in the Articles 1106,1107 and the following, of the Louisiana Code, or in any other law relative to the same subject. Girard’s Heirs and Legatees v. Girard’s Executors, 18 La. 401 and 402.

In June, 1842, this court decided that the Act of 1842 does not dispense with the publication of the application to bo appointed dative testamentary executor. Succession of Henderson, 2 Rob. 395.

In 1844, on a re-hearing, it was held, that when the administrator or executor shall neglect to qualify, or to cause an inventory to be commenced, the Judge, under the Act of 1842, by virtue of his office, is to take notice of such default; and immediately, or “ forthwith,” take the legal means to notify .those interested of it, and make an appointment in the same manner as in the first instance. lie is not to wait for a complaint to be made by any person, but he himself must notice it.

This Act has not, however, released nor repealed any of those securities to which parties interested in the publicity of'.their proceedings are entitled. Succession of White, 9 Rob. 356.

The interpretation of the Act of 1842, by our predecessors, by which public notice were required before the appointment of dative testamentary executors, has been affirmed by legislative action.

In 1855, the fifth section of the Act of 1842 was literally reenacted.

The interpretation of this section of the Act of 1842, by the Supreme Oourt, was known to the lawyers in the Legislature of 1855, who were charged with the general revision of the statutes; and they could easily have prevented, in the future, this interpretation by the insertion of a few words. As they did not do so, they consequently adopted and reenacted the Act of 1842, as interpreted by the published decisions of the Supreme Oourt.

These decisions accord with the genius and spirit of our laws. The Judge would indeed be vested with a dangerous power, if .he were authorized to appoint without notice ; for he might appoint strangers or favorites over heirs and creditors, and he would not perhaps always know who were the real parties interested.

Defendant relies on the case of the Succession of Bernard Hart, 7 Rob. 535, it contains no principle antagonistical to the necessity of public notices of the application of persons to be appointed dative testamentary executors or administrators.

.The court say, that after the expiration of the ten days, the Judge might perhaps have refused to permit her to qualify, and have tajeen measures for the appointment of another person in her stead.”

"What measures do the court intend ? "We think, that the sentence implies, that the Judge was to adopt the ordinary procedure for the appointment of an administrator, such as public notice.

Wc would also observe, that the 7th, 8th and 9th clauses of the Article 924 of the Code of Practice, call dative testamentary executors, administrators ; and it is now the established jurisprudence that the duties of a dative executor and an administrator, do not vary materially, except that the former is obliged to regard the testament, for the purpose of executing its dispositions of the property, and the latter the law.

Consequently the same notices ought to be given for the appointment of dative testamentary executors, as for that of any other Mud of administrators of an estate.

Now, as no public notice was given of the application of Benguerel for the appointment of dative executor, his appointment is therefore null.

II. Wo are of opinion, that plaintiff has not subjected himself to the penalty of the statute of 1842, reenacted in 1855.

This statue is highly penal in its nature, and ought to be rigidly construed.

The object of this statute was to impose a new duty on the Judge, for indopendantly of it, there is nothing therein different from what was previously contained in Article 1671 of the Code, and 924 of the Code of Practice.

This new obligation obliges the Judge to adopt proceedings for the appointment of a dative executor or administrator.

Anterior to the statue of 1842, the Judge was not bound to take any action in the event the executor or administrator fail to qualify or to cause an inventory to be made. Estates were thus exposed to be despoiled or ruined; but this statute obliges him, after the expiration of ten days from the appointment or confirmation of 'an executor or administrator who has not qualified, or caused au inventory to be at least begun, to appoint forthwith and ex officio, a successor.

This statue does not, however, authorize the Judge to do this, unless the executor previously appointed has been notified of his confirmation.

In the case at bar, the plaintiff did not present a petition, to havo the will probated and himself confirmed as executor ; besides ho never received any official notice of his appointment.

It is adverse to the spirit of our laws and institutions, that a person should bo deprived of his rights without any notice. It is a general rule, that one cannot be affected by a suit unless he is a party to the same.

Article 931 of the Code of Practice requires, that: “ If it be the executor appointed by the will who presents the petition, he shall demand not only the execution and registry of the will, but that letters testamentary be delivered to him, if he agrees to accept the appointment.”

When, then, the person appointed by the will applies, it is the duty of the court to decree, as a part of the judgment, that letters testamentary be delivered to him ; they are his commission and the warrant of his authority to act in the capacity of executor.

We are, then, of opinion, under the circumstances of this case, that plaintiff ought to have been officially notified of his appointment, before the Clerk proceeded to subject him to the penalty of the statute; and then, if he allowed the ten days to elapse after this notification, the proper authorities could have proceeded to give the pmblic notices of the application of other persons, or if there were no applications, of the intention of the Judge to appoint a certain person to the executorship.

In 17 La. 592, State v. Judge of Probates for the City of New Orleans, the court say : “We have no hesitation in saying that in our opinion, tho Court of Probatos, has no authority to appoint a dativo testamentary executor, until the executor named by the will has had an opportunity offered him to accept or refuse the trust.”

The appointment of Benguerel is then null for two reasons : first, because no notice was legally given of his application; and, secondly, because there was no vacancy ; for he could not bo appointed, as long as plaintiff had not boon notified of his appointment and had the opportunity to accept or refuse the trust.

The designation in the will, and the subsequent appointment, do not stand in lieu of public notice, because the parties interested to obtain the appointment have the right to suppose, that the one appointed will continue to act. When, then, ho is removed, public notice must bo given of the application of persons for the office, the same as if no one had been named in the will and appointed by tho court.

Defendant relies also on the case of De Armes, 1 Rob. 461, but it only decides, that a person having no interest in the question of the administratorship of an estate, cannot provoke the destitution of one already appointed. In the present case, the plaintiff is interested, because he was named in the will and appointed by the proper officer.

Judgment affirmed, with costs of appeal.


source: Caselaw Access Project

author: Merrick, O. J.

license: Public Domain

text:
    Evelina Collins, f. w. c., Tutrix, v. Joseph Hollier, Administrator—Jonathan Harris v. same.
    Aa administrator will not be porraittod to allogo his own illegal acts in bar of the action of creditors against him.
    If, at tho salo of property administered by him, he becomes tho purchaser and goes into possession of the property, he will bo held liable for the prico.
    Tho neglect of an administrator to flic his account within tho timo prescribed by law, will subject him to destitution from ofllcc and to tho payinont of ton por cent, interest on tho amount due by him to tho estate.
    The creditors cannot, howovor, compol a distribution of tho funds of tho estate by such destituted administrator; they must pursuo their remedies against the now administrator to be appointed, who is authorized to demand a full account from the former administrator.
    APPEAL from tlie District Court of the Parish of St. Landry, Martel, J.

      Lewis <& Porter and Swayze <& Moore, for plaintiff.

      B. F. Linton, for defendant and appellant.
   Merrick, O. J.

The two consolidated cases now before us, were brought by judgment creditors against Joseph JIolKer, to destitute him of tho office of administrator of Julien C. Gonor, deceased, for not filing his account within the year, and to claim ten per cent, interest, and to obtain execution against him individually.

Judgment was rendered in favor of the plaintiff to the extent of said demands, and the administrator appeals.

The administrator not being within the exception of the law, bought at a probate sale, provoked and made by himself, a house and lot, for tho sum of $600, payable in one, two and throe years, from 31st of October, 1855. lie now contends that this sale was an absolute nullity, and, as a consequence, that he cannot be charged with the price of tlie sale, and that the property ought to be resold.

Articles 1139 and 1784, prohibit an administrator from purchasing properly administered by him as such, and it has given rise to much discussion whether the nullity pronounced by these Articles is absolute or relative.

Without undertaking to decide this question, we are of the opinion that whore an administrator has bought property at a probate sale, which ho has returned to the probate court as sold with the proces verbal of sale, and has gone into the possession of the property and possessed the same, as in this case, for three years or more,-without offering to account for the revenues,'or taking any stops to provoke a resale, ho cannot defeat the creditors by excepting from the proces verbal the property purchased by himself, and he cannot be permitted to allege his own illegal acts in bar of the action of the creditors; and if he be not held bound as a purchaser, he shall be charged with so much money as he has prevented the estate from receiving by his real administration, and that the proces verbal may, at the option of the creditors, be considered as showing the amounts for which he should be charged.

The administrator having neglected to file his account within the time prescribed by law, was ‘properly destituted and condemned to pay ten per cent, interest upon the installments of six hundred dollars which had fallen due.

But so far as the judgment condemns the defendant to pay the plaintiff’s judgments against the administrator out of his individual estate, it appears to us, from such examination as wo have been enabled to give the record, unaided by a brief on the part of the appellees, to be erroneous.

If the plaintiffs claim judgment upon the account rendered in this proceeding, it has never been published or notified to the heirs, that we can discover, and it is somewhat inconsistent to compel a distribution of the funds of the estate from one who is destituted of his office. 1

If they claim an execution in virtue of their original judgments, they do not appear to have been notified to the administrator, in conformity to the Code of Practice. See Arts. 1053, 1054, 1055, 1056, 1057; Carriere & Borduzat v. Meyer et al., 16 La. 126.

