author: Oole, J. Vooehies, J., Spofford, J.,

text:
    Martha C. Nichols and Isaac E. Morse v. Henry McCall.
    Where the Sheriff’s return and the deed of sale made by him to the purchaser of proporty at a Sheriff's sale set forth that notice of seizure was served on the parties, the burden of proof rests on the party-attacking the sale, to show the falsity of such recitals, although it involves the proof of a negative.
    It is not necessary in executing an order of seizure and sale that a demand of payment should be made by the Sheriff.
    The Sheriff's return was in these words : “I seized and advei’tised the within desenbed property to be sold on the 15th March, 1845, but the same could not be sold, it having been slopped by plaintiff's order, and again I seised and adeei'tised the propeiiy for the 2Uh June, 1845. Held: That without other evidence it could not bo inferred from those expressions that there was an actual release of the seizure, and that a sale made by the _Sheriff after the return day of the writ, was valid, the original seizure remaining in force.
    A change in the terms of the sale if more favorable to the seized debtor than in the first advertisement of the sale, would not invalidate it, and would be presumed to have been done at the instance of the debtor.
    Parol evidence is admissible to show the acts of the party or his agent which would estop him from contesting the validity of such a sale.
    APPEAL from the Third District Court of New Orleans, Morgan, Judge of the Second District Court, presiding.

      R. Hunt and C. Roselius, for plaintiffs.

      Benjamin, Bradford fy Finney, for defendant and appellant.
   Oole, J.

This suit was instituted on the 7th April, 1855, by Mrs. Martha C. Nichols, widow of the late Nathan Morse, and Isaac E. Morse, to set aside a judicial sale made on the 24th June, 1845, by the Sheriff of New Orleans, under an order of seizure and sale at the suit of the Union Bank of Louisiana.

Mrs. Martha C. Morse having- died during the pendency of the suit, the action was revived and prosecuted by Isaac E. Morse, her son and only heir, as the sole plaintiff upon the record.

There was judgment in the lower court and in favor of plaintiff.

The principal grounds of attacking the sale are the following :

1st. That no notice of seizure was served upon petitioners.

The Sheriff’s return and the Sheriff’s deed to the original purchaser, R. C. Cammaclc, set forth, that all the legal notices were issued. The burden of proof was upon the present plaintiffs to establish the falsity of this recital, though it involved a negative. Gibson v. Foster, 2 A. 508; Fleming v. Conrad, 11 M. 301.

The correctness of the Sheriff’s return has been sustained by affirmative proof, on the part of defendant, so far as it was possible under the circumstances.

D. Augustin, then Sheriff, states that L. H. Sere, the deputy who made the return, and G. H. Tobin, the deputy who served the notice of seizure, are both dead, but the entry , in the Sheriff’s book,, in the handwriting of Tobin, was offered in evidence to show that notice of seizure was served upon Mrs. Martha C. Morse personally on the 16th January, 1845.

' This is also corroborated by Mr. Denis, the attorney at that time of the Bank, who directed the Sheriff to have the notice served on her personally, as she was then in New Orleans.

As to the notice to Isaac E. Morse, Mr. Cenas, his curator ad hoc, states :

“ In relation to notices of seizure, witness does not recollect whether he received any or not, but he was aware of the proceedings that were going on.”

The Sheriff alleges all? legal notices were given, and it is incumbent on plaintiffs to prove that this return is incorrect, for all judicial proceedings are presumed to be regular until the contrary be shown. Hubbell v. Clavum, 13 La., 496; Leibem v. Forster, 2 Ann., 503; Gentile v. Foley, 3 Ann., 146.

In the case of Grant v. Walden, Mr. Justice Bullard observed :

“ The court is unanimous in adhering to the principle that the Sheriff’s deed and return, upon the execution, are prima facie evidence of title in the purchaser at Sheriff’s sale, and consequently that he who seeks to annul an alienation must show that the formalities required by law were not complied with.”

Another objection is, “ that no demand of payment was made by the Sheriff.”

There is no law .that requires a demand to be made. Ursuline Nuns v. Depassau, 7 N. S., 645.

The third objection, that the property was sold without the benefit of appraisement,” is contradicted by the Record.

The other principal objection is that, “the Sheriff’s pretended seizure of said property was made after the return day of said writ had expired.”

There is no evidence to substantiate this objection, which is based upon the phraseology of the Sheriff’s return, which says: “I seized and advertized the within described property to be sold on Saturday, 15th March, 1845, but. the same could not be sold, it having been stopped by plaintiff’s order ; and again I seized and advertised the property,” etc., for the 24th June, 1845.

The plaintiff’s construction of the return is, that when the Sheriff was ordered to stop the sale, advertised for the 15th March, he released the property from seizure, and that before he again seized it, the return day of the writ had passed.

But such a construction is against the presumption that the Sheriff executed the writ according to law, and is not warranted even by the Sheriff’s expressions.

The Sheriff was ordered to stop the sale for the 15th March, but it is not stated nor alleged that he was ever directed to release the property from seizure.

It is a forced implication from the terms, that he “ again seized,” that he had released the previous seizure without authority from the plaintiff and against his official duty under the writ.

If against every reasonable or legal presumption the Sheriff did in fact abandon his first seizure, it was incumbent on the plaintiff to establish the fact by proof and not by strained inferences.

Even if the Sheriff did in ignorance of his duties again seize the property, this second seizure could not affect the validity of the first, as long as he did not release the previous seizure and did not return the writ, and there is no evidence to show that he either released the first seizure or ever returned the writ.

The first seizure being legal then remained in force, and the second could not affect it, for it was useless.

The words “ again I seized,” seem to be an unhappy form of expression on the part of the Sheriff to show that he again proceeded to act under the seizure that he had already made. Yery few Sheriffs are accurate grammarians, and it would be unwise to annul a sale on account of an inference from such an expression as this, that he had violated the law, when this conclusion is expressly contradicted by his own return, for he avers in his return that he fulfilled all the requisite formalities, and that all the legal notices were given.

The circumstance that the sale of the property did not take place till after the return day of the writ is not material; a legal seizure having been made, the Sheriff was warranted in retaining the writ till the sale was finally effected. Sheldon v. Canal Bank, 11 Rob. 181.

The plaintiffs cannot complain of the change of the terms of sale, because they were more favorable to them than in the first advertisement, and we may fairly presume the Bank was induced to stop the sale on the loth March, and to readvertise the property on other terms by the acts of the plaintifls and of their duly authorized agents.

We consider the validity of the sale to be established without any reference to the alleged ratification of the sale by plaintiffs, or to the plea of prescription of five years.

It is urged that the testimony of II. B. Cenas was improperly received in a proceeding which involves the title to real estate.

The power of attorney, however, under which Mr. Cenas was authorized to act on behalf of the plaintiff here, is in evidence, and his acts in that capacity are the acts of his principals.

He exhibited his power to the Bank. He called the attention of the Bank to the desire of the parties to have the property sold in separate lots, and on some credit, and he attended at the sale and acquiesced in the whole proceedings:

All this is matter properly proven by parol, but the effect is to estop the plaintiffs in the present suit.

It has often been held, that if a man stands by and is silent while his own property is being sold, and suffers another to become the purchaser, or if, by his acts, his conduct, or Ms words, ho causes another to believe in a certain state of things, and induces him to act on that belief, he will be estopped by such proceedings on Ms part. Marsh v. Smith, 5 Rob., 518; Blanchard v. Allain, 5 An., 368.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and it is further ordered, adjudged and decreed, that the demand of plaintiffs be rejected, and that they pay the costs of both courts.

Vooehies, J.,

dissenting. I am of opinion that the judgment in this case ought to be affirmed for the reasons assigned by the Judge a quo, except in relation to the questions as to the liablity of the party for the fruits of the property, on ■which I express no opinion.

C. Roselius and R. Hunt, for a re-hearing, argued :

The court, in declaring the sale to the defendant valid, has substantially decided, 1st. That a sale of immovable property by a Sheriff, under an order and writ of seizure and sale, upon terms different from those contained in the order of court and prescribed by law, is a valid judicial sale : and 2d. That the terms of such a sale may be altered by the plaintiff, without the written consent of the defendant.

It is believed that both these propositions are in direct opposition to the settled jurisprudence of the State; and the court is prayed to consider the following statement of the facts of this case, and the argument thereon.

The Bank presented its petition for an order of seizure and sale, on the 13th January, 1845. The court on the same day made the order in the following-words : “ Let a writ of seizure and sale issue in this case, according to law, and let II. B. Cenas be appointed curator ad hoc to represent the absent defendant, Isaac E. Morse.”

The writ of seizure and sale was issued on the 14th January, and made returnable on the second Monday of March, 1845. It is in the usual form, addressed to the Sheriff in the name of the State of Louisiana, and runs as follows :

“You are hereby commanded to make seizure and sale of five certain lots of ground, to wit:

The writ, under which the property in controversy was sold, issued on the 14th January, 1845. The Sheriff’s return shows that he received it on the same day ; and that he seized and advertised _the property for sale on Saturday, the 15th March, 1845, after having complied'with all the requisite formalities, and after the legal notices had been issued. But that the sale could not be effected because the same was stopped by order of the plaintijf. He then proceeds in his return to state (after a semi-colon) : And again I seized and advertised the same property (of which he gives the description) to be sold on the 24th June, 1845,” on conditions different from those specified in the writ, which was returned on the 18th November, 1845. There is nothing in the return from which the postponement of the sale, under the first advertisement, can possibly be deduced, nor when the seizure was effected, there being only three dates therein specified, the 14th January, the 24th June and the 18th November, 1845. The writ was made returnable on or before the second Monday of March, 1845. None of the requirements under Articles 654, 655, 667, 670 and 671 of the Code of Practice, which are essential to the validity of a judicial sale, appear from the return of the Sheriff to have been complied with. It is impossible to consider the sale as made under the first seizure, for the property was evidently not in the Sheriff’s posses-' sion when he “ again seized it.” Had it been so, his return would certainly have shown what disposition he had made of the rents"of said property. O. P., 656, 657. After the return day of the writ, it is clear that no valid seizure could be made under it. It is obvious, therefore, that the sale in question, as a judicial one, must be considered as an absolute nullity. The evidence is insufficient, in my opinion, to show that it was thus made by the consent of the appellees or subsequently ratified by them.

