text:
    Crain and Jones v. M. D. C. Kane, Administrator.
    Where no bill of exceptions is taken to the refusal of the court to grant a continuance, the question cannot be examined by the Supreme Court.
    APPEAL from the District Court of Bossier. Bullard, J.

      Crain, for plaintiffs.

      Roysdon and Spoffard, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs, who are attorneys at law, claim compensation for professional services rendered to the defendant in the administration of the succession of her husband, and also in ten suits in which they acted as counsel of her husband or herself.

The answer is a general denial, and an averment that the plaintiffs agreed with the defendant’s husband to make no charge for any of the services alleged to have been rendered by them.

The case was submitted to a jury, who found for the plaintiffs the sum of $1500. The application of the defendant for a new trial was overruled; and she has appealed from the judgment rendered on the verdict.

Before the tidal of the cause the defendant moved for a continuance, on account of the absence of Maldin Johnson, one of her witnesses, and supported her application by an affidavit of her agent, in which he disclosed the facts the defendant expected to prove by the said witness. The judge refused the application, and ruled the defendant to trial. Her counsel now contends, that the continuance should have been granted, unless the plaintiff had admitted that the witness Johnson if present, would swear to the facts disclosed in the affidavit; and as no such admission was made, he asks that the case be remanded for a new trial. We are unable to grant this application. No bill of exceptions was taken to the opinion of the judge refusing the continuance. In consequence of this omission, we have no means of ascertaining his reasons for the course he pursued, and we are bound to presume that they were sufficient in law, and that the party acquiesced.

The necessity of a bill of exceptions in such a case has been more than once recognized by this court. Florance v. York, Hanna, garnishee, 4th Ann. 138. On the merits, the case involves mere questions of fact, and we are not prepared to say that the finding of the jury is manifestly contrary to evidence, or that the sum allowed is exhorbitant and out of proportion with the services rendered.

We do not therefore feel ourselves called upon to interfere with the judgment.

The judgment is affirmed, with costs.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    James Walling v. Mayor, &c., of Shreveport.
    A corporation is responsible for exercising, through its officers, in an unskillful and improper manner, powers vested in it by its charter.
    APPEAL from the District Court of Caddo, Bullard, J.

      Roysdon and Spoffard, for plaintiff.

      Crain, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff claims from the Mayor and Trustees of the town of Shreveport and Joseph Howell in solido, five hundred dollars damages, alleged to have been sustained by him in consequence of the cutting down of trees upon his land within the limits of the town, and of an attempt, on their part, to lay out a road thereon without giving notice or making previous compensation to him. He alleges that Iiowell acted in the premises as the agent and under the orders of the corporation, and has enjoined the corporation from proceeding any further in the construction of the’road. Howell answered, that he acted under the authority of the corporation. The mayor and trustees recognized his agency, and averred their power to run the road as laid out and in the manner pursued by them. They offered to pay the plaintiff such damages as might be assessed by the court, and prayed for the dissolution of the injunction. In a supplemental answer they alleged that, as a municipal corporation, they could not be liable in damages in the manner claimed.

The juiy, before whom the case was tried, found in favor of the plaintiff $25 damages, and that the injunction be perpetuated until the defendants proceed, according to law, in the opening of the road. The defendants have appealed from the judgment rendered on this verdict.

The act of incorporation of the town of Shreveport gives to the mayor and trustees within the corporate limits, all the powers previously exercised by the Police Jury of the parish of Caddo. They have, therefore, the power to lay out roads in that portion of the land under their jurisdiction, which is not laid out into streets ; but they must, in doing so, pursue the mode prescribed for the laying out of roads by police juries, by the act to provide further and more effectually for the police of public roads in this State, approved March 12,1818.

It is not pretended that the formalities required in the laying out of new roads have been complied with in this case, or that the indemnity due the plaintiff has been paid or even assessed. The case, as the records presents it, is that of a corporation exercising, through its officers, in an unskillful and improper manner, powers avowedly vested in the said corporation by its charter. It does not differ in principle from that of McGarey and Wife v. The City of Lafayette, in which the plaintffs recovered large damages from the city of Lafayette, because the agents of that corporation had executed, in an improper manner, the corporate power delegated to them. 4th Ann. 440. McLaughlin v. Second Municipality, 5th Ann. 504.

We understand the exception pleaded by the defendants to be applicable only to cases in which officers or agents of corporations do acts injurious to others, in the pursuit or accomplishment of objects not within the scope of the powers of the corporation. The distinction appears to us clearly stated in the case of Antony v. The Inhabitants of Adams, 1 Metcalf, 286.

Upon the defendants’ own averment, that they had power to lay out the road complained of, they do not come within the exception. We are of opinion that . , . there is no error m the judgment.

It is therefore affirmed, with costs.


author: Preston, J.

text:
    Police Jury of Bossier v. Corporation of Shreveport.
    The act of 20th of March, 1839, incorporating the town of Shreveport and giving the municipal authorities exclusive right to establish ferries across Red River, did not create a contract or vested rights in that corporation which the Legislature could not constitutionally change or annul.
    The act of 16th of March, 1848, entitling the Police Jury of the parish of Bossier, to a participation in the management of the ferry established by the town of Shreveport across Red River, and to share in the revenues thereof, is not unconstitutional.
    The prohibitions contained in art. 109 of the Constitution of Louisiana, and in art. 1, sec. 10 of the Constitution of the United States, apply only to contracts or vested rights of individuals or private corporations, and not to municipal corporations established for public purposes, which are entirely subject to the Legislative will, except so far as the rights of third persons may be affected thereby.
    Where the prayer does not ask for the amount claimed to be due in the petition, the court may, under the prayer for general relief, give judgment for the sum really due.
    APPEAL from the District Court of Caddo, Olcott, J.

      Lawson and Fort, for plaintiffs,
    contended: This was an action brought by the plaintiffs against the defendants to compel the defendants, by mandamus, to meet with the plaintiffs to fix the rates of toll to be charged at the ferry across Red River, within the limits of the town of Shreveport, and to recover of them the one-half of the revenues arising from the lease of said ferry, from the passage of an act of the Legislature of the State of Louisiana, approved March 16, 1848, by which one-half of the revenues of said ferry was vested in the parish of Bossier, and the right granted to the Police Jury to meet with the Mayor and Trustees of Shreveport to fix the rates of ferriage. See acts of 1848, p. 156, secs. 2 to 5. There was judgment below in favor of plaintiffs for $1875, and that the mandamus be made peremptory; from which tho defendants have appealed.
    The facts of the case are hrieflly these : In 1839, the Legislature passed an act creating the corporation called the Mayor and Trustees of the town of Shreveport, to extend ovor 640 acres of land lying on the south western bank of Red River, in the parish of Caddo, and known as the “ Larkin Edwards Reserve,” by which, with other political powers, it granted to the mayor and trustees of said corporation the exclusive right to establish ferries across Red River, within the limits of said corporation. Acts 1839, p. 200. The revenues arising from such ferries were to be applied to the improvement of the town. Acts 1839, p. 204. Red River is the boundary between the parishes of Bossier and Caddo. Acts 1828, p. 70, and Acts 1838, p. 11. The corporation of Shreveport established a ferry across Red River in 1839, and continued to use and lease it out. In 1843, the parish of Bossier was created, and the police jury of that parish, believing that the Legislature did not intend to divest them of the power to establish femes across Red River, established a ferry across Red River and leased it out to John Craig, who commenced running a ferry boat across said river, when he was enjoined by James S. Douglass, who had leased the ferry from the Shreveport corporation. The case was tried in this court, and decided that the exclusive power to establish ferries across Red River, within the limits of Shreveport, was vested in the corporation of Shreveport. Douglass v. Oraig, 2d Ann. 919. The Legislature, in 1848, passed an act granting to the parish of Bossier the right to have and recover of the corporation of Shreveport, one half of the net proceeds of the ferries across Red River, within the limits of the town of Shreveport, and the power and right to meet with the Mayor and Trustees of Shreveport once in each year, and fix the rates of tolls to be charged at said ferry. Acts 1848, p. 156, sections 2 to 5. The ferry across the river is some (-w0 hundred yards above any of the streets of said town that have been worked upon or improved. The defendants resist the demand of the plaintiffs, upon the ground that the act of 1848, which conferred the power on the Police Jmy of Bossier to meet with the Mayor and Trustrees of Shreveport, and to fix the rates of tolls to be charged at said ferry, and the right to receive one-half of the revenues arising from the same was unconstitutional and void; because it impaired the obligation of a contract, and because it divested rights already vested without just compensation first paid. There is no doubt that the act of 1848, if it impaired the obligation of any contract within the meaning of the Constitution of the United States or of this State, is void; or if it takes away any vested right except for public use, a just and adequate compensation having been paid, it is also void.
    Then, the first question necessary for us to examine is, what is a contract, within the meaning of the Constitution ? ¥e have only to refer to the decisions of the Supreme Court of the United States upon that subject to determine.
    The court defines a contract, as mentioned in the Constitution, to be a compact or agreement entered into between two or more persons. Contracts are divided into executory and executed contracts; yet in both kinds of contracts it requires that there should be an agreement or compact entered into between two or more persons. Story’s Com. on Const, vol. 3, p. 241, and cases there cited. Now who were the persons with whom any contract was made in passing the act creating the corporation of Shreveport 1 There are no individuals named in the act; there is no one mentioned in said act with whom a contract could be made, and from the law itself, it shows that it was an act of ordinary legislation creating a political corporation, to aid the State in governing a particular portion or section of country. We see, under the act, there is a certain set of officers to be elected, their duties and powers defined. There is no individual named to .whom any grant or power is made in the act; but it is a right or power given to the citizens of that portion of country to meet and elect certain officers, and their powers and duties defined. We see that the whole power that the Police Jury of the parish of Caddo formerly exercised and possessed over that country is taken away from them and vested in this corporation.
    The power to establish ferries across Red River within the limits of the corporation is granted to it, and the power or right to apply the revenues to the improvement of the town. The right to the revenues of the ferries is limited by the act, because it directs how they shall be applied. While the right in the police juries of the different parishes to the revenues of the ferries is not limited, but they have the revenues to appropriate as they may think fit. The power to establish a ferry and fix rates of tolls is a political power, and the right to apply the revenues arising from such ferries is an incident to that power, and when the law directs that the revenues must be applied to the improvement of the town, it is appropriating the revenues to a public purpose. It is the duty of that department of government having the police of roads or other highways, to keep them in good order. It is as much the duty of the mayor and trustees to pass proper ordinances to keep the streets and highways in the corporation of Shreveport in good order, as it is the duty of the police jury of the parishes to keep the roads up.
    But suppose, for ai-gument sake, that the grant of the power to the corporation of Shreveport carried with it a grant of the revenues of the ferries, and that it was a property in each citizen of the corporation of Shreveport, by diminishing his taxes, that he would have to pay for keeping the streets and highways in good order, and that it could not be taken by an act of the Legislature, what would be the condition of the defendants’ right to the ferry and the revenues ? By the general laws, the right to establish ferries and farm or lease them out annually, belonged to the different parishes. See Bullard & Curry’s Dig.. Where a navigable stream divides two parishes, either has a right to establish a ferry across it.
    Then, this ferry right that the defendants contend for was vested in the parish of Natchitoches first; then by the act by which the parish of Claiborne was created a joint right with the parish of Natchitoches was given to her to establish ferries at the place in controversy; then by the act creating the parish of Caddo, the right which Natchitoches had was transferred to Caddo; and by the act creating the parish of Bossier, the right which the parish of Claiborne had was transferred to her; and the law under which the defendants set up title, would be unconstitutional and void. But, then, it might be contended, that if these rights were property rights and vested rights, they would have remained the property of Natchitoches : but not so. She and the other parishes voluntarily gave them up by consenting to the formation of the new parishes, and consenting them to have such powers and rights granted.
    In all cases of municipal corporations, the Legislature has power to alter, change, abolish or modify them at will, and it is only in cases where there is a contract with some individual, either executory or executed, the obligation of which will be impaired, that the constitutional provisions are intended to apply. Dartmouth College v. Woodward, 4 Wheat. 518. Reynolds et al. v. Baldwin, 1st Ann. 162. 3d Ann. 294. Charles River Bridge v. Wairen Bridge, 11 Peters. But independant of that, in all cases of doubt as to the constitutionality of a law, the law should be entitled to the benefit of the doubt. Courts should never declare laws to be unconstitutional unless they are clearly so.

