author: Slibell, J.

text:
    John McLaughlin v. E. Goodchaux et al.
    Where it is agreed between the proprietor and contractor for the building of a house, that in case of disagreement between them, the controversy is to be settled by arbitration, and they do submit their dispute to arbitrators, who render their award before the proprietor has received notice from workmen and others claiming a privilege for the amounts due them, not to pay the contractor, those creditors cannot complain of the award, unless they can show, conclusively, that injustice has been done them. The creditors can only claim their privilege upon what is justly due to the contractor under the contract.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Walker, for plaintiff.

      J. Meunier, Z. Latour, and W. O. Denegre, for other creditors.

      J. Blodget Britton, for defendants.
   The judgment of the court (Eustis, C. J., absent,) was pronounced by

Slibell, J.

This case presents a controversy between the proprietor of a house and certain creditors of the contractor, who had supplied materials and labored therefor.

By the building contract, it was stipulated that the work should be paid for by installments. The only difficulty raised by the contractor’s creditors, concerns the settlement of the last installment. This settlement took place under the direction of arbitrators, who were appointed by Haber, the proprietor, and Goodchaux, the contractor. In the notarial contract between them, for the erection of the house, it was agreed, that if any difficulty should arise between them, in relation to any matter arising from the contract, it should be referred to arbitrators, and their decision should be final and binding. The buildings were finished about the 20th of November. There was an attempt to show that some bolts had not been furnished, and that, therefore, the work was not finished. But a witness, who was one of the arbitrators, testifies, that these bolts were not comprehended in the contract, and such appears to have been the opinion of the other arbitrator, although his testimony on the subject is somewhat confused. The difficulty between the parties was not whether the house was finished; but, whether the quality of the work was as good as it should have been under the contract. These arbitrators considered the subject, made allowances for the defective character of a part of the work, and, accordingly, on the 4th of December, 1850, Haber gave his notes, as stipulated by the contract, for the balance of the last installment, after deducting the allowances for the defective character of the work; also, a sum paid in cash to one Goldsmith, by Goodchaux’s direction, and the amount of the bills of four creditors for labor and supplies, namely, Hill, Monseau, McLaughlin and Géin. We do not find any sufficient ground to question the good faith of the parties in this submission to arbitration, or the fairness of the award. And we are unable to see why creditors, who had not given any notice prior to this submission to arbitration, should be permitted to disturb it, unless they could, at least, establish conclusively that injustice had been done. If the character of the work was inferior to what the contract called for, Goodchaux was bound in law and justice to submit to a fair deduction ; and certainly his creditors, under the act of 1844, had no higher rights, in this respect, than he had. The object of the statute of 1844, is to secure to the workmen and others, who take the proper steps, the benefit of what the proprietor may justly owe under the contract, and no more. All that was due under the contract was, in our opinion, fairly settled for and paid by Haber, on the 4th of November, 1850, except an amount of eight hundred and fourteen dollars and fifty-five cents, which he retained in his hands, in consequence of the notices by Hill, Monseau, McLaughlin and Géin. Haber paid Monseau his claim on the 5th of December, 1850, and Géin his on the 19th of December. The accounts of Hill and McLaughlin were disputed, and Haber, under the terms of the receipt, was not to pay them until a judicial decision. The only creditor, except those named in the reservation of the receipt, who attempted to notify Haber, before Monseau and Géin were paid, is Maury. His notice was not served on Haber personally, nor at his domicil, but was given to one Goldsmith, his partner, at the counting house of Goldsmith, Haber 8f Co. This was not a legal service on Haber, adopting the analogy of the rules in case of citation or garnishment; and it is not shown that the notice actually reached Haber before he paid Monseau and Géin.

The only amount which remains unpaid by Haber, and subject to distribution among the creditors for materials and labor, is the sum of four hundred and sixty-five dollars and forty-five cents, which is to be divided among them pro rata. This amount Haber has deposited in court.

It is therefore decreed, that the judgment of the district court be reversed ; it is further decreed, that the said Haber be discharged from all liability under the building contract, whereof a copy is on file in this cause, and that the sum of four hundred and sixty-five dollars and forty-five cents, deposited by said Haber in the court below, be applied, first, to the payment of the costs of this suit, including the costs of this appeal; and, secondly, to the payment of a pro rata dividend to the following creditors upon the following sums, to wit: J. McLaughlin, two hundred and fifty-nine dollars and eight cents ; Allan Hill, two hundred and six dollars and fifty-seven cents; J, A. Blanc and Brother, three hundred and sixty-eight dollars and eighty-four cents; Newton Richards, eighty dollars; Julien Maury, two hundred and thirteen dollars and seventy-six cents.


source: Caselaw Access Project

author: Preston, J.

license: Public Domain

text:
    Mary Ann Guier v. Phillip Guier, Administrator.
    An usufruct in real estate or slaves must be established by written evidence; parol proof of its existence is insufficient.
    An administrator of an estate, in matters concerning the succession, is subject to the ordinary rules of evidence, and even when interrogated on oath to answer interrogatories as a party, he cannot give evidence in favor of liis mother against the succession.
    from the District Court of Carroll, J. N. T. Richardson, J.

      Short and Parham, for plaintiff.

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

Preston, J.

The plaintiff alleges, that George Guier, deceased, who was her son, purchased three slaves, named Rob, John and Clarissa, with money which was furnished byherandher deceased husband, JohnP. Guier, amounting to about eighteen hundred dollars; that the money came to them as their portion of the succession of another son, named Emanuel Guier, who died, leaving no descendants. She alleges, that the condition on which the money was furnished to George Guier was, that he should purchase the negroes in his own name, which he did, but that they should be under the control and management of her late husband and herself, who were to have their services and labor during their lives. She further states, that in point of fact, she and her late husband did enjoy the services of the slaves during a period of about ten years, but that the defendant, who is the administrator of George Guier's estate, in 1848, took the slaves from her, and refuses to allow her their services or hire, which is worth two hundred and fifty dollars a year. She sues the defendant for the enjoyment of the services of the slaves, and in default thereof, for the sum of $1800.

Uusufruct may be established by all sorts of titles; by a deed of sale, by a marriage contract, by donation, compromise, exchange, last will, and even by operation of law, and may be established on every description of estates, movable or immovable, corporeal and incorporeal. Code, 532, 533.

We think it a fair and reasonable interpretation of these articles, that when a usufruct is established on immovable property, it should be established by a written title. The usufruct creates an interest in the property itself, which is transferred from the owner to the usufructuary. Now, every transfer of immovable property, or slaves, must be in writing. Code, 2255. ¥e see no reason why an antichresis should be in writing, and that the establishment of a usufruct on real estate should not be. Both give rights upon the immovable property itself, and our laws have ever guarded the interests in immovable property by written titles.

We think, therefore, the verbal testimony as to the ownership of the slaves, in opposition to the written titles, should have been rejected by the court.

The defendant himself was put upon oath, and substantially admitted the usufruct claimed, taking a bill of exceptions, however, to the opinion of the court, that he could be put upon oath, and to the admission ofhis answers to interrogatories, as evidence. He was the administrator of an estate, and on that account his testimony was subject to the ordinary rules of evidence. Being the son of the plaintiff, he could not testify for or against her. Code, 2260.

The plaintiff claims, that in case of her failure to establish the usufruct, eighteen hundred dollars, the value of the slaves, should be paid to her, because they were bought with money belonging to her late husband and herself, from the estate of a deceased son, Emanuel Guier. They sold their interest in his estate to their son, George Guier, and it appears by the bill of sale, that they Were paid,- as fully acknowledged by thetfi in 1834. Am} even if the funds were, in point of fact, left in the hands of the vendee, to purchase slaves for the plaintiff and her late husband, still, their claim to the funds has long since been prescribed as plead by the defendant.

The judgment of the district court is reversed,-and the appellee is decreed- to pay the costs in both courts.


author: Rost, J.

text:
    Abraham Bass v. N. E. Larche, Tutor.
    Where the husband claims property purchased in his own name, during the existence of the community between him and his wife, it is incumbent on him to show a dear intention to make an investment on his own account, and this should be so established as to have thrown the loss on him separately, in case the property purchased had been lost.
    APPEAL from the District Court of Carroll, J. N. T. Richardson, J.

      Short and Parham for plaintiff.

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

Rost, J.

The only question in this case is, whether certain lands and slaves purchased by the plaintiff during his marriage, became his separa'te property, or fell into the community existing at the time between him and his late wife. The district judge held them to be the separate property of the husband, and the under-tutor of his children has appealed-.

We are of opinion that the judgment is not sustained by the evidence. The application of the plaintiff to the district courtj after his marriage, to be dispensed from the time required by law to attain the age of majority, because he was soon to come into the possession of funds which he desired to vest in real estate, does not show a clear intention, or any intention at all, on his part, to make the investment for his separate account, and as he was the head of the community, the fact that he purchased in his own name, proves nothing in his favor. The evidence of his intention to purchase for his separate account, should be sufficient to throw the loss upon him in case the property purchased had diminished in value, or totally perished. The evidence in the record would not raise even a presumption of separate ownership, if it was denied by the plaintiff. The plaintiff purchased property to a much larger amount than he had funds to pay for at the time, gave some obligations, and assumed the payment of others; it might be doubted, whether such a purchase could, under any circumstanoesf be considered as an investment of separate funds.

