text:
    No. 88.
    Sam J. Sims v. The Parish of Jackson.

      An ordinance of a police jury of a parish, passed while the constitution of 1864 was in force in this State, levying a specific tax of one dollar on every four hundred pounds of cotton made in the parish, in one year, is in opposition to article 121 of said constitution, which declares that taxation shall be equal and uniform. Therefore, if such a tax has been assessed and collected it may be recovered from the parish, by suit, by the party who has paid it.
    from the Parish Court of the parish of Jackson. Hives, Parish Judge.

      Kidd <& Smith, for plaintiff and appellee. James JÜ. Hamlet, District Attorney pro tern., for appellant.
   Ludeling, C. J.

The plaintiff having paid to the collector of taxes of Jackson parish two hundred and fifty dollars on account of the tax of one dollar for every four hundred pounds of cotton raised in the years 1865, ] 866 and 1807, seeks to recover back said amount, on the ground that the ordinance levying the tax is unconstitutional, being in violation of article 124 of the constitution of 1864, which was in force when the ordinance was passed. That article of the constitution requires taxation in this State to be' equal and ad valorem. It is manifest that the tax levied was -not equal and according to the value of the prope; ty upon which the tax was assessed. There are many grades or qualities of cotton, which differ in value. A tax which is levied on cotton without reference to that fact, must necessarily be in opposition to the constitution, which requires all property to be taxed according to its value. The tax in question is a specific tax and not an ad valorem tax, and it is unconstitutional, null and void.

It is therefore ordered and adjudged that the judgment of the court a qua be affirmed with costs of apneal.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 95.
    A. F. Murphy v. Smith & Nicholson.
    á. certificate of discharge in bankruptcy, from tlie United States Bankrupt Court, extinguishes all judgments and claims of a personal character against the bankrupt.
    Therefore an ordinary fieri facias, on a personal judgment against the bankrupt after the certificate in bankruptcy lias been given, is without any legal force or effect, and its execution will be restrained by a writ of injunction.
    APPEAL from the Eleventh District Court, parish of Claiborne.
    .IX Lewis, J. J. J). Watkins, for plaintiff and appellee. Gray é Blackman, for defendants and appellants.
   Taliaferro, J.

The defendants having issued a writ of fieri facias upon a judgment obtained by them in the year, 1861, against the plaintiff and J. M. Cheaver, the sheriff seized and advertised for sale as property of the plaintiff, a tract of land, and gave notice to him of the seizure and also notice to appear on a given day and appoint an appraiser. The plaintiff sued out a writ of injunction, on the ground that he had applied in February, 1868, for the benefit of the bankrupt law, and had obtained his discharge on the fifth of May following, of • which he held a certificate in due form. He further averred that he surrendered the land seized to the assignee in bankruptcy, and leased the same from him- for the year, 1869, and had growing upon it at the time of the seizure in June of that year, a crop of cotton, corn and other things worth two thousand dollars. He prayed judgment enjoining the defendants from selling the crop and from collecting any part of the judgment from him, and also lor damages against the sheriff and defendants in solido for five hundred dollars. The defendants answered by general denial, and prayed for dissolution of the-injunction with twenty per cent, damages and for $200 counsel fees, etc. The plaintiff had judgment in his favor perpetuating the injunction, but reserving to the defendants the right to proceed by hypothecary action, if any mortgage they have. From this judgment the-defendants appealed. We see no error in the judgment. The writ oí fieri facias contains the following clause : “In the name of the State of Louisiana wo command you that by seizure and sale for cash witli•out benefit of appraisement, of the property real and personal, rights and credits of A. P. Murphy, in the manner prescribed by law, you ■cause to be made the sum of two thousand dollars.”

We concur in opinion with the judge a quo that this proceeding by fieri facias, on the part of the defendants, is an attempt to enforce personally a judgment extinguished by the discharge in bankruptcy. The pleadings do not require a consideration of the point insisted on in argument by defendants that a discharge in bankruptcy does not extinguish mortgages either judicial or conventional, nor whether the authorities, citod by their counsel, sustain their position. We. will only remark that the views expressed in the leading case referred to were predicated upon the mortgage rights shown to be possessed by creditors of the bankrupt, and that they recognized in the creditors no other than hypothecary rights. The defendants in this case have not shown that they have a mortgage of any kind against the land seized under their execution, nor do they make any distinct averment that they have. We regard the proceedings as irregular and illegal.

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


text:
    No. 80.
    William C. Ashley v. Louis G. Sholars.
    The plea of compensation admits the correctness of the plaintiff Js demand. 14 An. 54.
    The defendant when sued on his individual note can not plead in compensation a partnership note -which he holds against a commercial firm of which the plaintiff is a member.
    APPEAL from the Eleventh Judicial District, parish of Jackson. John Young, (attorney at law), Special Judge, vice Egan, J., recused.

      Henry Gray, for plaintiff and appellee. J. JE. Hamlet and Kidd & Smith, for defendant and appellant.
   Taliaferro, J.

The defendant being sued for $1538 01, with interest at five per cent, per annum from twenty-eighth December, 1868, the amount of a promissory note paid by plaintiff as his surety, admitted that he owed the plaintiff one hundred dollars, and plead in compensation a note of the amount of $1543, with five per cent, interest from first January, 1863, which he held against the commercial firm of Davis, Ashley, Raburn and the defendant, of which the plaintiff was a partner, and bound, in solido, for the partnership debts.

The defendant prayed trial by jury, which was refused on the ■ground that there was no issue for a jury to try. To this ruling of the court and also to its rejection of the defendant’s plea of compensation the defendant took a bill of exceptions. Judgment was rendered in favor of the plaintiff for the amount claimed, and the defendant appealed.

From a statement of facts appearing in the record it appears the decision of the court below was based upon the admissions of the defendant in his plea of compensation.

We think the judgment was correctly rendered. It has been frequently held that the plea of compensation admits the claim sued on. 12 La. 397; 18 La. 6; 14 An. 54.

The defendant has failed to make out his defense.

The note of the partnership was inadmissible as an offset against the individual debt against the defendant.

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


text:
    No. 90.
    Epinetus Landers v. Thomas H. Tuggle.
    This is an hypothecary action hy a surety on a twelve months’ bond, who had paid the debt, to force a sale of the property mortgaged, to reimburse him. The application i3 opposed by the defendant, who alleges that he was a co-surety on the bond, and therefore the plaintiff is only entitled to recover his portion; that subrogation does not taté place by operation of law between co-surelies. The evidence shows that the defendant was not legally bound as co-surety on the twelve months’ bond which plaintiff has paid. Held — That, not being legally bound on the bond as surety, he could not oppose the sale of the property mortgaged for the benefit of the real surety, who had paid the debt.
    If the plea of prescription is filed by the defendant, for the first time, in the Supreme Court, and the plaintiff demands it, the cause will be remanded to try that issue in the court below.
    APPEAL from the Eleventh Judicial District, parish of Claiborne. L. B. Waildns, (attorney at law), Speeial Judge, vice Egan, J., recused.

      Toung & Wilson and J. I). Watkins, for plaintiff and appellant. Gray (& Blackman, for defendant and appellee.
   Taliaferro, J.

The plaintiff brings an hypothecary action to subject certaiu lands in possession of defendant to the payment of a debt of $512 87, which he avers he paid as surety of J. L. Dyer, on a twelve months’ bond executed iu favo» of A. C. & J. E. Mitchell. He claims to he subrogated to all the rights of the original judgment creditors, prays recognition of those rights, and that the land mortgaged he Seized and sold to satisfy his claim.

The defendant answered hy exception, the substance of which is, that he is also a surety on the bond, and is only responsible.for his portion; that, as between co-sureties, subrogation does not take place by operation of law, and'that the remedy, if any plaintiff have, is by action for contribution, and that lie is not entitled tó. the relief prayed for.

The exception *was sustained, and the suit dismissed. The plaintiff appeals.

There is indorsed on the bond the following:

“ I hereby agree and bind myself to pay the full amount of the within bond, and all costs accruing in the collection of the same, and to be considered as a surety on the same, bound, in solido, with the principal and other surety.

Thomas H.- Tuggle.

September 30, 1862.”

The twelve months’ bond is dated February 2, 1861. With the exception of a payment of fifty dollars, credited on the bond the second of February, 1862, it appears from the instrument that the bond was entirely paid by Landers. A credit of $415 81 is indorsed as payed by him on the thirteenth of May, 1869, and a further payment by him is credited on the twenty-seventh of August, 1869, of $512 87, being in full. It is for this last payment the plaintiff claims subrogation. The first payment, the one of fifty dollars, is indorsed as paid J. M. Thompson, attorney, about the second February, 1862. This was anterior, by seven or eight months, to the defendant’s writing himself down as surety on the bond. The presumption would seem to be that the payment of fifty, dollars was made by Dyer, the principal on the bond.

The defendant, then, it is not snown, ever paid any part of the bond. It is not shown that his undertaking to become bound on the bond was required or accepted by the original parties to it. By formal legal proceedings, the plaintiff became the judicial surety of the principal, Dyer. The creditors were satisfied of the sufficiency of the surety. The cause or consideration of the defendant’s undertaking is not disclosed. He is not recognized as a judicial surety, or as ever having been accepted as a party to the act by any legal authorization. Occupying the equivocal position that he does, we are at a loss to see on what legal ground he can oppose the plaintiff’s right by averring that the plaintiff, if entitled to anything, can only bring an action for contribution. We think the exception should have been overruled.

In this court, the plea of prescription is filed by the defendant, as a bar to the plaintiff’s recovery on the bond. This plea may be well taken; and the plaintiff moving that the case be remanded.

