text:
    Monget, Tutor, v. Pate.
    In an action against a defendant to render her liable personally, and as tutrix of her minor children, for a debt due by the community which existed between her aud her late husband* ,on the ground that she had accepted the community, and had rendered herself liable, personally and as tutrix, by disposing of effects of the succession and paying its debts without observing the forms of law, where it is shown that the defendant had ceased to act as tutrix, the action against her as tutrix must be dismissed; hut the plaintiff should he permitted to show that the defendant had accepted the community, either expressly or by acts of ownership, and thereby rendered herself liable for one half of its debts. C. C. 2387.
    Appeal from the District Court of East Baton Rouge, Bar/c, J.

      G. S. Lacey, for the appellant, cited C. C. arts. 2379, 2387. Brunot, for the defendant.
   The judgment of the court was pronounced by

King, J.

The defendant is sought to be rendered liable personally, and as ¡the tutrix of her minor children, for a debt due by the community between her and her late husband, on the ground that she had accepted the community, and ibas further rendered herself answerable, b.oth personally and as tutrix, by disposi'ng of effects belonging to the succession, and paying its debts without o'bse'rving the formalities required by law. The plaintiff’s right to maintain the action against the defendant was excepted to, on the ground that she had ceased to be the tutrix of her children. The exception was sustained, and a judgment of non-suitrendered.irom which the' plaintiff has appealed.

We think that the judge erred in dismissing the plaintiff’s demand against the defendant personally. The latter had ceased to be the tutrix of her children, and the action against her in her representative capacity was properly dismissed. The defendant is not distinctly charged in the petition with the fraudulent acts contemplated by the 2387th article of the Code, which render the surviving widow liable individually; but the plaintiff should have been permitted, under his averments, to show that the defendant had accepted the community, either expressly or by acts of ownership which indicated her acceptance, and had thereby become responsible for one half of its debts.

The judgment of the District Court is therefore reversed, and the cause remanded with instructions to the judge to permit the plaintiff to proceed against the defendant personally ; the appellees paying the costs of this appeal.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Rankin, Tutor, v. Bell et al.
    The factofliaving possessed separately a portion of the hereditary effects daring thirty years, gives, in all cases, to the heir who has thus possessed, the right to oppose the suit of his coheirs for a partition of those effects. C. C. 1238. The acquisition of this right is not suspended by the minority of any of the heirs.
    APPEAL from the District Court of West Feliciana, Burk, J.

      Ratliff, Cowgill, Muse, and Merrick, for the plaintiff,
    contended that the prescription of thirty years under art. 1228 of the Civil Code, does not bar this action, there having been only nine years of adverse possession by defendants during which prescription was not suspended by minority. C. C. 3488.

      Paterson, for the defendants.

      Marks, Mayo, and Bowman, for the parties cited in warranty.
   The judgment of the court was pronounced by

Rost, J.

This is a petitory action. The facts are briefly as follows : Lucy Hall was the owner of l.he slaves Philip and Tempe. She died in 1813, leaving as her legitimate issue Burr S., and Thomas H. Hall and Harriett B. Hall, then married to John Stafford. No proceedings were had in her succession, and no inventory ever made ; but the evidence admitted by-the judge satisfactorily shows that at her death the two brothers retained the possession of the slave Philip, and that her sister had possession in the same manner of the slave Tempe. This separate possession continued till 1833, when Harriet B. Hall died, and Burr S. Hall, the father of the plaintiff’s ward, was appointed tutor of her minor children. He gave bond as tutor for the appraised value of the property of the minors, in which the slave Tchtpe and her children appear to have been included. He set up no claim to those slaves; and considering the slave Philip as the exclusive property of his brother and himself, he purchased of his brother the undivided half, and that slave was subsequently seized and sold at the suit of his wife against him.

Burr S. Hall died in 1836. An inventory of his succession was made in June of that year; in presence of his widow, who was af that time tutrix of the plaintiff’s ward. It purports to include the property left by the deceased, and makes no mention of the slave Tempe and her children. Before the date of this inventory and the death of Burr S. Hall, a judicial partition was made of the slave Tempe and her children between the heirs of Harriet Stafford, under whom the present defendants claim and possess. This action was instituted in 1844, in behalf of the son and only heir of Burr S. Hall, to recover one undivided half of the slaves mentioned, on the ground that his father and himself have never been legally divested of their title. The court below gave judgment in his favor, and the defendants appealed.

The record contains several bills of exception, which it is not necessary to notice. The defendants and their warrantors have pleaded in bar of the plaintiff’s action, the continued and uninterrupted possession of the slaves, by themselves and those under whom they claim, during thirty years; and the evidence adduced by them fully supports that allegation. It is contended that Lucy Hazard herself did not transfer the possession of her portion of the slaves to Bell and Hall. Supposing the possession to have remained in her up to this time, the plaintiff’s case would not be benefitted by it.

It is alleged that during all the time that possession has been adverse to the plaintiff’s ward and his father, prescription had been suspended by reason of their minority, except during nine years. The article of the Code upon which defendants rely, is not found in the chapter treating of prescription, and from its plain import the limitation it creates is not suspended by minority. The fact of having possessed separately a portion of the hereditary effects during thirty years, gives in all cases to the heir who has thus possessed the right to oppose the suit of his co-heirs for a partition of those effects. Civ. Code, art. 1228. The father of plaintiff’s ward has acquired a title to the slave Philip in the same manner; and a judgment adverse to his claim will but give effect to an amicable division of the property of Lucy Hall, made between Burr S. Hall and his sister, and executed in good faith by both.

For the reasons assigned it is ordered that the judgment be reversed, and that the defendants be for ever quieted in their possession and title to the slave Tempe and her children, against the claims and pretensions of the plaintiff. It is further ordered that the plaintiff pay the costs in both courts.


author: King, J.

text:
    Copley v. Moody.
    The purchase of a litigious right by an attorney practising in the court in which the litigation was pending at the time of the sale, is null. C. C. 2422, 2623, 3522, § 22.
    Appeal from the District Court of Madison, Curry, J.

      H. W. Dunlap, for the appellant. Bemiss, for the defendant.
   The judgment of the court was pronounced by

King, J.

This is a petitoiy action, in which the plaintiff seeks to recover twenty-five slaves, which he alleges were adjudicated to him at the probate sale of the property of J. H. Sims, deceased. The defendant avers title in himself under a marshal’s sale, made in virtue of an order of seizure and sale issued from the District Court of the United States. The plaintiff’s demand was rejected in the court below, and he has appealed.

From the evidence it appears, that the slaves in controversy, together with a tract of land, were mortgaged by Sims to the defendant, in 1841, to secure the paymentof a sum exceeding $28,000. Sims died in 1842, and during the same year an inventory of his succession was made. On the 10th of March, 1843, under an executory proceeding, all the mortgaged property was adjudicated by the United States marshal for the western district of Louisiana to the defendant. On the 25th of the same month, on the application of thup creditors of Sims, the probate judge of the' parish of Madison ordered all of the property thus adjudicated to the defendant to be sold, as composing a part of the succession of the deceased. A further order was granted for the- provisional seizure and sequestration of the slaves and moveables, on the ground that they were in the possession of the defendant, who it was apprehended would remove them from the State, before they could be legally sold. The slaves were taken into possession by the sheriff, notwithstanding which the defendant succeeded in escaping with them from the State. After the removal of the slaves, a second inventory was made, in which was appraised “ all the right, title, interest and claim of the succession to the slaves formerly employed on the plantation of Sims, and now in adverse possession, supposed to be in Morgan county, Georgia.1’ The property advertised for sale was “ all the right, title and interest of the succession of Sims', to the slaves,” in question, “supposed to be-in Morgan county, Georgia,” and With this description they were adjudicated to the plaintiff, for $14 50.

From this statement it is manifest that the adjudication to' the plaintiff was of a litigious right. A litigation, extremely irregular it is true, in many respects, was, at the date of the adjudication, pending between the creditor’s of Sims and the defendant Moody, who possessed and claimed title in virtue of a judicial sale. The plaintiff was at the time of his purchase a practising attorney, and could only acquire such a right under the pain of nullity. C. Code, arts. 2422, 2623, 3522, no. 22. Copley v. Lambeth, 1 Ann. R. 316.

Judgment affirmed.


author: R.ost, J.

text:
    Chambliss, Executor, v. Atchison.
    Proceedings viá ejecutiva cannot be changed into an action viá, ordinmiá, without the assent, express or implied, of the seizing creditor. Where such a change is made with the assent of the creditor, neither the interest nor damages allowed on the dissolution of an injunction can be recovered.
    Interventions are not allowed in proceedings via, executive,. Third persons must assert their rights in direct actions.
    Grounds for enjoining an order of seizure and sale may be noticed on appeal, though not set out in the petition for the injunction, when apparent on the face of the record. Not to notice suoh grounds, would be inconsistent with the rule that injunctions, though improvidently sued out, are never dissolved, when the facts show that, on the dissolution, the party will be immediately entitled to that remedy on other grounds. Per Curiam: The case of Landry v. Léglise, 3 La. 220, must be considered as referring exclusively to points not made in the petition for the injunction, nor appearing on the face of the record.
    Decision in Spencer v. Knowland, ante p. 222, affirmed.
    Acts sous seing privé can only be made authentic by a recognitive act setting forth their tenor, executed before a notary and two witnesses.