It is therefore ordered, that the judgment in this case be reversed. It is further ordered, that the following property be, and it is hereby adjudged to belong to the community, between the plaintiff and his late wife, Sarah E. Bass, to wit: the slaves Peter, Harrison, Mary, Jones, Bersheba, Queen, Maryann, Lydia, Burrell, Ben, Giles, Melton, Matilda, Manuel, Hannah, Elvira, Isaiah, Moses, Ellen, Peter, Job, Jerry, Lavina, Alexander Scott, Tena, Bethena, Rachel Davis, Henderson, Claiborn, Joseph, Diclc Donnell, Nelly, Georgiana, and their increase ; and lands, to wit, lots numbered 5 and 6, in township 20, range 13 east, fronting on the Mississippi river, with forty acres to be taken off of the lower side of lot number four, in same township and range, as specified in the deed of sale from Warren M. Benton to said Abraham Bass, with the back concession of said lots 5 and 6, and the portion of lot number 4, being in section number 64, and a part of section 63, in the same township and range; being all the land embraced in the deed from Theodore D. Elliott to Abner and James Roberts, except the portion embraced in the deed to James A. Bass, containing, in all, eight hundred and forty-three and two-thirds acres ; and that Abraham Bass, the plaintiff and appellee, pay the costs of this proceeding.


author: Eustis, C. J.

text:
    John O. Bannon v. Abraham Barnett et al.
    The curator of a surety on a bond to release property which has been attached, cannot maintain an attachment against the principal on the bond, unless the surety has made a payment.
    APPEAL from the District Court of Carroll, J. N. T. Richardson, J.

      Brew and Bonner, for plaintiff.

      Short and Parham, for defendants.
   The judgment of the court was pronounced by

Eustis, C. J.

This suit was instituted by Bannon, in his lifetime, against Abraham Barnett and John M. Robinson. Bannon died during the pendency of the suit; his curator was made a party plaintiff. Bannon was an absentee, residing in Arkansas; the curator was appointed in the parish of Carroll, under the act of 1838, authorizing the clerks of courts to appoint curators in certain cases. The suit was commenced by attachment against the property of Barnett. There was no service of process on Robinson. The plaintiff was non-suited in the court below, and has taken this appeal.

The cause of action set forth in the petition is, that Bannon was one of the sureties on certain bonds given by Robinson and Barnett, in Arkansas, for the purpose of effecting the release of certain property attached.

It is not pretended, that Bannon ever paid anything as the surety of these defendants. On the contrary, it appears that during the pendency of the suits on the attachment bonds against Bannon and Craig, his co-surety in the court of Arkansas, Bannon died, and no judgment was bad against his representatives, but judgment was rendered against Craig alone; the plaintiff taking a nonsuit as to the deceased.

Craig may have a right of action for indemnity against the principals in the bond ; but the curator of Bannon, appointed in this State, cannot maintain this suit under our attachment laws.

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


author: Slibeil, J.

text:
    Govey Hood v. R. J. Chambliss.
    Where the answers of a party to interrogatories propounded to him in another suit, are offered in evidence against him, an objection to their introduction will not be sustained, upon the ground that he had not an opportunity of explaining himself fully, because the suit in which the interrogatories were propounded was between other persons.
    APPEAL from the District Court of Carroll, J. N. T. Richardson, J.

      Louis Selby, for plaintiff.

      W. Bryan and J. B. Bemiss, for defendant.
   The judgment of the court was pronounced by

Slibeil, J.

This action is upon a note signed by the defendant as surety. His defence is, that he has been discharged by reason of delay given to the maker, Boyd.

It appears that a contract was made by Hood with Boyd and Bell, by which the two latter contracted to build a gin-house for Hood. The price for the work specified in the contract, is stated 1 herein at $1500, none of which was to be paid uutil after the work was finished. The defendant, in order to prove that Hood had given time to Boyd, offered in evidence the answers of Hood .under oath, to interrogatories propounded to him in certain suits brought against him by creditors of Boyd and Hamilton, whose claims were connected with the buildingofthe gin-house, and who asserted privileges npon the price which Hood had contracted to pay for the building. In these answers, Hood asserted, that it was agreed with Boyd and Hamilton, that the note now in suit should be taken by them in payment for building the gin-house ; and in one of them he declares, that this agreement was made when the building contract was entered into. The plaintiff objected to the introduction of this evidence, upon the ground that the answers were made with a view to other issues between other parties, and that when Hood answered, he had not an opportunity of making any explanations in his own favor (meaning, we suppose, explanations pertinent to the present controversy.) The objection was accompanied by an offer to answer like interrogatories anew, if put in this cause.

We think the objections to the evidence were properly overruled. It is well settled, that the admissions of a party may be given in evidence against him. Even mere oral admissions in conversation may be proved; and a fortiori, what a personhas declared in writing and under oath, should be admissible against him. Such admissions, however, when received, are to be considered as a whole, and with proper reference to the circumstances and occasions. The idea that, when they are so offered, the party who lias made them should be permitted, at the trial, to give his own testimony in explanation of them, is entirely novel and inadmissible under our rules of evidence.

The admission, therefore, stands as the admission of a fact which the party cannot be permitted to explain or contradict by his own testimony. If, as was suggested by counsel, I-Iood might have added, if now interrogated, that the agreement respecting the note was made with the consent of Chambliss, the surety, the reply is, that although he cannot testify for himself, he was not precluded from proving such assent bjr other competent evidence.

The plaintiff having made an agreement with the principal debtor, which precluded him from pursuing that debtor during the time necessary for building the gin-house under the contract, and it not being proved that this arrangement was made with the assent of surety, it follows, that the judgment of the court below, which discharged the surety, must be sustained. C. 0. 3030, 3032.

Judgment affirmed, appellants to pay costs of appeal.


text:
    The State v. James L. Cobbs.
    On the 1st of October, 1849, the accused was indicted for a murder alleged to have been committed on the 10th of August, 1848. The jury found him guilty of manslaughter only. I-Ield: That the accused, not having been indicted within twelve months after the' offence was committed, he could not be legally convicted of manslaughter.
    Where a motion in arrest of judgment has been sustained, the State may appeal/
    APPEAL from the District Court of Carrol. J. N. T1. Richardson, J.

      Isaac Johnson, Attorney General, for the State, contended:
    The judg-/ ment was arrested on the ground, that the indictment was not found within twelve months after the commission of the offence, and the State has appealed. The indictment was filed October 2d, 1849, and charges that defendant committed the offence on the 10th day of August, 1848.
    Art. 509 Rob. Penal Laws. No person shall be prosecuted, tried or punished for any offence, willful murder, arson, robbery, forgery and counterfeiting accepted, unless the indictment for the same be found or exhibited within one year next after the offence shall be done or committed.
    On trials for murder, the jury may find the prisoner guilty of manslaughter, if they should be of opinion that he is not guilty of murder, but of manslaughter. Acts of 20th March, 1818. If the defendant, had been indicted in direct terms for the offence of manslaughter, and a verdict of guilty had been returned, no one could question the correctness of a decision sustaining a motion in arrest of judgment, on the ground that the offence had been barred by prescription. Does not the same principle obtain when the indictment is for murder, and the verdict is manslaughter, and the facts, as to the time of committing of the offence and the finding of the indictment are as exhibited by the indictment in this case?
    The latter offence is included in the former, and, under our statute, is a charge to all legal intents to be met by the defendant. The verdict of manslaughter' is an acquittal of the murder; and such a verdict is proof of the fact, that the homicide was only manslaughter from its inception. In such a case, I think the plea of prescription, if true in point of fact, should prevail; otherwise, that which could not be done directly, would be sanctioned by an indirection; and the doctrine maintained, that the prescription, in this case, must be determined by the character of the offence charged, and not by the verdict of the jury.
    R. R. Walker, for the accused, contended:
    The faets presented by the record in this cass are, in substance, as follows: At the October term, 1849, of the Tenth Judicial District Court, holding its sessions in the parish of Tensas, the grand jury of that parish found a bill of indictment against Cobbs for the crime of murder, charging that the same was committed on the 10th day of August, 1848, within the jurisdiction of that court. At the October term, 1851, the case came on for trial, and the jury found a verdict, guilty of manslaughter.
    Upon the finding of the jury, the prisoner’s counsel moved to arrest the judgment of the court and discharge the prisoner, on the ground that the indictment was not found within a year ensuing after the commission of the crime. This motion was granted by the judge, and from this decision the district attorney appealed. Upon subsequent proceedings under a writ of habeas corpus, the counsel for the prisoner asked his discharge, which was refused, and he was retained in custody, upon giving bond and security in the sum of five hundred dollars.
    The following points are urged upon the consideration of the court in behalf of the prisoner. 1st. Although the indictment in this case was for the crime of murder, yet the jury were permitted to find a verdict of manslaughter. B. and C. Digest, 260. The finding of the jury, and not the charge in the indictment, was conclusive of the character of the offence, and clearly brings it within the limitation of twelve months. Ib. p. 249, § 37. 2d. It is questioned, whether or not the State, under the facts of the case, was entitled to an appeal. The New Constitution, pointing out the appellate jurisdiction of this court, provide, that it shall be exercised in criminal cases, upon questions of law alone, whenever the punishment of death or hard labor may be inflicted, etc. Con. tit. 4, art. 63. But if the court consider this objection as not well taken, it may be asked, what can the State expect by your entertaining the appeal ? This court decided, in the case of State v. Desmond et al.. 5th Ann. 398, “ that where a prisoner was indicted for murder, and the jury found him guilty of manslaughter, (an analogous case,) upon a new trial, he cannot be again tried for murder.” If this case were sent back, and an indictment for manslaughter found, the only alternative left by the decision of the court, then the limitation upon which the judgment of the court below was arrested, would with equal force apply, and the prosecution would, upon such plea, necessarily abate. Inasmuch as the appeal comprehends nothing that, in any ulterior proceedings, would vindicate the State or secure the purposes of justice, there is no reason in maintaining it. 3d. By the decision of the judge a quo, the prisoner was discharged, and as no showing exists in the record by which he was legally reduced again to custody, this court may presume that his present confinement is illegal and irregular. There is no order for commitment, no warrant of arrest, no legal authority to hold him in restraint, and none of the principles justifying an arrest, without these formalities can apply. The motion granting his discharge was absolute and unqualified, and placed him in the possession of his liberty as fully as an acquittal by the jury, and in the absence of any proof of regular authority to hold him in custody, this court will render a judgment that the court below should order his discharge. If the plea of a former acquittal does not apply in fact, it clearly does in spirit, and all those principles diffused throughout the body of criminal jurisprudence, regarding the sacr(edness of personal liberty, the jealousy with which enlightened law looks upon its slightest infringement, .and the certainty and exactness required in all proceedings which deprive an individual of it, may be successfully invoked under the facts of this case.
   The judgment of the court was pronounced by

