WESTERN DIST. for the value of said slave, who was a good mechanic and September, 1840. carpenter, and worth three thousand dollars. He prays judg

LOUSSADE vs.

HARTMAN ET AL.

ment against said defendants, for their illegal conduct in causing the death of his slave, for his value.

Hartman and Theriot, two of the defendants, pleaded the general issue and justified their conduct. They averred that they were doing the duties of patrol in the neighborhood of one Manuel Delukie's, under the direction of their leader, and came upon this negro at Delukie's and demanded his pass, which after much insolence the negro produced, and it was pronounced by the patrol not to be legal; he was ordered to be whipped, when he broke away and run into a back-room. One of the party went in after him, when the captain called to him to stop and not further trouble the negro, when the person replied no damned negro should run over him. Sandy broke and run into the Bayou ; and one of the defendants took a pirogue, and attempted to save him from drowning, but was unable to do so. The defendant, Hartman, did not pursue the slave. They pray that the plaintiff's demand be rejected.

There was an amended petition, correcting an error in relation to one of the defendants, substituting the name of Darwin Bemiss instead of J. B. Bemiss, who was originally sued. Neither D. Bemiss or Vining were cited.

Upon these issues and pleadings the cause was tried before the court and a jury.

There were several witnesses examined, touching the conduct of the defendants and the manner in which the slave was lost.

Upon the whole evidence of the case, the jury returned a verdict for the plaintiff in the sum of one thousand dollars, and after an unsuccessful effort to obtain a new trial, from judgment thereon, 'against Hartman and Theriot, they appealed.

Morse, for the plaintiff and appellee.

T. H. and W. B. Lewis, for the defendants.

Martin, J., delivered the opinion of the court.

This is an action against Hartman, Theriot, Bemiss, and Vining, to recover the price of a slave, drowned in consequence of an illegal act of the defendants. In an amended petition the plaintiff stated that John B. Bemiss had been, through error, made a defendant, instead of Darwin Bemiss, and prayed that the error might be corrected, and the latter cited; and that he might have the remedy against him, which he had prayed for against the former; but said Darwin Bemiss was never cited, nor was the defendant Vining, or any curator appointed to represent them.

There was a joint judgment against Hartman and Theriot, and they appealed.

The legislature has given us no direction for the prosecution of suits on joint obligations arising from torts; but they have on those resulting from contracts. The Louisiana Code says, that "in every suit or joint contract, all the obligors must be made defendants, and no judgment can be obtained against any, unless it be proved that all joined in the obligation, or are by law presumed to have done so." Article 2080. And when one of the joint obligors has discharged or performed his part of the contract, he is still required to be made a defendant to the suit. Idem., 2082.

WESTERN Dist.

September, 1810.

LOUSSADE vs.

HARTMAN EL AL.

Trespassers are

and where there

passers they must

The appellants contend that, in the present case, the suit is brought against four defendants, in solido, on an obligation jointly liable in resulting from a tort; while on such obligations the code actions of tort: gives a joint action only. Louisiana Code, article 2304. The are several tresjudgment is joint, and it is against two of the defendants all be joined in only; and, therefore, the action must be considered a the same action, and judgment joint one. The judgment is consequently erroneous, because entered in relathe petition charges that a trespass was committed by four persons, from which the law raises a joint obligation against all, and not a several one: For on joint obligations judgment proportion of the must be given against each defendant for his proportion, which is regulated by the number of obligors.

It has been urged that the part of the Louisiana Code, relating to joint obligations, on which the counsel for the

tion to all; and

if

against them, demned for his

each one is con

damages.

WESTERN DIST. appellants rely, is to be found in the chapter which treats of September, 1840. conventional obligations and ought not to be extended to

LE BLANC

V8.

HIS CREDITORS.

persons were

obligations resulting from torts.

We are of opinion, that being without a rule given us by So, where four the legislature for the prosecution of joint actions, on oblisued as co-tres- gations arising from trespasses, we cannot resort to an passers, for killing, or causing arbitrary one, but are bound to adopt that given in cases the death of a that have the greatest analogy to the one before us. Now, slave, and judgment taken a suits in actions on joint obligations resulting from contracts, gainst two only: Held, that the have the greatest analogy to suits on joint obligations arising judgment was from trespasses. We, therefore, adopt the rule in the code, including all; relative to conventional obligations. According to this rule, and against each one for his pro- the judgment cannot stand, because it is not against each of portion of the the defendants and appellants for his proportion of the plainplaintiff's damages; and judg tiff's damages, and because their co-trespassers are not included in the judgment.

erroneous in not

ment of non-suit was rendered.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that there be judgment against the plaintiff, as in case of non-suit, with costs in both courts.