The parties must be left to pursue their remedies against the new, administrator to bo appointed, who will be authorized to call upon the present defendant to render a full account.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided, and reversed; and now pronouncing such judgment as should have been rendered, it is ordered, adjudged and decreed by the court, that said Joseph Hollier be destituted from his said office of administrator of the succession of Julien C. Gonor, deceased ; and that he pay for the benefit of said succession ten per cent, interest on the sum of $200, from the 31st day of October, 1856, until paid, and the like interest on the sum of $200 from the 31st day of October, 1857, until paid, reserving to the proper parties the right to call upon said defendant for said principal now due, and which may fall due, and such other sums as may be traced into his hands, subject to such credits as he may establish. And it is further ordered, that the defendant pay the costs of the lower court, and the plaintiffs the costs of the appeal, to bo equally divided between them.


author: Spoword, J.

text:
    Onèsiphore Delahoussaye, et al. v. Alexander Judice et als.
    Whon a servitude is due by an estate below to receive the waters of the ostato above, the proprietor below is not at liberty to raise any dam, or to make any other work to prevent the running of Iho water, and the proprietor above can do nothing whereby U\o natural servitude duo by the estate below maybe made more burdensome.
    To acquire the right to a continuous and apparent servitude by prescription, the enjoyment of it must bo absolute and uninterrupted during ten yorrs,and not dependant only upon a precarious permission from the debtor.
    Whore the creditor of the servitude, to stifle the complaints of the debtor and prevent a law suit, himself erects works totally obstructing the servitude, at the roquest of, and by agreement with, the debtor. Held : that lie thereby makes a tacit renunciation of the servitude.
    PPEAL from tlie District Court of tlie Parish of St. Martin, Martel, J.

      DeBlanc S Fuselier, for plaintiffs.

      Simon & Gary, and J. G. Olivier, for defendants and appellants.
   Spoword, J.

The defendants have appealed from a judgment of the District Court ordering tlie stoppage of an artificial canal cut upon some of the defendants’ lauds, for the purpose of draining certain marais, or ponds, situated within territory belonging to the defendant, into Pointo Claire Coulée.

The plaintiffs complain that, by this artificial work, their lands adjacent to the Pointo Claire Coulée are subjected to an unnatural burden by receiving waters from which they would otherwise be exempt, and thus being made more liable to overflows.

The first point in the defence is a denial that the canal causes any grievance to the plaintiffs, or subjects them to greater risk of overflow.

If it docs not, it is difficult to see why the defendants seek to keep the canal open ; if tlieir marais would otherwise be drained as rapidly and well, the canal must be useless to them; it could only have been cut for the purpose of drainage; it must, of course, if it fulfills its office, swell the waters of the coulée, into which it flows, faster than they would be swollen through the more shallow natural outlet of these ponds into the same coulée, by another and a more devious course.

And to this effect is the testimony of the greater number of witnesses who have had the best means of judging ; that the lands of the plaintiffs are burdened by a greater and more rapid flow of waters since the cutting of the canal in question, than before ; and that this is occasioned by the canal, and not merely by certain trifling obstructions in the branch of the coulée into which it empties.

The question of legal right has, therefore, to be determined.

It is a servitude due by the estate situated below to receive the waters which run naturally from the estate situated above, provided the industry of man has not been used to create that servitude.

The proprietor below is not at liberty to raise any dam, or to make any other work, to prevent this running of the water.

The proprietor above can do nothing whereby the natural servitude due by the estate below may be rendered more burdensome. C. C. 656; Orleans Navigation Co. v. Mayor, 2 M. 233; Martin v. Jett, 12 La, 503.

The force of Article 656, as interpreted by this court, is not impaired, as the appellants seem to contend, by the succeeding Article, which relates simply to the use of the water running through one’s estate, but does not give the owner any right to swell its volume, by the artificial drainage of lakes into it, to the detriment of an inferior estate. “ He whoso estate borders on running water may use it as it runs, for the purpose of watering his estate, or for other purposes.-

He through whose estate water runs, whether it originates there or passes from lands above, may make use of it while it runs over his land; but he cannot stop nor give it another direction, and is bound to return it to its ordinary channel where it leaves his estate.” C. C. 657.

Although the beginning and the exit of this canal be upon premises owned by some of the defendants, and although it disgorges its waters into a natural coulée which also runs through their lands, yet, if it renders the natural servitude duo by the plaintiffs’ lands to defendants more burdensome, it is within the prohibiti on of Article 656.

And we find that it does carry waters upon the debtor estates which did not run naturally there; the industry of man lias been used to effect this result; the natural servitude due by the lower lands has been thus made more burdensome. It follows then, that the canal complained of was, in its inception, an invasion of the plaintiffs’ right.

But the defendants say that this is a servitude of aqueduct, which is a continuous and apparent servitude, (0. 0, 720, 723, 724;) that a continuous and apparent servitude may be acquired by a possession of ton years, if the parties be present, and twenty if absent, (0. 0. 761;) and that, having boon in the enjoyment of this servitude for more than ton years, they have acquired it by prescription.

The canal was cut by Désiré Dugas, then proprietor of the land across which it runs, in the year 1833 or 1834. In 1844, he sold this land to Judice, one of the present defendants. But, during the period of his ownership, the canal was not uninterrupted, and ho appears to have had but a precarious enjoyment of the servitude it created or augmented upon the plaintiffs’ lands. He testifies as follows : “ On one occasion Onesiphore Delahoüssaye, one of the plaintiffs, stopped it up ; it remained closed for a month or two, during which time Mr. Delahoüssaye was hauling wood for his sugar-house ; when I saw that he had finished hauling said wood, I reopened said canal as agreed on between me and Onesiphore Delahoussaye, who remarked at the time, that he would close up the canal again whenever it proved inconvenient to him, as witness had no right to divert the waters from their natural course.” Such was the origin and nature of Dugas’s enjoyment of the servitude which the defendants now claim by the prescription of ten years. As already stated, he sold the land with the canal upon it to the defendant, Judice, in 1844. It seems that the drain continued from this time without interruption until about seven years ago, to wit: in 1850 or 1851, when the plaintiff, Delahoüssaye, was about to institute legal proceedings for the suppression of the canal as a nuisance to him. He had employed counsel to that end. It seems that there was then a general meeting of the parties interested, to see what adjustment could be made, without going to law; all the defendants in this suit were present; after a discussion, they agreed with the plaintiff, Delahoussaye, in order to prevent a law suit, that they would immediately stop up the obnoxious canal, at three places then designated by Lézin LeBJanc and Valsain Bernard; posts were planted at the designated places ; the defendants, moreover, promised to pay part of the costs incurred by the plaintiff, Delahoüssaye, for attorney’s fees in relation to the matter, not to exceed $200.

In pursuance of this agreement, the work of stopping the canal was forthwith accomplished; the witness, Louis E. Dugas, testifies that “ he himself wont to see Onesiphore Delahoussaye, and enquired of him whether he accepted the work done for the stopping up of the said canal; he was sentthere by Alexander Judice with Vestule Broussard ; Mr. Onesiphore Delahoussaye accepted the work done, remarking that he would henceforth keep it up at his own expense. lie furthermore required that the defendants should go and stop up also all the ditches that linked the different ponds together, which defendants did on the same day.’ ’

It is true that this verbal compromise or agreement was afterwards disregarded by the defendants, who had the canal reopened—hence the present suit.

If it be conceded that the defendants have a right to add to the six or seven 3'cars’ possession of this servitude by Judice, previous to the stoppage, the prior precarious possession of Dugas, and thus make a ten years’ prescription at the date of the verbal compromise, (a point upou which we express no opinion,) still we think there has been a tacit remission of the servitude (assuming it to have been acquired), by which it was extinguished.

“ Servitudes are extinguished * * * * * by the renunciation of the servitude on the part of him to whom it is due, or by the express or tacit remission of his right.” O. 0. 779. “ The express release must be in writing.” 0. 0. 813. . “ The release of the servitude is tacit where the owner of the estate to which it is due, permits the owner of the estate charged with the servitude to build on it such works as presuppose the annihilation of the right, because they prevent the exercise of it; for example, if he should permit the field through which he has a right to pass to be enclosed by a wall.” 0. 0. 815.

In order that the tacit release of the servitude bo inferred from the permission which the owner of the estate to which it is due has given for the erection of works which prevent the exercise of it, it is necessary,

That the permission or consent for the erection of these works should be given expressly, verbally, or in writing. From the mere sufferance of works contrary to the servitude, the release cannot be presumed, unless it has continued for a time necessary to establish prescription.

That the works thus constructed be of a permanent and solid kind, such as an edifice or walls, and that they present an absolute obstacle to every kind of exercise of the servitude.” 0. 0. 816.

The appellants cannot successfully contend that this latter Article must bo restricted literally to the case where the debtor of the servitude makes an effective obstruction to its exercise, with the consent of the creditor; for the case of a tacit renunciation is much stronger where the creditor of the servitude, to stifle the complaints of the debtor and prevent a lawsuit, himself erects the work totally obstructing the servitude, at the request of and by agreement with the alleged debtor. And that is the case here.

The presumption of a tacit renunciation is even more conclusive than in the cases put, by way of example, in the Code.

The bill of exceptions to the admissibility of the evidence concerning this tacit renunciation is untenable.

The other bills it is unnecessary to notice, as this tacit remission of whatever right may have been acquired by prescription, settles the case in favor of the plaintiffs.

The judgment, is therefore, affirmed.


author: Spofford, J.

text:
    John Close v. Charles Close, Administrator.
    An executor under a will is bound to pay tlie costs and attorney’s foes for presenting tlie will for probate and defending it wlion attacked by the heirs, if there should be judgment against him annulling the will, on account of the agency which ho had in its dictation.
    PPBAL from the District Court of the Parish of St. Landry, Martel, J.