      To entitle the holder of notes secured hy mortgage to proceed by executory process, the identity of the notes with those secured by the mortgage must appear upon the face of tho record; though, it may be true, that the certificate and paraph of tho notary ate net indis - pensable for that purpose.
    APPEAL from the District Court of Carroll, Mayo, J.

      Siacy and Sparrow, for the plaintiff. Thomas, for the defendant. Dunlap and Perkins, for the opponents. R. N., and A. N. Ogden, for the intervenors.
   The judgment of the court was pronounced by

R.ost, J.

The plaintiff, as dative testamentary executor of Job Bass, obtained an order of seizure and sale against a plantation and slaves in the possession of the defendant, upon a mortgage debt alleged to have been due originally to the testator by Joseph Niebert, and to have been assumed with a new mortgage by the said defendant. The defendant enjoined the seizure, alleging the executory process to be illegal, unjust and oppressive, both in its origin and in every stage of its progress, on various grounds stated in the petition. He also pleaded on the merits a partial failure of the consideration by him given for the property mortgaged, and prayed for the reeision of the sale, with damages.

The plaintiff moved to dissolve the injunction, as having been improvidently sued out, on the allegations of the petition. Before this motion was disposed of, the defendant presented an amended petition, setting forth the institution against him of the suit of Bryan, Administrator, v. Atchison, lately determined, ante p. 462, for the recovery of one-half of the mortgaged premises; alleging other grounds of defence, and praying that the suit of Bryan against him might be consolidated with these proceedings.

The plaintiff opposed the filing of the amended petition, on the following grounds: 1st. That all amendments to pleadings upon which an injunction has been obtained, are inadmissible. 2d. That the amendment offered contradicted the original pleadings. 3d. That it cumulated the suit with matters that could not be pleaded in it. 4th. That it prayed to consolidate this suit with a petitory action, wbich could not be done.

The court refused to permit the suits to be consolidated, bnt allowed the amended petition to be filed, and the plaintiff took a bill of exceptions. He subsequently filed, as an answer to both petitions, and under the reservation of his rights on the motion to dissolve, a general denial, and prayed that the injunction might be dissolved with ten per cent interest, and twenty per cent damages, upon the amount enjoined, and SI,000 as special damages. The persons named in the suit of Bryan v. Atchison, as representing the Planters Bank and the Commercial Bank, intervened, and prayed for judgment against the defendant as in that suit. The commercial firm of W. Jackson & Co. came into court by way of third opposition, and opposed the seizure and sale, claiming a privilege upon the crop then growing, for supplies furnished to the defendant for the use of the plantation and slaves. The court below, after hearing the parties, perpetuated the injunction, gave judgment against the intervenors as in case of non-suit, and in favor of W. Jackson Co. for the amount of their claim, with privilege upon the proceeds of the crop in the custody of the sheriff. The plaintiff has appealed from the judgment perpetuating the injunction, and from the judgment in favor of W. Jackson & Co. The intervenors have also appealed from the judgment rendered against them.

There has boon no change in this case from the vid executiva to the vid ordinaria. That chango cannot take place without tlio assent, express or implied, of the seizing creditor, and the record shows most conclusively that no assent of any kind had been given by the plaintiff. The motion to dissolve insisted upon to the last, the grounds upon which the filing of the amended petition was opposed, and the prayer of the answer for the dissolution of the injunction with the highest rate of interest and damages, and special damages besides, all lead the mind to the inevitable conclusion that the plaintiff has not relented in the pursuit of the remedy at first resorted to. Had he intended to do so, neither interest nor damages would have been claimed by him, as none could be recovered in the vid ordinaria. McMillin v. Carlin, 16 La. 102.

This, we conceive, puts an end to the pretentions of the intervenors. Interventions takes place in suits, but an order of seizure is not a suit. All the proceedings allowed under it are summary, and parties are not permitted to embarrass the administration of summary justice with matters en pais, having no connection with the main issue ; nor can they in that manner deprive the parties to the order of seizure'of the'right to contest their claims in the ordinary forum, and to have them tried before a jury. Courts of justice are open to the intervenors in this case, for the enforcement of their rights in a direct action. But this unusual complication of suits should be discouraged, as tending .to create endless confusion, and to obstruct unnecessarily the avenues of justice. We have no hesitation in saying that the intervention of the banks in this case, is in deiogation of common right, and unauthorised by law.

Among the specific grounds relied on in argument by the counsel for Atchis n, in support of the judgment appealed from, so far as it perpetuates the injunction, the following are deemed material r-

1. Chambliss could not legally obtain an order of seizure on the outstanding notes of Niebert, the stipulation of the defendant to pay those notes only confering upon him an equitable action to enforce payment.

2. The power of attorney to Laccste, which is one of the documents on which the order of seizure issued, is a private act.

3. The certificate and affidavit of the justice to prove demand from the original debtor, are private acts, not under seal as required by the statute of Mississippi.

4. The copies of the statutes of Mississippi adduced to show the capacity of justices of the peace to act as notaries and to prove the rate of interest on the notes, are not authentic in the meaning of articles 732, 733, of the Code of Practice.

5. The identy of the notes is not shown. They were not paraphed by the notary. The mortgage of Niebert describes those that were given as being drawn in favor of Bass, and his name is not on those which the plaintiff has produced.

The facts assumed in these grounds are apparent on the face of the record, and force upon us the conclusion that the order of seizure was granted upon evidence not authentic.

It is contended that none of those grounds but the first were set forth in the petition praying for the injunction, and that the others cannot be noticed here. The authorities relied on in support of that position do not, in our opinion, establish it.

“ When executory process is prayed for on an act said to import a confession of judgment, the judge must examine and decide whetherthe instrument unites all the requisites of the law necessary to authorise this summary proceeding; so far it is a judgment, and an appeal lies from it, as from all other orders of court that might work an irreparable injury.” Harrod v. Voorhies’ Administratrix, 16 La. 254.

The case of Landry v. Léglise, 3 La. 220, must be considered as controlled by that of ILarrod, and as having exclusive reference to points not made in the petition of injunction, and not appearing on the face of the record. The defendant, Atchison, may avail himself in the Supreme Court of the defence which an appeal from the order of seizure would have enabled him to make.

The rule laid down in Léglise’s case, if understood in the broad sense, that that the court can, in no case whatever, travel out of the matters set forth in the petition, would come in direct conflict with another rule of practice, which has .received the uniform assent of the bench and the bar. That rule is, that injunctions, although improvidently sued out, are never dissolved, when the facts of the case show that on the dissolution the party will immediately be entitled to .that form of remedy on other grounds. Bushnell v. Broom’s Heirs, 4 Mart. N. S. 499. Exinicios v. Weiss, 3 Ib. N. S. 480. Crane v. Baillio, 7 Mart. N. S. 273. 4 La. 400. 5 La. 62.

Proceeding to examine the points made, in the case of Spencer v. Knowland., •ante p. 222, we held that a copy of the statute of Mississippi regulating the rate ,of interest was not authentic evidence of that rate at the time the judgment ■was rendered executory, and the reasons there given apply to the two statutes found in this record.

The certificates of the justices of the peace of the State of Mississippi, are .not under seal, and this omission has been held by the late Supreme Court to be fatal. 14 La. 157.

The power of attorney from Wilkins to Lacoste is a private act. The acknowledgment of one of the witnesses who signed it, although it may be sufficient to affect third persons with notice, when the act is recorded, does not make it authentic. The copy of it found in the record would not be legal evidence in an ordinary suit, and is totally insufficient to support an order of seizure. 5 Mart. N. S. 175, 691.

Acts under private signature can only be made authentic by a recognitive act .setting forth their tenor, and executed before a notary and two witnesses. Maillan v. Perron and wife. 8 La. 138.

It may be true that, the certificate and paraph of the notary upon mortgage notes are not indispensable to enable the holder to resort to executory process, .but their identity must be manifest upon the face of the record. It appears to .us in this case to be a matter enpais. Had the plaintiff appealed from the order of seizure, he would be clearly entitled to relief. We consider that he is .equally so under the present form of action.

The order of seizure having been improperly sued out, the plaintiff is without capacity to contest the claim and privilege of W. Jackson & Co. That branch .of his appeal must therefore be dismissed.

