source: Caselaw Access Project

author: Buchanan, J. Slidell, C. J.,

license: Public Domain

text:
      Succession of George Foulkes.
    Te authorize a tutor to purchase property for the benefit of the minors under his charge, he must obtain the advice of a family meeting "before the purchase. And where he bids in property without such advice, the executrix, who caused the property to be sold, is not bound to wait till the tutor convene a family meeting, to approve of his purchase, but on failure of the tutor to comply with his bid, she may at once put up the property again for sale. C. 0. 2589.
    A purchaser who holds an unliquidated demand, secured by a tacit mortgage on property sold at probate sale, has no right to withhold the price of his bid and delay the adjudication until his claims can be liquidated by a court.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Durant & Eornor, for Howes, opponent and appellant. Benjamin, Micou & Finney, for Johanna Foulkes. St. Paul & Bouny, for Dr. Puissan, ap-pellees.
   Buchanan, J.

The mover-in this rule represents, as tutor, certain minors, who are creditors, with general mortgage, for a large amount of the estate of George Foulkes. At a probate sale of the property belonging to said estate, the mover in the rule bid off certain immovable property in the name of his wards, and it is now objected that he was not authorized by the Judge, on the advice of a family meeting, to make said purchase. In the case of Davis v. Leaumont, 5 Rob. 286, it was held sufficient in law that the family meeting ratified the purchase after it was made. Again, in McCarty v. Steam Cotton Press Company, 5 La. 21, Judge Porter, as the organ of the court, used this language: “But it is said that the approbation of the Judge of probates followed, and it should have preceded, the sale. The law does not specify at what time it is to be given, and we think that when the alienation takes place by auction, where the price cannot be known before the object is stricken off, the approbation of the Judge can alone be usefully and legally given after the sale.” See also 2 An. 729: 4 An. 85; C. C. 1788.

The terms of the probate sale were one-third cash and the balance at one and two years’ credit, for notes bearing mortgage and interest from date. The amount of the tutor’s bid was $5000, and the administratrix of George Foulkes required of the tutor, by notice in writing, and through a Notary Public, a compliance with the terms of sale, by giving the cash and notes. Upon his failure to comply, the formalities nquired in case of a folie enchére, by Art. 2589 of the Code were followed, and the property was offered for sale a second time, and adjudicated to Dr. Puissan for $8250. The validity of the second sale necessarily depends upon the obligation of the tutor of John Foulkes1 minor children, to give cash and notes to the amount of the bid made for their account. But it is Pla’n, be was under no such obligation. The minors whom he represented were creditors, with mortgage, of the estate of George Foulkes, who had been their tutor, and had died without rendering an account of tutorship. The amount of their claim against George Foulkes' estate was liquidated at the sum of $6056, by a judgment rendered after the probate sale; but the administra-trix of George Foulkes had acknowledged, in an inventory made six months previous to that probate sale, that the estate of her deceased husband was indebted to the minors in a larger sum than the amount of their bid, to wit: in the sum of $5883 40. Now the law is well settled since the case of Goodale v. Creditors, 8 L. 302, that a mortgage creditor who purchases, at a judicial sale, property subject to his mortgage, may retain the price of adjudication in satisfaction of his claim, except so far as it exceeds the amount of his mortgage. The syndic or administrator can only require of him security to refund or meet such charge as may be afterwards legally ordered. In the present case, the administratrix was without right to require of the tutor of the minors Foulkes the whole amount of the bid, as she -has done, and her subsequent acts gave no right to Dr. Puissan to the prejudice of those minors.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, that the cause be remanded, with instructions to convene a family meeting of the minor children of John Foulkes, in order to deliberate upon the propriety of ratifying the purchase made for the said minors by Robert Howes, their tutor, of a certain tract of land belonging to the succession of George Foullces, at a public sale, on the 29 th March, 1854, as shown by the proces verbal of Joseph A. Beard, auctioneer, on file in this case; that on such ratification being filed, this rule be made absolute, and the administration of George Foulkes be ordered to make a conveyance to the minor children of John Foulkes, represented by their tutor, Robert Howes, of the property mentioned in the rule, the firm to be credited upon the judgment obtained by said minors against the succession of George Foulkes, and that appellees pay costs of the rule in both courts.

Slidell, C. J.,

(with whom concurred Spoitord, J.,) dissenting. The tutor had no authority, by mere virtue of his office, to buy real estate for his wards. C. C. 348; see also Davis v. Beaumont, 5 Rob. 287; Hall v. Woods, 4 An. 85; Carlin v. Germaine, 6 La. 218.

The claim of the minors was, at the time of the attempted purchase, unliqui-dated and in litigation. After the adjudication, and his refusal to comply with the terms of sale, dictated by the creditors and ordered by the court, the tutor took even then no steps to have a judicial ratification of the purchase for the minors, upon advice of a family meeting, and judicial approval, nor to obtain an order of court, contradictorily with the administratrix or the numerous creditors of the succession, suspending the settlement for the price until the claim and alleged priority of the minors could be judicially ascertained. The tutor in so acting had no legal warrant. He had no right to put the estate and its creditors in such an uncertain and precarious position. Suppose the property had perished, while he was’thus refusing to comply with the terms of the adjudication, and at the same time neglecting to obtain a judicial approval of his purchase; the minors could say, it has not perished for our account and at our risk — our tutor had no right to buy, and our. claim against the estate exists intact.

I am, therefore, of opinion that, under such circumstances, the tutor obstinately persisting, during several months, in acting of his own head, and taking no steps to have a family meeting, or get an order of court contradictorily with the administratrix or the other creditors, authorizing the administratrix to suspend action ; the administratrix fulfilled her duty in proceeding, after his long default, to a second crying and adjudication, and that Puissan, who bid in good faith, has a right to insist on his purchase. If the minors suffer a loss, it is the result of their tutor’s mismanagement, for which they can look to him; but it would be a dangerous precedent to throw upon others the consequences of a tutor’s lack of judgment and diligence. It was a matter for his sound and diligent discretion .in the administration of his trust, to determine seasonably whether he would let-the estate of the debtor be sold to others, and exercise the claim of his wards on the proceeds, or whether it would be desirable to buy for the minors. If his sound discretion suggested the latter course, then it was his duty to ask the advice of a family meeting and judicial authorization thereon, either before the adjudication or, at least, promptly afterwards. C. 0. 348. He has done neither. He does not even suggest, in the present rule, a call for a family meeting, but claims a conveyance to himself, as tutor, and, by consequence, a rescission of the adjudication to Pouissan, a defendant in the rule, on the naked showing that he thought proper to bid for the minors, and that their tacit mortgage claim, then unliquidated and in litigation, has, since the adjudication to Pouissan, been ascertained by judgment. Upon the pleadings and evidence I am not prepared to say the learned Judged below erred in dismissing the rule.