It is, however, proper to observe, that I was absent on the trial of this cause and consequently did not have the benefit of the oral arguments of counsel. But I have carefully examined the facts and law of the case, in connection with the briefs on file, in arriving at the conclusion to which I have.

Spofford, J.,

concurring. I concur in the decree, because the evidence satisfies me that the time and manner of the sale were acquiesced in and sanctioned by the plaintiffs, who were present through their duly authorized agent.

“ 1st. Two contiguous lots of ground, etc., measuring each 30 feet, French measure, front on Rampart st., etc.

“ 2d. Three lots of ground, etc., in square No. 7, measuring each 60 feet French measure, front on Rampart street, etc., contiguous to each other, etc., together with the six one-story buildings thereon, known under the appellation of Morse’s Row.

“ And 525 shares of tlio capital stock of the Union Bank of Louisiana.

“ To satisfy plaintiff’s claim of the sum of §18,375, with interest at the rate of 10 per cent, a year from the 1st day of July, 1840, and on §7,875, at 10 per cent, a year from the 2d day of July, 1840, together with §7 costs of protest, §6 costs of copies and costs of suit: and in what manner you shall have executed this writ, you are further ordered to make return thereof to our parish court of the parish and city of Now Orleans on the 2d Monday of March, 1845.”

The duty of the Sheriff under this writ is clearly laid down in the Code of Practice, 643, 651, 654, 655, 656, 667, 670, 671 and 735, et seq; and no principle is more firmly settled 'in our jurisprudence than that which declares, a purchaser under a sale made by virtue of such a writ, does not acquire a valid title where the formalities prescribed by law for the alienation have not been observed.

The citizen can only be deprived of his property in two ways—by his own consent, or by a forced alienation under the authority of law. The latter mode of transferring property derives all its efficacy from a strict pursuance of the formalities prescribed by law. Where then these are wanting, there is not the alienation by law, which can alone supply the want of consent by the owner.

It was the duty of the Sheriff, as soon as he received the writ of seizure, to give notice thereof to the defendants, and after the legal delay to seize the property described in the writ, and to execute the writ in the same manner and to observe the same delays and formalities as in ordinary cases under a ji. fa.

It was his duty then, when he seized the houses of defendants, to keep them sequestered in his custody, and to take and collect all the rents and revenues which they yielded.

It was his duty, three days after giving notice in writing to the defendants of the seizure of their property, to advertise the sale of the property seized.

It was his duty to have the property appraised, and to sell it, according to law, at public auction, to the highest bidder, for cash, provided the price offered reached two-thirds of the appraisement, and if not, to postpone the adjudication, and after a “ fresh notice of the time and place of sale,” etc., to sell the property at twelve months credit.

Did the Sheriff perform his duty and comply with the formalities prescribed by law for the sale of the property ? Iiis return furnishes an answer to the question. The return is in these words:

Received 14th January, 1845, and after having fulfilled all the requisite formalities, and all the legal notices having been issued, I seized and advertised the within described property to be sold at the City Exchange, St. Louis street, between Chartres and Royal streets, in this city, on Saturday, the 15th of March, 1845, but the same could not be sold, it having been stopped by plaintiff’s order.

“ And again I seized and advertised the same property divided as follows, to wit : ”

[Here follows the description of the property as divided into seven lots, with a number of shares of bank stock on each lot.j

To be sold at the City Exchange, St. Louis street, between Chartres and Royal streets, in this city, on Tuesday, 24th June, 1845, at 12 o’clock, M., when Alfred Mercier being the last and highest bidder for the lot firstly described, said lot was adjudicated to the said Alfred Mercier for the price of §10,000. •

“ Lots 2d, 3d, 4th and 5th described, to George Morgan for the price of, as follows :

“ Lot secondly described, for §4,900; Lot thirdly described, for §3,600; Lot fourthly described, for §3,400 ; and Lot fifthly described, for §3,400 ; Lot sixthly described to C. M. Jones for §3,350 ; Lot seventhly described, to R. C. Cammack, for §3,325, payable as follows, viz : The purchaser of Lot No. 1, to assume the mortgage to secure 180 shares of the Union Bank stock, and the loan thereon of §3,600, due 1st Nov. 1845, and renewable on the terms and conditions of the charter of said bank. The purchaser of lot No. 2 to assume the mortgage to secure 65 shares of said stock, and the loan thereon of §1,300, due and renewable as aforesaid.

“ The purchaser of lots Nos. 3, 4, 5, C and 7 to assume on each lot the mortgage to secure 56 shares of stock, and the loan thereon of $1,120, due and renewable as aforesaid.

“ The balance of the purchase money payable one-fifth cash and balance at 6, 12,18 and 24 months, for notes bearing interest at the rate of 7 per cent, per annum from the date of sale until paid, satisfactorily endorsed and secured by mort-' gages on the property sold ; which I hereby acknowledge to have received as follows, viz : according to the above conditions.

Returned 18th Nov. 1845. [Signed] L. IT. SERE,

Deputy Sheriff.”

It will bo observed that this return consists of two parts.

The first part contains the return of the Sheriff’s proceedings under the writ in relation to his seizure and advertisement of the property to be sold on Saturday, 15th March, 1845. It sets forth that- all the requisite formalities were fulfilled, and all the legal notices were issued, but the property could not be sold, the sale having been stopped by plaintiff: and there the first part of the return ends. It calls for no comment at present.

The second part of the return contains the Sheriff’s proceedings in relation to the seizure and advertisement of the property for sale on Tuesday, 24th June, 1845, and to the pretended sale of the property under the writ. It is the basis of the title set up by the defendant, and must therefore be carefully examined.

The Sheriff commenced the second part of his return as follows : “ And again I seized and advertised the same property,” etc. The word “ again ” means “ a second time ; once more.” Webster’s Dictionary. This is the sense in which the word is used, not only by accurate grammarians, men versed in grammar and the construction of languages, and learned phiologists ; but by all classes of persons, in common conversation, and in the every day business of life. This, too, is evidently the sense in which the Sheriff used the term in his return. lie said, and he meant to say, that he seized the property a second time, and advertised it a second time. It is respectfully submitted to the court, that no rule of construction, whether literal, strict and grammatical, or rational, enlarged and liberal, can impart any other signification to the Sheriff’s language. That language has but one meaning, and common sense, custom, law, grammar, unite in fixing it. It has no need of interpretation, and for that reason does not admit of it. The plaintiff, therefore, earnestly submits that this court has erred in the conclusion to which it arrived, and which it has expressed in these words : “ The words ‘ again I seized,r seem to be an unhappy form of expression on the part of the Sheriff to show that he again proceeded to act under the seizure that he had already made. Very few Sheriffs are accurate grammarians.” The court cannot thus construe the words; out of the return, The words “ again I seized,” are in the return and must have their usual meaning and effect.

The language of the second part of the return is in strict conformity with the rules of grammar ; but if the language were inaccurate, that inaccuracy would not be allowed to nullify and render void the clear statement of a fact by a sworn officer of the law.

Now, if it be admitted that the Sheriff’s statement is true, and that he did seize the property a second time, the question arises, why did he a second time seize and advertise the property for sale? The answer is obvious. Under the first seizure, the property was advertised to'be sold on Saturday, March 15th, 1845, but the same could not be sold, the sale having been stopped by plaintiff’s orders : the property must, at that time or soon after, have been released from seizure by the Sheriff; and consequantly a second seizure became necessary to enable him to advertise and sell the property. If this natural and obvious conclusion is adopted, the official declaration of the Sheriff “ again I seized,” is clear and has effect; but if this conclusion is rejected, then the official declaration of the Sheriff must be stricken out of his return, and it must be inferred that the Sheriff who had seized, and still held possession of the property under the writ, made a second seizure of the same property in his own hands, at the suit of the same parties, and under the same writ by which he then held it. It is not to be presumed that the Sheriff did a useless or absurd thing ; nor can such a construction be put upon his language as will render it a nullity or quite elude its force. And yet this is precisely the construction which the court has placed upon the words “ again I seized,” etc.

In coming to this conclusion the court has literally adopted the defendant’s argument, at page 13 of his printed brief, and joined in declaring: “ If, against every reasonable or legal presumption, the Sheriff did in fact abandon his first seizure, it was incumbent on the plaintiff to establish the fact by proof and not by strained inferences.” The court then adds to the defendant’s argument the following : “ Even if the Sheriff did, in ignorance of his duties, again seize the property, this second seizure could not affect the validity of the first, as long as he did not release the previous seizure, and did not return the writ, and there is no evidence to show that he either released the first seizure or ever returned the writ. The first seizure being legal, then remained in force, and the second could not affect it, for it was useless.”

There is no dispute as to the return of the writ. The date of the return is fixed by the Sheriff as follows, viz : “ Returned 18th November, 1845.” As for the assertion that the property was not released, but remained under the first seizure in the Sheriff’s hands and was sold under that seizure*, it has already been shown from the Sheriff’s statement, that it is impossible to consider the sale as made under the first seizure ; “ for,” in the language of Judge Voorhies, “ the property was evidently not in the Sheriff’s possession, when ho again seized it.”

