author: E-dstis, C. J.

text:
    Dupuy, Curator, v. Bemiss.
    Whenever the .courts of the United States have jurisdiction rationc persona, their jurisdiction ratione materia extends to all cases within the pecuniary limits fixed by law. Their jurisdiction is not limited or restrained by the local remedies of the different States.
    The fact of a succession being under administration in a Court of Probates as constituted under the judicial organisation existing anterior to the constitution of 1845, could not deprive a Circuit .Court of the United States of jurisdiction to order the sale of property forming part of the succession.
    Xn proceedings vid ¿xecutivá no citation is necessary. The proceedings are in rm-, and notice of the order of seizure and sale is all that is necessary to be given to the debtor.
    Where a sale lias been made by order of a court, whose jurisdiction over tho subject matter appears on the face of the proceedings, errors or mistakes committed by it cannot be corrected or examined when brought up collaterally.
    Appeal from the District Court of Madison, Gurry, J.
    /. Dunlap, for the plaintiff. Bemiss, appellant, pro se.

   The judgment of the court was pronounced by

E-dstis, C. J.

Claudius Gibson, a citizen of this State, and an inhabitant of the parish of Carroll, died therein, in the month of Juno, 1841, and, in October following, Thomas V. Davis, a citizen and inhabitant of thjs State, was appointed .administrator of his succession, and took possession of the effects thereof, and undertook the administration of the same, .under an order of the Court of Probates of the parish of Carroll. In the month -of May previous, Tobias Gibson, a citizen of the Stato of Kentucky, had obtained a judgment against tho deceased in the District Court for the parish of Carroll, for the s.um of $33.,100, with interest. In December, 1841, Tobias Gibson filed his petition in the Circuit Court of the United States, for the fifth circuit, district of Louisiana, in which he alleges the recoyery of this judgment, and that under an execution issued on said judgment a seizure had been made .of certain slaves and moveables, described in tho return of the execution, which was made after the death of Claudius Gibson, without selling any portion of tho property seized. It is alleged that Thomas V. Davis, .curator of the succession of Claudius Gibson, had taken charge of the estate of the deceased, and particularly of the property mentioned in the return of this execution. Executory process is asked against the property seized as aforesaid, for the payment and satisfaction of tho judgment, and the petition concludes with a prayer for general relief. An order for the seizure and sale of the property described was made by the judge, dated the 2d December, 1.841, which was executed by the seizure and advertisement for sale of the slaves by the marshal.

On the 11th January, 1842, at the instance of Davis, administrator, .all pro - ceedings under the process issued in this case were enjoined, by order of tho judge. The bill filed by Davis to obtain an injunction, sets forth the pending administration of the succession, the existence of various conventional and judicial mortgages against it, his refusal to recognise the dobt claimed by Tobias Gibson, and the pendency of a suit between Gibson and himself, as administrator, for the recognition and enforcement of this very mortgage debt. He charges that the judgment, mortgage, or debt, on which the order of soizuro and sale was granted, was fraudulent and simulated ; he denies the existeneo of the debt itself; and alleges that the judgment was given in fraud of the rights of other creditors. The responsibility of the administrator to tho Court; of Probates under which he was appointed, and to which he is solely answerable, is pleaded; and also tíre consequent injury to other creditors, whose rights to be paid will be sacrificed by the appropriation of the property seized to tho exclusive payment of Tobias Gibson’s claim. The power of the judge to grant the order of seizure and sale is expressly denied, and the validity of tho proceedings under it are put at issue. Process is prayed for against Gibson and the marshal, and the prayer of tho bill is, that the injunction be made perpetual, and the property seized be returned to the complainant, as administrator; that the pretended debt claimed, be decreed to be fraudulent and simulated, or tho judgment itself be held to be fraudulent as to other creditors; a decree is also asked for the sum of $50,000 against Gibson, for the value of the slaves, their hire, costs, damages, &c.

To this bill Tobias Gibson filed an answer on tho 29th January, 1842, in which the matters charged in the bill are put at issue, all fraud and collusion are denied, and the validity of the debt, judgment, and mortgage are asserted.

On the 14th March, 1844, tho bill, by a decree of the court, was dismissed, “the said bill not averring, nor proof having been exhibited on the hearing of this cause, that the said creditors, represented by said Davis, are entitled to resort to the jurisdiction of this court, or that they, or any of them, have ex.Iiausted their rights at law, and so rendered the interference of this court proper.” The injunction was dissolved, and the proceeds' of the slaves sold were decreed to be applied to the payment of the judgment of Tobias Gibsons

It is in relation to the sale of those slaves that the difficulty raised by the litigation in this case arises. On the 22d of January, 1842, a rule was taken ordering the counsel for the defendant to show cause why the slaves and moveables seized should not be sold, the former on a credit of one year and the latter' of ninety days, the proceeds to be paid into court, to await its further order; and on the 24th, there being no opposition made thereto, it was made absolute,’ and the property ordered to be sold accordingly; the sale to be made in the palish of Carrol,- after thirty days’ advertisement. This order of sale does not appear to have been acted upon, and on the 19th of February was rescinded at the'instance of another litigant, William Hunt. On the 17th of February, Hunt filed his bill before the same court, representing, that he was a creditor of the late' Claudius Gibson in tíre sum of $10,000, with interest, Which debt was. secured by a special mortgage on the slaves seized at the instance of Tobias Gibson, which had a priority over that resulting from the judgment which Gibson was seeking to enforce under the order of seiztire’ and' sale; that his,Iidnt’s, was the first mortgage oh the slaves ; that the act by which it was given imparted a confession of judgment, and contained the pact de non alienando; that the proceedings of Tobias Gibson against Dddis, administratin'-, which had been instituted, and which are made part of the bill, were collusive and for the purpose of depriving him of his priority in the payment of his special mortgage; that said proceedings were unlawful; and that the seizure of the slaves' by the marshal was without Warrant, the administrator having the sole right to dispose of them under the authority of the Court of Probates. t’obias Gibson, Davis, the administrator, and the marshal, were made parties to this bill, anda decree was asked that the slaves be seized and sold according to law by tho marshal, and the proceeds applied to the extinguishment of the complainant's mortgage; and that said sale be made in New Orleans, at the most suitable place. It was alleged that if made as directed by the order of the Court, in the order of the 22d January, 1842, the security of the Complainant’s debt would bo endangered, and therefore all proceedings under such order are asked to be enjoined until the further order of the' court. Accordingly, on the application of this party, the first order was rescinded, and another was made of dato the 19th of February, 1842, by which the slaves wore ordered to be removed to New Orleans, and sold at public auction after the usual and legal advertisements, the proceeds to remain subject to the further order of the court. There are directions concerning the security to be given by purchasers, which it is not material to mention in detail.