       On motion of Durant & Hornor, attorneys for Robert Hozoes, tutor of the minor children of John Foulkes, and on showing to the court that, on or about 'he 29th March, 1854, he bought, as tutor, at public sale, under an order of court, made by Beard & May, Auctioneers, a certain tract of land, belonging to the succession of George Foulkes, situated in this parish, right bank of the Mississippi river, about four miles below the city, measuring two arpents front on the Mississippi by forty arpents d.-ep, for the price of five thousand dollars; and on further showing that lie is a creditor of this succession, in the sum of six thousand and fifiy-six dollars, with Interest from 8th December, iu55. and legal mortgage from 2<ith December, 1848; and that he desires to retain the price of the property in part, and satisfaction of the aforesaid judgment.
      It is, therefore, now ordered by the court, that Johanna Foulkes, administratrix of this succession, do show cause, oti Saturday next, the 18th day of January, 1855, at 10 o’clock, a. m., why she should not perfect the said sale and transfer, by authentic act, to promovent the fcitle to said property, and that Dr. F. R. JPuissan be made a party to this rule.


author: Merrick, C. J.

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

(Voorhies, J., and Buchanan, J., dissenting.) Á majority of the court are of the opinion that, inasmuch as the tutor of the minor had not, previously to the sale, caused himself to be authorized to purchase by the advice of a family meeting, the administratrix of the succession was not bound to delay the proceedings until it should be ascertained whether a family meeting would ratify the unauthorized purchase made by him or not.

We are, further, of the opinion, that whatever may be the law as to purchases made at the sales of surrendered effects or property of successions by the mortgagee, who holds a special mortgage upon the immovable or slave which he buys, that the person who holds an unliquidated demand secured by a tacit mortgage has no right to withhold the price and delay the completion of the adjudication of property of a succession purchased by him at a probate sale, for the purpose of liquidating his claim against the succession by the judgment of a court, and in order to retain it out of the price. Nor are we prepared to say (neither is it important to decide the question) that the holder of such liquidated tacit mortgage would have the right to retain in his hands the proceeds of property bought by him at a probate sale, until there should be a classification of the mortgage and privilege claims against the succession.

We are, therefore, of the opinion that the administratrix in this case had the right, after complying with the formalities required by Article 2589 of the Civil Code, to reoffer the property for sale, and that the purchase made by Dr. P Ti. Puissan, at the second sale, ought to be maintained.

It is, therefore, ordered, adjudged and decreed by the court that the jndg' ment heretofore pronounced by this court in this case be set aside and annulled, and that the judgment of the lower court be affirmed, with costs.


author: Buchanan, J.

text:
    Michon et als. v. Gravier et als.
    lVhere there is a discrepancy in the boundary lines, as shown by a public act on the one hand, and a plan attached to the act on the other, if the description be clear and unambiguous in the former, it will prevail.
    On the 16th of September, 1820, M. & G-. entered into an act of compromise, by which Cr. conveyed to Mo, with a warranty against his own act, all his right in a portion of the batture, in the fau-bourg St. Mary. By the terras of the act, the batture conveyed extended to the water’s edge. On the 20th of September, 1820, G*. made an act of donation to-the city of New Orleans, by which .the batture previously conveyed to M. was created loanspubli&us. Under the facts ol the case, it was held, that for the purpose of the donation, G. was to be regarded as the negoi/iorwm gestor of M., who was bound by the act granting the batture to the public. In 1851, the act of donation of September 20th, 1820, was, by agreement, rescinded. This action was brought by the heirs of M. against the heirs of G. to recover the proceeds of the batture sold by G. to M. in 1820, which proceeds were received by the heirs of G. under the Act of 1851, rescinding the donation of 1820. Held: The contract of 2uth of September, 182G, so long as it endured, seemed to have been viewed by M. and by his heirs, as binding upon them ; but when that donation was rescinded in 1851, and the loeuspuVUcus created by the contract of 1820 was again made the subject of private ownership, the warranty contained against their own acts in the conveyance of the 16th of September, 1820, unquestionably forbade the heirs of G. to put into their own pocket the proceeds of the land embraced in that conveyance to M.
    The heirs of G. were bound to account for the proceeds of the batture conveyed to M. when called upon, but the right of action only accrued when the money was received, which, being less than two years before this suit was brought, the prescription of ten, twenty and thirty years could not avail.
    The principles decided in JRoselmsr. Delachaise, 5 Ann., affirmed.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Griffon and St. Paul & Bouney, for plaintiffs. Denis and Boselius, for defendants and appellants.
   Buchanan, J.

On the 16th of September, 1820, the ancestor of plaintiffs and the heirs of Bertrand' Gravier made a compromise, by act before a notary public in New Orleans, of a lawsuit then pending in the United States Court, in the said city, wherein Miehon was plaintiff, and the Heirs of Gramier defendants. The suit in question was a petitory action, claiming the batture extending to the river, opposite a lot having a front of sixty feet on Tehoupi-toulas street, within the faubourg* St. Mary.

By the compromise in question, it was agreed between the parties, that this batture should be divided by a line running from Tchoupitoulas street to the margin of the river, into two equal parts, of which one should belong to Mi-chon and the other to the Heirs of Gravier: and each party conveyed to the other, with a warranty only against his own acts, the half of the batture to the water’s edge. Annexed to the compromise, and referred to therein, was a plan upon which the division of the ground was figured by a line, which says the .act of compromise, “ vient aboutir ala Nouvelle Levéc, et qui doit, dans Pintention des parties, étre prolongéo jusqu’á la- ligne margínale du fleuve.”

This compromise differs, in two important particulars, from those in the cases of Jourdan, of Poydras, and of Tourné, against the same defendants, lately decided by us. In all of those cases, the description of the property reciprocally conveyed, limited the property by the New Levee, or by New Levee street, on the side towards the river. In this, the terms of conveyance extend to the water’s edge. The expression “jusqu’á la ligne margínale du fleuve,” has no ambiguity ; it conveys the whole alluvion or batture. The second point of distinction between this case, and those just mentioned, consists in this: that the compromise with Miehon was made before the act of donation by the Heirs of Gravier, to the city corporation, of their rights in the batture outside of New Levee street; while the compromises with Jour-dan, Poydras and Tourné, were made after that donation.

