author: Slidell, O. J.

text:
    C. J. Bradley, Administrator, v. H. Frellsen & Co.
    A sheriff who had a plantation under seizure by fi. fa. was enjoined from selling. Pending the injunction he shipped the crop to defendants for sale, and subsequently died. If&d: that the administrator of the deceased sheriff is not entitled to recover of defendants the proceeds of llie sale of the crop, without the assent of the deceased sheriff’s successor in office, and of the parties to the injunction suit and others in interest. All official trusts pass by the death of the sheriff to his successor in office and not to his personal representative.
    from the First District Court of New Orleans, Larue, J.

      Purvis & Dugué, for plaintiff,
    cited Jordan v. Gallop, 12 Conn. 537; Decoux v. Banlc of Louisiana, 157.

      Wolfe & Singleton, for defendant and appellant,
    cited Pavie v. Cenas, 3 M. 288 ; Buisson v. Hyde, 17 La. 22; Simpson v. Allen, 7 R. 500.
   Slidell, O. J.

The evidence is quite meagre, but the state of facts we gather from it is substantially this:

Augustus Bradley, Sheriff of the parish of Franklin, had seized upon fieri facias in the suit of Ford v. Michael Dosson, a plantation, supposed to belong to Dosson, but claimed by his wife, who it seems arrested the sale by injunction. The Sheriff shipped the crop of cotton to the defendants, New Orleans merchants, anl they furnished supplies, &e., to the plantation on the Sheriff’s orders. While matters thus stood, Augustus Rralley died, and his administrator sued the defendants for the proceeds of the crop. They resist payment upon the ground that this plaintiff has no right to receive the money.

It was the duty of the plaintiff to make out a clear right, which lie has not done. Frellsen & Go., seem to have dealt with Augustus Bradley, in his official capacity as Sheriff, having custody of a plantation under judicial process, and pending a litigation respecting the ownership of it, and its crop, in which litigation Ford, Miahael Dosson and Mrs. Bosson wore interested. All official trusts passed on Bradley's death to.his successor in office, and not to his personal representative. It is fair to infer from the evidence before us, and in the absence of any express proof to the contrary, that the Sheriff was not thus providing for the wants of the plantation, and shipping the crops without some legal sanction ; and there is no evidence that'the parties litigant have done any act from which could be implied an assent to the receipt' of this fund by the mere personal representative of the late Sheriff. On the contrary two of them have appeared in this cause and resista payment to the administrator.

There is in evidence a writing purporting to be signed by a subsequent Sheriff of Franklin, assenting to the payment of the fund to the administrator of his predecessor, but we do not think he had a right thus to direct the fund without the assent of the litigants.

It is proper to observe that although the plaintiff’s petition discloses the interest of Ford, there has been no attempt on his part to make Ford a party.

Under all the circumstances as presented by the imperfect evidence before us, we are not prepared to say that the plaintiff has shown a clear right to receive this fund, and that the defendants would bo safe from further attacks on paying to him.

Judgment reversed, and judgment as in case of non-suit, plaintiffs to pay costs in both courts.


source: Caselaw Access Project

author: Yoorhies, J.

license: Public Domain

text:
    The City of New Orleans Praying for the Opening of Philip and other Streets.
    In proceedings for the opening of streets, under the Act of 3d of April, 1832, the city of New Orleans is not barred, by the 6th section of said Act, from appealing from the judgment of the District Court affirming the report of the Commissioners of Assessment after the lapse of two calender months from the date of the Judgment.
    An appeal will not be dismissed on the ground that it was rendered on motion of apper "t, when it appears that it was rendered on motion of one who acted as attorney for the appellant and appellee.
    from the Fourth District Court of New Orleans, Reynolds, J.

      Labutt and Eusiis for the city of New Orleans, appellant.

      J. G. Fgan and T. 8. MeCay, for Walker, &c.
   Yoorhies, J.

(Slidell, O. J., declined sitting.)

The petition in this case sets forth, that the Common Council of the city of New Orleans has passed resolutions declaring its intention to open Philip street from St. Patrick to Claiborne streets, and the streets running perpendicularly to and parallel with the river to Claiborne street, in the Fourth District, according- to a certain plan in the Surveyor’s office; and that, after due and legal advertisements, no opposition having been made, the Mayor has been authorized to take the necessary legal stops to carry into effect said intention. The petition concludes with a prayer for the appointment of three discreet and disinterested persons as commissioners of estimate and assessment, as prescribed by the Act of the 3d of April, 1832. J. A. Watkins, J. F. Riib and William T. Gillmore being appointed as such, filed a report on the 14th of October, 1854, setting forth, among other things, that they had employed Hugh Grant, a civil engineer, to make a careful and accurate survey of all the streets proposed to be opened, together with a plan, of the district in whi.h the same wire embraced, in accordance with the resolutions of the Common Council of the city of New Orleans, which survey was made and a plan of the same annexed to their report. This report, showing that the lands and improvements taken for that purpose were separately estimated and assessed, was confirmed by separate judgments signed on the 24th November, 1854. On the 20th of January, 1855, the city of New Orleans took an appeal from these judgments.

On the 20th and 27th of February, 1855, ru'es were taken in the court below upon the Mayor of (he city of New Orleans by J. F. Riib, James D. Gill-more, Wm. T. Gillmore, Hugh Grant and F. Walker, subrogee of J. A. Wat-Icins, to show cause why the appeals thus granted should not be sot aside on the following grounds: 1st. Because said appeals were not taken within the delay allowed by law ; 2d. Because the judgment was rendered by the court upon the motion and at the instance of the said city of New Orleans; and 3d. Because no one has been authorized by the Common Council to take an appeal. The Judge a\ quo discharged the rules thus taken and maintained the appeals.

Several of the appellees have filed motions in this court for the dismissal of the appeal. 'The Commissioners, William T. Gillmore, J. F. Riib and J. A. Watkins' transferree, and the Surveyor, Hugh Grant, claim the dismissal on the following grounds: 1st. Because the appeal was not taken in time to suspend execution ; and 2d. Because the judgments appealed from were rendered upon the motion of the city of New Orleans. The two last named appellees also claim it on the ground of the absence of any prayer in the petition of appeal to have them cited, and that no service of the petitition of appeal or citation has been made upon either of them. This ground is untenable; for the record shows that a copy of the petition and citation was duly served upon both of them. In the report, the compensation of the three Commissioners is fixed at $9,900, that of the Surveyor, Hugh Grant, at $1,320, and that of the attorney at $2,200. The petition praying for the opening of those streets was signed by Thomas R. Wolfe, Fsq., as City Attorney ; and the repoit was confirmed on the motion,of J. Livingston, Fsq., as attorney for the city and Commissioners. The latter is also made a party appellee in this case, the appellant being represented by Messrs. Labatt and Fastis.

The 3d section of the Act of the 3d of April, 1832, on which the proceedings in this case are based, after prescribing the mode in which the assessment of the property taken for the opening and improvement of streets shall be made, provides, that any person whose rights are affected by the report of the Commissioners, may, within ten days, file his opposition in writing to the assessment. After certain proceedings on such opposition, the Act provides that the report made and confirmed by the court “ shall be final and conclusive as well upon the Mayor and City Council of 'New-Orleans, as upon all persons and ... parties interested m the lots, lands and premises mentioned in said report, &c. The 6th section provides, “ that said Mayor and City Council shall, within two calender months after the confirmation of the report, pay to the respective persons mentioned in said report, in whose favor any sum or sums of money shall be estimated and reported, the respective sums reported in their favor, and in case of neglect or default, such person, after application made to said Mayor and City Council for payment thereof, may sue for and recover the same with six per cent, interest, &c.”

Whether the Commissioners had any legal authority to pass upon their own claim, or that of others, for services rendered to the appellant or not, is a question which we are not now called upon to determine. We do not think that this section of the statute can be construed to mean that the right of appeal, even in relation to the claims adverted to, is barred by the delay of two calendar months. This delay is clearly applicable to the payment of the sums assessed by the Commissioners, giving to the creditors, after its expiration, the right to proceed by suit against the city. We are clear that the second ground on which the appellees rely for the dismissal of the appeals, is equally untenable. The report of the Commissioners, as we have seen, was confirmed by the court below, “ on motion of J. Livingston, Esq., attorney for the city and the Commissioners.” Under these circumstances, it is obvious that the judgments appealed from cannot be considered as having been confessed by the appellant.

It is therefore ordered and decreed that the motion of the appellees for the dismissal of the appeal in this case, be overruled.

Mr. Chief Justice Slidell not sitting in this case.


author: Voorhies, J.

text:
    Same Case.
    The assessment directed by the 3d section of the Act of 1832, in reference to the opening and improvement of streets, applies exclusively to the property to be expropriated. The Commissioners are not authorized to include in such assessment their own fees and otner expenses.
   Voorhies, J.

This case has already been before us on a motion to dismiss the appeal. (Ante. p. 811.)

The principal objection urged by the appellant to the judgments appealed from, is, that the Commissioners improperly passed upon and allowed in their report the following claims, as compensation for services rendered in opening Philip and other streets,.to wit: $2,200 to John Livingston, City Attorney, $1,320 to Hugh Ch'ant, civil engineer, $1,100 to James Oillmore, clerk, and $9,900 to themselves.