Tobias Gibson demurred to Hunt’s bill, and his demurrer Was sustained, and the'cause remanded to the rules for proceedings against the other defendants. Judgment, jno confesso, was taken against Davis, administrator, who made no answer, and a final decree was entered and executed, by the' payment by preference of the debt and interest out of the proceeds of the slave's, which were sold under the order of the court of the 19th Febiuary, 1842. At this Halo the present defendant purchased the slaves monliouod in the plaintiff’s pe - tition, which are the subjoetof the prosent suit,

It appears that the present plaintiff, Samuel Dupuy, Wa3 appointed curator of the vacant succession of the late Claudius Gibson, and has instituted a petitory action for these slaves against the defendant as belonging to the succession represented by him. The defendant relies upon the validity of the sale under the facts which have been explained.

I. Tho most important question to be determined, relates to the jurisdiction of the court under which the sate was made. The cage arising before the present organisation of the courts of this State, the jurisdiction of the Court of Probates referred to is that which existed previous to the adoption of the present constitution. The proposition is, that tho Circuit Court of the United States had no jurisdiction to order the sale of the property of a succession while under administration, and under the superintendence and authority of the Probate Court. This principle is net only maintained in argument with evident conviction on the part of the counsel, but has had, to a certain extent, the? support of authority. If it be true, it is most important in its operation on tho the judicial power of the courts of the United States, as well as on that of tho States, and presents one of the most serious questions which a court can be Called upon to determine.

The Circuit Courts of the United State's have cognisance, in concurrence with the courts of the States, of all suits of a civil nature, at common law or in equity, where the’ matter in dispute exceeds §500, between- the1 parties designated by law under the constitution of the United States. The latter, in creating the’ judicial power, intended it to extend- to all cases in law and equity, whenever it it had jurisdiction over the persons. And it seems to conflict with this power, that a State, by creating a special jurisdiction over particular classes of casos,’ should to that extent exclude the jurisdiction of tho eourts of the United States. Let us suppose that actions of partition were required to be brought before a particular Court, and that no other court could, by a State law, take jurisdiction of them-, Would the judicial- power vested in the Circuit Courts of the United States be affected by such a limitation of jurisdiction ?

The most obvious impression produced by a consideration of the constitution' of the United States, and the laws made under it for the organisation of the judicial power, certainly is, that whenever their courts have jurisdiction by reason of the person, their jurisdiction ratione materias' extends to ail case» in law and equity, within the pecuniary amount by which it is limited.

In Suydam and others v. Broadnax and others, 14 Peters’ Reports, 75, n case' very similar to this, that principal was recognised by the' Supreme Court of the? United States, and wo have met with no decision other than those we shall notice, in- which a-contrary doctrine has been maintained. On the1 contrary, it is the settled jurisprudence of tho United States, that the jurisdiction of their courts is not limited or restrained by the local remedies of the different States. Robinson v. Campbell, 3 Wheaton, 212. 4 Ib. 115. There have been several cases decided by the late Supreme Court on-this subject, to which our attention has been directed; we have fully considered them- and will proceed lo> notice them.

Lowry, Curator, v. Erwin, 6 Rob. 196. In this case the court came to the? conclusion that the Circuit Court oí the United States was without jurisdiction, ratione persona. The defendant held under a sale made by tho marshal of tho United States, under the authority of an order of seizure and sale granted at the instance of a creditor against a plantation and slaves in the possession of an executor, and the court proceeded and determined that, the Circuit Court of the United States was without jurisdiction or authority to issue the order of seizure and sale against the executor.

The creditor, at whose instance the order of seizure and sale was made, ob“ tained it on an act of special mortgage on the property directed to be seized and sold, and the principal reason which is given for the want of authority in the Circuit Court to grant the order was, that no such process could issue from a State tribunal against mortgaged property in the course of administration, comprising part of the effects of a succession represented by an executor, curator, or administrator. A very careful examination, on another occasion, of a question of this hind brought us to a different conclusion, and we accordingly held, in the case of Boguille v. Faille, 1 Annual Reports, 204, that an order of seizure and sale may be granted, by a court of ordinary jurisdiction, against properly specially mortgaged in the hands of an administrator under administration. If, therefore, it be assumed that the jurisdiction of the Circuit Court is co-extansive with that of the ordinary State tribunal in all cases of law and equity, it would appear that the former had the authority to issue the order of seizure and sale in this case. The administration of the executor presented no valid objections to it.

Garrard, Executor, v. William Reed, 5 Robinson, 506. This case has no direct reference to the subject under consideration. An execution was issued on a judgment obtained against the plaintiff’s testator, without any attempt to revive or make executory the judgment, and it was held not to be legally issued.

Collier v. Stanbrough, 6 Rob. 234. In this case, which appears to have been very fully argued, and which was determined at the same term with that of Lowry v. Erwin, it was held that the Circuit Court of the United States was without jurisdiction raiione materia;, by reason of the property seized under execution being under the administration of a curator; and to the same effect is the case of Kennard v. Stanbrough, 9 Rob. 256.

In Schroeder’s Syndies v. Nicholson, 2 La. 350, it was determined that, by a voluntary cession of property by an insolvent debtor, it vested in his creditors, and was not subject to an execution issued on a judgment rendered subsequent ly to the acceptance of the sui'render.

It seems to us that the principal objection to the jurisdiction of the courts of the United States is one of inconvenience, and that the exclusive jurisdiction of the State courts is rather of apparent than real necessity. It is said that its exercise will have the effect of destroying the privileges and rights of creditors secured by our laws, for the benefit of the creditor who has the privilege of resorting to the United States’ tribunal. We are certain that there is rio legal right, privilege, or lien, which the courts of the United States would not respect in giving to the creditor the hypothecary remedy which he should enforce under their process, and which the defendant, be he executor, administrator, or curator, would be competent to assert and vindicate. If there should be any valid objections to the enforcement of the hypothecary rights, there' is no reason to believe that they would be overlooked. In other' words, there is no ground for supposing that the judicial power of the United States would be improperly exercised, any more than there is for believing that the ordinary tribunals would abuse thoir powers in ordering thu property of successions under administrators to be seized and sold under special mortgages. It may well be supposed that we aro neither insensible nor indifferent to the rights of sovereignty of the State, but we have not been under the delusion that its legislation was in all cases supreme ; and if inconvenience should result from the conflict between our own legislation and the rights which the courts of the United States are bound to maintain under the constitulution and laws made in pursuance thereof, it is equally our duty to support them. The supposed mischief produced by the paramount authority of the latter, is a necessary consequence of their supremacy on all subjects to which the legislative power of Congress extends, and the objections to it are objections to the constitution itself.