For the reasons assigned, it is ordered that the judgment perpetuating the injunction, and dismissing the petition of the intervenors in this case, be affirmed with costs; and that the appeal taken by the plaintiff from the judgment rendered against .the defondant in favor of W. Jackson & Co., be dismissed, with ¿costs.


text:
    Chinn et al. v. Roe et al.
    APPEAL from the District'Court of Madison, Curry, J. This case was remanded for the purpose of making new parties, no decision being pro” nounced on the matters at issue.
    A. Pierse, for the plaintiffs. Shannon and Snyder, for the appellants.


author: Slidell, J.

text:
    Galbraith et al. v. Snyder et al.
    A District Court having jurisdiction over the place where an execution is levied, may enjoin the execution, though the domicil of the party at whose instance it was issued be in another parish.
    A judgment allowing a fee to counsel appointed by the court to represent an absentee, is a nullity. No action is necessary to have it declared so. Const, art. 71. C. C. 12.
    Informalities in a seizure may be considered on the trial of an injunction to arrest it, though not set forth in the petition for the injunction.
    Where notes offered in evidence before their maturity, have been withdrawn, by permission of the court on leaving certified copies of them in the record, the levying of a fi.fa. upon the copies of the notes and notice to the maker, will not constitute a legal seizure.
    Where judgment has been pronounced by a District Court, no other District Court has jurisdiction of an action to annul it. C. P 608.
    APPEAL from the District Court of Corroil. Selby, 3.

      R.N., and A. N. Ogden, for the appellants. Thomas, for the defendants.
   The judgment ©f the court was pronounced by

Slidell, J.

Snyder obtained a judgment in the District Court of Madison, against the Planters' Bank, on attachment, on the 30th April, 1846. In this suit the bank was represented by Shannon as attorney ad hoc, under the appointment of the court, and he was allowed in the judgment a fee of $125. Snyder's judgment was for $2,150 and interest, upon which a collection has been made .of $1,073 50.

Upon this judgment in favor of Snyder and Shannon they issued an execution to the parish of Carroll, and attempted to levy upon certain debts, amounting to $90,730 74, due by E. E. Atchison, represented by his six notes secured by mortgage upon lands in the parish of Carroll, which notes, once held by the bank, are now claimed by the plaintiffs to be their property. A few days previously to the seizure these notes had been offered in evidence by the trustees, Mandeville and others, in the two cases now pending in this court, of Bryan and of Chambliss against Atchison, and were then withdrawn by leave of court, on leaving in the record certified copies of them. This so called seizure was made by levying upon the copies of the notes and act of mortgage, and giving notice to the attorney who represented the trustees in those suits and to Atchison. Those trustees were not the present plaintiffs, but trustees appointed by an assignment made by the Planters’ Bank.

The sheriff, after these proceedings, advertised the Atchison debt for sale, and the trustees thou brought the present suit, and enjoined the sale. They allege the forfeiture of the bank’s charter, their appointment, their ownership of the Atchison debt, and the nullity of the judgment obtained by Snyder and Shannon.

Shannon and Snyder excepted to the suit upon two grounds: fix-st, that their domicil is in the parish of Madison, and that they are only suable in that parish ; secondly, that the judgment sought to be annulled was rendered in the District Court of the parish of Madison, and no suit can be instituted in any other court to annul the same.

The first ground has not been pressed in argument by counsel, and is clearly untenable, in a case of this nature. The second ground is clearly untenable, with regard to a portion of the judgment upon which the execution issued. That portion of the judgment which adjudged the allowance of $125 to Shannon, was a violation of a constitutional prohibition, and was a nullity so absolute that no action of nullity was necessary to set it aside. See Constitution, art. 71; and Civil Code, art. 12.

Upon the merits it is clearly shown by evidence admitted without exception, that the attempted seizure was informally made, and although such informality was not one of the grounds set forth in the petition for the injunction, it should have been considered. To permit the consummation by sale of an informal seizure, could lead only to future embarrassment and litigation. The unmatur.ed negotiable notes which the defendants had attempted to seize, and proposed to sell, were n.ot levied upon by the sherilf.

The right of these plaintiffs to stand in judgment as the successor's of the bank, and interfere in these unlawful proceedings against its assets, has been disputed by the defendants. It is unnecessary to enlarge upon this matter here. We considered this subject at some length in the case of the Planters' Bank against Runs, recently decided, ante p. 430; and there held that Galbraith and Cooper, in their capacity of trustees, wei'e to be regarded as the successors of the bank, and were competent to prosecute suits in eur courts. Whether, if the seizing creditor's had made a valid seizure of property, formerly the bank’s, we would not have relieved the plaintiffs by arresting the seizure and restoring the property .to them, is a question not now before us. Here we airest the execution, because it is the execution of a judgment unconstitutional and absolutely void in part; and because the execution of so much of the judgment as is not void on its face, has been conducted informally, and in such a manner a| could pass no valid title to a purchaser, and could serve no other purpose than to cloud the title, and produce future uncertainty and litigation.

We express no opinion as to the nullity of the judgment obtained in the District Court of Madison by Shannon against the bank, after the charter was declared forfeited ; the District Court of Madison is the proper forum for the investigation of that question. Code of Practice, art. 608.

We.also express no opinion as to the validity of the assignment to Mancleville .and others, who are not before us ; nor are we informed in this suit as to the particulars .of the assignment for the benefit of creditors, under which they claim. For the purposes of the present suit Galbraith and Cooper stand before us as the successors of the bank, and have, at any rate, such a residuary interest in its assets, as justified their efforts to protect them against an illegal seizure and informal sale.

It is therefore decreed that the judgment of the court below be reversed, and that the defendant Shannon be perpetually enjoined from executing the judgment rendered in his favor against the said Planters’ Bank, by the District Court for the parish of Madison; that the defendant Snyder be perpetually en-j°ine|I from proceeding to sell under the pretended seizure, made by the sheriff of the parish of Carroll, as by the record in this cause appears, the interest of the Planters’ Bank in the notes therein described; and that the costs in both courts be paid by the said Shannon and Snyder.


text:
    Osburn v. The Planters Bank of Mississippi.
    Where an injunction, obtained by a part}1, claiming to be the owner of certain slaves against an order of seizure and sale, has been dissolved, no appeal being takenfrom the judgment; and, on the removal of tho slaves to another parish, and their seizure under & ji.fa. issued from che court by which the injunction was dissolved, the same party obtains a second injunction, claiming to be their owner and relying on the title held by her at the time of the first injunction, the second injunction will be dissolved, with damages ; and irregularities in the order of seizure and sale, not urged on the trial of the first case, will not be noticed.
    Appeal from the District'Court of St. Mary, Overion, J.

      Shannon, for the appellant. Maskell, for the defendants.
    The matter at issue in this case is res judicata. C. C. 2265. 19 La. 323-328. 10 Rob. 361.
   The judgment of the court was pronounced by

Slidell, J.

In the year 1842, the Planters’Bank obtained, in the District Court for the parish oí Madison, a decree against Ozias Osburn, the husband of the present plaintiff, whereby a judgment theretofore rendered in Mississippi, in favor of the bank against Ozias Osburn, was adjudged executory iu this State, and a writ of seizure and sale was ordered to issue ; and it was further ordered that certain slaves, among which were comprised those now in controversy, should be seized and sold as the property of Osburn. This judgment of the District Court of Madison was thereupon recorded in the mortgage office of that parish, and the slaves were seized. Mary Osburn then, by the agency of her husband, brought suit by injunction, alleging that she was the true owner of the slaves so seized. She prayed that the seizure be set aside, the slaves delivered up to her as her property, and that the injunction obtained be made perpetual. Osburn made a personal appearance in the proceedings, but did not contest their regularity, nor his indebtedness to the bank. Upon the trial of the injunction suit, the court, by a final judgment, sustained the injunction and the title of Mary Osburn as to four of the slaves so seized; but dissolved the injunction as to the residue, which remained judicially sequestered.

By some means these slaves were carried to the parish of St. Mary. The plaintiffs in execution obtained an alias, seized the slaves in that parish, and thereupon Mary Osburn brought the present suit, in which she again restrains the sale by injunction, and asks to be recognised as the owner of the slaves. So far as the plaintiff relied on title existing at the institution of her first suit, the court below very properly dissolved the injunction, with damages. This was an unlawful effort to renew a litigation, which the final decree already stated had effectually barred.

Much has been said in argument, in support of allegations in the petition charging irregularities and errors in the proceedings upon which the decree rendering tho judgment executory was obtained. We do not notice them, because Osburn, the defendant in those proceedings, submitted to them without appeal; the present plaintiff made no complaint on that score in her first suit, and cannot revive such questions now.

