Frellsen & Stevenson v. Gantt.

within that time; but it is contended on behalf of plaintiffs that in 1866 the defendant acknowledged and promised to pay the account.

A simple acknowledgment of a debt, when prescription is acquired, is not a renunciation of the prescription; and in this case the evidence does not establish a positive promise to pay. 21 An. 275. At most, it was an offer to compromise by the payment of half, which was not accepted. There was no express renunciation, oral or written, and no fact shown which gives a presumption of the relinquishment of the right acquired by prescription. R. C. C. 3461.

Judgment affirmed.

No. 771.

ALFRED DUPERIER v. CELESTINE DARBY et als.

The plaintiff can not recover against an indorser, when it is in evidence that the consideration of the indorsement was a slave.

A

PPEAL from the Third Judicial District Court, parish of Iberia. Train, J. Olivier & Dumartrait, for plaintiff and appellant.

Blanc, Fournet & Gary, for defendants and appellees.

De

WYLY, J. This is a suit against the makers and indorsers of a promissory note for $900.

The defense is the slave consideration of the note. The indorsers also contend that they were not duly notified of the dishonor of the note. The court gave judgment for the defendants, and the plaintiff appeals.

In June, 1859, J. V. Dauterive purchased several slaves from Achille Bessan and Emilia Bessan, and in evidence, in part, of the price, indorsed and delivered to his vendors the note in suit, which he held, and which was made by Celestine Darby and A. B. Dauterive. This note was subsequently indorsed and transferred to the plaintiff.

The consideration of this note, executed several days before the sale by parties in no manner connected therewith, is presumably valid. It evidenced a subsisting debt due by Celestine Darby and A. B. Dauterive to J. V. Dauterive.

The consideration of the contract of indorsement by the latter was slave; and as against this indorser the plaintiff can not recover.

There is nothing to show that the other contracts of indorsement had slave considerations.

In W. H. Letchford & Co. v. Succession of Weil, lately decided, this court held that, each indorsement being a new contract, the right of the indorsee to recover against his indorser can not be defeated because the maker received a slave consideration for the note.

Duperier v. Celestine Darby et als.

There is nothing, therefore, in the slave defense, except as to the indorser, J. V. Dauterive. As to the indorser Bessan, the notice of dishonor was sufficient. The certificate of the notary and his own evidence establish the fact satisfactorily.

As to the other indorsers, notice of dishonor is not proven, and they are consequently released.

It is therefore ordered that the judgment of the court a qua be annulled as to the defendants, Celestine Darby, A. B. Dauterive and Achille Bessan; and it is now ordered that the plaintiff recover judg ment against each of them for nine hundred dollars, with eight per cent. per annum interest thereon from first of April, 1862, three dollars and fifty cents cost of protest, and all costs. As to the other defendants, it is ordered that the judgment be affirmed.

25 478 46 1044)

No. 791.

CAROLINE LANOUE, Administratrix, v. A. C. DUMARTRAIT, Adminis

trator.

The only privilege granted by law to the depositor is on the price of the sale of the thing deposited by him.

The law does not give a general privilege to the depositor, but simply on a particular movable.

Where the funds deposited have been appropriated by the depositary, and of course can not be identified, and the amount thereof or therefor is not due to the depositary by another, there is nothing subjected to the privilege.

There is no law known to the court that allows the general privilege claimed by the plaintiff, as depositor, on the property of the depositary's succession. Said succession, being insolvent, other creditors would be affected, and it seems that, to avail, plaintiff's claim, if it exist, registry is necessary, but has not been made.

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PPEAL from the Third Judicial District Court, parish of St. Mary. Train, J. F. Gates, for plaintiff and appellant. DeBlanc & Perry, for defendant and appellee.

HOWELL, J. Counsel agree that only two questions are presented in this case, to wit:

First-Is the plaintiff, a depositor, entitled to a privilege against the depositary of funds deposited with and used by him?

Second-Can the depositary plead, in compensation, debts due by, or paid on account of the depositor, for any other purpose than the preservation of the thing deposited?

The defendant, not having appealed, the latter question, practically decided against him, can not be examined.

As to the first, the only privilege granted by law to the depositor, is a privilege" on the price of the sale of the thing by him deposited."

Caroline Lanoue, Administratrix, v. Dumartrait, Administrator.

R. C. C. 3217, No. 5, 3223 and 2962. In this case there is nothing on which the privilege can operate. The law does not give a general privilege to the depositor, but simply on a "particular movable." There is no price of the sale of the thing due. The funds have been appropriated by the depositor, and, of course, can not be identified; and the amount thereof or therefor, not being due to the depositor by another, there is nothing subjected to the privilege. The plaintiff is claiming a general privilege upon the property of the depositor's succession, and we are aware of no law which accords such a privilege, and the succession being admitted to be insolvent, other creditors would be affected, and it seems that to avail the plaintiff, if it exist, registry is necessary, but has not been made. Judgment affirmed.

No. 788.

HEIRS OF ONEZIME ISAAC THIBODEAUX v. FELIX VOORHIES, Testamentary Executor, et als.

Where the character of the suit, as ascertained from the prayer of the petition, is not an action of revindication, but is simply a suit to annul a will, because the formalities prescribed by law were not observed in making it, the parish court, which admitted the will to probate, has jurisdiction of the case.