It is therefore ordered, adjudged and decreed that the judgment oi the district court be annulled, avoided and reversed. It is further ordered that the case be remanded to the court of the first instance to be tried on'the plea of prescription, the defendant and appellee paying-costs of this anneal.


author: .Howe, J.

text:
    No. 100.
    F. M. Smith, Administrator, v. J. A. Coon, Administrator.
    A payment made on a promissory nobs by an agent, without authority from the .debtor, will not interrupc prescription.
    A renunciation or waiver of prescription by the administrator, after prescription -has accrued, is null, a3 against the estate. 21 An. 373. Therefore, if the administrator had made a payment on the note, as agent, without authority, before prescription accrued, he had no authority to ratify the act, as administrator, after the note was prescribed.
    APPEAL from the District Court, parish of Ouachita. Hay, J.

      H. W. Jeniison aud Stubbs & Oobb, for plaintiff and appellee. Hicharclson & McEnery, for defendant and appellant.
   .Howe, J.

This action was instituted in February, 1867, upon a note for one thousand dollars, made by Madison Rogers, in favor of Cas.sandra Smith, and due January 4, 1861. Both the maker and payee oí the note being dead, the suit is prosecuted by their legal representatives. There was judgment for plaintiff, and defendant has appealed.

The defense is prescription. To rebut this, the plaintiff relies upon a payment of. $240, proved to have been made to the payee of the note in 1863 or 1864, by J. A. Coon, which payment was made, it is claimed, by Coon, as agent of Rogers, and effected an interruption of prescription.

A debtor who makes a payment, is considered as interrupting prescription, because there is an implied recognition of the creditor’s right; but it is equally true that no such recognition can be inferred from a payment made by a third person, without the authority, express or implied, of the debtor. 4 An. 509.

Now, in the record before us, wo are unable to find any evidence that Coon was authorized, directly or indirectly, expressly or by implication, verbally or in writing, to make the payment in question’. On the contrary, Coon testifies that he had no authority whatever.

The plaintiff objected to this testimony, on the ground of estoppel, contending that, since Coon held himself out as agent at the time of the payment of the $240, he could not afterwards deny the agency. 4 M. 448. This might be true, as against Coon, the individual, but not against Rogers or his succession. The latter could no more be estopped than bound by unauthorized statements or acts of a third party.

The plaintiff also urges the fact that Coon, being appointed administrator in March, 1866, took no steps to disavow his authority to make the payment, and that, therefore, he ratified, as administrator, the act' of himself, as agent'. C. C. 1811.

To this we may reply that, in March, 1868, the. note in suit had become prescribed, and the administrator had no authority then to renounce prescription. 21 An. 373. Being without power, even by the most solemn written act, to renounce a right thus acquired by the succession, we are at a loss to see how he could, by silence and inaction merely, effeet a similar result. Moreover, the doctrine contended for proceeds, in part at least, upon tlie theory that if the administrator had disavowed the act of the pretended agent, the plaintiff would have taken steps to interrupt prescription by suit. But, as prescription had been acquired before Coon was appointed, it is plain that this doctrine has no application, since the theory upon which it is founded oould have no logical existence.

It is therefore ordered that the judgment appealed from be reversed, and the claim of plaintiff rejected, with costs.


author: Howe, J.

text:
    No. 162.
    F. A. Boyee & Co. v. N. A. Sibley, Administratrix.
    Tlie surviving wife is entitled to tlie usufruct of tlie community property during Iier widowhood, witliout accounting to tlie creditors- for the rents and revenues arising from tlie use of the property, or the value of animals that perish from natural causes. The fact-that she has qualified as administratrix, and administered the estate in that capacity, does not affect her rights as surviving spous e.
    APPEAL from the parish of Bossier. Baker, Parish Judge.

      T. M.. Fort, for plaintiffs and appellants. Griffin é Snider, for defendant and appellee.
   Howe, J.

P. A. Boyle & Co., ordinary creditors of Isaac P. Sibley, deceased, fried an opposition to the account of tlie administratrix. Several grounds of opposition, were maintained by the court below, and as the administratrix has not appealed, or asked for an amendment of the judgment, we can not pass upon them.

The principal question before us is of the right of the administratrix, Mrs. Sibley, as usufructuary of the property of the community, which existed between her and the deceased.

Isaac P. Sibley died in 1861, leaving a plantation, with slaves^ work animals, utensils, etc., the property of the community. Mrs. Sibley, the surviving spouse, was appointed administratrix, and at the same time was entitled to the usufruct, during her widowhood, of this estate. She remained upon it until it was finally sold at succession sale in the latter part of 1867.

The opponents insist that she should charge herself in account with the revenues of the property during these six years. We are of opinion, however, that she was entitled to them as usufructuary. The fact that she was administratrix did not affect her rights as surviving spouse. 4 An. 389; 3 An. 489 ; 9 An. 107.

If the creditors wished to prevent her receiving tneso revenues they hould have pressed their claims, and compelled a sale at an earlier day.

Por the same reason she ought not to he charged with the value of the animals, tools and furniture, which perished by natural canses and use during this time. Tutorship of Davis, lately decided, 22 An. p. —.

On the whole, we think the judgment appealed from substantially correct.

Judgment affirmed.


text:
    No. 164.
    John A. Willis v. Laura J. Willis—Josephine Nicholson, Intervenor.
    -A judicial sale of Teal property, to satisfy a mortgage, extinguishes all the subsequent mortgages. Tlioreiore, if the evidence and declarations of the parties show that the defendant was the real purchaser of the land at sheriff’s sale, under the prior mortgage, the subsequent mortgages are extinguished.
    APPEAL from Tenth Judicial District, parish of Caddo. . Weems, J.

      T. T. <& A. D. Land, for plaintiff and appellant. A. W. O. Hieles, for defendant and appellee. Wright & Hwnean, for intervenor.
   Taliaferro, J.

This suit is instituted upon two promissory notes, secured by mortgage on a tract of land sold by the plaintiff to the ■defendant. The plaintiff claims recognition and enforcement of the mortgage, and vendor’s privilege upon the land, and that the proceeds be specially applied to the payment of the notes and all interest upon them. Each of these notes is tor $1774 97, payable respectively on the first of January, 1861 and 1862, with eight per cent, interest from date.

The defendant does not deny her liability to pay the notes as a personal debt, but contends that the special mortgage granted by her to secure the payment of the notes has been extinguished by a judicial sale of the land. Josephine Nicholson, a daughter of the defendant, intervenes, claiming a tacit and judicial mortgage upon the land, arising from an indebtedness to her from the defendant, as tutrix to the intervenor during her minority.

A personal judgment was rendered in favor of the plaintiff, without privilege or mortgage as claimed, for $3549 95, with eight per cent, interest from the eighteenth of January, 1860.

The plaintiff alone appealed.

The plaintiff purchased the land he sold to the defendant from Oglesby & Paup, about a year before he conveyed it to the defendant. In his contract with the defendant, she obligated herself to pay his two notes of $1166 66 each, the balance due Oglesby & Paup for the price of the land, which was secured by mortgage on the land. The defendant paid one of these notes, but, failing to pay the other, a writ of seizure and sale was taken out, and the land seized and advertised for sale. At this juncture of affairs, the defendant applied to E. Nicholson to borrow money to pay the debt and save her land. Nicholson declined lending the money needed, but agreed that he would buy the laud at the sheriff’s sale and reconvey it to her, if she would reimburse the money by a given time. The defendant consented, and this arrangement was carried out. The defendant contends that the judicial sale of the land under the prior mortgage of Oglesby & Paup extinguished the subsequent mortgage, which the plaintiff is seeking to eniorce. As this is the only question in this case, and the solution of which will decide tiie issue, it will be proper to1 refer to the testimony which relates tor the purchase at sheriff’'» sale, by Nicholson, an® his subsequent transfer of the land to the defendant. On the one side it is held that, as Nicholson purchased the land and reeonveyed it to the defendant, in pursuance of an agreement with her, the act was merely one of agency, or a purchase for the benefit of the defendant. On the other hand it is contended that the sale by tbe sheriff to Nicholson was absolute, and vested title in Mm. That he was not interposed, nor did he act as an agent, but bought with the intention of becoming owner. Nicholson was examined as a witness, and be testified that “ Laura J.' Willis applied to Mm for a loan of money to pay the mortgage notes she had assumed to pay in a sale from John A-Willis to herself. Informed her he could not let her have the money asked for, but offered to buy it in Ms own name, for himself, at the sheriff’s sale, and offered to let Mrs. L. J. Willis have it back it she could refund the money in a certain time. Witness accordingly bought it at the sheriff’s sale, and before the time was out she brought him the money, and he sold it back to her; this was a bargain between witness and L. J. Willis. If she brought Mm tbe money in a certain time, lie was to let her have the land. The defendant was living on the land at the time of the sale, and continued to do so up to the time witness conveyed it back to her, and continued to live on the land until the spring of 1866. Witness refers to the sale made in the suit of Oglesby v. John A. Willis. Did not know whether Mrs. Willis could pay witness the money, and he therefore took the title to the land in his own name, in accordance with the bargain referred to.” Cross examined, says: He bought the land for himself, and not for the defendant, and did not act as her agent, and that there was no agreement made that the sale was for defendant; and he considered himself the absolute and unconditional owner of tbe land after the sheriff’s sale to him.” Re-examined, says: “He reconveyed the land to tbe defendant because it was tbe bargain be had made with her, if she paid him in a certain time. This was an agreement made before tbe sheriff’s sale of the land.” Recross examined, says: “The bargain or agreement thus made was not in writing.”