The pretended title set up under a deed of, donation from the plaintiff’s brothel-, in 1844, is worthless, as against this judgment creditor, as Osburn, it seems, went into bankruptcy, in Mississippi, in January, 1843. In the schedule of his property he enumerates the slaves in question, with but one exception, as belonging to him. He declares in his schedule that the slaves are in Louisiana, and have been levied, upon by virtue of an order of seizure and sale issued on a judgment in favor of the Planters’ Bank against him and others, and are beyond his control. The assignee Dever had possession of, and did not pretend to sell, the slaves; but advertised and sold the interest, of Ozias Osburn in them, which was struck off to Dean, the brother-in-law ef Mrs. Osburn, for thirty dollars, in 1844, and Dean then made a donation of them to the plaintiff, his sister. Dean was aware of the existence of the suit in Madison, for he had been examined as a witness for his sister in that cause. It is idle to contend that the privilege and mortgage acquired before the bankruptcy by the seizure and possession of the sheriff and registry of judgment, was divested by this mere deed, made by the assignee virtute officii, and for which not even an order of the bankrupt court is shown. The deed itself did not purport to convey an absolute title, but only Osburn's interest. Judgment affirmed.


author: Kihg, J.

text:
    Dowell v. Dawson.
    Where a witness will he equally responsible however the case maybe determined, he is competent; his interest being balanced.
    Appeal from the District Court of Madison, Curry, J.

      Frost, for the appellant. Sanders, for the defendant.
   The judgment of the court was pronounced by

Kihg, J.

The plaintiff sues for the amount of an account for merchandise alleged to have been sold and delivered to the defendant, previous to the marriage of the latter, in the State of Mississippi. The defendant admits that a part of tile account was contracted for her benefit, but avers that it has been paid and extinguished. There wasa judgment against the plaintiffin the court below, from which she has appealed.

During the years in which the account sued on occurred, the defendant was a minor, residing with her brother-in-law, F. H. Claiborne, at whose request the articles were furnished. The evidence leaves no doubt that the credit was given to Claiborne, at whose instance the account was opened. The plaintiff regarded him as her debtor, and requested him to close the account by note, which he did, upon the express condition, that it should be receipted in full and the defendant discharged, that he might be enabled to collect it from the defendant’s guardian. The account was subsequently paid to Claiborne by the defendant’s guardian, and the latter received a credit for its amount in the final settlement of his accounts with his ward, in the Probate Court of Mississippi. The plaintiff appears never to have called on the defendant for payment prior to the marriage of the latter, when the affairs of Claiborne had become embarrassed, and his solvency doubtful. Previous to that time the defendant had accounted for the plaintiff’s claim in the settlement with her guardian. Nor did the plaintiff ever demand payment of the defendant’s guardian, although the latter published notices for several weeks, in a newspaper of the town of Natchez, where the plaintiff resided, of his intention to render his final account of his administration.

The competency of Claiborne to testify has been objected to, on the ground of interest. He will be equally responsible to either of tho parties, whatever may be the result of the suit. His interest is balanced, and his testimony was properly admitted. Judgment affirmed.

       The counsel for the appellant contended that the witness was incompetent from interest, on the ground that, if the plaintiff recovered the witness would bo liable to the defendant for the debt and costs, but, in case of judgment for tho defendant, his liability to the plaintiff would be for the debt, without costs. The court considered the interest of tho witness to have been balanced; and this decision cannot be considered as determining that a liability for costs is not of itself sufficient to disqualify a witness. — Euroii-rEii.


text:
    De Goer et al. v. Kellar.
    Where a promissory note endorsed in blank by the payee and a third person, and delivered by the maker to the syndic of an insolvent in payment of the price- of property purchased at the sale of the insolvent estate, is transferred to a third person by the syndic, without any order of court and in violation of his duty, by an endorsement in blank made by the syndic in his individual name, and the note is transferred to a fourth holder, before maturity, in the ordinary course of business, in good faith, and for a valuable consideration, the fact of tlia transfer by the syndic, without an order of court, will not affect the right of the holder. The creditors of the insolvent must look to the syndic or his sureties.
    Where, pending an action against the maker of a note, the defendant deposits the amount, with the interest and costs which had accrued up to the time of the deposif, with the clerk of the coart, to abide the result of a controversy between the plaintiff and certain intervenors who claimed to be entitled to the amount, the deposit not being a tendel-, and the plaintiff not being entitled by its terms to take the amount, the defendant will not thereby discharge himself from liability for farther interest and costs.
    APPEAL from the District Court of East Feliciana, Boyle, J. This case was tried before a jury, and the plaintiffs appealed from ajudgment, rendered on a verdict, in favor of the intervenors, and against the plaintiffs and defendant. The facts of the case are stated in the opinion of the court, infra.

      T. G. Morgan, for the appellants.
    The note was transferred to the plaintiffs before maturity, and in the usual course of trade. There was nothing on the note calculated to excite suspicion. No notice was given prior to the maturity of the note, tending to show that any third person had any equitable interest therein. The plaintiffs gave a valuable consideration for the note, and are bond fide holders. If they are bond fide holders, they are entitled to recover, and their rights cannot be affected by the acts of antecedent holders. Story on Promissory Notes, ss. 190 to 197. Coolidge v. Payson, 2 Wheaton, 66, 70, 73. Townsleyv. Sumrall, 2 Peters, 170, 182, Sioijt v. Tyson, 16 Peters, 15, 22. Story on Bills, s. 188.

      Z. S. Lyons, on the same side. Muse and Merrick, for the intervenors. No counsel appeared for the defendant.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff seeks to recover from the defendant the amount of a promissory note, made by the defendant and endorsed in blank by Sandell, Sturges and Clark. His claim is resisted both by the defendant, and the commissioners of the Clinton and Port Hudson Railroad Company, who have intervened in the cause.

The material facts in the case are, that one Samuel Clark made a surrender of his property to his creditors, and at the meeting of his creditors was chosen by them syndic of his own estate. Those who voted for him- dispensed him from the duty of giving bond for the faithful performance of his duties as syndic. Among them was the president of the Railroad Company. A sale of the insolvent’s estate took place, and Kellar, having become the purchaser of certain lands thus sold, gave notes for the purchase monej^, among which was the noto now held by the plaintiffs. Clark, without any order of court, or tableau of distribution, passed this note to one Morris, and Morris, before its maturity, negotiated it to the plaintiffs, for merchandise sold by them to him.

The principal contest in this matter has been with regard to a question of fact. The defendant and intervenors contend that, although the last endorsement, that of Clark, now exhibits only the words Samuel Clark, that it once was Samuel Clark, Syndic; that the word syndic has been erased, but in such a manner as that an erasure is apparent.

At the trial in the court below, by agreement of counsel, experts were appointed, who reported that there had been no erasure. The note has been brought up in original. We have examined it, and we are not able to say that there has been any erasure; nor do we see any thing in the appearance of the note calculated to excite suspicion, or justify, in any degree, any imputation of negligence on the part of the plaintiffs in taking the note. It is satisfactorily proved that, the note is now in the same condition in which it was when they received it from Moms; that they took it before maturity, in the ordinary course of business, in good faith, and for a valuable consideration given by them, to wit, merchandise sold to Morris.

In Nicholson, Syndic, v. Chapman. 1 An. R. 222, where a note belonging to the insolvent estate bore the endorsement • G. W. Pritchard, Syndic,’ we said that such an endorsement was notice that the note had once belonged to an insolvent estate, that it was sufficient to put the party on enquiry, and that he was bound to ascertain whether it had lawfully passed from the estate. But here is no such endorsement; and the fact that it once belonged to the estate of Clark, and that he had violated his official duty in transferring it without any order of court, is not sufficient to invalidate the ownership of a bond fide holder. The creditors of the estate must look for their recourse to the syndic, who has proved unworthy of their confidence, and to his bondsman. We could not say • otherwise, without overthrowing a doctrine long established, and essential to the security of negotiable paper.

The defendant, during the pendency of the proceedings in tho court below, moved and obtained leave to deposit in court, in the hands of the clerk, the amount of the debt, interest and costs, up to the time of tho deposit, to abide the result of the controversy between the plaintiffs and intervenors. To this the intervenors only assented, the plaintiffs objecting. The defendant now contends that this discharged him from any further responsibility, and that no further interest can be recovered.

This deposit was not a tender; under its terms the plaintiffs had no right to take the money. It was in no way binding upon them. We must treat it as not made, and give the plaintiffs judgment for the debt, lull interest, and cost.-.

It is therefore ordered that the judgment of the court below be reversed, that the petition of the intervention be dismissed, and that the plaintiff recover of the defendant, George Kellar, the sum of $3,332 66f, with interest from 19th January, 1833, until paid, at the rate of ten per cent per annum, and costs in both courts..


author: Slidem,, J.

text:
    Read et al. v. Ware.
    Where a defendant? seeks*to dissolve an attaóhment on the ground of the'falsehoodof the affidavit made to obtain it, he may proceed summarily, by a rule to show cause. C. P. 258. It is not necessary that such a-defence should be set up by plea or exception.
    If there be an existing debt, the mere fact that the debt is not’ d'ue, will not authorise the1 disobai'ge of an attachment.
    A creditor who has accepted’, for the accommodation of his debtor,-a bill payable a certain number of days after date, drawn by the latter for the amountof the debt, with interest to its', maturity, where the bill has been discounted by a bank and. the proceeds' applied to the ex-tinguishment of the original debt, cannot, before maturity of the bill and its payment’ by him, bo considered as a creditor of the defendant, and as such entitled to an attachment against him. The holder was the creditor; and where, in such a case, an. attachment was' sued out before the maturity of the hill or its payment by the acceptor, a’subsequent payment at maturity, cannot give validity to the attachment previously taken out.
    Appeal from the Commercial Court of New Orleans, Waits, J.