      B. F. Linton, for plaintiff.

      J. E. King, for defendant and appellant.
   Spofford, J.

The plaintiff acted for nearly two years as executor of the last will of Emilie Barré, deceased.

Upon a contestation with the heirs, the will was finally declared null by this court. Thereupon the defendant was appointed administrator.

The present suit was brought to recover of the succession certain moneys alleged to have been disbursed by the late executor for its benefit.

The payments proved to have been made amount to $163 94; and only one item of this sum, to wit, $250 lor counsel fees, seems to be disputed by the defendant. The receipt shows that these fees were paid “ for presenting for probate the will of Emilie Barré, veuve Gradenigo, and for defending it when attacked by the heirs, both in the District and Supreme Courts.” The will was annulled partly on account of the agency the present plaintiff, a legatee under it, had in its dictation, and ho was personally condemned to pay the costs of the litigation. Por the same reasons, he should pay the counsel fees, which wore for his own benefit, and not for the benefit of the heirs. The Judge erred in allowing this part of the demand.

To the rest of plaintiff’s claim for disbursements (which enured to tlie benefit of the estate) the defendant pleads in compensation and rcconvention two demands amounting to $1500, both of which were rejected below. He alleges in his answer that “ plaintiff received $500 from'the deceased, Mrs. Gradenigo, just previous to her death, on deposit, and to pay the expenses of settling her succession, which he has never given to respondent as administrator.” This averment the plaintiff in reconvention has failed to prove. The evidence is, that John Close said some money (how much is nowhere intimated) *• had been given him for special purposes.” The single witness who relates this conversation, says ho “ understood ” the money was to be applied to the deceased’s funeral expenses ; he also speaks of the costs of a suit in St. Martinsville, in the same connection. This is quite too vague to fasten a specific pecuniary liability upon the plaintiff. It was competent for the deceased to make a manual gift of money to him, or to intrust him with money for special purposes. To make him liable to the succession, the administrator should show what was given, for what purpose, and that it had been misapplied, Neither of these things arc shown. The District Judge correctly rejected this item of the reconvcntional demand.

The defendant also claims $1000 for the revenues of the property while in the hands of plaintiff, as executor. The proof is, that the slaves were divided out amongst the heirs shortly after the plaintiff became executor. But he had two at liis house, Maria and Marie, appraised and sold for less than $1000. One witness thinks the hire of those slaves .worth $200 per annum; another thinks such slaves worth $6 per month each. The plaintiff is not charged with any improper acts in Ms gestión as executor. The heirs should account cither to tho administrator, or in their partition inter se, for the hire of such slaves as they have received. Tho plaintiff is only responsible, under the evidence, for tho hire of such of the property as he used for his own benefit. We think $300 should be allowed for tho use of Maria and Marie, a claim which was also rejected by tho District Judge. There seems to have been an amicable demand, and an answer amounting to a denial that anything was due tho plaintiff; the point as to costs, made by the appellant, is therefore, untenable.

It is, for tho foregoing reasons, ordered and decreed, that the judgment of the District Court be avoided and reversed; and it is now ordered and decreed, that the plaintiff have judgment against the defendant, as administrator, for the sum of two hundred and thirteen dollars and ninety-four cents, with five per cent, interest thereon from the 30th October, 1856, until paid, the same being the balance due upon a consideration both of the principal and reconventional demands ; it is further ordered, that said sum be paid by defendant in the due course of his administration, and that tho costs of this suit in the lower court be paid by the defendant administrator, and the costs of appeal by the plaintiff and appellee.


author: Cole, J.

text:
    Joseph Hollier, Administrator, v. Widow Simon Gonor.
    Tlic natural tutrix cannot bo compelled to pay tlio price of property purchased at tlio sale of tho succession of her husband, unless it is shown that the succession is insolvent, or that tlio amount duo by hor is necessary to pay tho dobts of tho estate.
    APPEAL from the District Court of the Parish of St. Landry, Martel, J.

      B. F. Linton, for plaintiff and appellant.

      Lewis <6 Porter, for defendant.
   Cole, J.

This suit is instituted to recover of defendant tho price of property purchased by her at the succession salo of Julien C. Gonor.

The payment is resisted on the ground, that she is the natural tutrix of hor minor children, who are legal heirs of tho deceased Julien C. Gonor, and, as such, she has the legal right to receive and receipt for their portion of inheritance in said estate; and if she has purchased beyond the amount due to her minor children, that tho surplus cannot be demanded of her until their portions have boon definitely fixed by a partition. C. C. 1265. And, besides, that tho succession sale at which she bought said property was not made for the purpose of paying debts.

There was judgment for defendant, and plaintiff has appealed.

It is contended that the defendant cannot decline paying, because the estate of Julien C. Gonor is insolvent; and he refers us to a statement of facts in the suit of Harris against the present defendant.

This suit is not offered in evidence; and there is no admission of parties that it shall be consulted by the court in the decision of the present suit.

An examination of the tableau of the plaintiff, in the succession of Julien C. Gonor, has not satisfied us that the estate is insolvent, or that the amount due by the defendant is necessary for the payment of the debts of tho estate.

The privileged and mortgaged claims are $319 10 ; ordinary claims acknowledged are $293 29 ; claims requiring further proof, $275 03 ; a claim in a suit now pending, $450 00.

The total of the claims against the estate are $1437 42, of which only $612 39 are acknowledged claims, whilst the amount of the sale of the property of the succession is $1267.

The District Judge was, therefore, correct in sustaining the defence against the immediate payment of the price of the property bought by defendant at the probate sale.

He erred, however, in giving a final judgment, it ought to have been one of nonsuit.

It is, therefore, ordered, adjudged and decreed, that the judgment be so amended, that instead of a final judgment there shall be judgment as in case of nonsuit in favor of defendant against the plaintiff, and that any part of the judgment of the lower court adverse to this be avoided and reversed, and the judgment so amended be affirmed, and that defendant pay the costs of appeal.


text:
    Lewis R. Curtis v. Burrel S. Blacketer.
    Though the amount in dispute between the original parties to a suit commenced by attachment be under three hundred dollars, yet if a third party intervenes and claims the property attached, which exceeds that amount in value, such intervention vests the Supremo Court with jurisdiction, and the caso may be appealed.
    APPEAL from the District Court of the Parish of St. Mary, Voorhies, J.

      A. L. Tucker, for plaintiff.

      H. C. Wilson, for intervenor and appellant.
   Cole, J.

A motion has been made to dismiss this appeal, on the ground that the action is for less than three hundred dollars.

The record, however, shows that one Wilson intervened in the suit, which commenced by attachment, and claimed title to the property attached, being of the value of several thousand dollars. The contest, in this court is not the original judgment of plaintiff against defendant; but the ownership of property in value within our jurisdiction, the title to which is averred to be not in the judgment debtor, but in the intervenor.

This is a different question from that decided in Holland v. Duchamp, 12 A. 784. In that case the judgment debtor sought to obtain relief in this court from a judgment where the amount in contestation was dehors our jurisdiction, on the grounds, that his property seized to satisfy the judgment exceeded in value three hundred dollars, and that he had suffered damages over that amount, by the premature and illegal issuing of an order of seizure and sale for an amount less than $300 00. The title of the property seized was in the judgment debtor ; and his right to the same was not disputed, so that the only contestation was as to the correctness of a judgment not subject to our jurisdiction.

The motion to dismiss is overruled.

The decision of this suit on its merits depends upon the same principles as those decided in the case of Daujean & Brother v. B. S. Blacketer, just decided. For the reasons given therein.

It is ordered, adjudged and decreed, that the judgment be affirmed, with costs.


author: Merrick, C. J.

text:
    Lobit & Charpentier v. C. Harman et al.
    The husband is tho head and master of tho community, and tho dohts which ho contracts as a general rulo outer into tho community 5 tho casos in which the wife is bound are exceptional, and tho party seeking to hold hor responsible, must mako the proof which renders her liablo.
    Tho mere fact that tho goods furnished during tho existence of tho community aro for the family uso, does not, in gcnoral, rondor tho wife liable, although tho husband has no soparato estate, and no other property except tho revenues of tho wife’s property and his own industry, which fall into the community.
    Tlio wife is not responsible for supplies furnished to the husban’d for his own use, particularly when it is not shown that tho revenues of tho wife’s property were not ampio to pay tho ordinary expenses of the family.
    APPEAL from the District Court of the Parish of St. Landry, Dupré, J.

      H. L. Garland, for plaintiffs.

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

This suit is brought against a married woman not separated in property from her husband, for four hundred and fifteen dollars and forty-four cents, for bagging and rope, and the payment of a draft given for family supplies, groceries, &c. The account of Lobit & Charpentier on file, is made out against Andrus and wife, though the business appears to have been conducted in his name. The draft was for three hundred and fifty dollars, drawn by Andrus on the plaintiffs, in favor of Carroll & Keogh, at sight and paid. To make the wife responsible for this draft, plaintiff shows that it was given in part payment of an account, which they had against Andrus, for provisions, &c., including articles which may be presumed to have been for the personal use of Andrus. The account was made by Mrs. Andrus, Mr. Andrus, and some of the children of Mrs. Andrus.

It is further proven, that Andrus had the administration of his wife’s property and shipped her crops, contracted accounts, and that he had no property.