Preston, J.

The prisoner was prosecuted for the murder of Mathew Gray. The indictment was found by the grand jury of the parish of Tensas, on the 1st of October, 1849. The murder was charged to have been committed on the 10th day of August, 1848, or more than a year before the indictment was found. The prisoner was found guilty of manslaughter. He moved an arrest of judgment, that the bill of indictment was not found within one year after the offence was committed. The judgment was arrested, and the State has appealed.

The 37th secton of the act of the Territorial Legislature, approved the 4th of May, 1805, prescribes, that “no person shall be prosecuted, tried or punished for any offence, willful murder, arson, robbery, forgery and counterfeiting excepted, unless the indictment or presentment for the same be found or exhibited within one year next after the offence shall be done or committed.” B. and C. Dig.

The indictment upon which the prisoner was about to be punished was found more than a year after the offence was committed, and he was about to be punished for the offence of manslaughter, not one of the crimes excepted from the limitation by the statute. He could not, therefore, be punished for manslaughter on that indictment, and the judgment was- properly arrested..

The judgment is affirmed.


author: Slidell, J.

text:
    Shapley Owen v. Alexander Boyd et al.
    Where the ma tter in dispute, at the institution of the suit, does not exceed three hundred dollars, the case is not appealable to the Supreme Court, although the plaintiff may pray for interest from judicial demand.
    PPEAL from tho District Court of Carroll, J. N. T. Richardson, J.

      A. B. Caldwell, for plaintiff.

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

Slidell, J.

The petition prays judgment against defendant and appellant, Hood, for three hundred dollars, and interest from judicial demand. There was judgment against Hood, as prayed for, and he has appealed. The motion to dismisss, must prevail. The matter in dispute, at the institution of the suit, did not exceed three hundred dollars. The case is not distinguishable from Mason v. Oglesby, 2d Ann. 793. See also, the cases there cited, and Constitution, art. 63.

It is therefore decreed, that the appeal be dismissed at the cost of the appellant.


text:
    The State v. William Featherston.
    The Supreme Court has appellate jurisdiction in criminal cases, only where the punishment of death or hard labor in the penitentiary may be inflicted.
    APPEAL from the District Court of Madison, J. N. T. Richardson, J.

      Isaac Johnson, Attorney General for the State, contended :
    The State has appealed from a judgment of the district court, quashing an information filed by the district attorney against the defendant, for neglect to perform the duties imposed on him as a road overseer, in the parish of Madison.
    A road overseer for neglect of duty, may be fined in a sum not exceeding one hundred dollars. Acts 9, 1818. Bullard and Curry, p. 740, sec. 11.
    By the 63d article of the State Constitution, the Supreme Court has appellate jurisdiction in criminal cases on questions of law alone, whenever the punishment of death or hard labor may be inflicted, or when a fine exceeding three hundred dollars is actually imposed. I think, therefore, that the State is not entitled to this appeal.

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

Preston, J.

The defendant having been appointed an overseer of roads in the parish of Madison, was prosecuted for neglect to perform, in that capacity, the duties imposed upon him by law. The district court, on the motion of his counsel, quashed the information, and the State has appealed.

The Constitution gives this court appellate jurisdiction “ in criminal cases, on questions of law alone, whenever the punishment of death or hard labor may be inflicted, or when a fine exceeding three hundred dollars is actually imposed.’'

No fine at all has been imposed in the present_ case, and no law imposes the punishment ot death or hard labor for the offence, for which the accused is prosecuted.

This court is, therefore, without jurisdiction of the case, and the appeal is dismissed.


author: Eüstis, C. J.

text:
    Johnson, Ralph and Slater v. J. D. Imboden et al.
    The plaintiffs were the sureties of an executor in the State of Arkansas. They took steps there to be relieved from their suretyship, upon which the executor placed in their hands, as an indemnity, several of the slaves belonging to the succession. He afterwards fraudulently obtained possession of the slaves, and sold them fraudulently to the defendant. Held: 1st. That the sureties had such a right in the property, as to maintain an action against mere spoliators. 2d. That they, also, had the right to maintain an action, as against the defendants, upon a forfeited bond for the delivery of property sequestered, although there had been administrators appointed for the succession, both in Arkansas and Louisiana.
    APPEAL from the District Court of Carroll, J■ N. T< Richardson, J.

      Clark and Wilson, for plaintiffs.

      Short and Parham, for defendants.
   The judgment of the court was pronounced by

Eüstis, C. J.

A suit was instituted by the present plaintiffs against the defendant, Imboden, for the possession of two slaves, in which the plaintiffs recovered. The judgment was affirmed by this court, in March, 1849. The case is reported in 4th Ann. 178. The slaves had been sequestered, and the defendant, Imboden, bonded them. A writ of possession was issued on the judgment, for the recovery of the slaves ; and on a demand for their delivery under the writ, Imboden failed and refused to deliver them up. The present suit is on the sequestration bond against Imboden and his sureties. Judgment was rendered in the court below for six hundred dollars, the value of one of the slaves, together with interest, and the defendants have appealed. The argument of the counsel for the defendant, has been principally directed against the right of the plaintiffs to maintain the present action. The same objections were made to the plaintiffs right of action in the original suit. It seems that the plaintiffs, who were the sureties of Samuel Campbell, in the State of Arkansas, as executor of his deceased brother, having reason to be alarmed at the mismanagement of the affairs of the succession of the deceased by the executor, applied to the court of probates, under which he was appointed, to be discharged from their suretyship. On the court taking cognizance of this application, Campbell delivered to the plaintiffs certain slaves belonging to the succession, for safe keeping, in order to await the action of the court upon it. From their possession, the slaves were fraudulently and forcibly taken by Campbell, who brought them to Louisiana, where he fraudulently transferred them to Imboden. The defendants having the lawful custody of the slaves, for the purpose of awaiting the future action of a court of competent jurisdiction in relation to the authority of the executor to continue to hold them, we thought had a right of action against a mere spoliator and his abettor, in which light Campbell and Imboden had placed themselves, for the purpose of restoring the property to the original deposit, in order to meet the consequences of the decision of the court of probates.

It appears, that Cornelius Campbell was afterwards appointed administrator of the succession of Samuel Campbell, in the State of Arkansas; and Charles L. Wilson has been appointed curator of the same succession, in the parish of Carroll, in this State, where the dlaves were found. Neither of these persons have made themselves parties to this suit. It does not appear to us, that this appointment of representatives to the succession, in this State and in Arkansas, affects the right of action which the plaintiffs originally had. The recovery which the plaintiffs seek, is in the interest of the succession on which the spoliation has been committed, and also for their own benefit, and the defendants have’ no right to defeat it. Such aright rests, exclusively, with those who represent the succession.

It seems to us plain, that the right to maintain the present action, is a necessary consequence of the right to maintain the original action. On that point, a further examination of the subject has satisfied us of the correctness of our former decision. Storey on Bailments, § 94 et seq. Cases there cited.

The counsel for the defendants contends, that the sequestration bond, signed by them, is not legal, and consequently not obligatory on them. The bond recites the sequestration of the slaves, and their delivery to Imboden on its execution. The condition is thus stated: “ the condition of the above obligation is such, that the said Imboden shall not send away the said property out of the jurisdiction of this court •, that he shall not make an improper use of the same; and that he shall faithfully present them after definitive judgment, in case he should be decreed to restore the same to the plaintiff, otherwise the above obligation to be null and void.”

This clause recites the conditions, which attach responsibility to the sureties, almost according to the letter of the Code of Practice, article 280. The condition of “otherwise the above obligation to be null and void,” makes nonsense, and is evidently a blunder of the scribe, and not to be hepded as affecting the validity of the bond. Si librarius in transcribendis stipulationis verbis errasit, nihil nocere, quominus et reus et fidei jussor tenentur. De regulis juris, ff. lib. 50, Penniman v. Barrimore, 6 N. S. 498.

