author: Eustis, C. J. Slidell, J.,

text:
    Heirs of Duverge v. Salter and Marcy.
    The acfc approved the 16fch of March, 1848, entitled “An aetto give jurisdiction to the District Courts of New Orleans over causes arising under the act of 3d of March, 1819 respecting landlords and tenants,” is unconstitutional; the title not being in conformity with the Articles 118, 119, of the State constitution.
    APPEAL by defendants from the Fourth District Court of New Orleans, Strawbridge, J.

      Benjamin and Micou, for appellees.

      Grymes and G. Schmidt, for appellants.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiffs, who are the owners of a lot of land on the opposite side of the river situate between the public road and the river, leased the same to the defendants. The object of the present suit is to obtain possession of said lot and certain adjoining premises of the plaintiffs, upon which the defendants are alleged to have intruded, having been sub-tenants of their (the plaintiffs’) lessee. The plaintiffs in their petition expressly confine their action to the remedy granted by law in favor of lessors to enable them to recover possession of leased premises at the expiration of the term for which they have been leased. They pray that in compliance with the acts of the 3d of March, 1819, and of the 16th March, 1848, the defendants be cited and ordered to answer their petition within three days ; and that after summary proceedings had they may have judgment decreeing to them the immediate delivery of the property leased by them to the defendants, and of that occupied by the latter as the-sub-tenants of the plaintiffs’ lessee. The petition concludes with a prayer for' general relief.

The petition was filed on the 17th of May, 1849, and was served on the 21st following.

On the 24th May the defendants filed an answer, premised by a peremptory exception to the plaintiffs’ action, that the court could not take and maintain cognizance of the same; and that the plaintiffs were not authorized to proceed under the act of the 16th March, 1848, entitled “ An act to give jurisdiction to the District Courts of New Orleans over causes arising under the act of March 3d, 183 9, respecting landlords and tenants,” by virtue of which the plaintiffs are proceeding in the present suit, because they the said defendants aver that said act is null, void and of no effect, being contrary to the provisions of the 118th article of the Constitution of the State.

Special matters of defence are also set up in the answer.

The cause was fixed for trial on the 28 th of May for the 4th of June ensuing. It was tried on that day and the 6th, and was determined on the 7th June.

The district judge decided this exception against the defendants and gave the-plaintiffs judgment on the merits. From this judgment the defendants have appealed. The constitutionality of the act, under which the summary proceedings have been conducted, has been argued fully at bar. It is in these words:

“An act to give jurisdiction to the District Courts of New Orleans over' causes arising under the act of 3d March, 1819, respecting landlords and tenants. Section 1. Be it enacted by the Senate and House of Representatives of the State of Louisiana, in genei'al assembly convened, that the 4th and 5th sections of the act entitled ‘ An act to amend the several acts heretofore passed to organize and regulate the practice of the city court of New Orleans, and for other purposes,’ approved March 10th, 1838, be and the same hereby are repealed.”
“Section 2. And be it further enacted, &c.: That whenever the monthly rent paid by a tenant, or the lease which he shall allege to hold, shall be found to exceed one hundred dollar's, then the said tenant, if sued under the act of 3d March, 1819, shall be cited before any of the district courts of New-Orleans ; provided that the defendant shall be summoned, in the manner provided for by said act, to answer within three days.”
“Section 3. That no recess or adjournment of the district courts shall affect the cases arising under said act of 3d March, 1819, that the said cases shall be tried summarily and by preference, at all times, after three days’ notice, given by either party or to his attorney on record; and that no appeal shall suspend-execution unless the defendant has filed a special defence, supported by his oath that all the facts contained in his answer are true- and correct, and entitle him to retain possession of the premises.”

The first section purports to repeal the 4th and 5th sections of an act of 1838 recited therein.

The fourth section of that act gave the presiding judge of the late City Court of New Orleans, exclusively of the justices of the peace and associate justices of said court, jurisdiction over suits of landlords for the possession of leased property, when the matter in dispute exceeded the sum of three hundred dollars',■ and' authorized- an- appeal to the Supreme Court in such cases.

The fifth section provides that no appeal should stay execution unless bond should be given to secure damages, &c. There are some other provisions which it is- not material to consider.

Both of these sections were virtually repealed by the abolition of the city-court under the judicial system of the present Constitution. That instrument vested the judicial power of the State in a Supreme Court, the District Courts and in- Justices of the Peace. It gave the district courts original jurisdiction in all civil cases when the amount in dispute exceeds fifty dollars. In criminal cases and- matters connected with successions their jurisdiction is unlimited. So that, without the act under consideration, it would seem the district courts of New Orleans would have jurisdiction over cases between landlord and tenant, as virtually as with it.

The title to the act giving jurisdiction, &e., merely recites the effect of the Constitution itself and so far as the statute carried out this effect it must be considered as expressing its object. But under our view of this statute the material parts of it are not matters of jurisdiction in any sense ; they are matters of procedure, deeply affecting the privileges of litigants. The exclusion of this class of cases arising between landlord and tenant from the ordinary rules which regulate' judicial proceedings, and subjecting them to the stringent and summary action prescribed by the act, may be necessary and politic, and we are far from drawing in question the wisdom or policy of the enactment. But we think it aught not to be left under a title which gives no direction or clue to its existence.

To give jurisdiction to a court is to confer the power of applying the laws judicially. By this act new provisions of law are enacted, the former laws are changed and'the rights of parties, standing towards each other in a particular relation, are materially affected, and those of one party are materially abridged.

On the authority of the cases of Walker v. Caldwell, et al., 4th Ann. 297, and of the State v. Hackett, just decided, in which the'views of this court on the articles IT8 and 1'1'9 of the Constitution are freely given, we are unable to maintain the' constitutionality of the act under consideration.

The article 118 provides that every law enacted by the Legislature shall embrace but one object and that shall be expressed in its tide. The object of the act in question was. to subject tenants to stringent, summary and unusual proceedings, and that object is not expressed in the title; nor is there any thing in the title which gires an intimation of the contents of the act. If the'validity of this act be maintained, the provisions of the Constitution which guarantee the forms' of our future legislation are to all intent's and purposes without force or effect'.

The judgment of the'district court is therefore reversed, and the plaintiffs’' petition dismissed, with cost in both courts.

Slidell, J.,

dissenting. In the consideration of the constitutional question-presented in this cause, two propositions may, I think, be safely assumed, namely: that no legislative act of a State' should be pronounced unconstitutional, unless that unconstitutionality be clear and' beyond all reasonable doubt; and' that where portions of a law conflict with the' constitution', but a part is valid, the latter will be sustained if it can be separated from that which is unconstitutional.

I may concede, therefore, for the purpose of the present enquiiy, that the first section of the act in question (or a portion of it) is- unconstitutional, because its provisions are not comprehended by any reasonable intendment of the ... . , , „ , title, which enunciates the object ot the act.

Striking this section, which is susceptible of separation, out of the act, and leaving only the second and third sections,- let us enquire whether it is clear and beyond reasonable doubt that they are not comprehended within the object expressed in the title. These two- sections provide that the District Courts of New Orleans shall have jurisdiction of causes arising under the act of 3d March, 181-9, respecting landlords and tenants- in cases over $100; 2d. That the proceedings shall be summary; 3d. That the courts shall be always open for their hearing; 4th. That there shall be no suspensive appeal from their decrees except upon affidavit of merits.

Now, the object of the actas expressed in the title, was “ to give jurisdiction to thé District Courts of New Orleans, over causes arising under the act of third March, 1819, respecting landlords and tenants’.” What is the meaning of the expression, “ to give jurisdiction ?” Is it beyond all reasonable doubt insufficient to embrace the provisions we have stated ?

In the case of The United States v. Aredondo, 6 Peters; 691, we are told that jurisdiction is “ the power to hear and determine a cause.” Let us then substitute these expressions in the title of the’ act, and it will read, An act to give the District Courts of New Orleans “ power to hear and determine causes arising under the act of 3d March, 1819, respecting landlords' and tenants.” Now, to confer a power to hear summarily, is to confer a power to hear; to confer a power to determine summarily, is to confer a power to determine. The only difference, therefore, in this respect between the title of the act and the body of it is, that the one announces an intention to confer a power, and the other in granting the power specifies the particular nature of the power so conferred. It seems to me, that thus far there is nothing unconstitutional, unless we interpret the intention of the framers of the Constitution to have been, that the title of an act should be an index, not merely of the subject, but of the details of that subject.

But again, let us take another definition of the term jurisdiction from a respectable author, and apply it in a liberal sense to another provision of this Statute, namely, that which regulates the subject of the execution and appeal. Mr. Bouvier defines jurisdiction as follows : “A power constitutionally conferred upon a judge or magistrate to take cognizance of and decide causes according to law, and to carry his sentence into execution.” Here, the power to carry into execution is properly associated with the power to hear and decide ; and this power is considered- as embraced within a grant of jurisdiction, as without it the grant would be inoperative and futile. Applying this definition, as we did that of Mr. Justice Baldwin, by substituting its terms for the word jurisdiction in the title of this act, and we arrive at a similar conclusion, to wit, that the title of the act announces the intention of the law-giver to confer on the District Courts of New Orleans power to take cognizance of causes between landlord and tenant, 'to decide them, and to cany their decisions into execution; that the provisions of the law specify the particular nature of the powers so conferred, and in doing so, fall constitutionally within the reasonable scope and intendment of the title.

I entertain the same view with regard to the provisions, that the courts should be always open for the hearing of such causes. It was gerinain to the object of the act (which was to grant power to hear and decide certain causes, and execute such decisions,) to say that those courts should not only hear such causes, but be at all times ready to hear them.