There is a bill of exceptions in the record taken by the defendant, wMch the decision of the case does not require us to examine. The plaintiff’s counsel refers to the case of Foilain et al. v. Broussard, sheriff, et al., 9 Rob. 72, and relies much upon it as authority to sustain Ms position in the present case. The gist of the matter there was, whether Declouet bought for himself, and having so bought, afterwards conveyed to Fagot, or whether he bought for the latter undez a previous agreement and understanding with Mm. The agreement that Declouet would reconvey if Fagot should pay the bond, was made after the sheriff ’s sale at winch Declouet bought; and this, the counsel argues, makes the case before ns a stronger one, because here the •agreement was previous to the sale. The court, however, uses this language, which lays down the true test:

“ It is clear that the sheriff’s sale to Declouet divested Fagot of title, ■and at the same time extinguished the mortgage of his vendors, N. •and E. Lablanc, under which it was made, unless it appear that Fagot was in reality the purchaser at'that sale, and hid in the property through Declouet, as a person interposed.” Now, taking the entire evidence together in the case at bar, we can not understand it as supporting the belief that there was agency or interposition of any kind in the transaction. The statements of Nicholson under oath are clear and direct, that he did not buy as an agent; made no agreement that the sale was for defendant; considered himself absolute and unconditional owner of the land. These and other positive declarations of the witness, ignoring the hypothesis that Mrs. Willis, the defendant, was the real purchaser, through Nicholson, an interposed person, and no evidence contradicting, in any manner, those statements, we think they must be taken as showing an actual sale of the property to him, and, consequently, that the defendant was divested of title. Wo do not see that Nicholson’s agreement to subsequently sell to defendant, on certain conditions, is inconsistent with the intent to buy for himself •and become vested with perfect ownership.

It resulted, then, that the judicial sale of the property under the older mortgage extinguished the subsequent mortgages, and it passed to the purchaser free of the plaintiff’s mortgage. The judgment of the court a qua was therefore correctly rendered for the debt, without recognition of mortgage or privilege.

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


author: Wyly, J. •

text:
    No. 112.
    State of Louisiana, ex rel. S. Belden, Attorney General, v. Francis C. Mahan.
    After an appeal ig granted, and the bond given and filed in the record, the jurisdiction of th 4 court a qua ceases, except to test the solvency of the surety on the bond. Therefore, a second order, rendered afterwards by the -judge a quo, changing the return day, and granting further time to the appellant, is a nullity, and the appeal will be dismissed, if not filed in the Supreme Court, within the time allowed under the first order.
    APPEAL from Eighth District Court, parish of Orleans. J. It. Beckwith, (attorney at law), Special Judge, vice Dibble, J., recused.

      Simeon Belclen, Attorney General, and John Bay, for plaintiff and appellee. . L. Madison Bay, Bafus Wqples, and G. M. Brcmghn, for defendant and appellant. . .
   Wyly, J. •

A motion is made to dismiss this appeal, because the transcript was not filed in this court within three judicial days after the return day fixed by the district judge.

On tlie twenty-second of June, 1870, the appeal was granted, and the bond was filed on tlie same day, the return day being- fixed on tlie first Monday of July, 1870, at Monroe. The record was not filed till more than three judicial days had elapsed after tho return day. But, it appears, that the appellant obtained from the district judge on tho seventh of July, an oi-der extending the time of tho return day till the eighth of July, 1870,

This order ivas an absolute nullity. The appeal having been granted, and the bond given, the district judge ceased to have jurisdiction of the case further than to test the sufficiency of tho security on the appeal bond. 21 An. 152; 19 La. 178. The motion to dismiss is therefore well taken. 21 An. 210, 213.

Let the appeal be dismissed at tho cost of the appellant.


author: Tai.iaeekro, J.

text:
    No. 91.
    Lewis Thompson v. Lizzie Simmons, Administratrix.
    An obligation or bond, acknowledging an indebtedness, and agreeing to pay the interest annually, on a day fixed, together with so much of the principal debt as will make up a fixed amount, which payments are to be made each succeeding year, except in case of failure to make crops of cotton, when the interest ODly is to be paid, does not fall under the denomination of promissory notes, and is not, therefore, prescribed in five years.
    The reinscribing a mortgage from tho 2'egisfcry book, within ten years, is sufficient to give notice. The fact that it is a copy of a copy of a copy does not invalidate the registry.
    The doctrine announced in the case of Sanderson v. Sandig9, 21 An., page 757, is reaffirmed and followed in this case, fixing the amount due on an obligation for the purchaae of land and slaves, where payments had been made and credits given before emancipation of the slaves. The rule adopted by the court in that case was, that the amount of tho payments made were to be deducted from the whole debt, and the balance due to be divided ratable, and that which was for slaves to be deducted and judgment given for the balance, with a recognition of mortgage on the lands.
    ÍPPEAL from tlie Fourteenth Judicial District, parish of Ouachita. IF. J. Q.'Baker (attorney at law), Special Judge, vice Ray, J., recused.

      John Bay, for plaintiff and appellee. Garrett cC Garrett, and Richardson ds McBnery, for defendant and appellant.
   Tai.iaeekro, J.

The plaintiff brings this action against the administratrix of the estate of John T. Simmons, deceased, to enforce a claim of one hundred and eleven thousand six hundred and thirty-four dollars and ninety-three cents, with eight per cent, per annum interest thereon from the first day of March, 1861. This indebtedness, it apl>ears, arose from the purchase, in the year 1857, by E. P. Tatum and the decedent, John T. Simmons, from Wiliam Ballard, of a tract of land lying on the Ouachita river, in the parish of Caldwell, containing-' three thousand three hundred and twenty-two acres, embracing a large cotton plantation, with the buildings and improvements thereon, together with the work animals, cattle, hogs, sheep, farming- utensils, etc., belonging to the plantation and thereto attached. A large number of slaves were included in tbis purchase, and formed a very large component part of the consideration or price stipulated to be paid for the whole. The written obligation entered into by Tatum and Simmbns to pay the price agreed upon, or rather the remainder of the price alter deducting a cash payment of $50,000, and which was $132,000, is thus written:

“$132,000. New Orleans, February 11, 1857.

“ We, the undersigned, acknowledge ourselves to be indebted jointly and in solido, to Dr. Benjamin Ballard in the full sum of one hundred and thirty-two thousand dollars for value received ; one hundred and six thousand dollars of which is to bear interest at the rate of eight per cent, per annum from this date until final payment, and the remaining twenty-six thousand dollars is to bear the same rate of interest from and after the first day of March, eighteen hundred and sixty-one, until final payment; which said capital sum and interest we bind ourselves, jointly and i» solido, to pay to the said Benjamin Ballard, his heirs or assigns, at the office of Messrs. Bogart, Foley & Avery, in this city, in the manner following, to wit: The interest to be paid annually on the first day of March, 1858, and on the same day in each succeeding year, together with so much of the capital as will make up tho sum of fifteen thousand dollars, except in case of our failure to make crops of cotton, when the interest only is to be paid; and we moreover bind ourselves to pay more than tho said sum of fifteen thousand dollars at the time of such annual payments, if we are able to do so, in conformity with the terms of an act passed before Theodore Guyol, a notary public in New Orleans, of even date herewith.

“E. P. Tatum,

“J. T. Simmons.”

The payment of this obligation was secured by mortgage upon the property sold, bearing the same dato. In a suit in tho District Court of the United States, a judgment was obtained by Lewis Thompson against William Ballard for a largo sum, and under execution issuing upon it this obligation was seized and sold, and Thompson became the purchaser of it for $71,134. Thompson having died since the inception of this suit, his executors filed their appearance and became plaintiffs. They seek to enforce the mortgage upon the land to obtain payment of the amount claimed.

The defense is: The prescription of five years in bar of the obligation sued on. The prescription of ten years against plaintiff’s claim for mortgage and privilege, arising from failure to reinscribe the mortgage within ten years. The failure of consideration, to the extent of the estimated value of tho slaves, $116,000. That the payment of $50,000 made at the time of the transfer, and the piayments subsequently made and entered on the back of the obligation, should be imputed to the payment of the estimated value of the lands and personal property.

Judgment was rendered in the court below for $27,176 68 on the bond sued on, as the balance due on the estimated value of the land and personal property, with eight per cent, interest thereon from the first of March, 1861, with recognition of mortgage and vendor’s privilege upon the land, and the rendition of an order that it be seized and sold to pay the amount of the judgment; and that so much of the amount of the bond as is recognized as due and owing, bo paid out of the proceeds of the land mortgaged, as having precedence over other, claims; and that so much as may not be paid out of such proceeds bo paid, in due coarse of administration, out of proceeds of other effects of the estate of Simmons.

Prom this judgment the defendant has appealed.

The first point made in the defense is, that the obligation upon which this action is founded is a promissory note, and subject to the prescription of five years.

One of the marked characteristics of a promissory note is, that payment of a determinate sum of money is promised to be made at a time definite and fixed. The instrument sued on in this case, taken alone, seems devoid of this feature, indispensable in a promissory note. The obligation is contracted on both the potestative and the casual condition. The obligors are to pay $15,000, part interest and part capital, on the first of March, of every year in which they may be able to make crops. Then the periods at which the $15,000 payments are to bo made are clearly not absolutely known. They are as uncertain as the crops from which they are to be made. The obligation, construed in connection with an instrument specially referred to in the obligation-itself, seems to render the terms at which payments are to be made still more indefinite and contingent. We can only consider the instrument sued on as evidencing a contract giving rise to a personal action within the contemplation of article 3508, of the Civil Code, and subject to the prescription of ten years. This view of the character of the instrument disposes of the question of prescription. It is-shown by the letter of Simmons to Lewis Thompson, under date of twentieth November, 1866, that be acknowledged his indebtedness on what he ealls “ the bond which Dr. Ballard held against him.” This interrupted proscription which had not then accrued.

The extinction of tho mortgage, through failure to reinscribe within ten years, is contended for on the ground that no legal reinscription was made within the period required. It seems the reinscription was made, from the inscription of the act as it stood on the book of mortgages. This, defendant holds, is not a fulfillment of the law which requires that the inscription shall be made by recording a duly certified eopy of the original, C. C. 3330; and that the reinscription must be made in the same manner that the inscription or first recording was made, C. C. 3333. The aefc reinscribed, it is held, is the copy of a copy of a copy; that it was not reinscribed from an authentic copy of the act,” and that these requirements of the Code are strioti juris and imperative.