It is urged in argument by defendants’ counsel, that the plan which is annexed to this contract of compromise, and upon which the lateral lines of the property mutually conveyed, are prolonged no further towards the river than the New Levee, ought to control the words of the contract; and the case of Suary v. Duralde, 1 L. R. 260, is cited. That was the case of a contract for building a house; and the plan, which was a part of the contract, was held to be properly used for the purpose of supplying defects in the specifications, upon an issue whether certain work figured in the plan, but not mentioned in the specifications, was extra work or not. It will be perceived that the plan, in that case, was not admitted to diminish or abrogate any stipulation of the contract, as is sought to be done here. We have copied the words of the contract, which refer to the fact of the line of division upon the plan terminating at the levee, and which add that the intention of the parties is, that the said line be prolonged to the margin of the river, in accordance with the description of the land conveyed, contained in the deed. The words of explanation are a part of the conventions of the parties, which cannot be disregarded.

The effect of the conveyance of Gravier’s Heirs to Michon, of ail their right in a port.on of the batture, on the 16th of September, 1820, was to incapacitate them from donating the same rights to the city on the 20.h of September, 1820, unless with the consent of Miehon. Such donation came expressly within the warranty, “leurs faits et promesses,” contained in the deed. We cannot, however, suppose that Miehon was ignorant of that donation, which followed so immediately upon his own compromise with Gravier’s Heirs. The clauses in the compromise by which Miehon agreed to make the new levee, and to pay three hundred and ten dollars to the city treasury, imply a knowledge on his part, and a ratification of the arrangements pending between the Heirs of Gravier and the city, and which ripened a few days afterwards into' the contract between those parties of the 20th of September, 1820. Indeed, the petition in this case alleges, that the contract of the 16th of September, 1820, was made in contemplation of that of the 20th of September. When, therefore, the Heirs of Gi'avier donated to the city the batture, which but a few days previously they had conveyed to Miehon, they must be presumed to have done so, as agents, or negotiorum gestores, of Miehon. The contract of September 20th, 1820, so long as it endured, seems to have been viewed by Miehon and by his heirs, as binding upon them; but when that donation was rescinded in 1851, and the locus publicus created by the contract of.1820, was again made the subject of private ownership, the warranty against their own acts contained in the conveyance of the 16th of September, 1820, unquestionably forbade the Heirs of Gravier to put into their own pockets, the proceeds of the land embraced in that conveyance to Miehon. They were bound to account for those proceeds when called upon. The prescription of ten, twenty, and thirty years, invoked by defendants, cannot avail them. The right of action of plaintiffs, to claim of defendants money received by them for the account of plaintiffs, only accrued when the money was so received, which was less than two years bpfore this suit was brought.

Defendants have set up in reconvention, a claim for §1000 counsel fees for defending a suit of Parish et al., relative to the property of the batture of the faubourg St. Mary. This claim has been opposed on the authority of the decision in Roselius v. Mrs. Delachaise, 5th Ann. In the case quoted, Mr. £o-selius claimed as having been employed by Mrs. Delachaise. But in the present case, we do not understand that there is any pretence that the learned counsel, who represented the Heirs of Gravier, in the defence of the suit of Pa/rish, were retained by the present plaintiffs; and as the Heirs of Grcmier had, undoubtedly, large interests of their own at stake in that suit, they must be supposed, in the absence of contrary proof, to have engaged counsel in reference to those interests.

¥e have not been able to perceive any error to defendants’ disadvantage, in the calculation of the amount coming to plaintiffs, upon which the judgment of the District Court was based.

Judgment affirmed, with costs.


text:
    Eugene Rochereau et al. v. Jean Jonau & Wife et al.
    Where the husband and wife by their marriage contract, executed in France, stipulated: 1st, That they adopted, as the law of their marriage, the dotal system, {régime dotal,) to the exclusion of that of the community, {régime en eormwwnauté,) and 2d, that the acquisitory (acquets) made during the marriage should be shared equally by the spouses, and should revert to the children of the marriage, each of the contracting parties, in default of such children, to have the free disposition of his or her moiety. It was held that this contract created under the French law a modified or limited community {commimauté camentionelle) between the spouses — and that all acquisitions made after the marriage, except such as were made by inheritance or donation to one of the spouses, belonged to this community.

      Held, consequently, that the husband and wife having removed to Louisiana after the marriage, immovable properly acquired here in the name of the latter was not the separate property of the wife but formed a portion of the community, aud the husband having become insolvent and having ' made a surrender of his property to his creditors, the title of the immovables so acquired, vested, by force of the surrender, in them.

      field, also, under this contract, the wife could not acquire a separate estate in her own name until the community was dissolved by the decree of a competent tribunal, unless the acquisition was made by a re-investment of her paraphernal capital.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Magne, Latour and H. D. Ogden, for plaintiffs and appellants. Dufour, Gastera and Charvet, for defendants.
   Merrick, C. J.

The principal question in this case arises out pf a marriage contract entered into in France, by Jean Jonau and wife on the eave of their marriage.

It contains among others the two clauses following, viz:

“ Article ler. Les futures ont declaré vouloir étre mariés sous le regime dotal 5 l’exclusion de eelui de la communauté.”

“ Art. 5. ********

lis s’associent en outre aux acquets qu’ils feront, lesquels seront reversibles aux enfants qui seront provenus du present mariage, et a défaut d’enfants cha-eun des futurs disposera de sa moltié ainsi qu’il avisera.”

The wife having purchased in her own name a small tract of land and dwelling house, previous to the surrender of her husband, we are called upon to decide whether it shall be held by the wife or administered by the syndic for the benefit of the creditors of the community and insolvent.

If we give the same effect to the marriage contract which would be given to it in France, where it was executed, it will not sustain the pretensions of Mrs. Jean Jonau and it will not, therefore, be necessary to decide whether a marriage contract, executed in a foreign country, circumscribing or setting aside altogether the community of acquets and gains would be carried into effect here, where it affected the rights of third parties.