While I esteem it to be my inevitable duty to give force and effect to the article of the Constitution, it is also my duty to search out, as far as I can, its fair and reasonable intendment; to construe the action of the Legislature under it in a liberal sense, and not to frustrate that action, unless its repugnance to the Constitution be brought home to my mind beyond a reasonable doubt. While the salutary intention of the Constitution should be fairly and substantially carried out, it seems to me it should not be interpreted by the judiciary with a rigor so strict that it might defeat the power to legislate, which was granted by the same instrument to the proper department of the Government.

I therefore do not concur in the decree rendered in this case.


source: Caselaw Access Project

author: Eustis, C. J.

license: Public Domain

text:
    J. B. Dolliole, f. m. c. v. Charles White.
    The only issue which a slave who sues for his freedom can make, is that of “Liber vel non.” He has no right to contest the title by which the defendant asserts dominion over him.
    No one can emancipate a slave before he is thirty years of age. C. C. 185 ; Act 8th of March, 1807; Act 31st of Jauuary, 1837.
    APPEAL by plaintiff from the Fifth District Court of New Orleans, Buchanan, J.

      Gtrymes and Claiborn, for appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiff claims his freedom adversely to Charles White, from whose custody and control he seeks to be released. There was a judgment for the defendant in the district court, from which the plaintiff has appealed.

The plaintiff has no right to contest the title by which the defendant asserts dominion over him. The only issue that a slave can make who sues absolutely for his freedom is, on the fact of freedom, liber vel non. Berard v. Berard, 9 L. R. 158. Trudeau’s Executor v. Robinette, 4 M. R. 577. Ulzere v. Poeyfarré, 8 M. R. 158.

The only case which the evidence adduced can be considered as establishing is, that the plaintiff has a right to be emancipated and is a statu liber. He, at the time of instituting this suit, to wit, in September, 1848, is declared to be under twenty-one years of age. The defendant is alleged in the petition to hold his right over the plaintiff from a transfer or sale of his service for the term of five years from the 2d December, 1847, which expires long before the plaintiff can exercise his right of being emancipated, to wit, at his attaining the age of thirty. Code 185. Act of 8th March, 1807. Act of 31st January, 1827.

There is nothing before us which affects the right of the defendant to the service of the plaintiff for the term for which he has purchased him; nor is he the proper party with whom the plaintiff’s right to be emancipated must be litigated and determined.

The judgment of the district court is therefore affirmed, with costs.

      King, Justice, having resigned his seat on the Supreme Court bench, the court was composed of but three judges, until I. T. Preston took his seat as his successor.


text:
    P. and L. Collins v. L. A. Pellerin.
    A contract of sale in which there is a stipulation, that the vendor may redeem the property by returning the price within a certain time, where the vendor remains in possession of the property and the price is inadequate, will be regarded not as a sale with the equity of redemption, hut merely as a security for the return of the money paid to the vendee, unless sufficient evidence to the contrary be produced.
    The want of delivery of the thing sold by the vendor is a badge of simulation, and deprives a contract of the essential characteristics of redeemable sales.
    APPEAL by plaintiff from the Second District Court of New Orleans, Canon, J.

      Budd and Redmond, for appellant.

      C. B. Singleton, for appellee.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiffs allege themselves to be the owners of two hydraulic presses, having purchased them from the defendant on or about the 1st of May, 1846. They pray that the presses may be delivered to them or, in default thereof, that they have judgment for $2250, the value of. said presses, together with interest in the sum of $1400 from said 1st of May, 1846, and on the balance from judicial demand. The presses were sequestered and bonded by the defendant.

These presses were in the cotton press of the defendant, where they have remained. It appears that on the day stated, the defendant made a bill of sale for the presses for the nominal sum of $1500, on which two payments, amounting to $1400, were made at different times in the month of April following. But on the same day the plaintiffs gave the defendant a counter letter, by which it was stated that the bill of sale was given as a collateral security for the sum of $1500 loaned him for twelve months from date, which sum, if returned within said term, the bill of sale was to be void; otherwise to be absolute and the presses to belong to the plaintiffs thereafter. The presses were to remain in the defendant’s cotton press for said term of twelve months, and on the default of the defendant in returning the money the plaintiffs were to be the owners of them, and make such disposition of them as they thought proper.

Their petition presented a distinct demand for the presses or their, value, based on an allegation of ownership. And the bill of sale and the counter letter in evidence, the district judge considered did not establish the ownership of the presses in the plaintiffs, but merely a pledge for the payment of a debt. He dismissed the plaintiffs’ petition, as he considered they had no action for the presses or their value, and had mistaken their remedy. The plaintiffs have appealed.

It is clear to us that the contract between the parties was not a sale with power of redemption, but merely an hypothecary contract. The sum of fifteen hundred dollars, we think the evidence shows, was far less than the value of the objects, and the circumstance of the vendor’s remaining in possession, we consider as a distinctive sign of the real nature of the contract. The want of delivery of the thing sold by the vendor, is held by civilians to be a badge of simulation, and as depriving the contract of the essential characteristics of a sale. Redeemable sales unaccompanied by delivery of the thing sold, of which the considerations are inadequate, courts are bound to consider, without sufficient evidence to the contrary, as contracts for which the thing nominally sold stands as security and nothing else. Merlin Rep. verlo Contrat Pignoratif. Troplong de la Vente, § 695.

The contents of the counter letter, -we think, authorised the district judge in his conclusions on this poinf.

The plaintiffs have 'their remedy for the recovery of their debt, on which no decision was rendered by the district judge. Evidence was received i;elati,ng to a partnership between the plaintiffs and the defendant, which we do not -pass upon; because the action of the district court, in confining its decision to the issue first presented by the plaintiffs’ petition and defendant’s answer, was regular and correct; the defective pleading of the defendant to the contrary notwithstanding.

The judgment of the district court is therefore affirmed, with costs.


text:
    George W. Johnson v. Municipality No. One.
    The liability of municipal corporations for the acts of their agents is a general rule of law too well settled to be seriously questioned.
    APPEAL .by defendant from the Third District Court of New Orleans. Kennedy, J. ,
    The judgment of the district court was as follows : “ The liability of municipal corporations for the acts of their agent is, as ,a general rule, too well settled at -this day to be seriously questioned. Thayer v. City of Boston, 19 Pick, 510. McQaryv. City .of Lafayette, 12 Rob. 668. Chase v. Mayor et al., 9 L. R., 343, and 3 Hill, .531. It is unnecessary to notice the special limitations of the general rule; the .case before.the court falls within none of these. In the case in 9 L. R. just referred to, the decision turning upon the evidence, was in favor of the corporation, but the principle of liability was assumed by the court without question; the court, however, seem to lay down the rule that it is for the plaintiff to prove negligence or misconduct, on the part of the agents of the corporation. Does- the evidence in this case meet the requisition of that rule ? In my judgment it does. The law makes it the duty of the keeper of the police jails of the three municipalities to advertise in French and English in the 'State paper, and in the official gazette of the municipality in which said jail is situated, once a week during three consecutive months, such slave or slaves whose owners are unknown, or reside out of the State of Louisiana, as now or hereafter ma.y be detained in their respective jails,” &c. Act of 10th March, 1845, p. 77. This duty was not pei'foi'med by the keeper of the jail. It is also in proof that the plaintiff’s agent called at the jail and made enquiries for the negro, and was turned away with the reply, that “ he was not there;” the result would probably have been the .sume, when he called the second time, if it had not occurred to him to ask leave to enter and examine all the slaves confined in the jail. It is further in proof, that said agent found the negro in a very cold room, without a bed, couch, or chair, with nothing but a single blanket to lie upon, and so emaciated and feeble as then to be unable to get up on his knees without the assistance of another man. Finally, it is in proof, that he died a few days after he was removed to his master’s house, notwithstanding he received good nursing and medical aid. The defendants’ witness declare that he was indisposed when he entered the jail, on the 15th of August; they do not, however, state what his complaint was. It could have been nothing serious, for the doctor svas not called in to him, until the 29th October, two months and a half after his imprisonment; on the other hand, if it was of a serious nature, it was gross negligence not to have called in the doctor sooner. It was, in all probability, neither dysentery nor diarrhoea.
    “The physician of the jail tells us, that when he saw the boy for the first time, viz., on the 29th October, he was but slightly indisposed, and that on the second visit, he could perceive no progress in the disease. Now, taking into consideration the prison fare, and the prison treatment and accommodation, and the proneness of negroes in general to diarrhoea, according to Doctor Turpin’s statement, it seems fair to infer, that if the boy had entered the jail with disordered bowels, the disease would have made considerable progress, by the 29th of October, the day when the doctor first saw him and found him only slightly indisposed; since, from a state of slight indisposition on that day, we find him reduced, about twenty-one days after, to a state of incurability; for we must so presume, as he died, notwithstanding the care he received.
    “ My opinion on the whole, therefore, is, that the disease was contracted in tire prison ; that it was aggravated by the prison fare ; and that the circumstances in which the patient was found by the witness Bloom, far from favoring a cure, were neither fit nor decent for a human being of any color. I think a sufficiently strong case of omission of duty has been made out against the agents of the defendants, to throw on the latter the burthen to prove that the plaintiff has not been injured thereby; in other words, that the same results would have happened, if the negro had remained in his master’s possession; which certainly has not been attempted.
    “ The plaintiff estimates his slave at nine hundred dollars; his witnesses adopt a higher figure. There is no doubt that his value was seriously diminished by his having absconded, and the estimate, both of the plaintiff and his witnesses, appear to have been made without reference to that fact. The plaintiff has probably claimed all that his slave was worth, under any circumstances. On the other hand, the defendant’s witness states, that he has seen runaway negroes sold for three hundred dollars. There is no evidence that this negro was a runaway in the sense of the law. C. C. art. 2505.
    “ The nearest approach to his true value will probably be obtained by the difference between the plaintiff’s claim and the price of runaways attested by the defendant’s witness.
    “ It is ordered, adjudged, and decreed, that judgment be entered in favor of plaintiff, against Municipality No. One, for the sum of six hundred dollars, and costs of suit.

