text:
    No. 848.
    John A. Haynes vs. J. B. O’Neil, Sheriff, et al.
    A judgment debtor against whom a final judgment has been rendered, can not enjoin the execution of the judgment on the ground that the mortgage on which the judgment was based had perempted before the judgment was rendered. As-to him, the question of peremption is res adjudicata,.

    APPEAL from the Eighteenth Judicial District Court, parish of Bossier. Turner, J.

      J. D. Waflcins for plaintiff and appellant.

      J. A. Bnider and L. M. Nutt for defendants and appellees.
   The opinion of the court was delivered by

Manning, C. J.

On January 14,1867, John Pickett sold two hundred' and seven acres of land to Pierce M. Butler and Andrew P. Butler for ten thousand three hundred and seventy-five dollars payable in gold coin, one fourth of which was paid cash, and for the residue three notes-of equal sums were given, payable in one, two, and three years from date, with interest. The payment of these notes was secured by the vendor’s lien, and by a special mortgage which was recorded in the proper book January 17th. 1867.

One-of these notes was subsequently acquired by M’Calla, another by Preston, and the third by J. B. Pickett. M’Calla sued on his note,, and obtained judgment against the Butlers, with recognition of the mortgage on March 27, 1868. Afterwards Pierce Butler conveyed his undivided half of the land to the holders of the notes in payment of his part of the unpaid purchase price. Andrew Butler went into bankruptcy, and his interest in the land was sold by Norton, assignee, to Haynes in June 1870 for six hundred dollars.

On January 7,1874 the three holders of the notes then brought suit against Haynes to resolve the sale, and judgment was rendered in their favour in April, 1876. The pleadings were changed during the trial, but we omit the detail of that case, because it is accessible to the profession. Vide Pickett v. Haynes, 28 Annual, 844, from which it will be seen that this Court affirmed the judgment of - the District court in July 1876, and on a writ of error to the Supreme Court of the United States, this court’s judgment was affirmed March 13 1877. The judgment thus affirmed was that Haynes" “ shall pay to said plaintiff within six months from the date of this judgment the sum of three thousand eight hundred and ninety dollars and ninety cents in gold coin of the United States, and eight per centum per annum interest thereon from the 14th. of January 1867, and all costs of suit, and in default of such payment by said defendant Haynes, it is further ordered that he shall surrender to be sold for satisfaction of plaintiff’s mortgage the undivided one half interest in the tract of land described in plaintiff’s petition as the whole of (here follows the description.) It is farther ordered, adjudged, and decreed that plaintiffs’ special mortgage and vendor’s privilege upon this tract of land be recognized, foreclosed, and enforced for the amount of this judgment, if said sum of money be not paid to plaintiffs by Haynes the defendant within six months from this date.” The date is April 1,1876. The appeal of Haynes was suspensive.

The mandate of the Supreme Court of the United States, remanding the case for execution to the State tribunals, bears date June 25,1877. The certified copy thereof issued from this court, with copy of its judgment, August 1,1877, and on the seventh of that month, an execution issued from the District Court of Bossier to enforce it.

Meanwhile the mortgage had perempted. Ten years from its inscription had expired the previous January, i. e. on Jany. 17,1877.

The writ of fieri facias having gone into the sheriff’s hands, Haynes injoined its execution upon the ground that he had bought the M’Calla judgment, and that the mortgage had perempted, in consequence of which the other plaintiffs in the suit against him had lost their mortgage upon the land. That is the present suit, and the writ of injunction bearing date September 26,1877.

The answer specially denies Haynes’ purchase or ownership of the M’Calla judgment, and it turned out that he did not own it, and pleads the judgment in Pickett v. Haynes, which we here quoted at length, as res adjuclicata. In further defence it is pleaded that if the mortgage of January 1867, which, was recognized by the judgment of April 1876, had perempted in January 1877, which is'denied, that such peremption does not affect the judgment of 1876, upon which the ft. fa. that is injoined, issued. When this answer was filed does not appear, the clerk having failed to copy in the transcript the filing of any of the papers.

The case was tried at the March term 1878. On the 28th. of that month the plaintiff pleaded prescription to the M’Calla judgment. Ten years had expired on the day before, viz March 27th. and it had never been revived. The plaintiff had based his injunction partly on his alleged ownership of this judgment, and on proof that his claim to it was without foundation, then attacked it with the plea of prescription.

Thus it will be seen that the plaintiff’s right to arrest the sale is based upon the alleged peremption of the mortgage, and the alleged prescription of the judgment upon a part of the mortgage debt. The defendant argues that the mortgage did not perempt — that as to Haynes, no reinscription was necessary because he had prevented its foreclosure by contesting the suit of the holders of the mortgage notes having that foreclosure for its object — -that he had appealed suspensively from the j udgment, ordering the foreclosure, and the time had meanwhile expired —-that the prescription of the M’Oalla judgment had been acquired pendente lite, and was completed and pleaded on the eve of the trial of this injunction suit, the judgment in which was signed March 30,1878.

These are interesting questions, but they are not vital to this cause. Whatever may have been the rights lost by this lapse of time, the parties here are concluded by a judgment rendered between them in June 1876, whereby Haynes was decreed to pay the plaintiffs in that suit (defendants in this) a specified sum of money, with the faculty of relieving himself of that obligation by delivering up a specified thing. That this judgment was personal as to him — that it bound him by its terms to that payment — and that it could be discharged only by payment, or by surrendering the land, is very clearly expressed.

It must be observed that we are not concerned with the regularity of the pleadings in that cause, nor the rightfulness of that judgment. Its sanction by three courts leaves nothing for us to do but to examine its terms, and ascertain what the present plaintiff is condemned to do. There are no third parties whose rights are even remotely affected by the failure to reinscribe the mortgage, or to revive the judgment. In a legal contest between the only parties who pretend to have any interest in, or rights upon the land, which contest was an attempt to enforce those rights on the one part, which was resisted on the other part, an adjudication was had resulting in a judgment, which is binding on both, and that is the judgment, the execution of which has been delayed and prevented by this plaintiff’s injunction. Grant that the mortgage of January 1867 has perempted. The judgment of June 1876 has not been satisfied.. Grant that the M’Calla judgment has not been revived. The judgment of these defendants is still in force.

Prescription was pleaded in this court to the mortgage notes. They had been merged in the judgment. The judgment injoined by this proceeding is the one in which they are merged. The plea is not good.

The plaintiff’s prolonged efforts to get rid of the mortgage which secured the purchase price of the land are all abortive. Legally, his pretensions are unsupported. Equitably, he presents no claim worthy of consideration. The .judgment of the lower Court dissolved the injunction with damages.

The judgment is affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Egan, J. Manning, O. J.

license: Public Domain

text:
    No. 845.
    State of Louisiana vs. Daniel Monroe.
    Tha charge in an information that the accused was guilty of the larceny of “ the sum of twenty-six dollars in current money of the United States of the value of $26,” is sufficiently certain, and descriptive, to warrant a conviction.
    ^PPEAL from the Parish Court of Madison. Dennis, J.

      George J. Bradfeet and W. N. Potts, District Attorney, for the State.

      Isaac Crawford for defendant and appellant.
   The opinion of the court on the original hearing was delivered by Egan, J., and on the rehearing by Manning, C. J.

Egan, J.

The accused was tried, found guilty, and sentenced to the Penitentiary under an information filed under section 810 of the Revised Statutes of 1870 which charged him with the larceny of “the sum of twenty-six dollars in current money of the United States of • the value of §26.” The statute provides that “ the robbery or larceny of bank notes, obligations or bonds, bills obligatory, or bills of exchange, promissory notes for the payment of any specific property, paper bills of credit, certificates granted by or under the authority of this State, or of the United States, or any of them, shall be punished in the same manner as robbery or larceny of goods and chattels : ” i. e. by imprisonment at hard labor or otherwise not exceeding two years. The case comes before us on a bill of exceptions (of which it is only necessary to say it was not well taken, the court correctly admitted the testimony for the reason given in the bill); also, on a motion for new trial, in overruling which it seems to us the judge ruled very rigidly, but which, under our view of the case, need not be further noticed; and on a motion in arrest of judgment, of which it is only necessary to notice one ground; that is in substance that the words “ current money of the United States,” used in the information, without any more minute or particular description of the character or kind of money, is not sufficiently certain to warrant conviction under the information, and does not sufficiently describe any thing named or described in the statute, and that there is no such thing-under our law as the larceny of current money of the United States.