It results from the sheriff’s return on the writ of possession, that the defendant, Imboden, did not deliver the slaves, in obedience to the judgment of the court, as he was bound to do; for which, the jury found him to be in default as to one of them, estimated at six hundred dollars. This verdict, we see no grounds for setting aside.

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


text:
    Succession of Benjamin A. Steele.
    Where the plea oí yes judicata has been made, and the judgment relied upon in support of the plea is obscure, it is competent for either party to explain it by parol or other evidence, to show that it either does, or does not, support the plea.
    APPEAL from the District Court of Madison, J. N. T. Richardson, J.

      Stockton and Steele, for appellees.

      A. Snyder and Bemiss, for appellant.
   The judgment of the court was pronounced by

Preston, J.

George D. Shadburne, curator of the succession of Benjamin A. Steele, has rendered his account; David Stanbrough opposes it, and claims to be a creditor to the amount of one thousand and fifty-three dollars, with interest at the rate of five per cent from the 22d day of April, 1848. Price and Watson, the only heirs of the deceased, resist his claim, on the ground, that it was a matter adjudged in his settlement of his account as tutor of the deceased. Stanbrough, as tutor of the deceased, rendered the final account of his tutorship on the 14th of April, 1849, and the judgment homologating his account, is that which is plead as adjudging this claim against him. He credited himself in the account with a sum of thirteen hundred and thirty-four dollars and seventy cents, as having paid the same to M. Wallace, Esq., the attorney of Pnce and Watson, in two suits prosecuted against him. Price and Watson opposed this credit “ as clearly unjust, except for a sum of sixty-four dollars and seventy cents, the remaining sum of twelve hundred and seventy dollars having been paid to satisfy a judgment against D. Stanbrough, as curator of a different succession.” (Suit 1215.)

The decree of homologation in relation to this credit, is as follows: “ and it is further ordered, by consent of parties, that the items number IS and 16, amounting to the credit of $1334 70, be withdrawn from said account, and in place thereof, the said tutor be credited with eight hundred and seventy-one dollars, being the price of the slaves, Harriet, Lucy, and their children, purchased by said minor, the 8th of December, 1843, and the,., interest accrued thereon to the death of the minor.”

The money for which Stanbrough was accounting, was twenty-seven hundred dollars, proceeds of a tract of land which he had caused to be sold as tutor, believing it to belong exclusively to the minor. Price and Watson brought suit against him, and established, that one-third of the tract beloifged to them, and recovered judgment for nine hundred dollars, with interest. It appears he paid them the judgment, amounting to one thousand and fifty-three dollars, and he says, with the credit which he consented to withdraw from his account as tutor of the minor. He offered to prove by the attorneys who entered the consent judgment, that in withdrawing the credit, he did not consent to its extinguishment, but reserved it as a claim against the estate of the minor, who was then deceased ; but the evidence was rejected.

Price and Walson contends, that eight hundred and seventy-one dollars, the price paid by Stanbrough for slaves of his ward, was substituted in place of the credit of $1334 70, claimed by the tutor, and that the credit was extinguished by the substitution of the other credit and judgment of homologation.

For two reasons, we think the evidence offered should have been received : First. The judgment is obscure, and we are unable to say which of the parties are right in their views of it. Second. When the plea of rei judicatce is offered, it is legal and proper to establish, by parol evidence or otherwise, the identity of the thing adjudged, and of course, to show in the same manner the contrary, that the thing has not been adjudged, when the obscurity in the judgment itself renders it necessary. But it is not necessary to remand the cause for this evidence. The records and accounts show precisely what Stanbrough received for Price and Watson, as heirs of their father, and also of his ward, their deceased half brother, and what he has paid to them and their creditors. He has .paid three thousand seven hundred and fifty-three dollars, and received twenty-seven hundred dollars, leaving Price and Watson, as the only heirs of his deceased ward, indebted to him one thousand and fifty-three dollars, with interest, as claimed.

Objection is made by Price and Watson to several bills for counsel fees, chai’ged by the curator of the succession. We do not see that they have taken an appeal, or brought the curator properly before us, so as to enable us to examine these claims. However, the amounts are not disputed, but it is urged, that the estate of their deceased half brother should not be charged with them. The record shows the services, and we think they were rendered on account of him and his succession, and ate proper charges against it.

The judgment against the opponent, David, Stanbrough, is reversed ; and it is decreed, that he recover from the succession of Benjamin Steele, one thousand and fifty-three dollars, with interest from 22d of April, 1848, and that the succession pay the costs of this appeal. In other respects, the judgment is affirmed.


author: Existís, C. J.

text:
    Israel and Elizabeth Chambers v. W. N. G. Wortham.
    Where community property has been mortgaged by a surviving partner in community, for the purpdse of raising funds for the maintenance and education of the heirsf pursuant to the advice of a family meeting, which advice was concurred in by the judge of probates, and the property is afterwards sold to satisfy the mortgage, the heirs cannot reclaim it , without at least affirming to refund the amount for which it was mortgaged, with interest. Informalities in a sheriff’s sale, of the'property of a succession, are prescribed by five years, by the act of 10th March, 1834.
    from the District Court of East Baton Rouge, Burk, J.

      George S. Lacey and A. S. Herron, for plaintiffs.

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

Existís, C. J.

This suit is instituted for the recovery of the undivided half of certain land and slaves which the plaintiffs claim as heirs of their deceased mother. There was judgment for the defendant, and the plaintiffs have appealed.

The defendant holds under a purchase of the property at sheriff’s sale, made in 1843. The property had been mortgaged to the City Bank, under a decree of the Court of Probates rendered on the advice of a family meeting, for the purpose of raising money for paying the debts of the community, and enabling the father to support and educate the plaintiffs. The decree was made as far back as 1835, and the plaintiffs have had the benefit of the money thus loaned. '-In 1843, the properly was sold under the mortgage, at sheriff’s sale, and the defendant’s vendor became the purchaser. The sale is regular, and was made tinder a proper order of the court.

If there were any formalities connected with the sheriff’s sale, the plaintiffs’ action Would be prescribed by five years. Acts of 1834, p. 123.

We are surprised, that an appeal should be taken in a case of this kind, so repugnant to all ideas of justice. The community between the plaintiffs’ late father and mother has never been settled, and no offer is made to restore the money which the mortgaged property has been sold to pay, and which was loaned -on the faith of a decree rendered at the instance of the plaintiffs’ natural tutor, in his representations that the loan was necessary for the plaintiffs’ interest. The suit is without equity, and has no foundation in law.

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


text:
    Gas Light and Banking Company v. B. Haynes, Liquidator.
    Where a liquidator has been appointed in pursuance of law for an insolvent corporation, ft is his duty to enforce contributions from stockholders who are indebted, to meet the liabilities of the corporation. Individual creditors can compel him by action to do so, and they have not the right, while he is acting, to institute suits against the stockholders to enforce the payment of their claims.
    Where an insolvent corporation is in process of liquidation, in the hands of a liquidator appointed under the law, there is but little ground for considering that prescription runs in favor of the corporation, during the term of liquidation.
    APPEAL from the District Court of East Feliciana, Stirling, J.

      E. T. Merrick, for plaintiffs.

      Z. S. Lyons, for defendant.
   The judgment of the court was pronounced by

Preston, J.

By the 5th section of the act passed in 1833, to incorporate the Clinton and Port Pludson Railroad Company, the president and directors were authorized to borrow money for the objects of the act, by the pledge of stock or other security, and to issue certificates or other evidence of such loans.

At the next session of the Legislature, in 1834, the capital'of the company was increased five hundred thousand dollars, of which two hundred and fifty thousand dollars was to be obtained by a loan on real security, and, to secure the loan, a subscription of stock to the amount of three hundred thousand dollars was authorized. The president, directors and company, were further authorized to execute and negotiate bonds to the amount of two hundred and fifty thousand' dollars, bearing five per cent interest, payable semi-annually. Bonds to the amount of seventy-five thousand dollars were made payable in eight years; seventy-five thousand dollars in fifteen years, and one hundred thousand in twenty years after date. And, to secure the capital and interest of the bonds, the subscribers to the stock were bound to give mortgages to the satisfaction of the president and directors of the company, on property to be, in all cases, equal in value to'the amount of the stock respectively held by them.

In 1836, the General Assembly exonerated the New Orleans Gas Light and Banking Company, from their obligation to establish a branch of the bank at Port Hudson, in consideration of their agreeing to purchase the bonds thus to be issued by the Clinton and Port Hudson Railroad Company, and to loan the company the sum of one hundred thousand dollars, to be applied to the construction of the railroad. This arrangement was consummated by a contract between the companies, and in consideration of the loan, bonds to the amount of one hundred thousand dollars were issued, bearing six per cent interest.

The Clinton and Port Hudson Railroad Company has forfeited its charter; was put into a state of liquidation by an act approved the 26th of March, 1840, and is hopelessly insolvent.