In this particular, we think the report is clearly erroneous. The thii-d section of the Act of 1832 points out the mode of making the assessment of property required for the opening and improvement of streets, and makes it the duty of the Commissioners to file a copy of such assessment with' the Clerk of the court. This assessment, it is obvious, applies exclusively to the claims of persons whose property is required for such improvement. In their assessment, the Commissioners are required to set forth the names of “ the respective owners, lessees, parties, and persons entitled to, and interested in, the said lots and premises.” The sixth section prescribes the manner of enforcing the payment of the respective sums estimated “in favor of the persons mentioned in said report.” It is true the Commissioners are also required to malee an estimate of the probable cost and expense of making such improvements, but it is clear to our minds that the Legislature intended that such estimate, in connection with the assessment required to be filed with the Clerk, should be submitted to the consideration of the City Council. This construction is consonant to the 9th section, which provides that “ each of the Commissioners shall be entitled to receive the sum of not more than $5 for each day they shall respectively be employed in the duties of their appointment, over and above clerk hire and other actual expenses: provided, that in no ease shall the compensation to be granted to the three Commissioners exceed $450 ; the same to be paid by the Mayor and City Council, on a detailed account of said expenses, certified by at least two of said Commissioners, and to be included as part of the expenses of said improvement in the above mentioned assessment. Under the third section, the Commissioners are authorized to have such surveys and plans made as they may judge necessary. It is evident that the expenses resulting from this, must be settled in the manner pointed out in the ninth section of the Act. In other respects, we are of opinion the report of the Commissioners is correct.

It is therefore ordered and decreed that the judgment of the court below be avoided in so far only as it relates to the claims of the Surveyor, Clerk, Attorney and Commissioners, as set forth in the report of the Commissioners, that said claims be stricken out of said report without prejudice, said appellees to pay the costs of this appeal, and that in other respects said judgment be affirmed.

Mr. Chief Justice Slidell not sitting in this cause, having recused himself on the ground of interest.


author: Spoeford, J.

text:
    Micou’s Executors v. Stacy et als.
    The vendor of a contingent interest in lands who warrants title, as to lumself and those claiming under him, and who takes a counter letter conditioned that the ‘vendees will convey to him one-third of the land that may be confirmed to them after adjusting the claims of certain settlers on the land, hasnot such a title as will authorize him to be recognised as a co-proprietor in a suitfor partition, between parties claiming by title from his vendees.
    The holder of such a counter letter would have no right as against-his vendees, when their title to a portion of the land had been confirmed, only by compromise with parties claiming under an assignment from him prior to the date of the counter letter.
    The registry in the mortgage book of such a counter letter, even'if it be regarded as a title or conveyance, would be no notice to a purchaser.
    from the District Oourt of Concordia, Cooley, J.

      Hamner & Hays, for Bringier, appellant.

      Hynes, Stacy & Sparrow, in pro. per.

   Spoeford, J.

(Buchanan, J. and Ogden, J. absent).

The District Judge did not err in rejecting the pretensions of Louis Bringier to a share in the partition.

To have allowed him a definite share in the lands on their proceeds, under the pleadings as between him and Stacy and Sparrow, would have been to re-cognise in him a sufficient legal title to sustain a petitory action against them as adverse possessors.

He has produced no such title.

His pretended title he styles a counter letter from Gurry and Garland, to whom he sold all the claim he might have to the Bringier tract in 1841.

It turned out that he had no claim at all, for he had surrendered all the interest he had to his creditors in 1827, and in 1828 it was adjudicated to Isaac Lambert, William Brothers, and Jonah Bastable.

Their claims have been asserted contradictorily with Gurry and Garland, or their successors, and all with a certain degree of success. The heirs of Mooney who succeeded to the rights of Lambert & Brothers, after instituting legal proceedings, compromised with Gurry & Garland, and procured a share of the land. The heirs of Bastable, by the judgment of our predecessors (reported in 5 An. 419) recovered an undivided sixth of the Bringier tract, subject to certain deductions for expenses common to all the co-proprietors. They would have recovered the other sixth, but the recorded interest of Garland had passed into the hands of Staey, whose good faith protected him.

Now, in the sale of his contingent claim to Gurry and Garland in 1841, the vendor inserted the following clause : “ this sale is made without any warranty on the part of Mr. Bringier, except against himself, his heirs, and those claiming under him.” The sale was for the express consideration of $5,000.

Referring to the counter letter we find that Gurry and Garland stipulated that when the title should be confirmed, and the claims of certain settlers adjusted, they would convey and relinquish to the said Bringier one-third of the land that should remain.

Suppose, for a moment, that Gurry and Garland were the defendants instead of Stacy and Sparrow. Could Bringier, under these facts be permitted to say, “ I am the owner of one undivided third of these lands in common with you, by virtue of this counter letter?” .They would reply, “we have, after great trouble, expense and litigation, got a title to a part of the Bringier tract; you sold us your claim, as an inchoate claim, really subsisting in you and not alienated at the time; you warranted us that we should be disturbed by no one claiming under you ; you have broken your warranty ; your sale to us was absolutely null; the thing belonged to other persons to whom you had previously assigned it yourself; those persons have disturbed us ; after we had paid, you $5,000 for a claim you did not own, and spent our time and money in get-, ting a confirmed title, your assignees stepped in and took a considerable part of the land from us; they would have taken it all but for a timely compromise, which we made for our own protection, and not for your benefit, because you, violated your contract with us.”

This defence, as the evidence stands, would effectually' bar Bringier from, claiming a specific performance of the promise to recover one-third of the lands,, even were he litigating his rights with the original parties to the counter letter.

That instrument is not an absolute title to anything; it is not translative of' dominion over anything. It is a conditional promise to convey in the future, and refers to a deed from thepromisee, which itself conveyed only an inchoate and. contingent claim, but with a warranty against disturbance from his own assigns; which has been falsified.

The most ample notice of such an instrument brought home to Stacy and; Sparrow could1 not enable Bringier to assume the position of1 a co-proprietor-with them, for they hold under titles of the highest dignity.

If Bringier had any rights growing out of his dealings with Gurry and Gar-, land, he should have asserted them contradictorily with those parties.

It may be added that if the counter letter could possibly be regarded as a title or conveyance, it was improperly recorded in the mortgage book, and such a registry would not operate as notice.

Nor could the fact that a mortgage certificate was read at the sale when Stacy purchased, in which a loose reference ivas made to a conveyance said to have been executed by Gurry and Garland, of one-third of the land, without stating to whom, be considered as giving Stacy legal notice, that Louis Bringier was an owner of an undivided third, so as to put him in the position of a purchaser in bad faith, especially as Stacy bought under a judicial mortgage recorded before the registry of the counter letter in the mortgage hook, as shown by the certificate read at the sale. The judgment is affirmed with costs.

Re-hearing refused. .


author: Mobpuey, J.

text:
    J. Montgomery, Executor, et als. v Routh and Williams.
    An unofficial copy of a power of attorney may be given in evidence, where the party offering it, cannot procure the original.
    from the late District Court of Concordia, Gurry, J.

      S. L. Johnson, for plaintiff.

      Stacy & Sparrow, for defendants and appellants.
   Mobpuey, J.

The defendants are sued as endorsers of a promissory note of $9,807 39, drawn at Jackson, Mississippi, on the 12th of December, 1837, by George Mmane, John Long, John A. Grimbull, and Gha/rles Lynche, to the or" der of, and endorsed by, Shipp, Ferriday S Go., and paj^able on the first of January, 3839, at the Agricultural Bank of Mississippi, at Natchez; the note was placed for collection in the Planters’ Bank, at Natchez, and regularly protest-ted; the Justice of the Peace who made the protest, gave notice of it to the defendant by leaving letters containing such notice, with William Ferriday, their agent, at his counting-house, at Natchez, there was a judgment of non-suit below, from which the plaintiffs appealed.

The endorsements sued on in this action were given by William Ferriday, under the same powers as are mentioned in the case of The Commercial Bank of New Orleans v. those defendants just decided, the same interrogatories were put to them and the same answer made ; for the reasons given in that case, we conclude that William Ferriday was duly authorized to make such endorsements.

It is urged that the notices left with William Ferriday, are bad, because an agent is not competent to receive notices unless power to that effect is given him, and that the powers of attorney annexed to the plaintiffs’ petition confer no such power, and we have been referred to the cases of Mantillet v. Duncan, 11 M. R. 534; and The Louisiana State Bank v. Ellory, 4 N. S. 87. It is not necessary to inquire in this case, whether the authority to receive notices of protest may not be fairly deducible from the comprehensive powers given to Ferriday to do all the banking business of his principals, because the plaintiffs have exhibited other powers executed in Mississippi, on the 21st of April, 1837, in which the defendants authorize their agent to do in their names, with the Planters’ Bank of Mississippi, a number of transactions therein enumerated and (among others) ‘‘to receive and acknowledge notices of protest of all or any bills of exchange, drafts or promissory notes, and to do and to perform all such other acts as may bo necessary in transacting our business with the said institution.”

To prove those last powers, the plaintiffs offered in evidence copies of the original, which are private documents lodged in the Planters’ Bank, in Mississippi, and proved, by the cashier who was examined under a commission, that he could not part with the originals which belonged to the bank, that they were sigped by the defendants, and that the copies which he annexed to his answers were correct copies of such originals, and they further proved the death or absence of the subscribing witnesses; this evidence was objected to on the ground that the originals should have been produced, as they were not alleged to be lost or mislaid, but on the contrary, were shown to exist. The Judge admitted the copies, and defendant took a bill of exceptions. The Judge below did not err. The rule is, that a party is not obliged to produce the very best possible evidence of the fact to be proven, but the best in his power and under the circumstances of the case. The best evidence of the contents of a written .instrument consists no doubt in the actual production of the instrument, but when the impossibility of producing it has been shown to the Court, secondary evidence must be admitted. 1st Starkie, on Evidence, p. 282. In the present case, the paper is beyond the control of the process of our Court, and the party can do no more than prove its contents.

It has been finally argued that the power is to transact for the principals the business therein mentioned with the Planters’ Bank, of the State of Mississippi and not with the plaintiffs; that the note sued on, never did belong to that Bank who merely held it a short time for collection; to this it is a sufficient answer that as the Planters’ Bank had undertaken to collect this note, the protesting and giving notice of the protest to Routh and Williams, was part of the business which the Bank had with these persons.

There is an admission in the record that the note bears eight per cent, interest per annum by the laws of Mississippi.