Wharton’s Am. Crim. Law, vol. 1, sec. 363, says : “ Money is described as so many pieces of the current gold or silver coin of the realm called-. The species of coin must be specified,” and, again, “ a count-charging the conversion of $19,000 of money, and $19,000 of bank notes, is bad for uncertainty.” The same author, sec. 347, says, under the general term “money” bank notes, promissory notes, or treasury warrants can not be included. Again, sec. 346 : “ In England, in an indictment under 2 Geo. 2, c. 25, the instrument stolen must be expressly averred to be a bank-note, or a bill of exchange, or some other of the securities specified, and, therefore, it is insufficient to charge the defendant with stealing a note commonly called a bank-note, for none such is described in the-act.” The same author says, sec. 364, et seq.: “It is generally sufficient,, and always necessary, to use the words of the statute. It is not absolutely necessary under our own law to use the precise words of the-statute always, but it is safest to do so in charging a statutory offense,, and in all cases it must be done substantially.” In the State vs. Edson, 10 A. 229, it was held that an indictment charging the embezzlement-of a lot of lumber, or a certain lot of furniture, was bad for uncertainty of description of the articles embezzled. In the State vs. Cason, 20 A. 48, an indictment was held bad, and the judgment arrested when the-charge was larceny of goods and lawful money of the United States-(commonly called greenbacks), of the value of twenty-four dollars and twenty-five cents; a much more minute description than that in the present case.- The court says no such effects or notes as greenbacks are-known to law, but treasury notes of the United States are recognized by the laws of Congress, and cites 5 A. 326 ; 10 A. 191, 207; 11 A. 648-In the State vs. Muster, 21 A., an indictment for the embezzlement of “ the sum of eleven dollars ” was held bad. The court said the indictment does not inform us whether the sum embezzled consisted of gold or silver dollars, or of currency; whether of two or more coins, or treasury notes, or bank-bills. It is not always necessary, under the statute,, to set forth a minute or detailed description of the thing stolen, but it is necessary so to designate it as to make the charge intelligible, and to bring it within, the statute we have already recited. The description of the thing stolen does not conform, either in language or substance, to any thing named or described in the statute; nor is the language “ current money of the United States” sufficient designation of the thing stolen. The motion in arrest of judgment must be sustained on the ground heretofore discussed.

It is therefore ordered that the judgment and sentence appealed from be and it is arrested and set aside; that the information be quashed as defective in law, and that the accused be held to answer such lawful charge as may be preferred against him under the orders of the court a qua.

On Application for Rehearing.

Manning, O. J.

An application for a rehearing has been made, and! we grant it.

On Rehearing.

We are satisfied that our decision in this cause is wrong, because of a special statute relative to the structure of indictments for the larceny or embezzlement of money.

Under the common law, great particularity was required in laying the charge when money was the object that was stolen. The species of coin, or the kind and denomination of the bank-note, had to be set out with descriptive particularity. Our former opinion followed the common-law authorities in requiring a rigid compliance with these (formerly) essentials. There was also error in stating the prosecution was for the offence, denounced in sec. 810, Rev. Stats. 1870. The prosecution was under sec. 812 as well as the other.

The important matter however is the provision that, in every indictment in which it shall be necessary to make any averment as to any money or any bank-note, it shall be sufficient to describe such money or banknote simply as money, without specifying any particular coin or banknote ; and such allegation, so far as regards the description of the property, shall be sustained by proof of any amount of coin or of any banknote, although the particular species of coin of which such amount was composed, or the particular nature of the bank-note, shall not be proved &c. Rev. Stats, sec. 1061.

A statute, mitigating the rigour of the common-law .requirements was commented on in the State v. Edson, 10 Annual, 229, where the court said — in ruling that the words, ‘ lot of lumber ’ were insufficient description of the thing stolen — “ there is one exception to this general rule contained in Stat. 1845, sec. 3 which declares that in prosecutions for larceny or embezzlements of bank-notes, etc. * * * gold or silver money, or any other property of that kind, it shall not be necessary to set forth iu the indictment a detailed description thereof, but a general allegation of the amount or amounts, * * shall be sufficient.”

One provision of sec. 1061 of the last revisal is specially for prosecutions, wherein any averment whatever touching money or bank-notes is necessary, in which cases not only is a description of them as money sufficient, but the proof need be only of any amount of coin or of any bank-note, even though the coin or bank-note proved be not of the particular species, or the particular nature, which was charged.

The law of 1845 dispensed with the detailed description which the common law deemed so essential, and the present law dispenses with any other description than merely, money — and goes farther, by dispensing with proof of the particular kind of money charged, and enacts that proof of any kind shall support the indictment.

The defendant was properly convicted. Therefore

It is ordered and decreed that our former judgment is set aside and avoided, and that the judgment of the lower court is affirmed.


author: Manning, O. J.

text:
    No. 821.
    The Parish of Lincoln vs. J. G. Huey.
    This court has jurisdiction of all suits which involve the legality of a tax, without regard to the amount in dispute.
    Before a parish can recover the amount of a tax imposed by its police jury, it must show that an estimate of the parish expenses for the current year was made, and published at least thirty days before the assessment of the tax.
    ^PPEAL from the Parish Court of Lincoln. Redwin, J.

      8. D. Pearce and Thos. A. Garrett for plaintiff and appellee.

      Ellis & Killgroves and J. E. Trimble for defendant and appellant.
   The opinion of the court was delivered by

Manning, O. J.

The plaintiff sues to recover five hundred dollars, half of the annual tax imposed by its police jury upon every keeper of a grog-shop. The tax was for 1876, and the ordinance provided that persons opening shops after the first of July should pay only half of the tax of that year. The defendant opened his shop during the last half of the year. The tax imposed by the ordinance was one thousand dollars.

• The payment of the tax is resisted on the grounds, 1. that the police jury failed to publish its estimate of the parish expenses for the year, before fixing the rate of taxation; 2, that the imposition of so large a sum for a license to retail spirituous liquors was virtually a- prohibition. The case comes up upon a statement of facts made by the judge, the counsel of the parties having failed to agree on one. Oode of Prac. art* 602-3.

There was an appeal to the District court, which was properly dismissed, and this second appeal was taken direct from the parish court to this court. Our jurisdiction attaches by the reason of the question involved — the legality of the tax — without regard to the amount.

The powers conferred upon police juries relative to the licensing of drinking saloons are very ample. There is however a restriction upon the power of police juries to lay taxes of any kind, the application of which is invoked here. Before a police j ury can lawfully fix and decide on the amount of taxes to be assessed for a current year, it must cause an estimate of the parish expenses to be made, and published at least thirty days before it decides on the amount of taxes to be raised. Ibid. sec. 2745.

The plaintiff insists that this was done. The judge’s statement is, the estimate of the expenses of 1876 was made in January of that year, and published in the ‘ Yienna Sentinel ’, a weekly newspaper published in Yienna, and which was the official paper of the parish, and this estimate appeared in one issue of that paper.

Eor aught that appears here, the issue of the newspaper in which the estimate was published was of date only the day before the meeting of the jury which fixed the amount of taxes to be assessed. The estimate appeared in one issue, but was that number of the paper issued thirty days before that meeting of the jury? It seems extraordinary, that when a police jury has an official journal, a file of which is or ought to be kept in one of the offices of the court, and should be preserved by the clerk of the police jury as a.part of the parish archives, it should not be produced in evidence in a ease where the parish authorities were so much interested as in this. There is no proof that there was any publication of the estimate of parish expenses thirty days before the amount of taxes was fixed, much less that such publication was made in each issue of the weekly newspaper during thirty days, if that be requisite.

It is a wise law that requires the taxpayers to be advertised of the intention of a police jury to assess a certain sum upon them, and their property — to fix an aggregate amount to be raised by taxation in any given year. It advises them of the quantum and objects of burthens that are about to be imposed upon them for parochial purposes, and gives them an opportunity to exercise a healthful restraining influence upon their local legislature. We are not disposed to relax the rule which has been imposed upon the police jury, even if we had the power.

The imposition of the tax in this case is illegal because the estimate of the parish expenses was not duly published. There is no present need of considering the other objection. The plaintiff had judgment in the parish court, from which this appeal is taken. It is erroneous. Therefore

It is ordered and decreed that the judgment of the lower court is avoided and reversed, and that there be now judgment in favor of the defendant against the plaintiff upon its demand, and for costs.

Rehearing refused.


author: DeBlanc, J.

text:
    No. 853.
    R. W. Daugherty et al. vs. Executrix of S. W. Vance.
    •One who urges an exception of misnomer must allege, and prove the real Christian name, and that done, the party against whom the exception is filed should be permitted to amend at once.
    A vendor of a movable who sues the executrix of the vendee, for the dissolution of the sale, and the recovery of the movable, andswears that he fears the defendant will part with, or dispose of the movable, during the pendency of the suit, is entitled to have the property seauestered. In such case he need not allege that he has a privilege on the property.
    APPEAL from the Eighteenth Judicial District Court, parish of Bossier. Tamer, J.

      Land & Taylor for plaintiffs and appellants.

      J. A. Snider and J. D. Watkins for defendant and appellee.
   The opinion of the court was delivered by

DeBlanc, J.

The heirs of R. W. Daugherty sue to dissolve, for nonpayment of the price, a sale of five mules, made by him to S. W. Vance, whose succession is herein represented by the executrix of his last will. As a protection to their alleged right, they have obtained from the lower •court an order commanding the sequestration of the mules which they •claim. Their application to have them sequestered is based on the ground of fear that — during the pendency of their suit — defendant may part with or dispose of them, and thereby defeat their right of recovery. It is admitted that plaintiffs’ only fear was that the mules might be sold by the executrix under an order of court to pay the debts of Vance’s •succession.

Defendant’s counsel moved to dissolve the sequestration, because:

I. Plaintiffs do not allege that they are the owners of, or that they have a privilege on the mules.

2. Their remedy for the preservation of any rights they may have against defendant, as executrix, on account of said mules, is upon her bond, or by an action to force her to give bond.

Defendant also filed an exception, in which she prays that plaintiffs’ suit be dismissed, for the reason that, as required by law, their names and surnames are not mentioned in their petition. That exception was sustained, the sequestration dissolved, and plaintiffs who — before that dissolution — had offered to amend their original petition by giving their Christian names, were allowed to do so after the dissolution.