If the rigid adherence to the letter of the law insisted upon were to govern, the inscription or reinsoíiption of a mortgage from the original act itself, would be null and void, because article 3333 directs that the inscription shall be made from an authentic copy. The law makes the copy of a copy suffice for notice to the world, the only object aimed at in recording mortgages. If the copy of a copy, or the act in its third phase, is sufficient for notice, why may it not be equally so in its quartern or fourth phase ? But things which are equal to the same are equal to one another. When, therefore, the act, as reinscribed from the book, is a perfect reproduction of the inscription as made from the authentic copy, it has the same effect that the inscription has, because it is equally identical with the authentic copy. It is shown in this case that the reinscribed act is an exact reproduction of the first inscription. This, we think, sufficient.

The next ground of defense, the failure of consideration to the extent of the estimated value of the slaves, is well taken, anda reduction of the debt has been made accordingly. Our attention has been called by the plaintiff’s counsel, to an error of calculation in the making up of the judgment in the court below, and asks that the correction be made. Taking the evidence introduced, showing the relative value of the land, slaves and personal property embraced in the sale from Bal.lard to Tatum and Simmons, together with the data furnished in the record, we arrive at the conclusion that the sum of $71,427 is the deduction to be made as the part of the $111,634, representing the remaining balance of the price stipulated for the slave property. This deduction being made, there remains $40,207 due on the first of March, A. D. 1861, for the land and personal property. For this sum and interest, as stipulated, the plaintiff is entitled to judgment.

It is, therefore, ordered, adjudged and decreed that the judgment of the district court be amended so as to award judgment, which is hereby decreed in favor of the plaintiff for the sum of forty thousand two hundred and seven dollars, with interest thereon at the rate of eight per cent, per annum, from the first day of March, A. D. 1861, until paid. And it is further ordered, that in all other respects the judgment of the lower court be affirmed with costs.

Chief Justice Ludeling recused.

Rehearing refused.


text:
    No. 152.
    The State of Louisiana v. Jake King.
    Tiie accuse! was convicted of the crime of murder, and duly sentenced. Through his counsel, three bills of exception, were taken to the refusal of the judge to charge the jury as re-ques ed.
    I. — The court; was requested to charge the jury “that where all the circumstances of the killing are shown, it devolves on the State to show that the killing was malicious, to make it murder." Held — That this charge was well calculated to mislead the jury by its vagueness, and was properly refused.
    II. — “That if the life of accused was not in danger, but he had a reasonable ground oi believing that ifcwas, at the time of the killing, he had a right to kill the deceasedHeld— That this request, standing alone, as it does in the record, is erroneous as a legal proposition. That there are many instances in which a man may reasonably believe his own life in danger, without thereby acquiring the right to take the life of some one else. The charge was properly refused.
    III. — “That if the accused had a reasonable ground to believe from appearances, that his life was then and there in danger, and killed the deceased to save his own life, he was justified, although not attacked.” Held — That the right of self-defense, in America, is sufficiently extended without giving it such a latitude as is implied in this request, and the judge did not err in refusing the charge.
    APPEAL from the District Court, parish of Caddo. Levisee, J.

      James S. Ashton, District Attorney, for the State. J. II. KilpaP rich, for defendant and appellant.
   Howe, J.

The accused in this case was convicted of the crime oí murder, and duly sentenced, and has appealed.

Onr attention is directed to three bills of exceptions to the refusal of the district judge to charge the jury, as requested by counsel for the defense.

First — The court was asked to charge the jury that where all the circumstances of the killing are shown, it devolves on the State to show that the killing was malicious, to make it murder.”

The court did not err in refusing this charge. It is not necessarily correct as a legal proposition, and is well calculated to mislead a jury by its vagueness. Where all the circumstances of a homicide are shown, the presumption of malice is often established, and the burden imposed on the accused of showing an alleviation,' an excuse, or a justification. Russell on Crimes, vol. 1, p. 483.

Second — The court refused to charge “that if defendant’s life was not in danger, but prisoner had a reasonable ground of believing that it was in danger at the time of the killing, he had a right to kill the deceased.”

The court did not err in this refusal. We know nothing of the facts of the case, but must consider the requested instruction, standing alone as it does in the record, as an abstract proposition.; and, as such, it is evidently erroneous. There are many instances in which a man may reasonably believe his own life to be in danger, without thereby acquiring the right to take the life of some one else.

Third — The court refused to charge “ that if the defendant had a reasonable ground to believe, from appearances, that his life was then and there in danger, and killed tho deceased to save his own life, he is justified, although he was not then attacked :" and, in this refusal, the court did not err. The right of self-deiense has been sufficiently extended in America, without giving it such a latitude as is implied in this request. Indeed, literally construed, the doctrine contended for by counsel would justify a burglar in killing the householder who was prepared by force to defend his property. But giving the request its most liberal construction, it is still an incorrect statement of the law'. It is well settled that, to excuse a homicide by a plea of self-defense, the apprehensions of the accused must have been excited by an actual assault. 5 An. 490; 14 An. 827.

Judgment affirmed.


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    No. 167.
    The State of Louisiana v. Nelson Coleman, alias Nelson, alias McMillan.
    in this case the accused was indicted for the crime of burglary. On trial, his counsel requested the judge a quo to charge the jury:
    j. — That the circumstances necessary to convict must be as strong as the testimony of one witness, who swears positively that the accused did- commit the offense charged. Held— That the judge did not err in refusing this charge; that the law furnishes no such rule for estimat ng the weight of circumstantial evidence as that suggested in this request.
    II. — That, if the jury find that the accused was in the employ of the witness, as a cleric or a porter, at the time of the alleged commission of the crime, the fact of his being found in the store of -witness is not presumptive evidence that the accused entered with felonious intent. Held — That the court did not err in refusing this charge; that the bill of exceptions only showed the refusal of the judge to charge the jury as to this particular fact, without disclosing the circumstances under which the accused was found in the store, and was therefore properly i’(Gfused.
    APPEAL from tlie District Court, parish of Caddo. Levisee, J.

      James S. Ashton, District Attorney, for the State. A. Hoarman and J. H. JBJlpatrieh, for defendant and appellant.
   Howe, J.

The defendant was indicted for burglary and larceny and, having been found guilty of burglary, and sentenced .to imprisonment at hard labor, has appealed.

We are required to pass upon two bills of exceptions, reserved on the trial:

I. — The accused, through his counsel, requested tne court to cuarge the jury that “the circumstances necessary to convict in this case must be as strong as tho testimony of one witness, who swears positively that the prisoner did commit the offense, which is the lowest degree of evidence upon which a party can be convicted of crime, which charge the court refused, for the reason that the court had charged the jury in extenso as to tho requirements to authorize a conviction, and especially that, in tho absence of positive evidence, they were authorized to convict upon circumstantial evidence, provided the circumstances established were of such character and force as to satisfy their minds of the guilt of the prisoner beyond a reasonable doubt.” '

We do not think the court erred. We are not aware of any such rule for estimating the weight of circumstantial evidence as that sug - gested in this request.

II. — The court refused to charge “that, if the jury find that the accused was in the employ of Bowers, the witness, as a clerk or a porter, at the time of the alleged commission of the crime, the fact of his being found in the store of Bowers is not presumptive evidence that the accused entered with a felonious intent.”

We do not think the court erred in this refusal. In criminal cases the evidence which was adduced before the jury is not before us. The bill of exceptions throws no light upon the circumstances under which the instruction was requested. While, therefore, it may be correct, as an abstract proposition, we are unable to say that it was pertinent in any way to the facts which had been elicited by the testimony. If the bill of exceptions informed us what evidence had been offered respecting the terms of the employment of the accused, and his right of access to the store, and the request to charge had been directed to the circumstance of his being found in the store in the night time, we might be able to perceive the necessity of the instruction. But, in its present form, it seems to have been properly refused '

Judgment affirmed.


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    No. 113.
    Succession of Bitzer.—Opposition of William M. Washburn, Tutor, to Account.
    If tbc record, of the court below has been destroyed after appeal is taken, and the parties made a statement of facts, and an agreement as to the changes to be made in the judgment, th& Supreme Court will so amend the judgment as to make it conform to the agreement.
    APPEAL from the Parish Court of Morehouse. Bussey, Parish Judge.

      0. IT. Morrison, executor, pro se. John Hay, for opponent.
   Howe, J.

This case comes before us upon a statement of facts and agreement of parties, rendered necessary by the destruction of the records of the court below. The only question is of the amount to which the minor is entitled as her pro rata share of the fund held for distribution by the administrator. It is conceded by the counsel that the judgment should be amended so as to allow as such pro rata the sum of $2700.

It is therefore ordered that the judgment appealed from be amended so as to decree to William M. Washburn, the tutor of the minor, Ida Bitzer, tho sum of two thousand seven hundred dollars, as the pro rata share of the said minor in the fund held for distribution herein; that in all other respects tho said judgment be affirmed, and that the administrator, Charles H. Morrison, pay the costs of this appeal.


author: Wyly, J.

text:
    No. 92.
    M. J. Miller v. J. H. Wisner, Sheriff, et al.
    A promissory note given by a married woman, with mortgage on her paraphernal property to-secure it, executed under the authorization of the district judge, according to the act of 1855, may be enforced against the wife, in the hands of a third holder, without showing that it inured to her advantage or benefit.
    The holder of negotiable paper, indorsed inblanlr, is presumed to have acquired it liona fide belore maturity, and the burden of showing the contrary falls on the party raising the question of ownership.
    The fact that the party accepting an act of mortgage has no interest therein docs not affect the-validity of the mortgage. 21 An. 3.
    Written documents, under private signature, are inadmissible in evidence until the signature is proved.
    APPEAL from tlie Fourteenth District Court, parish of Ouachita.. Orawford, J.

      Stubbs & Oobb, for plaintiff and appellant. Garrett & Garrett, for defendants and appellees.
   Wyly, J.

The plaintiff, a married woman, has appealed from a judgment dissolving the injunction sued out by her against the executory proceedings of the defendants, Boyd & Martin, on a mortgage note executed by her on the fourteenth February, 1867.