But apart from what has been said, the record contains conclusive evidence that the Sheriff did not retain possession of the property under the first seizure until the sale. The writ was issued January 14th, 1845 ; the property was seized and advertised “ to be sold on the 10th March, 1845,” but the sale was stopped by plaintiff. The property was again seized and advertised to be sold on the 24th June, 1845. The evidence shows that the six houses in Morse’s Row were rented at $40 each, per month, and 'the other house at $100 a month, making together $340 a month. If the property remained in the Sheriff’s hands under seizure from January, 1845, until it was sold, then, as by Art. 650 of the Code of Practice, “ when the Sheriff seizes houses or lands, he must take at the same time all the rents, issues and revenue which this property may yield,” his return would show what disposition he made of the rents of the property for the months of January, February, March, April, May and June. For, rents received by the Sheriff from property under seizure in his hands, are moneys which he is bound to credit on the execution. But the Sheriff’s return is silent on the subject of the rents, and thus bears evidence that he did not collect the rents, and did not retain possession of the property during those months.

Now, if it be true that the property did not remain in possession of the Sheriff under his seizure in January, until the sale on the 24th Juno, 1845, but was seized a second time by the Sheriff, the evidence establishes beyond a doubt, that the second seizure was made after the expiration of the writ, and was therefore illegal. The record shows that the “ counsel for defendant offered in evidence the appraisement made on the 13th March,” for the sale advertised for the 15th. The plaintiff therefore must have directed the Sheriff to stop the sale sometime subsequent to the 13th March, the date of the appraisement. But the return day of the writ was 10th March, 1845. The sale of the property must then have been stopped, and the property itself must have been released from the first seizure, after the expiration of the writ; and the second seizure of the property was without warrant of law, and consequently the pretended judicial sale under the writ was a nullity.

The second part of the Sheriff’s return proceeded as follows :

“ And again I seized and advertised the same property, divided as follows, to wit :

“ I. One lot of ground and brick dwelling house, measuring, etc., front on Rampart street, between Canal and Customhouse, with 180 shares of the capital stock of the Union Bank. <

“ II. One lot and brick dwelling, corner of Rampart, Canal and Basin streets, measuring, etc., with 65 shares of the capital stock of the Union Bank.

“III. One lot and brick dwelling house adjoining lot No. 5, and measuring, etc., together with 56 shares of the capital stock of the Union Bank.

“IV. One lot and brick dwelling adjoining lot No. 3, etc., together with 56 shares of the capital stock of the Union Bank.

“V. One lot and brick dwelling, adjoining lot No. 4, etc., together with 56 shares of the stock of the Union Bank.

“ VI. One lot and dwelling adjoining lot No. 5, etc., together with 56 shares of the capital stock of the Union Bank.

“ VII. One lot and brick dwelling house adjoining lot No. 6, etc., with 56 shares of the capital stock of the Union Bank.

“ To be sold, etc., on 25th June, 1845, when,” etc., the property was sold on the conditions and in the manner set forth in the portion of the return already printed in this application for a re-hearing.

The division of the property and the conditions of the sale were entirely different from those specified in the writ. The mandate of the court was disregarded. Property ordered to be sold in block was advertised for sale in separate and distinct portions ; and these portions were severally adjudicated to the highest bidders. The terms of sale were at the same time changed. Instead of paying cash, the purchasers were to be allowed to assume respectively mortgages to secure certain shares of bank stock and the loan thereon, due 1st November, 1845, and renewable on the conditions of the charter of the bank, the balance of the purchase money payable one-fifth cash, and the balance at 7,12,18 and 24 months, bearing interest, etc. It is manifest; then, that the sale was not made in conformity with the order of the court, and is, therefore, not a judicial sale. The purchasers must have perceived, on a mere inspection of the proceedings, that the sale was made by the Sheriff on terms different from those ordered by the judge, and proscribed by law for forced sales, and that, therefore, the titles offered them were not derived from justice, through its officers pursuing the strict forms of law.

The writ was the warrant or authority of the Sheriff, who was bound, in executing it, to conform, in all his proceedings, to the requisites of the law. In making the seizure, in giving notice to the parties, in advertising the property, in the appraisement and in the sale of it, he was bound to observe and comply with the formalities and provisions of law. A seizure of property may be legally made, notices may be regularly issued and served, an appraisement may be formally made, and yet, if the Sheriff advertise and sell the property in a manner and on terms different from those prescribed by law for judicial sales, the whole proceeding loses its judicial character. The Union Banlc v. Bradford, 2 An. 416. Moore v. Hampden, 3 An. 195.

“ A forced alienation results from a sale made at the time and in the manner prescribed by law, etc.; if a sale be made where these requirements are wanting, the purchaser does not acquire the right, and interest which the debtor had in the thing sold.” Dufoar v. Camfranc, 11 M. 610, 675. “ One claiming title under a forced sale of property must show that all the requisites of the law have been strictly and faithfully complied with, otherwise the sale shall bo annulled. 1 Hen. Dig. 651, Nos. 2 and 3, citing 7 N. S. 185 ; 8 N. S. 246 ; 3 La. 421; 4 La. 140, 207 ; 9 La. 542 ; 2 An. 846.

Courts are not at liberty to pronounce any formality required by law, unnecessary ; or to enquire whether a change in the manner and terms of sale, from those ordered by the court, and prescribed by law, to others entirely different and substituted by the seizing creditor, were more favorable to the complaining debtor whose property has been sold. The change itself at once destroys the judicial character of the sale : and in this sense the plaintiff submits that the following proposition, laid down by the court, is not law, viz : “ The plaintiff cannot complain of the change of the terms, because they were more favorable to him than in the first advertisement.

The plaintiff may, perhaps, hereafter show that these terms were, under the circumstances of the case, peculiarly harsh and oppressive; but the question now is, wore they legal or illegal ? In other words, is that a judicial sale, which is not made in conformity to the order of the court, and to the requisites of the law ?

The plaintiff forbears to press this point any further; but as the opinion of the majority of the court seems to rest upon it, and as the plaintiff believes the sale on which the defendant relies cannot be deemed a judicial sale, without controvening the well established principles of law in relation to forced sales, he again earnestly and respectfully prays the court to reconsider the point.

If the argument just urged is correct, the sale under which defendants claim title, was not a judicial sale. The question then arises, was it a sale made with the consent of the defendants in the executory proceedings ?

Now, if the purchaser at that sale derived his title from the consent of the owners that the Sheriff should sell on terms which they prescribed, the sale being a public sale, remained subject to the rules of sales of real property. Moore v. Hampton, 3 An. 195 ; and the consent must have been in writing. The jurisprudence of the State is settled on this point.

In Bonner v. Baker, the plaintiff introduced the testimony of Mr. Kinney to prove that the defendant was present at the public sale of the property to the plaintiff and made no objections. This court said : “ The testimony of Mr. Kin ney we consider immaterial. He says lie was at the Arcade when the property described in plaintiff’s petition was offered for sale and adjudicated to plaintiff Defendant was also present and made no objections."

“ In relation to auction sales of immovables and slaves, the law requires that the authority given by the vendor to the auctioneer should be in writing, as well as the condition on which sales are made. C. C., Art. 25, 84. No such authority appears to have been given in this case. In the case of ‘ Pew v. Livaudais, 3 La., 460, the court hold’: We have no hesitation to say, that as another part of the Code, Articles 2255-6, requires the assent of the parties to a sale of real estate to be written, unless the party against whran the sale is sought to be enforced, admits it; we caunot recognize any validity in an auction sale of real property, the owner of which did not authorize or assent to in writing, and does not admit his assent otherwise.”

“ The same principle is also recognized in the case of Short v. Knight, 15 La., 484. In that, the adjudication was held to be null and void, on the ground of the absence of written evidence of any authority given by the defendant to the auctioneer to sell the lot.” 8 An. 284.

In the present case there is not only a total absence of any written evidence of the plaintiff’s consent to the conditions on -which the property was sold, but the proof is clear that the change in the terms of sale was never made known to the plaintiffs. How then can it be argued that the plaintiffs gave a legal consent to the sale and to the conditions on which it was made ?

The court says: “ The power under which Mr. Cenas was authorized to act on behalf of the plaintiff here, is in evidence, and his acts in that capacity are the acts of his principals.” To determine whether the acts of an agent are binding upon his principal, it is necessary to determine first the legality of the acts and the extent of the authority ot the agent. A principal cannot authorize his agent to do anything’ contrary to law or public policy. A principal cannot confer upon his agent power to do that which the principal himself has no legal power to do. The law will not allow any such authority or power, and therefore the act would bo void. If then a change in the manner and terms of a public sale of immovable property by the Sheriff, cannot be made by the owners of the property without a written consent to a change, and to the conditions on which the sale is to be made, it necessarily follows that the owners cannot confer upon their agent authority to make such a charge otherwise than in writing; and, therefore, the plaintiffs here could not delegate authority to Mr. Cenas to change the terms of sale of their property by the Sheriff in any other way than in writing. But Mr. Cenas, who was introduced by the defendant to prove his consent as agent to the change in the conditions of the sale under consideration, testified clearly and positively that ho did not give any written consent to the change. In his direct examination, after stating that when ho was informed “ that the property had been seized, he applied to the bank to have the terms of sale changed if possiblehis testimony continues as follows:

“ Witness had several conversations with Mr. Frey, the cashier, and Mr. Adams, ■who was then cither the president or one of the principal directors; and whether, through the representations of witness or some other cause, the sale, as first advertised, did not take place and more favorable terms were afterwards granted by the bank, upon which the property was sold. The terms to which witness refers are those as stated in the advertisement for the sale on the 24th June, 1845.”