In the petition plaintiffs allege that “ said Andrus was allowed by his said wife to administer her property ; to dispose of the revenues thereof; to receive and receipt for all sums of money due her ; and, generally, to transact all her business, approving and ratifying all that he did in her name.” And, “ That by said conduct, she tacitly authorized the obligations entered into by her husband for her use, and left those with whom he contracted to believe that she would ratify and confirm whatever he would do for her use, and for her account, and that she would pay the contracts thus made with him.”.

The testimony in the record is meagre and insufficient to charge tho defendant with the items which were probably obtained for the personal use of tho husband.

The husband is the head and master of the community, and the debts which he contracts, as a general rule, enter into the community. 0. 0. 2372. The cases in which the wife is bound are exceptional, and the party seeking to hold her responsible, must make the proof which renders her liable.

The mere fact that the goods furnished during the existence of the community are for the family use, docs not, in general, render tho wife liable, although the husband has no separate estate and no other property except the revenues of tho wife’s property and his own industry, which fall into the community.

The husband, being the head of the family as well as the community, is obliged to provide for her a home, “ and to furnish her with whatever is required for the conveniences of life, (tout ce qui est nécessaire pour les besoins de la vie) in proportion to his means and condition.” C. C. 122, 2412; Durnford v. Gross and wife, 7 Mart. 489; Brandigee v. Kerr and wife, 7 N. S. 67; 9 An. 5; 10 Rob. 72; Sewell et al. v. Cox. See also case of Laplante v. Bnant, ante 566.

The first exception to this general rule is contained in Articles 2366 and 2409, where the wife administers her separate estate. The present case does not come within this exception. Nor have we been cited to any other exceptional provision of law which will render the wife responsible for these supplies delivered the husband for his own use, particularly as it is not shown, that the revenues of defendant’s plantation were not ample to pay the ordinary expenses of the family and plantation.

It is, therefore, ordered, adjudged and decreed, by the court, thattho judgment of the lower court be avoided and reversed as to said defendant, Catharine Harman ; and it is now ordered that said plaintiffs recover of her, the said Catherine Harman, the sum of two hundred and eighty-one dollars and sixty-nine cents, with five per cent, interest per annum, on $56 69, from the fourth day of September, 1854, and the like interest on the sum of $225, from the 4th day of December, 1854, until paid. And it is further ordered, that the plaintiffs pay the costs of the appeal, and the defendant pay the costs of the lower court.


author: Srofeord, J.

text:
    J. M. Johnston v. Cammack, Squires & West.
    ■Where a party sequesters a slave, on tlie ground that she has an hypothecary right upon such slave, and believes that the slave is about to be carried out of the State—Held: That the sequestration will bo set aside, if the affidavit does not set forth the amount of the mortgage, and affiant does not therein aver positively that she has grounds to suppose that the slave is about to bo carried out of the State
    APPEAL from the District Court of the Parish of St. Martin, Voorhies, J.

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

      G. A. Breaux, for defendant.
   Srofeord, J.

This is a sequestration sued out by the plaintiff against Cam-mack, Squires & West, as third possessors of the slave Lucinda, upon which the plaintiff claims to have a legal mortgage for the reimbursing of her paraphernal effects, alienated by her husband, George W. Johnston, against whom she has a suit still pending.

Cammack, Squires & West bought the slave from George W. Johnston, who is admitted to have been the owner and possessor; they also acquired possession from him before the sequestration.

The prayer of the petition in the present case is, that these defendants be cited to show cause on the trial of the plaintiff’s suit against her husband, why she should not exercise her hypothecary rights and lien over said slave Lucinda, and that the said slave be sequestered until the decision of that suit.

Upon exceptions to the sufficiency of the petition and the affidavit, the sequestration was dissolved, and the plaintiff has appealed.

She sues neither for the ownership nor possession of the slave. She merely alleges that she has an hypothecary right upon the slave, by reason of a legal mortgage she has upon the property of her husband.

The affidavit is, that the facts contained in her petition and therein stated of her knowledge, are true, and that those therein mentioned as derived from the knowledge of others, she believes to be true.

The petition states, that she has sued her husband for “ large sums of money belonging to her in her own separate right, as well as in the right of the children of her first husband for which she claims a legal mortgage both upon the property of her husband and of the community ; that the slave Lucinda is subject to such mortgage ; that she apprehends that the said slave will be removed out of the State, and from the jurisdiction of the court before she can exercise her legal mortgage, because the defendants, Cammaclc, Squires S West, are commission merchants, and are therefore likely to dispose of Lucinda, either in or out of the State of Louisiana, in which latter case her rights will be defeated.

The affidavit, even when elucidated by this petition, is too vague. No specific amount of mortgage debt is sworn to, so that defendants in the sequestration are deprived of the opportunity of releasing the slave by paying up such liquidated claim as there may be against her ; and the reasons for apprehension are given in the alternative, the plaintiff not avering, positively, that she has ground to suppose the slave will be removed out of the State, before she can have the benefit of her mortgage as required by O. P. 275, No. 6, which, it has been held, must be construed in connection with the amendment of 7th of April, 1826. See Sellick v. Kelly, 11 Rob. 145; Wilson v. Churchman, 4 An. 456.

Judgment affirmed.


text:
    Danjean & Brother v. R. S. Blacketer.
    Tho decision in tho case of Curtis v. Blaclceler, just decided, re-afflrmcd.
    When an answer to au intervention, in which title to property attached is set up, alleges simulation and fraud in such title, and asks that the sale to the intervenor bo annulled on these grounds, and no exception is taken to the irregularity of such proceedings, tho court will inquire into and examino the questions raised in such answer, and will not reverso a judgment setting aside the sale, on tho ground that it should have been attacked directly in a revocatory action, and not collaterally m tho attachment suit.
    When a party purchases property from an absconding debtor, it is presumed that ho must have known, that his vendor’s object in selling his property was to deprive his creditors of their recourse upon it.
    A sale made under such circumstances is fraudulent, and subsequent payments made by tho purchaser cannot cure the defects of his title.
    APPEAL from the District Court of tbe Parish of St. Mary, Voorhies, J.

      A. L. Tuclcer, for plaintiff.

      H. C. Wilson, for intervenor and appellant.
   Cole, J.

The motion to dismiss this appeal is overruled for the reasons given in the case of Curtis v. Blacketer, just decided.

On the 8th of October, 1856, Burel S. Blacheter, the defendant, purchased of one James M. Trousdale, a certain lot situated in the town of Franklin, parish of St. Mary, with all the buildings and improvements thereon; also, a largo number of horses, buggies, wagon, corn, hay, fodder, blacksmith shop, wheelwright and carriage trimming shop, together with a livery stable situated on the lot, for the price of $6,546 66$, of which amount $2000 was paid cash, and the balance was payable as follows: $1500 on the 1st of March, 1857,; $1523 33$ on the 1st of March, 1858, and $1523$ on the 1st of March, 1859 : for which last three mentioned amounts Blacketer delivered to his vendor his throe promissory notes bearing interest at the rate of eight per cent, per annum from date until paid.

The property conveyed was specially hypothecated to Trousdale, the vendor, to secure the payment of the notes, which were identified with the act of sale.

On the 2d of February, 1857, Blacketer sold the property to William A. Wilson, the intervenor in the present suit, and executed an act of conveyance for the same at the city of Natchez, Mississippi.

Blacketer having absconded, leaving many debts, several of his creditors sued him by attachment, and among others Banjean & Brother instituted the present suit against Blacketer, and attached the property.

Wilson intervened, averring that the property is not, and was not at the time it was attached, that of Blacketer, but was and still is his.

Plaintiffs, in their answer to the intervention, alleged, that the pretended sale by Blacketer to Wilson was an act of simulation and fraud, and was made to cover up the property of Blacketer, and to defraud his creditors of their legal rights against him. They deny there was any consideration for the sale, and aver that neither money nor anything else was paid by Wilson to Blacketer for the same. They demand of Wilson strict proof of the bona fides of the sale and of the consideration therefor. They pray to have the intervention dismissed and the protended sale annulled.

The judgment of the lower court decreed the sale to be simulated and fraudulent, dismissed the intervention, and ordered that the property attached be seized and sold to satisfy the plaintiffs’ judgment.

Wilson appealed.

It is established by the testimony of Kennedy, that Wilson, by his agent, the witness, Kenned;/, on the eighth of February, 1857, took possession of the property conveyed to him, as aforesaid, on which day he received from Wilson the deed of sale, with instructions to have it recorded, which he caused to bo done in the parish of St. Mary, on February 9th, 1857. That he ceased to be the agent of Blacketer, and commenced to be that of Wilson, from the time he received the letter from Wilson, enclosing the deed from Blacketer; that Wilson assumed the payment of the notes due Trousdale, the vendor of Blacketer, and paid then $800 in cash; and afterwards witness, as agent of Wilson, paid Troiisdale $2250 ; that these payments were made after the attachment had been levied.

Even conceding that an actual title had passed from Blacketer to Wilson, accompanied with possession, and that the plaintiffs could not test the validity of the title by attachment or seizure, so far as relates to the immovables sold ; but that a direct action must be brought to avoid the contract as fraudulent, yet, as the answer to the intervention, which set up title to the property, alleged simulation and fraud, and asked the sale to be annulled; as no exception was made to the regularity of the proceedings, and the parties to the suit have examined the questions of fraud and simulation ; we consider it our duty to inquire if the sale were fraudulent, and not to reverse the decision on the ground that the party ought to have instituted the revocatory action, and not to have proceeded to test the title by attachment.