      Mott,for the plaintiffs,
    cited stat. 7 April, 1826, s. 7. Tyson v. Lansing, 10 La. 444. Russell v. Wilson, 18 La. 3691

      L. Peirce, for the- appellant.
   The-judgment of the court was pronounced by

Slidem,, J.

This suit was commenced on the 27th March, 1845, by an attachment, upon an alleged indebtedness, which, with the exception of a small item, consistediupon the face of the petition of a claim not yet due. The defendant in attachment made appearance by counsel, and moved to dissoNe'the attachment on various grounds, among others, that the affidavit was untrue and the suit premature. Upon this rule the plaintiffs appeared and filed an exception praying the dismissal of the rul’e, because the grounds of the rule could only be made available as exceptions to the- suit; and of this opinion was the court below, and the rule was discharged. There was judgment for the plaintiffs, with privilege on the property attached, and the defendant has appealed.

We think the court erred in sustaining the exception to the rule,' and in-giving judgment, with privilege,, on the property attached. The court states as a reason for its opinion, that the grounds of the rule were exceptions to the action, and were available only by exception or plea. The practice of moving to dissolve attachments has been a very eommon one. The reasons for the application may be as distinctly stated in the grounds for this motion as in an exception or plea, and the difference in substance between the two modes of proceeding is not obvious. It is true, also, that such motions involve, to a partial extent, the consideration of the merits of the cause; but the practice has arisen from a consideration of the stringent nature of the remedy. It is very clearly sanctioned by the 258th article of the Code- of Practice, by which the defendant is permitted to prove, in a summary manner, after having given due notice in writing to the adverse party, that the allegations oil which the order for attachment had been obtained wore false ; and where this is done, the Code directa that the attachment shall be dissolved, and the party will be allowed to proceed in his defence as in ordinary suits. The expression “ garnishee" is used in the english text: but this is a mere mistake of translation, as is evident from the french .text and from the context. Similar motions are permitted in the case of arrest. C. P. art. 218. The rule in both cases is .founded on the isame motive — the ¡Propriety of giving summary relief in view of the severe ■character of the remedy, the operation of which might be ruinous to -the defendant if he were compelled to wait the ordinary action of justice. The line which separates a .trial upon the merits fro.n a motion to dissolve, may be difficult to define, and we do not desire to lay down any general rule; but we think it a fair subject of enquiry upon motion, whether there was, at the date of the ■attachment, such an existing debt as authorised.the remedy. The plaintiffs had .sworn, on the 27th March, 1845, that the defendant was justly and truly indebted to them in the sum of $3,404 27, and that he was about to remove his property out of the State before the said debt would fall due. ’Whatever may have been the moral sincerity of the plaintiffs in making this affidavit, if in legal contemplation the defendant was not then indebted to .the plaintiffs, the affidavit was untrue, and they had no right to pursue that remedy. To this point we now address an enquiry, premising that under the statute, if there be an existing indebtedness, the mere fact that it is not due does not authorise the dissolution ■of the attachment.

The state of the case is clearly shown by the plaintiffs’ supplemental petition, end by the plaintiffs’ own witness, examined at tire time on the merits. The 2 laintiffs liad, in the year 1844, accepted for the accommodation of the defendant, three certain bills of exchange, amounting to $3,311 14, to enable him to purchase goods. The defendant was a resident of Jackson, Mississippi; and by means of these goods it was expected that he would be enabled to control and purchase cotton to be shipped to the plaintiffs, who, out of the proceeds, were to pay the acceptances. At the approach of the maturity of the drafts the defendant was unable to ship cotton to plaintiffs, or place them in funds to meet the acceptances; and the defendant promised, that if they would give him an extension of sixty days, he would either ship them a large amount of cotton, or jilace them in funds to meet the renewed acceptance. The plaintiffs accordingly did accept the defendant’s draft for $3,413 45, which draft was dated in January, 1845, and made payable the 1st March ensuing. This draft was for the amount of the three acceptances, which fell due early in February, with interest and commissions added; the proceeds of which were applied to the payment of the three previous acceptances. The attachment issued before the maturity of the draft thus drawn in settlement, and employed in the payment, ■of the three previous acceptances ; it was held by the City Bank, and was not paid by the plaintiffs till the 1st April, five days afterwards.

It cannot be said that, at the date of the attachment, the plaintiffs were creditors of the defendant for the amount of this accommodation acceptance. The holder was the creditor; as between the plaintiffs and the defendants, there was not an existing indebtedness payable at a future day. The subsequent payment of the bill by the plaintiffs, which made them the defendant’s creditor, could not retroact, so as to give validity to the attachment. An attachment must stand or fall according to the state of facts existing at the date of its issuing, and cannot be cured by a subsequent event. To say otherwise would be to say that the defendant was liable to a double attachment at the same time, one by the bill holder and one by the accommodation acceptor. See Blanchard v. Grousset, 1 Annual Rep. 98. Black v. Zacharie, 2 Howard, 510.

We are of opinion that tire attachment was improperly issued, and should have been dissolved.

The judgment, so far as it grants a privilege on the property attached, is erroneous; but the plaintiffs had aright to prosecute their suit, independently of the attachment, as the defendant made appearance,and a supplemental petition was filed by the plaintiffs after the draft became due and was paid by them.

It is therefore decreed that the judgment of the court below be so amended as to be a judgment against the defendant personally, but without privilege upon the property attached; that the said attachment be dissolved; and that, the plaintiff pay the costs of this appeal, and those of the court below incurred by the attachment.


author: Rost. J.

text:
    Bemiss v. Hawkins et al.
    The contract of sale requires a concurrence of wilKboth on the part of the vendor and vends®,
    Appeal from the District Court of Madison, Curry, J.

      Thomas, for the plaintiff. T. F. Farrar, for the defendants.
   The judgment of the court was pronounced by

Rost. J.

On the 23d day of January, 1841, Alfred Foioler was arrested for debt, in the parish of Concordia, on the affidavit of one of the defendants, in conformity with the provisions of the act. of 1828, which authorised that mode of proceeding, and made it incumbent upon the plaintiff to file, on the following day, the petition setting forth his cause of action. With the consent of Hawkins and Slansbury, Fowler surrendered two slaves to the sheriff, to secure the debt, and was released. On the same day Fowler sold to V. T. Rodgers these two slaves, wilh a number of others, by an act under private signature. John B. Bemiss, the plaintiff in this suit, was a subscribing witness to that act. Fowler subsequently went before a notary in the parish of West Feliciana, and there acknowledged his signature in presence of the said notary and of two witnesses.

On the 25th of January, 1841, John B. Bemiss, acting as the attorney in fact of Fowler, entered with Ilawkins and Stansbury into au agreement, by which the two slaves surrendered by Fowler were to be delivered to the sheriff of the parish of Madison, and to be retained by the said sheriff till the amount of the indebtedness of Fowler to Hawkins and Stansbury should be ascertained, by arbitrators to be chosen by both parties. The arbitration was to take place within sixty days from the date of the agreement; and, if it did not take place within that time, Ilawkins and Stansbury were at liberty to proceed with their suit against Fowler, and the negroes were to be restored to the possession of the sheriff of the parish of Concordia. On the 27th of January, Bemiss entered into another agreement, by which he was to keep the slaves in his own possession, and to be responsible to Ilawkins and Stansbury for their forthcoming.

The arbitration did not take place within the time fixed, and Hawkins and Stansbury having failed to file their petition as required by the act of 1828, d,eprived themselves of the faculty, reserved to them by the agreement, of proceeding with their suit against Fowler. On the 31st of January, 1842, Hawkins and Stansbury proceeded by attachment against Fowler, in the parish of Madison, and one of the slaves in the possession of Bemiss was attached as the property of Fowler. Judgment was rendered in favor of the attaching creditors, and the slave attached having been seized and advertised to satisfy it, the plaintiff in this suit enjoined the proceedings, on the ground that he had purchased the slave from Rodgers, before the suing out of the attachment; that no property of Fowler had been attached; that tho judgment rendered against him was an absolute nullity ; and that, if it had b.een valid, the slave attached could not be sold to satisfy it. The court below perpetuated the injunction, and Hawkins and Stansbury appealed.

The sale from Rodgers to Bemiss is an act under private signature, which has never been recorded, and the appellants contend that it is without effect as to them. This question is one of great difficulty, but we are of opinion that this case does not turn upon it.

The sale from Fowler to Rodgers was made on the veiy day .on which Fowler gave the two slaves in pledge to Hawkins and Stansbury, and the plaintiff in this suit was a witness to the deed. Rodgers did not accept the sale, and so far from there having been a delivery of those two slaves to him, he was present when they were delivered by Fowler, as his own, to the sheriff, and suffered them to bo represented as such.