      Crain, for defendants,
    contended: By act of 1838, incorporating the town of Shreveport, § 6, the Legislature gave to the mayor and trustees, the exclusive right to establish such ferries across Red River, within the limits of said town, as they might deem expedient, and to apply the revenues arising therefrom to the improvement of the same. The mayor and trustees accepted, and constantly exercised this right, and resisted all and every interference with their exclusive right. 2d Ann. 919.
    By act of 1848, § 2, 3, 4, 5, the Legislature gave to the parish of Bossier the right to demand and receive one-half of the net proceeds of the revenues arising from the ferry. This suit is brought to recover the rents'; and the defendants resist, on the ground that the act of 1848 is unconstitutional, as violating § 1, ¶ 10 of the Constitution of the United States, and the 109th art. of the Constitution of Louisiana. There was judgment for the plaintiffs, and defendants appealed.
    The court below considered this question settled by our code and the decisions of the Supreme Court, and cited the cases of Reynolds et al. v. Baldwin, 1st Ann. 162, and Louisiana State Bankv. Orleans Navigation Company, 3d Ann. 294. Neither of these cases apply to the case in point, but present very different issues. And there is no case in our reports, nor article in our code, which does decide it. The defendants contend : 1. That a ferry is a property which can be acquired and held, both by an individual and a municipal corporation. C. C. arts. 419, 420, 423, 424, 438. 2d Ann. 919. 2. The grant, in the act of 1839, gave the town the exclusive property in the ferry; which title was perfected by use, and by expending the revenues on the streets, and the Legislature lost all power over it. 3. The act of 1848, giving to the parish of Bossier one-half of the revenues, is unconstitutional: 1st, because it impairs the obligation of contracts ; 2d, because it diverts vested rights without adequate remuneration previously made.
    1. What is a franchise, and is a ferry a property ? 2 Black. 37. Did not the act of 1839 empower the town to hold the ferry as a franchise ? 3 C. R. 295. 2. Can a municipal corporation acquire this as a piece of property; and does their capacity differ from that of individuals? The corporators, it is true, are mandatories, and the mandate may be altered, amended, or even annulled at the will of the Legislature; but in so doing, can they take away or impair a right of property? Could they give our market-house to the parish of Bossier, because they have the right to alter or destroy our charter? Can they take away the ferry without previous remuneration assessed and paid ? Who is to refund the taxes already spent. C. C. 438. Const. § 109. Can they make us the ferrymen of Bossier and give the revenues of our ferry-boat to that parish, even if they could impair or take away our right of ferry ?
    The grant of the ferry, by the act of 1839, was a contract. Onerous conditions were annexed to the grant and complied with. Not only the corporation, but the tax payers and purchasers of lots have a right to insist upon the obligations of this contract. 14 L. R. 395. 16 L. R. 585. A grant is a contract, and cannot be impaired. 2 Conn. Rep. 457, 308. 4 Conn. Rep. 526. 11 Pet. Rep. 420. A bank charter is a contract — 4 Pet. Rep. 514. 3 Conn. Rep. 295. 5 Conn. Rep. 489 — and must be protected. In an ordinary contract, new conditions imposed are unconstitutional. 4 L. R. 94. 8 Wheat. 1. 6 N. S, 585. An act of the Legislature granting anything, relinquishes the rights of the State. 16 Pet. Rep. 21.

      State cases. 1 United States Dig. 558, § 103, 104. 4 Gil. & John. 5. 7 Pickering, 344. United States Dig. 99, § 50. 1 United States Dig. 484, § 49 ; p< 554, § 12, 17, 24, 25, 26, 27, 28, 29, 30, 31, 42, 43, 45, 48, 56. Pet. Dig. p. P- 558, § 1, 2, 3; p. 564, § 62; p. 611, § 69.
   The judgment of the court was pronounced by

Preston, J.

By the 4th section of the act approved the 20th of March, 1839, incorporating the town of Shreveport, the General Assembly declared that the trustees of the corporation should have the exclusive right to establish such ferries across Red River, within the limits of the town, as they may deem expedient, and to apply the revenue arising therefrom to the improvement of the same.

In 1843, the parish of Bossier, on the opposite side of the river, was created, and power was given to the parish to establish ferries across the lakes and rivers within the parish. A ferry was established under this authority across Red River, immediately opposite Shreveport. A contest arose between the lessee of the corporation of Shreveport and the lessee of the parish of Bossier, and it was determined by this court in 1847, that the exclusive right of the town of Shreveport to establish ferries within the limits of the town was not repealed by the authority given to the parish of Bossier. Thereupon, the Legislature passed a law approved the 16th March, 1848, which provided in substance, that the Police Jury of the parish of Bossier should be entitled to receive from the Mayor and Trustees of the town of Shreveport the one-half of the net proceeds of any ferries established by them at Shreveport across Red River, and that the Police Jury of the parish of Bossier should have equal and concurrent jurisdiction in regulating the rates of ferriage, and, for this purpose, should meet, if they thought proper, the mayor and trustees once in each year in the town of Shreveport. Under another section of the act, the Police Jury of Bossier have brought this present suit to enforce the provisions of this law and to recover.

The defendants resist this demand substantially, on the grounds that the grant to them of the exclusive right to establish ferries within the limits of Shreveport, was not a mere gratuity, but was given under the obligation of improving the sheets and landings of the town, to effect which they have expended large sums of money, thereby making the grant a contract by onerous conditions performed, and, by which means they acquired a vested right to the exclusive privilege, which is protected by the 109th article of the Constitution of the State, and by the 10th section of article 2d of the Constitution of the United States.

The Legislature, in incorporating the town of Shreveport, gave to the mayor and trustees, the usual powers given to all municipal corporations to improve the town, but did not bind them to make any particular improvements, or to expend any particular amount, leaving the whole to their own j udgment, to be governed by what the interest and convenience of the inhabitants might require. In the act no obligation is expressly imposed upon the town of Shreveport to provide ferryboats or to employ the necessary hands to keep ferries. No onerous conditions are imposed, as not to delay passengers, under penalties. The town is not even obliged to cross the passengers at all. No rates of toll are prescribed and greater rates prohibited. If the Legislature had made such a grant to an individual, and he should have exacted exhorbitant tolls, surely a future Legislature might have fixed and reduced them to reasonable rates. The grants of ferries have always been for limited periods, ordinarily five, ten or fifteen years. The ‘Legislature have fixed no term at which the exclusive right of the town of Shreveport to the revenue from the ferries should cease. As there is not in the law itself any restraint upon future Legislatures to limit or even repeal the law granting the exclusive right, they might undoubtedly do so, unless clearly pro- ■ hibited by the constitutional provisions invoked by the defendants.