The two stipulations in the marriage contract, in France, had this effect only. It prevented the movables of the spouses, possessed at the time of their marriage or subsequently acquired by inheritance or donation, from falling into the community, as they otherwise would by the French law, and it gave the husband the exclusive control over the dotal effects during the marriage, the wife the control of her extra dotal estate with the obligation to carry the the annual revenues thereof into the limited community, and made that community to consist of all acquisitions after the marriage, except by inheritance or donation to one of the spouses, and left the respective rights of the husband and wife, in regard to this limited community, in other particulars, as in the case of the community established by law. C. N.. 1581, 1498-and 1499, Troplong du Mariage, vol. 3., Nos. 1852,18-54 and 1891.

We think it must follow, that the property purchased by the wife in her own name, before the surrender of her husband, which has not been shown to be the re-investment of her paraphernal effects, belonged to this limited community, of which the husband was the head and master; and that by the surrender it passed to his creditors. Indeed, it is difficult to perceive in what manner the wife can acquire a separate estate in her own name, otherwise than by the re-investment of her paraphernal capital, until this community is dissolved by a decree of a competent tribunal.

On the other point, we see no error in the judgment of the District Court in refusing to remove Paul Juge, jr., from his office of syndic. He may well have supposed that Mrs. Jonau could acquire separate property, and the prompt manner in which ihe sale was rescinded, satisfied the Judge of the lower court that he was acting in good faith, and we cannot say that the Judge erred in his conclusion in this particular.

It is therefore ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, that the plaintiffs’ demand against Paul Juge,jr., & Co. be dismissed, and that said defendants recover their costs, and that the tract Of land in the parish of Plaquemines, in said State, on the left bank of the river Mississippi, about forty miles below the city of New Orleans, having a front of about two and one-fourth arpents on the river by a depth of forty arpents, and being the tract of land acquired by act under private signature from j)r jp{erre Ziafon, in the name of said Mrs. Jean Jonau, on the 7th day of December, 1853, be hereby declared to belong to the effects surrendered by Jean Jonau to his creditors, and the said Paul Juge, jr., syndic, is hereby ordered to administer the same for the benefit of the creditors of said Jean Jonau, and it is further ordered that there be judgment against the residue of the plaintiffs’ demand against said Paul Juge, jr., and that the defendants and appellees, Jean Jonau, Jeanne Jonau and Paul Juge,jr., individually, pay the costs of both courts, reserving to the said Mrs. Jeanne Jonau any right she may have to claim of said syndic the re-imbursement of any paraphernal or dotal funds or effects paid at any time on account of said tract of land, as well as the like effects alienated or appropriated by her husband to his own or the use of the community before his surrender.


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

text:
    R. Bryan v. S. P. Day.
    A person who is a mere nominal party to the suit, is a competent witness.
    Wherever a nominal party to a suit is liable for costs in his individual capacity, he is incompetent as a witness, although he may demand nothing for himself, but joins the plaintiff in a prayer for a judgment in his (plaintiff’s) favor. Merrick, C. J.
    C. C. 2260,
    APPEAL from the District Court of the parish of Bienville, Brew, J.

      Stubbs and Morrison, for plaintiff. Egan & Jones, for defendant and appellant.
   Buchanan, J.

(Spofford, J., recused himself, having been of counsel.) The plaintiff was security of one Bowers, upon a bond given under an order of a Court of Chancery in the State of Georgia, on the 8th of February, 1837, conditioned, that said Bowers should produce a slave, Harriet, and all her increase which should be in life, at a certain time specified. The time having arrived, and Bowers having neglected to produce the slave Harriet and her increase, according to the condition of his bond, suit was brought against Bryan, the present plaintiff, to recover the penalty of the bond. Judgment was entered up against him upon confession; and by the same judgment, the plaintiffs in the suit relinquished, renounced and assigned to the defendant, (the present plaintiff)) all their right to, and interest in, the slave Harriet and her increase.

The present suit is brought to recover a slave named Emily, which slave is alleged to be one of the children of Harriet.

The questions of subrogation, both legal and conventional, which have been elaborately argued by counsel on both sides, may be left out of view. The judgment in the case of Rutland et als. v. Bryan — a judgment pronounced in the presence and upon the consent of both parties to that suit — is the title of Bryan to the slave Emily, whose identy with the child of Harriet of that name, we consider to be sufficiently established. The title of the Rutlands, which vests in him by the terms of that judgment, must prevail, unless prescription has run against it. The defendant pleads the prescription of five years:

The defendant’s title is a receipt from William G. Beard, dated 9th August, 1843, for one hundred and fifty dollars, as price of a mulatto child named Emily, four years of age, sold and delivered-to Mrs. Leah Ann Day.

Admitting this document to be an act translative of property, prescription was suspended during the minority of the children and heirs of Reddin Rut-land, who were none of them of age, at the date of Beard's sale to defendant, and one of them, Calvin Rutland, was not of age until after the institution of this suit. This is supposing the heirs of Rutland could have maintained an action for the possession of the slave Emily, from the time defendant first came into possession of her. But in truth they had no such right of action under their father’s will, until Rufus K. Rutland attained the age of majority; which was in October, 1850. Up to that time, the usufruct of their mother, Rutland's widow, lasted. And prescription does not begin to run until a right of action has accrued. Gueno v. Soumastre, 1 Ann. 44.

Accordingly, we find Rutland's children only sued Bryan on his bond in March, 1851. In December, 1851, judgment was rendered in that suit, as above stated, conveying the title of Rutland's heirs to Bryan, who instituted the pcsent action in February, 1852.

There is a bill of exceptions to the reception of the testimony of Reddin Rut-land, and of Mrs. Mary Howell, who wire examined as witnesses for plaintiff. The ground of objection stated in the bill is, that those witnesses were parties plaintiff to this suit, as well as warrantors of the plaintiff, Bryan.

In regard to Mrs. Howell, the objection is obviously without any foundation. Her name does not occur, either in the petition in this case, or in the suit against Bryan. As to Reddin Rutland, he is a merely nominal party, for the purpose of giving his sanction, to the claim of plaintiff. The petition states that Reddin Rutland and others, “joins this petitioner for the purpose of aid-' ing and assisting him, if possible, to recover said slave Emily, and to have the-benefit of all the right, title, interest and claim, which they request he may have given him, as fully as if they were plaintiffs themselves.” The prayer or conclusion of the petition is exclusively in the name of Reddielc Bryan. No relief or judgment of any kind is asked in the name of Reddin Rutland or his co-heirs. It is plain, therefore, that he is but a nominal party, and is therefore competent to testify. Reynolds v. Rowley, 2 Ann. 890. Neither is this witness a warrantor of plaintiff’s tide. He merely conveys to him what title he himself had. The consideration passing from Bryan to Rutland, for such conveyance, was not the price of a sale, which would have implied a warranty in law; but the acquittance of a debt of Bryan, as security of Bowers, due to Rutland.