The circumstances of this case show the sale to have been fraudulent.

Blacketer having committed a criminal offence, absconded from the parish of St. Mary, leaving no other property to meet his liabilities, but that conveyed to Wilson. Kennedy, the witness of the intervenor, testifies that Blacketer had forged the names of some persons to a note of $2300 : “ he left here, did not bid any person good bye, thinks he left in the night, knows that Blacketer, the last time he left here, was pretty largely indebted, and there are several suits against him.”

Kennedy testifies, that Blacketer left about the 19th or 20th March, 1857 ; it must, however, have been believed by some, he had departed permanently previous to this time; for the petition of attachment in this case was filed on the 17th February, 1857, accompanied with the affidavit of the truth of the allegations in the petition ; and one of these was that Blacketer had departed permanently from the State.

Kennedy also says : that Wilson came to Franklin for the first time in February, 1857, that Wilson returned there with Blacketer on the 17th or 18th of March. As the deed of sale was executed at Natchez on the 2d of February, 1857, the sale must have been made by Blacketer to Wilson before the latter had ever been at Franklin, where the property was situated.

So that he bought a lot, stable, horses, and a variety of other property, without ever having seen. them. Besides, he buys all the books ; also, the accounts, assets and credits belonging to the stable, which had accrued after the 7th October, 1856.

Such conduct is not in the usual course of business.

As Wilson came to Franklin in February, and the attachment was levied on the 17th of the same month, and a copy of the notice of attachment was left in the hands of Kennedy, who resided at the house of Blacketer, it does not seem reasonable to believe that Wilson was ignorant of the embarrassed condition of Blacketer; and therefore, even if he did buy the property to secure his own dobts, it was in fraud of the other creditors.

There is no proof that Wilson paid any consideration at the time of the sale. . Kennedy says, that Blacketer was largely indebted to Wilson ; but his knowledge is derived from the two parties to the sale. Their admissions cannot have much weight under the circumstances of this case. Kennedy also says, that all he knows about the consideration of the sale, is what both partios told him.

There is not, then, a particle of proof, that Blacketer was indebted to Wilson, or that any consideration was paid for the property, except that, after the attachment had been levied, Wilson, and Kennedy, pretending to be the agent of Wilson, made two payments on the mortgage notes due Trousdale.

It should also be noticed, that Kennedy had been in the employ of Blacketer, and was so at the time of the pretended sale.

He held the property, in the absence of Blacketer, as his agent; and after the letter of Wilson, he suddenly becomes the agent of the latter, and w'ould not let Blacketer ride a horse out of the stable.

Blacketer was an absconding debtor. Wilson must have known that his object in selling the property was to deprive his creditors of recourse upon it.

Tho act of sale being fraudulent, the subsequent payments by Wilson cannot cure the defects of his title.

They were made after the execution of the attachment, and appear to have been made' solely to bolster up his pretended title. Zacharie v. Buckman, 8 L. 308; 1 M. 240; 11 R. 190; 18 L. 388; C. C. 1963, 1964, 1973. The sale is clearly null.

Judgment affirmed, with costs of appeal.


text:
    Bank of Louisiana v. James Morgan et al.
    A drawer of a bill of exchange is entitled to notice of protest for non-payment, whore it appears that such bill was not given for his accomodation, hut that of tho acceptors, who had specially contracted that tho bill should bo paid at maturity.
    The fact that tho bill was payable by tho acceptors, at a particular place, did not dispense the holder, who wished to fix a liability upon the drawer, from tho duty of notifying him of the protest for nonpayment.
    APPEAL from the District Court of the Parish of St. Landry, Martel, J.

      J. E. King, for plaintiff.

      Swayze & Moore, for defendant and appellant.
   Spofford, J.

The defendant, Morgan, has appealed from a judgment rendered against him as drawer of a bill of exchange.

His defence is, that he had no notice of protest.

On the other side, it is contended that he was not entitled to notiee, and that, if he was, there is sufficient proof that due notice was given.

It appears (as is admitted by plaintiff’s counsel) from the answers to interrogatories on facts and articles, that the draft was not given for the accomodation of the drawer. It further appears from the same answers, that arrangements were made between the drawer and the drawees, by which the latter specially contracted with the former to pay his bill at maturity, under such circumstances as entitled him to a notice of protest for non-payment.

The fact that the bill was payable by the acceptors at a particular place, did not dispense the holder, who wished to fix a liability upon the drawer, from the duty of notifying him of the protest for non-payment.

The burden of proving due notice to the drawer was assumed by the plaintiff. The notary certifies that he sent the notice for the drawer, Morgan, who was also the first endorser, inclosed in the notice to the last endorser, E. Mcllhenny, cashier, to Opelousas, by mail, on the day of the protest. Mcllhenny had one day to notify the prior endorse^, Morgan. But the proof of this notice is wanting. No minute seems to have been kept at the office of Mr. Mcllhenny, cashier, to show that any notice was even received by him, or that any notice was forwarded to Morgan. After an interval of four years, Bebaillon, agent of Mcllhenny, can only testify that it was the invariable rule to forward such notices for other parties as were received at the office; he cannot say that he received the notice in the present case, but remembers to have sent notices to these same parties, but does not remember whether it was in this particular case. Such evidence is quite insufficient to establish a legal notice. Nor is it aided by the answers of appellant to the interrogatory propounded to him by the plaintiff upon this point. He said that “ he had no recollection of having been notified of the protest of said draft, he believes he was not notified.” This is not evasive, and, after a lapse of four years from the date of the circumstance inquired of, an answer could hardly be expected to be more positive.

It is unnecessary to notice the bill of exceptions. If we disregard that portion of one of defendant’s answers which was objected to, the case is not altered in any material respect.

It is, therefore, ordered, that the judgment, as against the defendant, James Morgan, be avoided and reversed ; and it is now ordered and decreed, that there be judgment in his favor as in case of nonsuit, with costs in both courts.


text:
    Julienne, f. w. c., v. Louise Touriac.
    Where a slave was sold, on the condition that the purchaser should emancipate her as soon as it could ce done—Held: That the Act of the Legislature of 1S57, prohibiting the emancipation of slaves in this State, renders the fulfilment of the condition impossible, while that Act remains in force.
    APPEAL from the District Court of the Parish of St. Landry, Martel, J.

      F. Thompson, for plaintiff.

      Dapré & Garland, for defendant; Swayze & Moore, for intervenor and appellant.
   Spofford, J.

The plaintiff, a woman of color, brought this suit on tlio 24th of April, 1857, for her freedom and that of her children. She avers, that on the 3d of July, 1837, her former mistress, Mrs. Cydalise Delachaise, widow of John Thompson, sold her to the defendant’s ancestor upon condition that she should bo emancipated according to law ; that defendant’s ancestors died without fulfilling that condition of her purchase ; that defendant wrongfully holds her in slavery ; and that no legal impediment exists to her being emancipated according to the intent of the parties to the sale aforesaid.

It is thus admitted that the plaintiff, born a slave, has not yet been legally emancipated.

The Act of March 6th, 1857, passed several weeks before the institution of this suit, is a bar to the action. “ Prom and after the passage of this Act, no slave shall he emancipated in this State.” Session Acts, p. 55.

It does not divest a vested right, for the condition upon which the defendant’s ancestor acquired title to the plaintiff was, “ que la dite dame veuve Don Louis Touriac donnera la liberté a la dite négritte Julienne, sitOt que faire se pourra.” If it should hereafter become possible, the plaintiff will have a remedy. At present she has none. The time for her to acquire freedom has not arrived. The judgment, we think, shonld be changed from a final judgment in favor of the defendant to one of nonsuit.

It is, therefore, ordered, that the judgment of the District Oourt be avoided and reversed ; and it is now ordered and decreed, that there be judgment against the plaintiff’s claim, as in a case of nonsuit, and that plaintiff pay the costs incurred in the District Oourt; those of this appeal to be paid by the defendant and appellant.


text:
    Bank of Louisiana v. John P. Hudson et als.
    A defendant who has allowed a judgment hy default to he mado final against him, is incompetent to testify upon tho trial of tho caso as to liis co-defendant, who has answered, ho being interested in tho question of costs.
    PPEAL from the District Court of the Parish of St. Landry, Martel, J.
    /. E. King, for plaintiff and appellant,

      Lewis & Porter, for defendant.
   Merrick, O. J.

This suit is brought against John P. Hudson, as drawer, and Thomas C. Anderson and Thomas M. Anderson (composing the late firm of Thomas C. Anderson & Co.,) as acceptors of a bill of exchange held by the plaintiff. John P. Hudson answered plaintiff’s petition. The other two defendants suffered judgment by default to be mado final against them.

After the judgment against the two Andersons had acquired the force of the thing adjudged, the case was brought on for trial as to Hudson, and Thomas C. Anderson was offered as a witness by the plaintiff to prove that Hudson had no funds in the hands of the drawers and acceptors at the maturity or before, to pay the same, and that he had no engagements or transactions with them to justify him in believing that the same would be paid by them at maturity. The testimony was objected to on the ground that the witness was a party to the suit and directly interested to testify in favor of plaintiff. The objection having been sustained, and the plaintiff having excepted, the present appeal is taken mainly to test the correctness of the ruling of the District Judge in this particular.