From that time the plaintiff acted as counsel and agont of Fowler, and throughout the proceedings which took place continued to represent those slaves to the defendants as the property of his clients. Those representations are found in his receipt for the slaves, and in his agreement to submit the claims of the defendants to arbitration. On the 25th of March, 1841, he wrote to them, after stating that he wras without advices from Fowler: “ I shall, in the mean time, see that the negroes are safely kept to answer your claim, more positively, as I want whatever they may bring over paying you, myself. If your claim was a note, I should like to make an arrangement to take it, and then take the negroes.”

Under this state of facts the conclusion is irresistible, that the sale from Fowler conveyed no title to the slave attached, which Rodgers himself could set up. The contract of sale requires the concurrence of the will of the selle)' and of that of the purchaser. But here neither existed, and we must hold the sale of the slave to have been amere simulation. Its being acknowledged by the vendor, in the parish of West Feliciana, and recorded in the parish of St. Mary, cannot make it a real contract; and besides, the sale to the plaintiff is anterior in date to these proceedings. The line of conduct pursued by Bemiss induced the defendants to act, and procured the release of his clients from imprisonment. He could not, probably, under any circumstances, avail himself of an outstanding title, which he knew to exist at the time, and in the execution of which he appears to have acted as .counsel. 1 Greenlenf, Evid. no, 27,

But we ai;e.of opinion that no outstanding title to the slave attached has been shown, and that the defendants are entitled to proceed under their execution.

It is' therefore ordered that the judgment in this case be reversed; that the injunction be dissolved, with ten per cent interest on the amount enjoined; and the defendants allowed to proceed under their execution. It is further-ordered that the plaintiff pay the costs of both courts, and that there be judgment in solido against the plaintiff and A. Matthews, his surety in the injunction bond, for the amount of interest allowed.

       This act purports to have been executed on tho 9th of April, 1841.


text:
    Henderson v. Wilcox.
    Where a judgment pronounced by the Supreme Courtis absolute and unconditional as to the matters which it professes to decide, its execution cannot be enjoined by a party, while litigating other matters in controversy, which the judgment had reserved.
    Appeal from the District Court of East Baton Rouge, Burk, J.

      Elam, for the appellant. T. O. Morgan, for the defendant.
   The judgment of the court was pronounced by

Slidell, J.

The subjects in controversy between these parties were before the Supreme Court some years since, and a decree was then made which will be found reported in 7 Robinson, 338. When the judgment of the Supreme Court was recorded in the District Court, an execution was issued, and Stephen Henderson then obtained an injunction to restrain the execution. This he had no right to do. The decree of the Supreme Court was not conditional, but absolute, as to the matters which it professed to decide. That judgment should have been satisfied by Stephen Henderson, and he had no right to restrain its execution, while attempting to litigate the other matters of controversy, which the decree of the_ Supreme Court reserved. See Durnford’s Succession, 1 Annual Rep. 92.

The record now presented to us is confused and irregular. This is perhaps in a great degree owing to the course pursued by the appellant, in attempting, in a petition which is obscure in its character, to blend matters finally decided with those which had been reserved. There was a verdict and final judgment iu favor of the appellee, which the plaintiff, Stephen Henderson, brings before us for revision.

We have not the means of saying whether this verdict has done justice between the parties. The court below properly dissolved the injunction, and should have also dismissed the suit upon the exception of the defendant. The latter was not done; the court retained the case for trial on the merits; but, in doing so, restricted the testimony within narrower limits than the reservation of the Supreme Court authorised.

We shall dismiss the suit as was originally claimed by the appellees, leaving Stephen Henderson to obtain, by new and independent proceedings, the investigation of the claims reserved by thp decree of the Supreme Court.

It is therefore decreed that the judgment of the court below be reversed, and that the suit of the said Stephen Henderson be dismissed as in case of non-suit, he paying the costs of the court below, and the appellee paying those of this appeal.


text:
    Gibson et al. v. Foster et al.
    In cases of attachment, as in others, all irregularities in the proceedings anterior to tbe1 judg' ment, except an entire want of citation, musfcbe corrected by appeal, or in some direct proceeding instituted before' the same court, to set aside such irregular proceedings ; their validity cannot be questioned collaterally.
    Previous to the promulgation of the-Code of Practice, and the repeal of the Spanish laws by the' stat. of 25 March, 1828, s. 25, the fact of the judge being interested in the event of a suit-did not render the judgment a nullify. Unless the judge wasreeusedon the oath of a party it was his duty to decide the cause. 3 Part. tit. 4,1.22. *

    Tbe provision of art. 12 of the Civil Code that, whatever is done in contravention of a prohibitory law is void although the nullity he not expressly declared, is taken from the 5th law, of the 14th title, of the 1st book of the Justinian Code, and mnst be interpreted in connection with another rule, adopted in the jurisprudence established under that Code, that Multa fieri 'prolhibentur, qua si facta fuerint obtinent firmitatem.

    Judicial proceedings before a competent tribunal will not be treated as nullities for defects of form only, hut in cases expressly provided for by law, or within the legal intendment of art. 12 of the Civil Code, as fixed by tbe jurisprudence of tbe country from which that article was adopted.
    After the lapse of twenty years, a probate sale will not be annulled, on an allegation that tlio judgment ordering the sale was rendered without the citation or appointment of an attorney to represent the absent heirs, supported by the evidence of a judge of the court, subsequently appointed and then in office, that he had examined the records without being able to find the appointment of an attorney to represent the absent heirs, or any citation issued, before the judgment ordering the sale, to any one purporting to be the attorney of such heirs. Per Curiam: The ground taken goes to charge the curator and the court with culpable neglect of duty, and it must be proved by the party maintaining it, though involving a negative. In the vemoteparishes of this State, for the want of suitable buildings and suitable keepers, proper care bas not been taken of judicial records; many have been entirely lost, and, in many cases, those which remain are incomplete ; and if the validity of titles acquired under judicial sales within the last forty years were to be tested by the judicial records in existence at any subsequent period, time, instead of healing, as it should, the defects of those titles, would gradually weaken, and eventually destroy, them. The presumption omnia rite achat which attaches to judicial proceedings, is not to be rebutted by tbe remote presumption resulting from the evidence adduced in this case.
    A judgment ordering the sale of the property of a succession, rendered at the suit of the curator, without the appointment of an attorney to represent the absent heirs, is not a nullity. Per Curiam: The curator represented the succession, and had the capacity to provoke a sale of its property. The stat. of 22 February, 1817, making it his duty to prove, contradictorily with the attorney of absent heirs, that the sale was advantageous or necessary, is merely directory; it contains no prohibitory clause; and although its non-observance may, in certain cases, subject the curator to damages at the suit of the absent heirs, it is one of those informalities anterior to judgment, which cannot be enquired into collaterally.
    APPEAL from the District Court of Concordia, Gurry ¡ J. This is a petitory action, brought by Simeon L, Gibson and others, against Foster and Reese, to recover a tract of land ; they claim as heirs of Simeon Gibson, deceased. Foster disclaimed title, and prayed to be dismissed from the suit, which was done with the consent of the plaintiffs. The other defendant, Reeset filed a general denial; he claims title, but does not mention from what source. Mary Sargent and others filed a petition ofintervention, claiming the land against both plaintiffs and defendants. To this petition of intervention, the plaintiffs answered by a general denial. The defendant filed a similar answer. The death of the intervenor, Mary Sargent, having boen suggested, her executor,
      Scrgent, was allowed to intervene. Pie, as executor, and Stockton, as tutor of the minors Thompson, filed a petition of intervention, adopting tho petition theretofore filed by the intervenor. The plaintiffs afterwards filed the following plea: “The plaintiffs plead the prescription of ten years against the estate of Jonathan Thompson, as against a Vacant succession; and the prescription of five years against informalities in public sales, and prescription generally against the claim of intervenors.”
    The capacity of the plaintiffs and of the intervenors was admitted; it was also admitted that Reese, the defendant, is the legitimate son of Ebenezer Reese, the original grahtee of the land in controversy. All the parties claim under Ebenezer Reese[: the defendant Reese, as son and heir; the plaintiffs and intervenors, in virtue of a sheriff’s sale, made to John Taylor, in the year 1812, under an execution, issued in the case of Seth Lewis v. Ebenezer Reese. Plaintiffs and intervenors offered the record in that suit to establish said sheriff’s sale. It was admitted by the defendant, that the sheriff’s deed to John, Taylor was duly recorded in the proper office, and that the heirs of Taylor, after his death, conveyed all their interest in the land to Jonathan Thompson, and that their deed was duly recorded. The plaintiffs asserting that they had succeeded to Thompson's interest, set up a probate sale of the land, provoked by Davis, the curator of the succession of Thompson, and for that purpose offered several doeuxn'e'nts containing parts of the probate proceedings, among which are the.appointmentof Davis as curator, the'inventory and appraisement, his petition for a sale of the effects of the succession, and the judges order thereon, the procés-verbal of the sale, and the deed of Davist the curator, to McNeil, to whom the land had been adjudicated at the alleged probate sale ; it was admitted that all the interest of McNeil, if any he had, passed by sevex-al mesne conveyances, to the father of the plaintiffs. To show that the estate owed debts in Mississippi, plaintiffs offered in evidence proceedings in the Probate Coux-t of Adams County, Mississippi, provoked by the administrator of Thompson’s estate in that State. The intervenors contended that the probate sale, provoked by the curator, Davis, was illegal and void, for several reasons, the chief of which was the failure to appoint an attorney to represent the absent heii’s. They offered the testimony of file judge of the Px-obate Court, to show that no attorney for absent heirs was appointed before the year 1831; the probate sale relied on having taken place on the 22d of February, 1825. It was admitted by the intervenors that they did not claim the succession of Thompson till tlxe year 1839, aud that theyjmade no application to the Pi’obate Court of Concox-dia, to be recognised as heii's, &c., till the year 1843. It is admitted by all parties, that no pei-son ever was in possession of the land until the defendant took possession, a few months px-ior to the institution of this suit. The court below l'ejected the demand of the intervenors, and gave judgment in favor of the plaintiffs, and against the defendant, for the land in controversy. From this judgment the defendant and intervenors appealed.