“ This statement appeared to the plaintiffs to be somewhat vague. It was, therefore, deemed necessary on the cross-examination to press Mr. Cenas upon the point of the agreement which the defendant pretended had been made concerning the change of the conditions of the sale. Being thus pressed, he testified : “ It is not to witness’ knowledge that the conversation had between him and Messrs. Frey and Adams, were reduced to writing.”

“ He does not know whether the terms of sale were altered by the bank for the purpose of saving themselves, or through the solicitation of witness.”

There never -was any positive agreement between witness as curator ad hoc, or as agent, and the President and Cashier of the bank, as to the terms upon which the property was to be sold.”

There never was any categorical agreement, either verbal or written, between the bank and witness, fixing the terms of sale.”

The examination in chief was then resumed by defendant, and Mr. Cenas said as follows, viz:

“ Witness was aware that the terms of the new advertisement were to be made more easy, but he did not know the exact terms until he saw the advertisement.”

This testimony establishes the fact that the property was sold by the Sheriff upon terms dictated by the bank, without the consent written or verbal of the defendants in execution or of their alleged agent, in violation of law and of the order of court.

His Honor, Judge Spofford, in giving his assent to the decree of this court, said : “ I concur in the decree because the evidence satisfies mo that the time and manner of the sale were acquiesced in and sanctioned by the plaintiffs who were present through their duly authorized agent.” This language is quite guarded, it conveys the idea, not that the plaintiffs gave any positive assent to the altered terms of sale, but, that they submitted to them without opposition on the part of their agent who was present, and that they (thus?) sanctioned them. The Judge does not detail what part of the evidence satisfied him that the time and manner of the sale were sanctioned by the plaintiffs who were present through their duly authorized agent.” But the ground of his concurrence is perhaps more fully stated in the subjoined extract from the opinion of the majority of the court, who have adopted it literally from defendants brief:

“ The power of attorney under which Mr. Cenas was authorized to act on behalf of the plaintiff here, is in evidence, and his acts in that capacity are the acts of his principals. He exhibited his power to the bank. He called the attention of the bank to the desire of the parties to have the property sold in separate lots, and on some credit, and he attended at the sale, and acquiesced in the whole proceedings. The effect of this is to estop the plaintiffs in the present suit. It has been repeatedly held that if a man stands by and is silent while his own property is being sold, and suffers another to become the purchaser, or if, by his acts, his conduct or his words, he causes another to believe in a certain state of things, and induces him to act on that belief, he will be estopped by such proceedings on his part. Marsh v. Smith, 5 Bob., 218 ; Blanchard v. Allain, 5 An. 368.”

The plaintiff feels constrained here again earnestly to entreat the court to reexamine this position.' A brief reference to the evidence connected with it is deemed important.

On the 8th of May, 1844, the plaintiff, I. E. Morse, wrote a letter to the Union Bank, stating that he had just received a communication from the attorney of the bank, informing him that two of his (Morse’s) bonds had been placed in the attorney’s hands lor suit; that he, Morse, had been only waiting for a favorable moment to offer all his property (for sale) to pay off the debt due the bank; that in the fall of the year when the bank paid off one-quarter of its capital, the mortgaged property and bank stock would bring a better price; that the property might then bo sold on a credit, but if the Directors thought a forced sale for cash necessary, he trusted that the bank would sell the lots on Circus street separately and bid a fair price for the property, which would bring enough to pay off all the bank debt, and leave a surplus; and ho concludes thus : “ the only favor then that I ask is, if it be possible to got along without sacrificing this property until after the payment of the bonds in November (which I trust will save the credit of your institution), and that then the property, stock, &e., shall be sold for cash, if you think best, or if you do not want the money immediately, for such credit as you may consent to.”

The bank never answered this letter, but it refrained from seizing and selling the property in May, 1844.

About six months after this, the plaintiff cams to Now Orleans on his way to attend the meeting of Congress, in Washington. While in New Orleans, he gave the following power of attorney to Mr. H. B. Cenas :

“New Orleans, Nov. 14th, 1844.

We, the undersigned, do hereby nominate and appoint our friend, Hilary B. Cenas, of the city of New Orleans, to be our lawful agent and attorney in fact, to represent us and act for us in all matters in relation to the sale of all real estate, bank stock, to sign and make notes, receipts, to compromise, sell, and empowering him to use our names jointly and severally and in solido, to bind us in any manner that we can bind ourselves, hereby ratifying and confirming all his acts and signatures to have the same force and effects as if the same had been done by ourselves.

(Signed) Martha C. Morse,

Isaac E. Morse,

Sole heirs and executors of the estate of N. Morse, deceased.

The defendant examined Mr. Cenas, as a witness, in explanation of the plaintiffs’ motives in executing the power of attorney.

He states, that “ Mr. Morse, previous to his departure for Washington City, handed to witness the power of attorney herein filed, and told witness that he had been endeavoring to effect a settlement with the Union Bank of his and his mother’s indebtedness to said bank—that this debt was secured by mortgage upon his property on Rampart street, and that he was anxious to have the property sold or disposed of to pay the debts, and that he had actually offered the property, as witness understood him, to the bank in payment of the ..debts, and had been in treaty with the bank to that effect. That something would have to be done very soon, as the bank was pressing for a settlement, and that he thought it best to leave this power of attorney to sell the property in case the bank should consent to a private sale. At any rate, that witness was to confer with the bank, and do the best that he coidd.

“ Witness was under the impression at the time, from the conversation which he had with Mr. Morse, that the property had to be sold that winter, and that if not sold as he desired, the bank would proceed to sell under its mortgages. Informed the bank through Mr. Frey, the Cashier, that he held the power of attorney and ■was ready to do all he could to subserve the interest of Mr. Morse and his mother in the matter.”

It appears that Mr. Cenas did not effect a private sale of the propertyon the 14th of January, 1845, the bank sued out a writ of seizure and sale, to have the houses and lots and the stock of the present plaintiffs sold in block, had a curator ad hoc appointed to represent I. E. Morse, who was in Washington, attending to public business, and advertised the property for sale; when the proceedings were had which have been already examined. To complete the history .of these proceedings, it is necessary to add the following resolution, by which the property was sold by the Sheriff, at public auction, on the 24th of June, 1845, in midsummer, when comparatively few capitalists are in New Orleans:

“ New Oeleans, 25th April, 1845.

“ The Board, on motion, consented to have the property of the estate of N. Morse, mortgaged to the bank for the Stock and Loan, sold in lots, as specified in the resolution of 1th of March last, and on the following terms, viz: The purchaser to be entitled to a loan of $20 per share on the stock, payable according to the the terms of the charter, and the balance of the purchase money payable one-fifth cash and the remainder in notes at 6, 12, 18 and 24 months, bearing seven percent, interest per annum, satisfactorily endorsed and secured by mortgage on the property.”

It is apparent from Mr. Cenas’ testimony, that the power of attorney given to him by the plaintiffs, was with a view to enable him to effect a private sale of the property, in case the bank should consent to such a sale.

It is certain that the power of attorney, however general in its terms authorizing Mr. Cenas “ to represent the plaintiffs, and to act for them in relation to the sale of real estate,” and “ to bind them in any manner that they could bind themselves," did not and could not confer upon him any power which they themselves did not possess, and consequently could not authorize him to consent to a change in the conditions of a public sale of their real property, without expressing that consent in writing. “ A contrary doctrine would,” according to the opinion pronounced by Judge Martin in 3 La. 460, “ deprive all the real property, in this State of the protection which the Code provides for it, against perjury, forgetfulness or error.”

It is equally certain that the power of attorney' did not authorize Mr. Cenas to represent the plaintiffs in a suit against them and that his appointment as curator ad hoc to represent Mr. Morse, who was absent from the State, did not empower Mr. Cenas to waive any formality prescribed by law, or to change the terms of sale fixed by the order of the court.

It is unnecessary to inquire, whether in accepting the appointment of curator acl hoc, Mr. Cenas virtually resigned his agency under the power of attorney, and could thenceforth act only as a curator ad hoc, in relation to the Sheriff’s sale ; for, if it be conceded that he exercised at once .the authority of a curator ad hoc under the appointment of the court, and the authority of an agent under the appointment of the plaintiffs, still this combined authority did not legalize the terms of sale upon which the Sheriff adjudicated the property. It has indeed been seen that Mr. Cenas expressly testified that he never gave any consent, written or verbal, to tlie change in the terms of sale; and further, that he never saw or knew the change until it had been actually made and advertised by the bank.

The plaintiffs admit freely the correctness of the following statement of the court: “ It has been repeatedly held, that if a man stands by and is silent while his own property is being sold, and suffers another to become the purchaser, or if, by his acts, his conduct or his words, he causes another to believe in a certain state of things, and induces him to act on that belief, he will bo estopped by such proceedings on his part.”

They admit also the correctness of the decisions in 5 Rob., 518, and in 5 An. 368, referred to by the court. In the case cited from 5 Rob., 518, the defendant purchased a tract of land by the advice and assistance of the plaintiff himself, who was at the time owner of the same titles under which he claimed the land in the case, but concealed their existence from the defendant. In the case cited from 5 An., 368, certain real property inventoried and appraised as belonging to the succession of Isidore Blanchard, was under the advice of a family meeting sold; and the proces-verbal thereof described and adjudicated the land as it was inventoried. Victor Blanchard signed the inventory and the proceedings of the family meeting ; was present at the judicial sale, aud was a party to the proces-verbal of adjudication without any explanation. That formed against him a presumptio juris et de jure of the truth of the enunciation that the property belonged to the succession of Isidore Blanchard. Victor Blanchard died; and his heirs instituted suit to recover the property from the purchaser. And the court held that the heirs were estopped from asserting title.