The District Judge does not appear to us to have erred in excluding the testimony of the witness. He was interested in the question of costs, and by giving the plaintiff another debtor in solido for the costs, he diminished the amount which he and his partner might ultimately be compelled to pay. The question might have been materially different had a separate suit been commenced against the defendant, Hudson, who, under the commercial law, would have had no recourse against his acceptors for the costs. See Buckner & Stanton v. Watt, 19 L. R. 215.

The draft sued on was payable at the house of W. S. Donnell, in New Orleans. This fact did not of itself release the holder from his obligation to make a demand at the proper place, and give notice of the dishonor to the drawer or indorser.

The answer is a general denial, and the burden of proof was upon the plaintiff to show circumstances rendering the drawer liable.

According to the view we take of this case, the judgment ought to have boon one of nonsuit, and not a final judgment.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be amended so as to read in favor of the defendant as in case of nonsuit, and that the same so amended be affirmed, the defendant, John F. Hudson, paying the costs of the appeal.


text:
    W. A. Wilson v. Lewis R. Curtis et als.
    Where the title to property, seized by the creditors of the vendor, was decreed to be fraudulent and simulated, in a suit to which the vendeo was a party—Held: That such judgment is res judicata, as to tho vendee’s claim to the title, but not as to his other claims upon tho property ; and if he have any privilege or right to claim any portion of the price, he should have an opportunity of showing it

      Held, also, that ho was not entitled to enjoin tho salo of the property,but his privileges should have been enforced upon the proceeds of the sale.
    It is not necessary that an affidavit for injunction made by an agent, should set forth the absence of the principal, it is sufficient to prove on tho trial that he was absent at the time the affidavit was made.
    APPEAL from the District Court of the Parish of St. Mary, Voorhies, J.

      H. Cl <& T. G. Wilson, for plaintiff and appellant.

      A. L. Tucker, for defendant.
   Cole, J.

B. S. Blaclceter having absconded, L. R. Curtis, one of his creditors, instituted a suit against him, and attached Ms property.

William A. Wilson, the plaintiff in this proceeding, intervened in that, alleging himself to be the owner of the property attached therein.

The lower court considering the sale of the said property from Blaclceter to Wilson to be simulated and fraudulent, rendered judgment against the intervenor, and in favor of Curtis.

The latter having caused a y?, fa. to issue, was arrested in its execution by an injunction, which is the present action.

The grounds of the injunction are as follows :

1.That the title of the property seized is in Wilson, the plaintiff in the injunction.

2.But if the court be of opinion that he is not the real owner, then he alleges that he has paid certain notes that were due Trousdale, the vendor of the property to Blaclceter, and secured by mortgage on the property.

That the mortgage and vendor’s privilege of Trousdale were superior to the claim of any other person, and by these payments he is subrogated to the liens and mortgages aforesaid.

3.That Blaclceter is indebted to him in the further sum of $12,680, for money advanced him and for mules furnished him for sale.

4.That he has erected a stable, in lieu of the old one consumed by fire, at the cost of one thousand dollars, for which he claims a privilege.

He prays to be decreed to have a valid title to the property, and, if this be not granted, then that his privilege be. recognized on tho property, and that it be seized and sold to satisfy his claims, and prays that defendants may be enjoined from proceeding further with the sale of the same.

The plea of res judicata was filed by defendants and sustained by the court.

It is valid against the claim of plaintiff to the title to the. property, but not against his other claims.

It is true, that in the former suit many of these claims were considered in determining the character of the sale of Blaclceter to him. They were plead in defence of his title, but although his title was declared to be fraudulent, this did not decide that he may not have paid a part of the price.

If he have any privilege, or a right to claim any portion of the price, he should ■have an opportunity of showing- it. C. C. 1911. He was not entitled to enjoin the sale of the property. His privilege ought to have been enforced on the proceeds of the sale. C. P. 300.

Defendants objected to the affidavit for the injunction, because it was made by the agent of plaintiff, and it did not state the latter was absent.

Sec. 16 of the Act of 1839, Session Acts, p. 168, does not require the absence of the principal to be declared in the affidavit of the agent.

It suffices to prove on the trial the absence of the principal when the agent made the affidavit.

It is, therefore, ordered, adjudged and decreed, that the judgment be amended, so that the rights, privileges or mortgages of every kind that plaintiff may have, if any such there be, are reserved to him to be enforced on the proceeds of the sale of the property, and that the judgment so amended be affirmed, and that the costs of the appeal be paid by the appellee.


text:
    Kimball & Singer v. Fuller & Millard.
    A promissory note not being payable until after the expiration oí the three days of grace, prescription only commencos to run from that date.
    APPEAL from the District Court of the Parish of S. Martin, Voorlues, J.

      J. G. Olivier, for plaintiffs.

      DeBlanc d Fuselier, for defendants and appellants.
   Cole, J.

This is an action upon a promissory note.

Plaintiffs, administrators of the estate of Jaspard M. Singer, aver that he was at his decease the holder and owner of the note ; that it was drawn by the defendants, who were then commercial partners,- and made payable to the order of one Hector Pritchard, who, subsequently and before maturity, transferred it by blank indorsement to said J. M. Singer. That said note is secured by mortgage ujion certain property, of which it was a part of the price.

Defendants aver, that the note has been extinguished by compensation and payment ; that there was a note bearing mortgage on said property in favor of Miller <& Murphy, vendors of a part of said property to Pritchard, for more than sufficient to compensate the note upon which this suit has been instituted.

That said Jaspard M. Singer had assumed to pay one-sixth of the said mortgage note, due Miller d Murphy. That Miller & Murphy were about to execute their mortgage against the said property in possession of defendants, and in order to protect their property, defendants were obliged to pay not only the share for which they were responsible, but also the share of said Jaspard M. Singer, for which he was individually liable.

This plea cannot be maintained, for the following reasons :

On the 26th June, 1816, articles of agreement were executed between Jaspard M. Singer and Fuller, one of the defendants, by which Singer “ sold his rights, credits and interest to all property owned by him in company with H. Pritchard, E. W. Fuller and N. P. Millard, namely : all his interest in the Chicot Pass sawmill, and all the lands and improvements thereon, which he bought of Hector Pritchard as described in an act of sale from said Pritchard to E. W. Fuller, J. M. Singer and N. P. Millard, wherein the said Pritchard sold one-sixth of the said land and improvements to the said J. M. Singer, which the said Singer now sells to E. W. Fuller, &c.”

A part of the consideration of this sale was, that said Fuller bound himself to pay “ all the said /. M. Singer’s liabilities, as a partner in the firm of Pritchard, Fuller & Co. as they stood on the 1st of January, 1846.”

That the debt of Singer for the one-sixth of the property was included in the liabilities mentioned in the preceding sale appears from'the articles of agreement between H. Pritchard, E. W. Fuller, J. M. Singer and N. P. Millard, on the 9th October, 1844.

They declare that they had formed a copartnership “ for the purpose of transacting all kinds of lawful business ; that of sawing, freighting and selling lumber in particular, keel and steamhoating’, &c., under the style and name of Pritchard, Fuller & Co.’’

And that on the abovementioned day the said Pritchard sold to the said Fuller one-third, and to Singer and Millard one-sixth each of the Lake Chicot sawmill ; also an equal proportion to each one of all the lands, tools, cattle, beasts, and everything- belonging to the aforesaid saw-mill when purchased by the said Pritchard of John B. Murphy and John F. Miller; also a right of preemption obtained by the said Pritchard of the United States of America, to a fraction of land bordering- on Lake Chicot Pass and Grand Lake, on which the said sawmill stands. Each agreeing to pay to the said Pritchard the pro rata share he has bought of said property, in amount equal to the sum paid by said Pritchard in his purchase of said Murphy & Miller, and all incidental expenses included, which sums are to be paid by causing an equal amount of said Pritchard's notes given to the said John B. Murphy and John F. Miller, on the purchase of said property to be cancelled,” &c.

It appears clear from this act that one of the liabilities of Singer, as a partner, was to pay one-sixth of the notes due by Pritchard to Murphy á Miller.

Singer and his copartners could not have conducted their business unless they remained in possession of the saw-mill; and they could not retain possession unless they paid its price and that of the other property connected with it.

It was as much one of Singer’s liabilities, as a partner, to pay the price of his share of the property, as it would have been to have complied with his obligation if he had agreed to furnish a certain amount of cash, as a part of the capital of the firm of which he was a member.

Singer evidently substituted Fuller in his place, as vendee of Pritchard, and as a partner in the firm, so far as relates to the partnership debts, and Fuller assumed all the responsibilities of Singer towards Pritchard, as his vendee, and also all the liabilities of Singer for the partnership debts.

It cannot be successfully contended, that Fuller assumed the personal liabilities of Singer for debts contracted by the partnership in the conduct of their business as a commercial firm, and not the liability of Singer for his proportion of the real estate possessed by the partnership ; because the subject-matter of the sale was the interest possessed by Singer in landed property ; and it is not reasonable to suppose that in selling it, he would leave a mortgage debt suspended over him, and provide for paying all his liabilities except this. The usual course of business is to oblige the vendee to assume the liabilities of the vendor for the price of the property, and to agree to pay all mortgages thereon.

Besides, the debt of Singer to Pritchard was one of his liabilities as a partner, which his obligations to his copartners necessitated him to pay, or to provide for its payment, by getting a third party to assume.

It is evident, therefore, when Fuller paid the mortgage debt, formerly due by Singer, he only paid what he owed, and, as the District Judge justly remarks, “ That whatever payments were made by Fuller inured to his own benefit and extinguished his liabilities, that he could not recover from the estate of Singer the amounts thus paid ; and, as a consequence, his assignment of these notes to Fuller and Millard, the defendants, could not confer greater rights to that firm.”

