source: Caselaw Access Project

author: Taliaeebbo, J.

license: Public Domain

text:
    No. 64
    Sarah Ware et al v. Russell Jones, Sr.
    The heirs of the deceased become seized of the property of their ancestor at the moment of his decease. The surviving widow is seized of one-half of the community property, and the heirs of the other.
    The title so vested continues in them, subject to be divested at any time by the creditors themselves, or by the administrator for them. The widow and heirs take the estate absolutely, subject to the debts and charges against it; and all that is meant by residuary rights is, that the property is thus encumbered.
    Where the widow and lioirs of a deceased party bring suit against a third party in possession for property belonging to them, the third possessor cannot require them to show affirmatively that the administration is closed before they can recover.
    A third possessor cannot set up that there are creditors holding claims against the property in his possession to defeat the heirs; only the creditors, themselves, or the administrator for them, can make such defence.
    A PPEAL from the District Court, Parish of Bossier, Weems, J.

      Jones and Scott, for plaintiffs and appellees.

      Griffin & Snider, and L. B. Wailcins, for defendants and appellants.
   Taliaeebbo, J.

The widow and heirs of William Harkins, deceased, bring a petitory action in this case to recover three several tracts of land containing, in the aggregate, about four hundred acres.

The suit was instituted in the first instance against Russel Jones, Sr., who was alleged to be in possession, and who, it seems, died not long after the action was brought. It was renewed against his heirs, and Eussel Jones, Jr., who became administrator of his father’s estate, answered, denying any right to the property sued for in the plaintiffs, and averred that it was purchased by his ancestor from Andrew Lawson, by deed of conveyance, dated 29th of November, 1850. He alleges that since the purchase, valuable improvements have been made on the land, and that the sum of fifteen hundred dollars was paid to Lawson as the price of the land. He prays, in case of eviction, that he be allowed seven thousand dollars for the improvements, and that he recover from the succession of Lawson the amount payed for the land. The executor of Lawson was called in warranty, but we do not find that he answered. The plaintiffs had judgment in their favor, decreeing them to be the owners of the land, and awarding them rent for the use of the land at the rate of two hundred dollars per annum, from 1st January, 1852. The defendants had judgment over against the succession of Lawson for the amount claimed of the executor under the warranty. From this judgment the defendants have appealed.

We shall direct our attention in the first place to several bills of exceptions found in the record. Before answering to the merits the defendant excepted to the action, on the ground that it was instituted against a party not in possession, averring specially that Elkin Jones was possessor of the-land and premises, and moved a dismissal of the case. The testimony of several witnesses was introduced on the question of possession, but their statements are contradictory. Eussel Jones, Sr., and Elkin Jones, were both living together on the plantation, and the title obtained from Lawson was in Eussel Jones, Sr. We think the exception was properly disregarded by the Court.

The defendants filed what they term a peremptory exception, the substance of which is that there were not proper parties before the Court; that one of the heirs of Harkins had died since the commencement of the suit, and that no revival had taken place in the name of his representative, and that another heir, at that time a minor, had attained the age of majority. They further excepted to the suit that it should have been brought in the character of one for partition. It appears from this bill of exceptions, that it was presented after the close of the evidence, and when the argument of the cause was about to commence. The exception being of the dilatory kind, we think the Court properly overruled it, on the ground that it came too late.

A third bill of exceptions was taken by the defendants to the admission of evidence to prove that Lawson (whose executor was called in warranty) declared in relation to the lands in controversy, that if the heirs of Harkins were to sue for them they would recover, as the perfect title was in them. The objections are, that the declaration was made, if at all, out of the presence of the parties, and is a mere loose hearsay statement. That so far as the defendants are concerned, the representative of Lawson is not a party to the suit. The evidence was admitted by the Court only to show the bad faith of Lawson, under whom defendants ¿bold, and to prevent prescription. We think the ruling of the Court was proper. 2 N. S. 13. 12 E. 146.

The plaintiffs reserved a bill of exceptions to that part of the charge given by the Court to the jury, which instructed them that unless the heirs of Harkins show, affirmatively, that the estate of their ancestor has been settled and the administration closed, they cannot recover.

It appears that William Harkins died in the year 1840. In the month of October of that year, an inventory was taken of his estate. It further appears that W. C. Veeder became the administrator, and that in the month- of April, 1845, he filed an account of his administration. This" account was opposed, and much litigation followed. The estate, by the showing of the administrator was insolvent, and paid nothing to the ordinary creditors. From the judgment rendered by the District Court of Claiborne, adjusting the claims of the parties, the administrator appealedj and this Court, in October, 1847, remanded the case to the lower Court for further proceedings.

We find nothing in the record showing that any other proceedings were taken afterwards in relation to the estate. It is in proof that in the year 1849, the Court-house of the parish of Claiborne, together with the clerk's and recorder’s offices were burned, and all the records destroyed. In consequence of this accident the parties in this suit are compelled to resort in a considerable degree, to secondary evidence in relation to facts which would, under other circumstances, have to be established by written proof.

There appears some confusion and irregularity took place in regard td the' affairs of the estate, and the management of it appears to have reflected no credit upon the administrator. The land in dispute, it appears sufficiently clear, was placed upon the inventory of the estate, but we do not find that it was ever sold by any order of Court invoked by the administrator or creditors of the succession. Evidence was introduced, in the course of the trial, to show how this property was disposed of. This we shall presently notice. In the consideration of this exception, we have to determine whether, under the circumstances presented, the widow and heirs of Harkins are precluded from asserting a right to the land in dispute, on the ground that they have not shown that the administration of the estate has been closed.

At the decease of their ancestor his heirs became seized of his property. The land, being community property, one-half of it belongs to the widow, and the other to the heirs. The title so vested continues in the parties, subject to be divested at any time by the creditors themselves, or by the administrator acting for them. When it is said that the rights of heirs are merely residuary, nothing more is meant than they take only what remains of a succession after its charges are paid. They are not the less owners of the property they inherit, because it is followed by and subject to the charges against it. What then is to prevent them from asserting their rights to property as against persons not creditors of the ancestor or of the succession ? If the creditors fail, or omit to claim property found in possession of third parties, and which belongs to the succession against which they have claims, shall the heirs of the succession be precluded from claiming it ? In the present case, we find that the last proceedings legally taken, in regard to the affairs of Harkins’ estate, was in the year 1847. Ten years afterwards, this suit is brought by Ms widow and heirs. Another ten years have since passed, and we yet find no creditor claiming to have rights against this property. Shall third parties in possession avail themselves'of this long silence and iüáction of the creditors, if there remains any, to deprive the owners of their rights to it ? Shall they resist the claims of othe plaintiffs by asserting that the administration of the estate is not yet closed ? We do not see that there is an administrator to this estate; and, if there be one,- we do not find him intervening in this controversy on behalf of creditors; without determining that creditors, if-there be any, have but their rights against the property in question—whether in possession of-the heirs' or of third parties, we, nevertheless, conclude that under the state-of facts that appear to us to exist, the plaintiffs should be permitted to assert their claims as against the defendants, and in that view of the' case we think that the plaintiffs’ exception to the charge of the Court to the jury should have been sustained.

On the merits, we find that the plaintiffs set up title under" government patents issued to William Harkins. Against this title the adverse claimants set up one, that they endeavor to sustain by parol statements, which, in some respects, appear somewhat contradictory. The deputy sheriff, Alder, says in Ms testimony, that he acted in that capacity in the parish of Claiborne, about four years, commencing his duties in the spring of 1838; that he sold the land Harkins was then living on under a fieri facias, issued in a case entitled C. H. Veeder v. Wm. Harkins; that Veeder bought the land, and that a deed was made to him ; that the sale was, in the first instance, made on twelve months credit, and a twelve-months’ bond taken; that the bond was not paid at maturity, and that the land was sold under the bond, and that J. B. Bunnels bought it.

J. B. Bunnels says, in his testimony, that “the said administrator, (meaning Yeeder) did sell the lands belonging to the estate of said Harkins, at least I positively know that he sold the plantation he lived on. at the time of his death. C. H. Yeeder sold to me the plantation at private sale. He, the said Yeeder, sold me the tract of land for one thousand dollars cash down, and the balance on one and two years’ time, the whole amounting to three thousand dollars. C. H. Yeeder furnished me .the money to pay the thousand dollars, and I gave him my notes for. the balance of the purchase money. The first of these notes was transferred to Andrew Lawson. The second was handed to me by C. H. Yeeder, in Alexandria, La., which was not paid by me, but was destroyed by myself. These notes were made payable to C. H. Yeeder, as administrator of Wm. Harkins. Said lands were afterwards sold by Andrew Lawson to force his lien on the first note. He bought the lands, and afterwards sold them to Bussel Jones, Sr. It was most perfectly understood between C. H. Yeeder and myself, that I was to have the place on paying the first note of one thousand dollars, but, as I was not certain of my title, I did not pay, and the place was sold as above stated.”

The land purporting to have been sold under fieri fiadas, and purchased by Yeeder, is identified as the same land placed upon the inventory of Harkins’ estate. It is unexplained by the record before us, why Yeeder, if he supposed he had acquired a title to these lands in Harkins’ lifetime by virtue of the sheriff’s sale spoken of, should accept the inventory upon which, they were set down, as property of his succession, and should sell them to Runnels, and take his notes payable to the estate. The private sale of the administrator to Runnels was a mere nullity, and it is clear that neither Runnels nor Lawson had any confidence in the title'thus obtained. To make out title under sheriff’s sale, it is necessary to show a judgment, execution and sheriff’s deed. In the case before us, it is not shown that there was a judgment from which subsequent legal proceedings sprung. The title by the sheriff’s sale is defective in this respect, and taking the acts of Veeder as a criterion, we cannot but conclude that he attached no validity to it himself. The title of the defendants derived from such a source cannot be successfully opposed to the clear, unambiguous title shown to have existed in the plaintiffs’ ancestor, and of which it is not shown the plaintiffs have ever been divested.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.


author: Ilsdev, J.

text:
    No. 113.
    James W. Howard v. Joshua E. Kirwin.
    Confederate treasury notes were issued in violation of law, and used for tho purpose of overthrowing the Government of the United States.
    Courts of Justice will not lend their aid to give effect to contracts, the consideration of which are illegal and reprobated by law.
    A . PPEAL from the District Court, Parish of DeSoto, Weems, J.