Fischer v. Blight, 2 Cranch, 397. Without going beyond the principles kid down in the case of Boguille v. Faille, before cited, it is obvious that, under the articles of the Code of Practice explanatory of the hypothecary action, we cannot hold tho circuit of the United States to be without jurisdiction ratione materice in a case of this kind, and its proceedings to be nullified by reason thereof.

That court has determined in favor of its jurisdiction, and has also considered that the case before it was a proper one for its interference in the interest of the party who sought its aid. Judgments have been rendered both in favor of the original plaintiff and Hunt, and against the administrator, as has been before said, and they must stand.

It is a very difficult task to undertake sto define and limit the authority of the United States’ courts under their extensive chancery powers, particularly in the furtherance of rights created under a system of laws like ours. We have held that the hypothecary action, like all real actions, follows the property affected by the mortgage in whosoever’s hands it may be found; and we cannot believe that, in any case, rights acquired under our laws, will, in any proceedings before them, be left without remedies, or that more difficulty will arise in this than in other cases of concurrent jurisdiction between those tribunals and those of the State. Vide Gaines el ux v. Chew el al. 2 Howard, 651.

Those rights thus secured, it would be the duty of the court to protect, as well as to control by proper means the execution of its process, so that they should not be infringed or violated; and to this end, at the instance of an administrator or executor, the equitable powers of the court would be called into action, to prevent a disturbance of a pending liquidation, or the recovery by one creditor of more than his share of the proceeds of tho common pledge.

We do not feel any apprehension of any injurious result from the concurrent jurisdiction of the State and United States’ courts. Our laws contemplate that property should be sold for the satisfaction of debts; and if the action of those charged with the administration of successions, solvent and insolvent, should be quickened by the concurrent power over them to a certain extent, neither the creditors, the debtors, nor the interests of justice, will suffer by it. t

II. It is also urgod on behalf of the plaintiff that, the order of the court directing the seizure and sale of the slaves was an absolute nullity, because it was made without notice to the party whose property was decreed to be sold, before tho court had acquired jurisdiction over the defendant by service of its process, and was unwarranted by tho law of the land.

In oxocutoiy proceedings, no citation is necessary; tho proceedings aro in rem, and notice of the order of seizure and sale is all that is necessary to be given to the debtor.

After Davis, the administrator, filed his bill, the order of sale of the 24th January was made, and it is evident that when the court made that order he, Davis, was considered to be in court, and that the order was granted adversely to him. It is impossible for us to suppose that a different state of things existed, for it is expressly mentioned in making the rule absolute, that no opposition was made to it, and the rule itself was taken on the counsel of the defendant. Levy v. Fitzpatrick, 15 Peters, 167. Toland v. Sprague, 12 Ib. 301.

The order oí the 19th of February, by which that of the 24th January was rescinded and the sale ordered to be made in New Orleans, was made at the instance of Hunt, and is entered in the case of William Hunt, complainant, v. Tobias Gibson, and T. V. Davis, curator of Claudius Gibson and others, according to the record of that case. But though entered in that case it evidently is not confined to it, for it rescinds an order of sale made in another suit, and the slaves were held under the process of the other suit.

The service of the subpoena in Hunt’s case was not made on Davis until the 26th of February, seven days after the order of the 19th of that month. The sale of the slaves took place on the 26th March in New Orleans, Davis residing in the parish of Carroll, five hundred miles from New Orleans. And in Hunt's ■case a final decree was entered on the 22d of June, 1842, against Davis, by which the proceeds of the sale were applied to the payment of his mortgage by preference over other creditors.

To this judgment Davis was a party, and this judgment was based on the fact of the sale, for it disposed in its very terms of the proceeds. The sale was made under the authority of a Court of Chancery, of property over which it had jurisdiction and of which it had the control. The defendant stands before us as a bond fide purchaser, holding under the decree. That court would never permit a purchaser to be disturbed in a case of this kind, but would maintain the validity of the sale. The proceeds have been applied to the ex-tinguishment of an encumbrance existing on property of the succession, and holding them to have been lawfully applied, as the judgment imports, the validity of the sale is ratified, so far as relates to the succession of Claudius Gibson, a party to the judgment.

III. In this ease, as has been observed, a petitory action has been brought for the recovery of the slaves, without regard to the judicial proceedings before recited, which are held to be nullities. We are not called upon to decide, as we can reach them from a very imperfectly prepared record, that they are in all respects regular; but we are not at liberty to treat them as nullities, and are bound to give effect to them as the proceedings of a court of competent jurisdiction with proper parties to them. In the language of the Supreme Court of the United States: “The jurisdiction of the court under whose order the sale was made over the subject matter, appears on the face of the proceedings, and its errors or mistakes, if any were committed, cannot be corrected or examined when brought up collaterally.” Thompson v. Tolmie, 2 Peters, 169.

It is therefore decreed that the judgment of the District Court be annulled and reversed, and that judgment be entered for the defendant, with costs in both courts.


source: Caselaw Access Project

author: King, J.

license: Public Domain

text:
    The State v. Harris et al.
    The stat. of 1 April, 1835, s. 4, which provides that all bonds and recognisances taken by certain officers in the city of New Orleans, for the public peace or in criminal matters generally, when forfeited, shall bo recovered by the city attorneys for the use of the city, is not changed by the stat. of 11 March, 1837, s. 1, in regard to the destination of the amounts of such forfeited bonds or recognisances when recovered; but the latter act authorises a different and more summary proceeding, under the immediate direction of the officers of the State, and in the name of the State, for the collection of such bonds or recognisances as are for the appearance of the parties before the Criminal Court of the First District, though the amount of the forfeiture enure to the benefit of the city. The statute of 1837, is inapplicable where the bond or recognisance is for the appearance of the party before the may- or, recorder, or associate judges of the city; in such a case an action can be maintained only by the corporation and in the ordinary form.
    Appeal from the First District Court of New Orleans, McHenry, J.

      Elmore, Attorney General, for the State, contended that the judgment below should be affirmed.

      Bodin, for the appellant,
    urged a reversal of the judgment on the ground, that the 4th section of the stat. of 1 April, 1835, was not repealed by the act of 11 March, 1837. The two acts are not repugnant, and the former cannot be repealed by implication, 10 Mart. 172, 560. 3 Mart. N. S. 190. Farrar's case, 1 Ann. R. 34. The stat. of 1837 applies only where the forfeited bonds are, due to the State, State v. Desforges, 5 Rob. 257. Second Municipality v. Labatut, 8 Rob. 33.
   The judgment of the court was pronounced by

King, J.