LE BLANC vs. HIS CREDITORS.

APPEAL FROM THE COURT OF THE FIFTH DISTRICT, FOR THE PARISH OF
ST. MARTIN, THE JUDGE OF THE SIXTH PRESIDING.

An order or judgment of the Court of Probates, erasing the legal and special mortgage of a minor, under the act of 1830, and giving a special mortgage on part only, of the property of the tutor, in lieu of the first, cannot be attacked collaterally, when third persons have purchased property released by these proceedings; it must have its effect until reversed or annulled in a direct proceeding or action.

So in the suit of a minor, on arriving at the age of majority, to annul an

order or proceeding of the Probate Court, it cannot effect the rights of third persons, who purchased under the faith of these proceedings, sanctioned by the Court of Probates.

This is an opposition to the tableau of distribution, filed by WESTERN DIST. the syndic of the creditors of Edward Le Blanc, the ceding September, 1840.

debtor.

LE BLANC 08.

On the 23d of May, 1823, Edward Le Blanc was appoint- HIS CREDITORS. ed dative tutor to Modeste Le Blanc, the opponent in this case, and gave a special mortgage on a plantation and four slaves to secure the payment of the sum of one thousand four hundred and seventy-two dollars and thirty-seven cents; as is alleged, in pursuance of the act of 1817, which authorized tutors to give special mortgages in lieu of security for their ad

ministration.

The opponent alleges, that at the time of the appointment of her dative tutor, his property all became liable and tacitly mortgaged for the security of her debt. She further states, that in 1832, with the advice of a family meeting, her said tutor attempted to have the mortgage on the slaves, which were liable under her original and legal mortgage, released, and gave a special mortgage on his plantation. That the syndic of his creditors have not placed her on the tableau as a privileged creditor, except for the proceeds of the plantation. last mortgaged, which sold for only one hundred and seventyfive dollars; whereas she claims to have the first privilege on all the property surrendered.

The syndic pleaded the general issue, and averred that the special mortgages were valid. That the plaintiff has been placed as a privileged creditor for the proceeds of the land last mortgaged, which is all the privilege to which she is entitled.

It is shown by the evidence that, in 1832, on application to the Court of P robates, with the advice of a family meeting, the insolvent, Edward Le Blanc, obtained a decree or judgment, annulling all the former mortgages in favor of the minor, (this opponent) and executed a special mortgage on his plantation alone, in lieu thereof. Three of the four slaves, included in and subject to the former mortgages, are admitted to have been surrendered and sold; and their proceeds would more than pay the opponent's claim.

WESTERN DIST. After the proceedings in the probate court, erasing the first September, 1840. mortgage and executing the special mortgage on the plantation alone, several creditors obtained and recorded judgments HIS CREDITORS. against the ceding debtor, before the surrender. They have been placed on the tableau as general mortgage creditors.

LE BLANC

v8.

The whole case turns on the validity of the proceedings purporting to annul and cancel the first mortgage, and give a second on a particular piece of property. The opponent insists they are null and void.

There was judgment for the plaintiff in opposition, allowing her a privilege and mortgage on the proceeds of the three slaves sold by the syndic, for the amount of her demand, with interest. The syndic appealed.

Voorhies, for the opposing creditor, contended, that the mortgage given by the insolvent, under the act of 1817, ought to have its full force and effect; the obligation arising under it, cannot be impaired by any subsequent legislative enactment: "A law can prescribe only for the future; it can have no retrospective operation, nor can it impair the obligation of contracts." Louisiana Code, article 8.

2. The mortgage in question was given under the act of 1817, which authorized tutors to give special mortgages, in lieu of security, for their administration; and no law then existing authorized its change or release; it became a vested right, and could not be impaired by any subsequent legislative enactment. Hence, all the proceedings which were had in July, 1832, by virtue of the act of 1830, for the purpose of annulling this mortgage, were absolutely null and void. Constitution of Louisiana, article 6, section 20. 1 Louisiana Reports, 347.

3. Contracts are always made without reference to the laws in force at the time of making them; this mortgage or contract was, therefore, made with reference to the laws in force in 1823, the time when it was made. No laws enacted after could impair its obligation. This principle is too plain to admit of any doubts.