But the plaintiffs respectfully submit that neither the decisions which have just been examined, nor the principle which they have been cited to support, can be properly applied to the case now under consideration: a case of seizure and sale of the real estate of absent persons on different terms from those fixed by the order of court and prescribed by law; on terms dictated by the plaintiff in execution, without the consent, verbal or written, of the defendants or their agent, in violation of the policy of the law. Bonner v. Baker, 8 An.. 284 ;■ Pew v. Livaudais, 3 La. 461; C. 0. Arts. 2584, 2255-6.

Nor can the fact that Mr. Cenas attended the sale and made no objections to it, estop the plaintiffs here. If- the decision of Bonner v. Baker, made in May, ’53, is to be respected, the mere presence of the plaintiffs themselves at the sale of their real property, would not have been an estoppel to the present suit. A fortiori, the attendance of Mr. Cenas at the sale cannot estop the plaintiffs from setting up their title now. If, on the other hand, that which was decided to be law in 1853, is to be overturned and disregarded now, and the presence of the plaintiffs at the sale of their real estate by the Sheriff under the circumstances of the case, would have estopped them, as the majority of the court in the opinion under examination, intimate it would have done, yet, as in point of fact, the plaintiffs were not personally present at the sale, the question arises, whether the mere presence of their agent at the sale, can estop them ? And this question must be answered in the negative.

The power of attorney to Mr. Cenas, was a power “ to represent the plaintiffs and act for them in all matters in relation to the sale of all real estate, bank stock; to sign and make notes, receipts; to compromise, sell; and empowering him to use their names jointly and severally, and in solido to bind them in any manner that they can bind themselves.” Surely the court will not hold that this power of attorney conferred upon Mr. Cenas authority to bind his principals in any other manner than by writing, in relation to the sale of real estate.

Where a man unintentionally produces a false impression in order to mislead another or to obtain an undue advantage of him, there is a positive fraud, in the truest sense of the terms. There is an evil act with an evil intent; dolum malum ad circumveniendum.

It makes no difference whether the fraud was perpetrated by the party directly interested or by an agent, if the fraud be adopted by the principal. But where the alleged fraud by a vendor of real estate consisted in a fraudulent concealment of a right of way over the premises, proof of concealment by vendor’s agent has been held insufficient to set aside the purchase; there must be proof of direct personal knowledge and concealment by the principal himself. And knowledge acquired by an agent, otherwise than as an agent for such sale, of a fact, the non-communication of which is made the ground of relief against the purchaser, does not affect the contract. 1 Story’s Equity; Wilde v. Gibson, 1 House of Lords’ cases, 605.

These principles apply to the case of a man whose property is sold while he stands by and is silent.

In order, however, to justify the application of this cogent moral rule, it is indispensable that the party so standing by and concealing his rights, should be fully apprised of them, and should by his conduct or gross negligence influence the purchase; for if he is ignorant of his rights, or if his acts- or silence do not mislead or in any manner affect the transaction, there can be no just inference of actual or constructive fraud. Por a right can be lost or forfeited only by such conduct as would make it fraudulent and against conscience to assert it. 1 Story’s Equity, l 387.

Re-hearing refused.


source: Caselaw Access Project

author: Cole, J.

license: Public Domain

text:
    D. M. Ellmore v. J. Hufty, et als.
    A Sheriff cannot be made responsible in damages for executing a judgment conferring a privilege on a certain object, by the seizure and sale of the object. The judgment and mandate in the suit are his authority.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      McCay Edwards, for plaintiff and appellee.

      C. A. Taylor and Hunt § Bright, for defendants.
   Cole, J.

This is a suit to recover from defendants damages for the alleged illegal detention of the schooner Isaac Tunnel, and also $3500, in the event they should fail to restore her to plaintiff. There was judgment in favor of defendants, reserving all the rights of plaintiff against P. N, Oaulon, J. Baudrillart and the surety on the sequestration bond, if any he have. Oaulon was plaintiff and Baudrillart defendant in the suit in which the writ of sequestration issued. Plaintiff has appealed. There is no error in the judgment. Defendants acted under a writ, issued in conformity to a judgment, decreeing a privilege on the vessel. They had no discretion, and were obliged to follow the order of court. The mere notification by plaintiff to them of his property in the vessel could not be regarded, when they had a writ, informing , them of the privilege, and commanding them to execute the same. If there were any legal grounds of opposition, plaintiff ought to have resisted the execution of the judgment by some one of the ways provided by law. The responsibility of a Sheriff, executing a judgment conferring a privilege on a certain object by its seizure and sale, is very different from that of executing an ordinary fi. fa. In the former case he has no discretion; the judgment and mandate in the writ are his authority. In the latter he is responsible for a seizure of property not belonging to the execution debtor, unless he is protected by the simulation or fault of the real owner, or some other legal justification.

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


author: Buchanan, J.

text:
    Lucinda E. Chapman et al. v. Thomas Chapman.
    Art. 355 of the Civil Code which declares that agreements between the tutor and the minor arrived at the age of majority, shall be null and void, unless entered into after the rendering of a full account, &c., will not enable parties to perpetrate a fraud by repudiating payments made them in discharge of their tutor’s liability.
    Evidence is admissible to show that after the rendition of the tutor’s account, the minors received from the tutor, land, slaves, &c., of a value equivalent to the tutor’s liability, and that it was given and received in discharge of that liability.
    APPEAL from the District Court of East Feliciana, Ratliff, J.

      C. Roselius and Muse § Hardee, for plaintiffs and appellants.

      J. B. Smith and P. Pond, for defendant.
   Buchanan, J.

The elaborate and carefully prepared opinion of the District Judge has given a lucid narrative of the facts of this cause. The evidence satisfies us, as it did the court below, that the plaintiffs have received from their late tutor, since the rendition of his account of tutorship, more than ten years previous to the institution of this suit, land, slaves and other property, of a value equivalant to the balance due them by said account, and which was given and received in discharge of the tutor’s liability. The evidence on this subject was properly admitted.

The Article 355 of the Code was not intended to enable parties to perpetrate a fraud, by repudiating payments made them in discharge of their tutor’s liability. The ease of Rawls v. Rawls, 6 An. 666, relied upon by the counsel of plaintiffs, presented an entirely different state of facts.

In the case of Rawls, the minor had received nothing from his tutor for the hire of his slaves during a number of years that they had been hired out under the advice of a family meeting; and which hire constituted the whole revenue of the minor. Neither does it seem, from the report of the case, that the tutor of Rawls ever rendered an account of his administration as tutor. But in the present ease we find, on the contrary, an account rendered, with vouchers annexed, homologated without opposition; a regular judgment for the balance acknowledged by the tutor ; and property conveyed, indirectly, by the tutor to the plaintiffs, after the rendition of the account, but before its homologation, of a value equal to the amount due to the 2>laintiffs severally, by their tutor. The jilaintiffs have received the benefit of these conveyances of property, have suffered their tutor to remove from the jurisdiction of the court which a2ipointed him, and after the lapse of ten years of silence and inaction, now sue without any offer of restitution, the solvent surety of an insolvent tutor, for the total amount of the balance of account of tutorship, with interest at ten per cent, added, according to the terms of the judgment of homologation.

We agree with the District Judge that the action, in its present form, cannot be maintained.

Judgment affirmed, with costs.

Merrick, O. J., declined taking any part in this decision.


author: Cole, J. Spoitokd, J.

text:
    D. & J. Lanata v. J. O’Brien.
    "Where a sale was made of so many barrels of potatoes and onions, at a certain price, to be delivered from a vessel then in transit from New York to New Orleans, without any gnarranty at all, except as to the number of barrels : Held, that the exclusion of warranty did not empower the vendor to deliver barrels partly empty, or containing decayed matter.
    By the exclusion of warranty it was not intended to free the vendor from the obligation of delivering merchandise of the species sold, though ho was not bound to deliver it of the best quality or in the best condition.
    APPEAL from the Second District Court of New Orleans, Morgan, J. C.

      Dufowr, for plaintiffs.

      Purvis fy Dugué, for defendant and appellant.
   Cole, J.

The plaintiffs sold and agreed to deliver to defendant, on the arrival of the ship Toulon, two parcels of merchandize, consisting severally of 100 barrels of potatoes, and fifty of onions, at a designated price.

The sale was made without any special warranty, and the only question to be decided is, whether when an article of merchandise is sold without any special warranty, the vendor is obliged to deliver it in a merchantable form.

The evidence establishes that defendant purchased the potatoes and onions at $>3 25 per barrel, without any guarantee at all, except as to the number of barrels ; he was, by the contract, to take them, good or bad, at that price.

On the arrival of the ship from New York, defendant accepted the potatoes, but refused to take the onions, on account of their condition. They were mostly ' rotten. In some of the barrels, one of the witnesses supposes that there were not six sound ones. Some of the barrels were so bad that it was not necessary to examine them ; they were leaking. In others not a sign of an onion could be seen—“ it was a complete mush.”

It is also established that merchandize in this condition is generally hauled to the nuisance wharf.

It appears that the onions, by decomposition, had generally lost their form and appearance, and could hardly be distinguished as such, and were entirely unmerchantable.

Defendant offered to pay for the potatoes, but declined paying for the onions.

There was judgment for plaintiff; the lower court considering defendant was bound, because he had bought without warranty.

The material inquiry is, what is the effect'of this sale without guaranty, under the peculiar circumstances of this case ?

We are of opinion that it did not empower plaintiff to deliver fifty barrels, partly empty or containing decayed mattei-, the result of decomposition of the onions; because there was only a small difference between their value fully warranted, and the price given by defendant.

One of plaintiffs’ witnesses testifies that he was offered $3 55 or 60, for the potatoes and onions, if plaintiffs would guarantee them.