      J. Q. Bradford, for appellee. Preaux, for appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

For the reasons assigned by the judge of the district court, it is ordered that the judgment be affirmed, with costs.


text:
    George W. O’Blennis v. Henry Corri.
    As a general rule the vendor is incompetent on the ground of interest in a suit concerning the vendee's title; but that incompetency may be removed by aproper release. Wherever the release can cover the interest it is sufficient to remove the incompetency of the witness.
    Evidence of the acknowledgment of the mother is admissible to establish the filiation of the child; and the declarations of the mother, in relation to the maternity of the child, made at a time not suspicions, are admissible in evidence to prove the filiation of the child. C. C. 214.
    APPEAL by plaintiff from the Fifth District Court of New Orleans, Buchanan, J.

      Finney, for appellant.

      Goold, for appellee.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action for the recovery of two slaves. There was judgment in the district court for the defendant; and the plaintiff has appealed.

On the trial of the cause the plaintiff offered in evidence the depositions of a witness, Catherine Tressel, in support of his title to the slaves; to the admission of which the counsel for the defendant objected, “on the ground that the witness was the transferror of the claim sued on, and incompetent to testify as to the validity of said claim,” and that the release offered did not cure the objection as it might hereafter appear that there had been fraud on the part of said transferror or vendor. The objection was sustained, and the plaintiff took his bill of exceptions, on which the question arising has been argued before us.

The general rule, that those who are interested in the result of a suit are not competent to testify in it; and that a vendor is, on this principle, an incompetent witness for his vendee in an action concerning the title, must be conceded. At the same time it is equally well settled that the competency of a witness disqualified by reason of his interest may always be restored by a proper release. If the disqualifying interest be a liability to the party offering the witness, it may be released by such party. Wherever the release can cover the interest, it is sufficient to remove it and render the witness competent. Greenleaf on Evidence, § 386, 397, 426, 428.

The release is full and complete, and was given for the purpose of making the deponent a competent witness in the cause. The objection which the defendant’s counsel has made, that the admission of the testimony of vendors in support of the vendee’s title under a release, opens a door for fraud, is not without weight. But as the credibility of the witness is a matter left to be determined, and the exclusion of such testimony rests exclusively on the interest of the witness in the result of the suit, the probability is, that the rule as'established has been adopted under a correct and sound view of its policy.

The objection founded on the article 2526 of the code which the counsel has taken, we think has no relevency to the point raised. The objection that the release given by the plaintiff would not be binding in the event of fraud in the sale made by the witness, is equally applicable to all releases of this class, and therefore invalid.

We think, therefore, the district judge erred in not receiving the depositions of the witness, Catherine Tressel.

In relation to the other bill of exceptions taken by the counsel for the plaintiff, we only deem it material to state that, under the article 214 of the code, evidence of the acknowledgement of the mother is admissible to establish the filiation of the child and that the declarations of the mother in relation to the maternity of the child at a time not suspicious, are admissible in evidence to px-ove that fact.

The judgment of the distx-ict court is therefoi’e reversed, and the case remanded for further proceedings in accoi'dance with the opinion herein expressed; the defendant paying the costs of this appeal.


text:
    J. D. Fink Executor, v. W. H. Martin, et al.
    Where an executor has been dismissed from office and condemned to pay 20 per cent damages, under the act of 13th of March, 1837, upon certain funds which he had not deposited in Bank; and an executor subsequently appointed has, in a proceeding against him to account for his administration, recovered a judgment for a smaller amount than he had been condemned to pay the 20 per cent upon, the per cent is to be calculated on the amount found to be due by him in the last suit.
    Where the judgment of the court does not decide certain issues made in the pleadings, it will not support the plea of res judicata in relation to the matters embraced in those issues.
    APPEAL by plaintiff from the Second District Court of New Orleans, Canon, J.

      Halsey and Hoffman, for appellant.

      J. H. Lewis and Roselius, for appellee.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiff, who sues as dative executor of the late Sarah Baume, has instituted this suit against W. H. Marlin and Jesse McHenry, for the purpose of having a certain act of sale of property declared null and void, and subjecting the property therein described to execution under certain judgments obtained against him by the succession of Sarah Baume, on the ground that the said sale was simulated or made in fraud of creditors.

The judgment of the court below was in favor of the defendants, on the ground that the judgments against Martin had been paid and satisfied by the sale of property under previous executions. From this judgment the plaintiff has appealed.

The facts in the case appear to be these. The defendant, W. H. Martin, was, with others, the surety on the probate bond given by Thomas Powell, who was the dative executor of Sarah Baume. By a judgment of the late court of Probates of New Orleans Powell was dismissed from his trust of executor at the instance of certain creditors of the succession, and was condemned in solido with his sureties to pay for the use of the succession twenty per cent per annum for certain sums of money received by him belonging to said succession, but not deposited by him in bank according to law, from the days they were so received by him. The sums and the dates are set forth in the judgment, and it closes by the words “ until payment and costs of said petition and-proceedings thereon.”

This judgment was rendered under the act of March 13, 1837, requiring executors, syndics and other administrators to deposit the amounts collected by them in bank as soon as the funds shall come into their hands, under the penalty of twenty per cent interest per annum on the sums not so deposited.

A question has been raised on the meaning of the closing part of this judgment. The word payment is said to refer exclusively to the twenly per cent interest, so that the judgment would be satisfied by payment of the interest due at any given time. This construction we think would defeat the purpose of the statute itself; the object of which was to insure the deposit of the funds in order that they might be applied to the payment of the debts of the succession or syndicate. It would enable the defaulter to retain the principal on paying the interest due on the judgment, and drive the creditors to the necessity of obtaining another judgment against him. We think it obvious that the word payment necessarily refers to the sums specified in the judgment in relation to which a default was established; and that a payment of the whole or any of them stops the operation of the penalty of twenty per cent per annum, pro tanto.

This judgment was rendered on the 21st of September, 1842, and the amount on which the interest attached was $7807 87. But on the 9th March, 1843, the present plaintiff, who had succeeded Thomas Powell on his removal from the executoi'ship, brought his suit against Powell and his sureties on the probate bond and for an account, which resulted in a judgment against Powell and the' defendent, Martin, one of his sureties, for the penalty of the bond, but to be satisfied by the payment of $5056', with interest, which was the only amount due by Powell to the' succession at that time and sc determined by the latter judgment.

A portion of the debt therefore-for which the penalty of twenty per cent per annum had been adjudged was found to have been paid, or not to have been due on the settlement of his accounts. The penalty for not depositing the whole amount he remained bound to pay, until he satisfied the whole debt, or on the settlement of Powell’s accounts, it was found not to be due to the succession ; however on the 9th March, 1843, part of the amount only was due. The debt being thus reduced by a decree of the court of probates between the executor and Martin, as surety of Powell, it seems clear that the twenty per cent interest per annum ceased thereby to attach to the amount thus determined not to be due by Powell. Its continuance would be repugnant to- all notions of justice. The judgment was rendered under a statute, the construction of which repels any such extortion.

We therefore conclude, that after the date of this judgment, to wit, the 9th of March, 1843, the interest of twenty per cent is to be calculated, not on the amounts neglected to be deposited, but on the amount established on that day to be due the succession, to wit, the sum of $5056.

It is contended by the counsel for the plaintiff, that the interest of twenty per cent continues to run on the original sum for which Powell was held to be in default in not depositing, and that the amount cannot be reduced, because it was so adjudged in a certain suit instituted by Martin against the plaintiff by a final judgment rendered on the 29th November, 1848.

That was a suit in which Martin obtained an injunction against further proceedings on an execution issued on the first judgment. The petition set forth grounds for annulling the judgment, and also for its reduction in amount, and this very matter of the reduced amount of the second judgment was specifically stated as one of the grounds of complaint; and had the decree been made on the matters stated in the petition, the party might have been precluded by it and his case consequently beyond relief. But the fact is otherwise. There is no action-of the court upon the issues made up in the petition and answer. The latter' prays that the petition be dismissed, as well as that the injunction be dissolved, and Martin and his sureties be condemned in damages under the statute. But' the decree is confined simply to the giving of damages under the act of 1831,- and dissolving the injunction. It makes no disposition of the case as it stood and’ stands yet at issue on the record. It does not dismiss the petition, and there is' nothing in it which gives it the features of a final judgment, which closes forever between the parties their matters in dispute.

The presumption which the law establishes in favor of the res judicata is of too grave a character to be recognised as resulting from any litigation in which its essential characteristics are not evident and free from all doubt. The looser the practice in our courts becomes, the more imposing is the necessity of adhering to those established rules of jurisprudence, which alone can secure a safe and efficient administration of justice. This decree purports to have been rendered after hearing evidence and arguments of counsel, and it may have been the intention of the judge to have decided the case; but it is not so written, and the decree has not the force and effect of the thing adjudged as to any matters which it does not determine.

The rest of this case is composed of matters of detail and calculation as to the amounts made at different times on several executions, and the enquiry is as to the unsatisfied amount due the plaintiff on the second judgment. For the amount of rents said to have been neglected to be collected by the sheriff of property under seizure, as the seizures were valid and not set aside, we think the remedy of the defendant Martin, is confined to that officer, and that the plaintiff in execution is not liable for them.

The fact of the simulation of the act of sale mentioned in the petition does not appear to have been noticed in the argument of counsel for the defendants. We think the evidence fully authorises the liability of the property included in it to the defendant Martin’s debts. According to the calculations submitted to us, We find the sum of $903 11 to be still due the plaintiff.