The exception was improperly sustained: the correct initials of every Christian name preceded that of the family, and — in their petition — plaintiffs describe themselves as heirs-at-law of the late R. W. Daugherty, Vance’s vendor. This, however, was not in strict accordance with the letter of the law; but one who urges an exception of misnomer must allege and prove the real Christian name, and that done, the party against whom the exception is filed should be permitted to amend instanter. 12 L. 9 ; 8 L. 298 ; 12 R. 138 ; 3 A. 139. No such allegation or proof was made by defendant. The second ground relied upon for the dissolution of the sequestration is untenable. Plaintiffs are claiming, not the price cf the mules, but the mules themselves, and they were — in no way— interested in compelling the executrix to furnish bond in that capacity. Not only they were not interested in so doing, but — had they pursued that course — their right to pursue it would have been successfully contested.

The second question here presented, is: “ Can one who sues to dissolve a sale of personal property, upon which no privilege is claimed, sequester that property in the hands of an executrix, because he fears that she will sell it under an order of court, and to pay the debts of the succession upon which she administers ” ?

Plaintiffe’ action is founded on articles 2561 (2539) 2564 (2542) of the ■Civil Code, which provides :

The first that, “if the buyer does not pay the price, the seller may sue for the dissolution of the sale.”

The other that, “in matters of sale of movable effects, the dissolution of the sale shall take place of right, if demanded, without its being in the power of the Judge to grant any delay, except that fixed by law.”

What is the real object of plaintiffs’ action? To resume the ownership and possession of the things embraced in the sale, the dissolution of which they seek to obtain — and, in such a suit, what would be the effect of a decree in favor of plaintiffs ? Its sole effect would be the dissolution of the violated contract, the recognition of the vendor’s title to the unpaid property, and — in this ease — the restitution of the mules by the legal representatives of the vendee to the legal representatives of the seller. Such an action — it is manifest — is one in revindication.

In their able and exhaustive argument, defendant’s counsel contend that the mandate of sequestration is a harsh remedy, which should not be resorted to against parties who contemplate no wrongful act, or against those whose acknowledged purpose is to strictly follow the law— and that, in this suit, the allegations of plaintiffs’ petition do not conform to any section of article 275 of the Code of Practice and did not justify the issuance of the writ.

Those allegations are that the mules were sold, that the price agreed upon was not paid, that they are entitled to recover said mules and fear that, during the pendency of this suit, the defendant may part with, or dispose of them.' The prayer of their petition is that the sale be dissolved “and the possession and ownership of the mules restored to them.”

Those allegations do conform to the 8th section of art 275 of the C. P. which is in these words : “ A sequestration may he ordered in all cases, when one party fears that the other will conceal, part with, or dispose of the movable in his possession, during the pendency of the suit.”

Here, as in France, from whence we derive the most of our Code, there is a difference between the dissolution of the sale of an immovable and that of a movable: as to the latter, if demanded, the dissolution takes place of right, without its being in the power of the judge to grant any delay, whilst as to the former he may; and — according to Marcadé — the reason of that difference is that, in the case of the dissolution of the sale of a movable, the vendor is almost invariably in danger of losing the thing and the price, and could not follow the property in the hands of third parties.'

Marcadé, vol. 6, p. 288; 12, A. 702.

A sequestration is intended to prevent, not merely a wrongful act, but any act — whatever it may be — the result of which would be to remove the sequestered effect from the possession in which it was at the date of the execution of the writ. The article of the C. P. does not qualify the disposal against which it provides, but commands that the effect claimed shall pass from defendant’s possession into that of the sheriff and be there retained to be decreed to him who shall be adjudged entitled to it. C. P. 269.

It is admitted that Nance’s succession is largely indebted, and — from that admission — flows the irresistible inference that — as a legal and unavoidable necessity — its personal property must be sold, and — inasmuch as, though no legal disposition of the property in controversy could be made after the institution of a suit to recover it, the order to sell it may be asked from and unadvisedly granted by another court than that in which the controversy is pending, the apprehension that the executrix would attempt to dispose of it, under even an order of court and to pay the debts of the succession, was — in itself the apprehension of a prohibited and probable disposition of the property.

Under these circumstances, this case presents an exception to the general rule invoked by defendant’s counsel. Had the plaintiffs allowed the presumed sale to take place, the right which they now claim would have been practically defeated and lost, and as the vendors’ privilege was-not recorded, they could not have claimed, by preference, the proceeds of the sales. Had it been otherwise, had that privilege been recorded, it-might still have been in their interest — as it was their right — to claim their unpaid property and thus avoid all costs, or to claim the price and risk to see the whole of that price applied to debts outranking theirs. We conclude:

1. That, as defendant’s exception did not disclose the Christian names of plaintiffs, and as no proof was offered to show what were those names, the proposed amendment as first rejected and afterwards allowed by the Court, was immaterial and unnecessary.

2. That plaintiffs’ action is one in revindication, to resume the ownership and possession of the mules, and that they had just cause to apprehend that — during the pendency of this suit — defendant would dispose of them.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed, defendant’s exception, overruled, her motion to dissolve the sequestration denied, the sequestration reinstated, and this case remanded to the lower court to be proceeded with according to the views herein expressed, and according to-law.


author: Egan, J.

text:
    No. 835.
    The State vs. Mike Tilman.
    Carnalintereourse with a female under twelve years of age, amounts, under the law of Louisiana, to the crime of rape. A girl less than twelve years old is incapable of giving consent.
    APPEAL from the Fourth Judicial District Court, parish of Ascension. Duffel, J.

      F. B. Farhart, District Attorney, for the State.

      Fd. N. Pugh for defendant and appellant.
   The opinion of the court was delivered by

Egan, J.

The defendant was convicted and sentenced for the crime of rape. He has appealed. The only question for our consideration is presented by a bill of exceptions to the charge of the judge that if the jury believe that the prosecutrix was under twelve years of age she was incapable of giving consent. In most of the States the age at which a female is deemed capable of giving consent in cases of rape has been fixed by statute. It is not so, however, in Louisiana. We are, therefore, left to the common law as it existed prior to 1805, and to such other sources of information as are afforded by the provisions of our law on kindred subjects.

Lord Hale, 1 Hale’s P. 0., says that all sexual intercourse with a ■child under twelve years, whether with or without her consent, is rape; and that the statute of Westminster 1, which reduced all rape to a misdemeanor, referred to that period. Blackstone, vol. 4, p. 212, says, however, that law has generally been held only to extend to infants under ten. G-reenleaf, vol. 3, sec. 211, says: “If the female was of tender age, the law conclusively presumes that she did not consent, and this age being not precisely determined in the common law was settled by the statute, 18 Eliz. c. 7, at ten years.” In first East’s, P. C., it was held that the statute providing for the punishment of persons having carnal knowledge of infants under ten, and reducing the punishment, rather created a new felony, other than rape, at common law, fo the definition of which last offense force seems essential. Wharton’s Am. Grim. Law, vol. 1, sec. 58, fixes fourteen as the age at which infants are presumed to be able to distinguish between good and evil, though they may be shown to be so much earlier. The same author (sec. 61) says: "An infant under fourteen is presumed by law unable to commit rape, and, therefore, it seems can not be guilty of it, and though in other felonies malitia supplet celatem in some cases, yet it means as to this fact the law presumes him impotent as well as wanting in discretion. Nor is any evidence admissible to show that in fact he had arrived at the full state of puberty, and could commit the offense. Waterman’s Federal Digest, p. 520, sec. 20, is to the same effect, except that evidence in rebuttal of the legal presumption may be received. In same, sec. 23, it is said that a female ceases to be a child and becomes a woman at the age of puberty within the meaning of the statute of Ohio defining the crime of rape. There would seem to be no good reason in law for excusing the criminal under fourteen, both on the ground of incapacity and impotency, and yet holding that a female under the age of puberty is capable of giving consent to carnal connection. In the unsettled state of the law, and amid the conflict of authority, we think the safest rule is to look to its origin and reason. On this subject our own O. O. contains provisions which throw valuable light on the intentions and objects of the lawmaker. Art. 34 provides that, as “ age forms a distinction between those who have and those who have not sufficient reason and experience to govern themselves, and to be masters of their own conduct; but, as nature does not always impart the same maturity and strength of judgment at the same age, the law determines the period at which persons are sufficiently advanced in life to be capable of contracting marriage and forming other engagements.” Art. 36 fixes the age of puberty at fourteen for males, and twelve for females ; and art. 92 prohibits minis•fcers of the gospel, and magistrates entrusted with the power of celebrating marriages, from marrying any male under the age of fourteen years, and any female under the age of twelve years, under penalty, as to the magistrates, of being removed from office, and as to the minister, of being forever deprived of the right of celebrating marriages. We think the Ohio rule and that contended for by Sir Matthew Hale more in accordance with the reason and policy of the law, and especially of our own law, and, in the absence of any adjudication in this State to the contrary, we think there was no error in the charge complained of.

The verdict and sentence appealed from are therefore affirmed.


text:
    No. 807.
    M. H. Lippmins vs. A. McCranie.
    TV.hen the owner of an immovable is present at a public sale of the same, and tacitly assents to its being sold as the property of another, he is thereby estopped from. subsequently disputing the title and possession of the bona fide purchaser.
    ÁPPEAL from the Eleventh Judicial District Court, parish of Claiborne. Graham, J.

      J. S. Young for plaintiff and appellant.

      John Young for defendant and warrantor,.appellee.
   The opinion of the court was delivered by

DeBlanc, J.