The plea of prescription of five years is plead by defendants.

The note sued upon being due in all the month of March was so on the 31st of March, 1849, and did not become payable till after the expiration of the three days of grace, to wit: on the third of April, and as the petition was filed on the 31st March, 1854, and the citation was served on the defendants on the 1st April, 1854, the plea of prescription cannot prevail. Wood v. Mullen, 3 R. p. 395; Wagner v. Kenner, 2 R. p. 121; DeArmas v. DeArmas, 3 A. 528.

Judgment affirmed, with costs.


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    Stille, Tutor, v. Beauchamp, Tutor.
    Where the appeal "bond recites the judgment, and sets forth the fact that the appellant has taken a suspensive appeal from such judgment, and a blank is left for the amount to be filled up, it will be presumed that the blank was left in order to ascertain by calculation the amount fixed by law for a suspensivo appeal, and the parties signing the bond will be bound for that amount.
    APPEAL from the District Court of the Parish of St. Landry, Martel, J.

      Swayze & Moore, for plaintiff.

      Lewis & Porter, for defendant and appellant.
   Merrick, C. J.

This suit is brought to recover of the defendants in solido, five hundred and ten dollars and legal interest upon the same, as sureties upon an appeal bond. The order of appeal was in the alternative, viz : that the appeal should be suspensive upon the defendant giving bond according to law, that it should be devolutive by giving bond in the sum of one hundred dollars. The bond was filled up except as to the amount which was left in blank. It recited the judgment, and that the appellant had taken a suspensive appeal to the Supreme Court from the same. And the condition was in the usual form, that Anderson should prosecute his appeal, &c.

When the transcript of appeal was made out, the Clerk erroneously copied the bond as having the blank filled with the sum of one hundred dollars, whereas it was not filled up with that sum or any other.

We are of the opinion, from the recital in the bond itself, that it was intended for a suspensive appeal, and that the blank was left in order to ascertain the amount thereof by a calculation which was necessary for that purpose. See case of Mason v. Williams, 12 An. 68.

The court did not err in setting aside the order for a trial by jury and placing the case on the court docket. Revised Statutes, p. 99, § 51.

Defendants further contend that, as Anderson was condemned to pay five-sixths of the hire of the slaves from the fourth clay of February, 1856, until he should deliver them up according to law, they cannot be held responsible for the hire after they are delivered up to the Sheriff.

We are of the opinion that this objection is well taken, and that the District Court fell into an error in calculating the hire to the day of sale, instead of the the day of delivery to the Sheriff. It is true, that after they were delivered to the Sheriff, in order to save expense, he left them upon the plantation of Anderson, but it was under an express agreement that he was not to be charged with their keeping, nor Anderson with their-hire, and that Anderson was to act for him as his agent. The Sheriff having taken possession of the slaves and having appointed Anderson his keeper under a special contract, there cannot be any just reason for charging Anderson’s sureties for a period longer than that of the delivery of the slaves to the Sheriff, in satisfaction of the decree. Courtney v. Hunt, 5 An. 177.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be amended so as to reduce the sum of sixteen hundred and twenty-eight dollars and twenty-five cents, allowed plaintiff thereby, to fifteen hundred and forty-five dollars and seventy-five cents, with the interest allowed by said decree, and that the judgment so amended be affirmed, the plaintiff paying the costs of the appeal.


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    Cydalise Thompson v. Aurore Touriac et als.
    The vendor of a slave is not entitled to rescission of the salo, on the ground that the vendee had not fulfilled the condition of emancipating the slave as soon as it could be done, if during the time that it was possible the emancipation could have been legally effected the vendee was not put in default, and by subsequent legislation the emancipation within the State became impossible.
    The vendee could not change the nature and origin of his possession, so as to acquire a title by prescription, and if it became afterwards legally possible to effect the emancipation the contract would be binding, and, therefore, the judgment of the court below should have been one of nonsuit.
    PPEAL from the District Court of the Parish of St. Landry, Martel, J.

      Swayze <& Moore, for plaintiff and appellant.

      Dupre & Garland, for defendants.
   Spofford, J.

The day after Julienne brought the suit for her freedom, which has just been decided, Mrs. Thompson instituted the present action against the defendants, heirs of Hyacinthe Boisdoré, widow of Don Louis Touriac, to dissolve the sale made by the former to the latter1 of the slave Julienne, on the 3d July, 1831. The dissolution of the sale is demanded on the ground, that the vendee has failed to comply with its principal condition, which was to emancipate said slave so soon as it should be practicable.

The sale was made for $600. But the condition aforesaid was annexed to it. The performance of the condition was not limited to any specific time. It was predicated also upon uncertain events, over which the parties had no control. Both knew that the State had an interest and a controlling voice in the question of manumission. Both knew that- restrictions were imposed upon the master’s power to change the status of his slave ; they also knew, or may be presumed to have known, that such restrictions fluctuate with the will of successive legislatures ; and that no one General Assembly could tie up the hands of its successors in respect to this subject, or abridge that sovereign power which dwells forever in. the body politic, and of which each successive legislature is but a transient depository and exponent.

In view of all these uncertainties they contracted; the vendee only undertook to enfranchise Julienne when it should be legally possible ; if it is not legally possible now, (and wo have just held that it is not,) then the defendants are not now violating the condition upon which they acquired Julienne; and if there is no breach of the condition, the resolutory action does not lie in favor of the vendor.

What is impossible this year may be possible the next; the power that makes may repeal or modify the law.

But it is urged that there was an interval of eight months between the time when Julienne attained the age of thirty years and the passage of the Act of March 6th, 1857, during which it was possible for the defendants to have emancipated her, and that, not having done so, the condition is broken.

But they were not put in default. The plaintiff neither demanded a specific performance nor á dissolution, when, as she now alleges, a specific performance was possible.

Nor is it proved that a specific performance was possible in those eight months. On the contrary, the probability is the other way. The Act of March 15th, 1855, “ Relative to slaves and free colored persons,” had then been passed. This Act provided an entirely novel mode of emancipating slaves. There were doubts both as to its true construction and its constitutionality, which were to be solved by cases then pending before the courts. It was not until December, 1856, that the whole Act was declared unconstitutional by a majority of this court. State v. Harrison, a slave, 10 An. 722. If, therefore, the defendants had instituted joroeeedings under that Act, they would have been fruitless. But that Act having been declared void, the Act of March 18th, 152, p. 214, must be considered as having been in force. This Act provided, that, thereafter, no slaves should be emancipated in this State, except upon express condition that when emancipated, they shall be sent out of the United States within twelve months after being emancipated; and that all slaves whose claims for emancipation had not then been perfected by the proper authorities, should only receive the same upon the foregoing condition, and upon failing to comply with the same, should be hired out by the owner or owners, or by an agent to be appointed by the Judge of the District, until the sum of one hundred and fifty dollars was made, when the act of emancipation might be perfected and the slave sent to Liberia ; provided, that in ease any slave or slaves, after having been so emancipated, should not be sent to Liberia within one year, or should return after being sent, said slave or slaves should forfeit their freedom.

Now, it does not appear that the slave Julienne was willing, or that her former mistress, Cydalise Thompson, desired that she and her children should be banished to Liberia ; and only upon that condition, has it ever been possible, even for a day, for the defendants to enfranchise them. From the inaction of the plaintiff and of Julienne herself, during the time when she might have been emancipated upon such a condition, we infer that it was not desired ; and we think the fair construction of the contract is that the parties to the sale of July 3d, 1837, only contemplated an emancipation in the State with leave to remain here, because Julienne might at that day have been set free by sending her to Liberia, and plaintiff does not contend that the vendee violated the contract before Julienne became thirty years of age, (0. 0. 185,) that is, until the 3d July, 1856.

The condition under which the defendants’ ancestor acquired and held Julienne is : “ qu’elle donnera la liberté á la dito négritte sitót que faire se pourra, et qu’elle fera tout ce qui sera en son pouvoir pour faire passer a la dite Julienne un acte de liberté en bonne et due forme en remplissant toutes les formalitiés préscrites par la loi a ce sujet.”

As we do not find that the defendants or their author have been in default with regard to this their undertaking', and as we cannot say that it never will be possible at a future day for them to give Julienne her liberty, the plaintiff has no ground at present for demanding a resolution of the sale.

The defendants cannot prescribe against their own title, or change the nature and origin of their possession. 0. 0. 3480, 3481. As intimated in the case of Julienne v. Touriac, if it should become legally possible hereafter for the defendants to emancipate her, they would be bound under their contract to do so, and the present judgment should be no bar.

We, therefore, think the judgment of the District Court should be changed from a final judgment in favor of defendants to one of nonsuit.

It is, therefore, ordered and decreed, that the judgment of the District Court be reversed ; and it is now ordered and decreed, that there be judgment in favor of defendant and against the plaintiff', as in a case of nonsuit, the plaintiff paying costs in the court below and the defendant those of this appeal.


author: Oole, J.