Abraham A. Hams was charged before the recorder of the Second Municipality with the crime of forgery, and, after examination, admitted to bail. Pie gave a bond, with Samuel Moore as his surety, for his appearance before the Criminal Court of New Orleans, to answer to the accusation; and, failing to appear on the return day, the bond was, on the motion of the district attorney, declared to be forfeited, and a judgment was rendered against the principal and surety m solidum, in conformity with the statute of 1837,, p. 99. A rule was subsequently taken on the attorney general by Moore, the surety, to show cause why the judgment should not be set aside, on the ground that the State was without interest in the bond. The rule was discharged in the court below, and the surety, Moore, has appealed.

The act of 1st April, 1835, p. 179, s. 4, provides, “that all bonds and recognisances taken by the associate judges, mayor, or recorder, within the city of New Orleans, for the public peace or in criminal matters generally, shall, when forfeited, be recovered by the city attorneys, for the use of the corporation of New Orleans.” It is contended that, under this act, the bond vested, immediately upon its forfeiture, in the city of New Orleans, and that the corporation alone could sue for its recovery. In support of that position the appellant relies on the case of the State v. Desforges, 5 Rob. 237. The question now presented did not arise, and was neither discussed nor decided in the opinion pronounced, in the case of Desforges. The bond in that case was for the appearance of the accused before the recorder, to answer certain charges. To a bond of that description the provisions of the act of 1837, p. 99, were not applicable; and, upon the forfeiture of its conditions by the failure of the defendant to appear, the recorder was without authority to recover a final judgment against the parties. It consequently became necessary to institute an action in the usual form for its recovery, and the court held that, as the city was alone interested in the bond, the action should have been instituted by the corporation, and could not be maintained by the State. In the present instance, the bond is for the appearance of the accused before the Criminal Court of New Orleans, and upon the failure of the party to appear, the proceedings for its recovery are regulated by the statute of the 11th March, 1837, p. 99. The 1st section of that act provides that, “ it shall be the duty of the attorney general and the several district attorneys in their respective districts, on the second, or any other day thereafter, of each regular term of the Criminal Court of New Orleans, or of the Distriet' Court, leave of the court first had and obtained, which leave shall always be presumed, to call any or all person or persons who may have entered into any bond, recognisance, or obligation whatsoever, for their appearance or attendance at court, and also to call on the surety or securities to produce instanter in open court the person of such defendant or party accused, and upon failure to comply therewith, on motion of the attorney representing the State, the court shall forthwith enter up judgment against both principal and securities in solidum, for the full amount of the bond, recognisance, or obligation,” &c. The language of the act is clear and explicit. It applies equally to all bonds, recognisances, and obligations, taken in criminal cases, for the appearance of parties accused before the criminal or district courts, by whatever authority taken, whether they are to enure, when collected, to the benefit of the city or of the State, and provides a summary proceeding for collecting them, previously unknown to our laws, which it is made the special duty of the attor. ney general and district attorney to conduct. The State has an obvious interest ip preserving this control over bonds taken in criminal proceedings, and in enforcing their prompt payment, as a means of coercing the appearance of parties to answer charges preferred against them, and of inducing sureties to produce the persons of their principals for the same purpose. This act is subsequent to that granting to the city the proceeds of certain bonds forfeited in criminal cases, and authorising the collection to be made by the attorneys of the corporation. It makes no change in the destination of the fund when received, but provides a different and more summary proceeding, under the immediate direction of the officers of the State, and in the name of the State, for the collection of such as are for the appearance of parties before the criminal and district courts. To this extent it controls the act of the 1st April, 1835, p. 179. With regard to those bonds which are for the appearance of parties before the mayor, recorder, or associate judges, the action can only be maintained by the corporation and in the ordinary form. Judgment affirmed.


author: Rost, J.

text:
    Olivier v. Blancq, Executor.
    Donations of moveables to a concubine are valid, but they may be reduced to one-tenth of the value of all the property left by the testator. C. C. 1468.
    Appeal from the District Court of Plaquemines, Rousseau, J.

      Maurian and Lambert for the plaintiff. Lavergne for the appellant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff claims from the executor of BartMlemy Fame JD’Aunoy : 1st. The amount of a note of $2,400, executed in her favor by the testator, and acknowledged in his will to be due. 2d. The sum of $450, for the hire of the slave Nina, during four years and a half. 3d. The sum of $200, for clothing and food furnished to the slaves of the succession, and personal attention to its concerns. She also prays for interest on those sums, and for general relief. The defenJant filed a general denial, pleaded want of consideration for the note, and alleged that the plaintiff was the concubine of the deceased, and incapablo as such to receive a donation from him. There was a judgment in favor of the plaintiff, and the defendant appealed.

We have risen from the perusal of the record fully convinced that no serious consideration had passed for the note sued upon, and that the plaintiff had no claim for the hire of the slave Nina. The services of that slave and her own were not an adequate compensation for the support and maintenance of herself and her children by the testator. Persons in her situation are apt to keep their cash accounts balanced; and a very strong case indeed would have to be made out, before courts of justice could allow claims like the present.

But supposting the note to be a disguised donation, that donation is reiterated in the will; and the bequest is not void, because the testator has attempted to conceal the motive which induced him to make it.

It is alleged that the plaintiff was incapable of receiving from the testator a donation of any kind. The law is clearly otherwise. Donations of moveable effects to concubines are valid, but may be reduced to one-tenth of the value of all the property left by the testator. C. C. art. 1468.

In this case it is not shown that the donation is excessive. The plaintiff is therefore entitled to recover the amount of the legacy, with interest. She is further entitled to recover $40, paid by her on account of the succession.

It is therefore ordered that the judgment in this case be reversed; and that there be judgment in favor of the plaintiff for the sum of $2,440, with legal interestfrom the 13th of November, 1846, till paid, and the costs of the District Court; those of this appeal to be paid by the plaintiff and appellee.


author: Kino, J.

text:
    McDonogh v. Calloway et al.
    Where the owner of ground in a city, in dividing it into lots, reserves a part of it adjoining to a contiguous proprietor and extending the whole length of the property, for a public alley, and after selling one of the lots with reference to a plan on which the alley is described and as fronting on the alley, sells the remaining lot, as well as his property in the soil of so much of the alley as is adjacent to the second lot, subject to the servitude of way previously established in favor of the lot first sold, the second purchaser will hold the properly acquired by him, subject to the servitude of way established in favor of the first lot; but the servitude, will not exist in favor of any owner of the contiguous property on the other side of the alley; and the purchaser of the second lot and right to the soil of the adjacent alley will have the right, common to every proprietor, of erecting a wall or fence upon this boundary line separating his property from his neighbors, the right not being imcompatible with the servitude of way.
    APPEAL from the Third District Court of New Orleans, Kennedy, L The facts of this case are stated in the opinion of the court, infra*

      Grivot and Roselius, for the plaintiff. J., and H. H. Strawbridge, for the appellant,
    contended that he had not obstructed the servitude of way established in favor of the lot bought by plaintiff from the appellant’s vendor, J■ P. Jones. C. C. arts. 497, 654, 823. Servitudes are real rights, and can only be established by written evidence. There is no such evidence of any servitude of way, in favor of the lots owned by plaintiff on the north side of the alley. C. C. arts. 642, 644, 715, 718, 749, 752. The alley was not a public one. C. C. art. 790.
   The judgment of the court was pronounced by

Kino, J.

