Succession of Sutton. To doctor's bills paid during the 15 years, averaging per year.. $30 00 To clothing, per year............. .130 00 Boarding, $25 per month ...300 00 To servant hire, at $60 per year for five years $300, making an average for 15 years of $20 per month.. :2000 00 Cash actually paid to Miss Kewman for tuition for 15 years $66 66 per year..... 66 66 Boarding teacher during the time, one year, at $30, is $300, making an average for 15 years of $20 per year... 20 00 560 66 ...... .$8,409 90 Making for 15 years a total of..... This alleged claim is so extravagant and extraordinary on its face; that without better proof than is found in the record, it cannot be expected and presumed that it was ever understood by the parties that the father was to pay such charges; from all the circumstances in the case, it would appear to have been a benevolent parental act of affection from the grandfather towards his grandson, and that therefore, he did not anticipate and expect reimbursement of these expenditures which seem to have been intended by him, to be gratuitous. Verrete v. Belanger, 6 An. 111. We cannot therefore, for the present, as the case stands before us, consider Zenas Preston a creditor of the estate so as to entitle him to the administration as such; at the same time, we do not intend to prejudice his rights as a creditor. The record informs us that widow Sutton was duly qualified as natural tutrix to her minor child, and nothing shows that Zenas Preston has been qualified according to law as tutor to his grandson. He may never qualify, and we are bound to try the issue upon the evidence before us, and not upon the right that the parties have and which they might never exercise or be unable to exercise as prescribed by law. So, we conclude that the widow has shown a better right than Preston to the administration, even if Preston were a creditor. Civil Code Art. 1037, 1035. The Judge below was of opinion that the appointment of an administrator was necessary, and we are not prepared to say that he erred; it was a matter left, in great part, to his sound discretion as a probate judge. The conclusion we have come to, dispenses us from passing on the bill of exceptions, as it is unnecessary to do so. The judgment appealed from is affirmed, with costs. No. 1590-JOHN WILLIAMS v. FERD. GREINER. An action in damages for a tort, in taking and appropriating the personal goods of another, is prescribed by the lapse of one year from the commission of the offence. An action for the recovery on an open account is prescribed by three years. A PPEAL from the District Court, Parish of Lafourche, Gates, J. Bush & Goode, for plaintiff and appellee. R. D. Jordan, for defendant and appellant. HOWELL, J. Plaintiff claims the value of four hogsheads of sugar and Williams v. Greiner. three hundred and twenty barrels of corn, alleged to have been taken and carried away from his plantation, without his consent, by the defendant, and appropriated to the use of the latter, in the months of November and December, 1862. The defendant, besides a general and special defence, pleads the prescriptions of one and three years. Judgment was rendered against him, and he has appealed. We think the plea of prescription should have been maintained. The alleged taking and carrying away occurred between the 3d and the 12th or 15th of November, 1862, and citation in this suit, was served on defendant on the 28th of November, 1865. If the action is considered as one in damages for a tort, in taking and appropriating personal property, as set out in the petition, it is prescibed by one year. If it be viewed as a suit upon an open account, it is prescribed by three years, which elapsed before the service of citation herein. It is therefore ordered that the judgment appealed from be reversed, and that there be judgment for defendant, with costs in both courts. No. 1173.-A. J. DELAPORTE, Admr. v. A. BOURG, Sheriff, et als. Where judgment has been rendered in the District Court, before emancipation, for the enforcement of payment for a slave, the Supreme Court will not now affirm, neither will they reverse said judgment, but will simply dismiss the appeal. The doctrine in the case of Wainwright v. Brilges, (19 A. 234, ) reaffirmed. A PPEAL from the District Court, Parish of Terrebonne, Gates, J. Burguierès & Blake and F. S. Goode, for plaintiff and appellee. Louis Bush, for R. Patterson & Co. HOWELL, J. In 1860, R. Patterson & Co., appellants, being the holders of a written obligation for a portion of the price of certain slaves, secured by mortgage, instituted thereon a hypothecary action against the third possessor, obtained judgment recognizing a mortgage on the said slaves, and caused one of them to be seized. The plaintiff, as administrator of the debtor, enjoined the sale on grounds which it is unnecessary to notice. In 1865, the appellants answered the petition of injunction, claiming the usual damages, and the value of the slave as special damages on the ground that, but for the injunction, (which issued illegally,) they would have realized their claim. Upon trial the injunction was dissolved, without damages. According to the doctrine settled in the case of Wainwright v. Bridges, 19 A. 234, and reaffirmed in several subsequent cases, the obligation in the suit enjoined cannot be enforced, and there being no such property to be sold, it would be useless to perpetuate the injunction. On the other hand, we cannot condemn the plaintiff to pay damages for arresting the execution of an obligation which cannot be enforced. We conclude therefore, that the demand of the appellants for damages cannot be allowed, nor the prayer of the plaintiff to perpetuate the injunction be granted. We must dispose of this appeal as we did in the case of Henderson v. Montgomery, 18 A. 211, in which a similar question arose. It is therefore ordered that the appeal herein be dismissed, with costs. Kirtland v. Harris. No. 1560.