It is therefore ordered that the judgment of the District Court be reversed, and proceeding to give such judgment as in our opinion, should have been rendered below, it is ordered and decreed that the plaintiffs do recover of, and have judgment against, the defendants, in solido, for §9,807 39, withjinter-est thereon, at the rate of eight per cent, per annum, from the fourth of January, 1839, until paid, with costs in both Courts.


author: Buchanan, J.

text:
    Same Case on a Re-hearing.
   Buchanan, J.

Upon a careful review of this case we have found no reason to dissent from the conclusions of the former Supreme Court, embodied in the opinion pronounced at Alexandria, in the term of 1845.

In the period of time, which has since elapsed, one of the defendants, Austin Williams, has died, and his representatives have not been made party herein.

It is, therefore, adjudged and decreed, that the judgment heretofore rendcr-ered in this case by the former Supreme Court, be affirmed against John Routh.


author: Ogden, J.

text:
    L. E. Simonds v. Sarah Creswell.
    On the settlement of an executor’s account, the judgment of ttfe Court rendered en his claim for commissions is final and conclusive, as to any demand for personal services of whatever nature, he may have rendered to the estate, unless there has been an express reservation in the judg-
    from the Fourth District Court of New Orleans, Reynolds, J.

      Simonds, for plaintiff and appellant.

      J. Ad. Rozier, for defendant.
   Ogden, J.

This suit is brought by the plaintiff to recover $1,500, for valuable services alleged to have been rendered to the defendant, at her request, in administering the succession of Elihu Greswell, deceased.

The defendant set up the plea of res judicata, which was sustained in the Court below.

The plaintiff was executor of the will of Greswell, and his Anal account of administration was the subject matter of litigation in the case of the succession of E. Greswell, which was decided by this Court in 1854. See L. R. 1854.

In that case the plaintiff claimed commissions as executor, which, it is admitted in his petition in this suit, was the form then adopted by him, of claiming remuneration for the same services for which this suit is brought. He contends that although his claim for commissions eo nomine was rejected by the judgment in that suit, he has a right to recover in another action on a quantum meruit. Such a principle is altogether inadmissible. On the settlement of an executor’s account, the judgment of the Court rendered on his claim for commission, is final and conclusive, as to any demand for personal services of whatever nature he may have rendered to the estate, unless there has been an express reservation in the judgment.

Judgment of the Court below is, therefore, affirmed with costs.


text:
    J. Surget v. F. Stanton.—F. Surget v. The Same.
    In an order of court granting a suspensive appeal it is not necessary to fix the sum for which the bond is to be given; the law fixes the amount. Article 574 O. V. refers entirely to devol/ulvo e appeals.
    The description in the petition of appeal of “final judgment” is sufficient. This description identifies the judgment mentioned in the appeal bond, of which judgment the date is blank in the bond.
    This court will not enquire into the sufficiency of the security offered for the appeal. It is the province of the court of the first instance.
    from the Sixth District Court of New Orleans, Collon, J.

      Day and Smiley & Perrin, for plaintiff.

      Gaither and Benjamin, Bradford & Finney, for defendant and appellant.
   Buchanan, J.

In each of these cases a motion has been made by appellee to dismiss the appeal on various grounds.

The first is, (hat no sum has been fixed by the order of court as to the amount of the bond to be given for the appeal. It was not necessary to fix a sum. The appeals are suspensive, and the law fixes the amount of the bond. Code of Practice, Article 575. The requirement of the Article 574, relied upon by appellee, that the Judge shall state the amount of the surety to he given by appellant, refers entirely to devolutive appeals. Duperrou v. Van Winkle, 1 Rob., 324.

The second gvound is, that the petition of appeal does not set forth what judgment the defendant desires to appeal from. The petition avers error in the final judgment rendered against defendant in the cause. This is a sufficient description of the judgment. This description also identifies sufficiently the judgment mentioned in the appeal bond, of which judgment the date is blank in the bond, which constitutes another ground of this rule to dismiss.

The fourth ground objects to E. A. Bradford, one of the securities in the appeal bond; and the fifth to Buckner and Newman, who are also securities in said bond, for various reasons stated. Objections to the securities should have been made in the court below. Such is the practice consecrated by many precedents. We cannot undertake here to enquire into the sufficiency of the security offered for the appeal. It is the province of the Judge of the court of the first instance to ascertain that the requisitions of the law in this respect have been complied with.

It is ordered, etc., that the motion to dismiss these two appeals be overruled, at the cost of appellee.


text:
    Francis Surget v. Fred. Stanton.
    The “ absence ” spoken of in Art. 8508 of the Civil Code is the absence of the creditor from the domicil of his debtor; and where the debtor and creditor have always lived in the same place although that place be out of the limits of this State, the creditor cannot be viewed, in regard to the debtor, as an absentee.
    from the Sixth District Court of New Orleans, Cotton, J.
    Day and Smiley & Perrin, for plaintiff:
    As to the attempted distinction in relation to absentees, where both parties reside out of the State, it is sufficient to say that this court has repeatedly held that all persons who are out of the State, and may never have been in the same, are considered and declared to be absentees. 15 L. R., 85; 2 An., 636; 14 L. R., 447; Civil Code, Art. 3522, No. 3.

      Qaiiher and Benjamin, Bradford & Finney, for defendant and appellant.
   Buchanan, J.

On the 23d April, 1843, the plaintiff recovered of defendant a judgment in the Circuit Court of the State of Mississippi, sitting in the county of Warren, for the sum of five thousand four hundred and eleven dollars and eighty-seven cents. Both plaintiff and defendant were, and ever since have continued to be, residents of the State of Mississippi; and the contract on which judgment was obtained was a promissory note made iu Mississippi, and payable at the Agricultural Bank of Natchez, in said State.

The last execution that was issued on said judgment from the court that rendered the same was so issued on the 23d November, 1843. Suit was instituted by attachment on this judgment in the Sixth District Court of New Orleans, on the 6th April, 1854. The defendant has pleaded-prescription. The action would be barred, if brought in Mississippi, by a statute of that State, passed the 24th February, 1844. Hutchinson’s Mississippi Code, page 831. And we are spared the necessity of examining the numerous and, to some extent, conflicting authorities which the learned counsel on both sides have furnished us on the subject of the effect of the lex loci contractas, and of the lex fori, where the two laws differ, inasmuch as we have come to the conclusion that this action is barred n-o less by the law of Louisiana than by that of Mississippi. The Article 3508 of the Civil Code is as follows: “In general all personal actions, except those above enumerated, are prescribed by ten years if the creditor be present, and by twenty years if he be absent.” The present action comes within the provision of this Article. More than ten years elapsed, as we have seen, between the rendition of plaintiff’s Mississippi judgment and the action instituted in a Louisiana court upon that judgment. But the District Judge was of opinion that the plaintiff being an absentee, that is to say residing out of this State, the term of prescription applicable to him was twenty, and not ten years. We think, on the contrary, that the absence spoken of in the Article 3508 of the Code is the absence of the creditor from the domicil of his debtor, and that where the debtor and creditor have always lived in the same place, as is the case in the present instance, although that place be out of the limits of this State, the creditor cannot be viewed, in regard to the debtor, as an absentee.

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


text:
    Jacob Surget v. Frederick Stanton.
   For the reasons given in the opinion this day delivered in the case of Francis Surget v. Frederick Stanton, it is adjudged and decreed that there be judgment for defendant, with costs.


author: Slidell, C. J.

text:
    O. Roubieu v. A. W. L. Palmer.
    This is a question of fact. Defendant contended that he was a capitalist who advanced money to plaintiff at an agreed rate of discount, upon the bills delivered to him, as plaintiff wanted money from time to time. Plaintiff, on the other hand, contended thathe dealt with defendant as a broker, that the bills were entrusted to him in that capacity, with authority to get them discounted, etc.
    from the Fourth District Court of New Orleans, Reynolds, J.

      T. J. Semmes and Roselius, for plaintiff.

      Larue & Whitaker, for defendant and appellant.
   Slidell, C. J.

The defendant concedes in argument that he has been properly found guilty of fraud under the 10th section of the Act of 1840, if it has been proved that plaintiff entrusted him in his capacity of broker with the bills of exchange, for the purpose of getting them discounted in the market, that he sold the bills, received the money therefor for plaintiff, and wrongfully retains the proceeds. But he contends that, under the evidence, the bills were not entrusted to him as a broker. That he was a capitalist advancing money to Roubieu at an agreed rate of discount upon the bills delivered to him, as Roubieu wanted money from time to time.

The evidence satisfies us that Roubieu dealt with Palmer as a broker; that the bills were entrusted to him in that capacity, with authority to get them discounted within a certain limit, twelve per cent., and with a compensation of one per cent, for his brokerage. That Palmer has, in breach of the confidence reposed in him, sold at least some of the bills and converted the proceeds to his own use, refusing to render an account of his sales, having paid over only a portion of the proceeds, not offering to return any bills he may not have actually negotiated, and remaining a defaulter for a large balance.

payments, and the testimony of the witnesses respecting the account, and the circumstances under which it was kept and rendered to Palmer, prove that Palmer was not in his later dealings a punctual agent, and that Roubieu permitted a loose mode of doing business between his broker and himself; but do not disprove the relation of principal and broker, which, on the contrary, is clearly established by express testimony, and accords also with the publicly known and daily vocation of Palmer, as shown by witnesses not in the employment of plaintiff. The argument made for the defendant derives its only plausibility from the form in which an account was made out by the plaintiff’s bookkeepers, and the circumstance that in many of his payments Palmer did not pay over specific sums as the proceeds of discount of spesific bills. But upon reference to the testimony of the witnesses the difficulties vanish. It is satisfactorily shown that this account was forced upon Roubieu's-bookkeeper, from the fact of Palmer's not making prompt and specific returns of bills put into his hands without contemporaneous vouchers or formal entries. The mode in which Palmer made his

As to the money part of the judgment, the only error we find to the defendant’s prejudice is in substantially charging him, as under date of 11th July, 1854, with the faceof bills of exchange amounting to $16,600, which did not mature until various’ dates after that day.