John P. Jones owned a lot of ground running from New Levée to Tchoupitoulas street. On the northern side of this lot he made an alley extending entirely through the square, with a width of six feet two inches on New Levée street, and of five, feet on Tchoupitoulas street, and divided the remainder of the property into three lots, one fronting on New Levée, another on Tchoupitoulas, and the third on the alley. Of the whole he caused a plan to be made byPiliS, the city surveyor, on which the alley is called a passage comnmn. McDonogh, the plaintiff, is owner of the lots contiguous to this alley on the north, and when erecting buildings upon them placed his walls about four feet from Jones’ line, thus leaving a passage of about ten feet. In 1823, Jones sold to Maloney the lot on New Levée street, representing its front on that street to be twenty-three feet, with a depth of one hundred and nine feet fronting on the common passage. The alley was expressly excepted from the sale, and reference is made in the act to the plan of Pilié This lot, after several mesne conveyances, was purchased by the plaintiff, with all its rights, privileges and appurtenances. The lot on Tchoupitoulas street was sold by Jones to Lamb, also with a reservation of the alley. Calloway and Fischel purchased from Lamb, and Jones intervened in the sale, and conveyed to them his right, title and property in the alley, subject however to the clauses and conditions contained in the sale from Jones to Maloney. Calloway has since acquired the rights of his co-proprietor. In 1843, the heirs of Jones, conceiving that they had the exclusive right to the property and use of that part of the alley adjoining the lot sold by their ancestor to Maloney, and now owned by the plaintiff, erected a fence across the entrance at New Levée street, and along the northern line of the six feet alley, thus closing the common passage. About the same time Calloway erected a fence along the northern limit of the six feet passage purchased by him, separating his possessions from those of the plaintiff, hut made no cross fence at the extremities, leaving the passage free. McDonogh commenced this action by an injunction, complaining that the defendants, Calloway and J. E., and Alfred Jones, had disturbed him in his right to the use of this common passage, and prayed that the obstructions should be removed, and the defendants per-I>etually enjoined from opposing further hindrance to his enjoyment of the right of free ingress and egress through this common way. The cause was firsttried between the plaintiff and the defendants, Jones, and was twice taken by appeal before the Supreme Court, where it was determined that J. P. Jones had dedicated the passage to the public, and the obstruction opposed by the defendants, Jones, to its free use were ordered to be removed. In those cases the facts and respective titles of the parties are fully stated. See 7 Rob. 442 and 8 Rob. 92. Upon the trial between the present parties a similar judgment was rendered by the District Court against Calloway, from which he has appealed.

The question between the present parties, differs materially from that which nroso botweon the plaintiff and the defendants, Jones. The latter closod up a passage subject to a servitude of way in favor of the plaintiff; whereas the present defendant has only erected a fence on the boundary line between his properly and that of the plaintiff, and has opposed no obstacle to its use as a common alley. J. P. Jones clearly never abandoned his right of property to the soil of that part of the alley adjacent to the defendant’s lot; but, on the con* trary, first reserved it from sale, and then expressly conveyed it to the defendant, subject however to the servitude of way,previously established in favor of Maloney. His intention to retain the property and preserve the northern line of the passage as his boundary, was-further manifested as far back as 1827, when he erected upon ita fence which stood several years. And, in 1832, the defendant Calloway, who had then become the owner of the lot on Tchoupitoulas street, enclosed all of the alley which he had acquired, and in a formal act asserted, not only his ownership of the soil, but his intention no longer to permit it to be used as an open way. The plaintiff, however, has acquired a just claim to the free use of the passage by his purchase from Maloney, in which he must be maintained; but the servitude to which he is entitled has been established only in favor of the lot fronting on New Levée street, and not in favor of the plaintiff’s property north of the passage. Calloway, as the owner of the soil subject to this servitude, has the right, common to any other proprietor, of erecting a wall or fence upon his boundary line, separating his property from that of his neighbors. Of this light neither Jones nor his vendors appear to have divested themselves, and the exercise of it is not incompatible with the plaintiff’s right of passage.

It is therefore ordered that the judgment of the District Court be reversed’ and the injunction dissolved; and that the plaintiff restore the fence upon the boundary line between his property and that of the defendant to the condition in which it was when removed by the order of the court; the appellee paying the costs of both courts.


text:
    McElrath, Administrator, v. Dupuy, Curator.
    Where a partial payment has been made on a note, extinguishing thereby the debt pro tanlo'i the parties thereto cannot, by subsequently imputing the payment to another debt, revive the first debt, to the prejudice of third persons.
    One who holds a second mortgageon property previously mortgaged to secure the payment of anote, has such an interest in the extinguishment of the note, that a payment made on it cannot be afterwards imputed to another debt, without his consent.
    Where in an action on a note, by an administrator against a third possessor of property mortgaged to secure its payment, the latter, through error, confesses judgment for the whole amount, the fact of a partial payment made by the makers of the note not having been communicated to him, the judgment willbe void to the extent of the error*, hut the creditors and heirs of the deceased, represented by the plaintiff, nothaving been instrumental in producing the error, will he entitled to the benefit of the judgment for the amount really due,-
    Payment made on a note not due, hut bearing interest from date, must be imputed to tlio principal on which interest was accruing, as the portion of the debt which the debtor had the greatest interest' in discharging. As neither principal nor interest was due at the time' of the payment, the imputation is not affected by art. 2160 of the Civil Code.
    The registry of a judgment, confessed by a third possessor of mortgaged property in favor of the holder of a note secured by mortgage, where neither tlio confession, nor the judgment rendered thereupon, recite, or refer to, the mortgage, will not amount to a re-inscription of the mortgage in the meaning of art. 3333 of tlio Civil Code»

      An intervention by a third person in an action to enforce a mortgage, will not do away with the necessity of re-inscribing the mortgage on the hooks of the register of mortgages within ton years from the date of the first inscription. Per Curiam: If ten years be permitted to expire without a re-inscription, the mortgage will lose its rank. A litigation between the mortgage creditors does not dispense with this re-inscription.
    Whore, after the services rendered by an attorney have ended, the compensation is fixed by the mutual agreement of the parties, and no error is shown, effect will be given to the contract. In such a case, the parties having themselves established the value of the services, the compensation cannot be withheld on the ground of exorbitancy.
    APPEAL from the Court of Probates of Carroll, Harris, J. The facts of this case are fully stated in the opinion of the court.