It is therefore decreed, that the judgment of the district court be reversed; and it is further decreed, that the sheriff proceed to seize and sell in execution the property decribed in the plaintiff’s petition, to satisfy the balance due on the judgment of March, 1843, and that said balance be fixed atthesum of $903 11, bearing interest at five per cent from the 28th February, 1849 ; for which, together with the costs, the said plaintiff may issue execution and for no other sum. It is further ordered, that the defendants pay costs in both courts.


author: Slidell, J.

text:
    William Dean v. Daniel Clarke.
    The Supreme Court has not jurisdiction in an appeal from a judgment on a reconventiona! demand for twenty-five dollars, although the amount of the plaintiff's claim be over three hundred dollars.
    Where a notary has received money and notes deposited with him as the price of a sale by the purchaser, he cannot be compelled to return them unless the vendor be made a party to the suit.
    APPEAL by plaintiff from the District Court of the parish of Jefferson, 'Clarke, J.
    This suit was brought by the plaintiff to recover from the defendant, who was a notary, money and notes deposited with him as the price of a slave which the plaintiff had purchased at a sale made to effect a partition between certain heirs, upon the ground that he had in vain demanded a title from the notary, the heirs not having signed the act; and further, that the slave had since died of a redhibitory disease.
    The defendant excepted to the action upon the ground that he was the mere depositary and agent of the parties, and that the heirs of the estate were not made parties. He further claimed in reconvention twenty-five dollars as damages.
    The district judge sustained the exception, and gave judgment in favor of the defendant for the demand in reconvention.

      Michel and Burns, for appellant.
   The judgment of the court was pronounced by

Slidell, J.

The judgment for twenty-five dollars upon the reconventional demand, does not fall under our jurisdiction.

The reasons of the district judge for sustaining the exception are satisfactory.

It is therefore decreed, that the judgment of the district court sustaining the exception be affirmed; and that so far as concerns the judgment upon the re-conventional demand, the appeal be dismissed; the plaintiff paying the costs of the appeal.


author: Rost, J.

text:
    George W. Campbell v. George A. Botts.
    Where the seller of a slave made known to the buyer that the slave was an habitual runaway, before the sale, the buyer cannot maintain a redhibitory action for that vice, notwithstanding the act of sale contained the usual warranty against vices and defects. C. C. 2488.
    Even where the act of sale of a slave contains a general warranty, parol evidence is admissible to prove that the seller made known to the buyer certain vices before the sale.
    APPEAL by defendant from the Fifth District Court of New Orleans, Buchanan, J.

      B. B. Lee, for appellee.

      Ooold, for appellant.
   The judgment of the court was pronounced by

Rost, J.

This is a redhibitory action, instituted to rescind the sale of a slave sold by the defendant to the plaintiff, on the ground that before and at the time of the sale, he was an habitual runaway.

The defence is, that the plaintiff was informed by the defendant and by other persons, before and at the time of the sale, of the vice of which he complains, and that, by reason of that knowledge, he cannot maintain his action.

The district judge considered that the defendant made use of no concealment in relation to the vice complained of, and that it was perfectly understood between the parties at the time of the sale that the slave was an habitual runaway; but as, notwithstanding this mutual understanding, the usual warranty against vices and defects was inserted in the act of sale, he thought himself bound to give effect to that warranty to its full extent. He, therefore, gave judgment in favor of the plaintiff and adjudged him to pay the defendant the hire of the ■ slave during the time he had been in his actual possession. The defendant has appealed.

We are unable to concur in the opinion of our learned brother. Art. 2498 C. C. reads as follows: “Nor can the buyer institute the redhibitory action on account of the latent defects which the seller has declared to him before or at the time of the sale. Testimonial proof of this declaration may be received.”.

The only question under that express provision of law is, was the purchaser apprised of the vice before or at the time of the sale; and for the purpose of ascertaining that fact parol .evidence is admissible, notwithstanding the general warranty stipulated in the act of sale.

The district judge thought that the warranty stipulated must mean something. It would have existed by operation of law to the same extent, if no mention had been made of it; but it undoubtedly means something; it covered all the redhibitory vices and defects except those declared by the vendor.

A witness, in whose office the act of sale was written by the defendant in presence of the plaintiff, states, that the plaintiff asked the defendant to insert the clause of warranty. Some discussion ensued, and the defendant told the plaintiff that he was buying the slave, knowing all his faults. There was evidently, says the witness, an understanding between the buyer and seller that Dr. Campbell knew that the negro was a runaway. But at his particular request the clause of warranty was inserted in the bill of sale. The same fact results from other evidence.

Whatever may have been the motive of the plaintiff in insisting upon the clause of warranty, it is manifest that it was not intended by the parties as a special warranty ¡¡.gainst the vice which had been declared. Under no other but a special warranty against that vice can the defendant be held liable. Pothier, Contraído Yente, No. 219.

It is therefore ordered that the judgment in this case be reversed, and that there be judgment in favor of the defendant, with costs in both courts.


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    T. O. Meux v. P. B. Martin.
    Whei-e a party uses concealment or remains silent when it was Ms duty to speak, and thereby thinks he has acquired an advantage which he seeks to enforce, he is estopped by the line of conduct he has seen fit to pursue from succeeding in such action.

      Freeman v. Savage, 2 Ann. 269, affirmed.
    APPEAL by defendant from the Fifth District Court of New Orleans, Buchanan, J.

      W. C. Micou and Rawle, for appellee.

      Grima and Le Gardeur, for appellant.
   The judgment of the court was pronounced by

Rost, J.

The late Judge Martin had loaned to the plaintiff, on mortgage, a large sum of money. In 1844 he took out an order of seizure and sale, under which the property mortgaged was sold and purchased by him; the balance, exclusive of interest, remaining due to him after crediting the proceeds of the sale, was over $20,000.

Judge Martin died in 1846, and the defendant took possession of his succession as universal legatee and executor. The plaintiff presented no claim against the succession ; and on the 10th day of July, 1847, the defendant made, of his own free will, and probably to conform to his brother’s wishes, a donation to Mrs. Meux of the balance due him by her husband, and transferred to her all the rights, actions, privileges and remedies to which he was entitled as holder of the notes of the plaintiff, and as his creditor for the amounts due thereon. The plaintiff was a party to this act, authorized his wife to accept the donation, and acknowledged notice of the transfer of the notes to her. After the execution of the donation, he wrote to the defendant the following letter : “ 1846. The estate of the Hon. F. X. Martin debtor to Dr. Thotnas O. Meux, to professional services rendered him and family during the three past years, $1500. Dear Sir: The above is the amount of professional services rendered since our last settlement of my medical bills, which you will be pleased to settle at your earliest convenience. 10th November, 1847. Respectfully yours, Thomas O. Meux.”

The defendant refused to pay the amount of this claim, and this action is brought to recover it.

The defendant first excepted to the petition on the ground that the action being instituted on an account, the plaintiff was bound to specify the nature and value of his services, and the time when they were rendered ; the plaintiff then amended his petition and filed an account showing services rendered Judge Martin and his family during seven years ; for the whole of which he claimed the compensation stated in the petition.

In answer to both petitions, the defendant pleaded that the plaintiff could only recover for the services of the last three yeai's, and that his claim, if any he had, had been extinguished by compensation before the transfer of his notes to Mrs. Meux by the defendant.

The district judge was of opinion that by pleading compensation, the defendant had admitted the plaintiff’s claim to remuneration for services during the years 1844, 1845 and 1846, and that the plea of compensation was not tenable, because both claims were not equally liquidated and demandable. The account filed by the defendant extends over a period of seven yeai's. The district judge gave judgment in favor of the plaintiff for the last three years, at the rate of $1500 for the whole period. The defendant has appealed; and the plaintiff asks that the judgment be amended and rendered in his favor for the amount claimed.

In the case of Carter et al. v. Morse, 8 Martin Rep. 398, the defendant being sued as endorser of a promissory note, which came to the hands of the plaintiff after its protest, pleaded in compensation an account for professional services rendered to the parties who held the note at the time of its protest. The plaintiffs opposed the compensation, alleging that the claim of the defendant was unliquidated. But the court sustained the plea, on the ground that the original holders of the note were aware of the existence of the claim, and that it did not appear they had ever contested it. So in the present case, Judge Martin was aware of the existence of the plaintiff’s claim. It is not pretended that he ever contested it; and the plea of compensation filed by the defendant admits its correctness. Under the decision in Morse’s case, therefore, compensation took place of course, by the mere operation of law, even unknown to the parties before the donation to Mrs. Meux. The defendant only gave the rights, actions, privileges and remedies to which he was entitled as holder of the plaintiff’s notes, and that part of them which had been extinguished by compensation did not pass under the transfer. But there is another rule of law equally fatal to the plaintiff’s claim.

The uncommon liberality of the defendant towards the plaintiff and his wife, entitles 'his statements in this matter to great weight; his refusal to pay, shows conclusively that if the plaintiff had used no concealment, and presented his claim before the act of donation was passed, the amount of it would have been deducted from his notes. His participation in the act of donation must have satisfied the defendant that he had nothing to ask. By remaining silent, when it was his undoubted duty to speak, he induced the defendant to act as he did, and acquired to himself the advantage which he now seeks to enforce. He is estopped by the line of conducthe has seen fit to pursue, and would have lost his right of action if the claim had not been extinguished by compensation. Greenleaf Evid. No. 27 and notes. Freeman v. Savage et al., 2d Ann. 269.

It is therefore ordered that the judgment in this case be reversed; and that there be judgment in favor of the defendant, with costs in both courts.


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    Leopold Bach v. Paul Cornen et al.
    The testimony of one witness is sufficient to prove that a note which was secured by a mortgage upon the propcrtj of a married woman, which was given by A., was in fact given for the benefit of a firm composed of A. and her husband, and that by the mortgage she was security for her husband, and consequently not legally bound.
    APPEAL by plaintiff from the Fifth District Court of New Orleans. Buchanan, J.