Judgment affirmed, with costs.

Merrick, O. J.

I think that wherever the nominal party to a suit is liable for costs in his individual capacity, he is incompetent as a witness, although he-, may demand nothing for himself, but join the plaintiff with a prayer for a Judgment in his, the plaintiff’s favor. The .Civil Code says, the witness must not be interested, neither directly or indirectly in the cause. C. C. 2200. This, it is evident, is a different case from that where the plaintiff or defendant sues or is sued in a representative capacity. Thus, in the case of an administrator.it is the succession, and not the individual, which is the party to the suit, and there is no reason why the individual who fills the office of ad ninistrator, should not be a witness, if he is not otherwise interested in the event of the suit.

In other respects, I concur with the reasoning of Mr. Justice Buchanan, the the organ of the court.


author: Spoffohd, J.

text:
    Hall & Emswiler v The Corporation of Bastrop.
    The Act of March 14th, 1852, p. 82, concerning the licensing of drinking houses, does not confer the power of seizing property, by summary process, to secure the payment of a license when granted. If a person has obtained such a license, without paying for it, the remedy to enforce payment, is by oi dinary action.
    APPEAL from the District Court of the parish of Morehouse, Richardson, ■ J.

      Newton & Null, for plaintiffs. Parsons, for defendants and appellants.-
   Spoffohd, J.

The plaintiffs enjoined the Tax Collector of the town of Bas-trop from seizing and selling their property, under a claim of $500, alleged to . be due as a license for keeping a retail grocery within the corporate limits.

The injunction was perpetuated by the District Judge, and the corporation has appealed.

If it were conceded that, under the Act of March 14th, 1852, p. 83, concerning the licensing of drinking houses, the corporate authorities of any town have the power to impose the payment of any sum they choose, as a con-, dition precedent to the granting of a license, after a majority of voters have determined,by ballot to license such houses, upon which point we express no opinion; still the grant of such a power could not carry with it the power of seizing property by summai’y process, to secure the payment of a license when granted. Nor do we find that the Act incorporating the town of Bastrop, or any amendment thereto, authorizes a claim for license money to be enforced by a seizure without suit or judgment.

If the plaintiffs have this license, and have not paid for it, the remedy of defendants (so far as we are advised) is by ordinary action; if, on the other hand, the plaintiffs were selling spirituous liquor, without a license, the laws relative to crimes and offences afforded an ample remedy.

Judgment affirmed.


author: Spoffokd, J.

text:
    Thomas N. Barham v. A. Livingston.—Tatum & Barham v. A. Livingston.—Consolidated Cases.
    The appellee is enfifclert to three judicial days in which to move a dismissal of the appeal, unless he Waives that right by some action on his part. Filing an answer to the merits, without tendering a motion to dismiss, would import such a waiver, but the act of the court, ex propria moiu, setting down the cm se for trial, could not deprive the party of a legal right.
    The Clerk’s certificate, which states that the record contains a full transcript of all the documents filed, all the proceedings had, and all the evidence adduced on the trial, as on fie amd of record in his office, is insufficient.
    It is imperative on this court to grant to the appellant who claims it an order to postpone the trials that the Clerk may have an opportunity to amend his certificate, if he can truthfully do so.
    THE record in this case is missing. The Reporter is unable to give the name of the Judge by whom the case was tried, and the names of the lawyers who appeared in it.
   Spoffokd, J.

The appellee has moved to dismiss this appeal, because the transcript is not certified by the Clerk in legal form.

The appellant objects to the motion being considered, on the ground that it was filed too -late.

The record was filed in this court on the 16th July, and the motion to dismiss on the 18th July.

The 16th July was the first judicial day of the term, and on that day all causes then on file were set down for trial on the next day, without any application from parties to fix them. It does not appear whether the present record was on file at the time the order of court was made, or was filed later in the day.

However this may be, the appellee was entitled to three judicial days in which to move a dismissal of the appeal, unless he waived that right by some action on his part. Filing an answer to the merits, or going to trial on the merits, without tendering a motion to dismiss, would import such a waiver. But the act of the court, ex propria motu, setting down the cause for trial, could not deprive the party of a legal right. See Gwin v. Clark, 12 L. 480.

The motion must then be considered.

The Clerk’s certificate states that the record contains a full, true and complete transcript of all the documents filed, all the proceedings had, and all the evidence adduced on the trial as on file and, of record in Ins office.

Mon constat from this certificate that there were not proceedings had and evidence adduced on the trial which were not on file and of record in the office at the date of the Clerk’s certificate.

Similar certificates have been held bad in numerous instances. Carpenter v. Reynolds, 8 An. 592; 6 L. 166, 303; Vacien's Widow v. Hiers of Payne, 12 L. 538. In the latter case, the court ordered the cause to be postponed, under the Article 898 of the Code of Practice, that the Clerk might have an opportunity to amend his certificate, if he could truthfully do so. The Act of 20th March, 1889, makes it imperative upon us to grant such an indulgence to the appellant, who claims it. The 'privilege is insisted upon in this case.

It is, therefore, ordered, that the trial of the cause be postponed, and that the appellant have leave to perfect the record, if it can be done, until the next term of this court.


author: Spoitoed, J.

text:
    The State v. Moses A. Grice et al.

      A simple appearance is not sufficient to entitle a party to relief from a judgment forfeiting Ms re- m cognizance. There must be an effective appearance — an appearance that finally disposes of the
    If it is ever allowable for the accused to procure relief from such a Judgment, it must at least be si case where he has done all in his power to procure a trial without effect.
    ÁPPEáL from the District- Court of the parish of Morehouse, Bichardson, J.

      Stubbs, District Attorney, for plaintiff. Oaldudl and Todd & Bichard-son, for defendant and appellant.
   Spoitoed, J.

This appeal is taken from a judgment forfeiting a recognizance, or rather from a judgment refusing to set aside the forfeiture at the same term it was decreed.