By an act of the Legislature, approved the 21st of March; 1850, “ for the further liquidation of the Clinton and Port Hudson Railroad and Banking Company,” the governor was directed to appoint a liquidator, who was to continue in office three years from the date of his appointment, whose- duty it shall be to liquidate the affairs of this insolvent corporation, so far as it has not already been done, as speedily as possible, in pursuance of the provisions of the act, and the several acts in force relative to the liquidation and final settlement of insolvent corporations. He was required to call on his predecessor, and obtain from him all the books, accounts, documents, money, assets and property of every description in his possession, belonging to the company, and to make himself a party to all suits commenced by the late liquidator, or the commissioners for the collection of debts due to the corporation, or any other matter connected therewith or growing out thereof, and to prosecute the same to final settlement; and he shall file a tableau of distribution in court, once in every six months, in which he shall make a concise statement of his administration, provided he has anything to distribute among the creditors.

The plaintiffs are holders of the bonds of the company, secured by stock mortgages to the amount of two hundred and twelve thousand dollars, and of bonds given for the loan to the amount of ninety-two thousand dollars, and large arrearages of interest are due. They set out this indebtedness, and allege that there, is no means of payment, except by calling upon each of the stockholders of the company for the foil amount for which he has subscribed and is liable. They annex to their petition, a list of the stockholders, or their representatives, and the amount of shares subscribed by them. They allege, that they have demanded the amount of their bonds and interest; that -the liquidator refuses to acknowledge their right to payment .of thirty-seven bonds of a thousand dollars each, which fell due .on the 1st of February, 1844, which they own and possess, and which have been presented to him for acknowledgment; that he has failed to collect amounts due by the stockholders upon their stock, or to provide in any manner for the payment of their matured bonds and interest; and they allege, that the act of the Legislature under which he was appointed is unconstitulional, and his appointment has been questioned by some persons as unconstitutional.

They therefore bring suit, and pray that Bythel Haynes, the liquidator, maybe cited to answer their petition. They pray, that it maybe held that he was constitutionally appointed liquidator of the company, or that a receiver may be appointed ; that their whole debt may be acknowledged as due by fRe company, and particularly their bonds, which fell due on the 1st of February, 1844, with the interest; and that the liquidator or a receiver may be ordered to collect from the stockholders, or .their representatives, the full amount of the stock subscribed by them, and to enforce the mortgages given by the stockholders to secure their subscriptions to the stock, and the bonds issued on the faith of .those mortgages.

The liquidator admits, in his answer, that tlmbonds described in the petition were issued by the company ; that it is insolvent, and that he has no funds to pay those obligations. He denies the liability of the company on account of those obligations, and specially pleads the prescription of five and ten years as a peremptory bar to the right of the plaintiffs to receive anything upon their obligations. He denies any right of action on the part of the plaintiffs against him as liquidator, and alleges that, in pursuance of the charter of the company, and various amendatory acts, the plaintiffs are hound to resort for payment of their bonds and interest to the individual corporators in their individual capacity.

It has not been urged by either party in this case, that the act of 1850 is unconstitutional, and we see no reason for the suggestion. The pleadings disclose a difference of opinion between the creditors of the company and its liquidator, which renders it necessary and useful that, the court should decide between them. Both agree that the company is hopelessly insolvent. The record discloses that fact; and it is also matter of public notoriety, that the State has been subjected to the payment of its bonds, issued for the benefit of the company, to the amount of nearly half a million of dollars, with interest.

We consider, therefore, that there is the most pressing necessity to collect by suit or otherwise, all the assets of the company, with the least possible delay, and to distribute them to those to whom they are justly due.

It is plead by the liquidator, that “the plaintiffs are bound to resort to the individual corporators in their individual capacity. We decided differently last year, in the case of the same plaintiffs against Bennett, the liquidator being a party by intervention, and held, “that the liability of the shareholders results from a contract entered into by them with the company; and that, whenever the company or its assets are under the management of proper officers, acting .for it in a corporale capacity, that contract should, in principle, be enforced through those officers; and that if the legal representatives of the company neglect to call in the debts due by the shareholders for stock, so as to enable the company to pay its debts, a creditor can compel them to enforce contribution from the shareholders according to their subscriptions.”

We referred to the case of Stark, Receiver of the Atchafalaya.Railroad and Banking Company, 5th Ann. 740, and said, in furtherance of this view, we sustained the appointment of a receiver appointed Ijy the district court, to take charge of assets under the control of the court at the time, and belonging to an insolvent bank unrepresented, and we recognized his power to make calls upon the stockholders for contributions to pay the debts of the bank.

We adhere to these opinions, and consider it the special duty of the liquidator imposed by the act of 1850, to collect all the assets of the Clinton and Port Hudson Railroad Company, including the subscriptions of the shareholders, by suit or otherwise, as speedily as possible, and to distribute the amount collected every six months, by filing a tableau of contribution in court, to be homologated by judgment, after legal notices to the «'editors. For these duties he is allowed five per cent out of these assets, which, in reality, belong to the creditors. It is not, therefore, the duty of individual creditors to collect these assets; and as a liquidator is provided by law to represent and prosecute the collective rights of the creditors, individual creditors have no right to act directly against the shareholders and debtors of the company.

It is plead and argued, that a portion of the plaintiffs’ claim is prescribed. The company represented by the defendant has been insolvent and in a state of liquidation ior years. There seems, therefore, but little ground for considering any part of the claim prescribed, as a suit could not properly be brought for the debt, but only steps be taken to enforce a speedy liquidation of the company by tableaus of distribution. This question will more properly arise on tableaus of distribution and contradictorily with all the creditors of the corporation.

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


text:
    S. Yarborough v. J. Nettles.
    Where the plaintiff claims damages for the catting and carrying away his timber, the prope r measure of his damages will be the value of the timber, and not the amount which the timber may be worth when sawed up into plank, or used in any other way.

      from the District Court of East-Feliciana, Stirling, J.

      E. T. Merrick and James H. Muse, for plaintiff.

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

Rost, J.

The plaintiff claims fifteen hundred dollars damages from the defendant, for having maliciously cut timber on his, the plaintiff’s land, and carried away the same; there was a verdict in his favor for four hundred and fifty-two dollars; he made a motion for a new trial, which was overruled, and he has appealed from the judgment on the verdict. The defendant asks, that the judgment be amended, and either rendered entirely in his favor, or much reduced.

The jury appear to have allowed the .full value of the timber, and as their verdict is conclusive on the question of malice, the only ground seriously pressed upon us, in argument for an increase of the judgment, is, that the jury should have allowed not merely the value of the timber, but its increased value when made up into lumber. If this be the rule, we are unable to perceive why the appellant should stop there, and not claim the value of the lumber when worked' up in buildings or furniture; the sum allowed by the jury, will enable him to procure the same quantity of timber, and he may make upon that all the profits, which his skill and ingenuity would have enabled him to make on his own, by converting it to the uses of man. We are of opinion, that justice has been done between the parties. *

Judgment affirmed, with costs:


text:
    F. J. Ratliff, Tutrix, v. W. B. Ratliff, Executor.
    A nuncupative will under private signature, attested by only three witnesses, when there were four persons present, and others in the vicinity who might have been obtained as subscribing witnesses, is invalid.
    APPEAL from the District Court of West Feliciana, Stirling, J.

      U. B. Phillips, for plaintiff.

      Brewer and Collins, for defendant, contended:
    The only questions ne.cessary to be discussed, relate to the validity of the nuncupative will, under private signature, made by Rvfffin B. Ratliff, deceased. The will was made in the country and attested by three witnesses, residents of the parish, The Code, art. 1576, requires only three witnesses to such testaments, where the will is made in the country, and the witnesses are residents of the parish, and the provision requiring a greater number of witnesses, if they can be had, applies only when the witnesses are non-residents. .
    The emergency of the case rendered the presence and attestation of three witnesses sufficient. Dr. Walher testifies that the testator was rapidly sinking, and that he did not expect him to live through the night. If the attending physician had good reason to believe that it was unsafe to postpone the making of the will, in order to send for other witnesses, and the will was valid at the moment it was made, the fact that the testator lived two days after the execution of the will, cannot invalidate it. Reasonable diligence, and a proper exercise of judgment, is all that is required in such cases. If the will was once good, it has continued to be so.

      Robert S. Walker, Dr. Walker's son, was present in the house, but did not sign as a witness. That fact ought not to invalidate the instrument, as he has testified to every fact that his signature could possibly have attested.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, as tutrix of her minor children, who in right of their father, are the heirs at law of Ruffin B. Ratliff, seeks to annul a wilfmade by him in favoi- of the defendant, on the ground that it is a nonoupative will under private signature, and is only signed by three witnesses, although a greater number might conveniently have been procured. The district judge being of opinion that the plaintiff had made out his allegations, annulled the will, and the defendant has appealed.

This case comes clearly within the principle of the decision in the case of Fruge et al. v. Lacayl et al., 1 N. S. 488. That case was decided under the Old Code, but the New Code has made no change in the law, material to the present inquiry.

In this case, there were four persons in the house when the will was made, competent to sign as witnesses, and only three of them were called u pon to attest it; it is also shown, that several other witnesses might have been pro - cured within the distance of one mile, and that the testator lived two or three .days after the will had been made and signed.