      Elam and Wemple, for plaintiff and appellant.

      B. J. Bowman, for defendant and appellee.
   Ilsdev, J.

This case presents the question as to the right of the plaintiff to invoke the aid of this Court to enforce a contract, the consideration of which was one reprobated by law, to wit: notes issued as money by a confederation of States to destroy the Union and to destroy the government of the United States, of which the rebellious States, so confederated, were members.

By repeated decisions, we have refused to notice such cases, and as the one now submitted is, in this particular, one of the same class, it must be dismissed.

It is therefore ordered, adjudged and decreed that this suit be dismissed at the cost of the appellant.


author: HsiiEr, J.

text:
    No. 112.
    James W. Howard v. William Mathews.
   HsiiEr, J.

The facts of this case, in regard to the consideration of the contract sued on, are identical with those in the case of James W. Howard v. Joshua E. Kirwin, and for the reasons for our judgment in that case just decided.

It is ordered, adjudged and decreed, that the suit he dismissed at the posts pf the appellant.


author: Hxiian, O. J.

text:
    No. 63.
    T. R. Brady v. J. G. McWilliams, Administrator.
    The testimony of one witness, unsupported by corroborating circumstances, is insufficient to p^ove a verbal contract where the amount exceeds five hundred dollars. O. 0.2237.
    A PPEAL from the District Court, Parish of Caddo, Weems, J.

      Jones & Harris, for plaintiff and appellee.

      J. W. Jones, for defendant and appellant.
   Hxiian, O. J.

The plaintiff obtained judgment against the defendant on a contract exceeding $500, which was not reduced to writing, on the evidence of one witness only of the contract, without any proof of circumstances sustaining his evidence; and the defendant has appealed from the judgment.

The evidence is insufficient to justify the judgment, as such contracts must be proved by at least one credible witness, and other corroborating circumstances. See Civil Code, Art. 2257.

Let jhe judgment of the District Court be reversed, and let the case be remanded to the District Court to be proceeded with according to law; the plaintiff to pay cost of appeal.


author: Labauve, J.

text:
    No. 61.
    William Sprowl et al. v. Ella D. Stewart and Robert S. Duncan.
    A judgment based on a written agreement of the parties, must conform to the terms of the agreement. Where the parties to a suit have consented in -writing to a judgment, and the judgment of the Court does not conform, to the consent, either party has the right to appeal to have the error corrected.
    A PPEAL from the District Court, Parish of Natchitoches, Lewis, J.

      Pierson <& Levy, for plaintiffs and appellants.

      O. Chaplin <& Son, for defendants and appellees.
   Labauve, J.

The judgment appealed from was rendered upon consent and admissions of the parties, but the plaintiffs and appellants complain that there is a manifest error in the judgment, which does not follow the agreement and admissions. On examining the judgment and the agreement, we have satisfied ourselves that the judgment was not rendered as authorized by the agreement, and that the plaintiffs and appellants have the right to appeal in order to correct the error; the judgment is erroneous, as it does not conform with the agreement, and must be amended.

It is therefore ordered and decreed, that the judgment of the District Court be annulled, as follows: That the defendants, in addition to the sum decreed below, pay in solido the further sum of three thousand six hundred and ninety-six dollars and eighty-seven cents, with interest, at eight per cent, per annum, from the 1st of January, 1866, till paid ; that the mortgage and privilege of the vendor be recognized, and made executory on the property described in the petition to satisfy this judgment as amended and affirmed. It is further ordered and decreed, that the judgment as amended be affirmed, and that the appellants pay cost of appeal as by their consent,


text:
    No. 86.
    John V. Hays v. Leonard G. Compton.
    Where the petition alleges that the defendant is executor, and lie is cited in that capacity, a promissory note signed by him as executor, is admissible in evidence undor the general issue.
    A PPEAL from the District Court, Parish of Rapides, Lewis, J.

      Lewis <& Hunter, for plaintiff and appellee.

      T. G. Manning, for defendant and appellant.
   Labauve, J.

The petition alleges that Leonard G. Compton, executor of the estates of J. and A. B. Compton, deceased, is justly indebted to the plaintiff in the sum of $5,500, with interest, as will appear by reference to the note of the said Leonard G. Compton hereto annexed, and made part of the petition. The note purports to be given for services rendered as manager.

The petition concludes by praying that the aforesaid Leonard G. Compton be cited to appear and condemned to pay said sum with interest.

The defendant answered as follows:

“The defendant, Leonard G. Compton, denies all, and singular the allegations in plaintiff’s petition contained, and specially denies that ho is indebted to petitioner in the sum set forth in his petition, or in any other sum, and prays that the writ be hence dismissed, with costs.”

Judgment was rendered in favor, of plaintiff, and the defendant appealed.

On the trial of the case, the plaintiff introduced in evidence, a note signed by L. G. Compton, executor of J. & A. B. Compton, to the introduction of which defendant objected, on the ground that he is not sued herein as executor of said estates, nor is it alleged that he is indebted to the plaintiff in his representative capacity, etc. The objections were overruled, and the defendant toot a bill of exceptions.

We are of opinion the Court did not err. The defendant, by pleading the general issue, admitted that he was executor, as charged in the petition. The note made a part of the petition, and he was cited as executor. There was no necessity of repeating his capacity in any paragraph of the petition.

We are satisfied that the Court decided correctly, in giving judgment against the defendant in his representative capacity.

Judgment affirmed, with costs.


author: Hybian, C. J.

text:
    No. 67.
    O. W. Beall v. Samuel Van Bibber.
    Where ono renders services beneficial to another at his request, an implied contract is raised for remuneration.
    Tho law does not- allow one person to enrich himself at the expense of another.
    A PPEAL from the District Court, Parish of Caddo, Weems, J.

      Jones <& Harris, for plaintiff.

      Looney á Wells, for defendant.
   Hybian, C. J.

Plaintiff sued defendant for the value of his services as manager of defendant’s hands, from 1st October, 1863, to 1st August, 1865, claiming that his services were worth $750.

Defendant, in his answer, denied the allegations of plaintiff’s petition, and claimed judgment in reeonvention, and compensation against plaintiff for board, lodging, washing, clothing and horse hire.

The District Judge rendered judgment, condemning defendant to pay plaintiff $250, with interest and cost of suit, and rejecting defendant’s plea in reconvention and compensation.

Defendant has appealed from the judgment.

It is fully proved that defendant requested plaintiff to take charge of and manage his hands, and that he did, under the request, malnage them from October, 1863, to August, 1865, raising during the time crops for defendant.

It is also proved that such services as plaintiff rendered for defendant, wore worth from $250 to $300 a year.

When one renders services beneficial to another, at his request, an implied contract is raised for remuneration. 13 La. Rep. 136.

The law does not allow one to enrich himself at another’s expense.

Defendant failed to make satisfactory proof of his alleged rights in his answer.

The plaintiff has not filed his answer to the appeal, nor asked that the judgment be amended.

Let the judgment of the District Court be affirmed, and let tho defendant pay the cost of appeal.


author: Iusi/ey, J.

text:
    No. 59.
    The State of Louisiana v. Rhoda Bryan.
    A bill of indictment for larconywill not lie, unless brought within one year afbor the offence shall have been made lmown to the officer having the power to direct the investigation.
    Tho indictment must negative prescription apparent on its face, by alleging either, that the crime was nob discovered within the year, or that the prisoner absconded or lied from justice.
    A PPEAL from the District Court, Parish of Natchitoches, Lewis, J.

      David Pierson, District Attorney, for the State.

      E. T. Lewis, for defendant and appellee.
   Iusi/ey, J.

This case comes up on a general demurrer, sustained by tho lower Court; and the point is that the indictment does not negative prescription, which on its face, has accrued.

It is not charged in the indictment that the prisoner absconded or fled from justice; nor, is it alleged that the crime was not discovered and denounced until within a year of the finding of the grand jury; until one or the other of these facts is alleged and proved to the satisfaction of a petit jury, the prisoner, in the words of the statute, cannot be punished for larceny. Every thing essential to the punishment of the prisoner must be found by a jury of her country, and must appear of record; otherwise, the law does not authorize a Court to pass a sentence upon her.” See 7 A; 256; .and 17 An. 69.

This is matter apparent on the face of the record, and it was put at issue by the general demurrer.

’The Court below did not err in sustaining the demurrer, and quashing the indictment, and the judgment of the Court is therefore affirmed.


author: Taliaferro, J.

text:
    No. 58.
    State of Louisiana v. Thomas Texada.
    The act of the legislature approved March 1858, relative to the drawing of grand jurors, requires the foreman to be selected from the whole venire, aüd the remainder to be placed on slips of paper in a box, from whicli the sheriff draws fifteen names, which, with the foreman already selected, forms the grand jury—a grand jury drawn from the list of names:on file is irregular. ‘Where the offence charged in the indictment was committed on the first day of the term, it is impossible for the accused to file'his objections to the mode of drawing the jury on the first day of the term: in such cases the objections may be made afterwards.
    A PPEAL from the District Court, Parish of Rapides, Lewis, J.

      David Pierson, for the State.

      Pyan <& White, and E. T. Lewis, for defendants.
   Taliaferro, J.

This case comes up on demurrer to the indictment of the defendant, for shooting with the intent to commit murder. Various points of objection are stated to the legality of the indictment. We shall consider the only one thought to have any force, viz: “That the said indictment was not found by a grand jury qualified to inquire in the premises.”