She objects to the enforcement of the mortgage on various grounds,, the most serious of which we will notice.

The note, drawn to her own order and indorsed in blank, together with the mortgage on her paraphernal property was executed under the authorization of the district judge, according to the act of 1855, “An. Act to enable married women to contract debts and hind their paraphernal or dotal property.”

The holders of the debt thus contracted, in order to recover, are not hound to prove that the consideration thereof'inured to the benefit, of the maker, a married woman.

In City National Bank v. Eliza E. Barrow and Husband, A. Miltenberger, intervenor, 21 An. 396, where the intervenor objected that the mortgage, although inuring to the wife’s benefit, was not valid,, because not made under the act of 1855, this court remarked : As to the law of 1855, invoked by the intervenors, it will he observed that its object is explained in its title, which declares it to he An Act to enable married women to contract debts and hind their paraphernal, or dotal property.’ Its effect is to dispense the creditor, by an observance of its formalities, from the obligation, which would otherwise exist, * * * to prove that the money advanced by him was actually applied for the benefit of the wife.”

As to the allegation that Boyd & Martin are not tne owners of the note — that it belongs to the plaintiff — we will observe there is no proof in support of it, the burden of proof being on plaintiff. 21 An. 731.. The holders of negotiable paper indorsed in blank are presumed to-have acquired it before maturity and to he the bona fide owners thereof. If the maker had proved a want of consideration, which she. has not done, the transferrees, in order to recover, would be bound to. prove they gave a valuable consideration. Union Bank v. Ryan, 21 An. 552 ; Bayley on Bills, 492 to 495 ; 9 An. 20, 22.

That the debt was not contracted till several months after it had been authorized by the judge, is of no consequence. The holders oí the paper are presumed to have acquired it bona fide in due course of trade; the formalities required by act of 1855 having been observed, •they are protected by the law tho same as if the evidence of the debt had been given by a femme sole.

The bill of exceptions to which our attention has been called was not well taken; the district judge properly rejected tho documents under private signature, on the ground that the signatures were not proved when they wore offered in evidence.

That tho party accepting the mortgage had no interest therein did not invalidate it. 21 An. 3.

There is nothing apparent on tho face of tho proceedings or the evidence showing that tho plaintiff is entitled to the equitable remedy ■of injunction. On the contrary, from her own letters, in the record, it appears she has but little reason to appeal to equity.

We will not however increase the damages allowed by the district judge.

It is therefore ordered that the judgment appealed from be affirmed, ■with costs.


text:
    No. 84.
    N. Norris v. G. W. Warren.
    ^ tlie appeal is taken in open court in a case ivliere the judge a quo is required to fix the amount of the bond, the order fixing the amount of security must be entered on the minutes oí the court with the order granting the appeal. C. P. 573, 574.
    APPEAL from the Eleventh District Court, parish of Claiborne. <J. 8. Young (attorney at law), Special Judge, vice Egan, J., recused.

      Gray & JBlaelcman, for plaintiff and appellant. J. D. Watlcins, for defendant and appellee.
   Wyly, J.

A motion is made to dismiss this appeal, because there was no order of appeal granted by tho court below.

It appears from the record that the following entry was made on the minutes of the court, viz:

"Plaintiff’s motion of appeal filed, and defendant’s counsel takes cognizance, and appeal bond fixed at two hundred and fifty dollars.”

This is not a sufficient compliance with article 574 C. P., and also 573 C. P., and. the amendment thereof, which requires that the judge shall fix the amount of security, and cause the same, with the order granting the appeal, to be entered on the minutes of the court.” * * *

The entry that the motion for appeal was filed, does not show that .it was granted. Moore v. Simms, 21 An. 649.

Let this appeal be dismissed, at the cost of appellant.


author: Ludeling, C. J.

text:
    No. 86.
    W. C. Bush v. J. R. Head, Parish Judge, et al.
    If the district judge lias not original jurisdiction, and it is not necessary to aid liim in tlie exercise of his appellate jurisdiction, he can not issue the wr.t of prohibition against the parish judge, restraining him lrom proceeding further in the cause.
    APPEAL from the Eleventh District Court, parish of Bienville.

      J. JR. Head, Parish Judge, respondent. J. 0. Egan and Benjaman 'f17' Voarec. for relators. JO. B. Watlcins, for defendant and appellant.
   Ludeling, C. J.

This is an appeal from a judgment of the district court perpetuating a writ of prohibition, issued to prevent the judge of the parish court from proceeding with the trial of a cause involving-four hundred and eighty dollars, and the accrued interest, amounting-to about three hundred and forty dollars.

The district judge was without jurisdiction to issue the writ in suoh a case. It was not necessary to aid him in the exercise of his appellate jurisdiction, and lie had not original jurisdiction in the case.

The judgment of the district judge is a nullity. It is therefore ordered that the judgment appealed from be avoided, and that the plaintiff and appellee pay costs of both courts.


text:
    No. 165.
    James R. Christian v. M. Baer.
    A contract of sale of a lot of tobacco, the price of which is fixed at a certain rate payable in Confederate trea-vury notes, can hot be judicially enforced. Constitution, Art. 127. Nor can the plaintiff, if he declares on sucha contract, be permitted in the same action, to recover on a quantum meruit, on showing the value of the tobacco in lawful currency, f*
    APPEAL from Tenth District Court, parish of Caddo. Weems, J.

      T. T. & A. E. Land, for plaintiff and appellant. Looney <& Wells, for defendant and appellee.
   Wyly, J.

The plaintiff alleges that the defendant owes him $68,412 lawful money, for this: In November, 1864, in Bolivar county, Mississippi, at the request of the defendant, Baer, through his agent, S. Levy, Jr., he bargained, sold, and delivered to him, said Baer, fifty-six boxes of tobacco, weighing-, net, five thousand seven hundred and one pounds, at the price of twelve dollars per pound, making said sum of sixty-eight thousand four hundred and twelve dollars.” » * * He also avers that, although said Baer received and sold said tobacco at a large advance, yet he refuses to pay him “ said debts, contrary to law and the obligations of said contract.” He also claimed six per cent, interest, inasmuch as said contract was made in the State of Mississippi. He prayed for judgment for said sum, with six ner cent, per annum interest and costs and general relief.

The defendant denied generally the allegations of the plaintiff specially denied the agency of Levy, or “that he had any authority to bind the defendant in the obligation sued on,” and he averred that the said obligation was contrary to law, the contract being contrary to “the policy of the United States and contra bonos mores, both as to prohibition by law, and the consideration.”

There was judgment in favor of the deiendant and the .plaintiff appealed.

It appears from the evidence that the tooacco was bougnt, as aueged, by the plaintiff, and that S. Levy, in evidence of the price, gave the plaintiff his two sight drafts on the defendant, payable in Confederate treasury notes, of the now issue, for tobacco purchased of him for you.” These drafts the defendant did not accept, although he received the tobacco and sold it. There is ample evidence of ratification of the agency, of Levy, by the defendant in this transaction; and it is also shown that Levy had verbal authority from the defendant to purchase. But as the sale was for Confederate money, of the new issue,” it can not be enforced by the courts of this State. Art. 127. Constitution

The plaintiff, however, insists that as the defendant denied the ¡ agency of Levy, and repudiated his act, he should be adjudged to pay ; him the value of the tobacco, which, ho says, is proved to have been ¡worth, at the time, one dollar per pound, or $5701.

To this we reply, that having declared upon a contract, reprobated, by law, the plaintiff will not be permitted to recover on a quantum meruit; while demanding the. fruits of an immoral cpntract, they will not be heard claiming equity from their debtor.

Whether Baers formally accepted the drafts or not, but for immorality of the contract, he would have been liable, having ratified the acts of his agent, Levy.

Judgment affirmed.

Behearing refused.


text:
    No. 160.
    State of Louisiana v. C. A. Gary.
    In a criminal caso no appeal lies, unless the accused has teen sentenced to the punishment of death, or imprisonment at hard labor, or a fine exceeding three hundred dollars, is actually imposed. Constitution, article 74.
    APPEAL from the District Court, parish of Caddo. Levisee, J.

      James 8. Ashton, District Attorney, for the State. Loonei/, Hides & Kilpatride, for defendant and appellant
   Howe, J.

The accused in this case has appeared from an order granting to the State a rehearing of a motion to discharge. He has never been sentenced. No appeal lies to this court, in a criminal case, unless a sentence of a certain magnitude has been imposed. Constitution, article 74.

Appeal dismissed


text:
    No. 134.
    G. W. Bancker & Co. v. M. Marti and Walters & Elder.
    "Where the original answer of the defendants admits that there was a sale and transfer of the goods from the plaintiffs to defendants, and the question at issue between the parties is, was the transfer legitimate, as alleged by plaintiffs, or fraudulent, as alleged by defendants, an amended answer alleging that there was no sale, will not be permitted after, the cause-is fixed for trial. Such amendment being calculated to change the issue raised by the original answer.
    If the verdict of the jury is not responsive to the pleading3 and the evidence in the record the cause will be remanded with instructions to try the issues raised by the pie adings.
    APPEAL from the Tenth District Court, parish of Caddo. Devisee, J.

      Duncan & Moncure, for plaintiffs and appellants. Land & Taylor and Egan, Williamson & Wise, for defendants and appellees.
    This case was tried by a jury in the court below
   Wyly, J.

This case was before this court at Natchitoches in August, 1869, and was remanded as to Walters & Elder, because that part of the verdict of the jury which said there was no sale to the firm of Walters & Elder by Marti contradicted the answer of said firm which admitted there was a sale. It was remanded that the character of the sale might be determined, that it might be ascertained whether the transfer was legitimate, as alleged by Walters & Elder, or whether fraudulent, as alleged by the plaintiffs, the creditors of Marti. 21 An. 587.