The State did grant to the corporation of Shreveport the exclusive right of establishing ferries within the limits of the town, and of applying the revenues (without any consideration, however, inuring to the State,) in aid of the municipal improvements. The sole question which the case presents is, whether the State could afterwards grant to the parish of Bossier, having the jurisdiction over the opposite side of the river, the right to participate in the regulation of the intermediate ferries and to share in the net profits.

The judge of the district court has placed the case on the true grounds. The questions as to the violation of contracts or vested rights under the Constitution of the United States, or of the State, does not arise. Those questions grow entirely out of the violation of contracts with, or the vested rights of individuals or private corporations established for individual profit.

The corporation of a town is established for public purposes alone, and to administer a part of the sovereign power of the State over a small portion of its territory. It is created by the Legislature and is entirely subject to Legislative will.

This court held, in the case of the Louisiana State Bank v. The First Municipality of New Orleans, that the government of cities and towns, like that of the police jury of parishes, formed one of the subdivisions of the internal administration of the State, and was absolutely under the control of the Legislature ; and in the case of Reynolds v. Baldwin, that the laws which establish and regulate municipal corporations, are not contracts, but ordinary acts of legislation, and that the powers they confer are nothing more than mandates of the sovereign power, and that those laws may be repealed or altered at the will of the Legislature ; except so far as the repeal or charge may affect the rights of third persons acquired under them. We adhere to these opinions.

The Legislature, in the exercise of its sovereign power to regulate femes, gave the revenues accruing from the ferry in controversy in aid of the improvements of the town of Shreveport, but without any consideration inuring to .the State, or onerous condition imposed upon the town. It could, therefore, take those revenues, or a portion of them, from the town and appropriate them to other neccessary purposes. It was very equitable to allow the parish on the opposite side of the river to participate in the profits of the ferry, after paying for the boats and hands as a consideration for keeping up the great highway leading to the ferry, and the Legislature have, by the law in controversy, done nothing more than make this equitable regulation.

But the privilege of establishing ferries and deriving revenue therefrom, was given by a law which the Legislature, in passing, did not deprive themselves by express or implied contract of the power of repealing or altering it at will. If they did so by implication, the argument of plaintiff’s counsel would be conclusive, that the exclusive grant to Shreveport would be unconstitutional; for the original grant of the right to establish ferries at the place in question and derive revenues therefrom, belonged to the palish of Natchitoches; then it was given jointly to that parish and Claiborne; then to Claiborne and Caddo; then to Shreveport exclusively; which grant is unconstitutional, and all those preceding it, except the original grant to Natchitoches, if the law in controversy giving a part of the revenues to the parish of Bossier be unconstitutional.

The prayer for general relief, at the end of the petition, covers the error in the prayer for a specific sum less than the amount due, as alleged in the petition and allowed by the judgment. Bradford's Heirs v. Clark, 7 L. R. 152. Smith v. Cochran et al. 7 L. R. 51.

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


author: Slidell, J.

text:
    J. H. Cane et al. v. Lewis J. Pollock.
    Where there was no order in the court of the first instance granting; an appeal, the appeal will he dismissed.
    APPEAL from the District Court of Caddo. Olcott, J.

      Crain and Jones, for plaintiffs.

      Gilbert and Landrum, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

There is no order of appeal, and the motion to dismiss must prevail. A memorandum was entered upon the minutes under the title of the cause in these words: “Plaintiffs gave notice of appeal and written application waived by defendant.” There is nothing in this to show that an appeal was ordered by the court. We had occasion in the case of Sears v. Wilson et al., to notice the extreme looseness of practice in some districts touching appeals. If this is not corrected there must frequently be a frustration of justice in this court. But however much this is to be regretted, greater evils would probably be the result of our countenancing a loose, obscure, and irregular mode of carrying on judicial proceedings.

It is ordered, that the appeal be dismissed at the cost of the appellants.


text:
    Aaron Snyder v. W. C. Copes.
    Where the records of a court have been destroyed by fire, a rule against the clerk, of the court to show cause why the case should not be placed on the docket to be proceeded with, is not the proper remedy. The proceedings should be taken contradictorily with the opposing party to the suit.
    APPEAL from the District Court of Claiborne. Bullard, J.
   The judgment of the court was pronounced by

Slidell, J.

It appears from the plaintiff’s own showing in the petition and a bill of exceptions, that he was the defendant in a suit brought against him by one Thompson, and that the record of that cause, with the other records of the court had been destroyed by fire. The present proceeding was brought in the form of a rule upon the clerk of the court to show cause “why the suit should not be placed upon the docket of said court, in order that proceedings may take place in said suit to bring it to a final decision.”

The district judge dismissed the rule, and Snyder has appealed. The clerk of the court is the sole appellee.

In our opinion, the plaintiff in rule should have taken his proceedings against the opposite party in the cause, Thompson; and the court properly refused to act in the matter with no one before it but the defendant in that suit and an officer of the court. We may also add, that we are at loss to perceive what practical result could have been attained by the proposed order, which could not have been attained without it.

Judgment affirmed, with costs.


text:
    James S. Bowles v. A. F. Alfred.
    Even where there is a stipulation of no warranty, the vendor is hound to restore the price, unless the purchaser was aware at the time of the danger of eviction, and took the property at his peril or risk. C. G. 2481.
    from the District Court of Caddo. Bullard, J.

      A. Lawson, for appellant.

      B. L. Hodge, for appellee.
   The judgment of the court was pronounced by

Rost, J.

This is a petitory action to recover a lot in the town of Shreveport. The defendant answered, that he was in possession of the lot as lessor of Joshua H. Andrews. Andrews appeared and called in warranty his his vendor Feaiherston R. Roach, who himself called in warranty Mrs. Lafon, his vendor. This party answered, admitting the sale, but averring that under an express stipulation with Roach, it was without warranty, and that if any warranty was given in the act, it was done in error and in fraud of her rights. She called upon Roach to state on oath whether it was not agreed between them, that she only sold such title as she had, and that she was not to be liable in warranty. Roach answered, that she agreed to sell such title as she had, but that there was no agreement that she should not warrant it.

There was judgment in favor of the plaintiff for the lot, and against the respective warrantors for the price they had received. Mrs. Lafon alone has appealed.

Her counsel does not resist the plaintiff’s title, but urges that the judgment is erroneous, so far as it is against her in warranty; and with reference to that part of the case, he has called our attention to a bill of exceptions, which it is necessary to notice. Before the trial in the district court, the appellant caused two witnesses to be summoned for the purpose of contradicting the answer of Roach to the interrogatory propounded to him. Those witnesses being absent when the case was called, she was about to move for an attachment against them, when the counsel on both sides agreed to a statement in writing, showing what the witnesses would swear if present. The appellant, in the course of the trial offered this statement in evidence, but it was objected to by the plaintiff, and the exception was sustained by the court.

The statement of facts drawn up by the counsel is before us. Had it been received in evidence it could not have changed the result of the suit. Roach has only recovered from the appellant the price she received; and she was bound to refund it, even if there had been a stipulation of no warranty, unless Roach was aware of the danger of eviction at the time of the sale, and purchased at his peril and risk, which the act of sale shows not to be the case. C. C. 2481. 3d Ann. 326.

The judgment is affirmed, with costs.


text:
    Letitia H. Francis v. W. H. Scott et al.
    To render a certified copy of a deed admissible in evidence under the act of Congress of 1804, it is not necessary that the attesting officer should certify that the instrument so certified would be admissible in the State in which the certificate is given.
    It is not necessary to make one who has not been cited, and who is a mere nominal party to the suit, a party to the appeal.
    APPEAL from the District Court of Morehouse, Copley, J.
    R. W. Richardson, for plaintiff.
   The judgment of the court was pronounced by

Slidell, J.

This controversy grows out of a seizure made upon a fieri facias against the plaintiff’s husband, of certain slaves which the plaintiff claims as her paraphernal property. She rests her title in part upon a deed of trust executed in Georgia; and at the trial of the cause, offered in evidence a copy of . the deed from the record of conveyances of deeds and mortgages for the county of Hancock, in Georgia, certified in conformity to the act of Congress of 1804, The defendant objected to the admission of the document in evidence, “ on the ground that the certificate of the judge did not state that the instrument so certified would be legal evidence in the State of Georgia, and, consequently, not admissible in the courts of Louisiana; which objection was sustained by the court, and the exemplification rejected ; whereupon plaintiff excepted, &c.” The objection was not sufficient. The statute requires the judge to certify that the attestation of the keeper of the records is in due form, and by the proper officers, but requires no such certificate as is suggested in the bill of tions.

The argument of counsel has been addressed to many questions of law, which we deem premature at the present stage of the proceedings. It is necessary to remand the cause, to enable the plaintiff to introduce the evidence of the title on which she relies.

There is a motion to dismiss this appeal, on the ground that the sheriff is not made a party. There was an injunction, a prayer that he be cited, as well as Scott, the plaintiff in execution, and for damages against both for the alleged wrongful seizure. There is nothing in the record to show a judgment by default against the .sheriff, or an answer by him, or that he was formally a party to the trial. We see no sufficient reason for dismissing the appeal as to Scott.

It is therefore decreed, that the judgment of the district court be reversed, and that this cause be remanded for a new trial, and for further proceedings according to law; the appellee paying the costs of the appeal.


text:
    A. B. Hughes v. Winfrey, Sheriff, et al.
    A judgment creditor may disregard a simulated sale, and seize on execution the property covered by the simulation.
    APPEAL from the District Court of Morehouse.