Judgment affirmed, with costs.


text:
    The State v. John W. Hayes et al.
    Article 30 of the Constitution, providing that no person who may have been a collector of taxes, &c., shall be eligible to any office of profit or trust, until he shall have obtained a discharge for the amount of such collections, is directory, and was intended to secure what was right, and not to affect what was wrong.
    Where a tax collector had obtained the assessment roll from the recorder of mortgages, for one year, without having settled for the. preceding year, his sureties are not released from their liability on account of the neglect of the recorder of mortgages.
    The sureties of a tax collector are bound for the penalty of two per cent per month, imposed upon defaulting tax collectors.
    from the District Court of East Feliciana, Stirling, J.

      Z. S. Lyons, District Attorney, for the State.

      E. T. Merrick and W. D. Winter, for defendants.
   The judgment of the court was pronounced by

Preston, J.

At the November election, in 1848, John W. Hayes was elected sheriff of the parish of East Feliciana. By virtue of his office, and the 41st section of the act, approved the 3d of May, 1847, to provide a revenue for the support of the government of the State, he was collector of the State taxes; and, by the 44th section of the act, was required to give bond and security, to the satisfaction of the parish recorder, in a sum at least one-half above the amount of taxes levied for State purposes, conditioned, for the faithful performance of his duty as tax collector and for the just and full payment of all sums for which he might become legally liable.

On the 25th January, 1850, he gave bond, with Sothey Hayes, Thomas Chapman and Franklin Hardesty, as his sureties, in the sum of seventeen thousand eight hundred and forty-two dollar's, for the faithful performance of his duties as collector for the State taxes of the parish, for the year 1849. The bond was accepted by the parish recorder, and the assessment roll was delivered to him, by the recorder, for the collection of the taxes assessed.

The taxes amounted for the yqar, to $11,394 42. The sheriff accounted to the auditor of the State for $2,068 25, leaving a balance due of $9,825 77, which has been placed by the auditor of public accounts in the hands of the district attorney, of the district in which the parish is situated, for suit, in pursuance of the £>2d section of the act, approved the 21st March, 1850, p. 144.

It is to be observed, that this act contains a complete system for the assessment and collection of taxes, and repeals all laws on the subjects of which it treats. It was passed, however, subsequently to the obligations incurred and delinquencies complained of in this suit; and, therefore, can have no effect upon them, except as to the remedy provided in the section just quoted. Those obligations and delinquencies, must be governed by the act, approved the 3d of May, 1847, p. 164, as amended by the act, approved the 20th of December, 1848, except as to the remedy of the State, because they occurred under those acts.

The district attorney has brought the suit against tbe sheriff and his sureties, for the amount of the defiilcation ; and in pursuance of the 15th section of the act of 1848, already quoted, for two per cent interest per month, on the amount of the defalcation, until it shall be settled and paid.

The sheriff made no defence, and judgment has been rendered against him for the amount claimed, and two per cent interest per month, until paid.

The sureties admit that they signed the bond, but deny every thing else material to render them liable. And, as a special defence, aver, that they incurred no liability by signing the bond, for the following, among other reasons: that at the time of signing the bond, and the delivery of the assessment roll to their principal, John W. Hayes, he was incapable, under the law, of receiving the same and collecting the taxes, having failed to procure from the State treasurer, or other proper officer, his receipt for all taxes and public moneys collected by him in the year 1844, of which he was also the collector ; and upon which, he was then in arrears in at least the sum of ten thousand dollars. They aver, further, that this fact was concealed from them, and that the bond was signed by them, in error, under the belief that the recorder had complied with the law, and exacted from Hays the receipt, or quietus, for his liability on the roll of 1848,. before delivering to him the roll of 1849 ; and that, had they been aware that the recorder, acting for the State, had neglected to require the receipt or quietus, they would have utterly refused to sign the bond for 1849.

They averred further, that the amount then unpaid upon the tax roll of 1848, was, at least, ten thousand dollars; which amount, they allege, was subsequently paid up by Hayes, from collections upon the roll of 1849, thus illegally placed in his hands.

A verdict and judgment was rendered in favor of the sureties, and the State has appealed. The defalcation of the sheriff, to the amount of $9,825 77, has been fully established by the evidence, and it therefore becomes necessary to examine these special defences set up by his sureties.

The 30th article of the Constitution of the State provides, “ that no person, who, at any time, may have been a collector of taxes, or who may have been otherwise entrusted with public money, shall be eligible to the general assembly, or to any office of profit or trust under the State government, until he shall have obtained a discharge for the amount of such collections, and for all public moneys with which he may have been entrusted.’’

No law was passed until 1850, for carrying into effect this article of the Constitution. The acts of 1847 and 1848, were somewhat calculated to mislead as to the mode of carrying it into effect as to sheriffs, as this case illustrates. The sheriff was reélected in the month of November, 1849, but had, by the 62d section of the act of 1847 as amended by the 14th section of the act of 1848, until the 1st of March, 1850, to settle his accounts and make his final payments into the treasury, and to obtain his discharge. "When elected, therefore, he was eligible. His commission, as sheriff, entitled him to the assessment roll as collector of taxes, in pursuance of the 41st section of the act of 1847; and it could not be withheld from him as a defaulter, because, as we have seen, he could not be required to make a final settlement and obtain his discharge for the taxes of 1848, until the 1st of March, 1850.

At this date, the sheriff’s bond had been executed, and the assessment roll of 1849, delivered to him. There was no express law requiring the recorder to Withhold it until after the 1st of March, 1850, and the production of the treasurer’s discharge.

By a very forced inference, it is contended that the recorder should have exercised the powers conferred upon the former parish court, in this respect, by the 6th section of an act, approved the 25th of March, 1813. Admitting that he might have taken the responsibility of withholding the assessment roll until the 1st of March, 1850, under this law, or have enforced the provision of the Constistitution propria vigore, that he was the proper officer to do so, and neglected his duty in not doing it; of what avail is all this to the sureties of the sheriff?

He had just been reelected. It was their duty as citizens, and much more as persons about to obligate themselves for his future faithful conduct, to have inquired how he had previously discharged the duties of his office ; and, above all, to have required from him the exhibition of his discharge for all public moneys previously collected, which the Constitution enjoined him to have in his possession and to produce, before commencing the collection and receipt of other public money. If the recorder neglected his duty, as contended, the sureties of the sheriff cannot successfully urge the neglect of this officer to perform his duty, as their exoneration for the misconduct of the officer for whom they became responsible. For his fidelity in 1850, they made themselves responsible, and the only material question between them and the State is, did he faithfully collect and pay over the taxes of 1849 ? We cannot conceive, that the neglect of one set of officers to do their duties, should exonerate the sureties of another officer for his failure to do his duty. His duty was independent of theirs, and existed, although theirs may not have been performed.

By signing the bond, the sureties enabled the sheriff to obtain the assessment roll of 1849, and thus to violate the duties, for the faithful performance of which, the sureties had made themselves responsible. There would be just as much reason for exonerating his sureties on the sheriff’s bond from liability for money collected under executions, and not paid over, as to exonerate these sureties on his bond as tax collector. The provision in the Constitution is directory, to guard and not destroy the office; to secure what is right, not to affect what is wrong. For similar reasons, the sureties cannot be exonerated on the ground of error in signing the bond. The error supposed is, that they believed their principal had obtained his discharge for the collection of the taxes for the preceding yeai’s. We have seen, that he was not bound to obtain his discharge for the taxes of 1848, until the 1st of March, 1850 If the error complained of is based on the fact, that he had not paid over taxes actually collected, they were bound to make inquiry on that subject; and interested more than any other persons in the knowledge that error cannot be plead successfully as to a fact, the party was bound to know himself.

In these views, we are well supported by authority. The 6th section of an act, approve'd the 25th of March, 1813, provided, that “ at the end of every year, for the collection of taxes, all sheriffs shall enter into a new bond, agreeably tot the rules and regulations provided by the act; provided, however, that no sheriff shall be suffered, at the end of any year, to renew his bond, until he shall produee to the court the treasurer’s receipt for all taxes and public monies which he may be bound to collect for the preceding year. In the case of Police Jury of St. Landry v. Haw, 2 L. R. 42, the sureties defended themselves, on the ground, that the sheriff was not authorized to collect the taxes, he not having produced the treasurer’s receipt for the payment of the taxes of the preceding year, before renewing his bond, and that, therefore, it was a legal impossibility for him to execute a valid bond; and that their contract of suretyship was void on account of error, because they signed the bond in good faith, and were in utter ignorance that the requisites of law had not been complied with by their principal and the court. But the Supreme Court, through their organ, Mathews, J., held, that their principal was sheriff de facto, if not de jure; and, as such, was acknowledged by his sureties in assuming that situation, by signing the instrument of writing, wherein they took upon themselves the obligation resulting from their agreement, and should not now be permitted to deny the capacity of their principal thus acknowledged.

The same principle, substantially, was maintained by the Supreme Court, at a later period, in the case of the Mayor and Aldermen of the City v. The Sureties of Blache, City Treasurer. Analogous principles were recognized by this court, in the case of the Louisiana State Bank v. Ledoux, 3d Ann. 675.

So, the 4th section of an act of Congress, approved the 24th April, 1816, required the paymaster general of the army to recall a delinquent paymaster. It was not done; but more funds were placed in his hands after the delinquency. He failed to account for them, and his sureties were sued by the United States for the amount of the defalcation. They obtained the opinion of the circuit court and verdict of a jury in their favor, as in the present case, but the judgment was reversed by the Supreme Court of the United States, for reasons similar to those we have given. The United States v. Vanzandt, 11 Wheat. R. 184.