      Stacy and S2>arrow, for the plaintiff.
    By the' death of Gibson the rights of the parties were fixed. Buard v. Lemée, 12 Rob. 243. At the time of his dentil plaintiff had obtained a judgment recognising his mortgage and ordering its execution. The property was seized and offered for sale. Gibson’s death prevented the sale. An insurmountable barrier was interposed by operation of law; and he cannot be made to suffer for not doing what he could not do. The judgment ordering the execution of the mortgage is res judicata. It gave effect to the vondor’slien, and it cannot now be, directly or indirectly, avoided.

      Chinn, intervenor, pro se. No counsel appeared for the defendant.
   The judgment of the court was pronounced by

Kino, J.

Cavern and wife, by an act of sale bearing date the 31st of December, 1834, sold to Fowles Sf Green, a tract of land for §15,514 CO ; of which sum §4,000 was paid in easlr, and for the residue of §11,514 CO, a note was-given, payable live years after its date, bearing ten per cent interest, and a mortgage retained on the property sold to secure its payment. This land, after several mesne conveyances, was purchased by Gibson. After the death of Cavern, the plaintiff, as his administrator, instituted a suit against Fowles Sf Green, as the makers of the note secured by the mortgage, and against Gibson as iho third possessor of the hypothecated property. A judgment was confessed by Gibson for the sum claimed, with a right to enforce it on theBands described’to the sale from Cavens to Fmoles Sf Green; but the mortgage is not recited, nor referred to, either in the confession or the judgment. Fowles Green made Ho defence, and no action appears to have been taken in relation to them in the suit. Before a sale could be effected under this decree, Gibson died, and shortly after that event the plaintiff presented an application to the probate court for' a sale of the land mortgaged, setting forth the fact of the special encumbrance to which it was subject, and the previous judgment by confession.

In this proceeding R. H. Chinn intervened, alleging that he was a creditor of Gibson, and that his demand was secured by a special mortgage on the laud on which the plaintiff was seeking to enforce his claim. He alleged that the judgment against Qibson was fraudulently obtained, by reason of which it was Hull; that, at the time it was rendered, there was nothing due to the succession of Cavens by Gibson; that the mortgage retained by Cavens was not so recorded as to operate a notice to third persons; and that the rights of the intervenor, as a mortgagee, were not affected by such registry as had been made; and finally, he denied the identity of the note sued on with that described in the mortgage. The claim of the intervenor is resisted both by the plaintiff and the defendant, on the ground that the notes on which he founds his demand were given in error; that the consideration was professional services, for which the charge was exorbitant. The court below rendered a judgment in favor of the plaintiff for tho entire amount of his claim, recognising the vendor’s mortgage, and giving i!. priority over that of the intervenor; anda judgment in favor of the intervenor for the sum claimed by him, with a right of mortgage next in rank after that of the plaintiff. From-this'judgment the intervenor has appealed.-

The evidence adduced by the plaintiff in support of his claim in the'court below, was the judgment rendered by the District Court upon Gibson’s con-fession, theact of sale from Gavens-, with the-mortgage retained,- certified to be duly registered in the mortgage office, and a note corresponding- in amount and in the time of its maturity' with that described in the- mortgage, but bearing date a day later.’ The evidence leaves no doubt that this note is the same intended to be secured by the mortgage. No credit appeared upon the note when offered in evidence, and no reference is made in the pleadings or judgment to any credit to which it is entitled. During the progress of the trial a paper was-discovered to be pasted over the back of the note, on the removal of which the' following endorsement appeared:

“Received1 of T. J. Green, Esq., a note of James- R. Blunt, for' eight thousand three hundred dollars, due Jan’y , eighteen hundred and thirty-nine, bearing interest at eight per cent. Principal and interest up to first June,-1839, $8,604 34. May 12, 1839.

Warren county, Miss. (Signed) G. W. —=-,

of the estate of Elijah Cavens, dec.”

Lines are drawn across this endorsement, and the pen passed heavily over the signature, leaving only the two initial letters, G. W. of the plaintiff’s name-distinguishable. This endorsement is shown to be in the hand-writing of McElrath.

The plaintiff has endeavored to showthat the endorsement was made in error, and subsequently stricken-off for that reason, and the credit given ow another note of Fowles Green, of which he, as administrator of Cavens, was-the holder, to which the payment was properly imputable. The evidence for-bids that conclusion. The note on which it is contended the credit should have-been given was not executed until June, 1840, long after the transfer of Blunt’s note, and more than a year after Blunt's administrator had made a large payment on account. The debt itself had no existence for more than a year after the payment made to the plaintiff, and whether it was to arise depended on a-future contingency, the happening of which could not have been forseen by the parties. At the date when the payment was made, there was a large subsisting, debt from Fowles &f. Green to Cavens, bearing the highest rate of conventional, interest, and encumbering a valuable estate with a mortgage, both of which the debtors had the strongest interest in extinguishing. Is it to be presumed, in the absence of proof, that, with such motives to-discharge a subsisting debt of the most onerous character, the debtors intended to apply their funds to the payment of a debt which did not-exist, and which it could not positively be for-seen ever would ? The evidence rejects every other conclusion than that the credit was endorsed on the note sued npon, in strict accordance with the intention of the parties when the payment was made; and other facts disclosed by the evidence, to which it is not necessary to advert, support this view. The debt and mortgage were extinguished to the extent of the payment affected by the transfer of Blunt’s note, and it was not in the power of parties to revive them to the prejudice of third persons, by consenting that tbe payment should be imputed to another debt. The position assumed, that the credit was stricken rom this note and placed upon another with the consent of the only parties indevested in tli© imputation, is equally untenable. At that date Gibson-Vías the owner of the land mortgaged to secure the payment of the note, and the inter■venor held a mortgage on it to secure his demand. Both of these parties were -therefore interested in the reduction of the encumbrance.

The fact of this payment was not communicated to Gibson, and the evidence leaves no doubt that he confessed the judgment in error, and in utter ignorance of the partial discharge of the debt and mortgage. To the extent of that error the judgment rendered by the District Courtis void. But this nullity is not to ■be visited on the creditors and heirs of Cavens, who were not instrumental in producing the result. They are entitled to the benefit of the judgment, for the .■amount really due.