The indictment was found at the May term, 1866, and the demurrer filed 17th May, 1867. The objections were sustained and the indictment quashed. Erom this judgment of the Court below, the State has appealed.

The indictment is held to be null and void, on the ground that the grand jury which presented the bill was organized and empanneled by calling the list of the regular panel summoned for that term, and taking the fifteen who first answered to their names, after selecting a foreman from the whole panel.

This, it is admitted on the part of the State, is irregular, but it is contended that it is an informality which cannot be taken advantage of after the first day of the term, at which the jury was empanneled. Revised Statutes, page 296, section 3.

It appears that the offence with which the defendant is charged, was committed on the first day of the term at which he was indicted, and about four or five o’clock in the afternoon of that day. Under this state of facts a compliance with the requirements of the law would seem to have been impossible, and the law does not require the performance of impossible things. It is clear that the jury was not organized as it should have been under the provisions of the act of 1858. Acts of 1858, p. It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed.


text:
    No. 68
    Wm. C. Tompkins & Co. v. A. S. Moore et al.
    This case presents only questions of fact.
    A PPEAL from the District Court, Parish of Caddo, Weems, J.

      Kilpalriclc, Henderson, Lacy and Taylor, for appellants.

      H. ■ Q. Hall, for appellees.
   Taliaferro, J.

The plaintiffs allege that in the year 1865, at Shelby-■Ville, in Texas, the defendant Moore, by falsely and fraudulently representing himself to be an agent of the United States Government, took forcible possession of twelve bales of the property of plaintiffs in possession of their agent, one Hanks, and, by the aid of the other defendants, caused the cotton so taken to be carried to the Parish of Caddo, in this State, where defendants sold it and converted the proceeds to their own use. They claim the cotton or its value, estimated by them at three thousand dollars ; five hundred dollars damages in' trouble and expense, and one thousand dollars as vindictive damages for the wrongful acts of the defendants. They pray judgment accordingly. The defendants severed in their answers. Moore admits that as government agent he seized some cotton in the hands of Hanks, but almost immediately discovered his error, and returned it to him. The defendant, Jasper MeMillen, says he purchased a number of bales of cotton, (eleven bales more or less to the best of his recollection,) from Hanks, for which he paid him, in good faith. The other defendant, Marion MeMillen, put in a general denial.

The plaintiffs had judgment in their favor for $2,185, with 5 per cent, interest from 2d day of December, 1865. From this judgment the defendants have appealed.

We find a bill of exception taken to the admission of certain testimony, but as it is not important in the decision of the case to examine it, we pass it over.

There is great discrepancy in the evidence adduced. The testimony on the part of the defence, we think sufficiently makes good the allegation in Moore’s answer, that he released the cotton after having seized it. One witness on the part of the plaintiffs, says that Hanks demanded the cotton after it was seized, but that his demand was rejected. Two witnesses swear that it was released as soon as it was discovered that it was not government cotton. Two witnessses testify to the removal of cotton, and one of them, that if it were returned he was not aware of it.

Two witnesses swear that Jasper MeMillen purchased the cotton from Hanks, and a third, that Hanks told him he had sold the cotton to McMillan. One of these witnesses says that Hanks was paid for the cotton in gold at $40 per bale.

It is stated by one or more of the witnesses that if there were any thing said about a sale, they heard nothing of it. This is insufficient to rebut the positive evidence that there was a sale. It is shown that there was much excitement at the time in Shelbyville, and a strong disposition manifested by the citizens of the place to forcibly resist the removal of the cotton, as it was private property. This fact would appear to add some weight to the statement of witnesses, that the cotton was purchased;One of the plaintiff’s witnesses says “he does not think Moore professed to be after any private cotton, but only after government cotton.” Upon a scrutiny of the whole of the evidence, we incline to think the' preponderance is in favor of the defendants, and come to a different conclusion from that of the Court below.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed, and that judgment be rendered in favor of defendants, the plaintiffs and appellees paying costs in both Courts.


author: Hyman. C. J.

text:
    No. 49.
    John C. Brown v. William Caves.
    Written evidenco of a contract of sale is admissible without an allegation that the contract is reduced to writing.
    The law does not require parties litigant to allege that their evidence is in writing.
    The Supreme Court will not look beyond the transcript of appeal to ascertain facts not therein transcribed ; nor will it presume that the District Court permitted a wrong to be perpetrated on the government.
    A PPEAL from the District Court, Parish of Winn, Lewis, J.

      Daniel Kelly, for plaintiff.

      David Pierson, for defendant.
   Hyman. C. J.

The defendant is appellant from a judgment condemning him to deliver to the plaintiff throe bales of cotton, which were sold by him to the plaintiff.

The defendant relies on several grounds for the reversal of the judgment.

The first is that written evidence of the contract of the sale of the cotton was improperly admitted, as there was no allegation in plaintiff’s petition that he had written evidence of the sale.

There is no provision of law that requires parties litigant to allege that their evidence is in writing before they adduce such evidence.

The second is, that as his receipt for the payment of the cotton sold to the plaintiff, states that payment was made in State money, he contends that the price by the contract of sale was agreed to be paid in State money» and that State money, being the consideration of the sale, was an unlawful consideration.

This is mere conjecture. The receipt does not state that State money was the kind of money the defendant agreed to' take when making the contract of sale, nor does the expression State money give a definite idea of the money that was paid. It does not show that such money was unlawful money.

The third is, that the receipt was improperly received in evidence» as on its face it had a suspicious appearance.

The copy of the receipt is in the transcript of ' appeal and there is nothing suspicious in the appearance of the copy. There was no evidence taken of the appearance of the receipt, to show that it was suspicious, and we are not permitted to look beyond the transcript of appeal to ascertain facts that are not transcribed therein.

The fourth and last ground relied on is, that the receipt was offered in evidence without'first having been stamped as required by the revenue laws of the United States.

The transcript does not show that it was received without a stamp, and we cannot presume that the District Judge permitted a wrong to be perpetrated on the government. See R. R. Roberts v. Sylvester Murray, 18th A. R. 573.

Let the judgment of the District Judge be affirmed, defendant to pay cost of appeal.

Rehearing refused.


author: TAniAEEBKO, J.

text:
    No. 29.
    W. B. Stewart v. J. R Bosley et al.
    A written obligation for tlie payment of money for services rendered or to be rendered in the so-called Confederate army as a substitute, is illegal on its face, absolutely null and void, and cannot bo judicially enforced.
    A PPEAL^from the District Court, Parish of Natchitoches, Lewis, J.

      J. M. B. Tucker, for plaintiff and appellee.

      J. M Thomason, and J. H. Cunningham, for defendant and appellant.

      Brief of J.M. ThomasonandJ.H. Cunningham, for defendant and appellant.

    This action is founded on two written instruments made by defendants, payable to H. J. Patterson or bearer, dated February 21st, 1863, and one payable 23d February, 1864, the other, 23d February, 1865, for $1,750 each.
    The case was tried as to Bosley only. The instrument purports to have been given in consideration of services to be rendered by the payee, as a substitute for Bosley in the Confederate army, in the war then existing between the Confederate States and the United States.
    The answer of Bosley sets up the illegality of the consideration; alleges that the pretended contract was made in violation of the Constitution and laws of the United States, and against the public policy of the General Government, and avers that it was immoral, contra bonos mores, null and void.
    The judgment of the Court beiow was in favor of plaintiff. And after ineffectual efforts to obtain a new trial, defendant has appealed.
    We think the Judge a quo erred; and, as he has favored us with a written opinion in the case, we are enabled to examine the peculiar process of reasoning' leading to the conclusions enunciated therein.
    At the very threshold of the argument the Court below became involved in the complicated questions as to the rights and powers of the States, as contradistinguished from those of the General'Government, and as to the vexed issues as between State and National Sovereignty. We think his premises were bad, his reasoning unsound, and his conclusions erroneous. Tears ago, when these issues had powerful advocates on either side, we would not have been so much astonished by such conclusions. But now, at this late and sad period of our history, after the arguments have all been exhausted without effect, and the issue transferred from the forum to the field, for trial under the fearful arbitrament of the sword, such views may be said to be, at least, unfortunate. They are not supported in principle by any writer on constitutional law. They are in direct opposition to the high authority of Story, Kent, Greenleaf, Wharton, and all American law writers. All our Courts have always held directly the opposite doctrine.
    If the reasoning of the Judge below be sound, and his conclusions correct, then is the whole system of our former jurisprudence reversed; and the immense revolution through which we have just passed, while it has ostensibly failed, has been eminently successful in law. And while the Government is reestablished, and the States reunited in name, there is a most fearfully fatal antagonism still existing between the laws and policy of the States and those of the United States. Eor, if it be now held that the States are sovereign, and may disregard, violate and annul the Constitution and laws of the United States, the war has been fought in vain, the revolution has ceased, but is not ended. This was the sole issue of the late fearful struggle. The tribunal was one of dernier resort. There is no appeal.
    The Gulf States, under the leadership of men holding the same views with the Judge a quo, and asserting the same doctrines enunciated in the judgment below, boldly made the issue, and by all the energies of the most devoted partizanship endeavored to enforce their views. They failed; they abandoned the contest, and gave up the issue. They and we, all have acknowledged that the Constitution, laws and treaties of the United States are the paramount and supreme laws of the land, binding alike on the States and the people.
    The error of the Judge a quo seems to exist in misconceived ideas of the nature of our Federal Government. Ancient and modern history are both replete, with instruction on such issues. Numberless attempts at entering into solemn compacts and permanent conventions without surrendering the individual sovereignty of the States had been made, and they had all failed. The American colonies were not without large experience on such questions. Such efforts on their part also proved abortive. The union for revolutionary purposes, with the articles of confederation for a closer union, likewise failed. They were too weak to support confederation. Bound in foro conscientes only, the States often withheld their sanction to measures of the most vital importance. The General Government had no power to coerce. The neglected and powerless Union was fast dying of its own inherent defects and weakness.
    Warned by past experience, and dreading the prospects of the future, the great patriots and statesmen of that age pressed on the public mind the necessity of a convention for forming a stronger government. Their appeals were effective. The convention met. The Constitution of the United States is the result of their wise deliberations.
    The sovereignty of the States was the vexed question before that convention. The delegates were generally extremely jealous of State rights. They yielded nothing but was shown conclusively to be absolutely essential to the national existence. Two sovereigns could not exist together ; nor could the lesser rule the greater. The States had to surrender a portion of their sovereignty, or let the General Government fail. They chose the former. After years of the most learned and critical discussion, the Constitution was adopted by all the States, and its superior wisdom has been the eloquent theme of every orator. It was declared to be the supreme law of the land.