The verdict and judgment in this case, is erroneous in principle, and would lead to very great irresponsibility on the part of public officers and their sureties, if sanctioned by this court, and consequent deficiency in the public revenue. Interest might probably have been claimed from the date of the defalcation; but interest having been allowed against the principal, only from the judicial demand, the surities should not be held responsible for more.

It is rendered probable by the evidence, as plead by the defendants, that the sheriff paid some part of the taxes collected for 1849, on his account for 1848. The amount is very uncertain, and is immaterial. For it was his duty to have paid the money, collected from the taxes of 1849, into the treasury, on account of that year. The disposition of it, alleged by the defendants, was as much a misappropriation as if he had used it in the payment of his private debts.

" It is lastly urged, that the sureties are not liable for interest at the rate of two per cent a month on the amount of the defalcation, because that is a pen-ally imposed upon the defaulter. We think it an obligation contracted by the sheriff for his failure to pay over the taxes collected, and that the sureties are liable for all his obligations. The interest is imposed by the 15th section of the act of the 20th of December, 1848, p. 40. The obscurity of the English text, which probably lead the counsel into error, is to be explained by the French text.

The judgment of the district court is reversed; audit is decreed, that the plaintiff recover from the defendants in solido, the sum of nine thousand eight hundred and twenty-five dollars and seventy'cents, with interest at the rate of two per cent a month from the date of the judgment against the principals, until paid, and costs in both cases.


author: Presto.’v, J.

text:
    The State v. William H. Glass.
    The judge has the right, and it is his duty, to explain to the jury what constitutes the crime charged against the accused; and, on an indictment for carrying on a hanking game, he may explain to the jury what constitutes a hanking game The fact that an incompetent juryman sat upon the trial without being challenged, is not a good ground for a motion in arrest of judgment.
    The incompetency of a juror, unless he has been challenged, is not a good ground for a new trial.
    A prisoner cannot be allowed to take the chance of a verdict in his favor, and when rendered against him, successfully attack it for facts known to him before the trial.
    APPEAL from the District Court of West Feliciana, Stirling, J.

      Z. S. Lyons, District Attorney, for the State.

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

Presto.’v, J.

The defendant was indicted for keeping a banking house and banking game; was convicted and sentenced to pay a fine of a thousand dollars, and has appealed.

He applied for a new trial, on the ground, that the judge, in his charge to the jury, gave his opinion as to what constituted a banking house and banking game, under the act to suppress gambling. No bill of exceptions was taken to the charge, but the district attorney admits that the judge charged as stated. The judge had a right to do so; nay, it was his duty on the trial of this case, as in all others, to explain to the jury what constitutes the crime charged. It does not appear that he improperly interfered with the acknowledged power of the jury to render a general verdict in the case.

It was moved in arrest of judgment, that one Benjamin was empannelled with, and sworn on the petty jury, although he was convicted of a crime and had been sentenced to imprisonment in the penitentiary, from which judgment, however, he had appealed to this court. This should have been offered as a ground in support of the application for a new trial, and not as a reason to arrest the judgment. The district attorney, however, admits the facts, with this qualification, that the conviction of the juryman was known to the accused in this case, because the juryman had been defended by the counsel in the present case. The facts being admitted, we are, perhaps, bound to inquire into their effect as though they had been presented on the application for a new trial.

We have often held, that the incompetency or disqualification of a juryman is not a good ground for a new trial, unless challenged when brought to the book to be sworn. A prisoner cannot be allowed to take the chance of a verdict in his favor, and when rendered against him, successfully attack it for facts known to him before the trial.

Other matters have been the subject of discussion before this court in the case, but the record presents nothing further for our consideration.

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


text:
    Wright, Williams & Co. v. The Trustees of the Bank of the United States.
    Where property has been sold under execution to pay mortgage debts, the mortgages upon the property to which the price was to be applied, are extinguished so far as the property is concerned, and the rights of parties are transferred to the funds. It is not therefore necessary to reinscribe the mortgages to prevent their inscription being barred by ten years' prescription.
    APPEAL from the District Court of Concordia, Farrar, J.

      H. B. Shaw, for appellees.

      Stacy 8f Sparrow, for appellants.
   The judgment of the court was pronounced by

Eustis, C. J.

This appeal is taken by the trustees of the late Bank of the United States and other parties, from a judgment of the Court of the Ninth District, sitting in the parish of Concordia, by which a portion of the proceeds of a sale of the Marengo plantation and slaves was ordered to be paid to the appellees, Wright, Williams Sf Co., of New Orleans, in preference to other creditors.

The appellees were subrogated to a judgment rendered in favor of The Mechanics and Traders' Bank of New Orleans v. Charles N. Rowley and wife. This judgment was founded upon a mortgage debt contracted by the defendants; the mortgage was recorded in March, 1840; it bore upon the plantation and slaves, the proceeds of which give rise to the present litigation, and has never been reinscribed. The property mortgaged was seized and sold at the instance of Daniel W. Coxe, a creditor, whose claim took precedence of the mortgage of the appellees; the proceeds of the sale having been applied to the extinguishment of Coxe’s mortgage, and another mortgage which also had a precedence over that of the appellees, a balance remained in the hands of the sheriff, which was adjudged to the appellees.

The contest before us is between the appellees and the Trustees of the Bank of the United States, the latter claiming precedence of a mortgage in favor of the Bank of the United States, recorded on the 24th of December, 1840, and reinscribed on the 2d of January, 1850.

The proceeds of the mortgaged property were paid to the sheriff by Hoover, the purchaser at sheriff’s sale, who bought the property on twelve months’ credit, on the 7th of August, 1847.

On the 24th of July, 1848, an opposition to the distribution of the proceeds of the property sold, was made by the Trustees of the Bank, in which they asked that Hoover should be notified not to pay any portion of the price of his purchase to any person except to the sheriff of the parish of Concordia, with the exception of the amount due on the Coxe mortgage; and at their instance, an order of court was granted, by which the sheriff was directed, after deducting the amount due Coxe and the other mortgage creditor having precedence, to retain in his hands, subject to the future order of the court, the proceeds of two-thirds of the Marengo plantation sold by him.

It is now contended, that the sheriff had no right to receive the amount of the purchase money from Hoover; that Hoover was bound to retain in his hands the balance, after satisfying the execution under which the sale was made, and that the payment to the sheriff must be considered as not having been made. The case of Scott v. Featherston, 5th Ann. 312, is referred te, as sustaining , . . .. - these positions, we are of opinion, that by the judicial proceedings ot the trustees just recited, they are estopped from questioning the validity of Hoover's payment, and that good faith requires that the proceeds of the mortgaged property should be considered as subject to the control and direction of the court, in conformity with the order which was granted in the premises at their instance.

If the payment of the price of the property sold is a valid payment, it follows, of course, that the mortgages upon the property to which the price was of right to be applied, were extinguished, so far as the property is concerned, and that the rights of the parties were transferred'from the property to the proceeds'.

The object of the recording of mortgages is to give notice of the incumbrances on real property and slaves. There is no reason in recording a mortgage for the purpose of reaching money in the hands of a sheriff under execution, or held for distribution under an order of court. A mortgage for such a purpose, has no place in a record of mortgages, and we are not aware of any principle of law, by which any such effect can be given to it. The time when Hoover made his payment, was within ten years from the date of the inscription of the mortgage of the appellees. This gives it precedence over the mortgage of the Bank of the United States.

The other points made by the counsel for the trustees, we have considered, without being able to concur with the counsel as to their validity.

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


author: Pkeston, J.

text:
    James Beck & Co. v. Thomas Brady et al.
    It is out of the usual course of business, and unlawful, for an insolvent merchant to sell his whole stock of goods on long, credits, and without any security, to a purchaser who knew the state of his affairs.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Benjamin and Micou, for plaintiffs.

      C. Roselius, C. Maurian and Tissot, for defendants.
   The judgment of the court was pronounced by

Pkeston, J.

This is a suit to annul the sale of a stock of dry goods made by Thomas Brady to H. E. Brown, on the ground that it was simulated and made to defraud the plaintiffs and other creditors of Brady, and to subject the goods to the payment of the plaintiffs’ claim for upwards of nine thousand dollars, for which they have obtained judgment. The case presents questions of fact alone, and the simulation and fraud was made out so fully to the mind of the district judge, that he felt himself justified in denouncing it in the strongest possible terms.

Simulation and fraud, unfortunately for soeieíy, are so common and have become so frequently the subjects of investigation in our courts, and are so difficult of discovery, that when ferreted out by the district courts with great care and labor, .w0 we unwilling to interfere with their judgments, unless there be manifest want of evidence. So far from that being the fact in the present case, the evidence leads us to the same conclusions with the district court.

We have examined the voluminous record minutely, but will only state the results of that examination.

The defendant, Brady, was a resident of the city of New York, but for two years carried on a dry goods store in this city, and also the business of selling goods by the package at auction. On the 31st of January, 1851, he purports, by a notarial act, to have sold out his whole stock to the defendant, Ii. JS. Brown, for about $45,000, payable $2000 in cash, and the balance at six, twelve, eighteen, twenty-four, thirty and thirty-six months’ credit, in notes of the purchaser, bearing six per cent interest.