On the 18th of December, 1861, Homer College sold to ■one Jeter forty acres of land in the parish of Claiborne, and plaintiff ■claims that, on the 27th of February, 1863, he bought from Jeter the land which the latter acquired from the College, or one corresponding to it iu description, with the only exception that the land which he now ■claims is represented — in the act of transfer from his vendor to him — as being in Section 20, instead of Section 24, in township 21, Range 7 West.

In 1875, by judgment obtained contradictorily with one D. B. Hays, •as attorney ad hoc of Jeter, who had left the State, Lippmins procured a correction of the description of the land, and — by that judgment — it was declared located in Section 24 instead of Section 20. Not satisfied with that judicial correction, he procured from Jeter an act of sale of said section. This act, intended and executed to evidence the real contract which had been entered into between the vendor and vendee, on the 27th of February, 1863, was passed in May, 1876.

'On the 6th-of May 1872, the aforesaid 24th Section was sold by the College to James E. Oobb ; in December by Oobb to Daniel Yancey, and —in 1874 — by Yancey to Adolphus McOranie, for four hundred dollars •cash.

This suit was brought by plaintiff to recover the forty acres of land. twice sold by the College, and the value of its fruits and revenues. Each of the defendant vendees has called his vendor in warranty : McCranie has been recognized as the owner of the land, and — from the decree which recognizes his title — plaintiff has appealed.

Cobb purchased that land at a public sale, a notice of which had been published by the College’s agent and had been read by plaintiff, whe called on Mr. J. S. Young and told him he was inclined to think that the land advertised for sale by the College was his, &c. He could not, at the trial, positively remember whether he was present when it was offered at auction, but believes he was not. Pour witnesses, including the sheriff by whom the sale was cried, swore that he was present at the crying, that -he did not then oppose the sale or warn the bystanders-that he had a title to the land; and — of those four witnesses — three testified that, on said occasion, the only remark which he made was that he had some rails on the land about to be sold, and reserved the privilege-of removing them, from it. He, shortly afterwards, removed them and allowed Cobb, from whom defendant’s title is derived, to take possession of the land.

His limited reservation at- the sale of what he considered as his-property, the fact that, up .to May 1876, no written act attested the existence of his alleged title to section 24, and that — to his knowledge and in his presence — said property was transferred, acquired and paid for, not only without any opposition on his part, but with at least his tacit assent, preclude him from disputing a title and a possession, which— by exclu’sively his fault — have passed to others, who have bought and possessed in good faith.

Plaintiff’s counsel argues that, whatever his client may have said or done at the sale from the College to Cobb, the last deed from Jeter has-passed title to him. That deed was but an acknowledgment that, on the 27th of February 1863, Jeter had sold to plaintiff the land, in controversy, and — by that deed — he acquired no right which he does not claim to have had at the date of the sale to Cobb.

In his Treatise on Equity, Judge Story says : “ There are cases in which a man may innocently be silent; but in other cases a man is bound to speak out, and his very silence becomes as expressive as if he had openly consented to what was said or done and had become party to the transaction. Thus, if a man — having a title to an estate, which is offered for sale and knowing his title, stands by and encourages the sale, or does not forbid it, and thereby another person is induced to purchase the estate under the supposition that the title is good, the former so standing by and being silent will be bound by the sale; and neither he, nor his privies will be at liberty to dispute the validity of the purchase.”

1 Story on Equity, 375 l 385.

In Marsh vs. Smith, this court held “ that if a man stands by and is silent while his own property is sold, and suffers another to become the purchaser, he is estopped from disputing a title thus acquired.” The xule of law is well expressed by Lord Denman in the case of Pickard vs. Sears (6 Adol. and Ellis, 169), to wit; that where one, by his words or ■conduct, willfully causes another to believe in the existence of a certain •state of things, and induces him to act on that-belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time. 5 R. R. 523, 3d R. R. 332.

Plaintiff stood by while his land was offered for sale and sold, merely reserved the right to remove the rails which he had on it, and his action ■and demand against MeCranie were properly dismissed and rejected.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is affirmed at plaintiff’s costs.


author: Spencer, J.

text:
    No. 829.
    The State vs. Cooley Newton et al.
    All offenses not capital, may be prosecuted on information.
    £n an information charging that the defendant did feloniously break into a dwelling-house at night with intent to kill, it is not necessary to charge that he did it “burglariously,” or “without being armed,” or “without assaulting any person lawfully in the house,” or to set forth the name of the person the burglar intended to kill.
    APPEAL from the Thirteenth Judicial District Court, parish of East Carroll. Hough, J.

      Hiram B. Steele, District Attorney, for the State.

      Stirling T. Austin and W. A. Price for- defendants and appellants.
   The opinion of the court was delivered by

Spencer, J.

The defendant was convicted on an information which charged that “he did, with force and arms, in the night-time, and with intent to kill, feloniously break and enter the dwelling-house of William Howard.”

The questions presented for decision are:

1.Can that offense be prosecuted by information?

2.Is it necessary that the breaking and entering be charged to have been “burglariously” as well as “feloniously” done, and-must the bill contain the negative averments “without being armed,” “without assaulting,” etc., mentioned in section 851 R. S. ?

3.Must the indictment set out the name of the person whom the burglar intended to kill, and aver that such person was then and there lawfully in the house?

First — The charge is under section 851 R. S., and the offense is not capital. It may, therefore, be prosecuted by information. R. S. 977.

Second — The crime of burglary known to our law is statutory. The statute defines it, and we must, therefore, look to the statute to ascertain the essential averments of the indictment.

The 851st section says : “ Whoever, with intent to kill * * shall, in the night-time, break and enter * * * a dwelling-house, without being armed with a dangerous weapon * * * and without committing an assault upon any person lawfully being in such house, * * * on conviction shall be imprisoned at hard, labor, etc.”

The information charges that the accused “ did feloniously break, etc.,” but does not add “without being armed, and without committing-an assault upon any person lawfully being in said house.”

We take these words “without being armed, etc.,” as being used simply to emphasize the difference between the offense denounced in section 851 and that denounced in section 850. That to charge that one did “break and enter” a dwelling, without adding that he did so “armed with a dangerous -weapon,” is the same as to say he did so “without-being armed.” In other words, the absence of allegation that he was armed is equivalent to an averment that he was not armed; and an acquittal or conviction under the charge in this case would be a good bar to a subsequent indictment for the same breaking and entering, with the added averment that he was not armed.

It is urged that it is not sufficient to charge that the act was “feloniously” done; that the charge should also be that it was “burglariously ” done; and we are referred to the authorities showing that at common law such an averment is necessary in an indictment for burglary. As we have seen, the crime of burglary at common law is not known to us by name, as are “ murder,” “ manslaughter,” " rape,” “ robbery,” etc. Our statute itself defines what would at common law be the crime of burglary, and thereby withdraws it from the common-law definitions-It is sufficient to charge in the language of the statute, and that the offense has been committed “ feloniously,” since it is now well settled ¡that it is necessary to charge the commission of all felonies, whether common-law or statutory, as “ feloniously ” done. See Whar. Crim. Law, sec. 399 ; 29 A. 602.

Third — Under the view we have taken of the uses and purposes of the words “ without being armed,” “ without assaulting any person lawfully in the house, etc.,” it can not be necessary in a prosecution under sec. 851 to aver that any one was at the time lawfully in the house; ”■ for in this section those words are only employed as qualifying .the word “ assault,” and, therefore, where no assault is charged they are not necessary. We apprehend that under sec. 850 it would be necessary to charge that there was some person lawfully in the house at the time of breaking and entering, for that is one of the conditions upon the existence of which the penalty of death is denounced under that section.

We do not think it necessary under sec. 851 to designate the individual upon whom the offender sought to commit the felonies named in the sections.

We see no error in the sentence and decree appealed from, and they are affirmed.


text:
    No. 854
    John B. Durham vs. Heirs of John B. Daugherty et al.
    Where a wife alleges in her petition that she is authorized by her husband to bring-suit, and no exception is taken in the lower court, the question oí her authority will not be considered on appeal.
    Where a vendor of real estate sets forth in the act of sale that he has received a portion of the price in cash, and notes of the vendee payable at a future day and secured by mortgage on the real estate for the balance of the price, but actually received in place of the cash, and without being induced todo it by error or fraud, drafts of the vendee or some third person, such drafts will not entitle the vendor, or his transferee, to a mortgage, or vendor’s privilege on the property sold.

      i PPEAL from the Eighteenth Judicial District Court, parish of NL Bossier, Turner, J.

      Land & Taylor for plaintiff and appellant.

      N. 0. Blanchard and J. A. W. Lowry for third opponents and appellees.

      Duncan & Moncure and Looney <& Msnerlov Marks, third opponent.
   The opinion of the court was delivered by

Spencer, J.

This is a controversy as to the distribution of the proceeds of the “Red-Chute” plantation, seized under execution process in the above suit.

The facts out of which arises this controversy are as follows :

On January 21,1873, James B. Pickett sold to R. W. Daugherty (now deceased) the Red-Chute plantation, in Bossier parish, for $18,000, “paid as follows: five thousand dollars in cash, the receipt of which is hereby acknowledged; the balance in three equal annual installments;” the first due January 1,1875 ; the second January 2,1876 ; and the third January 1,1877 ; said three installments being represented by the vendee’s notes, duly paraphed: “In order to secure the payment of each of said notes at maturity, etc., the vendor retains, and the vendee 'grants, a special mortgage” on the property sold. On January 2,1877, James B. Pickett transferred by public act, and with full subrogation to plaintiff, the note ■due January 1, 1876.