      Stacy and Sparroio, for the plaintiffs.
    Both the judicial sales were made by virtue of judgments of courts of competent jurisdiction lor the payment of debts, which judgments protect tho pux'chasers under thorn. Those judgments stand unroversed and unannulled, and cannot be attacked collatei'ally in tho manner attempted ; and so long as they stand the sales must stand also. See Lallanne’s Heirs v. Moreau, 13 La. 432. Thompson v. Tolmie, 2 Pelei’s, 166. 1 Petex’3, 339. 3 La. 518. McComb’s Heirs v. Dunbar, 14 La. 146. Graham’s Heirs v. Gibson. C. P. arts. 604, 605, 606, G08, 610, 611. Bank oj the United

      Stales v. Bank of Washington, C Peters, 8. Voorhees v. Bank of the United States, 10 Peters, 449. Wisev. Sloman, 3Cranch, 300.
    The only objection to the validity of the sale of the property of the succession of Thompson is the supposed omission to appoint an attorney of absent heirs, There is no proof that one was not appointed. All that is proved is, that the records of the Probate Court do not exhibit proof of any appointment. This at best only furnishes a presumption of the fact alleged. What are the adverse presumptions 7 As to the proceedings of courts, that omnia rite acta, that they have done their duty. He who alleges the contrary must establish the fact by positive proof. He who charges a culpable breach or omission of duty, especially upon any officer, is bound to prove it, although it involve a negative. Hicks and Wife v. Martin, 9 Mart. 48. Morgan v. Mitchell, 3 Mart. N. S. 576. These proceedings were had more than twenty years ago, before the existence of our present Codes, in a new, sparsely settled country, whei'e the records of the courts were irregularly and carelessly kept. Is not the legal presumption, then, a reasonable one in point of fact, that the legal and necessary acts were done, the appointment of attorney made, and that the papers have been sineo lost or abstracted 7 See Fink v. Lallande, 16 La. 556. 16 La. 433. 3 Rob. 377, Purchasers have not the custody of such muniments of title, and it would be hard that they should be made to suffer from their loss. Much must be presumed in favor of ancient titles, and of every link in the chain composing them. 13 Peters, 410.
    But were we to admit that no attorney ever was appointed, it could not have the offoet of annulling the sale as to innocent and ignorant purchasers. Previous to the act of 1817, the attorney of absent heirs had no voice in making the sales. By that act an advisory power was conferred upon him. The record shows the succession of Thompson to have been deeply insolvent. The heirs of Thompson then had no right to be represented; his succession was a matter of interest only to the creditors. Poullnev's Iieirs v. Cecil's Executor, 8 La. 321.

      Frosti for the defendants.
    1. A judgment rendered without citation, or appearance, is a nullity, and may be attacked collaterally. 5 Mart. 465. 6 lb. 756. 5lb. N. S. 656. 10 La. 328. 8 Mart. N. S. 145. 14 La. 38. 5 Rob. 418. 4 Peters, 474. 2 Peters, 163. 2. A citation or appearance is necessary to give jurisdiction. 5 Howard Miss. Rep. 517. 1 Smedes and Marshall, 368, 5 Wendell, 75. 3. Where a party relies on a judgment rendered by summary or statutory process, the record must show a compliance with the requisites of the statute. 3 Littell, 40. 3 Dana, 373. 10 Yorger, 314. 7 1b. 366. 6 lb. 482. Har. and John. 36, 130. 8 Cowon, 370. 3 lb, 208. 20 Pick. 421. 4 Peters, 359, 466. 4. Where a form is givenby statute it must be strictly followed, particularly in summary or statutory proceedings. 11 Mart. 610. 1 Mass. 426. 5 Howard Miss. 299. 22 Wend. 135. 20 lb. 249. 2 Smedes and Marshall, 219. lKent. 466. Plowden, 103. 1 Smedes and Marshall, C. R. 188. 3 Smedes and Marshall, 47.
    5. Where a judge is interested his judgment is a nullity, 21 Pick. 105.
    6. Lapse of time creates a presumption in favor of the regularity of judicial proceedings; but when the record shows affirmatively irregularities, this pre ■ sumption fails. 2 B. Munroe, 457. 4 Binney, 97.

      H. A. Bullard, on the same side.
    Neither the plaintiffs nor the intervenors can succeed in this case, without showing that the ancestor of the defendant was divested of title, by the proceeding in attachment in the case of Lewis v. Reese. We contend that his title was not divested, because the proceedings against him under the attachment laws existing, at that period, were irregular and void.
    If there be any principle well settled in all the States, and especially in Louisiana, it is that the forms of law required in cases of attachment against absentees are to be strictly pursued; and that, when the law has required in lieu of a personal citation certain notices and publications, in derogation of the common right to be heard before condemnation, the courts will take nothing for granted, and will require a rigid compliance with all the forms indicated by the statute. The authorities are so numerous on these points, that it is not necessary to refer to them particularly.
    This principle applies to tax sales and other ex parte expropriations of property. A remarkable case, decided by Chief Justice'Marshall, is referred to in the argument. In casos where there has boon a judgment after personal service of process, the rule is that, on tho production of a sheriff's deed, orjudgmeat and execution, the party sotting up title may rely on the presumption, omnia rede cl rile acta; but in other cases, such as attachments, he must show the strict regularity, of all tho proceedings as a substantive part of his title ; because otherwise the court would bo without jurisdiction ralione personas.

    A-nother principió equally clear is, that the attorney appointed to defend an absentee cannot waive any of the forms of law required to bring the defend-nut-into court. His consent, or neglect, to avail himself of defects in the proceedings,- cannot prejudice the absentee.
    Starting with these well established doctrines,, let’ us. enquire how far the proceedings, as shown by the record, were in conformity With tlie statutes of 1805 and 1807, then in force.
    1st. As to the attachment bond. The act of 1807 requites that the bond-should be given in double the amount of the debt sworn to. Now, in this case,, the debt sworn to was a certain amou nt of capital and interest; and the bond was for only double the principal! If the attorney appointed to represent the absentee' had moved to set aside tho attachment,- it cannot be doubted- ha would have succeeded. This principle was sanctioned by the late court in relation to appeal bonds, when the question arose whether the appeal was suspensive. If seems to me to apply with greater force in cases of attachment, in which great strictness is required. The want of such a bond is a nullity, which the party-' to bo affected may urge at-any time.
    2d. The writ was not such as the statute required!- The writ, and its posting. up and-service at the last place of abode of the defendant, stand in lieu of a cita-tion. The sheriff is required to post it up in particular places in french and.enghsh. In this case, it is not required in french. At that period petitions were required to be in both languages, whatever may have been the mother'. tongue of the defendant. See the form of the writ in the statute of 1805. By' the existing law,-a citation is required. Ás it stood under the territorial law-' there was no citation, but tho servioe of-the writ in french and english, at the' last abode of the defendant, and on the church door, was required in lieu of it-That caunot be dispensed with.
    3d- But admitting that the form- of the writ was such as tho statute required,-it no where appears on the record that it was served,-as required. Tho" only return of the sheriff is the ward ‘■‘■served.” Nothing can be tallen by intendment in such proceedings. The facts, the maimer of'service, should have" appeared by the sheriff’s return, in order that the court might determine whether there was a- sufficient compliance with the statute. I repeat that, in at- _ tachment cases, forms are substance ; and men cannot be validly deprived of their property without being made parties, either personally- by service of citation, or by the publications and notices required by law in cases of atlacliment.-
    4th. Suppose, however, the word served fulfils the requisites of the law as to-service of the writ; yet if the writ itself was defective, and did not require: notices to be given in both languages, it cannot be inferred from the return that-such notice was given. On the contrary, tailing.the return as showing-a-notice" as required by the-writ, it is not the notice required by the statute.