    The object of that convention was to settle in the most solemn and authentic manner, then and for all time to come, the fearful questions now again reopened in the opinion of the Court below in this case. They had been as canker worms preying upon and consuming the vitals of all former confederations. It had been fully u demonstrated in reason, experience and practice that no effective and permanent combinations could be entered into between States where each retained to itself the exercise of sovereign powers. The assertion of such powers, by the indivicluals, necessarily, in the very nature of things, ends the union, or leads to war for its maintenance. Such was the case in our late terrible struggle. Such must ever be the ease under like circumstances.
    A State or nation is a body politic, or society of men united to promote their mutual interests by their joint means. From the nature of the design there must be some one to determine, direct and command what is to be done by each in furtherance of, the common object. This public authority is the sovereign power. Vat., 1, 8. II., 201, 220.
    The Constitution of a State or nation is the paramount law of the land; the basis of public liberty and tranquility and of individual rights. Vat. 9 and 10.
    All disputes arising respecting the Constitution, the public administration, or the rights of the members composing it, must be referred to the national authority. Vat., 12. Story on Const., 128, 166. Const., art. 3.
    The Government of the United States is partly national, partly federal; national, just in so far as it operates on individuals, federal in its relations to, and modes of operation on, the States. But whether national or federal, it is supreme to the full extent of all the powers expressly granted in the Constitution, and as to those necessarily implied in a grant.
    The Constitution gives to the General Government, sole power to declare war and make peace, to enter into alliances and form treaties, to regulate commerce and coin money, and to manage all the external affairs of the country. These are the highest and most important attributes of sovereignty, and the party possessing them is essentially sovereign. And, as was necessarily intended, once granted by the States, they became irrevocable, permanent and binding to their full extent, scope and meaning.
    The States and the people thereof retained all such powers only as were not expressly granted to the General Government, or necessarily implied in a grant, or prohibited to the States. As to these powers, the States are wholly without authority. Beyond these, and as to everything else, they are unlimited in their functions and responsible only to themselves and the public opinion of the world.
    Hence, it follows that secession was not a right reserved by the States, or by the people thereof. Had it been retained, the labors of that august convention that formed the Constitution would have been in vain, and the delegates would have stultified themselves. For, as we have before shown, the objeots of that convention ■ were to take these sovereign powers or rights from the States and lodge them in the General Government; they having been found to be essential to its existence.
    Yet, in the very face of these plain and unmistakable grants, by the States to the Federal Government, the Judge below argues that the States are still essentially sovereign, and have absolute control of their own citizens. If so,,may they not grant them immunity against penalties for the violation of Federal law V Authorize them to refuse to pay Federal taxes, or serve on Federal juries, or bear Federal arms ?
    If, as argued by the Court below, the first and highest allegiance of the citizen is duo to his State, then he must obey State laws, though they conflict with the higher, the paramount and supreme laws of the land. Thus would a law of a State Legislature, or an ordinance of a State Convention, annul and set at defiance the Constitution of the United States. But such is not the case. The premises are wrong, the reasoning unsound, and the conclusion preposterous in the extreme. The Federal laws are supreme and must be observed by all, however much they may conflict with State legislation.
    It follows, then, that any act done, or contract made, in violation of the higher laws of the country, must be held and declared to be without effect when made the basis of a civil claim or suit. The Court below accords to a party violating the Federal Constitution and laws civil rights founded on and growing out of the very act of violation. He argues, in effect, that since a State is an incorporeal existence, having no one to sit in judgment, or execute sentence, upon her, therefore, she may lawfully do whatever factious majorities, influenced by prejudice or passion, may think proper, without regard to the Constitution and laws of the United States; and that such State action is full protection to all her citizens against the demand, civil and criminal, of that Government.
    It will be well for us all to remember that the General Government is not exclusively Federal. It is not to be confined in its operations only to the States. It may pass by these incorporeal existences and reach the corporeal individuals composing them. Upon these it may pass judgment and execute sentence. And when thus arrested for violations of Federal laws the State rights lawyer would plead, but in vain, State laws and ordinances in justification of such offences.
    Nor can a state of war, be it insurrection, rebellion, revolution or civil war, alter the case. Attempted revolutions, engaged in by large bodies of people, may entitle them to certain purely belligerent rights. And this arises solely from humane considerations. If the attempt fail in its purposes, the participators are not even exempt from punishment, much less entitled to civil rights growing out of acts of war. Revolutions are always highly criminal, unless undertaken for the highest and most sufficient causes. They are too often the result of prejudice and passion excited to serve the ambitious designs of unprincipled demagogues and ambitious aspirants.
    But plaintiff endeavors to justify and legalize the transaction out of which his claim grew, on the ground that a great civil war was pending, which annulled all preexisting laws and constitutions, and to have his claim enforced by virtue of the belligerent enactments under which it was made. It would be unsafe to admit that a minority of the States and people in interest could inaugurate civil war. Our Republican ideas revolt at seeing minorities shaping the destinies of and ruling the majorities. Minorities of those in interest have no right to inaugurate revolution. The precedent is dangerous in principle and ruinous in practice. Not one in a thousand of them would take place, if factious minorities were not allowed to rule. Before the late fearful struggle the united voice of the South would have been heard; her united action would have been respected. And had she been forced to go to war, her united arms would have been successful, because of the majesty of right and truth. Then we would have had an example of civil war. But against the known tvisbes of the majority, gouth (Jefi’dlwa bjindly led off, and others reck* lessly followed. The majority became involved against their consent and remonstrances.
    Bat, if it had been a civil war, it would not alter the case. The same Constitution and laws are still supreme. They have not been overthrown.
    That Constitution, Article 3, section 3, says: “ Treason against the United States shall consist in levying war against them, adhering to their enemies, giving them aid and comfort.”
    The Confederate forces were the enemies of the United States; they were engaged in active, persistent, fearful war with them. The payee of the instrument sued on joined the enemies of the United States to fight their battles, to give them aid, and now plaintiff, who represents him, wants pay for the chivalrous act of undertaking to aid in the overthrow of the Government of the country in which he lives, from whose laws he receives protection, and to whose Courts he appeals for relief. Such a contract is reprobated by law, and cannot be enforced.
    Chief Justice Marshall said: “It is perfectly well settled that no action can be maintained on a contract wicked in itself or prohibitad by law.” 11 War. 258.
    The contract sued on is not only in contravention of law, but the acts forming the consideration of it, are forbidden and denounced as the highest crime known to the law. It is reprobated by law, because it is against the public policy of the Government. Neither is it considered in any more favorable light by the laws of our own State. Article 19, C. P. says: “ Obligations contrary to justice, good faith, or good morals, such as those by which a reward is promised to commit a crime, give no right of action to either party.” The example of the rule given is precisely in point. For plaintiff seeks a reward for the commission of the highest crime known to our laws.
    Article 1772, O. 0., says: “Every contract must have a lawful purpose.” See also Schmidt v. Baker.

    Article 12, O. 0., says: “Whatever is done in violation of a prohibitory law is void.”
    Article 1886: “That is considered morally impossible, which is forbidden by law. All contracts having such objects are void.” See also 1887, 1889, 2026.
    The laws mentioned and referred to in these articles are: first, the Constitution, laws and treaties of the United States; secondly, the Constitution and laws of this State. The acts which formed the cause of the contract sued on are in palpable violation of the Constitution and laws of the General Government and of the State, and all those laws are now in full force.
    We think the judgment is erroneous, and should be sot aside and reversed, and judgment be rendered in favor of defendant, with costs in both courts, and we ask that it may be so ordered.
   TAniAEEBKO, J.

During the late rebellion, one Patterson hired himself to the defendant, Bosley, to take his place as a soldier in the army of the so-called Confederate Government. The price stipulated was thirty-five hundred dollars, to be paid in two annual installments of half that sum each, for which two several promissory notes were given, with a surety on each.- The notes were drawn payable to H. J. Patterson or bearer. The plaintiff-became the holder, and brought this suit against the makers. The-defence is, illegality .of consideration, having been given in aid of the rebellion against the Government of the United States.

-- . The .plaintiff obtained judgment in his favor against Bosley, and the latter has appealed.

. - -The notes express upon their face the purpose for which they were executed, and their illegality is patent. - The obligation sought to be enforced is utterly null and void.

. Tt is therefore ordered, adjudged and decreed, that the judgment of the District, Court be annulled, avoided and reversed; it is further ordered that judgment be rendered in favor of the defendant, releasing him from the illegal contract entered into, the. plaintiff and appellee paying costs in both courts.


author: Taliaeerro, j.

text:
    No. 48.
    Godfrey Martin, Administrator, v. William A. Kelly et al.
    . ./This caso presents only questions of fact.
    A . PPEAL from,the District Court, Parish of Bossier, Jones, J.

      Fori & Brother for -plaintiffs.

