text:
    B. Saloy v. P. E. Chexnaidre.
    Tho Act of 1844, which gives to tho survivor tho usufruct of the community property, does not dispense tho party who claims tho benefit of its provisions from having an inventory taken.
    A widow in community who, before she has qualified as administratrix, or tutrix, stipulates in writing for tho extension of a debt, and makes payments upon it, is presumed to have accepted the community, and her subsequent ronunciation of it, on her qualifying as tutrix and administratrix, will not avail her in a suit brought upon the debt which she had acknowledged, to hold her liable for it as partner in tho community.
    The tutrix and widow in community administers the succession only so long as it is not entrusted to an administrator ; and when her power over the succession is superseded by tho appointment of an administrator, in order to bind the succession for a debt, the new representative of tho samo should be made a party.
    A mortgage being indivisible and only accessory to the debt, a decree cannot properly bo rendered for tho sale of the property mortgaged, in an action via ordinaria, without parties before tho court against whom a judgment may he rendered for the whole debt.
    PPEAL from the Second District Court of New Orleans, Morgan, J.
    XA. E. Filleul, for plaintiff, if. R. Grandmont, for defendant and appellant.
   Merrick, O. J.

'This is an action via ordinaria, to subject tho mortgaged property to the payment of the debt of P. E. Chexnaidre, deceased, and to obtain judgment against the widow in community, in her individual capacity, for one-half, and against her, as tutrix for her minor children, for the other half. Judgment having been rendered against the defendant individually, and as tutrix, she appeals.

The mortgagor, P. E. Chexnaidre, died in February, 1855. The widow took no steps to procure an inventory or qualify as tutrix, until August, 1858. In the interval she appears to have retained possession of the property. She made an arrangement each year for the prolongation of the term for the payment of the note in question, and paid one hundred dollars in part satisfaction of the same, besides paying the annual interest.

Having subsequently obtained letters of tutorship and administration, and having renounced the community, the question is raised, whether her renunciation can now avail her, or whether she is personally bound for one-half of the debts of the community.

It is urged, that her neglect to take an inventory cannot prejudice her, because she was entitled to the usufruct of the property under the Act of 1844. Without undertaking to decide whether the mere neglect of a widow in community to take an inventory will render her chargeable for one-half of the debts, we observe that the Act of 1844 does not dispense the party who claims the benefit of that statute, from taking an inventory. C. C. 550 ; Neely v. Stokes, 13 An.

In this case, the widow not only remained in possession of the estate without an inventory, but before she had qualified as tutrix, or as administratrix, she stipulated in writing for the extension of the debt of the succession, and made payments upon the same. She must therefore be presumed, in the absence of explanatory proof, to have acted in the only capacity in which she had authority to act, viz, as partner in community, and she is bound as such. O. O. 98T, 988, 990, 995.

At the time the suit was commenced, the widow had qualified as tutrix, but had not been appointed administratrix. It was, therefore, properly commenced, but in order to obtain a judgment against the succession, it hecttme' necessary subsequently that the administratrix should be made a party. The tutrix and'. ■widow in community administers the succession only so long as it is not entrusted to an administrator or administratrix. So-soon as an administrix is appointed,, the tutrix’s power over the succession is superseded1, and in order to bind the succession for a debt, the new representative of the1 same- should be made a party.. C. P. 976; 2 An. 462 ; 3 An. 503 ; C. C. 1051; 12 32 An. 345.

The judgment against the defendant,, as tutrix of her minor cMHren, does not,, therefore, bind the succession, and could only be' enforced against such other property as the minors may happen to owm Now, as' the law accepts the succession for the minors with the benefit of inventory, a judgment ought not to be-rendered in this form, which will bind their estates' generally, and which may be1 enforced by an execution.

The judgment also compels the widow to-pay more'than one-half of the debt’,, for she is not allowed a credit upon her onediulf for1 the payment which she has: made.

It is somewhat inconsistent to charge her; as' widow in community, with one-1half of the debts of the succession, because the'payment made' by her could'only have been made in that capacity, and then not to> allow her a< credit for tlie-payment in the same capacity.

We think the widow is entitled to the credit of one-hundred'dollars-on¡ her proportion of the debt.

The action is via ordinaria, and plaintiff demands a judgment against his'debtors, and also a decree that the m ortga.ged property- be- sold to satisfy the debt. In-this respeet, the case differs from the case of McCalop v. Flucker's Heirs; 12 An. 551, where executory process issued, and where' the-notices- were served' on the' tutrix and widow in community before she had qualified' as-' administratrix, but-did not beeome void for that reason. The wi'dbw in'that case'took the appeal as1 administratrix, and the subsequent notices were' doubtless served upon heras; such. 12 An. 345.

The mortgage being indivisible and only accessory to-the debt, a decree cannot-properly be rendered for the sale of the property,, in: this-form of action, with out-parties before the court against whom a judgment maybe rendered for the whole' debt. C. P. 67. It is in this sense that a mortgage-is:indivisible. C. P. 66, 67; C. C. 1382, 2108.

We think the case ought to be remanded for a- new trial, with leave to- the1 plaintiff to amend by making the administratrix a party defendant.

It is, therefore, ordered, adjudged and decreed by the court, that the'jud^ment of the lower court be avoided and reversed, and! the- case-be remanded,to the-lower court for further proceedings and a new trial,,the-plainti£fi'ha.v>ing. leavo-to> amend, and he paying the costs of the appeal.


source: Caselaw Access Project

author: Merrick, C. J. Merrick, C. J.

license: Public Domain

text:
    James A. Scuddy v. W. A. Shaffer—McMaster, Warrantor.
    Au appeal will not bo dismissed because the warrantor has not been made a party to the appeal, where the defendant has abandoned all right of appeal agaiust his warrantor.
    The judgment of the lower court was not reversed, because the judge refused to compel experts to report after the expiration of the time appointed for them to report. In a case of this kind, it was a matter of discretion with the judge whether he would do so, or leave the parties to the benefit of the testimony of the experts before the jury.
    PPEAL from the District Court of the Parish of Terrebonne, Roman, J.
    XJl Beatty c6 Bush, for plaintiff. Connelly & Rightor, for defendant and appellant.
   Merrick, C. J.

The plaintiff has moved to dismiss the appeal taken by the defendant, Shaffer, because he has not made his warrantor a party to the same. The motion appears to be sustained by the authorities. See Williams v. Courtney, 9 An. 99 ; Oliver v. Williams, 12 Rob. 180 ; Blanc v. Cousin, 8 An. 72 ; Hewson v. Creswell, 10 An. 232.

It is, therefore, ordered, adjudged and decreed by the court, that the appeal in this case be dismissed at the costs of the appellant.

Same Case — -On a Re-hearing.

Merrick, C. J.

A re hearing having been’granted in this case, on a reconsideration of the question, we think the appeal may be maintained, as we understand the defendant has abandoned all right of appeal against his warrantor.

The case was before this court on the question of title in 1855, and is reported in 10 An. 133. The question now presented grows out of the improvements and rents.

There is a bill of exception to the refusal of the District Court to compel the experts to report after the expiration of the time appointed for their report. We cannot say that the judge erred. It was a matter of discretion with him whether, in a case of this kind, he would do so, or leave to the parties the benefit of the testimony of the experts before the jury.

On the merits, there is some conflict of testimony, and some of it appears to have been disregarded by the jury. But looking to the situation of the land and the proof, we can safely say that the improvements have benefited plaintiff’s place in a sum equal to the value of the rent while in possession of defendant.

It is, therefoi'e, ordered, that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of the defendant in plaintiff’s original demand, and in favor of the plaintiff on defendant’s reconventional demand, and that the plaintiff pay the costs in both courts.

Land, J., absent.


author: Merrick, C. J.

text:
    State v. James Mullen.
    In a capital caso it is competent for tlie State to show the disqualification of a juror by interrogating tlie juror himself as to any conscientious s imples he may have against inflicting the punishment of death.
    The Article of tlie Constitution which requires prosecutions to be by indictment or information, does not prevent tho Legislature from prescribing the forms of such instruments.
    The definition of the offence of murder, as known under the common law of England, is tho true definition of tho crime of willful murder, tho ] 'unishmont of which is provided for by the first section of the Act of tho Legislature of 1855, relative to crimes and offences.
    If A threatens to take the life of #, or to do him great bodily harm, and B being informed of tho threat, arms himself for tho true and sole mrposc of self-protection, and tho parties subsequently meet without design, and A draws a deadlj weapon and approaches B with the apparent intention to assault him with it, and B believes that he is in danger of his life or great bodily harm, and has no way of avoiding his adversary, advances upon him and kills him, the lolling is justifiable in self de-
    But if A threatens B with personal violence, and tho threat is communicated to B, and B thereupon arms himself with a deadly weapon, and meeting A lolls him, while A is not making any hostile demonstration against B} the killing is wilful, deliberate, malicious, and is murder.
    Voluntary drunkenness, when no provocation Ins been given, furnishes no excuse for the act of killing another.
    from the First District Court of New Orleans, Hunt, J.

      E. W. Motee, Attorney General, for the State. T. J. Durant, for the appellant.
   Merrick, C. J.

The accused having been convicted of the murder of one James McQlone, and sentenced to suffer the penalty of death, prosecutes this ap-. peal.

lie relies for a reversal of the judgment upon several supposed erroneous rulings of the District Court.

1. The first which he presents to our consideration is contained in a bill of exception taken to the interrogatory propounded by the Attorney General to the two jurors, James Bradly and Ii. Collier, “ whether they had conscientious scruples against finding a verdict which might result in the death of the prisoner” ?

The counsel for the accused does not controvert the right of the State to show aliunde the incompeteucy of the jvrors in this respect, but contends that the question relates to a matter of conscience, for which the juror is not responsible nor compelled to answer in a court of justice; that virtually, the question appeals to the juror’s conscience to ascertain whether he approves of the laws of his country and is calculated to bring him into discredit and contempt with his fellow-citizens.