      M. Dubose, for plaintiff.

      Hunter and Matthews, for defendants.
   The judgment of the court was pronounced by

Rost, J.

In April, 1848, A. G. Hall gave to Messrs. Kendall, Carter Sf Co. a mortgage upon a number of slaves, to secure liis note due to them on the 1st of March, 1849. In December, 1848, and before the note became due, Kendall, Carter Sf Co., fearing Hall might remove the mortgaged negroes, attached and sequestered them. Hall bonded them. In April, 1849, the attachment was set aside and the sequestration dissolved, but judgment rendered in favor of Kendall, Carter Sf Co. for their debt, recognizing their special mortgage upon the slaves, and decreeing their sale to satisfy the same. In the meantime, Hall had, on the 2d February, 1849, sold the slaves to Aaron B. Hughes, the plaintiff in this suit. Notwithstanding this sale, the sheriff executed the writ of seizure and sale issued upon the judgment, by selling the slaves. The purchaser left them temporarily with the sheriff, and this suit is brought for their recovery and damages.

"We have no doubt that the sale from Hall to Hughes was simulated. He purports to have given for the slaves $7132 in hand paid, while it is proved that he had neither means nor credit. He purports to have given that sum for thirteen slaves, some old, some women and children, while a suit was notoriously pending to enforce a special mortgage for $1530, against four of them. He lived in Alabama, but left the slaves in Louisiana, without making any arrangement for the special mortgage which was to be immediately enforced. We do not believe there was any real sale of the slaves in controversy, but that the whole was a mere simulation to cover four from the suit of Kendall, Carter Sf Co.

In such a case, it has always been held by this court, that the judgment creditor might disregard the simulated sale, and enforce his judgment by seizing under his execution the property covered by the simulation. 2d Ann. 912. 1st Ann. 132, 262. 2d Ann. 323, 451. The case of Maskell v. Merriman, 9 R.R. 70, so much relied upon by plaintiff’s counsel, so far from impugning, when carefully perused, supports the principle. And we have rarely seen a case in which its application was more palpably just and equitable than the present.

The judgment of the district court is affirmed, with costs.


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    H. C. Bartlett v. A. D. Peck et al.
    To render a bankrupt who has been discharged liable on a new promise to pay a debt, the obligation must clearly result from the words used in making the new promise; and the expressions “I expect to pay you as fast as I can in money, not in property,” are not sufficient to create a new obligation.
    APPEAL from the District Court of Morehouse, Copley, J.

      W.J. Q. Baker, Sharp and McEnery, for plaintiff.

      McGuire and Ray, for defendants.
   The judgment of the court was pronounced by

Rost, J.

This is a suit against the husband and wife on a promissory note payable to bearer, executed in 1839, and due in March, 1840.

The defendants have filed a general denial, and pleaded the prescriptions of five and ten years. The husband further pleaded a discharge in bankruptcy, and the wife her inability to bind herself with or for him. There was* judgment for the defendants, and the plaintiffs appealed.

This suit was commenced on the 28th of May, 1849. The claim against the wife, if otherwise valid, is clearly prescribed, and the plaintiff’s counsel has not urged it upon us in argument. The husband has adduced a discharge in bankruptcy in due form; but the plaintiff claims from him under a new promise alleged to have been made by him since the discharge, and the only question before us is, whether such a promise exists.

The following letter from the defendant Peck to Bartlett, was adduced in evidence by the plaintiff: “January 5th, 1845. Dear Sir; I never thought of selling the boy that is run away ; nor have not proposed to do so to any person ; nor would not sell him for any price, even run off. I did propose to swop him to Stephens for a certain boy, if he fell to him. What I owe you, I expect to pay you as fast as I can pay you in money, not in property. I will see you shortly. (Signed,) A. D. Peck.”

Plaintiff complains that he was unlawfully deprived of the right of showing that this was an answer to a letter written by him to the defendant, the substance of which was, that he had heard that one of Peck’s slaves had run away, and that he proposed to purchase him, and let the price go in part payment of the note sued on.

Supposing that evidence to be before us, we are of opinion that, taken in connection with the letter of the defendant, it would not support a new promise. The answer of Peck is positive as to one thing only, and that is, that he will not sell the runaway slave to the plaintiff. His subsequent statement, that what he owes the plaintiff he expects to pay as fast as he can pay it in money, has reference to the obligation in foro conscieniice which existed after the discharge, and is the expression of a mere hope without any words of promise or manifestation of the intent to contract an obligation. The discharge in bankruptcy operates the release of the debt, as prescription does ; and a subsequent promise to pay is a new obligation of which the preexisting debt is only the consideration. The obligation must, therefore, clearly result from the words used, or it cannot be enforced.

The judgment is affirmed, with costs.


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    Aaron Livingston v. Winfrey, Sheriff, et al.
    An execution cannot be enjoined on grounds of which the party was cognizant before judgment was rendered against him.
    APPEAL from the District Court of Morehouse. Copley, J.

      Hunter and Matthews, for plaintiff.

      Baker, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff appeals from a judgment dissolving an injunction which he obtained to arrest the sheriff in the execution of a writ oí fieri facias issued upon a judgment rendered against Livingston in favor of Towles.

The ground of the injunction was, an alleged agreement for delay upon certain conditions, which have been complied with.

There was no error in the dissolution of the injunction. The agreement was made before the rendition of the judgment upon which the execution issued and might have been then pleaded. The party cannot be permitted to open the judgment for the purpose of opposing that agreement now, as an obstacle to the execution. See Minor v. Stone, 1st Ann. 284.

The judgment of the district court is therefore affirmed, with costs.


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    W. J. Gallaspy v. A. Livingston, Administrator.
    The prescription of one year provided for by art. 3499, C. C., applies only to the wages of workmen, laborers and servants who are employed by the day or by the month, and not to claims for the value of the work done by the job, and for materials furnished for the work.
    APPEAL from the District Court of Morehouse, Copley, J.

      D. Newton, for plaintiff.

      Hunter and Matthews, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, who is a blacksmith by trade, claims from the succession of A. J. Bell the amount of several accounts for blacksmith work done by the piece, and for the materials furnished in doing said work.

The accounts are admitted to have been proved in the district court; but the administrator of the succession pleads the prescription of one year, under article 3499 of the Civil Code. He has appealed from the judgment rendered against him on that plea.

It has been often and uniformly held in our courts, that the article relied on applies only to the wages of workmen, laborers and servants who are employed by the day or by the month, and not to claims for the value of work done by the job, and of materials furnished for said work on a quantum meruit, as was the case in this instance.

In affirming the judgment, it is only necessary to refer to the previous decisions. 1 L. R. 268. 4 L. R. 113. 5 L. R. 12. 6 L. R. 591. 10 L. R. 231. 19 L. R. 413.

The judgment is affirmed, with costs.


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    Succession of Alexander McLean.
    Where an account of a curator has been homologated, and he ordered to proceed with the administration, without the heirs having been cited, the judgment is not final between the heirs and the curator.
    APPEAL from the District Court of Caddo. Olcott, J.

      Thos. T. Land, for appellant.

      Crain and B. L. Hodge, for appellee.
   The judgment of the court was pronounced by

Preston, J.

David Butler was appointed curator of the vacant succession of Alexander McLean, in September, 1847, and proceeded to administer the estate.

On the 16th of February, 1849, the appellants in this case were duly recognized as the heirs of the deceased, by a judgment rendered in the succession.

On the 3d of May, 1849, the curator filed an account of his administration, which was published according to law. No oppositions were made, and as late as the 16th of August, 1850, it was homologated by judgment of court. A cask balance of $510 59 was struck in favor of the curator, with interest from the filing of his account. He was authorized to pay all the debts of the estate, and to deliver to the recognized heirs the balance of the succession. Plis bond was reduced $4706 41; but he was ordered to proceed with the administration.

From this judgment the heirs have taken this appeal, and have sought its reversal on six grounds. Because, 1st, the curator had obtained an order for the sale of the property of the succession both real and personal. And, although his account shows that a sale of a portion of the real estate had been made, yet no proces verbal of the sale or sales had been returned into court, showing the amount of the proceeds of sale for which he was accountable. 2d. Because the account does not show whether the other real estate had been sold, although the curator had obtained an order for its sale. 3d. Because the account does not show whether the notes and accounts which had been in the curator’s possession for near three years, had been collected or not. 4th. Because the curator had charged commissions on the sum of $5224 62, which exceeds the appraised value of the succession. 5th. Because the judgment decrees the curator to be the creditor of the succession to the amount of $510, when it was evident he had not accounted for the property sold nor the debts collected. 6th. Because the judgment cancelled his bond.

These grounds were not filed by the heirs as oppositions to the account, and the attention of the district court was not specially called to them in homologating the account. In the decree of homologation the curator was not ordered to render an account to the heirs, and in rendering it the curator did not cite them to take cognizance of the account. And the judge, in homologating it, ordered the curator to proceed with the administration.

The judgment does not appear to be final between the heirs and curator of the estate, and we do not see, as at present advised, why they may not present and have all the matters of which they now complain investigated on the rendition of-the final account by the curator, and a petition to be discharged from his functions. Millaudon v. Cajus, 6 L. R. 225. Moreover, the counsel of the curator insists, that there is no evidence that he has been made a party to this appeal.