As the difference was so slight between the real value of the onions fully guaranteed and the price given, plaintiffs must bo considered to have at least warranted the existence of the article sold. The exclusion of warranty signified only, in this case, that the onions might not be of the best quality, or in the best order, but it did not liberate plaintiffs from the obligation of delivering them in specie. If a. man buys a horse without warranty, it certainly would not be a compliance with the contract to deliver a decomposed mass of flesh.

In the case at bar, defendant bought onions, and the obligation of the plaintiffs is to deliver onions of some kind, and in a condition to be recognized as onions, and not as a mass of decayed matter. C. C. 2433, 2450, 2467, 2616.

This contract is not of an aleatory character, because nearly the market value was given for the goods sold. If it had been aleatory in its nature, the price would have corresponded with the uncertainty. C. N. 1629, and note of Rogron : “ Le prix a dñ 6tre fixé en regard a cette incertitude.”

Art. 2216 of the Civil Code provides : “that the loss of the thing, or its being rendered unsaleable, extinguishes the obligation, etc.” By Art. 2433 C. C., it is provided, that when goods are sold by weight, tale, or measure, the things sold are at the risk of the seller, until they are weighed counted or measured.” 0. 0. Art. 2152 declares : “That if the debt bo a thing which is determined only by its species, the debtor, in order to his discharge, is not bound to deliver it of the best kind, but he cannot tender it of the worst.”

The preceding Articles seem to apply to a case like this, where the price was such as to show that the exclusion of warranty was not intended by the parties to free the vendor from the obligation of delivering merchandise of the species sold, without, however, obliging him to deliver it of the best quality, or in the best condition.

It appears from the testimony of Schneider, that he was in New York when the ship Toulon sailed. He saw some potatoes and onions arrive at the wharf in New York, when it was raining. That he was afraid of the lot he had on board, as onions shipped in a wet condition are apt to decay. Defendant argues, that it is fair to presume that Lanata was aware of the fact and kept the same concealed fromjiis vendee, and he should not be allowed to profit by his wrongful concealment, C. C. 2523. There is, however, no proof that plaintiffs were aware of the condition of the onions at the time of the sale. The existence of the telegraph renders it, however, more necessary now than formerly to construe strictly contracts like the one at bar; for by means of telegraphic despatches, the vendor may become aware of a certain condition of the goods when shipped, which may induce him to believe they will be spoilt on their arrival at the port of destination.

Defendant is entitled to a deduction for the fifty barrels of onions at $3 25 per barrel.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed, and that plaintifife recover of defendant three hundred and twenty-five dollars, with legal interest thereon from judicial demand, and costs of the lower court. It is further ordered and decreed, that plaintiffs pay the costs of appeal.

Spoitokd, J.

dissenting. When a party sells such perishable articles as vegetables, while in transit by sea from New York to New Orleans, with an express exclusion of warranty, in the absence of fraud, I think the vendee takes upon himself the risk of loss from decay in the voyage.


text:
    Succession of Thomas McCrindell.
    When an appeal bond for a devolutive appeal was given in favor of tho administratrix, but not in favor of the creditors of the succession whose claims were opposed by the appellant, the appeal was dismissed.
    APPEAL from the District Court of West Feliciana, Ratliff, J.

      TJ. B. fy E. Phillips, and Brewer Sf Collins, for appellants.

      W. Dunbar, for appellee.
   Cole, J.

The dismissal of the appeal is moved, on the ground that all the parties in interest in the judgment, and particularly Charles Condert, are not made parties to the appeal.

Charles Condert is placed upon the tableau filed as a creditor for the sum of $824 14. The appellants in their opposition, “ oppose the claim of Charles Condert, because it is not supported by any legal evidence.”

The judgment overrules this opposition, and Condert is not made a party to the appeal taken from it.

Appellants have given a bond for one hundred dollars for a devolutive appeal in favor of the administratrix, but not in favor of said Condert, or any of the creditors of the succession.

Condert has an interest in maintaining the judgment. Succession of Ira Smith, 8 An. 57.

It is, therefore, ordered, adjudged and decreed, that the appeal in this case be dismissed with costs.


author: Merrick, O. J.

text:
    State of Louisiana v. Richard McDonnell et al.
    The proceeding by rule under tlie 71st section of the Ecvenue Act, against a Tax Collector and bis sureties, is a summary one, to be tried without the intervention of a jury.
    The time being fixed for answering the rule if the party called upon to show cause neglects to answer, no judgment by default is necessary, but the rule may on proof be at once made absolute.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      E. W. Mo'ise, Attorney General, for the State.

      Waples fy Eustis, for defendant and appellant.
   Merrick, O. J.

This case was before us last year, on an appeal taken by other defendants. See 12 An.

The counsel for the defendant, Cockerell, present two additional questions not considered on the appeal taken by the other defendants. The first is, whether a party can be deprived of his trial by jury in this form of proceeding; and the second, whether a judgment by default was not needed in order to form the contestatio litis.

The proceeding is a rule (taken under the 71st section of the Revenue Act) against a Tax Collector and his sureties.

By this section, the Auditor of Public Accounts is authorized to require the District Attorney to proceed against the Tax Collector and his securities, by rule before any competent court, after three days notice for the recovery of the amount due by the Tax Collector, and the suit is to have precedence on the docket of the court, wherein it may be instituted, over all other causes. Acts 1855, p. 518.

The rule here mentioned, is a summary proceeding as contemplated by Article 764 C. P., and is to be tried without the intervention of a jury. O. C. 757.

In the present case, the defendants had ten days notice of the day and hour when they were required to show cause why their bond should not be deemed forfeited and judgment should not be entered thereon against them. A part of the defendants having answered, the rule was taken up at. the time assigned and tried, and judgment rendered against all of the defendants.

Thus the only contestatio litis was formed which is contemplated in these summary proceedings. The day and hour are fixed by the court when the party in the rule is called upon to show cause, and if he neglect, his indifference to the order of the court is itself a tacit admission of the justice of the rule, and the opposite party may proceed at once with his proofs as in other cases of default, and obtain judgment. D’Autrive v. Neto, 7 M. R. 358; Porter v. Porter, 5 Rob. 100; Sturgis v. Kendall, 2 An. 565.

The abovementioned additional grounds urged by this appellant being unavailing, the judgment must be affirmed.

Judgment affirmed.


author: Spofpord, J.

text:
    State of Louisiana v. Peter, a Slave.
    The right given by statute to persons in confinement under a judgment of conviction rendered in a criminal prosecution, of making the appeal returnable before the Supreme Court at its next term, wherever held, and to have it tried by preference, is a right givon only to the prisoner. The State has not the right to have the appeal returnable out of the usual course of appeals.
    ON application for a mandamus to the Magistrates Court of the parish of East Feliciana.

      John McVea and Muse fy Hardee, for relator.
   Spofpord, J.

The general law is, that appeals from the parish of East Feliciana to this court, are returnable on the 4th Monday of February of each year. Rev. Stat., p. 278, sec. 12.

But an exception is made in favor of persons in confinement, under a judgment of conviction rendered in a criminal prosecution, for which an appeal has been taken. Such persons “ shall have the right to make the appeal returnable before the Supreme Court at its next term, wherever held,” and to have it tried by preference. Rev. Stat., p. 279, sec. 18.

We understand this law to have been passed only for the purpose of securing a speedy trial in this court to such parties under conviction in an inferior court, as desire it; the State has not the right to have the appeal returnable here, out of the usual course of appeals from the same parish; but only the prisoner.

In the present case, the prisoner asked for an appeal returnable on the fourth Monday in February next, the regular return day for appeals from East Feliciana. He did not demand an appeal returnable upon the first Monday in May next.

It is, therefore, ordered, that a peremptory mandamus issue as prayed for, commanding George W. Catlett and Hij. B. Chase, or either of them, Magistrates for the parish of East Feliciana, to make the appeal in the case of the Slate of Louisiana v. The slave Peter, returnable in this court on the fourth Monday of February, 1859, according to law.


text:
    Wright, Williams & Co. v. E. Hill & Co. and J. D. Hill.
    Where the defence to an action for a balance of account was, that there were usurious charges in previous accounts which resulted in the balance sued for—Held: That if such previous accounts were tainted with fraud or usury, their reception without objection by the party to whom they were rendered, would not be a valid objection to the defence, if it was set up within the time limited to recover back usurious interest.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Clark l!f Bayne, for plaintiffs.

      Bace fy Foster, for defendants and appellants.
   Buchanan, J.

The pendency of another suit for the same cause of action in the State of Arkansas, is no bar to the present action. Peyroux v. Davis, 17 La. 479.

Plaintiffs sue defendants for a balance of account current. The debit side of the .account is composed of five items, as follows :

1854, July 10. To cash balance per account rendered..............$9,665 19
26. “ A. G-. Tate’s account collected by you—interest
from 26th July, 1852:.............$149 12
2 years interest at 8 per cent.'....... 23 95
---- 113 61
May 31. “ paid our acceptance your draft to Whitlock, Nichols & Oo. due this date.!............$188 24
Protest on same................... 4 00
- 192 24
1855, May 11. “ interest to date from outer column.............. 136 86
“ Commissions for advancing 2£p. ct. on $10,631 10 265 18
$11,633 14

The defendants called for a detailed statement, or bill of particulars composing the balance of $9,665 19, figuring to their debit at the head of the account current annexed to plaintiffs’ petition.

Plaintiffs thereupon filed a copy of a previous account current, rendered by them to defendants, under date of July 12th, 1854, closing by a balance to debit of defendants, of that date, of $9,665, 19. This account current opens with the following item on the credit side:

1853, Sept. 1. By balance per account rendered,..........$3,255 63

The defendants have specially pleaded in defence to this action and as a ground of their prayer for a bill of particulars, that much of the account sued upon is made up of false entries, overcharges of interest, commissions, drayage, &c., which if corrected, would more than cancel the amount of defendants’ indebtedness to plaintiffs; and that it is absolutely necessary for the investigation of this account, that the plaintiff should render detailed accounts for every item of the account sued on.