The conscientious scruples against inflicting the punishment of death, is a good ground of challenge to a juror in a capital case, is now too well settled to be doubted. See State v. Kennedy, 8 Rob. 594; State v. Melvin, 11 An. 536 ; State v. Costello, 11 An. 284 ; State v. Nolan, 13 An. 276.

The general rule in regard to evidence is, that the best evidence of which the nature of the case admits, ought to be required. The juror; beyond all question, has a more certain knowledge of the condition of his belief, and can enlighten tho court on that subject, better than any other person. Why should not the court apply to the juror himself to ascertain the condition of his mind precisely as it does whore he is suspected of partiality or prejudice ?

It is said, because it will degrade the juror and because it is a matter of conscience and belief beyond the control of the juror, about which he ought not to be questioned.

The first of these objections appears to us to be unfounded in fact. We doubt whether it would produce any effect upon the juror in public estimation.

In respect to the other objection, it is true that the objection to disqualify a witness on the ground of a want of a religious faith, ought to be proven aliunde. But then the rule may have originated in the supposition, that if the witness wore really unworthy of evidence on account of his atheism, he ought not to be trusted to declare what his religious faith is. That the party who makes a charge, carrying with it some degree of odium, ought to be held to be consistent himself and required to prove his charge aliunde.

But the question propounded by the Attorney General to the jurors in this case, does not assume that they are wanting in a religious belief, or a respect to the laws of the land, but simply inquires, whether there is any mental obstacle which will prevent an impartial discharge of their duties as jurors in the particular case for which they are summoned. Moreover, it would Occasion great inconvenience to establish the rule contended for, and a formal objection, supported by the oaths of other witnesses, would be much more objectionable to the feelings of the jurors, than to submit the question at once to the juror himself. If the juror does not object to answer, the accused has but little reason to complain, because the State has adduced the most satisfactory evidence on the point to be decided. See People v. Damon, 13 Wendall, 351; State v. Jewell, 3 Rob. 583; Main State Reports, Pierce v. State, 13 ; N. C. 537, 556 ; Clore’s case, 8 Grattan, 606; Gross v. State, 2 Garter’s Ind. 329 ; Jones v. State, 2 Blackf. 475 ; Fletcher v. State, 6 Humph. 249 ; U. S. v. Fries, 3 Dall. 517 ; Com. v. Knepp, 10 Pick. 480, note — for cases where the juror was interrogated.

II. It is next objected, that the indictment does not show that the deceased died within a year and a day after the wound was inflicted, as required at common law. The indictment is framed as required by the third section of the Act of 1855, p. 172, and charges, that on the 28th day of July, 1858, the prisoner, at the parish of Orleans, &c., did feloniously, and of his malice aforethought, kill and murder one James McGlone. The first paragraph of the third section of the Act of 1855, it is true, declares, that in an indictment for murder or manslaughter, it shall not be necessary to set forth the manner or the means by which the death of the deceased was caused, but we think this special provision does not limit what immediately follows, wherein the lawgiver declares: That “ it shall be sufficient in every indictment for murder, to charge that the defendant did feloniously, willfully, and of his malice aforethought, kill and murder the deceased.” The indictment having followed the statute is sufficient.

If the prisoner killed the deceased on the 28th day of July, 1858, he must, of course, have died the same day. The Article of the Constitution, which requires prosecutions to be by indictment or information, does not prevent the Legislature from prescribing the forms of such instruments. It only means that the charge against the accused shall be preferred by a Grand Jury in the form of an indictment, or in an information to be filed by the proper officer. Art. 103 Const.

III. The second section of the Act of 1855, p. 130, which declares that there shall be no crime known under the name of murder in the second degree, and authorizes the jury to find the prisoner guilty of manslaughter, does not confine the crime of murder to cases where the homicide is perpetuated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, as was provided by the Act of July 3d, 1805, but leaves the definition of the offence as defined and known under the common law of England. The first section of the Act of 1855, is almost a literal rcénactment of the third section of the Act of 23d of January, 1805. It provides, that whosoever shall commit the crime of willful murder, on conviction thereof, shall suffer death. Act of 1855, p. 130 ; 2 Martin’s Dig. 228 ; Bullard & Curry, 242.

By the Act of 1805, still in force, it is provided, that all crimes, offences and misdemeanors, shall be taken, intended and construed, according to and in conformity with the common law of England. To ascertain, then, what constitutes the crime of willful murder, we must have recourse to writers on the common law. The District Judge did not, therefore, err in refusing to charge the jury, that the word “ willful,” was used in the statute in the sense of “ premeditated,” and that the Legislature intended to modify the crime as known at common law.

IV. Neither can we say that he erred, to the prejudice of the accused, on the two other points, 5th and 6th, requested by the counsel for the accused, to be given in charge to the jury. We will copy the charge requested and charge as given.

The Judge was requested to charge, 5th : “That if the jury find from the evidence, that there had been treats of personal violence by the deceased towards the prisoner, which had been communicated to the prisoner before the killing, and the jury think that these threats were sufficient to cause Mullen to think that McGlone was about to assail his life, or thought that his life was in danger, then, in law, there was no malice in the prisoner and he cannot be found guilty of murder.”

The Judge said : The charge asked for on this point, is not sufficiently distinct. The court charges, if McGlone threatened to take Mullen’s life, or todo him great bodily harm, and Mullen was informed of the threat, and thereupon armed himself for the true and sole purpose of self-protection, and McGlone and Mullen subsequently met, without design, and McGlone drew a deadly weapon and approached Mullen, with the apparent intention to assault Mm with it, and Mullen believed he was in danger of his life, or great bodily harm, and had no way of avoiding his adversary, and advanced upon McGlone and slew him, and the jury are satisfied of these facts, and are of opinion that Mullen acted upon-'a bona fide reasonable ground of apprehension as stated, then the killing was justifiable in self-defence, and the jury are bound to acquit the defendant. But if McGlone threatened Mullen with personal violence, and assault and battery, or great bodily harm, and the threat was communicated to Mullen, and Mullen thereupon armed himself with a deadly weapon and met McGlone and slew him, while Mc-Glone was not making any hostile demonstration against him, the killing was willful, deliberate and malicious, and is murder.”

The 6th point requested to be given in charge to the jury was : “ That if the jury believe from the evidence, that Mullen, when he committed the act with which he is charged, was intoxicated, they must give due weight to this fact in determining not only the question of premeditation, but also in juging whether the prisoner acted from previous malice or from sudden impulse, and they must also judge whether this intoxication did not excite a belief in the mind of the prinsoner, that he was about to be attacked, and that any of these circumstances will go to do away with the legal presumption of malice.”

The District J udge charged on the 6th point, that: “ The instruction asked for, refers to a doctrine on the subject of murder, heretofore partly considered,” (viz, in defining willful murder,) and to be further treated of by the court, and is understood to look to the killing as resulting immediately from a state of voluntary intoxication.

“Voluntary drunkenness cannot excuse from the commission of a crime; and an offender, under the influence of intoxication, can derive no privilege from a madness voluntarily contracted, but is answerable to law, equally as if he had been in the full possession of his faculties at the time. In general, insanity is an excuse for the commission of every crime, because the party has not the possession of that reason which includes responsibility; an exception is, when the crime is committed by a party while in a fit of intoxication, the law not permitting a man to avail himself of the excuse of his own gross vice and misconduct, to shelter himself from the legal consequences of such crime. 5 Mason, 29, J. Story.”

“ Drunkenness may be taken into consideration in cases where, what the law deems sufficient provocation, has been given, because the question is, in such cases, whether the fatal act is to be attributed to the passion of anger, excited by the previous provocation, and that passion is more easily excited in a person when in a state of intoxication, than when he has the full possession of all his faculties. But where no such provocation has been given, drunkenness furnishes no excuse.”

“ A killing by the prisoner under a belief springing immediately from his volun< tary drunkenness, that he was about to be attacked, when that belief was entirely unfounded in fact and in reason, and when the jury are of the opinion that he had no reasonable ground for the belief, is not a circumstance that can go to do away with the legal presumption of malice.” See Bishop’s Criminal Law, sec. 300, p. 238.

V. The seventh point excepted to, has already been considered by us under the second head in this opinion. We discover no error in the charge, even if the validity of the indictment be considered a proper matter to be given in charge to the jury.

Our examination of this case has not enabled us to discover any error of law to the prejudice of the prisoner.

The judgment must be affirmed.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be affirmed ; and that the defendant and appellant pay the costs of the appeal.


author: Land, J.

text:
    John Clark v. A. M. Holbrook et al.
    When a supplemental petition is filed, in which a larger amount is claimed than was demanded in the original petition, such amendment is material, and should be served upon the defendant, and regularly put at issue; and when this is not done, it will be presumed that plaintiff has waived or abandoned it.
    PPEAL from the Fifth District Court of New Orleans, Eggleston, J.
    . G. 8. Lacy, for plaintiff. L. Madison Day, for defendants and appellants.
   Land, J.

This suit is for the recovery of damages for an alleged violation of contract. The defendants, through their treasurer, R. Tenbroeclc, entered into a contract with the plaintiff, to build on the Metairie Bace Course, a stand, two sets of stables, and a cistern, and obligated themselves to pay to him five hundred dollars, “ when there was work enough done to amount to seven hundred and fifty dollars," and for the balance of the price of the work stipulated, that plaintiff should have “ free use of the Race Course, stands, stables, gates, &c., for each week succeeding the regular meetings of the Metairie Jockey Club."

The regular meeting of the Club for the spring of 1855, commenced on Monday, the 9th day of April, and the defendants having refused to permit the plaintiff to have the free use of the course, stand, stables, &c., on the following Monday, April I6th, 1855, this suit was instituted to recover damages for the violation of contract on the day last mentioned.