Neither the principal, nor the interest, of the note sued on was due at the ■date of the payment. The credit is, therefore, not to be applied in accordance with the 2160th art. of the Code, to the interest, but to that part of the debt which the debtor had the greatest interest in discharging, which was the principal, as upon that interest was accruing. This payment deducted from the principal leaves $2,010 26, due on the 1st June, 1839, bearing interest at ten per cent from that date; and the further sum of $5,085 60, interest which accrued previous to the 1st June, 1839, which bears no interest.

It is contended that the mortgage retained to secure this note 'has become extinct, not having been re-inscribed within ten years from its first registry. It was recorded on the 4th of February, 1836. The plaintiff urges: first, that the recording on the 11th of May, 1841, of the judgment rendered by the District Court, was a re-inscription; secondly, that from the date of Chinn’s intervention in the suit in 1842, he had notice of the existence of the mortgage., .and that, pending the litigation, the object of which was to enforce the mortgage, no prescription ran between the parties.

Neither the confession of •Gibson, nor the judgment rendered upon that confession, recite, or make any reference whatever to, the mortgage in favor of Ca-sons’ succession. The registry of that judgment was clearly not a compliance with the 3333d art. of the Code, and was not are-inscription of the mortgage.

After this case was first taken under consideration, the question which presents itself relative to the peremption of mortgages, underwent an elaborate .argument in the case of Shepherd v. The Orleans Cotton Press Company, ante p. 100. We there held that,-with regard to inscribed mortgages, “the delay often years is in all cases fatal, and, if it be permitted to expire without a re-inscription, the mortgage loses its rank; and that a litigation between the mortgage creditors does not dispense with this re-inscription.” We conclude, therefore, that the plaintiff has lost all the hypothecary rights resulting from the mortgage retained by Cavens,as regards other creditors, and can only rank as a .creditor of Gibson, with a judicial mortgage to take effect on the 11th of May, 1841. This conclusion renders it unnecessary to consider several questions originally deemed of importance in the cause.

The intervenor founds his claim upon three notes for $4,500 each, .dated the 3d of February, 1840, bearing seven per cent interest from their date, the payment of which is secured by mortgage. The consideration for which they were given was professional, and other, services, rendered to Gibson, for which the charge is alleged to be exorbitant. Those services were rendered in efforts to collect claims amounting to about $135,000, the recovery of which Gibson, at fihe time, considered to be doubtful. The intervenor, in answer to an interrogatory propounded .to him, says, that by the terms of the agreement between Gibson and himself, his compensation was made “wholly contingent upon successfully pursuing the claim; that it was to be commensurate therewith, liberal and adequate; and, if unsuccessful, he \yas to receive nothing for his skill, toil, .and expenditure of tinje and money. “In the prosecution of the claim he instituted three several suits; left the city of New Orleans, where he resided and exercised his profession, and repaired to a distant part.of the State, where he'performed various and laborious duties, many of them not strictly appertaining to his professional engagement; and finally affected a compromise, which was entirely satisfactory to his .client. After the services were completed, tho compensation was fixed by the mutual agreement of the parties, and the sum agreed .upon was secured by a mortgage. Witnesses were called on the trial below, to .estimate the value of the intervenor’s services, but the parties themselves having established their .value, and no error haying been shown, effect must b,e giv, ,en to their contract.

After this cause was heard in this court, the interyenor died ; and since that .time his administrator has,been made a party to this appeal.

For the roa.spns assigned, it is ordered that the judgment of the Probate .Court be reversed. It is further ordered that the plaintiff, as administrator of ¡the succession of Elijah Cave?.is,, deceased, be adjudged to be a creditor of the .succession of Clandifis Gibson, deceased, for the sum of $2,910 26 cents, with ,ten per .cent, interest thereon, from the first day of June, 1839, and for the further sum of $5,085 6.0 cents, without interest; both of said sums to rank as a, judicial mortgage claim, to take effect on the 11th of May, 1841. It is further .ordered .that Nathan Jarvis, as administrator of the succession ,of the intervenor, Richard il. Chinn, have judgment and recover from the defendant, the sum of $13,500, with seven per cent yearly interest thereon, from the 3d of February, 1840, until paid; and that he be adjudged to be a creditor of the .succession of said Claudius Gibson, by a mortgage to have effect from the 3d day of February, 1840, on a tract of land lying in tlje parish of Carroll, fronting .on the Mississippi river, bounded above by lands of William Henderson, and .below by land sold by Gibson to John Mitchum, containing about 1,580 .acres, being the same conveyed by J. M. January to Claudius Gibson, and .described in a.certain a,ctof mortgage executed by Claudius Gibson to the said 11. H. Chinn, on. the 3d day of February, 1840, before Eli Harris, notary-public ; and that said land be forthwith sold according to law, to pay and satisfy the aforesaid mortgagee according to the rank aforesaid, and that the proceeds .of sale bo so .applied. It is further ordered that the succession of Claudius Gibson, j;ay the costs of bothnourts.


author: Slidell, J.

text:
    Larthet v. Forgay et al.
    ■Whore, undor .color of a warrant to search for stolon goods in a certain house, tho parties charged with its execution force their way into an adjoining dwelling, against tho remonstances of the occupant, and search it without finding the stolen property, they will be re.sponsible jointly, in damages, for the injury done thereby to the property and feelings of the occupant, and for the disturbance of his family; and where, in such a case, the damages .arc assessed by a jury*, the verdict will not be disturbed, unless they arc palpably excessive. Such warrants must be construed strictly.

      Appeal from the Parish Court of New Orleans, Maurian, J.

      Preaux and Soule, for the plaintiff. T. H. Howard, for the appellant.
   The judgment of the court was pronounced by

Slidell, J.

A search warrant was obtained by Forgay, which, after reciting that Forgay had made affidavit that a breast-pin and a gold piece stolen from him, were secreted, as he believed, “at a cabaret at the south-west corner of Girod and Carondelet streets,” commanded the officer “ to make diligent search in and about said premises for the said articles.” This suit is brought against Forgay and others, for damages sustained by the plaintiff by the unlawful conduct of the defendants, who have attempted to justify under this warrant.