In conclusion, it is proper to observe that evidence was introduced without objection with regard to a large amount of bills beyond those enumerated in the petition, and showing the transactions between the parties for a considerable time, and the amouni due and'unaccounted for by the defendant.

It is' therefore decreed that the judgment be amended by reducing the principal sum thereby awarded to the sum of $16,454 89, to bear interest from 11th July, 1854, until paid, and that so amended said judgment be affirmed, the costs of the appeal to be paid by the plaintiff.


text:
    Bolte v. The City of New Orleans.
    The tax assessed by the Common Council on all drinking houses is legal, and the tax on the keeper of such houses is payable at any period of the year when it may be found that he is not provided, with a license. But the city has not the right to close the doors of a drinking house summarily because of the failure of the keeper of it to take out a license,
    from the Fifth District Court of New Orleans, Augustin, J.

      Roselius and Collens, for plaintiff:
    An expression of the opinion of your honors upon the following points, raised, by the issue between the parties, would not only decide this cabe, but many others turning upon the same questions, and would avert much litigation.
    I. The ordinance violates Article 123 of the- Constitution of the State, and the laws of the State incorporating the city, requiring taxation to be “ equal and uniform."

    Article 123 Cons, requires taxation to be “equal and uniform” — this clause applies to the whole article, and relates to the income tax on professions as well as to property.
    Moreover the Act of 1836, p. 127 Bullard and Curry, requires the general Council to fix “ uniform prices for all licenses ” &c. So does also the Act of 1847, p. 140, seo. 1, require taxation to be “equal and uniform.” The Acts of 1853, p. 154, extended the laws which applied only to the several Municipalities to the whole city.
    Now these laws are violated in two respects: 1st. By imposing different taxes upon different professions; arbitrarily taxing one profession more or less than another, and creating capricious and invidious distinctions between citizens, according to the professions they follow. 2d. By establishing an inequality and a non-uniformity even among the traders in liquor, and dividing them into six classes:
    Art. 2. Those who distill spirituous liquor, $500.
    Art. 4. Those who sell by the glass, $300.
    Art. 6. Those who sell by the quart, $150.
    Art. C. Keepers of drinking houses who sell beer, $100.
    Art. 7. Those who sell liquor in eating houses, $75.
    Art. S. Those who sell liquor by the gallon, $60.
    To say nothing of the distinctions drawn between grocers who sell spirituous liquors and those who do not sell them, thus looking more to the merchandise a merchant sells than to his profession itself.
    It is evident that if this be uniformity — if this be not a violation of the law and Constitution, then the law and Constitution are nugatory; for an artful classification of prQfessions would suffice in order to tax one kind of property higher than another, and to reach oppressively those who might be obnoxious to just or unjust prejudices.
    II. The ordinance was not legally passed.
    When it yvas sent to the lower Board (as fully appears from the date of the message) it had not been published together with the ayes and noes. See Acts of 1852, page 47, section 19. It should have been published “before” being sent to the other Board. It was passed by the Board of Aldermen on the 12th of December, was sent to the lower Board on the same day, and was published on the 14th of December, at which time the Assistant Aldermen were already in possession of it and were acting upon it.
    Passed by Board of Aldermen, 12th December, 1854.
    Published as passed by Board of Aldermen, 14th December, 1854.
    Received by Assistant Aldermen, 14th Dec, 1854.
    So that the publication (instead of taking place “ before” the ordinance, as passed, was sent to the other Board) took place simultaneously with the sending.
    III. To attempt to enforce the payment of the tax or price of license, even were it legal and constitutional, was premature. It was not due till 1st of March to 1st May. See Aots 1854, page 52, see. 35; and Acts of 1853, page 86, see. —•
    The “levee dues” are the only taxes exempted from this rule.
    The ordinance itself' denominates the exaction for the license “a tax,” and so does the law. See title and first article of ordinance.
    IV. The mode of enforcement was illegal and unconstitutional, for no authority was ever vested to coerce payment in this mode, which would make the corporation legislator, judge, suitor and executioner all at once, and which begs the question of a liability to pay the tax, precludes all just defences which might exist, creates a frontier process in rem for a tax which is purely in personam, deprives a man of his property without duo process of law, and virtually abolishes the Judiciary. Lanfear v. Mayor, 4 La., 97; Harper v. Dorsey, 4 La., 98; Rost v. Mayor, 15 La., 129; American Law Register, June, 1854, page 471.
    The mode of procedure in such eases is clearly and expressly pointed out in the Act of 1805, page 95 Bullard and Curry’s Digest, section 10.
    The ordinance itself prescribes the mode in which it shall be enforced. Sees. 25 to 35. Bullard and Curry, page 97 and page 101, sec. 33.

      Livingston, City Attorney, for defendant and appellant
    cited:

      Romazoy v. Mayor et al.,1 M., 263; Municipality No. 2 v. Schmidt, 1 A., 387; Charily Hospital v. Slickney, 2 A., 550; Charily Hospital v. Lammerman, 5 A., 380; Municipality_ No. 1 v. Devrou, 4 A., 278; Municipality No. 1 v. Cutting, 4 A., 336; Municipality No. 1 v. Manuel, 4 A., 328; City of Lafayette v. Cnm-

      mings, 8 A., 678; Buffington v. Drinkgrave, 4 A., 549; Municipality No. 2 v. Duncan, 2 A., 182.
   Buchanan, J.

For the reasons given hy the District Judge for the judgment from which this appeal has been taken, it is adjudged, and decreed that the said judgment be affirmed with costs.

REASONS OF JUDGMENT OF THE DISTRICT COURT..

The plaintiff has sued out a writ of injunction against the city corporation, in order to restrain the acts of the City Treasurer, by whom he was notified to pay $315, due for his house for keeping a drinking house, and in default whereof, that the drinking house shall be closed by the police, in virtue of a resolution of the City Council, approved the 16th July, 1852.

The plaintiff alleges that there is no Act of the State Legislature which authorizes such a summary proceeding on the part of the city authorities; and further, that the said tax is illegal and unconstitutional; and if found legal that the tax is not due before the 1st of May next.

The city has joined issue upon these points, and prays that the injunction be dismissed.

The right of the city government to fix a uniform price for the license to drink- . ing houses is clearly established by law.

The Act of 1805, section 11, provides that the Mayor shall give licenses for keeping houses under the restrictions to be imposed by the Council, and that ail grog-shop keepers, without a license, shall be prosecuted for a fine.

The Act of 1816, page 113, Rev Stat., provides that the city of New Orleans shall have the power to regulate anything which relates to grog-shops, etc.

The Act of March 5th, 1836 — the General Council shall have the power to fix uniform prices for licenses to grog-shops, etc.

From the early period of legislation in England the right of control of the police over taverns has been maintained. So the old Norman, cited by Britton, c. 30: Soil requis de tous iaverniers qui’onl vendu vins a Tencontré du droit d’assiee.

The colonial government of Louisiana, from the primitive police, maintained the same control over grog-ihops.

In 1751, at a time when the population of New Orleans numbered in all 975 persons, Governor Vaudreuil published an ordinance imposing an annual tax of 300 livres on every grog-shop, for the benefit of the church and of the poor; forbidding them at the same time to sell liquor on Sundays and holidays during the hours of divine worship. Gayarré’s Louisiana, vol. 2, page 42'.

The ordinance of Oreilly, of 1770, fixed at $50 the price of these licenses. Walker’s Dig., page 7.

The City Council of New Orleans in 1826 fixed the price of these licenses at $150 per annum. In the same ordinance it was-provided that every person intending to keep a grog-shop shall obtain from the Mayor a license, upon the recommendation of two respectable freeholders, and besides, he shall furnish a bond, with security, in the sum of one thousand dollars, to secure the payment of all fines for contraventions against the city ordinances. A. Dig City Laws, 1830, page 63.

Besides these salutary restrictions on grog-shop keepers, there exists a penal statute of the State. The Act approved 7th April, 1832, sec. 7, page 167, provides that no person shall be allowed to keep a grog or tipling-shop without previously obtaining a license from the Police Jury or city corporation, under penalty of being criminally prosecuted and being fined not more than $500, and in default of paying the fine and costs, of being imprisoned not more than four months.

It becomes then the duty of the District Attorneys throughout the State to cause to be arrested and tried all grog-shop keepers who have not obtained a license as aforesaid.

The Mayor and the Recorders, as ex-officio Justices of the Peace, may certainly exercise the power of arresting all persons found in contravention of the law.

This court therefore considers that the tax of $315, assessed by the Common Council upon all drinking houses, is fully authorized by law. Also that this tax, being uniform upon all similar establishments, is constitutional; that it was passed by the Council in the manner and form prescribed by law, and that it is payable by every grog-shop keeper', at any period of the year, on his being found not provided with the license required by law.

In icgaid, however, to 1l.e right v.hieli is chimed ly the city authorities to c'ose summarily the doors of drinking houses which are not licensed, this proceeding being a hard one, and derogatoiy to common right, requires for its justification to he supported by an express provision of law.

The statutes have given to the city against the refractory grog-shop keepers several remedies: first, by fines imposed; second, by suits for the recovery of the tax, and finally, by criminal prosecution.

Tne cily has by law the right of closing the doors of all theatres, ball-rooms, and other places of public exhibition, but nowhere in the statute books is to be found a provision for the application of this measure to grog-shops. For the better efficiency of the police in regard to those establishments, many of which are clens of murderers, rioters, drunken slaves, and clandestine gambling hells, it would probably be desirablo that this power be vested in the City Council.

The corporation, a; mere creature of the law, cannot exercise a power deroga-tord to any common right of citizens except by express grant from the sovereign power of the State.