      L. B. Watkins, for defendant.
   Taliaeerro, j.

This is an action brought by the plaintiff, in his capacity of administrator, to compel payment by the defendants of two promissory notes, each for the sum of $566 66, with interest, executed by them for the payment of the price of a negro woman, a slave belonging at the time of sale, in 1859, to the succession of A. Martin, deceased. The defence is, that at the time of the sale, and for more than one year previous, the woman was afflicted with an incurable disease of which she died not long after-the sale. - That the purchaser, Kelly, was ignorant of the existence of the malady at the time he purchased; that he incurred expense in procuring medical attention for the woman, from which she derived no benefit. The defendants prayed judgment releasing them from their obligation,- and for judgment over against the administrator for the expense incurred, etc. There were three trials of the case in the Court below, and each trial before a jury. On one of these trials, the jury disagreed; in the other two, verdicts were rendered for the defendants who, obtaining judgment of release, the plaintiff appealed. The evidence shows that for, several years previous to the sale, the slave was unhealthy. Ofie witness testified that she was afflicted two or throe years before the sale. That she was unable to labor regularly, and was frequently laid up on account of sickness. That she boro no children, and that he inferred from that fact that her unhealthinoss arose. He stated that the woman had been in the possession of the plaintiff during the year previous to the sale. Several witnesses, and among them a physician, testified that the woman was greatly afflicted by; and suffered much from, derangement of the menses. That these afflictions were at monthly intervals. It was shown that the plaintiff said, about two weeks before the sale, in answer to au inquiry on the subject, that the slave was unsound. After tlie sale it appears that the defendant refused to execute notes in conformity with the terms of sale, until he received legal advice that a warranty was implied, as no declaration was made that the slave had defects of any kind. On tho part of the plaintiff, an effort was made to show that the woman died from the effects of poison, and not of the sickness alleged by the defendants. In this effort, we think the plaintiff clearly failed. The physician who was called in during the last illness, testified that the woman died of convulsions, the cause of which he was unable to determine. He made a post-mortem examination, but had not the tests necessary to detect the presence of poison. When he first saw tho patient at the time of her last illness, he thought the symptoms .indicated spasmodic cholic. He was not positive she died of poison; had.his doubts. He did not examine the coats of the stomach to ascertain whether they were affected. He found the liver diseased. After a careful examination of all the evidence, we come to the conclusion that the judgment of the lower Court was correctly rendered. It seems that there is no doubt that the slave had been continuously afflicted, at intervals of from three to four weeks, for two or three years previous to the sale, with a serious infirmity incident to females, and of which she finally died a short time after she was purchased by one of the defendants. There seems no reasonable doubt that the disease with which she was afflicted was incurable.

It is therefore ordered, adjudged and decreed that the judgment of the District Court, be affirmed with costs in both Courts.


author: Hvman, C. J.

text:
    No. 41.
    J. Marks & Co. v. A. Winter.
    The contents of a written instrument cannot be proved by parol evidonce, without first showing the existence and loss of the written document.
    Tho best ovidoncein the reach of the parties should be produced.
    A PPEAL from the District Court, Parish of Caddo, Weems, J.

      T. T. <& A. D. Land, for plaintiffs.

      Wright & Duncan, for defendants.
   Hvman, C. J.

Plaintiffs brought suit against defendant on three promissory notes made by him, payable to their order.

Judgment was rendered in favor of the plaintiffs for the amount of the notes, with interest and cost, and defendant has appealed.

On tho trial of the case in the lower Court, the defendant attempted to prove by parol the contents of a written agreement, which the Judge refused to admit, because it was not the best evidence, and defendant contends that there was error in the refusal of the Judge to receive such evidence.

Tho best evidence should be produced that is within the power of tho parties to procure, and it is not pretended that the defendant could not have procured the written agreement.

Tho plaintiffs have fully proved their claims.

Let the judgment be affirmed, and lot the defendant pay the cost of appeal.


text:
    No. 100.
    Jessee A. Bynum v. Hamilton and J. E. Tyson.
    Where the transcript of appeal does nob show that a final judgment has been rendered in tho lower Court, the appeal will be dismissed.
    A . PPEAL from the District Court, Parish, of Bapides, Lewis, J.

      J. Orsborn, for plaintiff.

      H. S. Losee, for defendants.
   Taliaferro, J.

The plaintiff brings suit against the defendants on a contract for rent of land. A trial seems to have taken place in the Court below, but we nowhere find in the record that a final judgment was rendered, from which an appeal could be taken. We find the following extract from the minutes:

“Alexandria, May 8 th, 1867."

“Judgment for defendants. Appeal granted. Bond, $100 for devolutive, according to law, for suspensive.”

We think the appeal premature, and that it must be dismissed.

It is therefore ordered that the appeal taken in this case be dismissed, the plaintiff and 'appellant paying costs of the appeal,


author: Labauve, J. Labauve, J. Ilsley, J.

text:
    No. 28.
    Timothy Lacoste v. John R. West et al.
    The builder has a privilege on the building which he may have constructed, but if tho amount is over five hundred dollars, the agreement must be in writing, and registered, to preserve the privilege. C. O. 2746.
    Where property sold under a mortgage brings more than the amount of the mortgage, the builder having a privilege next in rank to the mortgage, is entitled to the overplus.
    A PPEAL from the District Court, Parish of Natchitoches, Chaplin, J.

      J. B. Tucker, for plaintiff.

      J. M, Thomason and J. II. Cunningham., for defendants.
   Labauve, J.

On the 8th October, 1860, E. E. Eitzgerald executed his note for $500, in favor of J. B. West, and to secure the payment thereof, contracted a special mortgage in favor of said payee of said note, upon a certain lot of ground described in the record. On the 6th of October, 1865, the said John B. West obtained an order of seizure and sale against said lot. The plaintiff, alleging that he had a privilege of the builder on a house erected upon said lot by one Meloin, for $516 85, with eight per cent, per annum interest, from the 4th of August, 1861, obtained an injunction upon West and the sheriff, ordering the sheriff to retain in his hands, subject to the further order of the Court, the proceeds of sale of the building.

This alleged privilege of the plaintiff and opponent is based upon tho following note:

“ Natchitoches, February 4th, 1861.

“ Six months after date I promise to pay to the order of W. C. Meloin, for building house, the sum of five hundred and sixteen dollars and eighty-five cents, with eight per cent, interest per annum from maturity; value received.

(Signed) E. E. Eitzgerald.”

The plaintiff, having become the holder and owner of said note, on tho 11th June, 1862, presented to the District Judge, at Chambers a petition praying for a judgment against the maker of said note, with the privilege of builder, and that said house be seized and sold to pay^the judgment. The defendant in that suit accepted service of the petition, and confessed judgment as prayed for, and both parties agreed that the Judge - should try the case, and render judgment in Chambers; the judgment was accordingly rendered on the 11th June, 1862, decreeing the then defendant to pay said sum, and allowing the privilege on the house.

We consider that there is but one question submitted to our decision, and it is one purely of law ; it is whether the plaintiff, has a privilege preferable to the mortgage of J. R. West. The undertaker has a privilege on the building which he may have constructed. C. C. Art. 2743. But if the amount be above $500, the agreement must be in writing, and registered, to preserve the privilege. O. C. Art. 2746. 4 A. 121. 5 A. 333.

In this case there was no agreement in writing registered. The judgment rendered in favor of T. Lacoste, and allowing and recognizing his privilege, is res inter alios acta, and not binding on West. 12 An. 521. We deem it unnecessary to pass on any other question; the alleged privilege of the plaintiff cannot prevail. , •

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled and avoided, and that tho:provisional injunction be dissolved and the suit dismissed, and that plaintiff and appellee pay cost in both courts.

On Rehearing.

Labauve, J.

In this case a rehearing was granted to the plaintiff and appellee, upon the question whether he is not entitled to the residue Of the proceeds after paying defendant’s mortgage debt.

As regards the seized debtor, the plaintiff has a privilege and mortgage upon the property seized, but the defendant’s mortgage is preferable, "and must be paid first, together with the cost of seizure and sale. We believe that justice entitles the plaintiff to the residue.

It is therefore ordered and decreed, that our former judgment be • amended, as follows: It is further ordered and decreed, that after paying the defendant’s mortgage debt and cost in the seizure and sale, the sheriff do pay to the plaintiff, the residue of the proceeds in dispute, and that as amended, our former decision remain affirmed, the said plaintiff and appellee to pay the cost of the injunction in both courts.

On Rehearing.

Ilsley, J.

A rehearing in this case having been granted, because the' judgment was prematurely rendered, as the defendánt had not the legal delay to file his brief. We have reexamined our first decree, and the grounds relied upon to reverse it, and we see no reason why our first judgment should be disturbed.

It is therefore ordered, adjudged and decreed, that the juclgn^ejvt last rendered remain undisturbed,


author: Hyman, C. J.

text:
    No. 35.
    O. Capmartin v. Police Jury.
    A Warrant drawn and signed by the prosidentand clerk of the police jury, is not binding on the parish, unless the police jury have authorized them to sign the warrant.
    A PPEAL from the District Court, Parish of Natchitoches, Lewis, J.

      S. M. Hyams, Sr., for plaintiff.

      C. Chaplin, Sr., for defendant.
   Hyman, C. J.

Plaintiff brought suit against the police jury of the parish of Natchitoches on several obligations, made and signed by the president and clerk thereof, wherein they, the president and clerk, promised that the parish of Natchitoches would pay the amounts stated in the obligations in current funds, and would also receive them in payment of parish dues.

Judgment was rendered against the jury on the obligations, and it has appealed.

The jury relies on various grounds for the reversal of the judgment.

It is only necessary to notice one of the grounds relied on, to wit: that plaintiff had not shown authority in the president and clerk to bind the jury.

There is no law authorizing the president and clerk to bind the jury, nor is there any evidence adduced, showing that it authorized them to make or sign the' obligations sued on.

Let the judgment of the District Court be reversed and annulled, and let the suit of plaintiff be dismissed as of nonsuit, at his cost.


author: Ilsley, J.

text:
    No. 85.
    John C. Dowty v. Denis Sullivan.
    Statements made, or letters ^written, by an endorser of a promissory note, after the transfer, are not admissible to defeat the action of the holder.
    If his testimony can be used at all, it is as a sworn witness in the case.
    A PPEAL from the District Court, Parish of Rapides, Cooley, J.

      Ryan & White, for plaintiff.