      G. Schmidt, for appellant.

      Graihle, for appellee.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff sues upon a promissory note, subscribed to his order by the defendant, Paul Cornen, and alleges that Louis Joseph Coiron, under a special power of attorney from his wife, Elizabeth Beauregard, gave to him in her name a mortgage on certain slaves belonging to the said Elizabeth to secure payment thereof; he prays that Elizabeth Beauregard be cited; that he may have judgment upon the note; and that the slaves mortgaged be sold to satisfy said judgment.

The execution of the note and mortgage is not denied. But the defence of Mrs. Coiron is, that Cornen and her husband were commercial partners ; that the note sued upon was given by Cornen for a partnership debt, and that the name of her husband was left out of it, for the purpose of giving validity to the mortgage; that she could not be security for a debt of her husband, and has derived no benefit from the contract. This defence prevailed in the first instance, and the plaintiff appealed.

The witness Holtzman has testified to the existence of the partnership of Cornen and Coiron, and that he acted as general clerk for it during its continuance. He states that the note of Cornen was given for Rhenish wine, and some cash furnished by the plaintiff to Cornen, for the firm; that he was present when the note was given, and knows all that he has stated from the books of the firm.

It is contended, in behalf of the plaintiff, that this evidence is insufficient; that primd facie the debt is not that of the firm, and that if Coiron was sued upon it, he might defeat the action by showing that he refused to pledge the credit of the firm, and that the plaintiff had dealt exclusively upon the credit of Cornen ; that the defendant might easily have proved that the debt was due by the firm, by producing its books, which were accessible to her, and that as she failed to do so, the presumption is, that the evidence would have been unfavorable ; that in order to make out her defence, Mrs. Coiron must destroy the contract with Cornen, and prove a contract between the plaintiff and Cornen and Coiron ; and that as the amount involved in that contract, is over five hundred dollars, it cannot be proved by a single witness, without corroborating circumstances.

It is true that the debt is not primd facie the debt of the firm. But the testimony of Holtzman, showing that the consideration of the note was received by the firm, made it incumbent upon the plaintiff to show that Coiron was not originally responsible for it. The books of the firm could not have been adduced in evidence by Mrs. Coiron ; the plaintiff alone had the right to call for them, and to show their contents ; and, in the language of his counsel, having failed to do so, the presumption is, that the evidence would have been unfavorable.

We do not assent to the proposition, that the evidence adduced by Mrs. Coiron to prove that the consideration of the note was given to the firm, must, before it can avail her, be such as would enable the plaintiff to take advantage of it, were he to sue Coiron. If, in the attempt to evade the prohibition of the law, the plaintiff should have lost his recourse against Coiron, the fault is his own, and he must take the consequences. On the issue made, Iioltzman was competent to prove the fact he has sworn to. What evidence of it might be required in a suit between other parties, is a question not before us.

The judgment is therefore affirmed, with costs.


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    William A. Williams v. Robinson and Randolph.
    The act oí the 4th of May, 1847, establishing an office for the sale of the State lands at Winnsborough, did not auothrize at that office the sale of any lands which had not been previously located by the State.
    Where the English and French texts of a law differ, the English text must prevail.
    by plaintiff from the Fifth District Court of New Orleans. Buchanan, J.

      Stockton and Steele, for appellant.

      M. M. Robinson, for appelles.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff claims to be the owner of a half section of land, under a receipt of the receiver of the State land office established at Winnsborough by the act of the 4th of May, 1847, bearing date the 28th February, 1849.

The defendants set up as their title a purchase of the same land from the register of the State land office at New Orleans, under a warrant bearing date the 25th December, 1848.

The judgment was for the defendants in the district court, and the plaintiff appealed.

It is proved that the location of the land in controversy has not yet been approved by the secretary of the treasury, and may be rejected; so that the action of the court must be limited simply to an adjudication upon the equitable rights of the parties to the suit under their purchase. Morancy v. Ford, 2d Ann. 299.

It is necessary to state, that in the three years which followed the passage of the act of Congress of 1841, giving 500,000 acres of land to the State of Louisiana, the State authorities had located about one half of the lands given, when, in 1844, the Legislature passed an act authorizing the State land office at New Orleans to sell warrants for unlocated lands. Under this act the defendants purchased their warrant and located the land in controversy. But before this location was made, the Winnsborough State land office had been established; and the plaintiff contends that, after it went into operation the landoffice at New Orleans had no jurisdiction over the district of country for which it was created, and could not sell warrants to be located within that district, and that as the land in controversy is within the limits of the Winnsborough district, the title of the defendants is null and void.

In behalf of the defendants it is urged, that the office at Winnsborough was established exclusively for the sale of the lands which had been located by the State previous to the passage of the act of 1844; that the land office at New Orleans had exclusive power in relation to the unlocated lands, and that the sale of unlocated lands to the plaintiff at the Winnsborough land office is a nullity.

On referring to the statute, it appears that the English text restricts the power of the Winnsborough land office to the sale of the located lands belonging to the State; while the French text invests it with power to sell both located and unlocated lands. This is shown to have been an oversight at the time of the passage of the act. But if it had not been, the English text must govern; and under it unlocated lands could not be acquired at the Winnsborough land office.

It is therefore ordered that the judgment be reversed. It is further ordered that the defendants be adjudged to have acquired the rights of the- State to the land in controversy. It is further ordered that the costs of the district court be paid by the plaintiff; those of this appeal to be paid by the appelles.


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    Marsh and Ranlett, v. Ship Switzerland.
    Where sheet iron is stowed in such proximity to salt as to be rusted and injured thereby, the vessel is responsible for the damage.
    APPEAL by defendant from the Fourth District Court of New Orleans, Strawbriclge, J.

      L. Hunton and Price, for appellees.

      Goold, for appellants.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiffs brought their action for $619 60, against the master and owners of the ship Switzerland, for damages resulting from the condition in which a quantity of sheet iron shipped in Liverpool was delivered to them in New Orleans. They recovered judgment in the Court of the Fourth District of New Orleans, and the defendants have appealed.

The argument in this court is founded on the insufficiency of the testimony adduced by the plaintiff to support their action. The shipment of the iron, its condition on arrival and its value at the port of delivery, we think are clearly established. The bill of lading is dated Liverpool the 23d December, 1848, and the survey on the iron in the plaintiffs’ store was held on the 24th of February following. The damage was reported to be caused by salt water and rust, and the ship had 360 tons of salt on board. The salt and the sheet iron were separated by temporary bulk heads, (which were not water tight,) and were not more than a foot apart. We have thus an adequate cause for the injury to the iron. The identity of the iron examined with that shipped is sufficiently proved by the quantity and the marks. The assessment of the damages according to the weight and value is correct.

The judgment is therefore affirmed, with costs.


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    James Robb v. William F. Wagner.
    No sheriff or United States marshal has the right, on an execution in favor of a third person, of taking away property on which the landlord has a privilege for rent, and selling the same, pending an injunction taken out by the landlord, without paying the rent for which the privilege exists.

      Where property on which a landlord has a privilege for rent, has been seized on execution, at the suit of a third person, the landlord has two remedies, either by way of third opposition, or by injunction.
    When the United States marshal has seized property, upon which a landlord has' a privilege’ for rent, in a suit by a third person, and the United States Court has no jurisdiction of a third opposition of the case, on account of the citizenship of the parties, the landlord may proceed against the marshal in the State courts.
    APPEAL by defendant from the Third District Court of New Orleans. Kennedy; J.
    In this case the judge of the district court gave the following judgment:
    “ The plaintiff has proved that he was the lessor of property occupied by Woodall, and that the rent claimed was due. He had, therefore, a lien and right of detention upon the property on the premises,' for the security of his rent. That lien was his property, and as valuable to him as if he were owner of the property itself; and no sheriff or marshal, under execution against any third person, had any right to take away the property, before paying the landlord.
    “ It was also proved that the injunction was served before the sale, consequently, the defendant acted in opposition to the order of the court, and made himself directly liable to the plaintiff. The United States District Court was without jurisdiction of the plaintiff’s claim, by reason both of the amount, and of the citizenship of the parties. In cases before, the State courts, the party complaining has his choice of an opposition or a separate suit; but in this case the plaintiff would be without remedy, unless the State courts entertained his demand. See Daner v. Vail, 7 Martin, 436 ; Bauduc v. Nicholson, 2 L. R. 202; 1st Kent’s Corns. 410, edition 1844 ; Slocum v. Mayberry, 2d Wheaton, 12; Bruen v. Ogden, 6 Halsted, 370.
    “ It is therefore ordered, adjudged and decreed, that the plaintiff recover of the defendant, Wm. F. Wagner, the sum of four hundred and fifty dollars, with interest at the rate of five per cent per annum, from the 10th of July, 1848, until paid, and the costs of suit.”

      Benjamin and Micou, for appellee. T. A. Clarice, for appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

For the reasons given by the judge of the district court, judgment affirmed, with costs.


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    Mallard and Armistead v. The City of Lafayette.
    Proceedings by the city of Lafayette to expropriate property for public use, under the act of 1st of June, 1846, may be discontinued at any time before they are finally acted upon by the court; and the discontinuance of such proceedings, gives no cause of action te the owners of the property, the expropriation of which was contemplated.
    APPEAL by plaintiffs from the District Court of Jefferson, Clarke, J.

      Bonford, for appellants.

      Brewer, for appellee.
   The judgment of the court was pronounced by

Eustis, C. J.

On the 16th of Februaiy, 1848, the mayor and council of Lafayette passed a resolution, by which public notice was to be given of the intention of the council to cause application to be made to the district court, on behalf of the corporation of the city of Lafayette, for the appointment of commissioners to value and appraise a certain square of ground, in order to appropriate the same as a public place, &c.