      Stockton and Steele, for the intervenors.
    L. The Parish Court of Concordiawas a court of competent jurisdiction, and the sale of the land under its process,» as the property of Rbcnezcr Reeso, issued on. a judgment regularly rendered-by said court, conferred a good and valid title on the purchaser, Taylor-, from whom it passed, by descent, to his heirs, who transferred it to Thompson'.

    2.- Thompson possessed the land under a good and valid title, which was not' legally divested by the pretended probate sale set up by the plaintiffs, and it is,therefore, the rightful property of the intervenors.
    3. The pretended probate sale is illegal and void, because: 1st, there was no' sufficient showing made to the Probate Court, of the necessity for a sale ; 2d,. there was no'sufficient inventory; 3d, there was no attorney appointed by the' court to represent the absent heirs ; 4lh, there was no reason assigned for the sale;in the order of the judge ; 5th, the property did not sell for two-thirds of its appraised value; 6th, the order of court for the sale,-did not fix the terms thereof; and the terms on wlndr the property was sold, were not such as was then required and authorized by law.
    The counsel for tho intervonors maintained in an elaborate argument, the validity of the salo in the suit of Lewis v. Reese, and tho nullity of the probate sale' of Thompson's succession,
   Tho judgment of the court was pronounced by

Rost, J.

The plaintiffs, alleging themselves to bo the heirs of Simeon Gibson, have instituted this action to recover a tract of land from the defendants. Foster disclaimed title. 'Reese filed an answer containing a general denial, and an averment of title in himself. Mary Sargent and others intervened, claiming the land against both plaintiffs and defendants. The original parties filed a general denial to the petition of intervention. Mrs. Sargent, one of the .inter.venors, having died after issue joined, her executor, and the tutor of two minor heirs, came into court and adopted the petition of intervention. The plaintifls subsequently-filed the following plea: “ The plaintiffs plead the prescription of ten years against the estate of Jonathan 'Thompson, as against a vacant succession; and the prescription of five years against informalities in public sales; and prescription generally against the claim of-the intervener.” Tho .court of the first instancegave judgment in favor of tho plaintifls, and 'both the defendant and-the -intervenors appealed.

A-U the parties claim under Ebenezer Reese, the original grantee; fhe.defend•ant, Reese, -as -his son and heir, and the plaintiffs and intervenors, under a sherifl’s sale, made to J. Taylor, in 1812, at the suit of Seth Lewis v. Ebenezer Reese. It is admitted by the defendant Reese, that 'the sheriff’s deed was duly recorded in .the proper office, and that, after tho death of Taylor, his heirs convoyed the laud to Jonathan Thompson, by an act also duly recorded. The .capacity of the plaintiffs, of the defendant, Reese, and of the inter.venors, are .admitted. It is also admitted that none of the parties over were in actual possession of the land,.until tho defendant .entered ..upon it, .a few months prior to .tho institution of this suit.

I. The judgment in-the attacihmeut suit of Seth Lewis v. Ebenezer Reese was rendered by a court of compotent jurisdiction, contradictorily with the attorney .appointed to represent the absent debtor, .and after a reasonable timo had been allowed him to correspond with.his client and file his answer. Under the laws in force at the time, all errors and irregularities in the proceedings, short of a total want of citation, .could only be taken advantage of on a motion to dissolve the attachment, made in limine litis. After tho trial had begun, that motion was no longer entertained, and the irregularities were considered as cured. Watson et al. v. McAllister, 7 Mart. 368.

In the case of Cox v. White, 2 La. 422, the plaintiff contested .collaterally the ' validity of .an attachment, on the main ground taken in this case, to wit, the insufficiency of the service of the writ. Judge Mathews, in delivering the opinion of the ..court, said: “ Objections are made in the present case to the regularity and legality of the proceedings in the attachment, which, if it were by appeal, or in any other legal shape, now before the court, would perhaps be .entitled to great weight. The judgment .therein rendered must be considered as res judicata between .the parties, and as having settled all disputes between thorn in relation to the property attached, however irregular the proceeding may have been. All defects in the .commencement and prosecution of that suit, must be viewed as cured by the finaljudgment, in relation to all parties who had no complete and vested rights in the property attached, .at the time of rendering it.”

In cases of attachment, as in others, the settled jurisprudence of the State is that, all irregularities in the proceedings anterior to the judgment, except an entire want of citation, are to be corrected by some direct proceeding before the ,?auje .court to set' them aside, or by appeal; and that, their validity cannot be drawn into question collaterally. The absolute nullity contended for, as resulting from the interest of the judge in the event of the suit, was not recognised by the l.aws then in force. Under those laws, judges could be recused on the .oath of a party litigant, that he had miedo y sospecha of them ; and, unless the recusation was made, it was their duty, as it is ours, to proceed and decide. L. 22, tit. 4, Part 3.

It is contended that prohibitory laws have been disregarded, and that, by an express provision of the Civil Code, whatever is done in contravention of a prohibitory Jaw is void, although the nullity be n.ot formally directed, C. C. art. 12. This disposition was .extracted from the law 5, titje. 14, book 1st, of the Justinian Code; but the jurisprudence established under it, sanctioned also another rule which lias been incorporated in the jurisprudence of all countries ; it is the maxim, Multa fieri prohihentur, quce si facta fuerint ohtinent firmitatem, These two rules should be interpreted by each other; the first being intended for the maintenance of public order, and reasonable certainty in the muniments of titje, and tho second for the preservation of property and the rights of labor.

The first rule is considered by all commentators as applying to a veiy small number of cases, and not even to all cases invoking considerations of public order. We conceive that the same thing results, not only from the general tenor of our Codes, but from the very institution of property. Under the doctrino contended for at bar, the surest way to destroy priyate rights would be to ascend to their origin, and the institution of property would in effect be destroyed by the laws made for its preservation.

It is not however necessary to go farther into that enquiry in the present .case. We cannot go beyond the judgment; the laws alleged to have been disregarded in the proceedings subsequent to it were not prohibitory. They do not fall under the rule contended for; and where defects of form only are alleged, we disclaim all power to extend nullities to cases, neither expressly provided for by the lawgiver, nor coming within the legal intendment of art. 12 of the Code, as fixed by the jurisprudence of the country from which it is derived.

II. The only serious objection raised to the validity of the probate sale of the land in the succession of Jonathan Thompson is, that no attorney was appointed to represent the absent heirs, and that the decree ordering the sale was not rendered contradictorily with such an attorney, as is required by the act of 1817. The only proof adduced in support of this allegation is the declaration .of a subsequent judge of the same court, made at the trial in 1845, that he had searched the records, and had found no appointment of any attorney to represent the absent heirs of Jonathan Thompson preyious to the year 1831, and no citation issued, before the judgment ordering the sale of the property, to any one purporting to be attorney of absent heirs.

The ground taken by the intervenors goes to charge the curator and the court with a culpable neglect of duty, and it must be proved by them, though it involves a negative. 3 Mart. N. S. 576. 1 Greenleaf, Evid. nos. 19, 20, 21, 80.

Considering the time and the locality when and where these proceedings took place, the evidence alleged is not satisfactory, and would probably not be so in jn any case. It is well known that in the remote parishes of the State, for the want of suitable buildings and responsible keepers, proper care lias not been taken of judicial records; that many are entirely lost; and that those which remain are often in an incomplete and dilapidated state. Much the greater part of the real property of the State is held under probate or sheriff’s sales; and if the validity of the titles thus acquired during the last forty years was to be tested by the judicial records as they might exist at any subsequent epoch, time, instead of healing, as it should, the defects of those titles, would gradually weaken, and eventually destroy, them.

The presumption of omnia rile acta, which attaches to judicial proceedings, is not to be rebutted by the remote presumption resulting from tho evidence adduced in this case. The defendant was not the keeper of the records, and is not bound to account for their loss. There may well btwe been a curator of absent heirs before 1831, as there was one after that time, and he may have waived the formality of citation. The decree ordering the sale was rendered by a court of competent jurisdiction. We are bound to believe, against mere probabilities, that the judge did his duty, and to presume, at this late period of tima, that all the parties interested had notice of the proceedings. 1 Greenleaf, Evid.no. 19.

But if jt were true that no attorney had been appointed to represent the absent heirs when the decree ordering the sale was made, that decree would not be ,an absolute nullity by reason of the omission. The .curator was the representative of the succession, and had tho capacity to proyoke the sale of its property. The act of 1817, making it his duty to prove, contradictorily with the attorney of absent heirs, that the sale was advantageous or necessary, is merely directory; it contains no prohibitory clause; and although its non-observance might, in certain cases, subject the curator to damages .at tho suit of the absent heirs, it constitutes one of those informalities anterior to the judgment which ¡cannot he inquired into collaterally.

There is no error in the judgment appealed from.

Judgment affirmed.

       Tho order for the sale was made on tho 21st January, 1825, and the sale lo.ok place on tho 22d of February following.