The note due January 1,1875, was paid. Mrs. Kate B. Pickett, wife of said James B. Pickett, claims to hold the noté due January 1,1877, ■under circumstances hereafter to be stated.

James Marks bases his claim upon the following alleged facts:

He says that the 355000 cash payment acknowledged in said act was 'not in fact made; but that, in lieu of the cash, James B. Pickett accepted ■from Daugherty two drafts drawn by the latter on and accepted by James R. Arnold, one for 352550, and one for 352866 42, both dated January 21, 1873, the former due at sixty days, and the latter at later day; "that the draft for 352550 was indorsed without recourse by Pickett, the payee, and delivered to Boisseau & Ford for collection ; that it was protested for non-payment; that by authentic act Boisseau & Ford transferred it with full subrogation to Edwards & Holmes, represented by James R. Arnold, declaring in the act that it bore vendor’s privilege ■on the Red-Ohute plantation, which act was duly recorded, and bore date March 6,1873; that Edwards & Holmes transferred it on July 14, 1873, to J. U. & H. M. Payne & Co., who brought suit against Daugherty thereon in Bossier, and obtained a j udgment therefor of date September 23,1876, recognizing a special mortgage and vendor’s privilege therefor on said Red-Chute plantation, w'hich judgment was duly recorded in mortgage office. To this suit neither Pickett, Mrs. Pickett, nor Durham were parties. Marks claims under this judgment.

Durham, the plaintiff, claims to be. paid by preference over Mrs. Pickett, on the ground that her title and possession of the second note is simulated, and that James B. Pickett, who is plaintiff’s transferor, is the real owner, and can not participate until plaintiff’s note is satisfied. He opposes Marks on the ground that he has not now and never had any mortgage or privilege on the plantation to secure said draft. Mrs. Pickett claims concurrence with Durham, and opposes Marks on same grounds.

Marks opposes Durham on the ground that he acquired the note after its maturity from Pickett, and after Pickett had assigned the draft, and has only Pickett’s rights, and can not oppose him, Marks, therefore, because Pickett is the transferor of the draft, and could not concur with him, Marks. Marks opposes Mrs. Pickett on the same grounds as Durham does.

The judgment below decreed concurrence between Durham and Mrs. Tickett, and superiority to both over Marks. Durham and Marks appeal. There is a suggestion in the brief of counsel for plaintiff that Mrs. Pickett is not authorized to bring this suit. It is stated in the petition that her husband “ authorizes and assists her.” No exception was taken to her want of authority, and the question can not be now raised. C. P. 320, 321, 327, 333, 344 ; 4 Bob. 172 ; 5 B. 96.

We shall first consider the claims of Marks, under two aspects :

First — Did the drafts given by Daugherty to Pickett in lieu of the •cash payment acknowledged in the act of sale ever bear mortgage or privilege upon the Bed-Ohute plantation ?

Second — If they did, have these securities been lost or destroyed by want of registry, or by payment of the drafts ?

First, as to the existence of the mortgage and privilege.

It is manifest that no mortgage existed, because none was reserved •or granted in the act to secure any thing but the notes.

It appears that by agreement between Pickett and Daugherty the former accepted in lieu of the cash, $5000, acknowledged to have been received in the act, Daugherty’s two time drafts for $5416 42, drawn on and accepted by Jas. B. Arnold. The $2866 42 draft was duly paid; the $2550 draft was protested while in the hands of Boisseau & Ford, who swear they held it as agents, and for account of James B. Pickett. Pickett himself having accepted these drafts in lieu of the cash acknowledged to have been received in the authentic act, could not be heard in the absence of allegations of fraud, error, or violence, to deny, either as against Daugherty or any body else, the truth of his acknowledgment •of payment. As to him, and those claiming under him, that much, $5000, was paid. If he saw proper to accept property or drafts in lieu of the cash, it was another transaction. He must be considered as having exchanged the $5000 cash for the $5416 42 in time drafts. In other words, Daugherty paid the cash by discounting his drafts to Pickett.

This case can not be distinguished in principle from that of “Abat vs. Nolte’s Syndics,” 6 N. S. 636. In that case, as in this, the vendor of the land in the act of sale acknowledged receipt of the price. It was proved that, in point of fact, no cash was paid, but that the vendees gave the vendors a bill of exchange therefor.

The court say: “ It appears to us from the documents and evidence that the price of the sale was to be paid by a draft; that, trusting in the honor of the vendees, the vendors acknowledged the receipt of the price in the act of sale, and shortly after received the draft. After this they could not have any privilege, for the payment of the price ivas consummated according to the intention of the parties, and the form of the ■•act shows that the vendors had no idea of retaining a privilege. But, if ■even the original intention of the parties had not been that payment ■should be made by a draft, by receiving the draft in payment, the vendors extinguished their original claim.” This case is cited approvingly by •this court in Cammack vs. Griffin,” 2 A. 175, and its doctrine is in perfect consonance with reason and law. Every consideration of public interest and justice forbids the recognition of the opponent, Marks’, pretension. If the vendors of property, or their assignees, be permitted to falsify their own deliberate and solemn acts and declarations, spread upon the public records, that the whole or part of the price of property sold has been received in cash by them, and- to prove that they still have' the vendor’s privilege therefor, although avowing that they had voluntarily, without error, fraud, or violence, received another thing in lieu of the cash, what value would mortgage securities possess? What faith would public records be entitled to ? Pickett had no mortgage or vendor’s privilege on the Bed-Chute plantation for these drafts, and could, therefore, confer none on his transferees. The judgment of Payne & Co. vs. Daugherty, decreeing such against defendant therein, was clearly wrong. It may be binding as res adjudicata on Daugherty, but on no one else. It could not recognize what did not exist. Its registry created only a judicial mortgage against Daugherty.

Second. But there is still another insuperable objection to Marks’s-pretensions, and that is that the draft for $2550 was, before it reached' J. U. & H. M. Payne & Co., from whom Marks derives his claim, taken-up by James B. Arnold, the acceptor thereof, and thereby extinguished1 by confusion or payment. Arnold in his testimony says : “The interests of Edwards & Holmes and himself' were almost identified, he owning nearly the entire interest in the house.” In another place he says he took up this draft with money of the firm of Edwards & Holmes, represented by him, to whom Boisseau & Ford transferred it. Again, he says : “On the day of the protest of this draft it was paid by Edwards & Holmes to Boisseau & Ford, the holders thereof. This draft was transferred by Edwards & Holmes to James B. Arnold, who transferred the same to J. U. '& H. M. Payne &’Co., for advances made by them to-said Arnold.” Hence, it is clear that whatever rights J. U. & H. M. Payne & Co. had in this draft they derived from Arnold, its acceptor, in whose hands it was extinguished. Now, Arnold did have rights under this draft, but only by way of an action against Daugherty, for re-imbursement of the amount paid therein, and to secure himself in this right he took from Daugherty on the twenty-first January, 1873, a special mortgage on other lands than the “Bed-Chute” plantation, to secure him for his acceptance of these drafts. Neither Arnold nor 'his transferees, Payne & Co., could enforce that mortgage until Arnold had paid the drafts. He did pay them, and Payne & Co., by suing Daugherty to enforce this mortgage, as they did, necessarily admit such payment. The judge a quo did not err in decreeing Marks’s claim inferior to that of Durham and Mrs. Pickett.

It only remains to consider the contest as between Durham and Mrs. Pickett. We may premise by saying that it is matter of no-moment to plaintiff whether Mrs. Kate B. Pickett, the wife, or Mrs. Paulina Pickett, the mother, of James B. Pickett, owns the note; nor whether the transfer from Mrs. Paulina Pickett to Mrs. Kate Pickett is or not simulated; for if James B. Pickett is not the owner, then the note can not be excluded from concurrence with plaintiffs note, since it is only the transferor who is postponed to his transferee.

On July 3, 1866, Mrs. Paulina Pickett sold to her son, James B. Pickett, a valuable plantation known as “ Cash Point,” for $100,060, for which he gave five notes of $20,000 each, due annually thereafter from January 1, 1867. On May 5, 1871, J. B. Pickett produced these five notes before the recorder, and had the mortgage and vendor’s lien-securing them canceled.

Mrs. Paulina Pickett swears that in payment of a balance due her on this sale James B. Pickett delivered to her the note now held by opponent, Mrs. K. B. Pickett; swears that she had the actual and real possession and custody of the note from that time to March 1, 1878, when she sold and delivered it to her daughter-in-law for $5300, paiij in an accepted sixty-day draft for $2300, and a note for $3000, of which she furnishes copies ; that early in the year 1878 her son, J. B„ Pickett, tried to sell the note for her, but Without success. She admits frankly her own insolvency and her belief that her son is insolvent. There is no dispute as to the fact of the sale of Cash-Point place. It is also shown that Mrs. K. B. Pickett is separate in property from her husband, and is the owner of a large and valuable plantation, which she cultivates, and on the crops of which she has at times obtained advances for large sums. The question is, does the note held by Mrs. K. B. Pickett belong to her or to Mrs. Paulina Pickett or to James B. Pickett? We frankly confess that we look with suspicion upon these family transactions, these dealings between parents and children and husbands and wives, wherever there appears to be opportunity or temptation to gain some unjust advantage thereby. We have scanned the evidence in this record closely, and must say that it gives to these transactions an air of reality and truth which we do not feel at liberty to disregard.