Where the formalities required by Art. 1578, Revised Code, were not complied with, a will is not good as a nuncupative testament by public act, nor can it be held good as a nun. cupative will by private act, when the proof adduced fails to show that the formalities required for it have been observed.

PPEAL from the Parish Court, parish of St. Martin. Z. T. Fournet, A Special Judge, in the place of the parish judge, recusing himself. Gabriel A. Fournet, DeBlanc & Perry, for plaintiffs and appellees. Felix Voorhies and Edward Simon, for defendants and appellants.

WYLY, J. This is a suit by the heirs at law of O. J. Thibodeaux to annul his nuncupative will by public act:

First-Because the said nuncupative testament does not state that it was received by the notary in the presence of three witnesses residing in the place where the will was executed, or by five witnesses not residing in the place;

Second-Because it does not state that it was dictated by the testator to the notary and written by him as dictated;

Third-Because the said testament does not state that it was read to the testator in the presence of the witnesses.

The defendants pleaded the general issue, and averred that the will is clothed with the formalities required by law and is valid to all intents and purposes.

Heirs of Thibodeaux v. Voorhies, Testamentary Executor, et als.

They subsequently excepted, on the ground that the suit is an action of revendication, and, as the amount involved exceeds $500, the parish court is without jurisdiction.

The character of the suit, as ascertained from the prayer of the petition, is not an action of revindication; it is simply a suit to annul the will because the formalities prescribed by law were not observed in making it.

The parish court, which admitted the will to probate, has jurisdiction of the case.

The will recites that, at the request of the testator, the notary, with the three witnesses mentioned therein, repaired to his residence, and he (the testator) "requested me to write his testament, which I did at his dictation, as follows:"-Here the dispositions are written, and the act concludes as follows:

"And the said Onezime I. Thibodeaux having declared that he had nothing else to add to the testament, it was closed, and immediately thereafter I read, in a loud and intelligible voice, the will, and he declared that he well understood it; and he persisted in declaring that it contained his last will. This act done and signed at the resi dence of Onezime Isaac Thibodeaux, in presence of Messrs. Auguste Guilbeau, Elisee Guilbeau and Charles Porter, competent witnesses for the purpose, who have signed the same with testator, and me, the notary, all after being read, and without interruption or turning aside to other acts."

It is very obvious that the formalities required by article 1578, Revised Code, were not complied with. There is no express mention that the witnesses were present at the dictation, nor at the reading to the testator. Devall v. Palms, 20 An. 202; Succession of Clement Wilkins, 21 An. 115, and authorities there cited.

But the defendants contend that, if the will is not good as a nuncupative testament by public act, it is good as a nuncupative will by private act.

The proof adduced, however, fails to show that the will was read to the witnesses in the presence of the testator. Revised Code 1582. There are also only three attesting witnesses, and the evidence fails to satisfy us that a greater number could not be had. Revised Code 1583.

It is unnecessary to consider the exceptions taken by the defendants to the ruling of the court in refusing to allow their amended answer to be filed, because the evidence it was intended to lay the foundation for, was admitted by the court.

It is therefore ordered, that the judgment of the court a qua annulling the will be affirmed, with costs of both courts.

Guillory v. Dejean, Administrator.

No. 793.

AUGUSTIN GUILLORY v. WILLIAM DEJEAN, Administrator.

Where the defense to a promissory note was the prescription of five years, and several credits being indorsed on the note, oral evidence was offered to prove that payments were made by the deceased at the dates indicated by the indorsements, the exception to the evidence was well taken.

The plea should have been maintained.

A

PPEAL from the Eighth Judicial District Court, parish of St. Laudry. E. T. Lewis, acting judge. H. L. Garland, for plaintiff and appellee. Bailey & Estelette, for defendant and appellant.

LUDELING, C. J. This is a suit on a promissory note. The defense is the prescription of five years. The note was due fifteenth of December, 1858, and citation was served on the twenty-sixth March, 1867. There are several credits indorsed on the note, and oral evidence was offered to prove that payments were made by the deceased at the dates indicated by the indorsements. To the reception of this evidence a bill of exceptions was taken. The judge a quo erred. See R. C. C. article 2278.

The plea should have been maintained.

It is therefore ordered and adjudged that the judgment of the lower court be annulled, and that there be judgment in favor of the defendant rejecting the plaintiff's demand, with costs of appeal.

No. 794.

DOMINIQUE LALANNE v. D. L. GOODBEE et al. A. H. CHALMERS, In

tervenor.

The fact that the limit to which supplies might have been required according to contra't, was not reached, does not amount to a violation of, or a refusal to comply with the contract, where there is no evidence that the plaintiff was called on and refused to furnish more than is claimed by him in his suit.

Laborers have their privilege independent of and distinct from that of the furnisher of supplies, and each privilege attaches as against the owner of the crop produced.

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PPEAL from the Eighth Judicial District Court, parish of St. Landry. King, J. John J. Morgan, for plaintiff and appellant. Lewis & Brother, for defendants and intervenor, appellees.

HOWELL, J. This is a sequestration suit on an account for supplies furnished to the defendants to make a crop under a written contract, and for a privilege on the said crop and certain movables. The defense admits the contract, but alleges its violation on the part of plaintiff in not furnishing the whole amount agreed on; denies that there was any cause for the issuance of the writ of sequestration, and sets up a claim for damages in reconvention for an illegal seizure. A. H. Chalmers, intervenes, claiming to be the owner of a part of the