but no specific value was proved, or damage sustained by his WESTERN DIST. loss; it was only said, he was a good hunting dog. September, 1834. Defendant's witnesses stated, that at the time of the damage complained of, the plaintiff's fences were in bad order, that they consisted of three or four pieux, the posts were tied with strings in many places, and in a wet time they gave way, and the pieux dropped down. The fence appeared to be a year or two in this fix. The jury returned a verdict for the defendant. The verdict was rendered on the 17th of May, 1833, and the judgment of the court thereon, was rendered and signed on the next day. The plaintiff appealed. 1. Neveu, for the plaintiff, contended that the judgment and verdict should be reversed. The judgment was signed before the three judicial days elapsed, required by the Code of Practice. 2. The evidence clearly shows, that the plaintiff is entitled to damages. Voorhies, contra, submitted the case for the defendant, on the following points: 1. This court has repeatedly decided, that it will not disturb the verdict of a jury, unless it appears to be clearly against the law and evidence. 2. No motion for a new trial having been made, the judgment and verdict must be confirmed. Bullard, J., delivered the opinion of the court. This is an action of trespass, in which the plaintiff claims remuneration, for damages done by the cattle of the defendant, breaking into his enclosures, and for killing his dog. LAPOINTE vs. GUIDRY. On a mere matter of fact submitted to a jury, when the evidence does not show the clearly wrong, The defendant pleaded the general issue; and that the verdict to be plaintiff's fences were not such as are required by the police the verdict and judgment will regulations of the parish. The jury found a verdict for the not be disturbed. defendant, and the plaintiff appealed. WESTERN DIST. The whole matter, which was that of fact only, was left to September, 1834. the jury, and from the evidence in the record, we are not enabled to say, that the verdict was so clearly wrong, as to authorise the interference of this court. BABINEAU ET ALS. BENDY ET ALS. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs. BABINEAU, CURATOR, &c. vs BENDY AND DUGAT. APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE The law presumes certain formalities, which must be pursued in order to obtain a judgment of interdiction against a person above the age of majority. The law presumes every person above the age of majority, capable of managing his own affairs; even deaf and dumb persons not excepted. Where a person has not been interdicted, in pursuance of law; but being deaf and dumb, and a curator appointed to manage his affairs, such curator, cannot claim a legal mortgage on the real estate of another, who has intermeddled, and collected moneys due said deaf and dumb person. This action was commenced by the plaintiff, as curator of Jean Babineau, alleged to be an interdicted person, against one Joseph Dugat, to render him liable for intermeddling with the estate of said Babineau, for the sum of two thousand dollars, with a legal mortgage, from the time of such intermeddling; and against W. Bendy, to subject a plantation purchased by him, from Dugat, since the above mortgage attached. The plaintiff alleges that Jean Babineau was deaf and dumb, from his nativity, and incapable of managing his affairs; that in January, 1819, one J. C. Guilbeau, was BABINEAU ET ALS. vs. regularly appointed a curator of said Babineau, who collected WESTERN DIST, and received considerable sums inherited by the latter, and September, 1834. died in 1820, without rendering any account. That in 1821, Joseph Dugat, maternal uncle to the interdicted, then without any curator, took upon himself, without any authority, to BENDY ET ALS. administer his estate, and collected and received from the widow and heirs of Guilbeau, the former curator, about the sum of two thousand dollars, which he still retains: that in consequence of such interference, without authority, or any appointment, all his property from that date became legally mortgaged for the payment of all sums which may be found due by him. That since then, and in the year 1881, the said Dugat, sold a sugar plantation to one W. Bendy, which was, and is liable to said mortgage, in favor of said interdicted, and that said Dugat, has left this state, and is now absent therefrom: The plaintiff, further alleges, that he has been duly appointed curator, to the said Jean Babineau, and as such, fully authorised to administer his affairs: He prays that a curator ad hoc, be appointed to represent Dugat, and that he be duly cited, and that he have judgment against the said Dugat, for the sum of two thousand dollars, with a legal mortgage, on all the real property possessed and owned by him, since the year 1821, until final payment, and that the