Mrs. Paulina Pickett, now an old and venerable lady, tottering on the very verge of the grave, swears positively that her son delivered into her actual possession the note in question three years before its maturity, and that she continued so to hold it in satisfaction of said balance on “ Cash-Point ” place. The fact of this large indebtedness by the son is not disputed,' and it corroborates powerfully ner statement that he owed her. The fact of her surrendering the five notes to him, no-doubt at his solicitation, in order to cancel the mortgage, is not inconsistent with the idea that he owed her a balance of four or five thousand' dollars. It was but the natural promptings of maternal • affection, and what ninety-nine out of a hundred widowed and aged mothers would have done, for a son in whose house she was spending the remnant of her days ; nor is the fact that her son tried to sell the note for her of any significance, as he would naturally have been called upon to render such a service; nor do we attach more weight to the alleged large price, §5300, paid by Mrs. K. B. Pickett to her for the note, which then exceeded §6000 in amount. It should have brought the blush of shame to the cheeks of her daughter to have offered less for it than the mother gave for it. The evidence does not satisfy us that James B. Pickett is the owner of the note. On the contrary, it satisfies us that he transferred it to his mother in 1874, and, so far as concerns plaintiff, it is matter of no mompnt whether she or Mrs. K. B. Pickett now owns it.

In either case, the judgment appealed from is correct, and it is affirmed at costs of appellants.


author: DeBlanc, J. Manning, C. J.

text:
    No. 786.
    Succession of J. W. Zacharie, on Opposition of the City of New Orleans et al.
    Evidonce in proof of a claim is admissible, although it may appear, prima facie, that the claim is prescribed.
    The fact that tax-bills have been, filed in court is not proof that suit has been brought on them.
    Debts due the city of New Orleans on account of unpaid taxes are prescribed in ten years from the time the taxes are exigible.
    ^PPEAL from the Second District Court, parish of Orleans. Tissot,

      Percy Boberts for the succession, appellee.

      James Lingan for himself and other creditors, appellees.

      Samuel P. Plane for the city, appellant.
   The opinion of the court was delivered by

DeBlanc, J.

The city of New Orleans opposes the account filed by the executor of the last will of J. W. Zacharie, for the reason that he refused to class it as a creditor of said succession for the taxes of 1860, 1861, 1862, 1863, 1864, 1865, 1870, 1871, 1873, 1874, 1875, 1876, ;and 1877. It prays that the lien securing the payment of said taxes be recognized, and that they be paid in preference to every claim carried in the executor’s account. This opposition was filed on the 14th of August 1877.

In bar of the city’s action for the taxes due before 1867, the executor pleads the prescription of one, two and ten years. His plea was sustained by the lower court and the city has appealed.

On the trial of its opposition, the counsel representing the city offered in evidence the tax-bills made out for the years anterior to 1867. That evidence was improperly excluded ; but said bills are transcribed in the record and can be considered by us as if they had been regularly admitted by the lower court.

Our attention is called to the fact that some of those bills have been filed in court in 1865,1866 and 1873, and we are asked to infer from that fact that they have been sued upon and that judgments may have been obtained thereon. This we can not do : if such suits had been brought and such judgments obtained, the city attorney would not have failed to introduce copies of the same.

The counsel who now represents the city contends that — since 1856— the action which it has for the recovery of taxes levied within its limits is imprescriptible, and — to sustain his position — he i elies on a section of the charter which provides : “ that taxes assessed under and by virtue of this act, on the property, real or personal, of any person or corporation, are hereby declared to be a lien and privilege upon the said property, to date from the first day of March of the year for which they may be assessed, any alienation thereof or incumbrance thereon notwithstanding; and said lien or privilege shall exist in favor of the City of New Orleans, for the respective amount of taxes assessed until the same shall be eully paid ; and the same shall be paid in preference to all mortgages and incumbrances other than taxes due the State.”

The property on which were assessed the taxes, the amount of which is claimed by the city, has been sold under orders of the second district court, and it is clear that any right which it may have had on said property was transferred from it to the proceeds of the sale.

Is the city entitled to be paid, by preference to every creditor, out of the proceeds of the sale of said property? The lower court correctly held that. — as concerns the taxes levied before 1867 — the city is not entitled to the preference it claims.

So far as we are informed by the record, the first and only demand made by the city for the taxes which it alleges are due to it, was made after the death of Zaeharie, after the judicial sale of the property which belonged to his succession, and that was in 1877. The lower court sustained th'e city’s opposition as to the taxes which were levied in and from 1870, and dismissed its opposition as to those taxes which were levied prior to 1867, and which had been due and exigible for upwards of ten years, when the city applied to the second district court to compel the executor of Zacharie’s will to class it in his account as a creditor of said deceased’s estate, for the taxes assessed on his property from 1860 to 1877.

It is said that, under a special provision of the city charter, the tax Is to remain a lien on the property subject to it until the tax is' paid in full, and that the terms of said provision exclude the idea of any limitation to the right of enforcing that lien, at any time, against any one and under all circumstances. That too broad construction would — as regards the city of New Orleans — amount to a judicial abrogation of the laws which fix the prescription of debts and actions, impart to its tax liens a dangerous immortality, and encourage — in the collection of its annual revenue — a negligence far more injurious to its interests than the prescription invoked against it.

In the case of Pepper against Dunlap, this court said : “ Under the Spanish law, property could be acquired by prescription against the crown &c, and — under our Code — we find no express exception in favor of the State. In Graham, Auditor, against Tignor & als, it was held, and we adhere to those decisions, that the current of prescription is not impeded by the fact that the suing creditor is the State. Those decisions are based on the article of our Code which declares that prescription runs against all persons, unless they are included in some exceptions established by law.” The corporation of New Orleans — as the State— is a body politic, and — in law — an intellectual person, and — as it may acquire and be released by prescription, there is no reason why it should be excepted from its effects and operation, when it appears in a court of ■justice and claims as a creditor. In this instance, its action is barred by the lapse of ten years. C. C. 3521 (3487); 3544 (3508); 9 A. 137 ; 23 A. 570.

It is, therefore) ordered, adjudged and decreed that the judgment of the lower court is affirmed with costs.

Concurring Opinion.

Manning, C. J.

I concur in the decree in this cause, but I do not wish to be understood as assenting to the doctrine that general laws regulating prescription affect the rights of the State. The State is sovereign, and when she enacts laws fixing the time within which actions must, be brought upon pecuniary obligations, or for the establishment of rights of property, she is legislating for her citizens, and is not imposing restrictions upon herself, and such laws do not affect her own rights unless she in terms includes herself within their operation.

The argument drawn from the phraseology of our Code is inconclusive. It is said that since the State is not specially exempted from the operations of the laws of prescription, she must be held to be affected by them as is an individual or a corporation. The terms of the statutes of limitation of other States are as broad and comprehensive as are the articles of our Code touching prescription, and it has been, and is uniformly held in those States, and in the Supreme Court of the United States, that the doctrine nullum tempus occurrit regi is in as full force in this country as it is in England.

It is not necessary for the decision of this cause to pass upon the question, so far as the State is concerned, and therefore the argument does not need to be elaborated now. I understand the doctrine to be ¡stated only arguendo in the opinion of the court just read, but to avoid misapprehension, I prefer to dissent from that portion of the Opinion.

Mark, J. I concur in the opinion of the Chief Justice.


author: Mare, J.

text:
    No. 823.
    I. Bloom & Co. vs. Leon Kern et al.
    Where a party agrees to pay a certain stated account made up of principal and accrued interest, and the aggregate amount of the principal and interest exceeds $500, the district court will have jurisdiction ot the debt.
    Letters of a debtor to his creditor declaring his inability to pay, and asking for indulgence, are such an acknowledgment of liability as interrupts prescription. Interruption of prescription by the acknowledgment of the principal debtor interrupts it as to his surety.
    The promise of a surety assuring the payment o£ the price of a specific lot of goods to be sold to the principal debtor is not a continuing guarantee, and hence does not cover other goods subseauently sold to the principal.
    Where the debts are of like nature the imputation of payments is made to the debt longest due.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Parsons, J.

      B. W. & B. Bichardson for plaintiffs and appellees.

      Cobb & Chmby for Marx, defendant and appellant.
   The opinion of the court was delivered by

Mare, J.

This suit was brought to recover a balance of account for merchandise, which, it is alleged, Kern promised to pay, and Marx, in writing, guaranteed.

Defendants excepted to the jurisdiction of- the district court, on the ground that the amount in dispute is made up of principal and interest, and that it does not exceed $500, exclusive of interest.

' The goods were sold in 1873; and the precise allegation of the petition is that Kern promised to pay the balance sued for,tc as shown by ■the specific bill hereto annexed.” This bill is an account, containing all the items to the debit and credit, with interest on each to ninth February, 1877, about two months before the suit was brought. If this allegation be true, it would simply mean that Kern had consented that the balance shown by that account, $547 61, should be capitalized on the ninth February, 1877; and this balance would be a, new debt, the principal sum, bearing interest only in futuro. The district judge correctly overruled the exception.

Kern plead the general issue, and the prescription of three years. Marx specially denied that he ever assumed to pay plaintiffs the account sued on. He avers that in March or April, 1873, he agreed to become surety to plaintiffs for the purchase price of one lot, invoice, or stock of goods to be furnished to Kern, and that they were, shortly after, paid for by Kern; and that he, Marx, never, thereafter, assumed, or in any manner bound himself for any indebtedness of Kern. He pleads the prescription of three years; and that plaintiffs, by delay and negligence, have lost their action against Kern, and thereby discharged any surety he may have given.