The plaintiff has claimed no damages, and it is evident that, being himself an offender of the law for not taking a license, he could have claimed none.


text:
    J. D. Denegre v. George Milne & Co.
    The remedy by attachment does not embrace cases of prospective conditional and contingent liability ; it must be confined to cases where, in addition to the other requisite circumstances, there is an ewisUng debt) although the period of its payment has not arrived. Therefore an attachment will not be maintained against the property ot the drawer of a bill of exchange until its maturity, although he may have suspended payment before the attachment j for, until maturity, the drawer is not the unconditional debtor of the holder.
    The expression “ acceptance waived” in a bill of exchange dees not strip the instrument of the character of a bill of exchange, or deprive its signer of the character and rights of a drawer.
    Article 2049 of the Code, whereby “ debts due by the insolvent shall be deemed to be due, although contracted to be paid at a time not yet arrived,” does not reach conditional obligations.
    from the Fourth District Court of New Orleans, Reynolds, J.

      W.O.Denegr e, for plaintiff.

      J. W. Duncan, for defendants and appellants.
   Slidell, O. J.

The plaintiff is holder of a bill of exchange of the following tenor:

Exchange for $5,000. Cincinnati, October 30, 1854.

Twelve days after sight of this first of exchange (second unpaid), pay to the order of Keys, Malfby & Co., in current funds, five thousand dollars, value received, and charge the same (acceptance waived) to account of

GEORGE MILNE & OO.

To Benoist, Shaw & Co., New Orleans, La.

endorsed.

Pay to the order of J. D. Denegre. KEYS, MALTBY & CO.,

Per pro. James D. Denegre, J. Noel.

On the face of the draft is written, “ November 8, 1854,” which seems to be the date of its exhibition to the drawees for the purpose of fixing its maturity. On the 23d of November, being twelve days, with days of grace added, after sight of the bill, it was protested for non-payment, and notice was mailed to the drawees on the same day by the notary.

On the 15th of November, 1854, nine days before the maturity of the bill the plaintiff obtained a writ of attachment against George Milne & Co., alleging in his affidavit that they were indebted to him in the sum of $5,000 not yet due ; that they resided out of the State, had failed and were insolvent; that they had property in the hands of Benoist, Shaw & Co., and were about to remove it out of the State before the debt would become due. On the following day, a vague petition was filed, in which an indebtedness of $5,000 by defendants to plaintiff, as holder of the bill is alleged, followed by a prayer that the attachment be maintained. On the 24fch of November, the garnishees answered that they had in their hands at the service of the attachment, a cash amount of $1,824 21, to the credit of the defendants, and acceptances of various parties transmitted to them, by the defendants, for collection, amounting to several thousond dollars, and also acceptances to the amount of several thousand dollars received from the defendants on the 16th and 18th of November. They state that they have been since garnisheed by other creditors.

The defendants excepted to the suit as premature, and took a rule to set aside the attachment on the ground, that the affidavit was untrue, and also that they were sued as drawers of a bill which had not matured at the date of the attachment, and that there existed at that date no such indebtedness as authorized an attachment.

At the trial it was proved, that George Milne & Go., brokers at Cincinnati, suspended payment there on the 14th of November, 1854, and on the 22d of the same month, made an assignment of their partnership assets to a trustee, selected by themselves, in trust for their partnership creditors, the surplus, if any, to be returned to the grantors. At the date when the witness testified, (January, 1855,) they -were reputed insolvent.

The District Judge dismissed the rule, overruled the exceptions, and gave final judgment for the plaintiff, from which the defendants have appealed.

It is a familiar doctrine in our jurisprudence, that the remedy by attachment being harsh and extraordinary, is to be construed strictly.

If this doctrine be sound with regard to the remedy of attachment for a debt due, a fortiori does it commend itself to an our approval, where the remedy is invoked for a claim not due — a remedy granted by our Statute of 1826, but which, so far as we are aware, is without precedent or parallel in any State of this Union. In speaking of the similar Statute of 1817, Matthews, Justice, observed : “ In ordinary cases of attachment founded on debts due, as the remedy does not conform to the usual course of legal proceedings, which requires defendants to be cited before judgment, courts of justice always insist on strict pursuance of a law which grants such remedy ; and it appears to us, that the necessity of requiring this strictness of pursuit is much more'urgent in a case like the present, where a recovery is sought of a debt not due at the time of obtaining the writ. The section of the Act under which it was issued, is certainly severe in derogating from the customary principles of jurisprudence ; and ought therefore to be confined within the narrowest limits which its phraseology will permit.” See also Rusell v. Wilson, 18 La. 370.

Approaching the interpretation of the Statute of 1826 in this spirit, we are of opinion the remedy it confers, must be confined to cases where, in addition to the other requisite circumstances, there is an existing debt, although the period of its payment has not arrived — debitum in prasenti, sobendum in futuro — an existing absolute liability to pay at a future time ; and that the Statute does not embrace cases of prospective conditional and contingent liability.

The germ of this interpretation is found in Taylor v. Crane, 13 La. 64. By our Civil Code, a security may, even before making any payment, bring a suit against the debtor, to be indemnified by him, when the debtor has become a bankrupt or is in a state of insolvency. Art. 8026. An endorser sought this indemnity by a proceeding of attachment, alleging that he was the defendants’ accommodation endorser on a note not yet due and held by a third person, and that the maker was about to.remove permanently from the State and take away his property. The attachment was set aside.

After this came the ease of Harrod v. Burgess, 5 Rob. 449. The defendants were endorsers of a note not yet due, the maker of which was insolvent and had left the State, and the holder took out a writ of attachment against the endorsers, alleging that they would be ultimately liable, and his apprehension that the endorsers would dispose of their property and leave the State. The attachment was held unlawful, because the obligation of the defendant was dependent on several contingencies. It was possible the maker might pay. If he did not, the plaintiffs were bound to make a demand of the maker and notify the defendants. The omission of either would be fatal to the plaintiff’s rights. The remedy, said the court, is a harsh one, and the plaintiffs must be held to it strictly.

It is clear that in the present case, the defendants were not the unconditional debtors of the plaintiff at the date of the attachment. Their obligation was conditional and contingent. It depended upon future events, which might or or might not happen, the non-payment of the bill by the drawees, protest, and seasonable notice of non-payment to the drawers.

The court below based its ruling upon two considerations: “That in the body of the draft, acceptance is waived, and that the defendants have become insolvent.”

We do not consider the expression, “acceptance waived,” as stripping the instrument of the character of a bill of exchange, or depriving its signers, George Milne & Go,, of the character and rights of drawers of a bill of exchange. These were merely qualified, and to this extent; the.insertion of those words, created between the drawers and the payee, and those subsequently taking the bill, an agreement that the drawees should not be required to accept the bill upon its sight. Without these words, it would have been the. holders right to insist upon an acceptance upon presentment, protest the bills, if acceptance were refused, and take his immediate recourse against the drawers • with them, he had only the right to exhibit the bill for sight in order, to fix the date of'maturity, which was done, and was bound to wait until the maturity for payment by the drawees, at which time the drawer engaged it should be paid by the drawees. Upon failure of payment, protest and notice, the liability of the drawers, which was previously conditional would, in general, become absolute. No adjudged case, militating with this view of the rights of those parties has been referred to by the District Judge, or cited in argument here by the plaintiff; and we are satisfied that the construction we give would be in accordance with the understanding of men of business, and meets the understanding of the parties themselves when the bill was drawn and negotiated. The validity of the instrument as a bill of exchange; its essential character as a bill of exchange, are not destroyed by such a qualification. It is still a request to the drawee by the drawer, to pay a sum of money to the payee or his order, absolutely and at a time mentioned in the bill.

Then, as to the other reason given by the District Judge, “ that the defendants have become insolvent.” Upon this, we observe, that if we are to take the expressions literally, it is too clear to require argument, that an event occurring subsequent to the attachment, could not retroact so as to give the attachment validity. An attachment must stand or fall according to the state of facts existing at the date of its issuing, and cannot be cured by a subsequent event. Read v. Ware, 2 An. 498. Rlanchard v. Grousset, 1 An. 98. Black v. Zacharie, 2 Howard, 510. If, however, the District Judge meant to speak of the insolvency as occurring before the attachment, we have to observe that the evidence shows merely a suspension of payment, and at the utmost, authorizes only an inference of actual insolvency at_the time of the attachment, not a technical insolvency in the sense of our Code, Art. 2049, whereby “ debts due by the insolvent shall be deemed to be due, although contracted to be paid at a time not yet arrived.” See 10 Rob. 583. Besides, the rule of the Code does not reach to record conditional liabilities ; and it is also clear that even the bankruptcy of the drawer does not dispense the holder from making presentment for payment to the drawee, protesting and giving notices to the bankrupt or his assigns, if they have chosen. Story on Bills, §305. Chitty, 369.

It will be observed, there is no pretence in this case that the defendants had no funds in the hands of the drawees, or had no right to draw.