said Bendy, be cited to show cause, why the plantation, purchased by him, should not be seized and sold in payment of said claim. The defendant, Bendy, pleaded a general denial; admitted the purchase of the plantation, from Dugat, now absent in Texas, for a valuable consideration, and who bound himself to warrant the title thereto : He prays, that a curator ad hoc, be appointed to represent and defend said Dugat, and that the plaintiff's demand be rejected. But in case judgment should go against the land, he prays judgment against Dugat, annulling the sale and decreeing the re-payment of five hundred dollars, which he has advanced, and that his notes be given up and cancelled, &c. The curator ad hoc, of Dugat, pleaded a general denial, &c. BABINEAU ET ALS. vs. BENDY ET ALS. WESTERN Dist. The evidence showed, that when the first curator of Jean September, 1834. Babineau died, in 1820, Dugat being the maternal uncle of the latter, took him to his house and acted as his curator, and administered his person and estate, without any legal appointment, from any court whatever; that he kept the said interdicted until he (Dugat) absconded from the state, in 1831. In 1821,Dugat made a settlement with the representatives of the late curator, and received the sum of two thousand dollars, on account of said Jean Babineau, which he never paid over, and still owes. The plaintiff also produced in evidence the act of sale from Dugat to Bendy, of the plantation claimed, made in 1831. The court, after hearing all the evidence, gave judgment against Dugat for the sum of two thousand dollars, with legal interest from judicial demand, without recognising any legal mortgage on any of his property, and discharged Bendy from all liability, on account of the plantation. The plaintiff appealed. The only sentence of interdiction ever pronounced, appears to have been made in 1819, by a family meeting of the relations of said Jean Babineau, when he was twenty-eight years of age, before the parish judge of St. Martin, which is written in the French language. These proceedings were homologated, and Guilbeau was appointed curator to the interdicted. The judgment of homologation, is written in English. The evidence showed, that the only infirmity which the interdicted labored under, was want of hearing and speech, that he was deaf and dumb, from his nativity. Simon, for the plaintiff. 1. Contended, that under the art. 3283, of the La. Code, there is a legal mortgage on the property of those who have intermeddled with the administration of property of interdicted persons. Dugat, without being legally appointed the curator of Jean Babineau, but having holden himself out as curator, duly appointed to the said individual, has received a sum of two thousand dollars, in the right of said Babineau, has now become subject to the consequences of his intermeddling. BABINEAU 2. A curator had formerly been appointed to Jean Babineau, WESTERN DIST. as an interdicted person; the proceedings were had under the September, 1834. art. 409, of the La. Code, and said proceedings were sufficient to constitute the said Babineau, an interdicted person, in the legal sense of the term, therefore, the property sold by Dugat BENDY ET ALS. to Bendy, is subject to the legal mortgage of the interdicted. Lewis & Brownson, for the defendants. 1. Interdiction can only be pronounced by a judgment of the Probate Court. Civil Code, p. 78. art. 5-8. p. 80, art. 14, and Code of Practice. 2. There is no judgment interdicting Jean Babineau. The act set up as evidence of a judgment of interdiction, is a nullity, because it is written in French, and is not accompanied by any of the formalities required by law, in such cases; there is no petition, citation nor default taken. 1. Martin's Digest, 216. 1 La. Reports, 438. 3. No tacit mortgage can exist in this case, because there was no person interdicted. Civil Code, 456, art. 20. 4. No legal mortgage exists, except in cases expressly provided by law. Civil Code, 454, art. 16. Arrêts de la Cour de Cassation, vol. 26, p. 149, n. 46, du 27 Avril 1824, on articles 2121 and 2135 of Code Napoléon; which agree with our Civil Code, p. 454, art. 19. 5. No legal mortgage can exist in this case, against third persons, because the interdiction was not published as the law directs. Civil Code, p. 78, art. 11. 6. There is no record of the proceedings of interdiction in the parish where the land lies, to put third persons on their guard. 7. The parole testimony in the cause is not good against Bendy, for any purpose; a record of a judgment of interdiction by the proper tribunal, being the only legal evidence of that fact. Mathews, J., delivered the opinion of the court. In this case, Dugat, one of the defendants is sued as having intermeddled with, and taken on himself, the management of the person and estate of Jean Babineau, for whom the ET ALS. vs. |