Plaintiffs contend that they have done all that they were bound to do, by exhibiting the account between them and defendants in detail, back to a period when a balance is acknowledged by them in favor of defendants. The defendants on the contrary maintain that that balance itself is the result of anterior debits and credits which are open to investigation, and have examined witnesses under a commission, being clerks in their employ, who have produced annexe^ to their depo-. sitions the following accounts current rendered by the plaintiffs at various times to the defendants:

An account rendered 10th May, 1850, stating a balance to debit of defendants at that date, of.................................... $2,859 82
An account rendered 21st June, 1850, balance to debit of defendants, of....................................................... 4,113 16
An account rendered 15th July, 1850, balance to debit of defendants, • of....................................................... 3,048 66
An account rendered January 4th, 1851, balance to debit of defendants, of................................................. 18,140 84
An account rendered May 8th, 1851, balance to debit of defendants, of 16,657 18
An account rendered July 10th, 1851, ..balance to debit of defendants, of................................................ 14,655 22
An account rendered September 1st, 1851, balance to debit of defendants, of.................................................. 4,413 25
An account rendered May 25,1852, balance to debit of defendants, of....................................................... 7,580 33
An account rendered July 24th, 1852, balance to debit of defendants, of.................................................. 1,858 47
An account rendered July' 15th, 1853, balance to credit of defendants, 3,376 02
An account rendered Sept. 1st, 1853, balance to credit of defendants, of................................................. 3,255 63
An account rendered 12th July, 1854, balance to debit of defendants, of................................................. 9,665 19

But on motion of plaintiffs’ counsel, the district Judge ruled out from the consideration of the jury who tried the cause, all of these accounts current except the last. The counsel of defendants excepted to this ruling, and we think the exception well taken. It is to be observed that each of these accounts current commences with the balance stated in that one which immediately proceeds it in date; and it is also to be observed that interest is calculated in each account on every item from its date to the date of rendition of the account and that the balance of interest is carried to the debit or credit, as the case may be, of the general account, and thus contribute to swell the general balance; which being carried forward to the next account rendered, itself is made to carry interest to the date of that account. Now, although it has been held that a balance of account current acknowledged, or rendered and received without objection, may be legally treated as a new capital, which carries interest; yet in the present case the evidence is conflicting about the acknowledgment of the balances of account current stated by plaintiffs to defendant. Two witnesses for defendants swear that those balances were always objected to; while one (the bookkeeper of plaintiffs) swears that the accounts were received without objection.

And as to the charges tainted with usury or fraud, if any such exist, as alleged by defendants, the reception of the accounts even without objection made, would not have barred an action to recover them back, within the time limited for such actions. And when pleaded, as here, in defence to an action, the maxim “ qua temporalia," would come in aid of the defence.

But the learned judge of the court below was of the opinion that, inasmuch as the defendants had not filed a reconventional demand, claiming to be allowed more than the balance shown in their favor by the account current rendered by plaintiffs, on the 1st of Sept., 1853, it is incompetent for defendants to go behind the bar-lance stated in that account, and show that it should have been larger. The error of this conclusion arises from considering the account current of the 1st Sept., 1853, as something entirely distinct and seperate from that of July 24th, 1854.

But this is not so. The balance of the former account, is an integral portion of the latter account and being made up of all the items collectively, which figured individually in the former, those items are reproduced and perpetuated in the latter.

The only effect of a want of a demand in reconvention in the pleadings of defendants, is, that they cannot have judgment, for any excess which the retrenchment of illegal charges might operate in their favor, upon the final settlement of the account.

It is therefore adjudged and decreed, that the judgment of the district court be reversed, and this cause remanded for a new trial, with instructions to the district court not to exclude evidence touching the correctness of the account current rendered by plaintiffs to defendants, prior to the 24th July, 1854; and that appellees pay costs of appeal.

Spoffobd, J., took no part in this case.


author: Spofford, J.

text:
    Charles Van Wych v. Myra Clark Gaines.
    A party wlio is sued in the United States Court iu a petitory action, cannot by an action of jactitation compel liis adversry to come into a State court of concurrent jurisdiction to try the question of title.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      J. Livingston, for plaintiff and appellant.

      F. Ferin, for defendant.
   Spofford, J.

The plaintiff sued the defendant before the Fifth District Court of New Orleans for an alleged slander of his title to certain lands in the parish of Orleans.

The defendant pleaded, by way of exception to the suit, that previous to its institution she had commenced proceedings against this plaintiff before the Circuit Court of the United States for the Fifth Circuit and Eastern District of Louisiana, a court of concurrent and competent jurisdiction, where the suit, involving every subject matter embraced in this is still pending between the same parties.

The admissions in the record show these averments to be true.

The exception was properly sustained.

The action of jactitation of title has for its object the repose of titles. It is brought by the possessor only. Its tendency is to force the party not in possession, who yet asserts a right out of court, to come into court and disclaim or assert the right judicially. That end is attained whenever the party accused of slandering the possessor’s title brings suit to test the title before a competent court, when that is done, there is no pretence to say there is a slander of title. And it is not for the defendant in all cases to choose his forum. If the United States Court has jurisdiction, the party in possession sued there, cannot come into a State court of concurrent jurisdiction, and by an action of jactitation compel his adversary to sue him in the state court also for the same cause of action.

Judgment affirmed.


author: Buchanan, J. Merrick, O. J.

text:
    Nathan Mardis v. Heirs of S. A. Mardis.
    "When an executrix caused certain property to be inventoried and sold as belonging to the succession she was administering—Held: that the heirs of the executrix were estopped from denying that fact.
    Purchasers in good faith will be protected by the order of court for the sale of the property against any claim on the part of the heirs of the executrix.
    APPEAL from the District Court of Concordia, Haralson, J.

      Aroni' Alexander, for plaintiffs and appellants.

      A. Snyder and Thos. P. Farrar, for defendants.
   Buchanan, J.

The evidence proves, beyond all reasonable question, that Sarah Ann Mardis, otherwise called Sally Lee, was the concubine and not the wife of William Mardis. The testamentary dispositions of William Mardis in favor of said Sarah, are therefore void, under Article 1468 of the Civil Code. Indeed, the judgment of the District Court pronounces the nullity of this portion of the will of William Mardis: and the defendants have neither appealed from that judgment, nor have they asked for any amendment of it in this court. The argument which has been addressed to us by the counsel of the defendants, upon this part of the case, may therefore be left out of view : and it must be assumed, as a point of departure, in deciding upon the rights of these parties upon this appeal, that the defendants have no rights or claims under the will of William Mardis.

The verdict of the jury charges plaintiffs with one-half of the appraised value of the Fairview plantation, comprised in William Mardis’s inventory, and purchased by Sarah Mardis, at the probate sale. This is erroneous. Sarah Mardis, as executrix, caused this plantation to be inventoried and sold, as belonging to William Mardis’s estate. Her heirs are estopped from denying that fact.

The verdict also allows to defendants, upon their demand in reconvention, seven thousand, two hundred and nineteen dollars, for hire of certain slaves (eighteen in number,) which the verdict declares to have been the property of Sarah Mardis, and for the rent of one-half the Fairview plantation. We have found no authority for this allowance in the evidence. In relation to the land, we have already observed, that it was admitted by Sarah Mardis to have belonged to William Mardis. And in relation to the negroes, which are mentioned in the verdict, if it be admitted, for the sake of argument, that they really belonged to Sarah Mar-dis, yet there are acts of said Sarah in the record which are conclusive against any claim on the part of her heirs, against the representatives of William Mardis, for the hire of said negroes, during William Mardis’s lifetime. In the final account of administration, filed by Sarah Mardis, as executrix of William Mardis’s last will, she made a list of all the debts due by the estate of said Mardis, and exhibited a balance in favor of said estate, after discharging all the debts. In this list, there is no such charge as that for the hire of the negroes, which were subsequently inventoried as belonging to the succession of Sarah Mardis, and which are declared by the verdict to have belonged to her.

The question of the title in those negroes will be examined by us in recapitulating the grounds of plaintiffs’ action, several of which have not been noticed by the jury in their special verdict.

Plaintiffs, as next of kin and heirs at law of William Mardis, claim of the heirs of Sarah Mardis three slaves which were inventoried as property of William Mardis, and which she bought in at the probate sale; also twenty-six other slaves which Sarah Mardis did not put on the inventory of William Mardis, but claimed as her own, and which slaves were put on her inventory after her death, and are now in the possession of her heirs.

Plaintiffs have also cited, as defendants, four-other parties, viz : Holtree, Sargeant, McAllister, and the executors of King, who are in possession of land arid slaves purchased at the probate sale of the succession of William Mardis; and from whom they claim the said land and slaves. And plaintiffs pray, in the alternative, for judgment against the heirs of Sarah Mardis for $17,325, amount of the sales of William Mardis’s estate.

The jury have passed upon the title of eighteen out of the twenty-six slaves, inventoried as belonging to the succession of Sarah Mardis; but have neglected to pass upon the title of the other eight slaves comprised in said inventory; and have also been silent in relation to the three slaves, Henry, Charles and John, purchased by Sarah Mardis at the probate sale of William Mardis.

The verdict is also silent in relation to the claims of plaintiffs against the defendants Holtree, Sargeant, McAllister, and the executors of King.

All the defendants acknowledge themselves to be in possession of the property claimed of them respectively.