The ground upon which the appeliants contend the judgment should be set aside is, that the accused appeared at the same term of the court at which the bond was forfeited, and demanded a trial, which was refused by the court, because the jury had been discharged for the term. The argument is, that the discharge of the jury was the act of the court, and that it cannot prejudice him; that he did all in his power to comply with the law, and was deprived of an opportunity of a trial not by his own laches, wherefore the forfeiture should be set aside.

The statute declares that “the judgment so rendered may, at any time during the same term of the court, be set aside upon the appearance, trial and acquittal, or upon the appearance, trial, conviction and punishment of the defen-, dant or party accused.”

A simple appearance is not sufficient, it must be an effective appearance — an appearance that finally disposes of the case. If it is ever allowable for the accused to procure relief from a judgment forfeiting his bond without such an effective appearance, it must, at least be a case where he has done all in his power to procure a trial without effect. But in this case there was a manifest evasion of a trial. During the term the case was postponed time after time at the request of the prisoner, and he was informed that a trial at the term would be insisted on. After the bond was forfeited, the accused was in the town where court was holden, but he made no appearance whilst the jury and District Attorney were in attendance. He availed himself of a short absence of the District Attorney, and of the order of the Judge discharging the jury for the term, to go in and demand a trial, which he knew could not then be awarded him. Persons indicted for crime, who give bonds to appear at court, bind themselves not to depart thence without leave; they are to attend upon the court, not the court upon them. The demand of this party and his surety, that the juries of the country should be kept idle about the court house, after the jury business is finished, until all the other business of the court is completed, to see whether it shall suit their pleasure to submit to a trial, is too extravagant to be seriously considered.

Judgment affirmed.


author: Spopeord, J. Merrick, O. J.

text:
    Elder v. Rogers et als.
    No special order to answer is necessary when the interrogatories are annexed to the petition, and the garnishees are duly cited.
    The Act of 20fch March, 1889, p. 168, assimilates parties cited under its provisions to garnishees, and makes them liable in the same manner. The garnishee must answer within the usual delay, and in case of his refusal or neglect to do so, it shall be considered as a confession of his having property in his hands belonging to the debtor sufficient to satisfy the demand. C. P. 262, 268.
    It is in the sound discretion of the District Judges to rescind their interlocutory orders.
    An order, rendered on an ex parte motion, that interrogatories be taken as confessed, is not a definitive judgment, and no formal motion for a new trial is necessary in order to have It set aside.

      -Li. PPEAL from the District Court of the parish of Jackson. Richardson, J.

      McGuire & Ray, for plaintiffs and appellants. Ludeling, for defendant.
   Spopeord, J.

The plaintiff, having a judg nent against one Rogers, instituted proceedings, and cited Bond and Turner, as garnishees, under the Act of 20th March, 1889, p. 166. There was a judgment, from which the plaintiff has appealed. He complains that the District Judge erroneously set aside an order that the interrogatories propounded to the garnishees be taken pro confessis, allowing the garnishees to file their answers, and rendered a qualified instead of an absolute judgment against them.

The garnishees have moved to dismiss the appeal, because' the original judgment debtor was not made a party.' "We do not perceive that he is interested in the controversy, and he is not a necessary party.

The garnishees have also joined in the appeal, and prayed for an amendment of the judgment in their favor.

It is true that no special order to answer is necessary when the interrogatories are annexed to the petition and the garnishees are duly cited. Parmly v. Brusley, 18 L. 854. The Act of 20th March, 1889, p. 168, assimilates parties cited under its provisions to garnishees, in attachment suits, and makes them liable in the same manner. The garnishee must answer within the usual delay, and if he refuse or neglect to answer interrogatories in the delay of the law, such refusal or neglect shall be considered as a confession of his having property in his hands belonging to the debtor sufficient to satisfy the demand. C. P. 262, 263.

And it has been held that no judgment by default, or even rule to show cause, is necessary to precede the final judgment, of which such neglect or refusal imports the confession. Sturgess v. Kendall, 2 An. 566; Landry v. Dickson, 7 An. 241.

But in this case there was no final judgment rendered before the garnishees tendered their answers. There was merely an interlocutory order that the interrogatories be taken as confessed. This order was rendered on an ex parte motion on the morning of the second day of the term. On the same day the garnishees tendered a motion to rescind the order to take the interrogatories pro confessis, accompanied by their affidavits of surprise, and explanatory of the circumstances which led to the apparent neglect. The next morning the Judge permitted the motion and affidavits to be filed, rescinded his previous order, and allowed the garnishees to put in their answers to the plaintiff’s interrogatories ; the plaintiff took his bill of exceptions.

It is in the sound discretion of the District Judges to rescind their interlocutory orders. The order in this case was not a definitive judgment, as contended by the appellant, and therefore no formal motion for a new trial was necessary.

Upon an examination of the affidavits, we do not find that the Judge abused his discretion in rescinding the order. A strong equitable case for relief was made out, and the course of practice in the District Court might have justified the apparent delay of the defendants. They seem to have answered before the case was reached in its order upon the docket as it was set for trial.

We do not think the appellees can justly complain of the judgment. It seems to have been rendered in pursuance of the statutes of 20th March, 1889, § 13, p. 166, and the reservation therein will enable them to exercise all the equitable rights they now claim when the proceeds come to be distributed.

Judgment affirmed.

Merrick, O. J.

Without expressing an opinion upon the question, whether the debtor has or has not an interest in the amount of the judgment against the garnishee, I concur in the affirmance of the judgment on the merits for the reasons assigned.


author: Spoeeord, J.

text:
    The State v. W. G. Bunger.
    Where a person states, when examined on his voir dire, that he has formed and expressed an opinion relating to the guilt or innocence of the prisoner, and that it might bias him in forming an opinion after having heard the testimony — that direct evidence only would change his opinion —that circumstantial evidence would not — he should be rejected as incompetent to act as a juror, . although he should further state that the opinion he has formed is not so fixed that it could not be changed by the evidence which might be adduced ón the trial — that he thought he could do justice between the State and the prisoner — and that the opinion he had formed would not influence his mind as a juror. As to the appointment of triors, when there is a challenge to a juror, although such a request is unusual in this State, it should be allowed on the request of the prisoner.
    The power to grant a change of venue is confided to the District Courts exclusively, and the exercise of it is not subject to revision by the Supreme Court.
    APPEAL from the District Court of the parish of Franklin, Barry, J.

      Stubbs, District Attorney, for the State. Grwwford, for defendant and appellant
   Spoeeord, J.