      W. A. Seay, for defendant.
   Ilsley, J.

This is an appeal from a judgment in-favor of tho plaintiff and against the defendant, for the amount of a promissory note by the latter, drawn to the order of and endorsed in blank by the payee, James Madison Wells.

The defendant sets up equities against the payee of the note, who, ho alleges in his answer, transferred it to tho plaintiff after its maturity, and- which equities he pleads against the plaintiff, to defeat his action.

In order to establish this defence, i. e., the existence of valid equities and posterior transfer, the defendant offered letters of Wells, written after the transfer, which were objected to, on the ground that Wells was not a party to the suit, nor a sworn witness.

Statements made by Wells, after he had transferred the note to defeat the plaintiff’s action, were not admissible. If his testimony could be used at all, it was only as a sworn witness in the case, so that the plaintiff could cross-examine him.

The letters were properly excluded.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, at the costs of the appellant.


author: Idskey, J.

text:
    No. 77.
    N. E. Wright, Administrator, v. A. J. Stacey.
    A contract to serve in the Confederate army as a substitute for an other was unlawful, and carried with it no legal obligation.
    The doctrine, in the case of Schmidt v. Barker, (17 An. 264) reaffirmed.
    This Court will not lend its aid to settle disputes relative to contracts reprobated bylaw. It will notice their illegality cx officio, and allow it without any plea at any stage of the prooeodings. Parties cannot bo heard, whoask relief from a violation of law.
    The Court leaves them where their conduct has placed them, and m $ari cutya mdior at conditio 2>oasid';niis.

    A PPEAL from th© District Court, Parish of Caddo, Weems, J.

      Looney & Nells, for plaintiff.

      J. W. Duncan, for defendant.
   Idskey, J.

This is an appeal from a judgment in favor of tho plaintiff against the defendant, for the sum of five hundred dollars in coin, with interest and costs. The obligation upon which the action was based is transcribed below, as follows:

“Shreveport, November 29bh, 1862.”

“Due Thomas Armstrong, or his heirs, five hundred dollars in coin, at the conclusion of peace between the Confederates and the United States of America, or at the termination of said Armstrong’s term of service, should said Armstrong remain in the army as a substitute for the undersigned, A. J. Stacey. Should the said Armstrong not remain in the above written service, then this note to be null and void.” .■ . ,

The defence set up was that the obligation sued on was contrary to law, and that if the same was lawful that the obligee had failed to perform his part of the contract. A voluntary engagement to aid a rebellion against the United States, which it is evident from the testimony the defendant’s engagement was an undertaking illegal and immoral, and no action lies upon such a contract.

This Court said in Schmidt v. Barkei-, 17 An. 264, what we now again repeat: “This Court will not lend its aid to settle disputes relative to contracts reprobated by law.

‘ ‘It will notice their illegality ex officio, and allow it without any plea at any stage of the proceedings.

“Parties cannot be heard, who ask relief from a violation of law.

“Tho Court leaves the parties where their conduct has placed them,, and in pari culpa melior est conditio possidentis. ” See also Davis v. Holbrook, 1 An. 178; State v. Lazaree, 17 La. 132.

It is therefore ordered, adjudged and decreed, that tho plaintiff’s suit he dismissed at his costs, in both courts.


author: Labatjve, J.

text:
    No. 78.
    Michael and Henry Boyce v. Thomas C. Hunt et als.
    Where a party sells a tract of land on time, and takes the notes of the vendee, secured by mortgage on. the land to secure the payment of the price, and the vendee, before the price is paid, sells the same land to anotheb party, who assumes the mortgage in favor of the original vendor, the first vendor may have the land seized and sold to pay his mortgage, and the second vendee cannot set up, by way of exception, .that the suit be dismissed as to him.
    The original vendee of the land may be sued on the notes, and the mortgage enforced on the land of his vendee in the same suit.
    A PPEAL from the District Court, Parish of De Sotó, Weems, J.

      Earn <& Wemple, for plaintiffs.

      B. J, Bowman, for defendant,

      Brief of Elam & Wemple, for plaintiffs and appellants.

      * * Petitioners prayed for personal judgment against Hunt <fc Gillespie, as the makers of the notes, and against Whitworth & Poag and Bonds, on their stipulation, that their mortgage be recognized and enforced, the lands be seized and sold in satisfaction thereof.
    Bonds alone appeared, and put in the following exception: “In this case the defendant, James Bonds, excepts to the plaintiffs’ petition upon the following grounds, viz: That the cause of action against T. C. Hunt is entirely distinct and separate from that set forth against this defendant, the rejection or the success of the one, not involving the rejection or success of the other, and the same demands being separate and distinct, and against separate parties cannot be cumulated. Wherefore, the defendant prays that plaintiffs be ordered to elect which of said demands he will prosecute, and in the event of his refusal to elect, that this suit bo dismissed, and for costs and general relief.
    Upon this exception, the following order was entered by the Court: “ October 13th, 1866.”—“Exception sustained.”
    If we understand this exception, it is to the effect that the personal and the hypothecary action cannot be cumulated against Bonds, if so, these actions cannot be maintained against him while the suit is pending against Hunt. The first question to be considered is, whether Bonds and Whitworth & Poag are personally liable to these plaintiffs, by reason of the stipulation already referred to in the act of sale from Hunt to them in favor of plaintiffs; and if so, what is the character of the obligation thus incurred by them. Articles 1884 and 1896 of the C. C., expressly provide that a stipulation made by one of the parties to a contract in favor of a third person, whereby he agrees to pay a sum of money or to give a particular thing is binding, although the party in whose favor the stipulation is made is no party to the contract, and when accepted by him the stipulation becomes irrevocable. The stipulation of Bonds and Whitworth & Poag in favpr of the plaintiffs, having been accepted by them by the institution of this suit become irrevocable, and gave rise to the real and personal action they have brought and can be cumulated, and all the parties who are bound for the debt may be joined in the same action, whether the obligations of the parties are in solido, or several; if in solido, the plaintiffs may proceed against all of them in the same suit, if in the same jurisdiction; and if several, as is the case, so far as Bonds and his co-obligors, Whitworth & Poag are concerned, they must all be joined in the same suit. And it may be proper to observe further, in this connection, that they are third possessors of the whole tract of land hypothecated, purchased by them in indivisión, and it was necessary they should be joined in the same action, even if the hypothecary action had alone been resorted to, reserving their right to institute a personal action in the event the hypothecated property should be insufficient to pay the debt. Bonds and Whitworth & Poag, we think we have shown, are personally responsible for the debt sued for, as much as they had been parties to the contract of mortgage áb initio, because they made themselves parties to it in the manner we have already shown.' If this position be correct, how it can be said that the cause of action set up against Hunt & Gillespie and Whitworth & Poag, is distinct from that set up against Bonds, and therefore cannot be cumulated, we are at a loss to perceive.
    We repeat it, if these third possessors are liable to plaintiffs, personally, because, although not parties to the act of mortgage at the time it was passed, they having made themselves 'so subsequently, then it follows that if we could have cumulated the personal with the hypothecary action against Hunt & Gillespie, if they had not parted with their title and possession, we can join all the parties to the contract in the same suit, and cumulate both demands against them.
    Will it be pretended in the case we have assumed, that we could not pray for a personal judgment against Hunt & Gillespie. The recognition of our mortgage and privilege, and that the land be seized and sold to pay the debt. That'we could have elected to proceed by personal action against all these parties or by hypothecary action seems to be conceded; but it is said, although this is true, the remedies given by the law must be exercised separately, and not cumulatively or such at least, it seems to us, is the line of argument counsel’s exception must force him to assume, if we apprehend him.
    If the judgment of the lower Court be affirmed, sustaining the exception, it must be on the ground that although all these parties are liable for the debt in person, and the land is liable to our hypothecary action, yet we must elect to pursue one remedy at a time, such a ruling would lead to circuity of action, which is opposed to our system of pleadings and the policy of the law, except when it is necessary to enable a party to mate his full defence on the merits.
    In conclusion, we submit that the following authorities settle all the questions of law and practice raised by the pleadings in this case, and support the views we have submitted. See C. P. Art. 35. C. C. Articles 3366 and 3368. Twichell v. Andry and Wife, 6 B. 407. Mitchell v. Cooley, 5 B. 241. A. Bonnafe & Co.v. John andE. MoLane, 5 A. 225.

      Brief of B. J. Bowman, for defendants and appellees.
    —The appellant has correctly stated the facts which has given rise to this litigation.
    Upon these facts he has cumulated two distinct actions: a personal aetion against the appellant, on his assumpsit in favor of the plaintiffs, and a hypothecary action against him as third possessor.
    The exception of the appellant is, that these actions cannot be cumulated.
    We submit it as axiomatic, that no two actions can be cumulated unless the rights involved by them are homogeneous.
    In these, they are distinct and dissimilar. If sued upon, his assumpsit to the plaintiffs; the plaintiffs occupy to him the same position as their vendor, Hunt, and must warrant against all, the mortgages which Hunt left upon the land. 9 An. 195. “A purchaser, who, as part of the consideration, stipulated with his vendor, to pay a debt due by him, may, when sued by the person to whom the debt was due, set up the same equities that he has against the vendor himself.”
    The hypothecary action cuts off these equities, and therefore does not involve the same or even similar rights.
    Again: as third possessor, the appellee has a right to the increased value which his improvements have given the land mortgaged. The 3370 Art. of the C. 0., after declaring his liability for deteriorations caused by him declares, “but he can claim for his expenses and improvements only to the amount of the increased value, which is the result of the improvement made.”
    The interpretations we have placed upon this article are sustained by Judge Porter, in the case of Lanusse v. Lanna, 6 N. S. 114, as clear and unequivocal, and the only difficulty presented in that case “ was how this value is to be ascertained. ”
    In the direct action on the appellee’s stipulation in favor of the plaintiffs, the appellee is entitled to demand of the plaintiffs that he should freo the lands from the incumbrances placed on it by Hunt, or give him security against them, and warrant his title against all evictions.
    In the hypothecary action, the appellee would have the right to demand payment for the increased value given the land by the improvements made by him. Here then are two distinct and different rights and liabilities, as distinct as an action on a promissory note and a petitory action. If then our axiom, “that two actions cannot bo cumulated unless the rights involved are homogeneous,” be an axiom, we submit that the exception was well taken, and the judgment of the District Court ought to be affirmed.
   Labatjve, J.