The counsel of the creditors of the succession makes the same objection, that no citation of appeal has been served upon them. Besides, the homologation of the account as to them, is conclusive, because it was properly advertised and not opposed. C. C. art. 1172.

We are of opinion, and decree, that the appeal be dismissed, at the appellant’s costs.


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    Joshua D. Waterman v. John Gibson.
    It is not of the essence of mandate that it he gratuitous. The right of an agent to receive compensation may bo inferred from the nature of the services, without any proof of an express agreement to that effect.
    Where a party is hound to execute titles to land upon the payment of the price, he is entiled to a judgment for the price without previously tendering a title.
    APPEAL from the District Court of Jackson, Copley, J.

      J. C. C. Sharp, for plaintiff.

      McGuire and Ray, for defendant.
   The judgment of the court was pronounced by'

Slidell, J.

The motion to dismiss cannot be maintained. This suit was brought upon certain notes of defendant given for the piáce of land bought from the plaintiff under an instrument in the form of a bond. Waterman binds himself to the defendant in this instrument in the sum of $1000, with a condition in these words: “The condition of the above bond or obligation is such, that whereas the above bound Waterman has this day bargained and sold to the said Gibson,” certain lands which are described, “ for the price of $960, of which sum Gibson has given his notes,” describing them. “Now, if the said Gibson shall pay or cause to be paid the said several sums of money as they may become due, then the said Waterman is to make or cause to be made bond fide legal warranty titles to said land.” The plaintiff asks judgment for the notes and interest with vendor’s privilege.

The defendant in his answer pleads that the plaintiff was bound to make him titles for the land upon the payment of the notes. He also pleaded in compensation and reconvention, a claim for services rendered to the plaintiff'as land agent in selling lands for him. He prayed for a judgment of compensation or in reconvention, and also that the plaintiff might be decreed to make a perfect and legal title before collecting the residue of the price.

There was a verdict and judgment sustaining the defendant’s plea in compensation, recognizing the plaintiff’s claim for the residue in the vendor’s privilege, and directing that no execution issue until the plaintiff execute in favor of defendant a deed for the land. From this judgment the plaintiff has appealed.

There was an objection in the court below to the admission of evidence to prove the defendant’s claim for .services, on the ground that his plea of compensation was not made with sufficient certainty and definitiveness. We see no reasons to disturb the opinion of the district judge on this point. And we may remark, that much of the evidence was upon matters of which the plaintiff' was, before the suit, fully cognizant, and that there is no reason to believe he was taken by surprise.

Objection was made to the reception ia evidence of a power of attorney to sell lands, collect rents, <fce., executed by plaintiff in favor of defendant, and dated in March, 1848, upon the ground of discrepancy with the allegations of the plea. In the plea the allegation is, that on or about the 2d day of January, 1845, at the urgent solicitation of said plaintiff, respondent consented to act as agent and attorney in fact of the said plaintiff in the parish of Jackson, and whilst acting in said capacity he sold a large amount of lands for plaintiff, specifying the names of the vendees and the amounts of the sales; and his commission therefor became due on the 28th November, 1848. We think, without some more satisfactory reasons than was assigned below, there was no error in letting in a power of attorney, executed within the interval of time, during which the defendant alleged that he acted as agent.

The evidence shows that a land agent’s duties are onerous, and that several sales were made by the defendant. We are not prepared to say that the allowance made by the j uiy is unreasonable under the proofs adduced.

It is said that a contract of mandate is presumed to be gratuitous, unless there have been a contrary agreement. Under our code, which has modified the principles of the Roman law, it is not of the essence of mandate that it be gratuitous. And, in our opinion, it is not necessary for an agent to establish an express agreement that he should have a pecuniaiy remuneration for his services. Courts may infer such an agreement from the nature of the employment and the relations of the parties. It would be unreasonable to look upon the undertaking of the defendant as a mere office d'ami. See Duranton, lib. 3, tit. 13, No. 197. The nature of such a contract as was made by the parties by the instrument referred to in the early part of this opinion has been frequently considered. The petition shows that the plaintiff thought the title was fully vested in the defendant, and we think that the law would so regard it, especially where the obligor sues for the price and claims the vendor’s privilege.

The judgment is an ample title to the defendant, and the warranties which were contemplated in the bond are created by law. C.C. 2477, et seq. At any rate, the decree below was wrong under the agreement of the parties, for the formal title was not to be executed until the notes were paid.

It is decreed, that so much only of the judgment of the district court as decres that no execution issue until plaintiff shall execute a deed in favor of defendant for the land described in the petition, be reversed and set aside, and that so corrected, the judgment be affirmed; the costs of the appeal to be paid by the appellee.


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    R. Jelks v. Robert Smith et al.
    Amendments to pleadings should be permitted where they cause no injury to the opposite party, and tend to prevent a multiplicity of suits.
    Where a person who is a joint obligor removes from the State, he may be sued with his coobligor by the appointment of a curator ad hoc to represent him.
    APPEAL from the District Court of Caddo. Bullard, J.

      Thos. T. Land and A. Lawson, for plaintiff.

      Crain and Jones, for defendant.
   The judgment of the court (Slidell, J. dissenting) was pronounced by

Rost, J.

We are of opinion, that the district judge erred in refusing to permit the amended petition to be filed in this case. It has been uniformly held in our courts, that amendments should or should not be permitted to be made, as it would best tend to the furtherance of justice. The only question then is, whether the amendment in this case was in furtherance of justice. We have no hesitation in saying that it was.

The defendants had entered into an agreement with the plaintiff, that an execution on a certain judgment rendered against the plaintiff, Arthur Smith and John B. Caldwell, in solido, should, in case it could not be made out of the property of Caldwell, who was the real debtor, be satisfied as follows: $150 by the plaintiff, and the balance of the execution jointly by the two defendants, one of whom was not a party to the judgment. The plaintiff' instituted this action, and asked that they might be compelled to pay their share of the judgment, and of the interest due thereon; and on failure on their part to do so within the time to be fixed by the court, that a judgment for the-sum due by them under the agreement, might be rendered in his favor.

Robert Smith, one of the defendants, excepted to the plaintiff’s right of action, on the ground that he had not alleged that he had paid the judgment, or that the debt had been assigned to him by the judgment creditor.

Arthur Smith resides out of the State. The curator ad hoc appointed to represent him, moved, that the action might be dismissed as to him, because he was not before the court either by personal citation or by his property.

Before these exceptions were acted upon, the plaintiff moved the court for leave to amend his original petition by alleging, that since the institution of the suit he had been compelled to pay the entire amount of the judgment, and by praying for an unconditional judgment against the defendants. The amendment should have been permitted. It caused no injury to the defendants, and tended to prevent a multiplicity of law suits.

We are not prepared to say, that the plaintiff could, under no circumstances, have maintained his original action against one of the defendants at least; and, after paying the judgment the ground of the exception taken by that defendant was removed, and the right of the plaintiff to recover from both placed beyond all doubt.

We do not think the exception filed in behalf of Arthur Smith tenable. The obligation which he subscribed being joint between him and Robert Smith, it cannot be enforced against either until both are brought into court. He is therefore a necessary party to the suit; and, in the furtherance of justice the law authorizes a curator ad hoc to be appointed to him. He subjected himself to this eventuality by signing the agreement on which this suit is brought. See Dupuy, Curator, v. Hunt, 2d Ann. 562.

We have not noticed the motion to dismiss, because that part of the execution which the defendants assumed to pay, was clearly over three hundred dollars.

It is therefore ordered, that the judgment in this case be reversed, and the case remanded for further proceedings, with directions to the district judge to permit the amended petition offered by the plaintiff to be filed. It is further ordered, that the costs of this appeal be paid by the defendants and appellees.


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    J. Brooks v. J. W. Hardwick et al.
    Where lands have been sold under the act of 10th March, 1815, to pay taxes, the owner has a right to redeem the same upon offering to pay to the purchaser the price, costs, improvements and interest, and is not compelled to make a tender of the money unless the purchaser has rendered an account of those items.
    Where an execution has been returned satisfied, another execution cannot be issued for costs, without taking some proceeding contradictorily with the debtor; and a sale under an execution so issued will be declared null.
    APPEAL from the District Court of Caddo, Olcott, J.

      Crain, for plaintiff.

      B. J. Sage and John Young, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

The defendants Hardwick, Jones and Hotchkiss, claim as purchasers of a large tract of land under three sales. The first of which was by the collector of parish taxes, on the 6th December, 1846; the second by the collector of State taxes, on the 4th January, 1847, and the third under a fieri facias in the case of Brooks v. Norris. The defendant, Taylor, is the assignee of Hotchkiss.

This suit was brought before the expiration of two years from the 6th December, 1846. The plaintiff’s allegations and prayer are in substance as follows: That the tax sales were illegal; and that the fieri facias was fraudulently issued, was illegal for various reasons specified, and insufficient to support a sale. That he had diligently endeavored to redeem the lands ; had tendered payment of the amount bid at the tax sales, and what the defendants may have expended for taxes, costs and improvements ; but that they had refused to allow him to redeem, and to state what was due for costs, charges and improvements, or to render him any account thereof. He prays that the sales may be rescinded and set aside; that he be declared owner of the land; and that it be adjudged to be re-transferred to him on his paying what he is bound to pay, which he is ready to do.

There was a verdict and judgment in favor of plaintiff. The defendants have appealed.

Much of the evidence in the court below and of the arguments of counsel here have been directed to the inquiry, whether a legal tender, according to the forms prescribed in the 407th article of the Code of Practice, has been made before the lapse of two years. But in our opinion, the inquiry is not decisive of the controversy. This conclusion we derive from a just construction of the act of 1845, especially when considered in reference to the circumstances of this ease.