The plaintiffs have now appealed from a judgment on a verdict in favor of the defendants, Walters & Elder, based on almost the same evidence that was introduced at the first trial.

Our attention is directed to a bill of exceptions taken by the plaintiffs to the ruling of the court in allowing the defendants, Walters & Elder, to file the following amendments to their original answer, after the cause had been remanded for a new trial, to wit: “ Now come the defendants, Walters & Elder, a commercial firm, and beg leave of the court to amend their original answer filed in this case, and allege that the purchases of goods by the said firm of Walters & Elder from Marti, or Marti & Bradley, mentioned in their answer heretofore filed, have no connection or relation whatever to the sale of the goods in dispute and controversy in this case; and aver that neither the sale of the goods in dispute in this cause, nor any part of them, was ever made by Marti to the said firm of Walters & Elder; and further aver that the firm of Walters & Elder purchased said goods in good faith from the vendee of the said Marti, and that the creditors of Marti, or Marti & Bradley have no right of action against said firm of Walters & Elder.”

The court admitted this amendment, being of opinion that it was not contradictory of the original answer, but served to explain its meaning. We think the averment “that neither the sale of the goods in dispute iu this cause, nor any part of them, was ever made by Marti to said Walters & Elder,” is a plain contradiction of the original answer which expressly admitted the sale, but averred that it was a legitimate and ordinary transfer.

We think the judge erred in permitting the amendment to be made, the sole issue for the jury to determine being as to the character of the sale which Walters & Elder admitted was made to them by Marti. The bill of exceptions was well taken. An examination of the record satisfies us that the verdict of the jury in favor of Walters & Elder is not sustained by the evidence. We think that justice requires the cause to be remanded in order that it may be determined whether the sale from Marti to Walters & Elder was fraudulent, as alleged by the plaintiffs.

It is therefore ordered that the judgment of the court below be avoided and annulled, and that this cause be remanded for now trial according to law, on the issue, was the sale from Marti to Walters & Elder, a fraudulent one, and should the plaintiffs recover against them, as prayed for in their petition. It is further ordered that the appellees pay costs of this appeal.


text:
    No. 101.
    Bank of New Orleans v. James M. Frantom.
    Payment of a note given in favor of an agent, and discounted by a bank in Confederate notes, and the proceeds thereof handed over to the maker of the note, can not be enforced. Con* stitution, article 127. The fact that the agent or factor of the maker of the note, who negotiated it with the bank, sent a small amount of groceries to the maker of the note, which he had purchased with a part of the proceeds, with the balance in Confederate notes, will not enable the bank to recover the amount of the supplies so furnished, they forming no part of the consideration for which the bank discounted and became the owner of the note.
    The rule that courts will not enforce an obligation with an unlawful cause, is not affected by any confirmative acts of the debtor. Therefore, a recognition or acknowledgment by the debtor, does not free it from the taiut which the law has placed upon it.
    APPEAL from the District Court, parisli of Ouacliita. 1lay, J.

      J. & 8. I>. 1icHnery, for plaintiff and appellant. Jolm Hay, for defendant and appellee.
   Howe, J.

Tbe note sued upon in tliis case was made by tlie defendant to tko order of his agent and factor, Bres; and, at the request of the latter, discounted by the plaintiff. The hank paid to Bres tho proceeds in Confederate notes, and Bres received the same for the defendant. He then sent the defendant eighty dollars and forty cents of the amount in plantation supplies, and the balance, by check, in Confederate notes.

There was judo-ment in the court below for aerenclant, and plaintiff has appealed.

We see no error in the judgment. Tbe cause or consideration of the obligation, as between the defendant and plaintiff, was the payment by ■the latter of Confederate notes; and not, as tho plaintiff has urged in argument, the furnishing of supnlies. The plaintiff furnished no-supplies.

Nor can the plaintiff recover, as claimed by its counsel, the sum of eighty dollars and forty cents, the amount of supplies purchased by Bres, for defendant, with the proceeds of the discount. These supplies-were neither furnished by the bank nor by Bres. They were purchased, by Bres, as agent for defendant, out of funds procured by discount from the bank, and they therefore formed no part of the cause or consideration of the obligation created by the note.

It appears that in 1867 the defendaut signed, upon tho back of the-note, a statement in tho- following words: “I acknowledge the within note to be just and correct;” and it is claimed that he is estopped by this from now proving the unlawful consideration of the note. To this we reply, that in the first place there does not appear to have been any sufficient objection or exception to the introduction of tho testimony;, and, in tho second place, the testimony was proper. The rule that courts will not enforce an obligation with an unlawful cause, is not established in favor of the defendant, and he can not affect it by any recognitivo or confirmative acts. Such acts are infected with the same taint as the original contract, whose execution the law perpetually resists, and to whose ratification it will never lend its aid.

Judgment affirmed.


author: Ludeling, C. J. Howe, J.,

text:
    No. 99.
    W. R. Ward v. D. B. Douglass, Sheriff, et al.
    Where the appeal is granted, on motion in open court, and the bond is given in favor of the ' clerk, all tbe parties to the suit, who"are not appellants are appellees, and the appeal will » not be dismissed for the want of proper parties.
    The rule is well settled thatan injunction will not be dissolved for an alleged informality, if it appear from the record that there exists good cause for an injunction.
    Where mortgage notes have been given to factors or commission merchants, to secure advances made and supplies furnished to a planter, and an account is rendered and a. balance struck showing the amount due by the planter, the factor can not resort to theexecutory process to enforce payment of the balance claimed to be due, even if a mortgage exitsts to secure the balance.
    In such a case the factor should be compelled to establish the correctness of his account contradictorily with the planter.
    APPEAL from tbe Fourteeuth District Court, parish of Morehouse. Bay, J.

      I). 0. Morgan, for plaintiff and. apnellant. Todd & Brigham, for defendants and appellees.
   Ludeling, C. J.

The defendants have moved to dismiss this: appeal, on the ground that the sureties on the iniunetion bond have not appealed, and are not parties to the appeal.

The motion for an appeal was made in open court and granted, and the appeal bond is in favor of the clerk. We have held that under such a state of facts the parties to tho suit, who are not appellants are appellees, and that the appeal will not be dismissed. The motion is therefore refused.

On the merits, the view we liave taken renders it unnecessary for us •to notice either the exception, based, on the inartificial and confused pleadings of the plaintiff, the bills of exceptions, or the various points made in argument.

It is now well settled that an injunction will not bo dissolved, if it appears from, the record that there exists good cause for an injunction. This record contains such evidence.

The plaintiff, a member of a planting and commercial partnership, had dealings with tho defendants, tho factors and agents of said firm, during the year 1867. The account current, furnished by the defendants, shows that the plaintiffs are charged with tho amounts of these, two notes, which form the basis of the order of seizure and sale, and with drafts accepted as well as drafts paid for plaintiffs, with supplies, commissions, interest, etc., amounting in the aggregate to $27,040 15; and that they are credited with tho proceeds of the two notes, less two and a half per cent commission, two and a half brokerage, and eigliby.seven discount, with the proceeds of cotton, cash remitted, etc., amounting in tho aggregate to $18,834 28; leaving a balance against ■the plaintiffs of $8205 87.

For this, balance an order of seizure and sale was issued, without any proof of its correctness.

The notes were made, in favor of tho defendants to enable them to raise thp money necessary for them to do the business of their principals. When these notes were taken up by the factors, they had accomplished the object for which they were made, and they were mere vouchers in the hands of tho factors, to prove items of their account against their principals. 2 An. 635, Succession of G-uellemain; 2 An. 779, Toledano v. Gardiner; 9 An. 116, White & Co. v. Rucker. It. would be monstrous to permit the factors to resort to the executory process, under such circumstances, even if a mortgage exists to secure the balance, about which we express no opinion. The factors and agents should be required to prove, contradictorily with their principals, the correctness of their accounts.

It is, therefore, ordered and adjudged that the judgment of the district court, against the plaintiff, be avoided and reversed, and that the injunction be perpetuated. It is further ordered that the defendants pay costs of both courts.

Howe, J.,

dissenting. The pleadings of the plaintiff himself, and the testimony in the record, have satisfied my mind that at the time the defendants took out their executory process, they were the holders in good faith, for value, of the notes in question, secured by mortgage importing a confession of judgment, and were entitled to the executory process. While, therefore, I do not differ with the court upon the abstract doctrines of law stated in the opinion, I can not think that the facts of the case support the decree.


author: Wylt, J.

text:
    No. 139.
    T. M. Gilmer v. W. H. Hill, Sheriff and Tax Collector, et al.
    Ilic revenue act of ninth of March, 1809, which prohibits all courts from enjoining or .otherwise interfering with State tax collectors in the discharge oí their duties in collecting licenses or taxes, has no application to parish taxes or parish tax collectors.
    APPEAL from the Parish Court of the parish of Bossier. Balear, J.

      It. W. Turner, for plaintiff and appellant. T. W. Fuller, Parish Attorney, for defendant and appellee.
   Wylt, J.

The plaintiff enjoined the parish tax collector and the police jury of the parish of Bossier from selling his property for the payment of his parish taxes, for the year 1868, to wit: $65 95 ad valorem tax, and $332 00 specific tax, the latter being an assessment •of $2 per bale on one hundred and sixty-six bales of cotton, on the ground of the unconstitutionality of said tax. The defendants excepted to the jurisdiction of the court, on the ground that by tbe revenue act of the ninth of March, 1869, “all courts are prohibited and restrained from enjoining', or otherwise interfering with State tax collectors in the discharge of their duties in collecting licenses or taxes under this law.”

The parish court dismissed the suit, and plaintiff has appealed.

An examination of the statute under which the suit was dismissed by tbe parish judge, satisfies us that his judgment is erroneous.

That act has no reference to parish taxes or parish tax collectors, it •being an act to provide for the revenue of the State, and to fiicilitate the collection of State taxes.