The next day he gave a statement of his affairs to an attorney at law, showing liabilities to the amount of near two hundred thousand dollars, and assets, including the unendorsed notes for the stock of goods, amounting to less in value than $50,000, with which to pay his debts, or about twenty-five per cent of their amount. He gave a power of attorney to the attorney, to tender these assets to the creditors, evidently with a view to induce the creditors to take these assets in discharge of his liabilities. He left the city, and it does not appear that he has ever returned. The plaintiffs, regarding the sale as a fraudulent simulation, disregarded it, and attached the stock of goods in the possession of Brown.

The evidence leaves no doubt that this was a fraudulent transaction on the part of Brady. He was insolvent to an immense amount, being unable, according to his own showing, to pay more than one-fourth of his vast debt. It was his duty, under the circumstances, to have surrendered his little property, which was the common pledge of his creditors, to them, to be administered and distributed among them according to law; and further, to have remained personally and given them a satisfactory account of the loss of a hundred and fifty thousand dollars of their property, in the short space of two years. Even a month before the sale, the stock of merchandise exceeded the price for which it was sold, by upwards of thirty thousand dollars, of which diminution no satisfactory account is given.

It was the duty of Brady to have enabled his creditors, after causing them such enormous losses, to have realized the remaining assets, as soon as possible, in cash, and not to have forced upon them, instead of a remnant of property, a new debtor at long terms of credit, and which debtor, it seems from the evidence, had no means to purchase. For it appears from the answers of the attorney who was to make the arrangements with the creditors, most of whom were in New York and Boston, that within twenty days after he received the power of attorney, he had no part of either the money or notes given for the stock of goods, and it does not appear in evidence, that he ever had them in possession.

"We believe that Brown knew at the time of the purchase of the stock of goods, that the vendor was totally insolvent. Through his agency, the store had been established, and he had been his confidential clerk and manager of the business in this city; and, as such, we have no doubt, knew Brady’s situation.. As such he knew, or was bound to have known, the duties of the insolvent by the laws of Louisiana, as already stated, and to have aided him' in performing them. On the contrary, he cooperated with him in violating those duties, by pretending to purchase his stock of goods and giving him the money and notes which he might, and probably has, disposed of to the further and total loss of the creditors.

It was out of the usual course of business, and unlawful, for an insolvent to sell his whole stock of goods on long credits, and without any security from the purchaser; and Brown aided in this unlawful conduct.

Brown was insolvent himself, and even the cash payment for the stock of goods was borrowed from the auctioneer of Brady, and returned in a few days, no doubt out of the proceeds of the forced sale and sacrifice of that very stock which should have been most carefully husbanded for the creditors, to whom it in reality belonged. He purchased the stock with no intention of carrying on business as a dry goods merchant, but immediately commenced the sacrifice of the property at such prices for cash, as produced such a rush on the store as compelled him and his clerks, at one time, to barricade the doors.

The whole affair was as unusual, anti-commercial and fraudulent on the part of Brown as of Brady. The district judge regarded the whole as a mere simulation to cover a division of the spoils, and maintained the attachment; and we see no reason to pronounce that he erred.

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


text:
    James A. Seddan v. Samuel Templeton.
    Until final judgment, confirming a judgment by default, has been entered on the minutes of the court, the defendant has a right to move to set aside the judgment by default, and to file an answer.
    ON an application for a mandamus to the judge of the District Court of Carroll, J. N. T. Richardson, J.

      R. II. Marr, for applicant.
   The judgment of the court was pronounced by

Slidell, J.

This is an application by the plaintiff in a cause pending in the District Court of the Parish of Carroll. The applicant prays this court to grant a mandamus to the district judge, “ordering him to sign the judgment rendered in this cause, and to have said judgment entered on the minutes of the court; which said judge has refused to do.”

A transcript of the record of the proceedings in the court below, is before us. It appears that a judgment by default was entered against Templeton at the May term, 1851; that at the November term, the plaintiff offered evidence, for the purpose of obtaining afinal judgment; that the judge had orally expressed his satisfaction with the evidence, and told the plaintiff’s attorney to take a judgment. But before afinal judgment was entered on the minutes, and before the court had ordered the clerk to make any such entry on his minutes, the defendant’s attorney requested a suspension of the proceedings, until he could see his client. No entry of final judgment has ever been made upon the minutes of the court. On the contrary, at a subsequent day of the same term, upon filing an affidavit and a prayer for further time, the defendant obtained an order, allowing him until the first day of the lies', term of the court, to file an answer.

Here was a mere judgment by default. Until final or confirmatory judgment, duly entered of record, the defendant had a right to move the court for leave to set aside the default and file an answer. Whether further time should be allowed him to answer under the peculiar circumstances stated in the affidavit, was a matter for the sound discretion of the district judge. In all kindred matters, which merely involve a delay of the cause, a discretion is vested in the district judge. If this court can interfere at all in such matters, it can, certainly, properly interfere only where there is a clear abuse of the discretion, tending to create a manifest failure of justice, and permanently frustrate the right of a litigant to have his cause placed in such a condition, as to enable him to have the benefit of the appellate jurisdiction, which the Constitution has conferred upon this court.

This court has, unquestionably, the power to award the writ of mandamus in causes which fall within its appellate jurisdiction, and in the necessary maintenance of that jurisdiction. But it is a power which we very rarely exercise, as the records of this court will show.

There is no sufficient ground for the interference of the court in the case at bar. The application is therefore dismissed, at the costs of the applicant.


text:
    Succession of John C. Boone.
    The testamentary executrix who is in possession of the succession, is not under the neces. sity of demanding the seizin of a particular legacy to herself from the heirs.
    Where two clauses in a will are inconsistent, the latter is considered as the will of the testator. C. C. 1716.
    APPEAL from the District Court of West Feliciana, Stirling, J.

      U. B. Phillips, for appellee.

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

Rost, J.

This is an appeal by the heirs of John C. Boone, from a judgment on the oppositions to the account filed by his widow and executrix. The only two items of the account seriously contested on the appeal, are a charge made by the executrix for the rent of lands and buildings leased by her to the succession, and the amount paid for counsel’s fees.

The will of the testator commences by the following disposition: “It is my will and request, that all of my property, not herein disposed of by particular legacy, shall remain in the possession, and under the administration of my beloved wife, and partner in the community now subsisting between me and my said wife, until the first day of January, 1855; after that period, to be divided and partitioned amongst my legal heirs, as hereinafter directed; but such division is not intended to operate to the prejudice of any particular legacy herein bequeathed, to any heir or legatee.”

He then goes on to make a large number of legacies of land and slaves, among which is the following: “To my beloved wife, Nancy Fegucy Boone, I give and bequeath the Home place or plantation, containing one thousand arpents, and known by us as the Zadcock Brashier grant, together with the household furniture, stock, farming utensils, and the improvements thereon and thereunto belonging; also, the following slaves, to wit: Kentucky Jim, the carriage driver, and his wife Mary, and her daughter Rody; Susan, the cook; the washerwoman, Sarah ; and the seamstress, Molly; to have and to hold the same unto her, the said Nancy Fugucy Boone, her heirs and assigns, to her own proper use and benefit, for ever.”

It is shown that the testator cultivated, at the time of his death, part of the Brashier tract of land, and another large tract adjoining it; and that all the plantation buildings, except one of the gin-houses, were on the Brashier tract.

The two tracts have continued to be cultivated as they were before the death of the testator, and the executrix claims rent for her land and buildings, on the ground that the bequest to her, being a particular legacy, she was entitled to take possession at once; that being an executrix with the seizin, she was not bound to demand the delivery from the heirs, and that she has been in possession in her own right, ever since she was qualified as executrix.

The heirs of Boone, on the other hand, contend, that the legacy to the executrix was only intended to take effect in 1855; and, if mistaken in this, they urge, that the executrix having failed to make a demand from the heirs, she has no claim for the fruits; they also deny the power of the executrix, to create obligations in her own favor, as she has attempted to do.

The district judge considered the claim of the executrix well founded, but considering that the succession had claims against her for improvements made upon her land, and also for negro hire, which she had failed to allow, and the amount of which was not satisfactorily shown, he ordered her claim to be stricken from the account, reserving the rights of the parties in relation to it. The opponents have appealed.

The legacy made to the executrix, is of the same character ns all the others contained in the will, and is, in every respect, a .particular legacy within the meaning of the exception in the will. As testamentary executrix, she was dispensed by law from the formality of demanding the delivery from the heirs, and the district judge was authorized to consider her in possession as owner.

We perceive no inconsistency or contradiction in the two dispositions of the will which we have quoted. The testator gave away a good many of his slaves, and his intention was, no doubt, that those which were to be kept together until 1855, should cultivate the tract of land adjoining the Brashier tract. There was a gin-house upon it, and other plantation buildings might easily have been erected. Whether the executrix acted for the interest of the estate, in using those upon her land instead of building others, and the extent to which the succession was benefited, by this and the cultivation of the Brashier tract, will be a matter for future investigation.

If it was true that the two dispositions of the will are contradictory, the particular legacy was last written, and under an express provision of the code, must be presumed to be the will of the testator. If he had disposed of all his property by private bequests, the first disposition would have been entirely inoperative. Civil Code, 1716.

A careful perusal of the evidence, and of the proceedings had in the succession, has satisfied us that the amount paid for counsel fees is reasonable; we can discover no error in the judgment.

Judgment affirmed, with costs.