The judgment of the district court was in favor of plaintiffs, against defendants, in solido, for the $547 61, with legal interest from, judicial demand, eleventh April, 1877; and Marx appealed.

If Kern had appealed, we should affirm the judgment against him. As he has not appealed, it is necessary to consider the case against him in so far only as it may affect his surety, Marx. He testified that plaintiffs had written to him about this debt, asking payment. “ I don’t think, though, they have since January, 1874. I think I replied to their letters and begged time on the debt. I consider that I promised to pay it. In these letters to me the amount of the balance due by me was mentioned.”

In Robinson vs. Day, 7 An. 201, this court held that letters written by the debtor to his creditor, declaring his inability to pay, and asking for indulgence, is such an acknowledgment of liability as interrupts prescription. It is manifest from part of Kern’s testimony, on cross-examination, that the account sued on was shown to him, at the office of plaintiff’s attorneys ; and that he looked at the closing and balance brought down. Precisely what he said to the attorneys at that time is not shown.

We think there was such an acknowledgment by Kern as takes the case out of prescription; and that the surety is bound by this acknowledgment so far as the plea of prescription by him is concerned. R. C. O. 3553.

The liability of Marx for the debt of Kern can not be proven otherwise than by written evidence. R. C. C..art. 2278. The written evidence in this case consists of two letters of Marx' to Bloom & Co., dated at Monroe, one on the seventh, the other on the ninth April, 1873. The first part of the letter of seventh April relates to his own business, ordering goods for himself. It concludes thus: My brother-in-law, Mr. L. Kern, tells me that he selected some groceries at your house, which you, however, will not ship, without my say so. Please ship the same by the first boat out, and I will see that every thing is right.”

The letter of ninth April' is as follows: “ Yours of fifth came to hand, with invoice. In reply, Mr. Kern, I want you to ship the goods he selected, and I will see it paid in time. You shall be safe if it takes the last dime I have. I will tell you more when I see you. My regards to your family.”

The testimony shows that Kern had gone to New Orleans, and selected a stock of groceries, which Bloom & Co. would not sell him on his own credit. He either returned to Monroe, or wrote to Marx; and the result 'was the two letters just mentioned. On the twelfth April Bloom & Co. sold the goods to Kern, the whole amounting to $640 87. They subsequently sold other'goods'to Kern,'on the thirtieth April, thirteenth and twenty-ninth May, twenty-third June, and ninth July, 1873, the whole aggregating $1063 91.

Kern remitted sums of money, and made payments to Bloom & Co. at different times, twenty-ninth April, thirteenth and twenty-fifth May, eighteenth June, ninth July, 1873, arid sixth and fifteenth January, 1874, amounting to $654 56, carried by Bloom & Co. into general account in the settlement sued on.

It is manifest that the letters of Marx of seventh and ninth of April were not intended, nor can they be construed' as a continuing guarantee. They are limited to the single transaction, the purchase of the goods which Kern had already selected, and which, on the faith of these letters, were sold and delivered by Bloom & Co. to Kern on the twelfth April, 1873. There is nothing in these letters indicating the intention of Marx to be surety for the price of any other goods, that might afterward be selected by Kern, and sold to him by Bloom & Co.; and the amount, as we have seen, was $640 87. The interest on this amount, from the twelfth April, 1873, to the fifteenth January, 1874, the date of the last credit, at five per cent, would be $24 74, which, added to the $640 87 gives total $665 61: and interest on the several items of credit, at the same rate, to same date, would be $21 69, which added to the credits, $654 56, gives total $676 25. Bloom & Co. have calculated the interest at eight per cent; but whatever the rate may be, the resuit would be the same, that is, the credits and interest would exceed the debt guaranteed by Marx, and the interest. Bloom & Co. have made up a single account; but in it the several purchases, at their respective dates, are footed separately, thus distinguishing them, the one from the other: so that each invoice was kept and treated as a separate purchase. This was necessary, because Albert Bloom and Isaac Bloom, witnesses in their own» behalf, testified that all the sales to Kern were on sixty days time, as usual. So that Kern owed Bloom & Co. as many different debts, of a like nature, as there were different invoices, each exigible at-the expiration of sixty days from the date of each purchase, respectively.

The Code declares that when the debts are of like nature, the imputation of payments is made to the debt which has been longest due. B. O. 0. art. 2166. We think the debt guaranteed by Marx was extinguished on the fifteenth January, 1874, more than three years before the account sued on was made up; and while it might have been competent for Kern, as between himself and Bloom & Go., to have consented to the account as made up ninth February, 1877, he could not bind Marx to pay eight per cent interest, charged in the account for nearly four years, nor deprive Marx of the extinction, by legal imputation, more than three years before this suit was brought, of that part of the debt, the oldest in date, for which he was surety.

Of course the judgment against Kern, from which he has not appealed, will not be disturbed by our decree; and we deal with the judgment of the district court only in so far as it affects the appellant, Simon Marx.

It is therefore ordered, adjudged, and decreed that the judgment appealed from, in so far only as it condemns Simon Marx, the appellant, in solido with Leon Kern, be and the same is hereby annulled, avoided, and reversed; and the demand of plaintiffs, appellees, I. Bloom & Co., against the said Simon Marx is rejected and dismissed, the .costs of this appeal and the costs incurred by the said Simon Marx in the district court to be borne and paid by the said appellees, I. Bloom & Co.


text:
    No. 819.
    The State vs. James Beatty, alias Wm. Brown, et al.
    The fact that the accused attempted to escape from prison a Eew days before his trial, on a charge of murder is admissible in evidence. The time of the attempt is not material, as bearing on the question of its admissibility.
    The State may introduce evidence to prove contradictory statements made by the defendant’s witness at another time.
    Unsworn statements made after the trial of a criminal case by one of the jurors in the caso, going to impeach his own verdict, or to show misconduct in the jury, are not admissible in evidence on the application for a new trial.
    This court is without jurisdiction to consider the testimony of witnesses, and disputed questions of fact, on which applications for new trials in criminal cases are made.
    PPEAL from the Fourteenth Judicial District Court, parish of . Ouachita. Parsons, J.

      W. N. Potts, District Attorney, for the State.

      W. J. Q. Baker and B. J. Caldwell for defendant.
   The opinion of the court was delivered by

Egan, J.

Beatty, alias Brown,,one of the accused, was indicted, tried, and found guilty of murder without capital punishment, whereupon he was sentenced to imprisonment for life in the Penitentiary. He has appealed. The case is before us on three bills of exception and a motion for new trial. The first bill was to the reception of evidence to show that the accused a few nights before the day set for trial broke jail and attempted to escape from the parish prison. On behalf of the prisoner it is urged that'to be admissible the evidence must be of an attempt to ■escape immediately succeeding the crime charged. Attempts to escape on the part of one accused of crime are not of themselves sufficient to authorize conviction, but if shown lend a strong presumption of guilt, unless otherwise explained. They'are classed with other ex post facto indications of mental emotion, and are receivable in evidence, but are to be weighed in connection with the surrounding circumstances, and the time at which the attempt is made is not material except as going to show the animus of the accused. The usual rule is laid down in Wharton’s Am. Crim. Law, sec. 714, and we have been referred to no authority limiting it. This bill was not well taken.

The second bill is to the reception of the evidence of one Madden to discredit the testimony of Louisa Brown, a witness for the accused, by showing that she had made other and contradictory statements at •another time, on the ground that the witnesses for the State had been placed under the rule and not permitted to remain in court during the •giving in of testimony by other witnesses, and that Madden’s name was not furnished the defendant, nor had he been put under the rule, but was present in court while Louisa Brown was testifying. The district jjudge states that Madden’s evidence was offered and received only as -to the contradictory statements made by the defendant’s witnesses at ••another time. For that purpose it was receivable. Waterman’s Crim. Dig. p. 607, sec. 189, and authorities cited; 1st G-reenleaf Evidence, pair. 432, note 2. This bill was not well taken.

The third bill of exceptions is to the reception of the testimony of Gilbert, a witness, whose name had been furnished to the accused, and who had been under the rule, but who, after having testified on behalf of the State, was permitted • to remain in the court when Louisa Hrown, defendant’s witness, was testifying. As we understand from the bill the evidence of this witness was offered and received for the same purpose with that of the witness Madden. The same principle therefore ■applies, as the evidence related only to discrediting the defendant’s witness. This bill was not well taken.

The fourth bill of exceptions is to the refusal of the district judge to receive evidence in-support of one of the grounds of motion for new trial of the statements óf Wallace, one of the jurors, made on the street in th.e presence of several persons, after the verdict had been rendered, to the effect that when he first went into the jury-room he was in favor of acquitting the accused, and that after he had made that known, one of the jurors said to him, “If you-will say ‘guilty’ I will give you one dollar and a half and a good bed to-night;” and he then agreed to find the accused guilty. It is well settled that a- juror will not be allowed to testify to impeach his own verdict or to show misconduct in the jury with that view. A fortiori, then, will not hearsay testimony of his unsworn statements to other persons be received for that purpose. Wharton’s Am. Crim. Law, secs. 3155-6; Waterman’s Crim. Dig., p. 456, sec-172, and authority cited. This bill was not well taken.