The act, afler providing for the seizure and sale of property in the case of non-payment of the taxes, contains the following saving clause in favor of the proprietor: “The sheriff or collector, as the case may be, shall execute a-deed to the purchaser, and the owners of the property sold shall have a right to redeem the same at any time within two years from the date of the sale, by paying the price for which the property sold to the purchaser, with all costs and charges, and improvements, and eight per cent per annum interest. And in case the purchaser should be absent from the parish, the owner shall have the right to deposit the amount with the parish judge or treasurer, and taking a receipt for the same; which payment shall operate a re-investment of the title in the original owner, which power of redemption shall extend to slaves as well as land.” This act is manifestly conceived in a spirit of liberality and mercy to the proprietor whose land is sold for taxes. He is to have two years in which to come forward and redeem, and this upon the equitable condition of paying the purchaser the price, with all costs and charges, improvements, and eight per cent interest. The buyer at the tax sale buys subject to this condition; and, as must almost invariably happen, at a very low rate. Now what is it which the proprietor is to pay ? If it were only the price paid by the buyer and interest, it would be something specific and certain, and there would be perhaps no reasonable excuse for not making a legal tender of it. But there are other charges which from their nature are unknown to the proprietor, and lie peculiarly within the purchaser’s knowledge. Such are the payments and expenditures he has made since the purchase for improvements. Now, it would be a hard construction of the law to put the creditor’s right to redeem upon the condition precedent of a legal tender of a sum of money sufficient to pay charges which he has not the means of ascertaining. It seems to us the letter and spirit of the law are satisfied by a declaration of the proprietor that he desires to redeem, an offer to the purchaser to pay him the price, costs, charges, improvements and interest upon his rendering an account of them, and a suit within two years by the proprietor upon the purchaser declining to give him the necessary information.

Such was substantially the position of the plaintiff in this case. He evidently made serious and diligent efforts to ascertain what was fairly due to the purchaser, and was met on their part by a course of conduct which manifested a disposition to frustrate his efforts to redeem. There is no equity in this defence, and is not warranted either by the letter or the spirit of the statute.

The defendants do not appear to to have placed much reliance upon the sale under thejfieri facias. Without noticing the other objections raised to its validity, it is sufficient to say that the fieri facias issued for costs after a previous writ had been returned satified. If by mistake a portion of the costs had been omitted, there should have been some proceeding contradictorily with the judgment debtor, or at least judicial action to ascertain the costs and order their collection.

The judgment of the lower court is erroneous in not allowing the defendants the amounts proved to have been paid by them, and should in that particular be amended.

It is therefore decreed, that the judgment of the lower court be amended, so that defendants recover of plaintiff the sum of four hundred and forty-nine dollars and twenty-five cents, and otherwise affirmed; the appellee to pay the costs of this appeal.


author: Rost, J. Slidell, J.

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    Samuel Cotton v. Jacob Stacker.
    Where both parties claim title to land from a common author, the only question which can be inquired into is, in which of the parties is the title of their author vested.
    A claim to land founded upon a judicial sale duly recorded, will defeat a claim foundedupon a prior judicial sale which was not recorded.
    APPEAL from the District Court of Caddo, Olcott, J.

      Thomas T. Land, for plaintiff.

      B. L. Hodge, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff claims a town lot in the possession of the defendant. He also claims rent from the date of his purchase of said lot. The defendant alleged a title acquired by him from Bushrod Jenkins, deceased, and called the administrator of Jenkins in warranty. The administrator appeared and denied the allegations of both plaintiff and defendant. On these issues there was judgment against the plaintiff, and he has appealed.

The plaintiff introduced evidence showing that both titles were derived from a common author. Under the settled jurisprudence of this court, therefore, the defendant cannot contest the plaintiff’s title, and the only question for us is, which of the parties to the suit is vested with the rights of their common author. See the case of Bedford v. Urquhart, 8 L. R. 269.

The defendant acquired the lot from Jenkins by an authentic act, duly recorded, bearing date the 22d of October, 1844. Jenkins had acquired it under a judicial sale in the suit of Jenkins v. Nichols. That judicial sale bears date on the 8th day of May, 1843, and is not shown to have been recorded.

The plaintiff claims under a subsequent judicial sale in,the suit of himself against Nichols, which was duly recorded.

Possession passed to the defendant by the authentic act from Jenkins to him, and the plaintiff alleges his (the defendant’s) actual possession from the date of his own purchase, and claims rent on that ground. The defendant being in possession under a recorded title, this case cannot be distinguished from that of Stockton v. Briscoe, 1st Ann. 249. In that case we held, that the object of the registry laws is to make apparent the ownership of property, and that whenever the ownership appears on the public records by proper titles, the object is attained. "We adhere to this opinion. "We do not believe it is the intent, and we are sure it is not the policy of the registry laws to defeat the title of purchasers in good faith under recorded deeds, on the ground that an anterior conveyance, however remote, of the same property may not have been recorded. Such an interpretation would, in our opinion, effectually destroy the security of property for which registry laws are established.

The judgment is therefore affirmed, with costs.

Slidell, J.

dissenting — referred to the views upon the subject of registry laws expressed by him in Stockton v. Briscoe, and also to the act of 1813, and particularly the concluding clause of the first section, viz: “ and all sureties, sales, contracts, judgments, sentences, or decrees aforesaid, and all liens of any nature whatever, having the effect of a legal mortgage, which shall not be recorded agreeably to the provisions pf this act, shall be utterly null and void to all intents and purposes, except between the parties thereto.” Bullard & Curry’s Digest, 596.


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    J. J. Chewning v. B. M. Johnson.
    An assignment made in good faith according to the laws of another State, in favor of creditors domiciliated in that State, by a party also domiciliated there, will be enforced on the property of the debtor in Louisiana which has been actually transferred to the assignee; provided no injury arises therefrom to our own citizens, and not otherwise.
    A defendant in possession, under a just title for a valuable consideration, may avail himself of any radical defect in the title of his adversaiy.
    APPEAL from the District Court of Caddo, Olcott, J.

      Thomas T. Land, Martin Y. Young and John Young, for plaintiff.

      Crain, for defendant.
   The judgment of the court was pronounced by

Rost, J.

This is a petitory action in which both parties claim title under one Angus McNeil.

The defendant is in possession under a recorded title, derived by a regular chain of conveyances from a judicial sale made at the suit of W. W. George, curator of the succession of Stays Sprague after he superseded McNeil in that capacity, to enforce on the property of the said McNeil, in the hands of third persons, a mortgage given by him to that succession on the 9th day of January, 1839, to secure his faithful administration.

The plaintiff claims under an assignment executed to him by McNeil and his wife, on the 14th day of April 1840, in Warren county in the State of Mississippi, in trust for the payment of the debts therein specified and recorded in the parish of Caddo, where the property in controversy is situated, on the 20th of the same month. He sets up title to the property as owner, on the ground that at the date of the assignment the property, which it purported to convey, was held by McNeil in common with several other persons, among whom were the legal representatives of Sprague; that subsequently a judicial partition in kind took place, in which he was recognized by them as owner of McNeil's share; that by the act of partition, they bound themselves to warrant his title, and that they are estopped from now contesting it.

A petition of intervention found in the record shows, that he has been liberal in his good fortune and has transferred to a lady who bears his name, one half of this facile acquisition. He does not deny the reality or binding force of the mortgage under which the property was sold; but he avers that the judgment liquidating the debt, for the payment of which the right of mortgage was exercised, is an absolute nullity, for want of jurisdiction in the court who rendered it. That there is nothing due by McNeil to the succession of Sprague ; or if there is, that the claim is still unliquidated. He further contends, that if there had been a judgment, all the proceedings under it, to the final alienation of the property, were illegal and void. The case is before us on the appeal of the plaintiff, from the judgment rendered against him in the first instance.

Many decisions have taken place in our courts on the subject of assignments made in other States, by insolvent debtors regulating-th&_order of payment of their creditors. It is necessary, before going into the investigation of this case, to revert to some of them.

In the case of Richardson v. Leavitt et al., 1st Ann. 430, the assignment was made in New York, where all the parties resided. The debt on which the attachment had issued was contracted and payable in New York, and the property attached had been actually delivered to the assignees before the attachment. The court sustained the assignment, but in doing so, took great pains to limit the decision to the case presented by the records.

In the subsequent case of the Merchants' Bank v. The Bank of the United States, 2d Ann. 660, the rule in Richardson's case was applied ; but at the same time the decision of the former court in the case of Townsend v. The Louisiana State Insurance Company, 13 L. R. 554, was recognized as correct. ' “ In this case,” said the court, “the assignment was by an insolvent debtor residing in Louisiana, to the detriment of his creditors, of property which was their common pledge, in which an undue preference was sought to be given in palpable violation of his obligations and of the penal as well as civil laws of the State.” The assignment was void on its face.

In the case of Beirne & Burnside v. Patton et al. 17 L. R. 590, it was held, that an assignment made by a party residing in Tennessee could not affect the rights of his Louisiana creditors upon movable property belonging to him within the limits of the State, and that as to them, even that property had a situs.

The rule to be deduced from these and other decisions is, that an assignment made in good faith according to the laws of another State, in favor of creditors domiciliated in that State, by a party also domiciliated there, will be enforced on the property of the debtor in Louisiana, which has been actually transferred to the assignee ; provided no injury arises therefrom to our own citizens, and not otherwise. Does the present case come within the operation of that rule ?