-MAX BOURGEOIS, Administrator, v. BILLIN & PERKINS. Where the consideration of a promissory note is shown to be the price of a slave, payment cannot be judicially enforced. The doctrine in the case of Wainwright v. Bridges, (19 An. 234, ) reaffirmed. Α PPEAL from the District Court, Parish of Lafourche, Gates, J. W. Hall, for plaintiff and appellant. Blake, for defendants and appellees. Belcher & Beattie, and E. W. HOWELL, J. This is an action on a promissory note, the consideration of which is shown to have been the value of a slave; and for the reasons given in the case of Wainwright v. Bridges, 19 A. 234, the judgment of the District Court is affirmed. No. 101.-J. B. KIRTLAND v. Wм. H. HARRIS. Where the defendant, sued as endorser on a promissory note, propounds interrogatories to plaintiff, a non-resident, on facts and articles, the law requires that they must be answered under a commission, and if the plaintiff make answers responsive to the questions asked, without a commission, they will be excluded on trial. Where a commission has issued according to law to take the answers of plaintiff, a non-resident, to interrogatories, and it is not shown that sufficient time has not elapsed for the return of the commission, the fact that it is not returned is not good ground for a continuance of the cause. A' PPEAL from the Distict Court, Parish of Carroll, Farrar, J. Sparrow & Montgomery, for plaintiff and appellee. W. G. Wyly, for defendant and appellant. HOWELL, J. The defendant is sued as payee and endorser of a bill of exchange. The answer is a general denial, which afterward is amended by propounding interrogatories on facts and articles to plaintiff. At the trial defendant moved for a continuance on the ground that the commission to take the answers of plaintiff, residing out of the State, had not been returned; the counsel of plaintiff then offered, as a substitute, the answers of said Kirtland, taken without a commission in Memphis, Tennessee, responsive to the interrogatories, which the Court received in evidence, and defendant reserved a bill of exceptions. The admission of the answers so taken was irregular. The statute of 10th February, 1843, requires specially, "that when the party interrogated resides out of the State, his answers shall be taken by commission." It is the duty of his counsel in the cause to obtain the commission for the purpose, and have it executed according to law. But we do not think the bill of exceptions presents a legal ground for a continuance. It does not appear that sufficient time had not been allowed for the party interrogated to answer. What his remedy was, under the circumstances, is not for us to suggest. All the advantage he can now claim at our hands is to exclude the answers upon technical objections, as the plaintiff seems to have intended honestly to answer the interrogatories. Without these answers there is sufficient evidence to make out plaintiff's case. The bill of exchange, the protest and the evidence as to the notice of the dishonor, establish defendant's liability as endorser. We are fully satisfied that he had notice, as he acknowledged the receipt of the letter containing it. Judgment affirmed. Darrive et als. v. Key et als. No.1598.-CAROLINE AND HELENA DURRIVE; CORALIE HARRIS AND HUSBAND; FELIX A. DUCROS AND GENERES; EDMOND SONIAT DUFORSAT et als. v. PHILIP B. AND MARIA L. KEY.-Consolidated Cases. Mortgages are stricti juris, and cannot be extended by implication to cover obligations other than those mentioned in the act. Philip B. and Maria L. Key executed two acts of mortgage on real property in favor of Edward Durrive & Co., of the city of New Orleans, for the sum of thirty-two thousand dollars, in the aggregate, and authorizing said mortgagors to draw on the mortgagees from time to time, as they may require the same, with the understanding that the total amount of their indebtedness shall never exceed at any one time the sum of thirty-two thousand dollars, to be evidenced by the account current of such advances, to be kept by said firm. After the morgage was executed, the mortgagors executed a large number of notes, to their own order, by them endorsed, which were delivered to Edward Durrive & Co. and by them endorsed and negotiated, and the net proceeds credited to Philip B, and Maria L, Key in the account current. These notes, which subsequently fell into the hands of third parties, plaintiffs in this cause now seek to make the property mortgaged subject to these notes. The last account current shows that the amount of the mortgage, $32,000, has been overdrawn independent of the notes: Held-That, under this state of facts, Edward Durrive & Co. had no mortgage executed in their favor specially to secure the promissory notes thus executed by the mortgagors and could transfer none to the subsequent holders of the notes; that the