The prisoner was convicted of murder, and sentenced to death. Upon appeal to this court, he complains that the District Judge erred, to his prejudice, in refusing to set aside certain jurors challenged by him for cause.

Amongst others, one Jesse M. Randolph was called as a juror, who, when examined upon his voir dire, answered as follows:

11 Interrogatory. Have you formed and expressed an opinion relating to the guilt or innocence of the accused?”

Answer. I have formed and expressed an opinion.”

“Int. Would what you have heard, and the opinion you have expressed, bias or prejudice your opinion as a juror, after hearing the evidence?”

“Ans. I think it might bias my opinion. I don’t think it would prejudice me — not intentionally.”

“Int. Could you decide this case from the evidence that may be given on the trial, without being influenced by what you have heard ?”

Ans. If the evidence should be positive and point-blank against what I ¡have heard, I might change my opinion, but it would have to be positive and point-blank.”

Int. Would circumstantial evidence, different from what you have heard, change your opinion ?”

“Ana, No. It would have to be positive. If positive evidence went against a part of what I have heard, it would change ray mind so far as it went, and if it contradicted the whole Gf what I have heard, it would change my opinion about the case.”

The bill of exceptions further recites that, in answer to questions propounded by the District Attorney, the juror said: “That the opinion he has formed is from what he has heard of she case; that the opinion he has formed, and what he has heard of the case, would not prejudice his mind as a juror; it might bias his mind unintentionally and imperceptibly on his part; believes that, after hearing the evidence, he could give the accused a fair and impartial trial, without his mind being influenced by what he heard, or the opinion he has expressed.”

And in answer to the court, the juror says: “ That he has formed and expressed an opinion in relation to the guilt or innocence of the accused from what he has heard; has heard a good deal said about the ease; has heard the matter spoken of before the witnesses, but does not recollect to have heard the witnesses themselves speak of it; states that the opinion he has formed is not so fixed that it could not be changed by the evidence which may be adduced on the trial, should it be different from what he has heard; thinks he could do justice between the State and the accused; believes the opinion he has formed would not influence his mind as a juror.”

Thereupon the court overruled the principal challenge of the prisoner to this juror, and decided that he was competent; to which ruling the prisoner excepted.

It is manifest that the Judge erred. The process of interrogation by which the juror was gradually led to contradict his first answers relative to the bias upon his mind, is not disclosed; but the questions put by the prisoner’s counsel, which we have already quoted from the bill of exceptions, were fair, clear and pertinent.- The answers were equally explicit, admitting a deliberately formed and expressed opinion on the part of the juror; an opinion which, it appears, was not formed and expressed upon vague rumor, but from tearing a great deal said about the case, and hearing it talked of in presence of the witnesses; an opinion so decided and absolute that it could not be changed by any circumstantial evidence whatever; an opinion that could be affected only by positive and point-blank testimony, contradicting the unsworn statements upon which it liad been formed; an opinion which the juror felt to be so strong that he twice stated it might bias his mind.

We find no authority in the books, and have been referred to none by counsel for the State, which supports the ruling of the District Judge relative to the competency of the juror upon this subject. See Wharton’s Crim. Law, p. 843 ; State v. Brown, 4 An. 505.

The verdict must, therefore, be set aside, and a new trial trial awarded.

We are of the opinion that a change of venue is a matter confided to the District Courts exclusively, and is not subject to revision by this court.

As to the appointment of triors, when there is a challenge to the juror, although such a request is unusual in this State, we think it should be allowed upon the request of the prisoner. It was the English practice, and our statute of 1805 adopted the common law of England as a guide in criminal procedure.

Such seems also to be the practice in other States of the Union. 1 Chit. Cr. Law, p. 549 ; Wharton’s Cr. Law, p. 861.

In remanding the cause, we feel constrained to remark that the transcript betokens a degree of negligence which it is painful to see exhibited in so serious a matter.

There is no record of the empannelling of a grand jury, nor does it appear who composed the grand jury which preferred the bill of indictment. According to a bill of exceptions, the list of jurors served upon the prisoner seems to have included the grand jurors, who could not be permitted to pass upon his trial. And the jurors who did .pass upon the trial, at intervals during its progress, had free admission to a grog-shop, where other persons were congregated.

Too great caution cannot be observed by the ministers of justice in conducting a capital trial according to settled rules of law and practice. It was said by the District Attorney that this is a case of peculiar attrocity. Of that we can form no opinion, for the law does not permit the facts of a criminal case to come under our cognizance, and when a party accused has not been convicted according to law, we are bound to presume his innocence. At the same time, we may say that when the accused is really guilty of a heinous crime, those officers who, through heedlessness, suffer errors to creep into the proceedings which enable him to escape, incur a momentous responsibility to the public.

It is ordered, that the judgment of the District Court be avoided and reversed, the verdict of the jury set aside, and the cause remanded for a new t rial according to law.


author: Lea, J.

text:
    Isabella A. Fluker v. Bobo, Sheriff, et al.—J. C. Cooper v. Davis et al.
    The Statute of 1855, relative to bonds of State and parish officers, so far as it relates to the enforcement of the rights created by the registry of the bond is purely remedial, and in no manner affects the previously existing rights, the enforcement of which it was intended to facilitate. It was intended to give to the registry of the bond, as to property sold after its registry, the same effect as that conferred on acts of sale by the clause of non-alienation.
    The mortgage created by the act was intended to secure the bond. There is nothing in the legislation on the subject which justifies the inference that the bond was intended exclusively for the benefit of the State. It enured to the benefit of any person who had a claim against the Sheriff for malfeasance in office. And By the Court: the provisions of the Statute are applicable to “ all public officers” who, under existing or prospective legislation, were “ required to give a bond.” The Act of 1855 did not repeal the Acts of 1847 and 1848, so far as the provisions of those Acts were reenacted in the revisory legislation of 1855.
    Sureties have an equitable interest in the payment of the principal demand, and a judgment creditor has a right to permitan execution to issue at their instance.
    APPEAL from the District Court of the parish of Morehouse, Richardson J.

      Todd & Brigham, for Mrs. Fluker. Baker <& Harris, for Cooper. McGuire & Ray, for defendant.
   Lea, J.

In these eases, the plaintiffs have obtained injunction against the execution of a judgment in favor of Benjamin Davis against Thomas N. Bar-ham, so far as the execution of said judgment is sought to be enforced by the seizure and sale, under execution, of property purchased by them of Barham.