It appears by the testimony that under the same roof there were two dwellings. One, which was immediately at the corner of the streets named in the warrant, was occupied by one Marcel, who kept a cabaret there. The other was occupied by Larthet, who kept a cigar shop. The respective premises appear to have been distinct, the yards being divided by a fence, and a door by which the premises communicated being nailed up. After making search in the cabaret, and in the other apartments of Marcel’s tenement, in one of which the breast-pin was found, the officer, who was accompanied by Forgay, and appears to have acted under his instructions, proceeded to force the communication into the plaintiff’s premises. Against this the plaintiff protested, and opposed the attempt, but not violently; upon this,' at the suggestion of Forgay, ho was taken into custody and carried before the magistrate, where he was kept for about two hours, till he was bailed. After leaving Larthet at the magistrate’s office, the parties forced open the door, and searched his shop and apartments; .but the other stolen article was not found. The wife of the plaintiff was much alarmed by these proceedings, and fell ill in consequence of the nervous excitement occasioned by the search of the house, and the imprisonment of her husband. The plaintiff appears from the testimony to have been a man of good .character and of some means, and had pursued his calling of a tobacconist in the city for several years. The case was tried by a jury, who found a verdict for the plaintiff of $2,000, upon which judgment was entered against each of the four defendants for $5.00 ; and the defendant, Forgay, alone has appealed.

The court below charged the jury in substance, and, we think, correctly, that .the breaking into.and search of the plaintiff’s shop and dwelling were not authorised by the warrant. The search should have been confined to the cabaret, or at most to the premises of Marcel. Such warrants must be construed .strictly. The law regards the dwelling and the domestic repose of the citizen with too much jealousy, to trust the place of execution of such process to the discretion of police officers. So important is this subject that it has been deemed worthy of express notice in the constitution of the United States, which .declares that “ the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but on probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Amendments Cons. United States, art. 4. This article is an affirmance of a great constitutional doctrine of the common law, which had nevertheless been occasionally violated by general warrants; and to prevent this abuse the solemn written prohibition was framed. A principle so indispensable to the full enjoyment of personal security and private property, should be enforced in its full spirit and integrity; but it would be yjolated if courts should sanction such a latitude of construction, as is invoked by the defendant for the warrant in question. See 13 Mass. 286. 3 Story on the Constitution, 748.

The damages assessed by the jury appear to have exceeded the injury done in searching and putting into disorder the plaintiff’s goods; but the jury undoubtedly assessed them with reference also to the injury to the plaintiff’s feelings, and the disturbance of his family. Such subjects are peculiarly within the province of a jury, and a verdict must be palpably excessive to justify our interference. Judgment affirmed.


text:
    New Orleans Gas Light and Banking Company v. Webb, Administrator.
    Slaves belonging to the succession of a deceased mortgagor, corresponding iu names, ages, and sex, with those described in the mortgage, in the absence of any evidence throwing doubt upon their identity, will be presumed to be the slaves included in the mortgage.
    Where a bank authorised by its charter to seize property mortgaged to it, in whosesoever hands it maybe, and notwithstanding any sale or change of possession, as if still in the hands of the mortgagor, claims to be paid out of the proceeds of the sale of property so mortgaged to it, which had been sold by order of tlie Probate Court, it will be an affirmance of the sale, and the bank can no longer proceed against the property; but it does not there* by forfeit any of the rights it would have had to be paid out of tbe proceeds of the sale, as if made at its instance.
    In an action against an administrator, by one entitled to bo paid out of the proceeds of property sold at a probate sale by a former administrator, for the price of which notes were given, and one of which fell due before the appointment of the defendant, the latter will be presumed, after tbe notes have become due, and in the absence of evidence to the contrary, to have received the proceeds of the sale ; and if any part was received by tbe first administrator, it is incumbent ou his successor to show that he was unable to compel the former to account and pay over the amount so received; this fact is a matter of special defence, which it is for the defendant to proye.
    Appeal from the Court of Probates of St. Helena, Leonard, J.

      A. Hennen, for the plaintiffs,
    cited acts of 1835, p. 105, s. 28. Qui hy* pothecam habet, rem ipsam habere videlur. Jourdan’s Juris Regulas, no. 230,

      Merrick, for the appellant.
   The judgment of the court was pronounced by

King, J.

The defendant is sued in this action as the administrator of the succession of Presley Slephenson, for the residue of a loan of money made by the plaintiffs to the deceased, the payment of which was secured by a special mortgage on a tract of land and several slaves. The prayer of the petitioners is, that the sum claimed be paid by privilege out of the proceeds of the hypothecated property, of which a probate sale has been made, and that the defendant render an account of his administration. A judgment was rendered in accordance with this prayer, from which the defendant has appealed.

It has been contended on the part of the defence, that the property adjudicated at the probate sale of Stephenson's succession, has not been identified with that subject to the plaintiffs’ mortgage; that there is error in the judgment allowing the plaintiffs a privilege on the proceeds of the property; that the defendant was not appointed administrator for some time after the first instalment became due; and that no proof has been adduced that the proceeds of the sals have gone into his hands.

Eight of the slaves, George, Squire, Sam, Hannah, Maria, Kate <rr Gathariñe, and her two children, adjudicated at the probate sale of Stephenson, correspond in-name, age, and sex, with those described in the mortgage, which, coupled with the fact that they were found in the succession of the mortgagor,sufficiently establishes their identity, in the absence of proof bringing their identity in question. We think also that the evidence fixes, with sufficient certainty,the identy of the tract of land sold with that described in the mortgage. These-slaves, with the tract of land, produced a sum more than sufficient to satisfy the plaintiff's’ demand.

We have been referred to no law which confers upon the plaintiffs the privilege claimed. The 28th section of the act of incorporation (Session- Acts of 1835, p. 105,) gives the plaintiffs the right, on all mortgages executed under that act, to seize the mortgaged property, in whatever hands it may be, in the same manner that it could be seized in the hands of the mortgagor, notwithstanding' any sale or change of possession by descent or otherwise, but confers no privilege. The plaintiffs, by claimiog the price in the hands of the administrator, have affirmed the probate sale, and ean no longer proceed against the property in the possession of the purchasers. But by this affirmance the bank hits forfeited none of its rights to be paid out of tho proceeds, which it would have had if the sale had been made at its instance ; and the fund in the hands of the administrator is subject to no other charges than those it would have been liable to, if the plaintiff had provoked the sale. The judge erred, however, in decreeing the payment to be made by privilege.

The defendant appeai-s not to have assumed the administration until more than a year after the sale took place, previous to which time the first instalment had become due. Many years intervened between the date of his appointment and the inception of this suit; all of the instalments have long since fallen due; and he must be presumed, in the performance of his duty, to have collected the entire proceeds of the sales. If any part of them were received by his predecessor, it was his duty to have held the latter to account; and if he has been unable to compel him to account or to coerce payment, this should have been made a matter of special defence, which it was incumbent on the defendant to prove. No such defence has been set up in the answer, and no such proof exhibited.

It is therefore ordered,-that so much of the judgment of the court below as decrees a privilege to the plaintiffs be rever-sed; and, in other respects, said judgment is affirmed; the appellee paying the costs of this appeal.