As regards Holtree, Sargeant, McAllister and thé executors of King, we consider them protected by the order of court for the sale of the slaves and land, formerly belonging to the estate of William Mardis, and of which they are respectively in possession, as set forth in the petition. Their good faith is not impugned.

As to the heirs of Sarah Mardis the case is different.

Being the concubine of William Mardis, she was without capacity to inherit, and did not come within the statute of 1840 (page 123,) which allows an executrix, who is a surviving partner in community or heir, to purchase at the sale of the effects of the estate which she administers.

This disposes of the three slaves, Charles, Henry and John P., purchased by Sarah Mardis at the probate sale, and now held by her heirs.

As to the twenty-six slaves which were inventoried as the property of Sarah Ann Mardis, we think the burden of proof was on the heirs of the said Sarah, to show title in her.

All of those slaves, as well as an equal number inventoried under her dictation as executrix, as property of William Mardis, were employed in the cultivation of the plantation of William Mardis, during his lifetime. They are, therefore, to be taken as having belonged to William Mardis, unless the contrary is shown by legal evidence. Sarah Mardis, or Lee, survived William Mardis about three years. She bought in the plantation at probate sale, as we have seen, and continued to cultivate the place until her death, with those slaves, which she had not included in William Mardis’s inventory, added to those which were so included, and which she had purchased at probate sale, as above mentioned. We find in the record proof of title in Sarah Mardis to the following negroes inventoried as her property, viz :

1. Louisa, or Lucy. 2 and 3. Eveline and Charlotte, children of Lucy. 4. Susan, or Sukey. 5 and 6. Polly and Nancy, children of Sukey. 1: Clarence, grandchild of Sukey. 8. Minerva, or Menervy. 9. Francis, or Frank. 10,11' and 12. Ophelia, Kitty, and Jefferson, children of Rose, who is dead. 13, Charlotte.

The remaining slaves comprised in Sarah Mardis’s inventory, thirteen in number, and named respectively : Henry, Pamelia, George, Charles, Barhaby, Mortimer, Thérése, Minerva, Orleans, Elizabeth, Louisiana, Ben and John, are considered by us as belonging to the estate of William Mardis.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed ; and proceeding to give such judgment as should have been given by the court below, it is decreed, that the plaintiffs recover of the defendants Elizabeth M. Goldman, administratrix of George W. Goldman, deceased, and of Ann L. Elliott, wife of Claudius W. Elliott, heirs of Sarah Ann Mardis, deceased, jointly, six thousand dollars, being the proceeds of the land belonging to the late William Mardis, sold at probate sale of his effects, with interest from amicable demand until paid. Also the following named slaves, comprised in William, Mar-dis’s inventory : Henry, Charles, and John P. Also the following named slaves, included in Sarah Mardis’s inventory : Henry, Pamelia, George, Charles,

Barhaby, Mortimer, Thérése, Minerva, Orleans, Elizabeth, Louisiana, Ben, and John. That as to the defendants Ilollree, Sargeant, McAllister, and the executors of King, the demand of plaintiffs be rejected ; and that the defendants Goldman, administratrix, and Elliott, pay costs in both courts.

Merrick, O. J.

Although not fully satisfied with all the points ruled on the evidence in this case, I am not prepared to dissent. Perhaps, were my own views to be adopted, the general result (so far as the rights of the heirs are concerned) would not be materially different.


text:
    Henrietta Choppin v. Gabriel Gobbold.
    The delegation by which the debtor gives to the creditor another debtor, who obliges himself towards sncli creditor, does not operate a novation, unless the creditor has expressly declared his intention to discharge his debtor who made the delegation. C. C. 2188.
    APPEAL from the District Court of East Feliciana, Haralson, J.

      Bowman DeLee, for plaintiff.

      Muse Hardee, and Ellis fy Haynes, for defendant and appellant.
   Buchanan, J.

The defendant being sued on his promissory notes, pleads that the same have been novated by the acceptance, on the part of his creditor, of a new debtor in the place of himself, the original debtor.

We agree with the jury and the court below, that the defendant has failed in making out this defence.

Novation is not presumed : the intention to make it must clearly result from the terms of the agreement, or by a full discharge of the original debt. C. C. 2186.

The delegation, by which the debtor gives to the creditor another debtor, who obliges himself towards such creditor, does not operate a novation, unless the creditor has expressly declared that he intends to discharge his debtor, who has made the delegation. C. 0. 2188.

Judgment affirmed, with costs.


text:
    J. M. Savage v. J. T. Jeter.
    The first section of the Act of tho Legislature of 1855, relative to forced surrenders and the mode of making tho same, makes it the duty of the Judge to decide upon tho sufficiency of tho cause for compelling the surrender, and the proceeding is, therefore, a summary one, to he tried without the intervention of a jury.
    When the Deputy Sheriff, who made the return, did not make the demand, hut the evidence shows the demand was actually made by another deputy, the demand is adequately proved.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      McCay fy Edwards, for plaintiff.

      A. T. Steele, for defendant and appellant.
   Cole, J.

The plaintiff, having obtained a judgment against defendant, caused a fi.fa. to issue, and the Sheriff made the following return :

“ Received 26th February, 1856, no property found,after due demand made of both parties, returned 21st April, 1856.
J. P. Walden, Dy. Shff.”

Plaintiff then presented his petition, accompanied with the necessary affidavit, and obtained an order from the court upon the defendant to show cause, within ten days, why he should not pay the amount of the judgment, or make a surrender under the Act of the Legislature of 1855, Session Acts, p. 318.

The defendant, in his answer, alleged that the allegations in the petition for a forced surrender are false; that no proper demand was made from him of the amount of the judgment rendered against him, and prayed for a trial by jury. On motiop of plaintiff, the prayer for the trial by jury was erased from the answer, and defendant filed his bill of exceptions.

Two questions only arise in this case :

1. Was the defendant entitled to a trial by jury ?
2. Was a proper demand made of the parties to the original suit by the Sheriff to point out property, to satisfy the judgment therein ?

The first section of the Act of 1855, relative to forced surrenders and the mode of making the same, Session Acts, page 318, is as follows :

“Be it enacted, etc. That any judgment creditor who shall have issued execution, which has been returned ‘ no property found,’ after due demand, shall have the right to compel his debtor to make a surrender of his property, by proceeding in the following manner : The creditor shall present his petition to the court, or judge at chambers, having jurisdiction of the debtor’s domicil, and shall allege, that he is a judgment creditor of the debtor, and for what amount; that execution has issued and been returned ‘ no property found,’ after due demand ; that he has reason to believe that the debtor has property, or assets, which may be made available to his creditors ; and shall conclude with a prayer that the debtor be ordered to surrender his property to his creditors. All of which shall be verified by the oath of the petitioning creditor or his attorney. The judge shall, thereupon, order that the debtor show cause, within ten days from the service of the notice upon him, why he should not pay the debt of the complaining creditor, or make a surrender of his property to his creditors. Should no good cause be shown, and the debt remain unpaid, the judge shall order the debtor to make a surrender of his property to his creditors, within a time to be fixed by him.”

We are of opinion that this section shows, upon its face, that the judge was to decide upon the sufficiency of the cause why a surrender should not be ordered. Defendant argues that summary process can be used only where it is expressly allowed by law, and that this Act does not declare that the cause must be tried summarily. It is not essential that an Act should declare this in so many words, if it is clear, from a plain interpretation of the Act, that the intention of the legislature was to make the proceeding summary.

The evidence establishes that a proper demand was made of the parties to point out property. It appears that the demand was not made by Walden, the deputy sheriff, who signed the return ; but it is admitted that the demand was made by Mr. Gros, and that the return on the writ was made by J. P. Walden, and it is proved that Gros was a deputy sheriff at the time of making the demand of plaintiff and defendant to point out property to satisfy the fi. fa. We think that the object of requiring the Sheriff to sign the return, is to furnish evidence of the demand, and when the evidence establishes that the demand was made, and the return signed by a different deputy; the demand is then adequately proved.

We would remark that defendant took a devolutive appeal from the original judgment on the note, but no bond was filed.

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


text:
    Bythel Haynes, Liquidator, v. A. D. Palmer.
    When the charter of an incorporated company provides that a mortgage stockholder may transfer his stock and bo released from his mortgage, upon the new stockholder furnishing mortgage to the satisfaction of tne President and Directors of the company, no personal liability on the part of the original stockholder remains, after a transfer so made.
    from the District Court of East Feliciana, Haralson, Judge of the Ninth District, presiding.

      John Me Fea and E. P. Ellis, for plaintiff and appellant.

      Bowman fy BeLee and J. 0. Fuqua, for defendant.
   Buchanan, J.

The evidence supports the plea of transfer of defendant’s mortgage stock, many years before the institution of this suit, to Humphrey Taylor. The mortgage given by Taylor for the security of the stock, the approbation of the Board of Directors of the Clinton and Port Hudson Railroad Company, and the release of the mortgage of defendant, are proved. The 23d section of the amended charter of the company, approved 10th March, 1834, Session Acts, page 120, sanctions such transfers : and the objection to the evidence of Scott and Brian, taken in connection with the extracts from the minutes of the Board of Directors, and other documentary evidence, was properly overruled. The counsel of plaintiff has argued that, notwithstanding the transfer of the mortgage stock, a personal liability on the part of the defendant, as one of the original subscribers to the capital stock, remains. We do not think so. It does not appear that defendant borrowed any money of the company while a stockholder, by note, pledge of his stock, or other security, for which he remained in the debt of the company when his stock was transferred. In this particular, this case differs from that of the Commissioners of the Railroad Company v. Kernon, reported in 10th Robinson, cited by the counsel of plaintiff.

Judgment affirmed, with costs.

Merrick, C. J., having been of counsel in this case, recused himself.