It is in proof, that as far back as 1837, Angus McNeil was a citizen of this State, and resided in the parish of Caddo. In the curator’s bond, and in the mortgage given by him in 1839 to the succession of Sprague, he states that he is a resident of that parish; and in the assignment itself, he and his wife both represented themselves as being domiciliated there. Upon his own showing, therefore, he was not in a situation to make in the State of Mississippi an assignment which could have any validity in Louisiana, under the laws of that State. It is urged, in behalf of the plaintiff, that the defendant has not shown the right to contest its validity, because it is not proved that the succession of Sprague was a creditor of McNeil.

McNeil -was prima facie the debtor of the succession of Sprague for the crops and movables received by him and not accounted for; and as we do not think the account given of them by the defendant satisfactory, we would probably consider that evidence of indebtedness sufficient for the purposes of this suit, even if, as alleged, the judgment liquidating the claims of the succession against McNeill was a nullity; but it is not necessary to go into those inquiries. The defendant is in possession under a just title, and for a valuable consideration paid by him. He may avail himself of any radical defect in the title of his adversary; and to ascertain whether any radical defects exist in it, it is necessary to enquire into its nature.

Previous to 1637, McNeil and the plaintiff had been members of a commercial partnership trading in the State of Mississippi, and, as it would seem from the deed of trust, largely indebted to creditors residing there. McNeil, shortly after his appointment as curator of Sprague's succession, went to the State of Mississippi with his wife, and executed in favor of the plaintiff an act of transfer of his undivided interest of one-seventh in the land op which the town of Shreveport has been established, and of other property in Louisiana, in trust and for the purpose of discharging all the liabilities of the partnership of Chewning, McNeil Co., alias Wilkinson, McNeil & Co., alias McNeil, Wilkinson 4' Co., and also for discharging any debt which, after the payment of the debts and liabilities of the partnership, might be due and owing from McNeil to the plaintiff, and with a condition, that if after payment of the liabilities described in the assignment, and if property remained unsold, or any portion of the proceeds of the property sold remained in the hands of the trustee, the property unsold should revert to McNeil, and the trustee should account to him for the funds in his hands. It has been urged, in argument, that possession followed the execution of this deed, and an attempt has been made to show that the trustee had held possession through an agent. The assignment, not being an authentic act, did not transfer the possession without an actual delivery, and the fact that after its date the property was sold by another agent of McNeil to the defendant and others, who went into possession of it and have held that possession ever since, negatives the delivery to and possession by the plaintiff. The record contains no evidence going to show that an assignment like this, not followed by actual delivery, would be valid according to the laws of Mississippi; but the view we have taken renders the evidence of that fact unnecessary.

The assignment, as soon as made, was brought over to the parish of Caddo, and recorded in the proper office ; there alone it was to receive its execution ; and the object of McNeil in passing it in Mississippi was to give it, under the legislation'of that State, an effect and bindingforce which it could not have under ours. It is clear that McNeil cannot be permitted to do indirectly what the laws of his domicile did not authorize him todo directly, and that his attempt to commit a fraud upon those laws cannot avail him. The act which he executed in the State of Mississippi, if executed in the parish of Caddo, would have been a power of attorney to sell the property mentioned in it; apply the proceeds to the payment of certain debts ; and when this was done, to account to the principal for any funds which might remain in the hands of the agent. The place where the act was executed cannot, under the facts of the case, change its legal import. It vested in the plaintiff the power to sell property and to pay debts, but it divested McNeil neither of his title, nor of his possession.

It might be said, that as the property was in part conveyed to pay the plaintiff whatever McNeil might owe him, the latter had the right to retain it until he was paid. Without expressing any opinion on this question, it is sufficient to say that the plaintiff has not alleged or proved any indebtedness from McNeil to him, but has simply claimed the property in his own right. We may state here that he has also failed to show the reality of tire debts for which the assignment was given, or that it had ever been assented to by the creditors in whose favor it purports to be made. Under that state of facts, and after a delay sufficient to bar all the claims provided for under the statute of limitation of the State of Mississippi, without any attempt to execute .the trust, we apprehend that the assignment, even if made by a resident of Mississippi, would not be sustained by the courts of that State. But independently of these considerations, we are of opinion that the act relied on in this case, was nothing more than a power of attorney, which McNeil had a perfect right to revoke, and which did not prevent him from disposing of the property assigned by it. It is in evidence that he sold it, through another agent, on the 23d of January, 1841, for $10,000, payable in five equal annual installments, to Jonas Robeson, in whose possession it was when it was seized and sold under the action of mortgage. It is urged, that the power of attorney under which it was sold, was anterior in date to the act under which the plaintiff claims. If McNeil has received the proceeds of the sale, and the presumption is that he has, he has thereby ratified the agency; if he has not, until he himself complains the sale is valid and the plaintiff cannot gainsay it. In either alternative the power of attorney given to the plaintiff is not a title upon which he can maintain a petitory action.

The argument was pressed upon us at bar, that in the suit for the partition of the property, the legal representatives of Sprague recognized him as owner; that in the act of partition they bound themselves to warrant his title; and that they are estopped from now contesting it. It is first to be observed that these parties were minors, and that they do not come under the operation of the rule invoked. In that action, the other joint owners instituted proceedings against McNeil and the legal representatives of Sprague, who were all absent from the State ; curators ad hoc were appointed to represent them, and appeared in their behalf. Subsequently, the plaintiffs, on suggesting to the court that McNeil had conveyed the property in trust to J.J. Chewning, a resident of the State of Mississippi, they amended their petition, praying for the appointment of a curator ad hoc to represent him, and the prayer was granted. The court ordered a partition in kind, and the share of McNeil was allotted to Chewning, in the capacity in which he appeared in the suit. We are at a loss to understand how those proceedings could give him a title distinct from that which he derived from McNeil. He was cited and appeared in the suit in thp capacity of trustee. The representatives of Sprague litigated and contracted with him in that capacity, and he has no color of title beyond the deed which is alleged to have created the trust. The property was McNeil’s, and the last act of the court in the partion, was to order the fees of the counsel appointed to represent him to be paid out of it.

The plaintiff has no title upon which he could maintain a petitory action in his own name, even against a naked possessor.

The judgment is therefore affirmed, with costs.

Slidell, J. I incline to the opinion, that as against creditors of McNeil, and those holding under them, the conveyance should be considered as in the nature of a contract of mortgage. But viewed in that light, it does not authorize the plaintiff to sustain a petitory action. I, therefore, concur in the affirmance of the decree. I may add, that if the plaintiff were now prosecuting an hypothecary action, it probably could not be sustained on the evidence before us.


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    Succession of Bushrod Jenkins.
    Usury is a violation of law and is not to "be presumed. Where an agreement to pay interest is subject to two constructions, one of which would make it usurious and the other not, the court will adopt the latter.
    APPEAL from the District Court of Caddo. This case arose from an opposition filed by the tutrix of the minor children to a tableau filed by the administrator allowing a claim in favor of Kohn, Daron, Sf Co.

      Thomas S. Land, for tutrix. Crain and Jones, for Kohn, Daron & Co.

   The judgment of the court was pronounced by

Slidell, J.

Kohn, Daron 8f Co. being holders of a judgment against Martineau Cruger Co., garnisheed Jenkins, a debtor of Martineau, Cruger Sf Co.; and on the 30th November, 1840, obtained a judgment against the garnishee for $4971 99, with costs The judgment is silent as to interest.

In 1842, an account was rendered to Jenkins by Kohn, Daron £f Co., in which the balance due upon the judgment is stated at $4570 19. Jenkins is chai’ged in this account with interest “as per agreement” up to 15th January, 1842. This interest is charged from 1837 to 1839, at six per cent, and from 1839 to 15tlx January, 1842, at ten per cent. There is a credit on 15th January, 1841, of $2284 99, received in two acceptances of T. B. Lee, due 15th and 18th January, 1842. After the rendition of this account on the 17th January, 1842, Jenkins addressed a letter to Kohn, Daron Sf Co., in which the correctness of the account is acknowledged; and he proposes, if they will give him indulgence for another yeax-, to send them his next crop towards paying the balance of $4570 19, and also intei’est on that balance fx'onx 15th January, 1842, at ten per cent, “as ox-iginally agreed upon.”

It will be observed, that both the account rendered and the letter of Jenkins point to a preéxisting agreement for the payment of interest. Under that preexisting agreement, the interest in the account rendered purports to have been charged. That agreement is not before us. We are ignorant of the circumstances under which it was made, and are consequently unable to declare that it was usurious. Usury is a violation of law, and a violation of law is not to be presumed. It is true that the judgment against the garnishee does not in itself bear interest. But it must be remembered that the judgment was based upon an existing indebtedness of the garnishee to Martineau, Cruger Co. That debt may have borne interest; and if the garnishee chose to enter into an agreement with Kohn, Daron & Co., to pay them the interest accrued or that might accrue upon the debt which was garnisheed, even although the judgment had omitted interest, he certainly in doing so fulfilled at least a natural obligation, which was a sufficient consideration for the agreement. We suggest this as showing that the first agreement for interest made between Jenkins and Kohn, Daron & Co. may have had a lawful consideration, and been untainted with usury. Even where an agreement for interest is before a court and is susceptible of two constructions, one of which would bring it within the statutes against usury, and the other would not, a court would adopt the latter. Archibald v. Thomas, 3 Cowan, 284. Bank of Louisiana v. Briscoe, 3d Ann. 161. A for lioñ, a court will not undertake to declare a contract, under which interest has been paid, usurious, when that contract and its attendant circumstances are not in evidence.

