V8. O'CONNER. a succession, and the accounts of a WESTERN DIST. deceased, to her son, who acted as her agent. All the facts August, 1834. were laid before the jury, as well in relation to her manageFLOWER ET ALS. ment of the succession, as to the credits to which she was entitled, for the notes and accounts turned over to the plaintiffs as collateral security, and other payments made to them Where a mass of both before and after the written acknowledgment of the facts, relating to the settlement of debt, on the 10th December, 1820; and also in relation to the errors in that settlement, and the alleged fraud and circummercantile firm, vention practiced by the plaintiffs. Those were questions and circumven- peculiarly of the province of a jury. They seem to have tion is charged, credited her on the amount of principal, and accruing interest to a jury, who due on the 18th of February, 1825, with the sum of about appear to have carefully allow thirteen thousand five hundred dollars. After a careful credits between perusal of the record, we cannot discover that any credit was the parties, their rejected, to which she was manifestly entitled, and this court cannot disturb the verdict. and where fraud are all submitted ed the debits and verdict will not be disturbed. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs. REPORTS OF CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF THE STATE OF LOUISIANA. WESTERN DISTRICT. BROUSSARD vs. BERNARD ET ALS. * APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING. Customs result from a long series of actions, constantly repeated, which by WESTERN DIST. such repetition, and by uninterrupted acquiescence, acquire the force of September, 1834. a tacit and common consent. BROUSSARD The particular custom," that the community of property continues, after the BERNARD ET ALS, death of one of the partners, until inventory is made," is required to be proved by other partitions and divisions, that may have been made in the same place, and that it has prevailed without interruption. The establishment of a custom, necessarily admits proof, other than that required to establish laws. Parole evidence is inadmissible, to prove the customs of a country. *The opinion in this case was pronounced and recorded, as of the September term at Opelousas, 1827, but was omitted to be published in Martin's Reports. WESTERN Dist. BROUSSARD The plaintiff had judgment, establishing the payments September, 1834. made by him, on account of the community, to the amount of fourteen thousand one hundred and nineteen dollars, which is adjudged to be an offsett to all the defendants' claims, and the plaintiff discharged from all further liability, for any property of the succession. The defendants appealed. FERNARD ET ALS. This cause was argued at the September term, 1827, at Opelousas, by Mr. Brownson for the plaintiff, and by Mr. Simon for the defendants. The opinion of the court, was made out at New-Orleans, sent up and entered of record, as of the September term, 1827. Porter, J., delivered the opinion of the court. This case grew out of an action, which was originally brought to ascertain, and settle the claims of the heirs of the late wife of the present plaintiff, to the property held in community, at the dissolution of the marriage, and to annul and set aside certain conveyances, which the plaintiff had made, of all the real and personal estate. He and those to whom he had sold, pleaded to the action, and after the cause stood at issue for some time, a decree was entered up by consent, declaring the deeds of sale null and void, directing an inventory and estimation of the property to be made; that the plaintiff should take the whole of the estate, at the price of the appraisement, and that after deducting the debts due by the community, he should pay the heirs of the wife their shares, at certain periods of time, therein mentioned. The petition in this case, sets forth these facts, and avers, that an inventory had been made by the parish judge; that the whole estate amounted to eleven thousand nine hundred and forty-two dollars; that he has paid debts to a greater amount, viz: sixteen thousand and eighty-six dollars, and that the defendants refuse to ratify these proceedings, or carry them into effect. It concludes with a prayer, that they may be cited, that the whole of the proceedings may be homologated, and that the plaintiff may be discharged from all further responsibility. BROUSSARD 78. BERNARD ET ALS. The answer contains a general denial; that the parties to WESTern Dist. this, and the former suit, were minors and married women, September, 1834. and that no legal consent could be given by them, to such a decree as that set forth in the petition; that the conduct of the plaintiff was fraudulent, in delaying the inventory and appraisement, until property had greatly fallen in price; that the sum, which the plaintiff now avers he had paid of community debts, exceeded by more than four thousand dollars, the amount stated in the answer, filed by him in the first suit; and lastly, that after the death of his wife, he had acquired property which must enter into the community. ries of actions re On the trial, the defendants offered evidence to prove, that after the death of their ancestor, the plaintiff had made large crops with the slaves, which were common property. This was rejected. They then offered to prove by parole, and by Customs resuk the record books of the Court of Probates of Attakapas, that from a long se it was the usage and custom of that county, and of the state constantly of Louisiana, to consider the community as existing, until an such repetition inventory was made; that the Fuero Real of the kingdom of terrupted acSpain, was in force, where the succession was opened. This quiescence, acevidence was also rejected by the court, to which defendants excepted. peated, which by and by unin quire the force the of a tacit and common con long The particular such community of the property custom, that the conti nues after the death of one of the partners until Customs, according to our Civil Code, result from a series of actions, constantly repeated, which have by repetition, and by uninterrupted acquiescence, acquired force of a tacit and common consent. La. Code, art. 3. The particular custom, on which the defendants relied in inventory is made, this instance, is required to be proved by other partitions and proved by other divisions, that may have been made in the same place, and partitions and divisions, that may that it has prevailed without interruption. Febrero, p. 2, lib. have been made 1, cap. 4, § 4, No. 91. 3 Martin, 120. The recognition of place, and that it customs, by our Code, necessarily admitted proof, other than has prevailed that required to establish laws. The custom which the ruption. defendants attempted to prove, was not as plaintiff objects, ment of a custom contrary to the general law of the land, but an exception to necessarily admits proof other the ordinary rules, which regulate partnerships. If the proof than that requir of customs could be rejected, because it established something laws. in the same without inter The establish ed to establish WESTERN DIST. different from the law, no custom could be proved, for if September, 1834. it were not different, it would make a part of the law. BERUSSARD V8. is inadmissible to prove the cus try. But the court, in our opinion, acted correctly, in rejecting BERNARD ET ALS. parole evidence of this custom, first, because the law directs, Parole evidence it shall be proved in another manner; and second, because parole evidence is not the best of matters, which the law toms of a coun- required to be executed in writing. There was no legal The books and ground, for rejecting the evidence of the books of the parish parish judge's judge; it was precisely that species of proof, which the law office are legal demands, in relation to this custom, and the cause must evidence to be remanded, to give the party an opportunity of producing it. prove a particular custom in relation to the continuation of the records in the and the proper the death of one It is, therefore, ordered, adjudged and decreed, that the community after judgment of the District Court be annulled, avoided and of the partners reversed; that the cause be remanded for a new trial, with until inventory is directions to the judge a quo, not to reject the record books of made. the parish of St. Martin, to prove that the Fuero Real was in force there; and it is further ordered, adjudged and decreed, that the appellee pay the costs of this appeal. BROUSSARD vs. BERNARD ET ALS. APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE Evidence consisting of extracts from the procès verbal, of commandants and parish judges in Attakapas, for a long series of years, in which the phrase “afin de faire cesser la communauté” is used in the caption to inventories, with other phrases of similar import, is insufficient to prove the existence of a custom in such place, that a community of acquests and gains continued between the surviving husband and the heirs of his deceased wife, until inventory is made. |