We are satisfied from the evidence, that the first week of the regular spring meeting, ended on Sunday, April 15th, and that the plaintiff was entitled to the use of the course on the Monday following, when he was deprived of it by the defendants.

In his original petition, the plaintiff claimed the sum of twelve hundred dollars as the amount of damage sustained; to which the defendants filed an answer, denying all the allegations, except that of the execution of the contract, which was expressly admitted. The answer was filed May 11th, 1855, and on the 2d of May, 1856, the plaintiff filed a supplemental petition, in which he alleged, that the damage sustained by him, on account of the acts of the defendants, as set forth in the original petition, amounts to the sum of twenty-five hundred dollars, and prayed for judgment against the defendants in solido, for the same. The new demand of thirteen hundred dollars, contained in the supplemental petition, "was never put at issue, either tacitly by a default or expressly by the answer of the defendants. The amendment was material, and should have been served on the defendants and regularly put at issue, and as it was not done, the plaintiff is presumed to have waived or abandoned it.

The judgment of the lower court was against the defendants for the sum of two thousand dollars as damages, with five per cent, per annum interest from the 1st of May, 1855. As the sum claimed in the original petition was only twelve hundred dollars, and as the supplemental petition was never put at issue, the judgment is erroneous.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed; and it is now ordered, adjudged and decreed, that the plaintiff do have and recover jointly from the defendants, A. M. Holbrook, R. A. Porter, R. Tenbroeclc, James Burnham, Buncan F. Kenner, and H. J. Ramsey, the sum of twelve hundred dollars, as damages, with five per cent, per annum interest thereon, from the 1st of May, 1855, and the costs of the lower court. It is farther ordered and decreed, that the plaintiff pay the costs of this appeal.


author: Cole, J.

text:
    W. A. Shaffer v. J. A. Scuddy.
    Iii a petitory action, tlio defendant is bound to plead all tlio titles under which he claims to bo owner, and a final judgment rendered in favor of the plaintiff may be pleaded as res judicata, against any title which tho defendant was possessed of at the time, but omitted to plead.
    from the District Court of the Parish of Lafourche, Roman, J.

      é for plaintiff and appellant. Beatty <& Bush, for defendant.
   Cole, J.

On the 13th of May, 1858, W. A. Shaffer instituted tho present suit in the District Court of Lafourche, claiming to be the owner of lots 5 and 6, in section No. 71, T. 17, R. 16, East, by purchase from William, J. Minor, on the 23d of December, 1851, and praying “ that he have judgment against said Scuddy, quieting him in his title, possession and enjoyment of the aforesaid lots five and six, in section 71, T. 17, R. 16, East; that said Scuddy be forever enjoined from setting up title to said tract of land and disturbing your petitioner in his possession and enjoyment of the same.”

To this action Scuddy filed two peremptory exceptions and an answer.

The exceptions were sustained, a.nd the action was dismissed.

Our view of this caso renders it necessary to consider but one of the exceptions, which is the plea of res judicata, founded on the suit of Shaffer v. Scuddy, 10 An. 134.

It is admitted that the thing demanded in the present suit and in that in 10 th Annual is the same.

It is contended, however, that the cause of action is not the same, because in the former action reported in 10 An. 134, Shaffer offered two titles in opposition to that of Scuddy, viz : one derived from Madelaine Billio, and the other obtained by Shaffer from the State of Louisiana; and that he bases this action upon a title derived from W. J. Minor.

In the former suit, Scuddy represented himself to be the owner of the land now in contestation, and prayed to be declared the owner and proprietor of the same.

The judgment of this court decreed Scuddy to be its owner, and also that he recover possession from Shaffer, of this tract of land, and that the case bo remanded to be tried as to the claims of Shaffer against his warrantor. 10 An., p. 136.

In the former suit Scuddy, then, declared himself to be the owner of the land ; but he could not be the real proprietor, if there existed an outstanding title superior to Ms. In proclaiming himself to be the owner, Scuddy in fact averred Ms title to be of higher rank than any other, and particularly, than any held by Shaffer, whom he directly sued as being in wrongful possession of the land.

The former suit was filed on the 8th of April, 1851; judgment therein was rendered by the District Court on the 24th of June, 1854, and by this court on the 9th of January, 1855. Shaffer avers to have derived his title from W. J. Minor on the 23d of December, 1851. Now, as the issue in the former suit was, whether Scuddy or Shaffer was the true owner of this land, it was the duty of Shaffer to have plead not only the titles derived from Billio and the State of Louisiana, but also, that derived from Minor. As the last was not plead, it must be presumed that Shaffer had no confidence in the same.

When an issue is made between the parties to a suit, each is presumed to adduce all the evidence in his power to enable the issue to be determined correctly.

If one of the parties neglects or does not wish to introduce a part of his evidence when it is known to him, the issue cannot, after a final decision, be ag’ain opened to enable him to do so. If this were possible, litigation would be uselessly continued. If a party has four titles, he could institute in succession four different suits, instead of having the issue of ownership terminated in one suit. C. C. 226?); Williams v. Close, 12 An. 878. Even if the answer of Shaffer had been filed in the former suit, previously to the purchase of the title of Minor, this would not have hindered him from amending his answer and pleading the title of Minor, for the issue was, whether Scuddy or Shaffer was the owner of the land, and the amendment would have been pertinent to the issue.

It is also argued, that even admitting the demand to have been between the same parties, still, that Shaffer does not appear in the same capacity in both suits. That in the first suit he acted as the vendee of McMasters ; in this, he acts as the vendee of Minor, and that in the former suit he was a mere formal and technical defendant in the case; McMasters, his warrantor, being the real defendant. Appellant relies upon Millaudon v. McDonough, 18 La. 103.

The record shows that Shaffer took an active part in the defence in the first suit; but even conceding that he did nothing therein, except to cite his warrantor to defend it, still he was one of the defendants. He was directly sued as being in possession of land belonging' to Scuddy. It was in the power of Shaffer to have plead the title of Minor, notwithstanding he had called McMasters in warranty. The latter was cited to defend the title he had sold to Shaffer, but not to maintain titles that Shaffer might have derived from other parties.

The call in warranty was merely one of the modes by which Shaffer could have defended the suit.

The issue of ownership contested not only the title derived from McMasters, but any other that Shaffer might have.

When a vendor of land is called in warranty by his vendee, in a suit in which plaintiff asserts himself to be the owner of the land, the vendee is as much a defendant as his warrantor. The latter is only called in to defend the title he has sold, whilst the vendee can defend his claim to the land not only by that derived from his warrantor, but by any titles he may have derived from other parties.

The warrantor is bound to defend the title he has sold, but the vendee can resist the ownership of plaintiff by any defence personal to himself and pertinent to the issue, and is thus a defendant as much as the warrantor. Besides, the vendee can defend the title derived from his warrantor, notwithstanding the latter has been called in to maintain it. In calling the warrantor, the vendee does not deprive himself of also upholding the title, that the former is called upon to protect.

Judgment affirmed, with costs of appeal.


author: Cole, J. Merrick, C. J.,

text:
    W. C. Jackson v. J. W. Hays.
    ■Whore a slave is sold with full guaranty, evidence is inadmissible which would contradict the written act of sale by showing that tho slave was not warranted against a particular vice.
    But to rebut the allegation of fraud and concealment, parol evidence may be received to show that at the time the sale was about to be passed the vendor had stated to the vondee that the slave had once run away from him.
    from the District Court of the Parish of Carroll, Farrar, J.

      Sparrow & Montgomery, for plaintiff and appellant. Goodrich & Defrance, for defendant.
   Cole, J.

Plaintiff purchased of defendant on 17th November, 1857, a slave, for which he gave his note for $1500, and afterwards took it up and gave therefor in part cash and for the balance his draft, which was afterwards protested. He represents in this suit that the slave who was named Bode, was a rebellious and dangerous character, addicted to running away. That the defendant well knew of his vices of character at the time of sale; but intending to deceive petitioner, he omitted to declare his vices. That about the 29th of December, 1857, this slave committed the crime of rape upon a white woman in the Parish of Carroll, for which he was regularly tried, condemned and executed, according to the laws of the State. That previous to the perpetration of the crime, and whilst he was still in the ownership and possession of Hays, his vendor, this slave was frequently in the habit of visiting and prowling at night around the house and premises of said white woman with a design which ended in the commission of the rape. That the defendant well knew of said visits and intentions of the slave, and omitted to inform petitioner thereof, whereby he was entrapped into the purchase of this slave and defrauded.

That he received from the State of Louisiana as the value of the slave an amount in cash equal to that paid by him to defendant, and prays for judgment for the draft or its value in money.

Defendant pleads the general denial, except that he sold the slave, and plaintiff was as fully advised of his character as he was. Ho prayed that the demand against him be rejected, and that judgment be rendered in his favor for the amount of the draft, costs of protest, and of suit. The District Court rendered judgment for the defendant as prayed for, and plaintiff has appealed.

In this court appellant relies principally upon the allegation, defendant knew that this slave intended to commit the crime of rape.

It is impossible, the appellee could have certainly known that this intention would be executed. It seems difficult to see how he could have discovered with certainty, even that such design existed in the mind of the slave, for the latter would hardly have informed his master of his intention.

The evidence is somewhat conflicting, but we can see no reason to differ from the conclusion of the District Judge. The white woman upon whom the rape was committed testified that the slave was never at her house at any time. Her husband also corroborated the testimony of his wife.

Upon the trial plaintiff’s counsel excepted to the ruling’ of the court, permitting the defendant’s counsel to prove the general character of his client, and also his character as to truth and veracity.

The court did not err.

The character of the defendant was directly attached by the plaintiff in charging him with a knowledge and concealment of the criminal design of the negro to commit a rape, and he was entitled to rebut, as far as possible, an accusation so serious and disgraceful in its nature by Ms general reputation, and also to rebut the testimony tending to discredit his veracity by his general reputation as to truth and veracity.