It is therefore decreed, that the judgment of the District Court be reversed; that the attachment be dissolved, and the suit dismissed as in case of non-suit. The plaintiff to pay costs in both courts.


author: Spoitord, J.

text:
    Barbara Ann Wilson v. L. R. Marshall, et al.
    The title to lands sold for taxes should show on its face, or by reference to accessible public documents, a description of the land sold and its location, so that it may be identified, else the title is invalid.
    A title, without such description, and unaccompanied by possession, cannot be cured by time.
    To acquire a valid title by the prescription of acquisition, or by usucaption merely, a possession continuous, uninterrupted, peaceable, public, and unequivocal, for thirty years, is requisite; and this possession must be, at least in its commencement, a corporeal possession.
    "With a title translative of property, and aided by good faith, a possession of like character for ten years, will suffice against a real owner resident in the State.
    Art. 3485 O. C., which declares that if a plaintiff, after having made his demand, abandons or discontinues it, the interruption of prescription shall be considered as having never happened, — contemplates a voluntary, intentional, active abandonment. A judgment of non-suit, in consequence of the non-appearance of the plaintiff or his counsel, when called, is not such an abandonment.
    If prescription be interrupted by suit, the interruption continues during the pendency of the suit.
    from Ninth District Court of Concordia, Frn'rar,

      G. 8. Sawyer, for plaintiff and appellant:
    Eirs.t. — That an intestate estate is not vacated for want of acceptance, but for want of some one known who can accept.
    Second. — That there can be no such' thing as a vacant estate, where there are forced heirs known, present'or represented.
    Third. — That the property of the estate of the parent vests by law in the child at the moment of the death of the deceased; that the said heir is seized of it of full right, and necessarily transmits it to his successor, by the provisions of both codes.
    Eor the point last stated, in addition to the authorities cited, we cite Partid. 6, 1. 13, Ileinec. Prelec, 2 vol. p. 70; 7 La. Rep. 222.
    Fourth. — -That prescription cannot run against an estate belonging to minor children of the deceased, as it would then run against the rights of a minor, and not those.of succession as a fictitious being,-since the succession in that instance, and the heirs are one and the same. — Merlin Rep.‘verbo hered. No. 1, 23; 3 Toul., pp. 93, 95, Nos. 80, 83; Vaz 1, Nos. 72,-73,-p. 77; see supra, pages 3, 3,4. . '

      Fifth. — Tho fictitious being of the Old. Code does not necessarily imply that the estate is vacant, or that prescription can run against it in every instance ; and when applied to estates belonging to forced heirs means nothing.
    It will not be protended that prescription can commence to run in favor of one holding the property of another, after judicial demand to give it up, or that he can recover pay for improvements made subsequent to that time. Hence, we conclude that the plea of prescription in this case cannot be sustained, and that tho defendants cannot recover, and we ask that the judgment of tho court below may be reversed, that the judgment of this cause be in our favor, giving us the lands claimed, and fruits or rent, at the rate of one thousand dollars a year, since the date of judicial demand in 183G. The evidence of Alexander clearly shows that the whole tract, with the exception of a few acres, has been in cultivation since that time; it is worth five dollars per acre ; hence, for two hundred and sixty odd acres, one thousand dollars per year is very reasonable. We hope tho question of rents and improvements will be settled by this court, as it is a pure question oflaw.

      £. U. Harr, on the same side.

      Btaey & Sparrow, for defendant.
   Spoitord, J.

The plaintiff, as sole surviving heir of John Wilson, deceased, claims of the defendant a tract of 301 arpents of land in the parish of Concordia, by virtue of a certificate of confirmation granted to her ancestor on the 11th May, 1811.

The defendant sets up a title to the same land through divers mesne conveyances from one Jonathan Thompson, who is said to have acquired all the interest of John Wilson in the said tract by virtue of two sales for taxes, made by the Parish Judge of Concordia, one on the 9th of January, 1813, and tho other on the 8th of May of tho same year. A plea of prescription is also interposed in bar of the plaintiff’s action.

The heirship of the plaintiff and the validity of the mesne conveyances from Jonathan Thompson to Lenin JS. Marshall appear to be undisputed, and the cause has been argued solely upon the questions whether the tax sales effected a divestiture of Wilson’s title, and whether the defendant has acquired a title by proscription.

The defendant alleges that the land claimed was soid to Thompson for taxes assessed against it in the name of John Wilson, for the years 1811 and 1812. In support of that position he has adduced in evidence from the archives of the State, duly certified copies of the tables of apportionment of taxes for the parish of Concordia for those years, which by tho 4th Section of the Act of the Legislature of tho Territory of Orleans, approved April 10 th, 1807, were required to be made out by the parish judge from the returns of three appraisers, to be appointed according to a previous section of the same act. (Sess. Acts, 1807, p. 140.)

A copy of the report of the three appraisers for the year 1812 has also boon offered in evidence.

Upon the apportionment roll of 1811 the name of John Wilson figures as the owner of 320 acres of land in the parish of Concordia, appraised at $700, against which is assessed the sum of $2 05.

On the roll of 1812 he appears as the owner of 400 acres, appraised at $800, on which the sum of $2 60 is assessed. The number of acres and the valuation correspond with the tableau of the appraisers for the same year.

On the 9th of January, 1813, James Dunlap, under his official signature as judge of the parish of Concordia, executed a deed to Jonathan Thompson, in which he recited that on the day of the date thereof he “ did expose to public auction a certain tract or parcel of land situate in the parish aforesaid, on lake Concordia, about eight miles from the town of Yidalia, containing three hun-dí ed and twenty acres, be the same more or less, being the same tract of land returned by the appraisers for the year 1811, in the name and as the property of a certain John Wilson, for taxes due on said land for the year 1811, amounting to $4 11, as well as the further sum of $10 for the costs and charges in making the seizure and sale of said tract of land for the taxes aforesaid, agreeably to the provisions of the statute in such case made and provided, at which said auction the said Jonathan Thompson bid the sum of $14 11 for the said tract of land, and no person bidding more, the same was struck off to him the said Jonathan Thompson.”

The original deed of the land to Thompson has been produced, and appears to have been duly recorded in the Parish Judge’s office, on the 30th January, 1813.

Another deed of similar form was executed on the Sth of May, 1813, by the same person, styling himself “ late Judge of the Parish of Concordia, and tax-collector therein,” purporting to convey to the same vendor “ a tract of land on lake Concordia, about six miles from the town of Vidalia, containing 400 acres, more or less, being the same tract of land returned by the appraisers for the year 1812, in the name and as the property of John Wilson, for the taxes due on said land for the year 1812, viz : $3 90, as well as $10 costs and charges,” which land was adjudicated to Thompson, as the last bidder, for $13 90.

This deed was recorded in the office of the parish judge on the 15th January, 1824.

There is no proof of actual possession, under these deeds, by Thompson or any of his vendees until the year 1881. Ever since then the defendant or his authors have been in possession.

A formidable array of objections have been made to these deeds as evidence of title in the defendants.

The view we take of the case makes it unnecessary to notice more than one of the objections.

It is asserted, and correctly asserted, that the deeds do not give a sufficient legal description of the land they purport to convey.

When the power of the government is interposed to divest private titles to real estate, it is necessary, under pain of nullity, that the estate sought to be divested should bo described so that it may be identified. The title should show on its face, or by reference to accessible public documents, what is taken from the owner and transferred to the purchaser, especially when, as in this case, the purchaser is not put in possession. Carmichael v. Aiken, 13 L. R. 211; Lyon v. Hunt, 11 Ala. 295; Hughey v. Barrow. 4 Ann. 252; McGary v. Dunn, 1 Ann. 338; McManus v. Stephens, 10 Ann.; Alexander v. Walker, 8 Gill, 239 ; Raymond v. Longworth, 4 McLean, 481; S. C. 14 How. 76.

Now, the deeds of the parish judge to Thompson do not, either by their own terms or by reference to other titles, enable us to say that any specific parcel of land was taken from Wilson and conveyed to Thompson. One of them speaks of “ a certain tract of land situate in the parish of Concordia, on lake Concordia, about eight miles from the town of Vidalia, containg 320 acres, more or less the other deed, which it is protended, conveyed the same property to the same vendor, a few months later, describes it as “ a tract on lake Concordia, about six miles from the town of Vidalia, cóntaining 400 acres, more or less.” Both deeds state that the land was “ the same returned by the assessors of taxes, in the name and as the property of a certain John Wilson/” but a reference to the assessment rolls and to the return of the assessors for the year 1812, does not furnish any better clue to the locality of the land, or even as good a clue, as the deeds themselves; for those documents are silent as to its proximity to Lake Concordia and its distance from the town of Vidalia.

There is nothing of record to fix the latitude, longitude and dimensions of the tract conveyed to Thompson; no reference to surveys or surveyor’s marks, to primitive or recorded titles, to natural limits, or to circumjacent properties; nothing to indicate where the new title begins and where it ends; nothing to enable Thompson to put his foot on a particular spot of ground and say, by virtue of the parish judge’s deeds, “this was Wilson’s, and now is mine.”

And there is no statute of repose, for such a title as this, unaccompanied by possession; not being translative of property in any individual thing, it labors under a defect which time cannot cure.

As the defendants, by claiming under and through John Wilson, have admitted the validity of his original title, and as the heirship of the plaintiff is established, she must recover the land, of which her ancestor was not legally divested by the tax sales, unless the defendant has a valid title by usucaption, or the prescription of acquisition.

Possession, animo domini, forms the basis of this species of prescription ; it must be, at least in its commencement, a corporeal possession, and must be continuous, uninterrupted, peaceable, public, aud unequivocal. O. 0., 3453, 34C6, 3407.

Such a possession, without any title whatever, for thirty years, (a reservation in favor of certain persons not sui jurist will enable the possessor who invokes the plea of prescription to hold dominion over the land against all the world. With a title translative of property, and aided by good faith, a possession of like character for the period of ten years, will suffice as against a real owner resident in the State. C. 0. 3465, 3442, 3437, 3438.

It does not appear that Jonathan Thompson, or any of his vendees down to John S. Alexander, ever set foot upon the land in controversy, or had even a civil possession. It is in evidence that Alexander, the last of the warrantors cited in the cause, went into actual possession, and under a title on its face trans-lative of property, on the 1st December, 1831, the date of his deed by authentic act from Monroe Rabitaille ; and there is nothing to impeach his good faith at that time.

Giving the defendants the benefit they claim under the Article 3492 of the Code, which declares that prescription runs against a vacant estate, and treating the succession of John Wilson as vacant, prescription did not begin to run in favor of Alexander until the 1st December, 1831, because the authors of his title had no possession to add to his own.

Citation to answer the present suit was served upon the curator of the defendant, Marshall, on the 6th May, 1852. The plaintiff has always been a resident of the State. The defendant then has acquired a valid title by the prescription of ten years, unless it has been interrupted by some cause pointed out by law.

The plaintiff says that there has been a legal interruption, because her tutor, Gurry, instituted a suiton her behalf for the land in question, and caused John 8. Alexander, then the possessor and now a warrantor, to be cited to appear before the District Court of the Parish of Concordia on account of the property, which citation was served on the 3d June, 1836.