It is therefore ordered that the judgment appealed from ho avoided and annulled, and that this cause be remanded, to be proceeded in according to law. It is further ordered that the defendants and appellees pay costs of this appeal.


author: Ltjdeling, C. J. Mr. Justice Wyly,

text:
    No. 102.
    John L. Tippit v. M. H. Lippmins.
    The Supreme Court can only take jurisdiction of appeals from parish courts, in probate cases, when the amount involved is above five hundred dollars. Therefore, no appeal will lie tc the Supreme Court from a judgment of the district court, rendered on appeal from the parish, court.
    APPEAL from the Eleventh District Court, of the parish of Claiborne. Fgan, J.

      J. B. Watkins, for plaintiff and appellant. Gray t(i Blackman, for defendant and appellee.
   Ltjdeling, C. J.

This is an appeal from a judgment of the Eleventh District Court, affirming a judgment of a parish court.

We have not the power to revise the judgments of district courts, rendered on appeals from the parish courts. To do so, would he virtually to entertain an appeal from a judgment of the parish court; and the only cases in which this court can entertain appeals from the parish courts are probate eases, when the amount exceeds five hundred dollars, exclusive of interest; and in such cases the appeal is directly from the parish to the Supreme Court. Articles 87 and 88 of the constitution.

If the parish courts entertain jurisdiction in cases in which the constitution denies them jurisdiction, their acts are nullities, and they may be corrected on appeal to the district courts, or by action oi nullity.

It is therefore ordered that the appeal be dismissed, at the appellant’s cost.

Howe, J. I concur in the decree in this case.

Mr. Justice Wyly,

dissenting. I think this court has appellate jurisdiction of all ordinary suits, where the amount in dispute exceeds five hundred dollars. Here, the note sued on was for $467, and over $200 interest, which had accrued before the institution of the suit in the parish court. Constitution, 74; 22 An. Ill; 22 An. 25.

On the merits, the question is, has the parish court jurisdiction where the amount in dispute exceeds $500, principal and interest, the principal being less than that sum. This depends upon the true meaning of the eighty-seventh article of the constitution, which fixes the jurisdiction of parish courts in these words: “ They shall have exclusive original jurisdiction, in ordinary suits, in all cases when the amount in dispute exceeds one hundred dollars, and does not exceed five hundred dollars; subject to an appeal to the district court in all cases when the amount in contestation exceeds one hundred dollars, exclusivo oí interest.”

A fair interpretation of the language employed in this article of the constitution loaves no doubt that the jurisdiction of parish courts, in ordinary suits, is limited to cases where the amount in dispute, principal and interest, does' not exceed five hundred dollars. But; it may be urged that this article of the constitution should be construed with reference to article 85 and article 89, fixing the original jurisdiction of district courts and of justices of the peace, the jurisdiction of the latter being limited to $100, exclusive of interest, and the jurisdiction of the former to sums exceeding $500, exclusive of interest. That the framers of the constitution certainly intended that some court should have original jurisdiction of cases similar to the one in question; that,, as the amount is too large for the jurisdiction of justices of the peace, and as the amount, exclusive of interest, is too small for the district courts, the parish courts must have original jurisdiction of the case.

It may also be urged that, under the familiar rules of construction enunciated in articles 14, 17, 18, C. C., the article of the constitution defining the jurisdiction of the parish courts, must bo construed with reference to the other articles, fixing the jurisdiction of the other courts, and with reference to the supposed intention of its authors.

I feel constrained to take a different view of this law, however desirable it may be for cases thus situated to have the original jurisdiction of some court. The meaning of the article'is obvious; its language, fixing the jurisdiction of the piarish courts, is not dubious,' and there is no room for construction. It is only where the meaning of the law is dubious that the rules of construction are resorted to. “ When a law is clear, and free from all ambiguity, the letter of it is. not to be disregarded, under pretext of pursuing its spirit.” Ch C. 13.

The jurisdiction of parish courts is fixed in precise terms in article 87 of the constitution, and it can not be enlarged or diminished by this court, whose duty it is to declare what the law is, not what it should be.

I therefore think this court has jurisdiction of the appeal, and, as the parish court was without jurisdiction, rationo materia, the judgment of that court should be declared a nullity.


text:
    No. 89.
    State of Louisiana, ex rel. S. Belden, Attorney General, and J. R. Clay v. O. C. Blandin.
    In a suit under the intrusion act of 1868, No. 156, wherein the right to offico is tho subject cj1 controversy, and the suit is commenced and prosecuted in the court below, in the name of the State, with the name cf the claimant to the office joined in the action, with a prayer that he be declared the true and legal officer, and an appeal is taken from the judgment by the State, such claimant must be made a party thereto. Therefore, if an appeal has been, taken from such a judgment by the State alone, it will bo dismissed for want of proper parties; the fault being imputable to the appellant.

      APPEAL from Eighth District Court, parish of Orleans. Dibble, J.
    íjl Simeon Belden', Attorney. Geuoral, for the State. John Bay and IT. M. Dibble, for plaintiff and appellant. Cotton efi Jjevy and B. IF. Bichardson, for defendant and appellee.
    This case was tried iu tho court below by a jury.
   Ludeling, C. J.

A motion to dismiss this appeal has been made. It will be necessary to notice only one of the grounds stated, to wit: that all the parties in interest are not made parties to the appeal.

An examination of the record satisfies us that the motion is well taken. The petition in the suit alleges that the State of Louisiana, by Simeon Belden, Attorney General of said State, upon the information of John R. Clay, who is joined with the State of Louisiana herein as plaintiff, respectfully represents, etc. And the prayer of the petition is, that John R. Clay “be decreed to be entitled alone to the possession of all tlio papers, tax rolls, delinquent lists, and every other manner of paper or papers pertaining to said office, in possession of said Blandin,” etc.

The title of the suit in the citation, and elsewhere, is, The State of Louisiana, ex rel. S. Belden, Attorney General, and J. R. Clay v. O. C. Blandin.

The fifth, sixth and seventh sections of the act of 1808, No. 156, expressly recognize the party alleged to be entitled to the office, as a party interested in the suit; they recognize the fact that judgment may bo given in his favor. Suppose judgment had been rendered in'favor of the plaintiff, could the defendant have appealed without making J. R-Clay a party to the appeal ? We think not. The appeal having been taken'by petition in the name of the State alone, and J. R. Clay not having been cited, the fault is attributable to the appellant, and the appeal must be dismissed.

It is therefore ordered that the appeal be dismissed at the costs of the appellant.


text:
    No. 137.
    The State of Louisiana v. William Smith, alias William Stindie.
    In a criminal case only questions of law can be reviewed on appeal. Therefore the decision c f the judge aguo on a question of diligence, raised by the accused in a motion for a new trial, can not be examined by the appellate court.
    In this case a bill of exceptions was taken to the ruling of the judge admitting the testimony of\vitnesse3, not physicians, to prove the cause of the death of the deceased. Held — That the judge did not err in receiving the witnesses. That they were introduced to prove the .actual infliction of the wounds by the accused, and the actual death of deceased. That ■the jury were to determine from the facts given by the witnesses whether deceased ■came to his death by the wounds given by the accused.
    APPEAL from Tenth Judicial District, parish of Caddo. Levissee,

    TF. TF. Farmer, District Attorney for the State.
   Taliaferro, J.

The defendant was tried before tlio district court of the parish of Caddo, on an indictment for the murder of Edward l-Ieath, and found guilty. He was sentenced to imprisonment for life in the State Penitentiary, and has appealed.

After conviction, the defendant filed a motion for a new trial, supported by affidavit, and setting out the grounds which are substantially the discovery of now evidence. This is a question of diligence, and not an unmixed question of law; the action of the district court, on the motion for a new trial, can not be reviewed on appeal. 11 An. 478; 21 An. 475.

During the trial, defendant, by his counsel, objected to tne introduction of witnesses, not physicians and not experts, to prove the cause of the death of the deceased. The objection was overruled, and a bill of exceptions retained. The witnesses were introduced to prove tbe actual infliction of tbe wounds by tbe accused, and tbe actual death of the deceased. The jury were to determine from the facts received from the witnesses, whether the wojxnds given by the accused caused his death. We think the judge did not err.

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


text:
    No. 65.
    J. S. Wise Administrator, v. J. W. Hill.
    Obligations given for tbe biro of slaves are illegal, and can not be enforced.
    APPEAL from the Tenth Judicial District, parish of Caddo. Weems, J.

      Beall & Ohapman, for plaintiff and appellee. Looney & Wells, for defendant and appellant.
   Taliaferro, J.

The defendant appeals from a judgment rendered against him on a promissory note, which expresses on its face that it was given for the hire of slaves. Obligations for the hire of slaves are illegal', and can not be enforced.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that this suit be dismissed, at the cost of the plaintiff and appellee.


text:
    No. 93.
    H. H. Heard v. Joel R. Wynn.
    An error of the judge a quo in fixing tbe date at which interest begins to run, will be corrected on appeal, and the appellee will be condemned to pay tbe costs of the appeal.
    APPEAL from Fourteenth District Court, parish of Richland. Bevy, J.

      Newton & Hall, for plaintiff and appellee. Stubbs & Cobb, for defendant and appellant.
   Wyly, J.

The defendant, who appeals from a judgment against him, on a promissory note, contends that his obligation is extinguished by the prescription of five years, more than that period having-elapsed from the maturity of the note to the institution of this suit. The plaintiff, on the other hand, contends that there was an interruption of prescription, and the evidence adduced by him satisfies us' of the fact.

We find, however, there is error in the judgment as to the date at which interest should begin to run, the judge decreeing- interest from the first of January, 1861, whereas the note stipulates it only from the first of March, 1861.