There is also a bill of exceptions by defendant to tho ruling of the court, refusing to permit him to jjrove by the notary who passed the act of sale, and by ( Hilliard, one of tho witnesses to the act, that the defendant had stated to plaintiff that the boy Dock had once run away from him, and he would not warrant him in that particular.

The court properly refused the admission of testimony to show that the defendant did not warrant the slave against running away, for that would have contradicted the written notarial act of sale, which contained a full guaranty.

• The court, however, erred in not allowing the defendant to prove he had stated to plaintiff at the time the sale was about to be passed, that this slave had once run away from him, in order to rebut the allegation in the petition of fraud and concealment by the defendant of the mce of running away.

This would not have contradicted the warranty in the act of sale, for a vendor may be willing to guaranty his slave against the habit of running- away, if he has been but once guilty of this vice.

Judgment affirmed, with costs of appeal.

Merrick, C. J.,

concurring. I 'concur in tho decree without expressing an opinion upon all the points decided by the majority of the court.


author: Voorhies, J.

text:
    R. S. Wailes, Wife, v. Smith C. Daniell.
    Decision in Harper v. Stanbrough, 2 An. 377, i ©-affirmed.
    Tho will of A. G., made in the State of Mississippi, where ho died, and where his estate was situated, contained the following clause: “ I give and bequeath to my grandson, White Turpin Pettit, and his heirs law/idly begotten, all the balance of my estate, real, personal and mixed, together with the rest and residue of which I may die possessed, to enure to and vest in the said White Turpin Pettit, on the day on which he shall hace attained the age of iwmty-cne years and not before, and in the event of the said IlHiite

      ■ Turpin Pettit dying before he shall have arrived at lauful age, as aforesaid, and leaving no heir of his own body, or in the event of his death at any time Viereafter, without lauful issue, then, and in such contingency or contingencies, J give, devise and bequeath, all the real and personal and mixed estate aforesaid, to Rebecca S. M. Wailes, daughter, and or, ly surviving child of my brother Leonard Covington, and wife of Benjamin L. G. Wailes, and to her heirs forever,” Held: That such a clause in a will is a substitution prohibited by our laws, and that negroes forming a part of the bequest having been removed to this State and sold here before the happening of the contingency by which the title was to vest in the testator’s niece, tho title of th s purchaser here could not be disturbed.
    from the Third District Court of Now Orleans, Duvigneaud, J.

      A. N. Ogden <fr Stansbury, for plaintiff. Benjamin, Bradford & Finney, for defendant and appellant.
   Voorhies, J.

The plaintiff and defendant are both residents of the State of Mississippi. The former sets up title to three slaves, — Jacob, Sam and Julienne,— in the latter’s possession in the State of Louisiana.

Alexander Covington, the plaintiff’s uncle, a resident of the Stale of Mississippi, left a will, in which is found the following clause :

“ I give and bequeath to my grandson, White Turpin Pettit, and his heirs lawfully begotten, all the balance of my estate, real, personal and mixed, together with the rest and residue of which I may die possessed, to enure to and vest in the said White Turpin Pettit, on the day on which he shall have attained the age of twenty-one years and not before, and in the event of the said White Turpin Pettit dying before he shall have arrived at lawful age, as aforesaid, and leaving no heir of his own body, or in the event of his death at any time thereafter, without lawful issue, then, and in such contingency or contingencies, I give, devise and bequeath, all the real and personal and mixed estate aforesaid, to Rebecca 8. if. Wailes, daughter, and only surviving child of my brother, Leonard Covington, and wife of Benjamin L. C. Wailes, and to her heirs forever.”

The legatee, White Turpin Pettit, arrived at the age of majority, altered his name into that of Turpin Covington. On the 7th day of January, 1855, he sold the negroes in controversy to the defendant, by act sous seing privé, passed in the city of New Orleans, where the slaves had been removed.

Turpin Covington having subsequently died, without leaving any lawful issue of his body, the plaintiff contends that the slaves in question vested in her, notwithstanding the transfer made by the deceased to the defendant.

The clause by which the testator bequeathed the residue of his estate to White Turpin Pettit, with the stipulation that, in case the latter died leaving no heirs, the property should vest in the plaintiff, is a substitution under our laws. C. C. 1507 ; 5 An. 552, J. E. Latiolais v. Solastie A. Roy; 7 An. R. 395, Succession of Franklin ; 9 An. R. p. 510, C. B. Sherrod & Co. v. D. E. Calleghan et als.; 10 An. 572, D. W. Murphy v. Executor of W. Cook.

But the plaintiff contends that the above disposition, however reprobated by our laws, is valid by the laws of Mississippi, where the last will was opened and probated; and that, inasmuch as the parties litigant are citizens of the latter State, and the property in question was situated in it at the time the will took effect, there can be no impropriety in giving effect to this devise, although the property be now situated in this State.

This same question was thoroughly investigated in the case of Harper v. Stansbrough, 2 An. 377. O. J. Eustis, the organ of the court, said : It is the attribute of every government to establish and regulate such modifications of the rights of property in things, within its jurisdiction, as the public interest requires. Testamentary substitutions are prohibited in this State. The prohibition is established in the interest of public order and State policy. They have always been held null by our courts. Nor does it appear material in relation to the nullity of the substitution as the basis of a title, whether the testamentary disposition acts upon the property within this State at the time of its taking effect, or subsequently on the translation of the property to this State. The effect which we give to our own laws on property within our jurisdiction is no more than that which is usual, particularly in relation to this description of property.”

It must be remarked that, in the case under consideration, the slaves were removed to Louisiana before the defendant purchased them, and before the title could have vested in the plaintiff by virtue of the will of her uncle, — at a time, therefore, that his vendor had the full ownership for himself and his heirs, subject, it is true, to be subsequently defeated in the State of Mississippi, by the happening of a contingency,—the vendor’s demise without leaving any heirs of his body.

The policy of our laws is to exclude substitutions and fidei commissa ; and, con. sequently, however valid may be in Mississippi the devise to the plaintiff, our courts cannot give it effect on properl y removed, and purchased, and held here, before the happening of the contingency, which puts an end to the first legatee’s riglits in order to vest the title in the remainderman. The cases of McCall v. White, 10 An. 577; of Holloman v. Holloman, 12 An. 607, and of Groves v. Nutt et als., 13 An. 117, are not in conflict with the case of Harper v. Stansbrough. In the latter case, the doctrine announced had no reference to cases where the title of the second devisee or remainderman had already vested before the removal of the property from another, to this State. The will having already had its effect in another State, it is evident that the subsequent translation of the property into Louisiana, could not defeat the acquired title.

It is, therefore, ordered and decreed, that the judgment of the District Oourt be avoided and reversed.

It is further ordered and decreed, that the plaintiff’s demand be rejected with costs.


author: Oole, J.

text:
    Michael Daily v. O. G. Newman et al.
    In a caso where the formalities required by law ’or the collection of taxes in the city of Jefferson, appear to have been substantially complied with, and a sale of a lot of ground was made by the Sheriff upon a judgment obtained by a proceeding in rent against the property upon which the tax was due—Held: That the purchaser could not be dispossessed by the owner of the property at the time the tax was levied, on the ground that the proper y was erroneously assessed in the name of one who was not the proprietor.
    ■Where taxes arc erroneously assessed, it is th \ duty of the tax payer to have the tableau of assessment corrected, if he so desires. The err >r in the assessment is a matter of defence of which the tax payer must avail himself, and the complaint comes too late, if made after judgment, and a sale of the taxed property.
    Technical objections to the mode of proceeding in suits, ought to be urged before judgment.
    A PPEAL from the District Oourt of the Parish of Jefferson, Burthe, J.

      R. K. Cutler, for plaintiff and appellant. J. H. VanDalson, for defendant.
   Oole, J.

This suit is instituted by plaintiff, to recover possession of a certain square of ground in faubourg Bouligny, in the city and parish of Jefferson ; said square being No. 102. It was purchased by plaintiff from F. W. Schmidt, on the 12th of December, 1851.

The defendant, Newman, bought the square of L. Cuthbert, who had purchased it from W. C. Wilson, and the latter bought the same at a public sale made by Fanning, then Sheriff of the parish of Jefferson, in a suit entitled, The Mayor, Aldermen and Inhabitants of the city of Jefferson against Square No. 102, in faubourg Bouligny, city of Jefferson, parish of Jefferson, assessed in the name of F. W. Schmidt.” This suit was for taxes for 1850 and 1852, both assessed in the name of F. W. Schmidt.

The corporation of the city of Jefferson proceeded against the lot by the proceeding- in rem, as provided in the section 20 of the Act of 1850. Session Acts, 1850, p. 00.

A curator ad hoc was appointed to represent the non-resident owner, and tlie formalities of the Act of 1850 appear to have been substantially complied with.

A full aud accurate description of the lot was given in the notices and advertisements of the sale thereof.

Plaintiff contends that the sale is without effect, because his name was not mentioned as the proprietor of the square, and because the taxes of 1852 were not assessed in his name, but in that of Schmidt.

The plaintiff, or his agent, knew that he owed taxes for 1852, and he could have applied to have the tableau of assessment amended.

Besides, the action was in rem, and the property was so accurately described in the advertisement, that no one could have been deceived as to the land that was seized. The owner was also represented by a curator ad hoc.

It was in the power of plaintiff to have objected on the ground, that the lot was not assessed in his name before the judgment and sale; but it is now too late, for he has neglected to avail himself of a defence which must have been known to him or his agent. Dutillet et als. v. Blanchard, ante p. 97.

It is also objected, that the law of 1850, regulating the mode of proceeding for the collection of taxes, was repealed by the Act of 1853. Session Acts of 1853, p. 222, $ 7 and 8.

This proceeding was in rem, a curator ad .hoc acted for plaintiff, and besides the description of the land was such as to give him full notice of the seizure. Under these circumstances, plaintiff cannot now avail himself of this objection.