This suit is brought on eight promissory notes, amounting together to $20,123 51 in principal, executed by Hunt & Gillespie in favor of the plaintiff, for the price of a tract of land sold by plaintiffs to said Hunt & Gillespie, on the 13th September, 1858, the land remaining specially mortgaged to secure the payment of said notes. On the 2d day of June, 1862, George E. Gillespie, the co-proprietor of Hunt, reconveyed his undivided half to the said Hunt, who obligated himself, in part consideration for said sale, to pay the mortgage in favor of plaintiffs; and afterwards, on the 23d April, 1863, said Hunt resold the whole tract of land to John J. Whitworth and John Poag, composing the firm of Whit-worth & Poag, and James Bonds, in the following proportions: One undivided half to Whitworth & Poag, and the other undivided half to James Bonds. The said purchasers, as a part of the price, assumed the mortgage debt due the plaintiff.

The plaintiffs prayed for a personal judgment against Hunt & Gillespie, the original purchasers and makers of the notes, and against Whitworth & Poag and Bonds, on their assumption of the mortgage debt, and that their mortgage be recognized and enforced, the land seized and sold.

James Bonds alone appeared, and filed the following exception:

“In this case the defendant, James Bonds, excepts to the plaintiffs’ petition, upon the following grounds, viz: That the cause of action against T. O. Hunt is entirely distinct and separate from that set forth against this defendant, the rejection or the success of the one, not involving the rejection or success of the other, and the same demands being separate and distinct and against separate parties, cannot be cumulated. Wherefore, the defendant prays that plaintiffs be ordered to elect which of said demands they will prosecute, and in the event of his refusal to elect, that this suit be dismissed, and for costs and general relief.”

This exception was sustained, and the plaintiffs appealed.

We are clearly of opinion that the Court erred. The defendants are hypothecarilybound as holders of the mortgaged property, and personally bound under their assumption of the mortgage debt due the plaintiffs. We understand the suit to be that the defendants pay the mortgage debt due the plaintiffs, and that the mortgage be recognized, and the land seized and sold to pay said debt.

It is therefore adjudged and decreed, that the judgment appealed from be annulled and avoided; it is further ordered and decreed, that the exception be overruled and the case remanded, to be proceeded with according to law, and that the appellee pay costs of appeal.


author: ■Tauiabebbo, J.

text:
    No. 38.
    T. R. Simpson, for use, etc., v. John M. Lewis, et al.
    "Where the sheriff and his sureties have been made liable for acts of misfeasance in office, committed by the deputy, they have the right to proceed against that party and his smrebies to recover tho amount they have been condemned to pay the creditor on account of the misconduct of tho deputy.
    It takes tho same length of time bo prescribe an action against the deputy-sheriff by the sheriff and his sureties, for misfeasance in office, that it does for the sheriff to prescribe against the creditor, viz : two years,
    In a suit against the sheriff and his sureties, the deputy was called in warranty by the sheriff ; judgment was rendered against the sheriff and his sureties, and against the deputy in warranty, tho defendants appealed, but the deputy allowed the judgment in warranty to stand, without joining in the appeal: Held—Thtib, the judgment of the lower Oourb against the deputy as warrantor was Coram non judice in the appellate Oourb, and musb be considered as res judicata against tho deputy; who, having specially plead it in his answer iu the suit against him by the sheriff as res judicata, he asserted its validity, and cannot aver its nullity when invoked against him.
    The sureties of the deputy ave in the same attitude with their principal: Their obligation arises ex contractu and not ex delitio.

    A PPEAL from the District Court, Parish of Caddo, Oreswell, J.

      Wright & 'Duncan, for plaintiffs.
    A. B. Devisee, for defendant.

      Brief of Wright & Duncan, for plaintiff.
    —In the month of December, 1856, John B. Marshall & Co., and Peet, Sims & Co., instituted suits against T. B. Simpson, sheriff of Caddo parish, and his sureties, N. Moore, J. P. Hailey, and Henderson Markham, to recover damages for alleged misfeasance in the performance of an official act on the part of J. M. Lewis, one of Simpson’s deputies.
    The defendants answered, specially denying that plaintiffs had been damaged by any misfeasance or neglect of duty on the part of .defendant or his deputy, J. M. Lewis, and concluded by calling the said Lewis in warranty, who answered, also denying the allegation of misfeasance, as well as his liability to defendant as warrantor.
    Judgment was rendered against Simpson and his sureties fo¡r the sum of $2,200, with five per cent, per annum interest from judicial demand, and in Simpson’s favor against Lewis for the same amount. From this judgment defendants appealed. The Supreme Court divided and reduced the judgment of the District Court, awarding to John B. Marshall & Co., the sum of $1,054 25 with interest, and Peet, Sims & Co., the sum of $778 75 with interest also. (R., p. 16; 13 A., 437.) This judgment was satisfied by the sale of defendants’ (Hailey’s and Markham’s) property. The judgment of the District Court was rendered on the 1st of May, 1858; that of the Supreme Court, on the 22d July of the same year.
    About the third day of November, 1859, Simpson instituted the present suit for the use of Hailey and Markham, against Lewis and his sureties to recover the amount which they had been compelled to pay under the judgment above referred to. The defendants answered, setting up the judgment of the Supreme Court as res judicata, and specially denying that Lewis was guilty of any misfeasance or neglect of duty in the premises, averring that if he was, the said Simpson knew of the same and ratified it, and concluding with the plea of prescription of one and two years, judgment was rendered sustaining the plea of res judicata as to Lewis, and dismissing as in case of nonsuit as to Battle, George, and Ford. From this judgment plaintiff has appealed.
    - The records in the cases of J. R. Marshall & Go., and Peel, Sims & Co. v. T. R. Simpson, et ais., Nos. 4,795 and 4,796, (consolidated,) which were received in evidence without objection or restriction, (6 A., 110; 3 ib. 42,) and other testimony adduced, establish the following facts, to wit: that on the 16th of April, 1856, J. B. Marshall & Co., and Peet, Sims & Co. obtained judgments in solido against D. H. Mallory and Thomas D. Waddell, in the District Court for Caddo parish, for the respective sums of $3,756 and $3,370, with eight per cent, interest, which judgments were duly recorded; that on the 23d of .June following, writs of fieri facias were issued on said judgments and placed in the hands of one of the deputies of T. B. Simpson, to wit: the defendant J. M. Lewis, who had duly qualified and given bond; that at the time said writs were placed in the hands of said Lewis, certain property, to wit: two slaves, were pointed out to him for seizure as the property of the judgment debtor, which were then in the hire of W. W. Harper, and on his plantation in the parish of Caddo (13 A. 437); that instead of executing the writ in the manner directed, said Lewis went to Greenwood and there gave information to Daniel Waddell, the father and agent of the judgment debtor, that he had such a writ in his possession, but -made no attempt to execute it; (testimony of Mr. Harper, pp. 42, 43, and also opinion of S. C.); that within twenty-four hours after the father of Waddell had received this information, the property pointed out was spirited away and placed beyond the reach of legal process (B., pp. 6, 12, 42; Sup. Trans., pp. 1, 2, 3.) Upon this evidence judgment was rendered against Simpson and his sureties, and in favor of the former, against Lewis, as warrantor, and this evidence, I here confidently submit, entitles the plaintiff to judgment in this suit, unless the defendants can show some new matter of defence or avoidance.
    The first matter of defence set up is the plea of res judicata. This part of the answer is so obscure, that it is difficult to ascertain with certainty what is intended. Is the decree of the Supreme Court set up as res judicata in their favor? or as res judicata against them? As autrefois acquit ? or autrefois convict ? As the subsequent proceedings in the case throw no light upon this point, we must await the further developments of the learned counsel for the defendants.
    In the meantime, however, let us inquire how far the judgments ren•dered against the defendant Lewis, as warrantor in the two cases, Nos. 4795 and 4796, (consolidated,) and the final judgment against Simpson and his co-defendants in the Supreme Court, affect the co-defendants and sureties of Lewis in this case. The District Court, as we have seen, -rendered the same judgments against Lewis in favor of Simpson, as against Simpson and his sureties, in favor of the plaintiff in these shits. Simpson and his co-defendants and sureties appealed from the judgment against them, but Lewis never appealed from the judgment against him as warrantor. True, he joined Simpson, and the other defendants in their appeal, and signed the bond with them as a principal, but he never appealed from the judgment against himself directly as warrantor. At least he never gave bond in such an appeal. The bond he signed was in favor of the plaintiffs, who had nothing to do with the judgment against him, and could not have claimed the benefit of it, (14 A., 61,) and not in favor of Simpson, for whose benefit the judgment was rendered. The Supreme Court evidently did not consider the judgment in warranty before them, because no mention whatever is made of it in the case (13 A.-, 437). Now what consequences result from these facts?
    In the first place, the unappealed judgment of the District Court against Lewis, has become res judicata, as to him, to the same extent that the definitive judgment against Simpson and his co-defendants is res judicata as to them (19 L. 395; 12 K. 437) and, in the second place, by making himself a party to Simpson’s appeal, and at the same time omitting to -ask for any change in the judgment against himself as warrantor, Lewis is bound by the decree of the Court on that appeal, and it is res judicata against him;

      Brief of A. B. Levisee, for defendant.