It is therefore ordered that the judgment be amended allowing eight per cent, per annum interest only from the first of March, 1861, and as thus amended that it be affirmed. It is further ordered that plaintiff pay costs of appeal.


text:
    No. 111.
    George Ellison v. M. A. & W. M. Iler.
    If tlie debt exists, and the mortgage and privilege have not been legally extinguished, the iliird possessor can be compelled, by the hypothecary action, to pay the whole debt, or surrender the property.
    If the prayer oí the petition, in an hypothecary suit, contains all the material requests required by this form of action, it will not be dismissed because it contains some requests which the law will not grant.
    In this case, it appears ihafc the act of mortgage, given on lands situated in the parish of Franklin, was regularly recorded in the proper office, in that parish; that, in 1868, alter the mortgage was given, the parish of Richland was created by law, and the lands covered by this mortgage were included in the boundaries of the parish oí Richland. The mortgage was not recorded-in. the office of the recorder of mortgages in the parish of Richland. Held — That the law does not require the recording of the mortgage in the new parish thus created, after the inscription in the parish where the laud was situated at the time; that the mortgage rights attached to the land from the date of registry in the parish where it was situated, and the subsequent changing of the boundaries, and the creation of a new parish, did not operate a relinquishment of the mortgage, even though it had not been recorded in the new parish.
    APPEAL from the District Court, parish of Richland. Grawford, J.

      Wells & Williams, for plaintiff and appellant. Richardson & McEnery, for defendants and appellees.
   Howe, J.

It appears that, in 1867, the plaintiff, being the holder and owner of a draft executed by one Ilemler, for the price of land, and secured by mortgage and vendor’s privilege, brought suit thereon, and obtained a personal judgment for the amount, with interest and costs, and also for the recognition of his mortgage and vendor’s privilege upon — not the land affected thereby, but, by an error in description, an entirely different tract.

In January, 1868, the defendants now before us purchased, at sheriff’s sale, the tract really covered by the mortgage and privilege. In November, 1869, the plaintiff, reciting these facts in his petition, brought this action against defendants, as third possessors, making proper allegations of notice, and praying judgment that his mortgage and privilege be recognized and rendered executory, and that the defendants be adjudged to deliver up to him said land within a time to be fixed by the court, that said land may bo sold to pay this demand, and that, in default of so doing, that judgment may bo rendered against them for the sum of $864, with legal interest from February 1, 1862, and for costs, and for general relief.

The defendants filed a number of exceptions, a plea of prescription of five years, and an answer containing a general denial and sundry special denials. The exceptions were referred to the merits, the case tried upon the merits, and finally the demand dismissed, as in case of nonsuit. The plaintiff appealed, and we proceed to examine the questions presented in this court:

first — It is contended by defendants that if there was error in the judgment in the case of Ellison v. Hemler, as set forth in the-petition in this case, the remedy of plaintiff was by appeal or action of nullity, and therefore this suit must be dismissed. We think this view erronemis, and that the defendants have misapprehended the effect of the judgment in Ellison v. Hemler, and their relation to it. That judgment was -twofold. It was a judgment in personam against Hemler, and in rem against certain property. The judgment in personam might exist without the judgment in vein; and, in certain cases, the judgment in rein without the judgment in personam. The personal judgment is conceded to be correct, and the confession on which it was founded shows a renunciation of prescription. The judgment recognizing and making executory a mortgage to secure the amount of the draft, was against certain lands in range eight east, instead of being against the lands of defendants in the case at bar, which are in range six east. Now, this portion of the judgment is either correct or incorrect. If it be correct, it shows that the plaintiff’s draft was secured by lands in range eight, as well as by lands in range six. If it be incorrect, it is, as to the defendants, a matter of no concern. It might- interest the owner of the lands in range eight, whose property was thus affected; but it is of no more advantage or detriment to the defendants and their lands in range six than if it had merely declared the draft to be a first privilege on a steamboat.

The defendants are third possessors of land on which the plaintiff claims a mortgage and vendor’s privilege. If the debt exists, and the mortgage and privilege have not been in some legal way extinguished, the hypothecary action can be maintained.

Second — The defendants criticise the prayer of plaintiff’s petition, quoted above, and claim that it is so informal and irregular as to justify a dismissal of the suit. We can not perceive the force of this objection. While it contains some'requests which the law will not grant, it contains also those which are proper in this form of suit. The object of the hypothecary action, properly speaking, is to compel the -third possessor either to give up the property or to pay the amount for which it stands hypothecated. C. P. 68.' If the third possessor, within a time fixed, fail to discharge the debt in full, the creditor may bring Jiis action against him to have the hypothecated property seized and sold. C. P. 69. The plaintiff in this case has asked that the property be seized and sold.

Third — It is claimed that tne mortgage tnus sougnt to be enforced was never recorded in the parish of Richland, where the land is situate. The parish of Franklin included the land at the time the mortgage was executed; the act was authentic, and it was duly recorded in Franklin. The new parish was created in 1868, and the land is in its limits; but we are not referred to any law, and know of none, which would cause the mortgage on this account to lose its grasp on the land.

Fourth — The defendants contend that they purchased the property •at probate sale, and it was conveyed to them free and clear of incumFrances. The act of sale to defendants shows that they purchased at sheriff’s sale, made in executory proceedings, at the suit of Hemler v. Heath, administratrix, and that at the time they were the transferrees of the judgment in the case, so that the amount of their hid was paid by simply crediting it on the writ. It was clearly no probate sale, (Succession of Markey, 22 An. —), and they can gain no advantage as against the plaintiff at bar, by the terms of the sheriff’s deed.

We think the judgment appealed from erroneous, and, as the case was examined on its merits, we will render final judgment.

It is therefore ordered that the judgment appealed from be avoided and reversed, and that the plaintiff, George Ellison, have judgment against the defendants, M. A. and W. M. Iler, recognizing and rendering executory his mortgage and vendor’s privilege, as established and reserved in an act of sale made by William A. Thomas to John A. Hemler, before James Barry, notary .public, November 7, 1860, for the sum of $864, with interest at five per cent, per annum from February 4,1862; that the lands described in said act of sale be seized and sold to satisfy the said mortgage and privilege debt, and that plaintiff recover from the defendants personally the costs in both courts


text:
    No. 109.
    A. S. Hathcock v. Elbert Gray.
    If an attachment lias issued against a debtor before tlio debt is due, and the evidence shows that he intended leaving the State, permanently, the attaching creditor can not be compelled to pay damages, although the attachment has been dissolved.
    A bill of exceptions to the charge of the judge to the jury must be made before the jury retires, reduced to mating and signed by the judge, otherwise it will not be noticed on appeal. O. P. 517; 5 R. 216.
    APPEAL from the Eleventh Judicial District, parish of Claiborne. Fgan, J.

      John Young, for plaintiff and appellant. Young & Wilson, for defendant and appellee.
    This case was tried by a jury in the district court.
   Taliaferro, J.

There is a motion to dismiss the appeal in this case. The grounds are:

First — Because the appeal bond was not approved by the judge, the only one authorized to make the approval.

Second — The amount in dispute is less than five hundred dollars.

A further ground is that a paper inserted in the record is not embraced in the clerk’s certificate.

On the first ground, we are referred to no law making it the duty of the judge to affirm appeal bonds, and we are aware of none.

On the second, the plaintiff sues for seven hundred dollars damages, founding his suit on an attachment bond for that amount. A slip of paper, upon which is copied from the minutes a list of the jurymen who sat on the trial of the case, together with the verdict rendered by them, is inserted as an extension of page nine of the record. *"

None of these grounds authorize a dismissal of the appeal, and the-, motion is therefore overruled.

On thb_ Mebits.

The plaintiff complains that, without legal or reasonable cause, the-defendant sued out a writ of attachment against his property, and caused the sheriff to seize and take out of his possession a valuable mare, and a wagon and gear, the services and use of which he was deprived of for three months, thereby causing him damage and injury to the amount of $350. He states the value of the property to be the-like sum. He charges that the allegations of the defendant, in his affidavit to obtain the attachment,, are false, wholly unfounded, and maliciously resorted to for the purpose of extorting from him payment of a debt not due.

The answer of the defendant is a general denial. The case was. tried before a jury, who rendered a verdict in favor of the defendant-The judgment of the court below was in conformity with the verdict rendered, and the plaintiff has appealed.

It seems that the defendant in this case, acting as the agent of Seaborne Gray, an absentee, instituted suit against the plaintiff on; two promissory notes, each for $200, due respectively on the first oí January, 1868, and first of January, 1869, secured by mortgage on a tract of land, and commenced his action by attachment. The petition was filed January 7, 1867. The attachment taken out was dissolved on motion of Hathcock’s counsel. Judgment was rendered in favor of the plaintiff for the amount claimed, with recognition of the mortgage,, but directing s’tav of execution until the notes respectively became due.

This indebtedness of Ilathcock to Seaborne Gray was shown on the-trial of this suit for damages. It is shown, by the testimony of a,, witness, that Seaborne Gray had not been able, up to April, 1870, the time, it appears, the case was tried, to collect the judgment he obtained against Hathcoek. We think it is fully shown that Ilathcock had the-intention of removing permanently from the State at the time the-attachment was taken out. His acts and declarations evince that determination. The creditor had clearly a right, although his debt was not due, to take out proceedings against his debtor when he was about to leave permanently the State, without leaving sufficient property to pay his creditor’s claim. C. P. 242.

The plaintiff, in -his motion for a new trial, sets out that the court erred in charging the jury that the attachment bond offered in evidence by the plaintiff, was null if no,t stamped with a fifty-cent stamp, properly •canceled; and that,-if the jury found, from the evidence, that the plaintiff had, in his motion to dissolve the attachment in the suit brought against him-by Seaborne Gray, averred, as ground for dissolving the attachment, that there was no sufficient bond, he was estopped, on trial of this case, from showing that there was any such bond. The plaintiff avers, in this motion for a new trial, that it was upon this charge that the jury found their verdict.

It-does not appear that the plaintiff excepted in due time to the •charge given to the jury, nor that he required the judge to put his opinion in writing. C. P. article 517; 5 R. 216; 17 L. R. 545. He •could not, therefore make it a ground for a new trial. We see no ¿reason for altering the decree of the lower court.

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