Technical objections to the mode of proceeding in suits ought to be urged before judgment, otherwise there would be much danger in purchasing property at judicial sales.

This case differs from that of Zimmerman v. Bartchy, ante page 520. In that case, the illegality and nullity occurred after the judgment; the Sheriff having seized property which was not subject to seizure.

What occurs before judgment is generally unknown to the purchaser at judicial sales, whereas it can be seen from the fi. fa. by virtue of the authority of what court it has issued, and the purchaser is supposed to know the law, and whether the property seized can be legally sold to satisfy the judgment.

Judgment affirmed, with costs of appeal.

Buchanan, J., took no part in this case.

Land, J., absent.


author: Buchanan, J.

text:
    Edward L. Nimmo v. Robert K. Walker, Executor.
    Where one renders services for continuous years to another on his promises to provide in his will for the party rendering such services, and ho dies without making such provision, an action may he maintained for the value of the services.
    The promises in such a case having reference to the period of the promissor’s death, prescription is suspended until that time.
    A PPEAL from the District Court of the Parish of St. Bernard, Foulhouze, J.
    -ti. I. E. Morse, for plaintiff and appellant. Lea & Marr, for defendant.
   Buchanan, J.

The evidence in this case shows very clearly that the plaintiff was employed by the deceased, Baker Woodruff, to attend to his business, from 184G to 1855 ; and that Woodruff newer made him any compensation therefor ; but when spoken to on that subject, hCd out hopes of making him amends in his will. At some times promising, accoiding to the witnesses, to leave plaintiff the greater part of his property ; at others, to leave it to the plaintiff’s wife, who was Woodruff’s neice. These promises proved fallacious, inasmuch as it is admitted in argument that neither plaintiff nor his wife were mentioned in Wood-ruff’s will. In addition to the services rendered by plaintiff in attending to the business of Woodruff, it is proved that the latter, who was a butcher, lived during a great part of the time in plaintiff’s house, and (being in very infirm health) was nursed by plaintiff’s wife. The circumstances of this case differ from those of Rice and of Fink, relied upon by lefendant, in the essential particular, that the deceased recognized the right of plaintiff to compensation, and promised to make it at a future time.

These promises had reference to the period of Woodruff’s death; and it is but just and proper, to view prescription ¡is suspended until that time.

The acknowledgment of indebtedness for borrowed money, contained in the notarial act of the 7th of March, 1857, is not inconsistent with the claim now urged by plaintiff. That notarial act is a sale of various tracts of land south of Ited River, by Nimmo to Woodruff, amounting in the aggregate to seven hundred and eighteen acres, for the price of two thousand six hundred dollars, amount of borrowed money due by the vendor to the vendee, and to secure the greater part of which, viz, ¡¡¡>192 68, the vendor had a mortgage upon these same lands. This contract is represented in argument as a general settlement of accounts between the parties. But it has not that character. It is a settlement of particular items of account between the parties ; and a very advantageous settlement it was for the deceased, unless we are to presume that sugar lands in the Attakapas are worth no more than three dollars and a half per acre.

We have presented to us, in this case, a man who, with his wife, have consumed their youth in the service of a miserly valetudinarian, upon his deceitful promises to provide for them in his w ill; he having no forced heirs, and they being among his next of kind. The valuation of these services, by the witnesses, ranges from one thousand to two thousand dollars per annum. We will allow at the rate of twelve hundred dollars per annum for the length of time claimed.

This case presents various features of resemblance with that of Alexander v. Alexander, 12 An. 590.

It is, therefore, adjudged and decreed, that the judgment of the District Oourt be reversed ; and that the plaintiff rc-cover of defendant, in his capacity of testamentary executor of Baker Woodruff, deceased, the sum of ten thousand eight hundred dollars, to be paid in course of administration, with costs of both courts.

Ite-hearing refused.


author: Land, J. Merrick, O. J.,

text:
    Wright, Williams & Co. v. J. J. B. White.
    ■Where property has been attached and released on bond, a party claiming the property attached and bonded cannot do so by intervening in the suit between plaintiff and defendant; he must enforce his claim to the property against the person who has possession of it.
    Where a suit on an account was commenced by attachment in this State, and for the same cause of action was at the same time carried on and prosecuted to final judgment in the courts of Mississippi — Held: That the judgment thus obtained in Mississippi could bo substituted by way of amendment, as the cause of action in the Louisiana court, in place of the account, so as to maintain the attachment.
    PPEAL from the Fourth District Court of New Orleans, Price, J.
    iJL Clarice & Bayne, for plaintiffs and appellants. T. N. Pierce, for defendant. Mott & Fraser, for intervenors.
   Land, J.

This is an attachment suit for the recovery of nine thousand five hundred and nine dollars and thirty-two cents, with eight per cent, per annum interest from the 9th day of June, 1855, for money advanced in payment of defendant’s draft, given on a final settlement of his account with Hill, McLean & Co., his former factors.

One hundred and fifty-four hales of cotton wore attached as the property of the defendant, on board the steamboat Sallie Robinson, at the port of New Orleans, consigned in the name of P. O’Donnell to Oalcey, Hawkins <& Co.

The consignees, Oalcey, Hawkins <& Co., intervened in the suit, and claimed the cotton as the property of O’Donnell.

On the 25th of November, 1856, Oalcey, Hawkins & Co. obtained an order of court, permitting them to bond the cotton, and accordingly, on the 21th day of the same month gave bond and security as required by order of court.

On the same day, to-wit, the 21th of November, 1856, Rebecca J. White, the wife of the defendant, and Mrs. S. C. W. Faust filed their petition of intervention in this suit, and claimed the cotton attached as their joint, undivided, separate property.

To this petition of intervention the plaintiff' pleaded, in his answer thereto, the following peremptory exception, “ that the cotton claimed had been delivered on bond, anterior to the filing of the intervention, to Odkey, Hawkins <& Co., and is not now in court,” and prayed that the intervention be dismissed.

On the 29th of May, 1851, the plaintiff filed a supplementary petition, in which he alleged, that since the institution of this suit ho had obtained a judgment in the Circuit Court of Yazoo County, in the State of Mississippi, against the defendant, for the same subject-matters stated in the original petition filed in this cause, and prayed for judgment as in said original petition, and that defendant be cited to answer thereto.

After the filing of the supplemental petition, the attorney appointed to represent the defendant filed the following exception, “ that the original cause of action, if any existed, has been merged in the judgment rendered in the State of Mississippi and the proceedings therein had, as shown by the supplemental petition and documents annexed; that this court, by the said proceedings of plaintiff’s, has been divested of jurisdiction in the matters in controversy, and this suit should be dismissed at plaintiff’s costs. Defendant further pleads res judicata.”

The intervenors alsoffiled an exception to the supplemental petition, as follows : “ that the same is a change of the original cause of action, 'and is contrary to law, and further pleaded the exception of res judicata.".

First. The intervention of Oalcey, Hawkins é Co.”is unsustained by the evidence. It does not appear Donnell wasjthe owner of the cotton^attached, or that jt was even shipped with his knowledge or consent. Nor does it appear i hat he or the consignees were ingpossession of ¡the bill of lading prior to the attachment of the cotton by the plaintiff. This intervention, therefore, must be dismissed.

Second. The peremptory exception filed by the plaintiff should have been sustained. Tli<$¿>ond given by Oalcey, Hawkins & Co. was only a substitute for the property attached, with regard togí/¿e plaintiffs,.and not as to the intervenors, or third parties'claiming jtitle thereto.

The intervenors cannot avail themselves of the bond, and their remedy was against the property itself in the hands of the party having possession of it. Dow v. Kershaw, 18 La. 57; Beal v. Alexander, 1 Rob. 5277, 7 Rob. 349.

Third. The exception filed by the attorney appointed to represent the defendant should have been overruled. The plaintiff had the right, under the law of Louisiana, to sue the defendant in the courts of this State, and also in the courts of Mississippi at the same time, and/or the same cause of action. This right necessarily carries with it the accessory right to prosecute the suits in the courts of the two different States to final judgments on the merits. This right is remedial, and is intended to secure to the creditor all possible means for the collection of his debt, in different jurisdictions. If the exceptions filed on behalf of defendant were sufficient in law to dismiss the plaintiffs’ action, the right to institute separate actions in different States, for the same debt, would be nugatory; for so soon as a judgment should be obtained in one State, it could be made the means of dismissing the suit in the other, and thereby deprive the creditor of the fruits of his diligence in the undecided suit.

Conceding that the account sued on was merged in the Mississippi judgment, the debt was not thereby extinguished, but established to be due and owing from the defendant to the plaintiff. This judgment in Louisiana is only evidence of the existence of the debt for the recovery of which this suit was instituted, the affidavit was made, the attachment bond was given, and the writ of attachment issued ; and there is no legal reason why this judgment should not be substituted, by way of amendment, as the cause of action, in place of the account, for the purpose of maintaining the attachment. The fact that the judgment is for a greater amount than claimed and sworn to by the plaintiff, is immaterial — for the reason that the attachment is only valid, as against the property, for the amount sworn to, whatever may be the amount claimed in the petition.

The supplemental petition did not change the substance of the demand. The prayer of the original petition is, that the attachment be maintained, and that defendant be condemned to pay the sum of $9,509 32, and interest, with privilege upon the property attached, and the prayer of the supplemental petition is the same.

It is, therefore,ordered, adjudged and decreed, that the interventions of Oalcey, Hawkins & Co, and of Mrs. White and Mrs. Faust be dismissed at their costs. And it is further ordered, adjudged and decreed, that the judgment be avoided and reversed; and proceeding to render such judgment as should have been rendered by the lower court, it is ordered, adjudged and decreed, that the plaintiff do have and recover of the defendant the sum of nine thousand five hundred and nine dollars and thirty-two cents, with five per cent, per annum interest thereon, from the 9th day of June, 1855, and costs of the lower court; and that plaintiffs’ privilege upon the property attached be recognized and enforced. It is further ordered and decreed, that the defendant pay one-third of the costs of this appeal, that Oakc-y, Hawkins & Co. pay one-third, and Mrs. White and Mrs. Faust the remaining third,

Merrick, O. J.,

dissenting. I am unable to concur in the opinion of the court in this case.