After due publication of this notice, application was accordingly made to the court on the 31st of March ensuing. Commissioners were appointed, who returned their tableau and report on the 4th of May following, and on the 15th of May the proceedings were discontinued. The plaintiffs are the owners of the square of ground, and have brought this suit against the defendants to recover the sum of seven thousand dollars, the amount of damages which they allege they have sustained, in consequence of the alleged acts of the defendants in the premises. The district court gave judgment for the defendants, and the plaintiff’s have appealed.

The alleged ground of this action appears to be,- that from the commencement of the proceedings to their discontinuance, the plaintiff's were deprived of the right of disposing of their property, and that they might have disposed of the same to great advantage, which they were unable to do, by reason of said proceedings; that in the interval between the commencement and termination of the suit, property of this description fell in value, which depression continued up to the time of the institution of the present suit.

The proceedings for the expropriation of the plaintiff’s square'were conducted under an act of 1846. Acts of 1846, p. 138, No. 154. The right of the defendants to discontinue them, cannot be questioned, until the report of the commissioners is finally acted upon by the court; the proceedings may be discontinued, as iu any ordinary suit. Indeed, it is the report which pariicularly discloses the extent of the injury to bo dono by the expropriation, and of the benefit which other property may derive from it, and furnishes a test by which its expediency is to be determined. The Matter of Roffignac street, 4th Rob. 358. The Matter of Canal street, 11th Wendell, 155. The Matter of Anthony street, 20th Wendell, 618.

The defendants had an evident and proper motive for discontinuing the proceedings, which commends itself by its wise and prudent economy. The report of the commissioners subjected the corporation of Lafayette to the payment of $6,650. At this very time there were $20,000 of the city bonds in sufferance, and not sufficient funds in the treasury to meet the current expenses.

The district judge was of opinion that the defendants, in instituting these proceedings and in discontinuing them, had exercised a legal right, and that the case was one of damnum aboque injurid. We are under the impression, from the evidence, that it was neither one nor the other.

The judgment of the district court is therefore affirmed, with costs.


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    Frazier and Adams, Receiver, v. H. W. Hills.
    The impressio'n liaá generally been, that the maxim of the French law Le moré saisit le vif is a rule of our jurisprudence, and tliafc the seizin of executors or administrators was a fiction of law which did not prevent that of the heir. G. G. 435, 936, 940.
    Even where the heir originally accepted the succession with benefit of inventory, if she afterwards assumed the quality of heir in an unqualified maimer, sho will be considered as seized as heir ah initio, and entitled to the advantages and disadvantages incident upon it. C. C. 981, 982, 988.

      APPEAL by plaintiffs from the Third District Court of New Orleans. Kennedy, J.
    In this case Susan W. Hills, the wife of the defendant, filed a third opposition, claiming the proceeds of his property sold under execution by virtue of her mortgage, for her paraphernal property alienated by him.

      T. A. Clarke, for appellants. H. H. Strawbridge, for third opponent and appellee.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, by virtue of an execution against the defendant, H. W. Hill, caused to be seized and sold certain properties situated in the Parish of Jefferson.

The third opponent claims the proceeds oí the sale, amounting to $2100, under her legal mortgage, for the reimbursement of paraphernal properly alleged to have been alienated by the defendant, her husband, and for which she has obtained a judgment of separation against him, fixing the amount of her claim at $44,450.

The plaintiffs have conti’overted that judgment, on the ground that it had been obtained through collusion and fraud, and have put the opponent upon the strict proof of her claim. The opposition was sustained in the first instance, and the proceeds of the sale decreed to the opponent; the plaintiffs have appealed. Many questions have been raised in the argument, which it is not necessary to notice. The evidence satisfied the district judge that the opponent had property of her own before the death of her father; and that she had received a large amount of it from his succession; that most of that property has been used by the husband in his own affairs; and that after deducting from the amount for which he was liable, the partial payments made on the judgment against him, a balance, more than sufficient to absorb the sum claimed, remained unsatisfied.

A careful perusal of the record leaves no doubt on our minds of the correctness of these conclusions; but the plaintiff’s counsel contends that the opponent having accepted the succession of her father under the benefit of an inventory, had not the seizin of it, and could become entitled to it in her capacity of heir only after its" final settlement and liquidation; he farther contends that under that state of facts the money or property received by Hill was not his wife’s, but belongs to the succession of her father.

The impression has generally been that the maxim of the French law, Le mort saisit le vif, is a rule of our jurisprudence, since the adoption of the Louisiana Code, and that the seizin of executors or adminstrators was a fiction of law which did not prevent that of the heir. C. C. arts. 934, 935, 936, 940. But it is not necessary to decide those questions in this case; the opponent does not present herself before us as a beneficiary heir. It is true that the court of probates originally ordered her to be put in possession of the succession under benefit of inventoiy. This anomalous proceeding is not explained; but, in 1839, after the opponent became of age, she sold a tract of land inherited from her father, and assumed the quality of heir in an unqualified manner in the act of sale. L. C. 982.

In her suit for á separation of property, she claimed from her husband, and recovered, the price of the land. The district judge was of opinion that these acts and declarations amounted to an unconditional acceptance of the succession; that this acceptance related back to the openning of the succession for all purposes whatever, and that the opponent'having exposed herself to all the disadvantages of unconditional heirship, ah initio, was entitled to the advantages incident upon it. C. C. arts. 981, 982, 988; Le Cesne v. Cottin, 2 N. S. 475; O’Donald v. Lobdell, 2 L. R. 303. We concur in this view of the law; without determining that she would not have been seized with the succession if she had accepted under benefit of inventory, we hold that she was seized as heir by virtue of her unconditional acceptance.

It is therefore ordered that the judgment in this case be affirmed with costs.


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    Hezekiah Pratt v. James Erwin.
    Where there is no citation of appeal the appeal must be dismissed.
    APPEAL by plaintiff from the Fifth District Court of New Orleans, Buchanan, J.

      R. M. Carter, for appellant.

      R. Mott, for appellee.
   The judgment of the court was pronounced by

Slidell, J.

The judgment was rendered and signed in May, 1848. In that month an appeal was ordered on motion of the plaintiff, returnable on the fourth Monday of June, 1848, on giving bond, &c. No bond was given. In February, 1849, Pratt’s death was suggested, and Bach, as curator of his succession, became a party to the suit, and moved for an appeal, which was ordered. No citation issued, nor does it appear that the appellant requested the district clerk to issue one. Upon this ground the appellee moves a dismissal.

We are unable to distinguish this case from that of Cuddy, Jones & Co. v. Belleville Iron Works Co., recently decided.

The appeal is therefore dismissed at the cost of the appellant.


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    Eugene McCarthy v. John L. Lewis, Sheriff.
    Where the sheriff without any legal order of commitment imprisons a slave, and the death of the slave ensues in consequence of the imprisonment, the sheriff is liable for the value of the slave. But where the death is not attributable to the imprisonment, the sheriff is not liable for the slave. He may, however, be held accountable for the value of the slave’s services during the detention.
    APPEAL by plaintiff from the Fourth District Court of Now Orleans, Strawbridge, J.
    The judge of the district court gave the following judgment for the defendant: “ The plaintiff claims the value of a slave who was received in the parish prison, and after a detention of ten days without any commitment was taken ill, and shortly after being delivered to her owner died of the malady which attacked her in prison. Two physicians, examined on the opposite side, differ as to the character of the malady, and I feel incompetent to decide between them; but it is proved that the attack took place on the night of the 17th of September, and she was delivered to her owner on the morning of the 19th, and that during her illness in the prison she was well attended, and that her treatment in common with the other prisoners had during her confinement been good. She had been received into the prison without a commitment, and evidently under a mistake of the police officers. The responsibility of defendant is claimed under art. 2294, C. C., often quoted: “every act of man which occasions damage to another, obliges him by whoso fault it happened to repair it.”
    Did this damage arise from the receipt and detention of the slave ? AVould the result have been different had she been received under a commitment, or would have been different had she been committed to the police jail, where it was proper she should have been sent? This is more than the proof enables me to say. If the slave had been received under a formal commitment, but lost her life in consequence of neglect or ill treatment, the regularity of the commitment would clearly have been no excuse for the defendant. If illegally held nd detained by the sheriff, her wages and expenses as a consequence would be clearly recoverable as a direct consequence of the illegal act.
    If in time of cholera or yellow fever a prisoner improperly committed should die of these diseases, would that be the consequence of the detention in prison ? If these diseases prevailed in the prison to a greater degree than elsewhere, perhaps this might be inferred; but if a prisoner died of consumption or apoplexy, it would be difficult to show that,under a detention of ten days, under no extraordinary treatment, the consequences were attributable or consequential on an unlawful commitment. It is therefore ordered that judgment be entered for defondant with costs.”

      C. Dufour, for appellant. J. R. Grymes, for appellee.
   The judgment of the court was pronounced by

Slidell, J.

The reasons given by the district judge for refusing to hold the defendant liable for the value of the slave are satisfactory.

As to the question of wages it may be that the defendant became answerable for them; but we deem it unnecessary to express an opinion on this point. For if we thought they ought to have been allowed in the court below, the amount would be so small, say not more at the utmost than seven or eight dollars, that according to our uniform practice we would decline reversing the judgment on that ground.

Judgment .affirmed, with costs.


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    R. M. Ellis, Syndic, v. Sarah E. Rush.
    Where a married tornan shows that she had the means under hpr own control to purchaso a certain property, and the property was purchased in her name, the act of sale stating it to have been so purchased by funds inherited by her fromher father, it is not necessary that she should prove the identity of the money paid for the property, in order to prevent the creditors of her husband from subjecting it to the payment of his debts.
    by plaintiff from the District Court of Jefferson, Clarke, J.