    * * * The misfeasance complained of falls under the denomination of quasi-offences. C. C., 2294, 2295; Semple, et al v. Buhler, 6 N. S., 665; Fisk v. Browdon, 6 N. S., 691; Wood v. Foster, 3 L., 338. Yide also 2 N. S., 24; 13 A. 437.
    The right of action growing out of such offences is prescribed by one year. C. C., 3501. Yide cases above cited, and 3 N. S., 585; 2 A., 400.
    Prescription begins to run in all such cases from the date of the act complained of. C. C. 3502; 6N. S. 691, Balfour v. Browder, 6 N. S. 708.
    The date of the misfeasance in this case is sufficiently fixed by the date of the writs, and the testimony of W. W. Harper, say 1st July, 1856.
    Prescription continued to run without interruption, until the acceptance of service by the defendants in this suit, and as the acceptances of service are without date, the interruption can be determined only by the date of the appearance and filing of the answer, to wit: 25th March, 1853.
    We therefore respectfully submit that the plaintiffs’ action is prescribed as to all the defendants, and that they are entitled to a final judgment in their favor.
    Objections urged against the foregoing argument:
    First. It will probably be objected that this case is to be governed by the prescription of two years, instead of one, under the act of 1837. Vide Acts of 1855, p. 367, sec. 10.
    We contend that Lewis was not a sheriff within the provision of this act, and that especially between him and Simpson, his principal, the case is to bé decided by ordinary prescription of one year.
    But even if Your Honors should be of opinion that the case is to be governed by the term of two years instead of one, it does not alter the case, as much more than two years had elapsed before any interruption took place.
    Second. It will also probably be claimed by the plaintiff that prescription was interrupted by the citation to Lewis on his call in warranty.
    To this we answer that, Lewis not being a necessary party to the suits of Marshall <& Co., and of Peel, Sims <& Co. v. Simpson, the appointment of a curator ad hoe to represent him, and the posting of citation, etc., were without any legal effect whatever as against said Lewis or his co-defendants herein, either as the basis of a valid judgment or to interrupt prescription. Hill v. Barlow, 6R., 143; Bupey v. Hunt, 2 A., 562; Smith v. MeWaiers, 7 A., 146; Cox v. Bradley, 15 A., 529.
    In the next place, if the Court should be of opinion that as to Lewis the case falls within the act of 1837, and that the prescription of one year does not apply as to him; and further, that the posting of the citation has the effect to interrupt prescription as to him, it is palpable that, as. to his co-defendants in this suit, the prescription of one year is applicable and not that of two, for it certainly cannot be said that the sureties on a private bond given by a deputy-sheriff, are sheriffs or the sureties -.of a sheriff, within the meaning of the act of 1837. And the necessary time had run as for them before the attempted citation to Lewis in the suits of Marshall & Co., and Peel, Sims & Co. v. Simpson, sheriff; and again, the necessary time ran after that citation, and even after the judgment of the Supreme Court on those cases at the July sitting of 1858, before the commencement of the present suit. * * * *
   ■Tauiabebbo, J.

In two separate actions against I). H. Mallory and T. D. Waddell, judgments were obtained against them and executions issued. The defendant, Lewis, the deputy of the plaintiff, then sheriff of Caddo Parish, having these executions in his hands was instructed to seize certain slaves pointed out to him as property of Waddell. Failing to make the seizure as instructed by the attorneys of the judgment creditors, and no other property being found upon which the executions could be levied, recourse was taken upon Simpson, ihe sheriff, and his sureties. Judgments were rendered against them for the amounts claimed, with judgment over against Lewis, the deputy, called in warranty by his principal. On appeal to this Court the judgment was modified. (13th Annual, 437.) Execution issued on the amended judgment and was satisfied by the seizure and sale of the property of Hailey and Markham, sureties of sheriff Simpson. The present suit is brought for their benefit against Lewis, the deputy, and his sureties.

The defence is a special denial of any misfeasance in office on the part of Lewis, the deputy-sheriff; the prescription of one and two years and the judgment of this Court in the case referred to is set up as res judicata. Judgment was rendered in the Court below sustaining the plea of res judicata as to Lewis, and dismissing as in case of nonsuit as to the other defendants.

From this judgment the plaintiff has appealed'. It does not appear that the defendant, Lewis, appealed from the judgment rendered against him as warrantor in the suit by the judgment creditors against the sheriff and his sureties. He signed with the defendant, Simpson, and his sureties, an appeal bond in favor of the plaintiffs, but the plaintiffs had obtained no judgment against him. He gave no bond in favor of the only party that did obtain judgment against him. There being then no appeal from the judgment so far as it affected him, the decree of the lower Court rendering judgment over against him was ooram nonjudice in the appellate Court, and hence no action was taken by that Court in regard to it. "We cannot adopt the view which the defendants seem to take of the condition of the case after the revision of the judgment by the appellate Court. That Court, very properly it seems, annulled and reversed the judgment of the Court of the first instance, in order to correct a manifest error as to the amount that was awarded to the plaintiffs ; it could only act upon what was before it by appeal. The judgment of the lower Court in favor of the principal against his deputy not appealed from, must therefore be considered as res judiccda against the deputy, and not res judicata, as contended for by the defendants, in his favor.

This judgment the defendants hold is a nullity, if it does not inure to their benefit. This would be using it both as a sword and a shield. Having specially plead it in their answer as res judicata, they asserted its validity, and cannot aver its nullity, when invoked against them.

The plea of prescription we think cannot avail the defence. The act of misfeasance complained of occurred in the month of June, 1856, by the omission of the deputy-sheriff, to seize property under the execution placed at that time in his hands. The suit to render the sheriff and his sureties liable was instituted in the December following, less than one year from the date of the omission complained of. Service of citation on Simpson, the sheriff, was made on the 30th December, 1856. From that time until the final decree, of the appellate Court in the case, about the 1st of August, 1858, suspension of prescription took place.

The suit to recover from the deputy and his sureties the amount paid by the sureties of the sheriff was filed 3d November, 1859, and the defendants answered on the 17th of April, 1860, less than two years from the date of the decree of the appellate Court.

But it is contended by the defendants that if the deputy sheriff was liable, as alleged, he was guilty of a gross offence and could not be proceeded against after the lapse of one year, and that his sureties occupy the same position in that respect that he does. They hold, moreover, that the prescription of two years as fixed by law (Bevised Statutes, p. 524, section 10,) applies only to sheriffs and not to their deputies. The law referred to provides that “the sheriffs and their sureties shall be able to prescribe against their acts of misfeasance, nonfeasance, costs, offences and quasi-offences, after the lapse of two years from the day of the omission or commission of the acts complained of.” Although deputy sheriffs are not named in the statute, a fair construction of it, we think, will authorize the conclusion that they are embraced in its provisions.

The sheriff and his deputy are, in a legal sense, the same person, the act of the deputy is the act of the sheriff. Qui facitper alium, facitperse. The law would be anomalous, if after the lapse of one year from the time of an act of omission or commission by a deputy-sheriff, the sheriff were made responsible for it, without recourse upon the deputy who had caused him the injury. If the prescription of one year shielded the deputy, the sheriff would be without redress against his deputy for all acts of the deputy for which the sheriff might be made liable after the lapse of one year, for the reason that no cause of action against the deputy would arise until his principal was j>roceeded against. An action against the deputy for misfeasance in office brought by the sheriff is essentially of the same nature as an action brought for the same cause against the sheriff, and the prescription of such an action must stand upon the same basis. The sureties of the deputy are in the same attitude with their principal. Their obligation arises ex contractu and not ex delicto.

On the merits, the judgment being against the deputy, it is prima facie evidence against the sureties. The prescription against them, they endeavor to rebut by aiming to show that the property which the deputy sheriff was required to seize by the judgment creditors did not belong to the defendant in execution. A sale of these slaves, two of which were pointed out by the creditors.or their agents as belonging to the defendant Waddell, was it seems effected by him to Mallory, his father-in-law, living in Panola County, Texas. This sale, it appears, bears date about the 27th March, 1856. This sale, the plaintiffs resist as being simulated and unfounded. To make out the simulation, they show, that at the time it purports to have been made, Waddell was threatened with heavy judgments, which a few weeks afterwards were rendered against him. That the property conveyed was the only property out of which these judgments could be made. That the slaves required to be seized remained in possession or under the control of the defendant until some time in the month of June, after the alleged sale took place. That Mallory permitted one of the three slaves to be seized and sold for a debt of Waddell, after the pretended purchase, without asserting any claim to the slave. That no registry of the sale was made in this State, and that the slaves were not delivered to Mallory, the purchaser, until the 1st óf June, nearly six weeks after the judgments^ of the creditors, Marshall & Co. and Peet, Sims & Co., had been rendered and recorded. The tenor of the evidence satisfies us that the pretended sale was a mere simulation, and that no title passed to Mallory. It does not appear that the deputy required an indemnity from the creditors when they required him to seize the two remaining slaves, and it is not probable that he believed them to be the property of the vendee. On the contrary, it is clearly shown that the deputy-sheriff, after he received the execution, instead of proceeding to seize the property at once as required, went to the residence of the defendant’s fathér and informed him that he held an execution against the property of his son ; that the father on the next day had a conversation with the witness, Harper, who had the slaves then in his possession under hire, during which interview the witness informed him that a sale of the slaves in Texas, without registry in Louisiana, would not keep them from seizure by Waddell’s creditors, and the witness testifies that on that night the slaves disappeared.

We think the plaintiffs entitled to a reversal of the judgment of the lower Court, and of judgment in their favor.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that the plaintiffs recover from the defendants, in solido, (for the use of Henderson, Markham and John P. Hailey,) the defendants being John M. Lewis, H. J. G. Battle, Samuel Ford, Lawrence P. Crain and W. W. George, the sum of one thousand and fifty-four dollars and twenty-five cents, with five per cent, interest thereon, from the 2d day January, 1857, and the further sum of seven hundred and seventy-eight dollars and severity-five cents, with like interest, from the day last named, and the further sum of one hundred dollars and fifteen cents. And it is further ordered that said defendants and appellees pay all costs of this suit in both Courts.