The first section of the fourth Article of the Constitution of the United States requires, that full faith aud credit shall bo given in each State to the judicial proceedings of every other State, and confers upon Congress power to proscribe the mode of proof and declare the effect of such proceedings.

In pursuance of such authority, Congress has declared that judicial proceedings properly authenticated shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the State from whence the said records are taken. 1 Slat, at largo, 122.

To ascertain, therefore, the effect of the judgment of the Mississippi court, we must look to the laws of that State, and in the absence of proof on that subject, we must presume that judgments rendered in the courts of Mississippi produce the same effect as our own. If we refer to the common law authorities, we find that the account sued on had become merged in the judgment. It had no longer any existence as an account, and had become a debt of record, which did not admit the same pleas. See Mills v. Duyee, 7 Cranch, 483 ; Hampton v. McConnell, 3 Wheaton, 234; 2 N. S., 601.

The doctrine of merger of the common law, both in reference to judgments aud obligations, is almost precisely the same as the novation of the civil law. 12 An. 565.

If we look to our own law to ascertain the effect of the Mississippi judgment iu that State, we find it novated the account. No suit could be maintained upon it, for it had become extinguished by novation. Oakey v. Murphy, 1 An. 312 ; Dennistoun v. Payne, 7 An. 334.

But it is supposed, that because the pendency of a suit for the same cause of action, between the same parties, in another State, cannot be pleaded as a dilatory exception, that, therefore, the judgment first rendered canuot be pleaded as res ju-dicata to the other. But we have quite recently, in the case of Scott & Co. v. Bogart & Co., determined that such plea could and ought to be made, and that the judgment last rendered, where the plea was not interposed, would be conclusive. If the first judgment could not be pleaded as res judicata, it might happen that the two judgments should be the opposite of each other.

The mere pendency of two suits in two different jurisdictions, for the same cause of action, does not necessarily imply that judgment may be rendered in both, but on the contrary, it only gives the plaintiff the right to execute the first judgment which he shall obtain, and the other suit must be dismissed, for the original cause of action has been novated; for the suit then comes within Art. 94 of the Oode of Practice, which provides that “ if the defendant, instead of claiming to be dismissed, answer to the two actions in two separate courts, the first judgment rendered by either of them shall be valid and executory against the party cast in the action. All proceedings shall be stayed in the other court, and the plaintiff dismissed after paying the costs.”

So too where the suits are pending in different States. The plaintiff may press either to judgment, but then the Constitution and laws of the United States step in, and if the original cause of action be merged or novated in or by the judgment of the State where rendered, it produces the same effect in every other State of this Union, and as a consequence, may be pleaded in bar to any suit commenced or thereafter to be commenced on the original cause of action thus extinguished.

But it is supposed, that because plaintiff had a cause of action here when he commenced his attachment, the Mississippi judgment only confirmed that cause of action. But this is inconsistent with the doctrine of merger and novation. Judgments do not confirm the original causes of action, but extinguish them and substitute in the place of them the highest evidence of the right of the party, viz, a judgment importing absolute verity. It is precisely as though the parties had expressly novated the original cause of action by a new contract of a higher character. See Makee v. Cairnes, 2 N. S. 600, 604. The cases in 5 L. R. 424, and 1 An. 382, are cited to show that this court has taken care to guard the defendant against the effect of a judgment which might be rendered in a sister State in a suit there pending. These decisions do not disprove the doctrine of res judi-cata resulting from the Constitution and Act of Congress, but prove that, in addition, it was necessary that the party should be protected against the rendition of two judgments so nearly at the same time, that one could not be pleaded in bar of the other.

The next question is, could the plaintiff amend, by substituting his new cause of action in the place of the old one? The proceeding by attachment is stricti juris, and amendments cannot be allowed in an attachment suit, which could not be allowed in an ordinary suit. If the judgment of the Mississippi court was a plea in bar to plaintiffs’ original action, as we think has been demonstrated, the following reasoning of Judge Porter in the case cited is conclusive. He says, in a case very similar to this, of a replication setting up the judgment pleaded by the defendant, and demanding judgment on it, viz:

“ How this can be granted to them we cannot perceive. If the plea be good as a bar to their action, then there is nothing more before the court on which to act; it would certainly be a magical kind of proceeding in the administration of justice, to change in an instant, and in the same suit, that which in the hands of the defendant was to him a shield, into a weapon of destruction in those of his adversary.” 2 N. S. 603.

In the case of Oakey v. Murphy, 1 An. 372, the court refused to allow the plaintiff to amend by setting up the judgment.

The same point was ruled in the ease of Dennistoun v. Payne, 7 An. 334. See 5 N. S. 70; 8 N. S. 438 ; C. P. 419. I do not see how plaintiffs can be permitted to amend in the present case, without overthrowing the well established principles of law.

If they suffer inconvenience from the application of the rules of law to their case, it would teach creditors that it is not always safe to pursue the debtor with a multiplicity of suits; and if it be done, that it will be well to consider in which one judgment ought first to be taken.

Whether the case would be different where all the suits were attachment suits, and operated only in rem, and not in personan, it is not necessary to consider.

I think the judgment ought to be affirmed.

VoonniES, J., absent.


author: Cole, J. Buchanan, J.

text:
    Elam Bowman v. McKleroy & Bradford et al.
    A holder of a note given in payment of tho price of property sold for the purpose of defrauding creditors, and secured by mortgage upon the property sold, cannot enforce his mortgage to the prejudice of creditors whose right of mortgage originated before the fraudulent sale and execution of the
    The recording of a judgment against a debtor, in a parish whore he has negroes attachod to a plantation, of which ho is part owner, creates a judicial mortgage upon the slaves, whon the owner is not domiciliated in the State.
    Slaves under seizuro cannot be hired out by the Sheriff, unless by tho consent of parties, and the mortgagee is not entitled to receive hire for the slaves, during the time that they may be under seizure.
    A deed of trust executed in Mississipi and recorded in this State, which expresses that it was given to secure a certain amount, and also to secure future advances that might be made, cannot be enforced hero, against the property mortgaged, to tho prejudice of other mortgage creditors, except for the amount specified.
    from the District Court of the Parish of Tensas, Farrar, J.

      H. B. Shaw and A. N. Ogden, for plaintiff. Snyder & Beeves, and Clark & Bayne, for defendants and appellants. T. P. Farrar, for Leggett. F. H. Far-rar, for Cartwright <& Doniphan. J. Aroni and J. W. Montgomery, for D. Bisland and D. P. January, intervenors. U. B. & E. Phillips, for J. M. Motlow and J. R. Bisland. George S. Sawyer in p. p.

   Cole, J.

In December, 1855, James R. Bisland, one of the defendants, resided on the Mississippi river, a few miles above Natchez, in the State of Mississippi.

He was then the owner of fifty-eight slaves, who figure in this suit, and which appear to have then constituted the whole of his property.

These slaves were heavily mortgaged in the State of Mississippi to various creditors.

On. the night of the 17th of December, 1855, Bisland, without the knowledge or consent of his creditors, placed all these slaves on a passing steamer, landed them the next day more than a hundred miles below, on the Louisiana side, in the parish of Point Ooupée, at the plantation of his brother-in-law, R. W. Mc-Rae, and immediately made a pretended sale of them to James M. Motlow, the overseer of his brother-in-law, McRae.

The notes given by Motlow to J. R. Bisland, for the pretended price, were transferred by said Bisland to McRae, and by him to McKleroy & Bradford. These slaves were sold in 1856, by Motlow to Elam Bowman.

The first of the series of notes of Motlow to J. R. Bisland, having matured, McKleroy <fi Bradford obtained from the District Judge in Point Ooupée, an order of seizure and sale against these negroes, who were then in the parish of Tensas, in the possession of Bowman.

The sale was enjoined by Bowman in the District Court of Tensas.

The various creditors of J. R. Bisland intervened in that court, claiming to enforce their liens, and making J. R. Bisland and Motlow parties.

The District Court decided the sale from Bisland to Motlow to be fraudulent, null and void, as to the creditors, and gave judgment to each for the amount of his claim against J. R. Bisland; ordered a sale of the slaves, and proceeded to fix the rank in which the creditors should be paid, giving to McKleroy & Bradford only such surplus as might remain after paying the creditors of J. R. Bis- land, and placing George S. Sawyer last in the rank of the mortgage creditors aforesaid.

McKleroy & Bradford and Sawyer, have appealed.

We consider the plea to the jurisdiction to have been waived, and proceed to determine the rights of the different parties.

We are of opinion that the sale of J. R. Bisland to Motlow, of the slaves in litigation, was fraudulent and simulated ; that no consideration passed for the same from Motlow; and that it was not really intended to be a sale so as to vest in Motlow a bona fide title to the negroes.

An important question now arises as to the respective rank of the mortgage creditors of J. R. Bisland and of McKleroy & Bradford.

The notes received by J. R. Bisland from Motlow, were transferred by Bisland to McRae, about the 2d of January, 1857, and by the latter to McKleroy & Bradford, about the 5th of January, 1857.

The creditors of J. R. Bisland, who are parties to this suit, hold mortgage claims against him upon these slaves, which originated prior to his sale to Mot-low.

It is contended that McKleroy & Bradford, being the holders of the notes of Motlow, before maturity, are entitled to be paid the amount of the mortgage upon those negroes, securing them, in preference to the creditors of Bisland, who held mortgages originating before the execution of the notes by Motlow.