      Bonford, for appellant.

      Rawle and Jourdan, for appellee.
   The judgment of the court was pronounced by

Rost, J.

The syndic of the creditors of Joseph C. Wills, claims from the wife of the insolvent a house and lot, which he alleges formed part of his assets at the time of the surrender.

The defendant admits that she is in possession of the house and lot, but claims them as paraphernal property; there was judgement in her favor in the district court, and the syndic appealed.

We concur in the opinion of the district judge, that it is satisfactorily proved that the defendant inherited from her father, a sufficient sum to .pay for the lot in controversy and the house built thereon, &e. That she had received the inheritance and retained the separate administration of it to the exclusion of her husband. These facts, coupled with her declared intentions to appropriate the amount received to the purchase of a lot and the budding of a house, sufficiently verify her declaration in the act of sale to her, that the purchase was made with funds received by her from the estate of her father.

Having shown that she had the means to purchase under her own control, it was not necessary that she should prove the identity of the money paid for the lot and building, with that received from the succession of her father. Brown and Wife v. Cobb, 10 L. R. 181. Rousse v. Wheeler, 4 R. R. 114. Terril v. Cutter, 1 R. R. 367. Dominguez v. Lee, 17 L. R. 300.

The judgement is therefore affirmed, with costs.


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    George W. Barnes v. Emile Profilet.
    A power of attorney authorising an agent to bring and cany on a certain suit, does not give that agent lha power to represent the principal in a suit brought against him for damages for the wrongful issuance of an attachment in the first suit.
    plaintiff from the Third District Court of New Orleans, Kennedy, J.

      J. B. Beamiss, for appellant.

      W. C. Micou, for appellee.
   The judgment of the court was pronounced by

Slidell, J.

This is an action to annul a judgment rendered against Barnes, in the suit of Profilet v. Barnes, on the ground that he was never cited in the cause, and that Freeman, who assumed to appear for him as his attorney in fact, had no authority to do so. The question presented is the authority of Freeman to represent him in the suit. If he was without such authority, it follows that the judgment is void.

It appears that the suit of Profilet v. Barnes, was an action to recovor damages for the unlawful issuing of an attachment in the suit of Freeman for the use of Barnes v. Profilet. The latter case is reported in 11 Rob. 33. It was an action by attachment upon a bill of exchange against Profilet as endorser. There was atrial upon the merits, and judgment in favor of Profilet, upon the ground that he, as endorser, had been discharged by the giving of time without his consent to the maker. The draft belonged to Barnes, and the authority of Freeman to bring the suit is conclusively shown by a letter of Barnes addressed during its pendency to the attorney at law employed by Freeman, instructing him to pay the money, when collected, to Freeman. He speaks of Freeman as “my agent in New Orleans, who is fully authorised to sign my name to any receipt for monies received.”

It is contended, that from the authority conferred upon Freeman to bring and prosecute the attachment suit against Profilet, there arose, by implication, an authority to appear for Barnes and defend him in the suit for damages, it being the direct consequence of the first suit. It may bo conceded, that under the authority to bring that suit, Freeman was clothed with all such powers as were necessary and proper for carrying that authority, so given, into full effect. But we are unable to understand how from the power to collect a debt can be deduced an authority, after that power has been fully and finally exercised, to bring the principal into a court of justice for the purpose of enabling another to enforce a liability against him.

It must be observed, that the power to appear for another as defendant in a cause, involves consequences of an extremely grave character. The result may be a judicial mortgage of the principal’s whole estate, and a judicial sale of all his property, real and personal. Now, it is true, that the legal liability for damages was created by an act of the agent within the scope of his authority ; but because Freeman had authority to create that liability in favor of Profilet, can it be pretended that he would afterwards have had authority to execute in favor of Profilet a mortgage or a sale of Barnes' lands to secure or pay that liability 1 Clearly not. To do so, an express authority would have been necessary. Civil Code, 2966. See also Fuselier v. Robin, 4th Ann. 61.

It is conceded that the written power of attorney which Freeman held, did not authorise him to appear and defend in the suit brought by Profilet; and we are unable to discover in the instrument by which Freeman’s agency was revoked, any thing which establishes the previous existence of such authority.

It is said that the present action is brought at the instigation of Zuntz, whose power of attorney from Barnes is not sufficiently comprehensive to authorise him to institute this suit, and therefore there has been no disavowal by Barnes of Freeman’s acts. Barnes is stated in the petition to be a citizen of North Carolina, and the affidavit for injuncion appended to the petition, is made by Zuntz as his agent, who deposes that his principal is a non-resident and absent. But the petition is in the name of Barnes as plaintiff, and is signed by a member of the bar as his attorney.

The attorney’s authority must be presumed until disproved. Hayes v. Curry, 9 Mart. 88. Dangerfield’s Executor v. Thurston, 8 N. S. 234. Conrey v. Brenham, 1st Ann. 398.

It is therefore decreed, that the judgment of the district court be reversed; and it is further decreed, that the judgment rendered by the Third District Court of New Orleans, in the suit entitled E. Profilet v. George W. Barnes et al., being No. 16,886 of the records of said court, be and the same is hereby declared null and void, so far as the same affects the said George W. Barnes ; and that the costs of this suit in both courts, be paid by the said defendant Emile Profilet.


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    Succession of Hilligsberg.
    Parties who join in judicial proceedings are held hound by their joint pleadings; and where the power given is joint, as in the case of joint executors, it is indispensable that they should agree in the mode of conducting the litigation, and they can never be permitted to file separate pleas, which place them in a hostile attitude to each other.
    from the District Court of the parish of St. Bernard. Rousseau, J.

      Le Gardeur and Dennis, for appellants.

      Bernard, for appellee.
   The judgment of the court was pronounced by

Rost, J.

Louis Pilié, by his agent, and Elisé Léon Bernard, as testamentary executors of Hillisberg, had filed in the course of their administration provisional tableaux, which were homologated without personal notice to the heirs. In July, 1849, they filed a sixth account, and prayed that after the usual advertisements it might be approved and homologated. Their petition was signed by Le Gardeur, attorney for Pilié, and P. A. Bernard, attorney for E. L. Bernard.

The usual publications were made, but before the expiration of the legal delays Louis Pilié, through his agent, made opposition to the homologation of his own tableau, and prayed that the heirs of the deceased might be served with copies of it, and notified to show cause why the tableau should not be approved and homologated, and the funds distributed in accordance therewith. Bernard, the other co-executor, did not join in this application, and insisted for the homologation of the tableau as prayed for in the original petition. At this stage of the proceedings the court ordered the tableau to be homologated so far as not opposed.

The course pursued by Pilié has given rise to infinite confusion and difficulty. But it is only necessary to state that the heirs appeared and excepted to the right of Pilié to make them parties to the proceedings in this form, and that he has appealed from the judgment sustaining the exception.

The will of Hilligsberg is not in the record; and we have no means of ascertaining whether the executors are assigned separate duties by it. They appeared before the court as joint executors, and united in the prayer of the original petition; the subsequent separate action of Pilié and his opposition to the homologation of his own tableau are subversive of all rules of practice, and totally inadmissible. Justice cannot be administered on any fixed basis, unless parties who join in judicial proceedings are held bound by their joint pleadings. It is indispensable that they should agree in the mode of prosecuting the litigation, and can never be permitted to file separate pleas which place them in an hostile attitude towards each other.

There is no doubt of the right of the heirs to make opposition to the tableau, if they see fit; and we will give them opportunity to do so.

It is ordered that the judgment in this case be reversed. It is further ordered that the petition of Louis Pilié be dismissed and the cause remanded, with leave to the heirs of Hilligsberg to make opposition to the tableau filed in this case, and with directions to the district judge not to permit the executors to amend their pleadings by filing separate pleas. It is farther ordered, that the costs of this appeal be paid by the succession of Hilligsberg.


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    Louis Bouchereau v. Dominique Casson.
    A case will not be remanded because tbe court of tbe first instance did not pass upon a plea in reconvention, in support of wbicb no evidence bad been introduced, when the omission was not brought to tbe notice of tbe judge before tbe decree became final.
    APPEAL by defendant from the Fifth District Court of New Orleans. Buchanan, J.

      P. Biron, for appellee.

      P. E. Bonford, for appellant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff sues for his wages as clerk; the defendant has filed a general denial, and claims in reconvention the sum of $2G7, the balance of an account annexed to his answer.

The judgment of the district court was, that the plaintiff recover of the defendant the sum of $291 55, with interest from the judicial demand. The defendant has appealed; and his counse^l asks that the judgment be reversed, and the cause remanded, on the ground that the district court has not passed upon the reconventional demand. No evidence was introduced by the defendant in support of that demand; and there is nothing in the record to show that it was serious.

We are of opinion, that the omission complained of should have been brought to the notice of the court below, before the judgment became final; and that, as this has not been done, it would be unjust to subject the plaintiff to delay and costs, for the purpose of litigating a claim, which we are bound to consider as fictitious. Hown v. Grailhe, 1 Ann.

Had application been made to the district court to amend the judgment, the most favorable decision which the defendant could have obtained would have been a judgment of non-suit; by which he would be placed in the position he now occupies. The judgment is not otherwise complained of.

It is therefore ordered, that it be affirmed, with costs.