The motion for new trial is upon two grounds, one of which is the alleged misconduct of the jury in the manner attempted to be shown by evidence of the statements of the juror Wallace, already discussed-Of this it may be remarked that we have nothing before us except the affidavit of the accused appended to the motion for new trial, and we can not interfere on this ground with- the discretion of the district-judge. The other ground set up-in-the motion for new trial is “ that on the night of Friday, the tenth of May, 1878, and after the jury had retired to consult on their verdict,-and about the hour of ten o’clock of the same night, the entire jury, accompanied by the deputy sheriff in charge of the jury, and while they were under deliberation, retired to a drinking saloon on DeSiard street, in- the city of Monroe, about five or six squares from the court-house, without the order of court, and there partook of intoxicating liquors, the bill of which was paid by one of the jurors.” This, if true, was certainly a very gross irregularity on the part both of the officer in charge and of the jurors themselves, and one for which all should have been punished by the district judge if the facts were made known to him. We learn from a statement by the court in the record that his “ instructions to the sheriff after the trial of this case had been concluded were to take charge of the jury and not allow them to separate, and to provide such refreshments as were necessary.”' These instructions were proper and usual, and if any such loose practice prevails among the officers or jurors of his district as is charged, it would be well for the judge to put a stop to it in future and to charge officers and jurors accordingly. We are induced to make these remarks-by the appearance in this record of the testimony of witnesses given on the hearing of the motion for new trial below, which while we can not consider for the purposes of the motion when thus presented, having no-jurisdiction of the facts in criminal cases under the constitution, would, if we could consider them, induce us without a moment’s hesitation to set aside the verdict and sentence. It is not to be tolerated that jurors in a capital case, especially, should be allowed to walk about the streets for recreation at night and enter so public and exposed a place as a barroom or drinking-saloon, and there drink liquor ¡ or other beverage at the public counter. If such things are permitted all the labor and time spent in procuring the con-viction of criminals will go for naught and the ends of justice be defeated or delayed, while at the same time it will be impossible to preserve purity in its administration. We are compelled, however, to remind counsel that we can no more, under the constitution, take cognizance of the testimony of witnesses given on a motion for new trial in a criminal case than the evidence given on the trial itself, and tliat even when it comes before us in the record we can not consider it. See 3 An. 497; 2 An. 921; 1st H. D., p. 412, par. 6, and -cases cited. We can not pass upon the effect of evidence for any purpose in a criminal case; nor, unless the facts upon which the judge a quo bases his ruling in a matter of new trial are certified to us by him in a bill of exceptions, can we review that ruling, whether it related to misconduct of the jury or other grounds which involve the proof of facts .and evidence always more or less contradictory. Our province in such matters is simply to say what the law is upon a state <jf facts either .admitted by the State or certified to us regularly by the judge himself as those on which he based his own ruling. 2 An. 837, 838; 3 An. 497; (State vs. Brown, 4 An. 505; and again 1st H. D. p. 412, par. 6, and cases cited.

It is therefore ordered and decreed that the verdict and sentence appealed from be and they are affirmed.


author: , Spencer, J.

text:
    No. 825.
    Eliza L. Strother vs. T. P. Richardson, Sheriff, et al.
    The judgment creditor and his debtor are incompetent to form a private agreement, or bond, -which shall have the force and effect, and be clothed with the extraordinary characteristics of a “ Twelve-months Bond.”
    The cleric of the court is without authority to issue, and the sheriff to-execute a writ of fieri facias to enforce, with a judicial decree, the provisions of a bond formed by private convention.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Parsons, J.

      W. J. Q. Baker, John T. Ludeling, and Bdbert' Bay for plaintiff and appellant.

      W. W. Farmer for defendants and appellees. - ■
   The opinion of the court was delivered by

, Spencer, J.

In .the suit of “Gerson vs. Warfield” plaintiff obtained judgment by confession. Subsequently,,.plaintiff assigned the judgment to Lehman, Abraham & Co., who issued execution thereon, upon which the sheriff makes the following return:

“ Received in office, April 30th, 1874, and on the first day of May, 1874, the plaintiff’s attorneys having taken a consent twelve-months bond in favor of Lehman, Abraham & Co., owners of the judgment and writ in this case, executed before me May 1st, 1874 ; I therefore return this writ as directed by Morrison and Parmer, attorneys for plaintiff and owners-of judgment. B. H. Dinkgkave, Sheriff.”

The bond is signed by Mrs. Warfield, the defendant, and by Mrs. Strother, as surety. The condition of the bond recites the existence of the judgment, the issuance of the execution, and concludes thus :

“ Whereas, the said defendant, Mrs. Eliza W. Warfield, desires to avoid the trouble, loss, and costs of further proceedings in the execution of said writ, by executing a consent twelve-months, bond, in favor of Lehman, Abraham & Co., owners of said judgment, in all respects as if all the formalities, delays, and advertisements which precede the forced execution of a twelve-months bond under arts. 681, 682,720, and 721, Cod© of Practice, had been fully complied with ; all of which said formalities, delays, and advertisements are hereby expressly waived by said defendant ; and whereas said Lehman, Abraham & Oo. have consented to accept this twelve-months bond and to return said writ to the clerk’s-office,

“Now, therefore, if the said E. W. Warfield, principal on this bond, shall well and truly pay, etc., * * then this bond shall be void, otherwise, etc., to have the force and effect of a twelve-months bond, taken according to arts. 720 and 721 of Code of Practice.”

The bond is attested by two witnesses and the sheriff. In several districts of the State, this custom of taking twelve-months bonds by consent and agreement has prevailed for years, and, as will be seen hereafter, there is no reported case adjudicating upon its legality.

Not being paid at maturity, plaintiff caused execution to issue as on a twelve-months bond, and, property of the surety having been levied upon, she enjoins, by this suit, the sale thereof.

The sole question presented for our decision is, whether this instrument thus executed has the force and effect of a twelve-months bond ; and does it confer on the clerk authority to issue, and on the sheriff authority to execute, a writ of fieri facias directing the seizure and sale, without appraisement, of the property of the principal and surety? We are constrained to answer both questions in the negative. It is undoubtedly true, as argued by defendant’s counsel, and as held by the judge a quo, that contracts containing nothing contrary to law or good morals are binding on the parties,' and constitute laws for them. But the question here is not whether this contract is binding on Mrs. Warfield and Mrs. Strother, but whether they can by agreement with Lehman, Abraham & Oo. confer on the clerk and sheriff authority and power which the law has not conferred oh them. Oan parties confer on the clerk authority to issue execution for a debt not evidenced and made executory by judgment ? Certainly not. And why ? Because the • clerk derives his authority from the law, and not from the consent or agreement of parties. The law has prescribed when and upon what conditions the clerk can issue writs of fieri facias. A judgment is rendered, and in execution thereof a writ of ft. fa. issues, property is seized, and sold for cash or on twelve-months credit. In the latter case'a bond is given, and, if not paid, another writ issues in execution. The public interest demands that these essential forms be complied with. The certainty and security of titles, depending as they do, upon the orderly conduct of judicial proceedings, requires that individual agreements should not be substituted for official acts. Grave and important consequences attach to and follow the forced alienation of property, and in many instances the rights of third persons are directly or indirectly affected thereby. Thus, a forced alienation under a first mortgage divests the property of a subsequent and junior mortgage. What security would there be to such subsequent mortgages if by a private agreement between the debtor and the holder of the first mortgage such a bond as that in this case could authorize the seizure and sale without appraisement of the property ? Would the purchaser at a sale under the enjoined writ in this case acquire a title unencumbered by mortgages that may have attached since the recordation of the original judgment? These instances are stated to illustrate the grave importance there is to the public that judicial proceedings and the processes in execution thereof should be conducted under the forms of law. In our opinion there can not be a twelve-months bond clothed with the extraordinary characteristics given thereto by the Code of Practice, except as the result of a-seizure and sale of property. A twelve-months bond under our law clothes the creditor with extraordinary and exceptional rights, just as the authentic act importing confession of judgment does. The law has prescribed certain essential forms for the existence of both, and there is no more reason for saying that parties can give to a private agreement the force and effect of a twelve-months bond than there is for saying they can give to a private agreement, without the intervention of the officers and forms required by law, the force and effect of an authentic act.

While the ease of Levi Johnson vs. Hopson (decided at Monroe in 1855, but not reported,) differs from this case in some important particulars, and notably in this, that in that case the ■“ consent twelvemonths” .bond was executed before and in anticipation of the.rendition of a confessed judgment, yet we think the general principles announced in that case are pertinent and eminently applicable to this, and may serve •as a fit conclusion to what we have already said. The court there said:

' “ The bond is a private agreement executed in contemplation oí an ■amicable suit and .a judgment to be rendered thereafter. It mightserve as the foundation of a suit against the principal and surety thereon to enforce their obligation so far as possible by the intervention of justice, but it can not be introduced |nto the records of a court without its assent, and made the basis of those summary proceedings which are only allowed upon a strict compliance with the forms of law. Those forms are prescribed in the interest of the public; many of them, it is true, may be waived by the parties, but they must be waived at the proper time and before the proper officers.

“Departures from settled rules of practice in judicial matters are always hazardous : and although this may be a hard case upon the appellees, who seem only to be seeking to hold the appellants to the terms •of the agreement, yet we must look to the remote consequences which would flow from a decision relaxing the rules that govern forced alienations of property. Upon those rules depend in a high degree the security of private rights and the repose of titles.”

It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and reversed ; and it is now ordered and decreed that the injunction sued out by plaintiff against the execution herein enjoined be made perpetual; reserving to the owners of said bond any right, of action they may have against plaintiff by reason of her suretyship on said bond. It is further ordered that defendants pay costs of both .courts.

Rehearing refused.