It appears that McKleroy é Bradford must have had notice before taking the notes of claims against these negropr — About-April, 1856, Motlow published a notice in the New Orleans Picayune'where McKleroy <fi Bradford carried on their business, and in the Point Ooupée Echo, stating that the consideration of the notes had failed, and warning all persons not to trade for them.

Suits were also ponding, previous to their getting the notes, in the parish of Point Ooupée, and there were in the mortgage office of Point Ooupée mortgages recorded against these negroes, and it was in this parish whore the sale of the slaves to Motlow was passed. If they intended to depend upon the mortgage, and not upon the makers and endorsers, to guaranty the payment of the notes, ordinary prudence would have made them examine the mortgage office of Point Coupée to see whether Bisland, before selling to Motlow, had not covered the slaves with liens. C. C. 2428.

But oven if McKleroy <& Bradford are holders of the notes for a valuable consideration before maturity, and without notice, they cannot avail themselves of the mortgage which is accessory to the notes, independently of the rights of creditors holding mortgages anterior to the execution of the mortgage securing (heir notes.

Their action upon the mortgage is one in rem, and is distinct in its nature from their personal action against the maker and endorsers.

The negotiability of notes has been created to facilitate commerce; the protection of the holder before maturity and without notice against the equities existing between the maker and payee, or other parties, is an exception to the gen - eral rule, that a person cannot transfer a greater right than he possesses, and the negotiability of notes, and the rules appertaining thereto, must not be extended so as to effect more injury than good.

Mortgages are real rights, and are governed by certain rules as to rank from the time of their recording, and also from other causes.

The mere securing' of a negotiable note by mortgage, cannot give to the mortgage a rank superior to one recorded before it.

If one mortgages property, not liis own, and without any authority, to guaranty a negotiable note, the mortgage is without effect.

A party taking a negotiable note secured by mortgage, must incur the risk that there may be other parties who may successfully oppose his mortgage.

The mortgage is a privilege upon real property. Before the property can be held liable to secure a note, it must appear that the mortgagor was the owner of the property, or had the legal right to give the mortgage ; and if he had the right, still the mortgage may be defeated as to its effect, by the existence of tacit or conventional mortgages, superior to it in rank.

If the mortgagor were the pretended owner of the property by a simulated sale, the negotiability of the note cannot give force to the act of mortgage, and thus transform a simulated sale into a real one.

The negotiability of notes cannot destroy the rights of third persons to real property, who are not parties to the note, and perhaps know nothing of its existence.

It is true that the transfer of a note, carries with it its accessories, and the mortgage is an accessory, but the mortgage is conveyed only so far as the person giving it was entitled to create it.

If the latter held the property subject to tacit or conventional mortgages, then in granting to a third person a mortgage to secure a note, and in transferring the mortgage note to him, ho transfers a right of mortgage inferior to mortgages held by other persons, and the holder of the mortgage note takes it thus, inferior to the rights of those persons.

If a different doctrine should obtain, the proprietors of real estate, and those holding bona fide mortgages would be entirely in the power of the unscrupulous. The negotiability of notes introduced to facilitate commerce, would be the destruction of property holders, and their rights would be sacrificed without ever being parties to the mortgage and note that doomed them to ruin.

It matters not in the present ease, if the mortgages of the creditors of J. R. Bkland, originated in the State of Mississippi.

The rights of citizens of a sister State ought to be protected, as far as their protection does not conflict with our laws.

If we expect the claims of our citizens to be equitably determined in foreign tribunals, the right of foreign citizens must also be respected.

The-eye of justice must look impartially upon the demands of parties; its vision is not bounded by the limits of a State, but by those of the eternal principles of right and wrong.

It is antagonistical to those principles to permit a citizen of another State to run from that State his slaves, heavily mortgaged, into this State, in order to elude his mortgage creditors, and then to pass a simulated sale of the slaves to the overseer of his brother-in-law, and then to allow the brother-in-law to transfer the mortgage notes executed as the price, so as to make the mortgage securing the notes, to be superior to those of the creditors of the absconding citizen, which existed before his simulated sale to the overseer.

If this were sanctioned, instead of facilitating commerce, it would be highly detrimental to it.

For it would afford the shield of courts to the machinations of the unjust, and destroy all confidence in the security arising from mortgages on slaves, and this portion of the property of the State which constitutes so much of its wealth, would be almost useless as a security for debts.

A principle so unjust and destructive to the business of the south, ought not to be upheld by the judiciary.

We are, therefore, of opinion, that the creditors of J. R. Bisland, who held mortgages originating before the execution of the notes to Motlow, are entitled to be paid in preference to McKleroy & Bradford, the present holders of those notes.

"We shall now proceed to fix the rank of the different parties to this suit, and the time from which their mortgages are to date, whether from being recorded in Mississippi or this State.

1. D. S. Bisland and B. P. January, paid a debt of J. R. Bisland, with whom they were bound on his appeal bond for the payment thereof. They had, therefore, an interest in discharging it, and their legal obligation was to pay it.

A legal subrogation consequently took place of right, according to Article 2157, number three of the Civil Code, and B. S. Bisland and January became subro-gated to whatever right the judgment creditor had on the property of James R. Bisland. This right was a judicial mortgage which was recorded on the 22d of December, 1853, in the parish of Catahoula, where a part of the slaves then wore attached to and working upon a cotton plantation, thes undivided half of which then belonged to J. R. Bisland, who was domiciliated in the State of Mississippi.

We are of opinion that the recording of a judicial mortgage against a debtor in the parish where he has negroes attached to a plantation of which he is part owner, creates a judicial mortgage upon the slaves, when the owner is not domi-ciliated in the State of Louisiana ; for in such case, it is impossible to record it in the parish where the judgment debtor resides. Mallard & Armistead v. Carpenter, 6 An. 397 ; Spencer v. Amis, 12 An. 127.

The judicial mortgage of B. S. Bisland and B. P. January, must then take effect upon the slaves in controversy, which were in the parish of Catahoula at the time of the recording of the judgment. They will be designated in the decree.

The amount of their mortgage is $3,294 64, with eight per centum interest thereon, from the 4th January, 1852.

2. Elam Bowman bought the slaves in dispute of Motlow, but he also subsequently bought an outstanding mortgage upon these slaves.

This sale is null, because Bowman bought the slaves, subject to the decision of this suit as to the title of Motlow, and as Motlow is decreed to have no title, the sale to Bowman is without effect, and the right of mortgage of Bowman, which may be said to have been extinguished by confusion, revives.

This mortgage has effect from the 24th of February, 1854, for $11,584 40, with eight per cent, interest per annum from the 27th of December, 1855, until paid.

The negroes are in the possession of Bowman; the mortgage creditors cannot, however, claim from him the liii’e.

This claim must be reserved to be urged by the owner or owners of the slaves.

When slaves are seized, the Sheriff cannot hire them out, unless by consent of parties. O. P. Arts. 659, 662.

It is only when lands or houses are seized, that the Sheriff seizes the rents, issues and revenues.” C. P. 656.

The mortgagee is not entitled to receive hire for slaves during the time they may be under seizure. 0. 0. Arts. 453, 457, 3371.

3. Hackaliah Leggett’s mortgage is recognised for $13,500, with six per cent, interest on $4,500 thereof, from 7th February, 1855, on $5,000 thereof, from the 7th of March, 1855, and five per cent, interest on $4,000 thereof, from the 23d December, 1854.

The mortgage of Leggett is to date from the 17th of March, 1854.

His claim is based upon three drafts secured by mortgage from J. R. Bisland, passed in the State of Mississippi, on the 7th of March, 1854.

This mortgage is upon the slaves in controversy, and was recorded in Mississippi and Louisiana.

4. The mortgage of Cartwright <& Doniphan is based upon a deed of trust executed by /. R. Bisland in their favor, on the 30th of May, 1854, on the slaves in controversy, and other property, which latter was afterwards exhausted by a sale under a prior mortgage in favor of Miltenberger.

The deed of trust expresses that it was made to secure five thousand dollars then due, to cover future advances to be made to Bisland, and to secure them for their liability on certain drafts of Bisland, on which they were accommodation endorsers.

The advances were made to about $14,000. The accounts of them, showing the exact amount due, were shown to Bisland, who admitted them, in writing, to be correct, and they were duly recorded in the mortgage records of Point Coupée, as containing the amounts intended to be secured in the deed of trust to which they refer.

We are of opinion, that the mortgage is void as to the creditors of J. R. Bis-land, No.’s 1, 2, 3, 5 and 6, except for the $5000, which were specified. C. C. Art. 3277. Frost v. Beekman, 18th John. Ch. R. p. 550; An. Ch. Dig. by Wheeler, vol. 2, p. 191; 4 Kent, p. 175 ; 2 An. 974, 917 ; 9 R. 482.

This mortgage is to have effect from the 30th May, 1854, with interest at the rate of 6 per cent, from that date. The right of Cartwi'ight <& Doniphan is reserved to their personal action against J. R. Bisland for the excess of their claim over five thousand dollars.

5. George S. Sawyer is entitled to a mortgage upon certain of the slaves by virtue of a decree of the Yice Otiancery Oourt, Southern District of Mississippi, at Natchez. His mortgage is $8445, with ten per cent, interest thereon from 1st July, 1854, and bears date from 1st July, 1854.

J. R. Bisland sold to Sawyer fifteen of the negroes seized in this suit in payment of this decree; but the slaves were to remain in the possession of Bisland, being hired by Mm. Bisland afterwards carried them off in order to deprive Sawyer of his rights.

This illegal action of Bisland ought not to injure Sawyer.

The latter sold these fifteen negroes to Bowman. But as Bowman in his injunction in this case did not claim them, and as Sawyer did, without any objection on the part of Bowman, this may be considered as a tacit dissolution of the sale from Sawyer to Bowman at the time the intervention was filed.

After the intervention of Sawyer was filed, Bowman and Sawyer, by an act, mutually rescinded the sale.

Besides, even if the negroes belonged to Bowman at the time of the intervention of Sawyer, the latter had the right to intervene to defend the title he had conveyed to Bowman, for he had sold with special warranty.