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    William C. Squier v. R. C. Stockton.
    Where the endorser of a promissory note has possession of it, notwithstanding there may ho on it subsequent endorsements, it is prima facie evidence that he is the true and lawful owner thereof; and if the note be secured to him by mortgage, he may proceed on it by executory process, without accounting for the manner in which he re-acquired possession of it.
    A party who purchases certain lots of ground from one representing himself as the agent of A., and who executes his notes secured by mortgage upon the property in payment therefor, when sued by A. on the notes and mortgage, is estopped from setting up the defence that the agent was not authorised to accept the mortgage for A.
    Where an act of mortgage is passed before a notary acting instead of another who was absent, and the copy on which the suit is brought is certified by the latter who had returned, in the absence of evidence to the contrary, it is to be presumed that these officers have properly discharged their official duty in the matter.
    from the Fourth District Court of New Orleans, Slrawbridge, J.

      T. A. Clarke, for plaintiff.

      Steele, for defendant.
   The judgment of the-court was pronounced by

Slidell, J.

This is an appeal from an order of seizure and sale. The' documents upon which the order was granted, were a promissory note made' by Stoeldon, and a notarial protest of it; an act of mortgage granted by Stockton to Squier, to secure its payment, in which the making and endorsement of the note by Stockton, and its delivery to Squier’s agent, are recited ; a notarial declaration and acknowledgment made by J. M. Henman, that he was a member of the firm of J. Marsh Henman & Co., and that the note had been sent to that firm by Squier, as his mere agent, for collection. The note is made by Stockton, is payable to his own order, and bears the following endorsements :

“ Pay to the order of Wm. C. Squier, Esq. Ricirn. C. Stockton.”
Pay to the order of J. M. Henman Sf Co. W. C. Squnui.”
L Maksh Deesian & Co.”

It is said, on the part of the appellant, that upon the face of the instrument it appears that the title had passed out of the plaintiff; that he should have established, by authentic and unexceptionable evidence, a re-transfer to himself, and'that the declaration of Denman is not legal evidence of the facts asserted by him.

It is unnecessary to determine whether the evidence of re-transfer was sufficient and unexceptionable, if no evidence of re-transfer .was requisite.

In Dugan v. United States, 3 Wheaton, 183, the court said, after an examination of the cases on this subject (which cannot all of them be reconciled,) the court is of opinion, that if any person who endorses a bill of exchange to another, whether for value or for the purpose of collection, shall come to the possession thereof again, he shall be regarded, unless the contrary appear in evidence, as the bond fide holder and proprietor of such bill, and shall be entitled to recover, notwithstanding there may be on it one or more endorsements in full, subsequent to the one to him, without producing any receipt or endorsement back from either of such endorsers, whose names he may strike from the bill, or not, as he may think proper. See also United States v. Jacob Barker, 1 Paine, 162.

Mr. Story, in his Treatise on Notes, observes, there is much reason to contend, that the possession of a note by the maker or payee, or by any subsequent endorser, is prima fade evidence, notwithstanding there are subsequent endorsements thereon, that he is the true and lawful owner thereof, and that he has re-acquired the full title thereto; and, accordingly, this seems now to be the better opinion maintained in America, notwithstanding some early doctrine the other way. § 452. See also § 246. Norris v. Badger, 6 Cowen, 450.

We therefore think the case is with the appellee on this point. It is said, there is no evidence of the acceptance of the mortgage by Squier. The case is thus: J. D. Marsh, purporting to act as the agent of Squier, under a power of attorney which is recited in the deed, sells to Stockton certain lots of ground; Stockton acknowledges delivery and possession; gives his notes for the price, and grants in the same instrument a mortgage to secure them. EEe is clearly estopped from contesting Denman’s right to represent Squier, and accept the mortgage in his behalf, which Squier now seeks to enforce.

In the act William Christy, notary, before whom it was executed, recites that he is acting, instead of Jos. B. Marks, notary, then absent from the State, by consent of the governor; and the notarial copy upon which the order of seizure was obtained, was certified by Marks, notary. See act of 1838, p. 94. In the absence of evidence to the contrary, we are bound to presume that these sworn public officers have not culpably neglected, but properly discharged, their official duty. See Hartwell v. Root, 19 John, 346.

Judgment affirmed, with costs.


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    Succession of Odille Hebert, dec’d. Wife of R. Simoneau.
    The law does not favor repeals by implication. When laws in pari-maleria are to be interpreted, that construction is to be preferred which will give effect to all their provisions. C. C. 17.

      Article 338 C. C., is not repealed by tlie act of 26tk of March, 1844, allowing the surviving husband or wife the usufruct of the community property; and the surviving husband may take the conmmunity property at its appraised value,-upon complying with the necessary formalities, and giving the requisite security.
    APPEAL from the District Court of Assumption. Randall, J.

      G. C. Raby, for appellant.
   The judgment of the court was pronounced by

Rost, J.

This case has already been before us, and is reported in 4th Annual, 77.

Simoneau, the plaintiff, asks that the property in community between him and his minor children be adjudged to him at the price of appraisement. A family meeting, convoked for that purpose, advised the adjudication, and he presented a petition praying that it might be adjudicated to him under article 338 of the code; but the court rejected his application, on the ground that the article relied on was repealed by the act relative to community property, approved on the 26th of March, 1844. This is the only question presented by the plaintiff and appellant for our consideration.

The act of 1844 does not purport to repeal the article cited; but it is urged that it contains provisions irreconcilable with it. The law does not favor repeals by implication and when laws in pari materia are .to be interpreted, that construction is to be preferred which will give effect to all their provisions. C. C. art. 17.

We are unable to discover in the act of 1844 anything inconsistent with the right claimed by the appellant. It is true that the act declares in imperative language, that when there is issue from the marriage at the time of its dissolution, the surviving husband or wife shall hold in usufruct during his or her natural life, so much of the share of the deceased in the community property as may be inherited by such issue. The question is, then, what was, in contemplation of law, the share of the issue when that act was passed. It is clear, that it consisted in one half of the community property in kind, when there was no adjudication to the surviving parent; or of one half of its appraised value, when an adjudication had taken place : in one alternative the fruits of the property belonged to the surviving parent; in the other he was dispensed from paying interest on its appraised value.

The two laws are perfectly consistent with each other; and the plaintiff having complied with the requisite formalities,, is entitled to have the property adjudicated to him. But before this can be done the accounts of the minors must be settled, and he must give a special mortgage to secure their rights.

It is therefore ordered that the judgment be reversed, and the case remanded for further proceedings according to law; the costs of this appeal to be paid by the succession of Odille Hébert.


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    Joseph W. Tucker, Executor, v. Pierre Lefebre, et al.
    Where the report and procés verbal of a surveyor have been admitted in evidence in the lower court without objection, and the surveyor was sworn and gave evidence in the case, and the parties were present at the survey, it is too late to object to the evidence in the Supreme Court, upon the ground that the surveyor had not been duly appointed and sworn under article 837, C. C.

      APPEAL by defendant from the District Court of Lafourche Interior, Burke, J.

      J. C. Beatty, for appellee.

      C. A. Johnson, for appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action of boundary, instituted by the plaintiff, who is the administrator of the succession of Abner Robinson, deceased, against the defendants, who are adjacent proprietors. The plaintiff and co-defendants acquiesce in the judgment of the court of the first instance: Lefebre alone has appealed.

His counsel has confined himself to an application to have the cause remanded, on the ground that no judgment can be rendered in the present condition of the suit, inasmuch as the requisites of the code have not been complied with in the .appointment .and procés verbal of a sworn surveyor, as required by article 837 of the code, and has referred to the case of McDonogh v. Degruys, 4th Ann. 33.

In the present case the report or procés verbal with a map was prepared by a surveyor on a survey by him made, under an appointment which was not formally authorised by the court; nor hasthe procés verbal the requisite number of witnesses. But the report was admitted in evidence without objection, and the surveyor examined as .a witness, and testimony was received pro and con on the trial of the cause. It appears the appellant was present at the survey and gave directions to the surveyor in relation to his work. He has thus had the full benefit of the evidence to which he now objects. We think the objection comes too late. As the survey and procés verbal were sufficiently definite to enable the court of the first instance to fix the boundaries; and as no error has been shown in its judgment, the" same must be affirmed.

Judgment affirmed, with costs.


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    William E. Edwards v. Catharine Caulk et al.
    A mortgage given on all the property held in common appertaining to the succession of a deceased person, is invalid, for the want of a proper description of the property subjected to it. C. C. 3273, 3274, 3275.
    Where the proceedings are in rem, the property to be seized and sold must be designated by some definitive description; otherwise there can be no seizure effected.
    by defendants from the District Court of Iberville, Burke, J.

      W. E. Edwards, for appellee.

      Z. Labauve, for appellants.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal from an order of seizure and sale granted by the judge of the sixth district. The plaintiff, by authentic act, purchased the right, title and interest of Ursin Schlatre in and to the succession property of his deceased father, Joseph Schlatre, and afterwards sold to the appellants, who appear- to be the widow and co-heirs of the deceased, the right, title and interest in said property thus acquired. This latter sale was made in consideration of $25,000, of which some $80015 remain due and unpaid. To secure the payment of the unpaid part of the purchase money, to wit, the sum of $25,000, the appellants mortgaged all the property they held in common appertaining to the succession of the deceased Joseph Schlatre. This act was also in authentic form.

According to the prayer of the plaintiff’s petition, which was to subject the property thus mortgaged to the payment of the balance due of the purchase money, the order of seizure was granted, from which the defendants took this appeal.

The mortgage stipulated in this act is clearly of no effect, for want of a proper description of the property to be subjected to it. Code 3273, 3274, 3275.

It is contended by the plaintiff, however, that his privilege as a vendor is sufficient to warrant executory proceedings against the property sold ; inasmuch ■as the authentic act by which he sold imports a confession of judgment by the defendants. But the proceedings are in rein, and the property to be seized and sold must be designated by some definite description. Otherwise, how can a seizure be effected; an appraisement made; or a valid title be giyen under the sheriff’s sale ?

The judgment of the district court is therefore reversed, and the plaintiff’s petition dismissed, with costs in both courts.