From what we have stated it is obvious that there is no ground for treating the letter of 17th January, 1842, as an agreement, in consideration of indulgence, to pay not only future interest at ten per cent, but also back interest not due.

From the evidence in the cause, it appears that the parties themselves agreed that the payments should be appropriated first to the interest. See the case of Bludworth v. Jacobs. 2d Ann. 25. The judgment of the district court is erroneous as to the amount and date from which interest is to run, and will be corrected accordingly. As no change has been asked by the appellee in the decree to the judicial mortgage, it is unnecessary to inquire whether it should not have been allowed for a larger amount.

It is therefore decreed, that the judgment of the court be so amended as that the judgment in favor of Kohn, Baron Sf Co. be allowed as an ordinary debt for the sum of $4651 56 with interest at ten per cent per annum from the 30th May, 1844, until paid, and $113 costs; and that in other respects said judgment be affirmed; the costs of the appeal to be paid by the appellees.


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    Amelia M. Sewall v. F. R. Roach.
    Parol evidence is inadmissible to explain tbe intention of a written instrument, where the language of the instrument is intelligible.
    Even where there is an exclusion of warranty in a deed of sale of land, the seller is responsible in case of .the eviction of the purchaser, unless he was aware at the time of the purchase of the danger of eviction, and took the property at his risk and peril. C. C. 2481.
    Where a suit for eviction is still pending against the purchaser in possession of land, the seller may recover the price upon giving security to indemnify the purchaser.
    APPEAL from the District Court of Caddo. Olcott, J.

      Crain, for plaintiff.

      Hodge, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff sold the defendant a lot of ground. The deed states, that for the price of $800 the vendor “ does by these presents grant, bargain, sell and convey, with such title as she may possess,” the lot of ground, &e.; describing it. For the price two notes were given, one of which the defendant has paid; upon the other this suit is brought. The answer alleges, that the note was given for the purchase of the lot; that the defendant subsequently sold it at the same price to James Andrews; that one Bowles has brought suit for the lot, and the defendant fears his vendee will be evicted. Wherefore he prayed that the plaintiff’s demand be rejected, and that he recover from the plaintiff the money already paid.

At the trial of the cause it appeared from the evidence, that the plaintiff had bought the lot at a sheriff’s sale upon fieri facias against C. A. Sewall, and that a petitory action for the lot had been brought against Andrews, Roach’s vendee, in which Andrews and Amelia M. Sewall were respectively called in warranty, which suit is still pending. It is not disputed, however, that Andrews is still in possession.

There was judgment against the plaintiff upon his claim, and in favor of the defendant for the amount of the price already paid. The plaintiff has appealed.

At the trial, the plaintiff offered the testimony of the notary, before whom the deed of sale by the plaintiff to the defendant was executed, for the purpose of explaining the meaning intended to be conveyed by the parties by the expressions used in the deed, which we have already stated; and of showing, that the parties understood themselves, by those words, as excluding the obligation of warranty. We concur with the district judge in the opinion, that this evidence was inadmissible. The written language of the parties spoke for itself, We may add, that if the deed had contained words of exclusion of warranty, the seller would still have been liable in case of eviction for a restitution of price, unless he was aware at Ihé time of the sale of the danger of the eviction, and purchased at his peril and risk. C. C. 2481.

As the plaintiff had a title translative of property as her vendee, and the purchaser holding under him received and still holds possession of the property, and as the suit for eviction is still undetermined, we are of opinion that the court below erred in giving judgment for the defendant.

The court should have permitted the plaintiff to give security as ho offered to do; and, upon such security being furnished, should have given judgment for the amount claimed by the plaintiff. See C. C. 2535.

It is therefore decreed, that the judgment of the district court be reversed, and that this cause be remanded for further proceedings according to law; the costs of this appeal to be paid by the defendant.


author: Preston, J. Slidell, J.,

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    John Chaffe et al. v. John Cupp.
    Whez*e a note is signed by the mark of the drawer, he not being able to write, proof of the handwriting of the subscribing witness, and that he is dead, is sufficient evidence upon which to confirm a judgment by default,
    APPEAL from the District Court of Claiborne, Bullard, J.

      Roysdon and Spoffard, for plaintiff.

      T. Vaughan, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The defendant was sued upon five promissory notes, to which it was alleged that he had made his mark. He suffered judgment by default to be rendered against him and confirmed, on proof that he had acknowledged his mark to four of the notes. The signature of the witness to the other was proved to be genuine, and that he was dead. He has appealed, on the ground that this was not sufficient proof of his mark to this note.

In the case of Desmukes et al. v. Musgrove, 7 N. S. 26, relied upon by his counsel, the handwriting of the witness to the writing offered in evidence was proved, and that he was dead. The court held that the evidence was not the best of which the case was susceptible, because “ the instrument was signed by the obligor,” and his signature should have been proved, for which purpose the case was remanded. Here the signature of the obligor could not be proved, because it was a mark.

In the case of Harris v. Patten and Wife, it is true that the obligor made his mark, but the witnesses were living, and the court gave as the leading reason for rejecting the document, although the signatures of witnesses to it were proved, “that it was easy for the plaintiff, under our rules of practice, to annex the document he wished to prove to a commission, and to procure their evidence of its execution.” 2d Ann. 217.

It is to be observed, that the weight of authority in England and in our sister States is in favor of the principle that it is not necessary to prove the signature of the obligor to an instrument, after proving the signature of the subscribing witness, and that he is dead. Starkie on Evidence, part 2, p. 344. 1 John, cases, 230. 4 John, 461. 3 Burr, 192. 6 Burr, 45. 1 Harris & John, 337. 1 Haywood, 238. 2 Haywood, 27, 404. On questions of evidence it is desirable that uniformity of decision should exist in the different States; and although we will adhere to the decisions of our own courts in opposition to those of our sister States, we are not disposed to extend them to cases to which they do not apply.

The counsel next contends, on the authority of the case of Tagiasio et al. v. Molenari’s Heirs, 9 L. R. 521, that the plaintiff should have proved that the deceased witness was a man of honesty and general uprightness of conduct. We think, with the plaintiff’s counsel, that is to be presumed, until the contrary is at least suggested.

In all these cases it is moreover to be observed, that answers were filed, that the parties against whom the evidence was offered, objected to and strenuously opposed its introduction.

In this case the defendant sued upon a note which was genuine or forged, suffered a judgment by default to be given against him, and the evidence to be received without opposition. The evidence being before him, under these circumstances and probably knowing the parties, the district judge considered it conclusive that the amount of the note was due, as in Tagiasio's case, the document being admitted was decisive of the cause.

If the judgment of the district court had been otherwise, we would not have disturbed it, believing it a case peculiarly subject to his decision. We cannot say he erred, but, on the contrary, believed the note being in evidence without objection proved the debt; and if there was any pretext for the suggestion that it might not be genuine, more difficulty would have been made as to its introduction in evidence.

The judgment of the district court is affirmed, with costs.

Slidell, J.,

dissenting, In respect to this peculiar class of instruments, it seems to me courts, in admitting secondary evidence, should be careful to require as great an extent of testimony as can with reasonable diligence be obtained, the danger of forgery being so much greater in such cases, and I may add, of error or mistake, in consequence of the illiterateness of the person purporting to be bound. It must be conceded, that the proof that the subscribing witness was a man of good reputation would greatly aid in satisfying the mind. I think the tenor of oúr decisions and practice goes to require that extent of evidence, and I believe it would be a safe rule to do so.

My opinion therefore is, that the judgment as to one of the notes should be reversed.


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    Joseph Price v. James Curran.
    Where the consideration of a promissory note was the sale of improvements upon the public lands, it will be presumed, unless the contrary be shown, that the vendor was a settler to acquire a preemption, and not a trespasser upon the public lauds, and the consideration is good.
    APPEAL from the District Court of Claiborne, Bullard, J.

      T. Vaughan, for plaintiff.

      Andrew Lawson, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff sues on promissory notes. They were given to one Gammon for impi'ovements on public land, and by him transferred to the plaintiff, who was aware of the consideration.

The defendant is in possession of the improvements, but pleads that the sale of them to him, was an unlawful consideration for the notes, as his vendor was a violator of the laws of the United States against trespasses upon the publie land. There is nothing to show that Gammon was not in a situation to acquire the land by preemption, nor that the land was not liable to be acquired by preemption by an actual settler; and we will presume that he settled upon and improved it for that laudable purpose rather than as a trespasser, because there is no proof to the contrary. We will presume too, that Curran purchased the improvement and settled upon it to acquire the land by preemption, and was in the situation Which entitled him to acquire the land from the government.

The case is, therefore, unlike that of Jenkins v. Gibson, where the purchaser of the improvements residing in another State, and being a large landholder in Louisiana was not in a situation to avail himself of the preemption laws passed by Congress in favor of actual settlers, and the previous possessors were mere trespassers on the public land.

The legislation of Congress has for years encouraged settlements upon and improvements of the public land, with a view to its acquisition by actual settlers by preemption. The act of 1841 was intended to further this great object, not to restrict it; and the tenth section of the act, as well as the fifth section of the act approved the third of March, 1843, should be liberally construed to promote the wise policy of the government in appropriating the public land as fast as possible to the object to which it was destined by nature, improvement and cultivation by the actual settler.

The judgment of the district court is affirmed, with costs.