Subsequently, having become of age, she was substituted as party plaintiff to that suit, in her own right, and caused Alexander to be cited to answer her demand on the 5th June, 1838.

In 1842, the suit was tried by a jury, who rendered a verdict in favor of the defendant, Alexander. On the 2d June, 1842, the plaintiff prayed for a new trial, on the ground that there was misdirection of the court to the jury, and that the verdict was contrary to law and evidence. On the same day a new trial was granted by consent of the defendant’s counsel.

No further steps appear to have been taken in the cause until the 12th June, 1843, when the following judgment was signed: “The plaintiff in this cause, and his counsel, having been duly called to appear and prosecute his suit, and neither the said plaintiff or his counsel, or any other person in their behalf, appearing, it is ordered that the cause be dismissed as of non-suit, and at plaintiff’s costs.”

No evidence was offered by either side to explain the abrupt termination of the former suit, unless the poverty of the plaintiff at that time is a circumstance upon which a reasonable inference may be based.

The defendant insists that the interruption caused by the former suit must be considered as having never happened under the Article 3485 of the Code. “If the plaintiff in this case, after having made his demand, abandons or discontinues it, the interruption shall be considered as having never happened.”

But the weight of authority upon the construction of this Article of the Code, is that it contemplates a voluntary, intentional, active abandonment. Now, the plaintiff’s counsel did not dismiss the suit or consent to its dismissal. She lived in a remote part of the State, and the mere absence of herself and her counsel at a term of court when her case was called, is insufficient without further evidence, to convict her of having abandoned or discontinued her demand. Prall v. Peets' Curator, 3 L. R. 282 ; Dunn v. Kenney, 11 Rob. 250 ; Rorwood v. Devall, 7 Ann. 523 ; Mechanics' and Traders' Bank v. Theall, 8 Ann. 469. We adhere to the interpretation given by these decisions to Article 3485 of the Code, and the case of Bell v. Elliott, 8 Ann. 453, so far as it con* flicts with them, must be considered as overruled.

The effect of the former suit, then, was to interrupt in 1836 the prescription which commenced to run in 1831. And it was impossible for prescription ta run whilst the suit was pending. “ Ce n’est pas seulement pour le temps an* térieur a la demande, que cette demande interrompt la prescription, c’est aussi; pour tout le temps que durera l’instanco; en soit qu’une prescription nouvella ne pourra pas recommenccr contre lo demandeur avant le jour oú sera rendu> le jugement par lequel cette instance se terminera.” Marcadé;. de la prescrip* tion, p. 124.

So, if a new prescription begins to run from the day of the dismissal of the former action in 1843, the requisite period of ten years had not elapsed when the plaintiff instituted her present demand in 1852.

She must have judgment for the land claimed in her petition. But we are-unable upon the evidence before us to settle definitely the question touching rents, improvements, and the liabilities of the several warrantors as between themselves. It does not appear how much of plaintiff’s tract was in cultivation each year, nor what the rent was worth. The defendant, Marshall, was a possessor in good faith, under a just title, and the plaintiff can only recover rent from the time she brought the present suit. Before being put in possession she should pay a fair valuation for the improvements made upon her land by Marshall and his authors, for which he should recover against the plaintiff. The nature, extent and value of the improvements are not clearly shown.

Marshall bought of Warren, Warren of the Mechanics' and Traders' Bank, and the Bank at sheriff’s sale, under a special mortgage from Alexander. These parties have been called in warranty successively. But in each of these sales the tract of land in question, which forms a small part of a plantation called the Hermitage, was sold with other property, in mass, for a round sum, — so that it becomes impossible, without further evidence, to tell how much each party evicted from this tract should recover against his warrantor.

It is therefore ordered, that the judgment of the District Court be reversed; it is further ordered and adjudged that the plaintiff bo decreed to be the owner of the tract of land described in her petition; and it is ordered that the cause be remanded to the District Court for further proceedings according to law, to ascertain the sum due to the plaintiff by the defendant, Marshall, for rent, and also the sum due the said defendant by the plaintiff for improvements made upon the land by himself and 1ns authors, and also to establish the rights of the defendant Marshall against his warrantors, and of the several warrantors as between themselves ; it is further ordered that no writ of possession issue until a final decree herein, and that the cost of this appeal be borne by the defendant, Marshall — the other costs to abide the determination of the suit.

Re-hearing refused.


author: BncnANAN, J.

text:
      N. Stewart, Executor, v. Jane McCalop, wife of Paul Daigre.
    A married woman is incapable of renouncing prescription, without the authorization of her husband.
    PPEAL from the Sixth Judicial District Court, parish of East Baton Rouge,
    Ü. Robertson, J. Marr & Graves, for plaintiff.

      Bunn & Herron, for defendant and appellant.
   BncnANAN, J.

This is a suit, instituted on the 14th April, 1862, upon an account with eight per cent, interest added, running from March 10th, 1841, to March 14th, 1850, and amounting, in principal and interest, to $11,179 50. The defendant pleads the general issue, res judicata, and prescription.

The evidence in the cause introduced by plaintiff shews that the note of $2,532 42 made by defendant in favor of Jamies McGalop, on the 20th March, 1843, and payable three days after date, was given in settlement of the indebtedness of defendant to said McGalop at the date of the note — an indebtedness arising from loans or advances of cash made by the latter to pay the debts of the former. This being the case, we think that all the items, of the account sued upon, which are anterior in date to that note, must be rejected, unless it be shewn that they were omitted in that settlement, as many of them are stated to be in the account itself. Upon this subject, however, there is a total want of proof in the record. We therefore reject the items of $42 88

856 46 ■

52 45

968 31

1,586 94

Amounting in all to $3,002 04

which are in date antecedent to the settlement between McCalop and his niece, evidenced by the notarial act of mortgage from the latter to the former.

The next question is, whether the note of $2,532 42 is barred by prescription. It was due, as we have seen, (including the days of grace,) on the 26th March, 1843.

On the back of the note is this endorsement:

I acknowledge this note to be just and true, and will not take advantage of this note in law or prescription in law, and I will take no advantage on the mortgage that is given on this note in the parish of East Baton Rouge, in the State of Louisiana, to my uncle, James McCalop, this, the 23d of October, 1848. Jane Daigke.”

On the same day, the 23d October, 1848, the defendant renounced the plea of prescription upon this note, by act before the Parish Recorder.

At the time of this double renunciation of prescription, more than five years had elapsed since the maturity of the note, consequently prescription was already acquired. It is urged, on the part of the defendant, that being a married woman, she was incapable of renouncing prescription without the authorization of her husband; and that no such authorization appears either for the endorsement on the note or the authentic act in question.

This plea is supported by the article 3425 of the Civil Code, and by the case of McComas v. Green, 6th An., 121: The plaintiff’s counsel has endeavored to take this note out of the prescription of five years, inasmuch as it forms an item of an account; and relies upon the decision in Toledano v. Gardiner, 2d An., 779. That was the case of a suit upon a factor’s account with a planter, in which were items of acceptances for the accomodation of the planter. The court properly held, that as the suit was not upon the bill itself, but upon the contract for reimbursement of advances, the bill being merely a voucher, the prescription of five years did not apply. But this is not an analogous case. This suit is instituted in part upon the note with arrearages of interest neaVly equalling the note in amount. It is made one of the items of an account, it is true. But it is incorrectly so; for we have seen that this note was a settlement of all preceding indebtedness. Besides, the account does not purport to be (as in the case cited) an account current, composed of items debited and credited as they occurred, nor even an account kept at all by McCalop. It merely purports to be an account made out by Me Galop’s executors after his death, partly it would seem from isolated vouchers which came into the executors’ possession, and partly without formal vouchers, and upon such information as the executor had gathered.

The parol evidence of acknowledgment of this note is liable to the same objection as the written evidence. The District Judge did not err in rejecting the item of $4,500 67, being the amount, in capital and interest, of defendant’s note of $2,582 42.

The remainder of the account consists of the following items:

“ Defendant’s note to T. JL. Smith, paid by McOalop, Slst March, 1843, $244 57
“ Instalments on defendant’s bond to the City Bank, paid at sundry times from May 1845 to 1849, .... 556 00
499 00
285 67
448 00
603 00
“ Cash to defendant, May 14th, 1844, - - - - 50 00
“ State taxes for 1845, paid 31st December, 1845, - - 25 71
Malta's account for 1848, paid March 6th, 1849, - - 782 95
“ Cash paid Ryburn, for corn, March 14th, 1850, - - 08 00 with interest calculated on each item, to 1st January 1851.

There is an attempt to prove a lumping acknowledgment of the account sued on: but it is not satisfastory to us. We will therefore proceed to examine the evidence adduced in support of each of the items above detailed.

The payment of Ryburn’s account for 68 barels corn by McOalop, for account of defendant, is proved by the testimony of Lesage.

The bill for State taxes for 1845 — $25 71 — is proved by Morris, Tax Collector. The same witness proves also a payment of $13 86 for parish taxes of 1845, not charged in the account sued on.

Malta’s bill for $782 95 is proved by Malta.

The instalments on the City Bank bond are proved, as charged.

The items of Smith's note $244 57, and cash lent $50, are not proved.

The nature of these items indicates that McOalop was the general agent or charge d'affaires of his niece, and it appears reasonable to allow him legal interest upon the cash advances thus proved, from the date of payment, under 'article 2994 of the Civil Code.

It is therefore adjudged and decreed that the judgment of the Distinct Court be reversed ; and that plaintiff and appellee recover of defendant and appellant, four thousand five hundred and eight dollars and seventy-two cents, with legal interest on the sum of three thousand two hundred and sixty-eight dollars and thirty-three cents from the 21st May, 1855, until paid, and costs of the court below; the costs of the appeal to be paid by appellee.


author: Spopford, J.

text:
    Bonner & Smith v. Chas. A. Brown.
    Where the recital in an attachment bond, showed the suit to have been brought in the Commercial Court, which court was not in existence at the date of the bond. Held,: That the error is fatal.
    A party’s appearance by attorney to move for the dismissal of an attachment and to except to the jurisdiction of the court over him, cannot be construed into a submission to the jurisdiction.
    from the Fourth District Court of New Orleans, Reynolds, J.