So far as Bisland is concerned, Sawyer is entitled to consider the sale to himself of the fifteen negroes null, because Bisland ran away with them and caused the consideration to fail, and he has the right as to Bisland to have his mortgagee enforced. If the sale were considered in force, then Sawyer would be entitled to a judgment for the fifteen negroes, but he has asked for judgment in the alternative either to have his title decreed to be valid for the negroes, or to have the mortgage enforced.

As the fifteen negroes are reasonably worth more thau his debt, the other parties cannot complain at our recognition of his mortgage, instead of recognising him as owner of the fifteen negroes.

The rescission of the sale by Bowman in favor of Sawyer was not the purchase by Sawyer of a litigious right in the sense of Art. 2422 of the Civil Code, which forbids attorneys from purchasing litigious rights, falling under the jurisdiction of the tribunal in which they exercise their functions, because that Article does not refer to arrangements that lawyers may make as to their own claims, but to the purchase of rights in which they have no property.

6. The sale from /. R. Bisland to Mollow being rescinded so far as it affects the mortgage creditors of the former, who are parties to this suit, McKleroy é Bradford are entitled to be paid their claims as owners of the mortgage notes out of the balance of the proceeds of the sale of all the slaves in contestation, which shall be left alter the satisfaction of the previous mentioned creditors in the manner specified as aforesaid.

It is, therefore, ordered, adjudged aud decreed, that the judgment of the District Court be avoided and reversed ; that the injunction sued out against the order of seizure and sale be perpetuated ; that the sale of the slaves in contestation in this suit from J. R. Bisland to J. M. Motlow, is null, void and without effect as to the mortgage creditors of J. R. Bisland, whose claims are recognised in this judgment; that the sale of the said slaves from Mollow to Elam Bowman bo rescinded; that the slaves aforesaid be seized aud sold by the Sheriff of the Parish of Tensas, according to law, and that the various claimants be paid in the following rank out of the proceeds of all or apart of the slaves in contestation, as shall now be detailed.

I. D. S. Bisland and J). P. January shall be paid $3294 64, with 8 per cent, interest from the 4th January, 1852 ; their mortgage is recognised as taking effect from the 22d December, 1853. The said amount is to be paid out of the proceeds of the sale of all the slaves mentioned in their intervention and their issue, except the following, Eliza Pierce, Yarrow, Sally, Victoria, Perry, Alsey Levi, Suclcy and Peggy.

II. Elam Bowman shall be paid $11,584 40, with 8 per cent, interest per an-num from the 21th of December, 1855, until paid. His mortgage is to have effect from the 24th of February, 1854, and he is to be paid said amount out of the proceeds of the sale of all of the slaves.

The claim against him for the hire, use and enjoyment of the slaves in contestation is reserved, if any such right exists, to be urged in another suit in an action by the owner or owners of the slaves.

Hackaliah Leggett shall be paid $13,500, with, 6 per cent, interest on $4500 thereof from the 1th February, 1855, and on $5000 thereof, from the 1th March, 1855, and 5 per cent, interest on $4000 thereof from the 23d of December, 1854. His mortgage is to take effect from the 11th March, 1854, and he is to be paid his claim out of the proceeds of the salo of all the slaves.

IV. Cartwright & Doniphan shall be paid out of the proceeds of the sale of all the negroes in contestation, five thousand dollars, with 6 per cent., interest thereon from the 30th of May, 1854, from which date also their mortgage is to have effect for said amount. The balance of their claim shall be paid out of the residue, if any there be, of the proceeds of the sale of all the negroes in dispute, after paying all the preceding claims, and those that follow their claim in this judgment; or as much of their demand as can be so satisfied, reserving their rights against J. R. Bisland for any balance of their claim remaining unpaid.

V. George 8. Sawyer shall be paid @8445, with ten per cent, interest thereon from the 1st July, 1854. Iiis mortgage is to have effect from the 1st July, 1854, and he is to be paid said amount out of the proceeds of the sale of the negroes (and their issue) in contestation, which are mentioned in the decree of the Vice Chancery Court, Southern District of Mississippi, at Natchez, rendered and signed the 1st July, 1854, in the case of George S. Sawyer v. James R. Bisland.

VI. McKleroy <& Bradford shall be paid the amount of their notes sued upon and their demand out of the proceeds of the sale of all the slaves in contestation, after the preceding five mortgage claims are paid the amounts of their mortgages recognised by this judgment. Their right of action against the makers and endorsers of the notes aforesaid, held by them, if any such they have, is reserved.

It is further ordered and decreed, that all costs of the lower court shall be paid out of the proceeds of the sale of the negroes, in preference to any of the preceding claims, and the costs of appeal shall be paid by Cartwright & Doniphan.

Same Case — On a Re-hearing.

Buchanan, J.

The re-hearing in this case was granted as to Cartwright & Doniphan and McKleroy <& Bradford.

Cartwright and Doniphan were allowed by the judgment of the District Court, the sum of fourteen thousand three hundred and forty-three dollars and thirty-nine cents and interest, with right of mortgage for the whole of that sum. Our judgment reduced the mortgage of these intervenors to five thousand dollars, and reserved their personal action against James R. Bisland for the excess of their claim. In their petition for a re-hearing, Cartwright <& Doniphan have not complained of this reduction of their mortgage, as compared with the other parties, to whom a right of mortgage has been allowed by the judgment, but contend that they ought to have a distributive share of the proceeds of the negroes seized, for the remainder of their claim, as ordinary creditors of James R. Bisland, there being more than enough to satisfy all the mortgage claims allowed by the judgment of the court.

Upon further consideration, we are satisfied that Cartwright & Doniphan are entitled to an amendment, in their favor, of our previous judgment. For the reasons stated by us heretofore, their right of mortgage cannot be allowed for more than five thousand dollars, but they are creditors of James R. Bisland, directly, by account acknowledged by him, for advances and supplies in the years 1854 and 1855, for the surplus of their claim, to the amount allowed by the District Court.

McKleroy <& Bradford arc holders of five promissory notes for @6960 each, dated the 18th December, 1855, and payable respectively the 1st January, 1851, 1858, 1859, 1850 and 1861, made by J. M. Motlow to the order of, and endorsed by James R. Bisland.

The first of these notes alone was due and protested at the time McKleroy <& Bradford instituted their hypothecary action, by executory process, on the 9th January, 1851. The whole of the five notes were filed in court, with their petition in that action, and at this time there are three out of the five notes due, amounting, in the aggregate, to twenty thousand eight hundred and eighty dollars. For this amount, with interest as expressed on the face of the notes, James R-Bisland is now the debtor of McKleroy & Bradford. But for the security of this debt, McKleroy & Bradford cannot pretend, upon the principles of our decision and of that of the District Court, to have any mortgage, as against the other creditors of. their debtor, for both courts decree.the act of mortgage of Motlow to Bisland, “ his heirs and assigns,” for the security of these notes, to be null and void, and of no effect, as to Bisland’s creditors. McKleroy & Bradford are, therefore, viewed by us as ordinary creditors, at this time, of James R. Bisland, for his endorsements now due as above.

Now, this case being in its origin, a seizure under execution, the sale stayed by injunction, and third oppositions interposed by parties claiming liens and preferences ; regularly, the court would have nothing to do but to settle the conflicting claims, and the rank of the liens upon the property seized; and would not feel authorised to distribute the proceeds of that property, in satisfaction of any mere ordinary debts of the owner of the property. But a contrary course has been adopted in the court below, and also in this court, with the consent and concurrence of all parties interested, debtor as well as creditors. All of those creditors had instituted suits to establish their claims, which suits are in evidence, and have been substantially, if not formally, consolidated with the present proceedings. In this manner, a sort of concurso has been formed, and the judgment appealed from as well as that of this court, resembles a tableau of distribution, in which ordinary creditors have a place, as well as privileged creditors. It is thus that McKleroy & Bradford, for instance, have been allowed any thing in our previous judgment.

In view of this position of the case, we have come to the conclusion to pass upon the ordinary claim of Cartwright <& Doniphan at this time, without referring them, as before decreed, to their separate personal action against James R. Bis-land.

The order and amount of the mortgages, as fixed by our previous judgment, will not be changed, but the residue of the proceeds of the slaves seized, after satisfying those mortgages, will be allotted pro rata to Cartwright & Doniphan, and McKleroy <& Bradford.

It is, therefore, adjudged and decreed, that our judgment heroin rendered on the 2d May, 1859, bo amended; that Cartwright & Doniphan, as ordinary creditors, be paid out of the proceeds of the slaves seized, a sum of nine thousand three hundred and forty-three dollars and thirty-nine cents, with interest, at the rate of five per cent, per annum from the 1st January, 1856, until paid, in addition to the sum already allowed said Cartwright & Doniphan, as mortgagees in said judgment, under the number 4; the said sum of $9343 39, to take rank after the judgment in favor of George S. Sawyer, as mortgagee, under the number 5 in our previous decree, and to be paid concurrently and pro rata, (should there not be enough to satisfy both claims,) with the allowance herein after made to McKleroy & Bradford; that McKleroy & Bradford, as ordinary creditors, bo paid out of the proceeds of the slaves, after satisfying costs and mortgages, and concurr&ntly with the ordinary claim of Cartwright & Doniphan, herein before allowed, a sum of twenty thousand eight hundred and eighty dollars, with interest at eight per cent, per annum, from the 18th December, 1855 ; that the costs of this appeal be borne, one-half by Cariwright Doniphan, and one-half by Mc~ Kleroy & Bradford; that the rights oí McKleroy <6 Bradford, if any they may have, for the remainder of their claim by notes, not satisfied out of the proceeds of the slaves seized herein, be reserved to them, as against the maker and endorser of said notes; and that in all other respects, our judgment of the 2d May, ] 859, remain undisturbed.

Land, J., absent.