holders of the notes have no mortgage on the property thus mortgaged to secure advances to the mortgagors, because it does not so specify that these notes are secured in the act of mortgage. A Parish of Iberville, Posey, J. PPEAL from the District Court, Samuel Matthews, for appellants. LABAUVE, J. This is a contest among the plaintiffs as holders respectively of certain notes executed by the defendants, and alleged to be secured by a mortgage on certain property of the defendants, and in regard to the preference or rank of mortgage. The District Court, having decided that the plaintiffs were all concurrent mortgage creditors, and that their claims, which were liquidated by judgments, should be paid out of the proceeds of the mortgaged property in the proportions they respectively bear to the whole; the plaintiffs in the first cases, Nos. 173 and 180, took an appeal to this Court. Philip B. and Maria L. Key, by two acts of mortgages, one passed before Joseph Pardo, June the 25th, 1859, and the other, before Adolphe Grass, on the 15th June, 1860, mortgaged their plantation to Edward Durrive & Co., in the one act, to the extent of $12,000, and in the other, to the extent of $20,000, for the following consideration, to-wit: "Whereas Edward Durrive & Co., of the city of New Orleans, have agreed to make advances in cash for the use and benefit of Philip B. and Maria L. Key, from time to time, as they may require the same, upon the drafts of the said Philip B. Key, drawn in his own name and that of his mother, Mrs. Maria L. Key, on the said Edward Durrive & Co., with the understanding that the total amount of their indebtedness to the said firm shall never exceed at any one time the sum of twenty thousand dollars, (as expressed in one act, and twelve thousand dollars as expressed in the other,) to be evidenced by the account current of such advances, to be kept by the said firm, and all which advances are to bear interest at the rate of eight per cent. per annum, until reimbursed by the said Philip B. and Maria L. Key, and in order to secure the said Edward Durrive & Co. the full reimbursement of all such advances and interest and attorney's fees, the said Philip B. and Maria L. Key do specially mortgage and hypothecate, etc." Here follows the description of the property mortgaged, Durrive et als. v. Key et als. Upon these securities it appears from a current account between the parties to these acts, and introduced in evidence, commencing on the 31st May, 1861, and closed on the 31st August, 1862, that the defendants executed a large number of notes to their own order, and by them endorsed, which were delivered to Edward Durrive & Co., who also endorsed and negotiated them, and the net proceeds were credited in the current account to said defendants; that they also sent to market sugar and molasses which were sold by said Edward Durrive & Co., and put to the credit of said defendants; and Edward Durrive & Co. also received for defendents, proceeds of property at Carrollton, $5000, which was placed to the credit of defendents, amounting in all to.... .$43,531 76 That the debit side of the account consisting in notes, drafts, money, supplies, &c., amounting to..... $84,152 90 Left a balance due E. Durrive & Co. of.......... .$10,621 14 On the 31st August, 1862, the said E. Durrive & Co., retained fourteen notes of the defendants and which figured on the debit side, and credited them with the same, amounting to,. $34,850 00 Leaving still due a balance of...... . $5,771 14 So, that on that day, the defendants owed really to E. Durrive & Co., in cash and their fourteen notes, the above balance of $10,621 14. The notes sued upon, amounting to $20,550, being a part of the fourteen above mentioned, are also charged to debit of said defendants, and comprised in the said sum of $84,152 90. They were negotiated and transferred respectively to the plaintiffs by said Edward Durrive & Co., with a subrogation to their mortgage. The question is: Are the notes sued upon, secured by the mortgage given by defendants to Edward Durrive & Co. ? It is clear that this mortgage was not granted to secure any distinct and separate advances, drafts or any thing else charged on the debit side of the account current between the parties, but to guarantee the balance which might be due the mortgagees. The total amount of defendants' indebtedness to Durrive & Co. was not to exceed at any one time the sum of $32,000, to be evidenced by the account current of such advances; this shows that the indebtedness of the mortgagors, should result from the balancing of the account, and that it is only then that it would be known. The account in evidence commences on the debit side, by charg ing the defendants with a balance of $1,620 73, showing that another and former account had already been balanced, and this balance is merged into a new account current. These notes are not more secured by the mortgage than any other item charged to the debit, amounting altogether to $84,152 90, when said mortgage only secured $32,000. Mortgages are stricti juris; they cannot be extended by implication to secure any other obligation than that expressly mentioned. 11 An. 175. This mortgage necessarily contemplated that the balance found due by the defendants, was secured by it, and not each and every item of the account. 7 An. 298. We conclude that Edward Durrive & Co., had no mortgage to secure |