      Eggleston, for plaintiff.

      Olcott, for defendant and appellant.
   Spopford, J.

This suit commenced by an attachment against the property of the non-resident defendant.

The defendant was never personally cited.

A curator ad hoc was appointed to represent him.

Afterwards, to wit: on the 22d March, the defendant appeared by his attorney, F. Mount, and took exception to the suit and prayed for its dismissal because there was no service of citation on the defendant and no seizure of effects of the defendant; at the same time, he took a rule on the plaintiffs to show cause why the attachment should not be set aside, because the recital in the bond showed the suit to have been brought in the Commercial Court, which said court was not in existence at the date of said bond.

On the trial of the exceptions and rule, which were taken, submitted and decided together, the attachment was properly dissolved for 'the fatal error in the bond, but the exceptions to the jurisdiction were dismissed, and the defendant was ordered to answer over, because, as the District Judge stated in his reasons, “ the exceptions were cured by the appearance of the defendant by his attorney F. Mount."

But hitherto, the attorney had only appeared for the purpose of excepting to the jurisdiction of the court and taking a rule to dissolve the attachment; and the attachment having been dismissed, the exception should have been sustained. The defendant was not in court by seizure of his property, by personal citation, or by a voluntary appearance to answer to the suit.

A party’s appearance by attorney to move for the dismissal of an attachment and to except to the jurisdiction of the court over him, cannot be construed into a submission to the jurisdiction.

As the defendant afterwards answered under protest, reserving his plea to the jurisdiction upon which he still resists, we think he is entitled to relief.

It is, therefore, ordered that the judgment of the District Court be reversed, the exception to the jurisdiction sustained, and the suit dismissed, the plaintiffs paying costs in both courts.


author: Spopfokd, J.

text:
    The State of Louisiana, appellee—v. John Denny et als., G. F. Oldis and Dorothy Reynolds, widow of, &c., appellants.
    "Where an accused, who had been admitted to bail absconded before trial,- and a judgment nisi was entered against the sureties upon his bond, and he is afterwards retaken under a capias and imprisoned : Held, that the application of the sureties within ten judicial days to hare the judgment msi against them set aside — there being no suspicion of collusion to defeat the ends of justice-should have been granted; and the prisoner should have been brought into Court to enable them to make a formal surrender of him according to law.
    from the First District Court of New Orleans, Robertson, J.

      Morse, Attorney General, for the State :
    The surety on a recognizance in a criminal case, after the forfeiture of the recognizance has no right to surrender the principal in order to exonerate himself from liability. Johnson, 3 Oush. 454.
    In debt on a recognizance no defence after ■ forfeiture, that the defendant was arrested upon a search warrant issued upon the same indictment, &c., &c.
    After forfeiture, but before suit, it would not answer to surrender principal. People v. Andble, 7 Hill 33. IJ. S. Dig. vol. 1, No. 47, p. 425 and 81. Deunad v State, 2 Kelly, 137, same vol. Dig. 24. State v. Da Oesp, 1 Bailey, 410, 420. Stegers v. State, 2 Blackford 104,1 Chitty 104.

      Randall Hunt, for defendants and appellants:

      lames Warner was indicted, jointly with John Denny and Wm. Spencer, for larceny, and gave bond in the sum of $1000, with O. F. Oldis and Daniel

      Reynolds, as his sureties, to appear at the First District Court of New Orleans, to answer to the charge.
    Ilis trial was fixed for the 9th day of February, 1862. It was commenced on that day, and continued over to the next day, the 10th of February. Warner appeared in Court, and was present during the proceedings had in his case on the 9th, but did not answer or appear, when he was called in Court, on the 10th day of February. Reynolds and Oldis, his sureties, did however appear; and they informed the Court that they believed Wan'net had run away. The District Attorney immediately moved that the bond of the accused be called and forfeited, and that a capias be issued against Warner, This was done. Judgment was rendered on the 10th day of February, 1862, against Q. F. Oldis and Daniel Reynolds, in solido, for the sum of $1000, for having failed to produce in Court James Warner, according to the condition of their bond; and ten judicial days were allowed them to set aside the judgment, upon complying with the requisites of the Act of March 11,1837. At the same time it was ordered, “ that a capias issue against said Warner.” Several days after this, Warner was arrested by virtue of the capias thus issued on the motion of the District Attorney, and was lodged in safe custody in the Parish Jail.
    On the 21st day of February, 1852, within ton judicial days after the rendition of the judgment, and before it was signed, Oldis and Reynolds, the sureties of Warner, appeared in open Court, and upon showing to the Court that their principal, Warner, had been arrested, and was then lodged in the Parish Prison, in custody of the Sheriff of the Parish of Orleans, moved, 1st — that Warner should be brought into Court, in order that his sureties might formally surrender him; and 2d — that the judgment against them should be set aside, and that they should be discharged from further liability on their bond. But the Court refused to grant an order to enable them formally to surrender their principal, Warner, or an order to set aside the judgment against them, and to discharge them from any further liability on their bond; and subsequently signed and made final the judgment which had been rendered against them on the 10th day of February, 1852. From this judgment the sureties have appealed.
    The statute of 1837, provides that a judgment of forfeiture on a bond or recognizance in a criminal case, for the failure of the accused to appear and of the securities to render him, may, at any time within ten judicial days, after notice of judgment to the parties, in the parish of Orleans, be set aside, by the appearance, trial and acquittal, or conviction and punishment of the accused, and that no such judgment shall be rendered, if it bo proved to the satisfaction of the Court that the accused was prevented from attending by physical inability. — Sec. 1. It provides further that “ that any surety may be relieved from responsibility, by making a formal surrender of the defendant or party accused to the sheriff or his deputy in open Court, or within the four walls of the prison of the parish, and not otherwise.” — -Sec. 2, par. 2, p. 99.
    The motion to set aside the judgment of forfeiture in this case, was made within the time allowed by law; and upon good cause shown, it should have been granted.
    The offer formally to surrender in open Court, the accused, who was in the hands of the sheriff and within the four walls of the prison of the parish, and who could therefore have been held to answer to the indictment against him— was a good cause in law.
    The object of the law in respect to the bond, was to secure a trial of the accused, without inhumanity or punishment before conviction, and not to extort money from an innocent surety, in a casé where a trial could be certainly had. In this case the forthcoming of the prisoner was secured. He was in jail, ready to await the order of the Court, and obliged to submit to such punishment as he might be legally sentenced to undergo.
    “One object of the recognizance,” said Oh. J. Savage, of new York” “is to cause the accused to appear and answer the charge, and to submit to such punishment, if any, as shall be adjudged; if that object has been answered by his subsequent arrest, then the bail are discharged.” — 10 Wend. R. 435.
    “ The.object of a recognizance is not to enrich the treasury, but to combine the administration of justice with the convenience of a person accused, but not proved to be guilty. If the accused prove innocent, it would be unreasonable and unjust in government to exact from an innocent man a penalty intended only to secure a trial, because the trial was suspended in consequence of events which are deemed a reasonable excuse for not appearing on the day mentioned in the recognizance. If he be found guilty, he must suffer the punishment intended by the law for his offence, and it would be unreasonable to superadd the penalty of an obligation entered into only to secure a trial.” This is the language of Chief Justice Marshall, in speaking of the forfeiture of a recognizance where there was no design to evade the justice of the country. In that case, he observed, where “a man repairs the default, as much as in his power, by appearing and submitting himself to the law, the real intention and objects of the recognizance are effected, and no injury is done." 1 Brock. R. 25G. United States v. Feely.

    The Supreme Court of this State, in 1841, declared that the statute of 1837 should be liberally interpreted. “Its object was to secure attendance at Court of the persons accused of offences, to answer the accusations preferred against them; and it should be executed in a way that will attain the object, and not to punish parties in advance.” 19 L. R. 650. See also 1 Annual Reports, 267, 263.
   Spopfokd, J.

The accused having been retaken under a capias to answer the charge laid against him, and being within the four walls of the parish prison at the time the sureties appeared in Court to move that the judgment nisi against them be set aside; their appearance for this purpose having been timely, and within the ten judicial days, and there being no suspicion of collusion to defeat the ends of justice, we are of opinion that the the judge should have granted their request and ordered the prisoner to be brought into Court to enable them to make a formal surrender of him according to law. A reasonable construction of the 2d Section of the Act of March 11th, 1837, (Bui. & Curry 281,) does not limit the right of the sureties to make such a surrender of their principal and thus relieve themselves from responsibility, to the time prior to the forfeiture of the bond by a judgment nisi; at least where no prejudice can happen to the State, the object of the law may be achieved by a surrender within the ten judicial days after notice of such judgment. The State v. Cotton, 19 L. R. 650. The State v. Hamill, 6 Ann. 260. The State is rather desirous to bring offenders against the laws to trial and punishment, than to fill their public coffers by levying contributions upon sureties. Even when their liability has been fixed beyond the control of the Courts, the Legislature has been in the habit of relieving them, upon the subsequeut appearance and conviction or acquittal of the principal.

In this case, the refusal of the Court to grant the reasonable and timely request of the sureties prevented them from making a surrender of the accused,, and procuring an exoneretur. Upon the principal that no one should suffer-injury from the act of the-Court we think the sureties who have appealed from a judgment which was made final against them under such circumstances, are. entitled to a discharge.

It is therefore ordered and decreed that the judgment of the District Court against G. F. Oldis and Daniel Reynolds, as sureties on the appearance bond of James Warner, be reversed; it is further ordered and decreed that the State take nothing by its motion,