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    M. Miahle v. G. G. Fournet.
    "When a warrant is drawn by those who are defacto directors of the public school of a particular district, the treasurer, upon whom it is drawn, cannot set up as a defence that the directors were not elected, and had not qualified as directors.
    The 11th section of the Act of the Legislature, organizing free public schools, which requires that the warrant drawn for the salary of any teacher should be accompanied by a statement of the number of children taught, &c., is directory, and was not intended to be a necessary adjunct of the warrant, without which it could not be paid.
    The exaction of extra compensation by the teacher, from the parents of children, is a good ground of complaint to the directors, but does not constitute a defence to tho payment of the warrant drawn by them.
    APPEAL from the District Court of the Parish of St. Martin, Voorhies, J.

      C. H. & E. Mouton, for plaintiff and appellant.

      DeBlanc & Fuselier, for defendant.
   Oole, J.

This suit is instituted to recover of the defendant, in his capacity of Treasurer of the parish of St. Martin, six hundred and six dollars, the amount of a warrant executed in favor of plaintiff by the directors of the public school of the Sixth District of the parish of St. Martin, for his services as teacher therein, from the 3d of December, 1855, to the 2d of January, 1857.

The jury rendered a verdict for two hundred dollars, and from the judgment thereon, plaintiff has appealed.

The services of plaintiff were fully proved on the trial; there was no attempt to show, that the amount of the draft exceeded the legal compensation due plaintiff for the number of scholars taught by him.

The defence of the Treasurer to the action is :

1. “ Because those who subscribed and delivered it were never elected, and, ii elected, never qualified, as directors of the schools of the Sixth District.”

The drawers of the warrant were de facto directors, and recognized as such ; the treasurer would have been justifiable in paying the warrant, for it would have been a valid voucher for the payment of the money represented by it.

2. “ The warrant, when presented to him, was not in the form prescribed by law.”

He contends, that the 11th section of the Act to organize free public schools in the State of Louisiana,”(Sess. Acts, 1855, p. 424,) requires, “ that each warrant, drawn for the salary of any teacher, shall be accompanied by a statement of the directors, showing the number of schools in the district, the number of children taught, the number of children who do not attend school, and the monthly rate of compensation to the teacher.”

This section is directory; the statement of the directors is not intended to be the necessary adjunct of the warrant, without which it could not be paid. The ' object of the section is to enable the treasurer to make his report to the State Superintendent of Public Education.

The 9th section of said Act provides, “ that the money which may be received by the several Parish Treasurers, shall be held by them, and paid out to the various school districts upon the warrant of a majority of the school directors in each district.”

It is the 9th section which designates the person who is to pay the warrants for money due the teachers of the Public Schools; and orders the Parish Treasurers to pay them when drawn by a majority of the School Directors in each district; the statement detailed in the 11th section is not therein mentioned as necessary.

3. “ That plaintiff is not entitled to any part of his claim, because he did not keep a public, but a private school.”

It appears, plaintiff endeavored to get the extra compensation of one dollar per month, beyond the amount allowed by the law, for each scholar.

There is only one witness who testifies, plaintiff would not teach his children, unless upon payment of the additional compensation.

This would be a good ground of complaint to the directors ; but as the parties interested did not pursue their proper remedy for redress, it is too late now to object to the payment of the warrant on such a ground as this.

It is, therefore, ordered, adjudged and decreed, that the verdict of the jury and the judgment of the court be avoided and reversed; it is further ordered and decreed, that plaintiff recover of defendant six hundred and six dollars, with five per cent, interest thereon per annum, from the 3d of January, 1857, till paid, and the costs of both courts.


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    Frederick Lutz v. Andry Forbes.
    Tin prescription applicable to an action for damages growing out of a fraud practiced in tbe sale of a horse affected with a contagious and incurable disease, which spread among and caused the1 death of other horses of the purchaser, is that of ono year, under Articlo 3501 of the Civil Code.
    The principal is responsible in damages for the act of his agent in selling a horse which he knew to be affected with a contagious and incurable disease that would be likely to bo communicated to other stock belonging to the purchaser.
    APPEAL from the District Court of the Parish of St. Landry, Martel, J.

      J. H. & T. Overton, for plaintiff.

      Lewis and Porter, for defendant and appellant.
   Cole, J.

This action was instituted to recover of the defendant, a horse-drover from the State of Missouri, damages to the amount of one thousand dollars, which plaintiff alleges he suffered in the fraudulent sale of a horse to him, which, though warranted sound, was, at and prior to the time of the sale, diseased with the glanders.

The prescription of two months and also of one year, is plead by defendant. Article 2513 of the Code, amended by the statute of 1828, p. 160, $ 22, declares, that all suits for the redhibitory defects of animals, may be instituted within two months after the date of the sale thereof, any law to the contrary notwithstanding.

The limitation in the second clause of Article 2512 of the Code, does not apply to the redhibitory action for relative or absolute vices in animals.

This Article declares, “ that the redhibitory action must be instituted within a year at the farthest, commencing' from the date of the sale.

“ This limitation does not apply where the seller had knowledge of the vice, and neglected to declare it to the purchaser.”

Article 2512 applies the limitation to the redhibitory action which must be instituted within one year, and Article 2513, amended by the statute of 1828, fixes the prescription of the redhibition of animals within two months after the date of the sale thereof, any law to the contrary notwithstanding.

The prescription of two months does not apply to the case at bar, because the character stamped upon the action by the plaintiff in his pleadings determine® the prescription applicable to it. Wilson v. McGreal, 12 A. 357.

This appears to be a suit to recover of the defendant damages growing' out of an alleged fraud and imposition practiced towards the plaintiff by the agents or employees of the former in the sale of a horse to him, affected with a contagious and incurable disease, which spread among the stock of plaintiff and caused the death of seven or eight of his horses.

This action falls properly under that class of wrongs embraced in Articles 2294, 2295 and 2296 of the Code, under the head of Offences and Quasi-Offences, which declare that, “ every act whatever of man, that causes damage to another, obliges him, by whose fault it happened, to repair it.”

Every person is responsible for the damage he occasions, not merely by his act, but by his negligence, his imprudence, or his want of skill.”

“ We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.”

The prescription applicable to this action is one year ; Art. 3501 of the Code provides that “ The actions for injurious words, whether verbal or written, and that for damages caused by slaves or animals, or resulting from offences or quasioffences, are prescribed by one year.”

As this prescription has not been perfected, tho action lies.

The liability of defendant shall now be considered.

Three, out of tho four persons present at tho sale, were the agents or employees of the defendant.

The evidence of the three has been taken by commission.

There arc four circumstances which are urged by the defendant to free him from liability.

“ That a draft was given by plaintiff for tho horse on his merchant in the city, and was not paid, for a time, after its maturity, sufficient to have permitted the drawer to have countermanded its payment, on account of the diseased condition of the thing sold.”

No presumption can be deduced from this, of the soundness of the animal, the draft was payable at sight, and plaintiff was»never notified that it was not honored upon presentation. It was, then, natural to conclude, that the draft had boon paid, and plaintiff may have thought it useless to write to his merchant on the subject.

“ That tho horse was sold for $112 50, and was apparently worth at least two hundred dollars.”

This does not establish that the horse was sold as unsound.

Ferguson, who, as agent of defendant, was the vendor of the animal, testifies that, “ it was stated to plaintiff at the time of the sale, that the reason why the horse was sold for such a low price was, that he was wild, ungaited, unused to work, and was sold as an unbroken horse.”

" There was no peculiarity about the horse sold, that induced me to believe that he was diseased at the time he was sold, or previous thereto.”

That the three witnesses, agents of defendant, stopped at the gate of the house of plaintiff some weeks after the sale.” It is not, however, established, that plaintiff, who was at some distance, recognized them, and it is not then strange, he did not at that time inform them of the sickness of the horse.
“ That if the horse had been affected with the glanders, he would have been excluded from tbe drove of horses and mules, in coming from Missouri to Louisiana.”

This would he an argument to show the good faith of the agents of defendant, if there were not so much doubt encompassing their testimony from its contradictory character that we cannot believe it. *

One of defendant’s witnesses testifies: Mr. Ferguson told plaintiff, that the horse was getting over tho distemper, which caused him to run a little at tho nose; whilst Keller, a witness of plaintiff, says, ho was present at the sale, and no allusion was made to any sickness whatever. Ferguson contradicts the witness of defendant, and corroborates the testimony of Keller for he says the horse was not affected with any disease.

The reason given by Ferguson for selling the horse' so low, does not appear to be correct. Tho testimony of defendant’s witnesses shows, that the horse had bssn used in the plough in Missouri; that he was used as much as any other horse in the drove, in the journey from Missouri to Louisiana ; and it is shown by Keller, that a day or two subsequent to the sale, he saw the horse in harness, as he was being' driven by plaintiff in his own buggy, and ho was very gentle.

The testimony of defendant shows that the horse had been affected with the distemper, but had become well before he was started in the drove; that just before the sale, ho did run a little at the nose.

It is established, that the horse had the glanders, and died about five or six weeks after the purchase; and that plaintiff lost seven or eight horses of a disease having the same symptoms as those of the horse purchased of defendant.

We are of opinion that the agents of defendant who was absent at the sale, knew that the horse was diseased with the glanders. The principal is responsible for the acts of his agents under such circumstances.

His agents were aware at the time of the sale, that the glanders is a disease contagious and incurable; and that plaintiff would naturally allow.this horse to ■run with his other stock; and that thus, they would be exposed to catch the disease.

They wore, therefore, aware of the damage to which plaintiff would be exposed by their fraudulent act, and defendant ought- to be held responsible for the same.

The lower court gave a judgment in favor of plaintiff for one thousand dollars. There is no error in the same.

Judgment affirmed, with costs of appeal.