Tbe state of facts out of which this litigation arises is substantially as follows : Barham, who was elected Sheriff of the parish of Morehouse in November, 1849, gave his bond, as Sheriff, dated November 19th, 1849. At the. date of the execution and approval of this bond, Barham was tbe owner of the property the seizure of which is the subject matter of contestation in these cases. On the 5th of December, 1851, Barham sold a part of this land to James C. Cooper, and on tbe 6th December, 1851, he sold the remaining portion to B. F. Miller, who subsequently transferred it to D. J. Fluker, whose representative is one of the plaintiffs herein. Benjamin Davis, .the defendant in these injunction suits obtained judgment against Barham and hie sureties, upon the official bond above referred to, for the sum of $3236 23, with interest thereon at the rate of 8 per cent, per annum, from the 1st day of October, 1843; Davis’ right of action being based upon malfeasance in office, by Barham, which resulted in injury to him. Upon this judgment execution issued against Thomas N. Barham, in virtue of which the property which had been sold, as before stated, to Fluker and Cooper was seized.

The plaintiffs urge in support of the injunctions sued o-ut by them the following grounds:

1st. That even if the mortgage claimed really existed upon tbe lands seized, they could not be proceeded against by a direct seizure, but that the plaintiff in execution should have resorted to an hypothecary action; and further, that the writ being directed solely against the property of Barham, the Sheriff was without authority to seize the property of the plaintiffs.

2d. That no such mortgage existed by virtue of any law of the State, and ¡hat tbe registry of a Sheriff’s bond created a mortgage only in favor of the State and not in favor of private individuals.

3d. That the bond of Barham was a nullity because not executed according to iaw.

4th. That the lands In question were not the subject of a mortgage at the date of the registry of the bond, until the 29th June, 1854, as up to that period they were a part of the public domain of the United States, and before that period Barham had parted with whatever rights he might llave asserted to the lands.

5th. That the mortgage expired with Barham’s term of office.

6th. That the seizure was made at the instance, and by the direction of the sureties of.Barham, and that by the terms of the judgment they were subrogated to the rights of the plaintiff therein, upon the payment of the judgment or a part of the same, which they have never done.

7th. That the seizure was for the full amount of the judgment which, including interest, exceeded $6000; whereas, the mortgage could have effect only for the amount of the bond, viz : $5000.

Lastly, it is urged that should the injunction be dissolved, the execution should be credited with $2500, the value of two slaves seized in execution of the original judgment against Hall, and the subject matters of an hypothecary action instituted by Davis against W. T. Hall.

On the first point we deem it sufficient to remark, that the mortgage is created by the registry of the bond, in accordance with the provisions of the Act of 1847, relative to the bonds of tax collectors and public officers. By the terms of this Act (section 4th), it was provided that when the Treasurer or Auditor of the State shall issue execution against the Sheriff, the officer under it may seize and sell according to law any land or slaves which may have belonged to the principal obligor at the date of the rigistry of the bond without regard to any subsequent transfer or change of title, and in whatever hands the same may be found. By the Act of 1855, relative to bonds of State and public officers, this summary remedy was extended to all eases in whieh execution shall issue. It is urged that this Act, having been passed since the registry of the bond, has no application to a bond enacted before its passage. The Statute is, in our opinion, so far as it relates to the enforcement of the rights created by the registry of the bond, purely remedial, and in no manner affects the previously existing right, the enforcement of which it was intended to facilitate. It was intended to give to the registry of the bond (as to property sold after its registry) the same effect as that conferred in acts of sale by the clause of non-alienation.

2d. The mortgage created by the act was intended to secure the bond. There is nothing in the legislation on the subject whieh justifies the inference that the bond was intended exclusively for the benefit of the State: by its provisions it is in terms applicable to “all public officers” who, under existing or prospective legislation, were “ required to give bond.” The Act of 1855 did not repeal the Acts of 1817 and 1848, so far as the provisions of those Acts were reenacted in the revisory legislation of 1855. See State on the relation of Holmes v. Wiltz, lately determined.

3d. The formalities required in the execution of the Sheriff’s bond are directory, and were intended to furnish undoubted and accessible evidence of its execution; the ommission of such formalities does not destroy the validity of the bond nor any of the rights of parties dependant thereon.

4th. The plaintiffs cannot repudiate their own title as derived from Barham. If they have acquired nothing under the transfers from Barham, the land seized is still his property, and they are without interest in opposing the seizure. It appears that the relinquishment, from Congress, was made in favor of Barham.

The 5th ground is not seriously urged. If valid, it would render useless the most important provisions of the law.

6th. The plaintiff had a right to permit the execution to issue at the instance of the sureties. If the plaintiff, in execution, authorizes the proceeding, the defendants cannot complain of a resort to executory proceedings for the purpose of enforcing payment. The sureties have an equitable interest in the payment of the principal demand.

7th. The judgment appealed from has reduced the amount demandable upon the writ to that expressed on the face of the bond. The appellee has acquiesced in this reduction, and the appellant is without interest in disturbing it.

As respects the credits claimed, we find no evidence that any funds have been realized or could have been realized by the seizures of the two slaves referred to in the supplemental petition.

The defendants have ample legal remedies to secure the recognition of any actual payments made, or to be made, upon the principal debt sought to be enforced.

We find no error in the decree of the District Judge, subjecting the property last alienated by the judgment debtor to the satisfaction of the writ, before proceeding to the seizure and sale of that transferred by previous alienations. It is correctly urged, on behalf of Oooper, that the effect of the laws of 1855 and 1847 was merely to modify the general law so far as to dispense a party holding a general mortgage resulting from the registry of a Sheriff’s bond from the necessity of instituting an hypothecary action. It is contended that Art. 715 of the Code of Practice does not apply in this case, we think it does ; but in the absence of any statutory provision regulating the subject, such a mode of proceeding would result necessarily from the relations of the parties, and the equitable rights incident thereto. See Patin v. Pregean, 7th La., 301.

Judgment affirmed.


text:
    G. McElroy v. H. Dean.—Heirs of Hemken, Intervenors.
    Plaintiff sued defendant for rent. A third party, claiming to be the owner of the land, never having had possession, intervened, and claimed the rent and privilege on the crop, ffeld, that the privity of contract and lessor’s piivilege existed alone between the lessor and lessee. The inter-venors’ remedy was by petitory or possessory action, to be brought against the lessor when the tenant disclosed his name. 0. P. 43.
    The possession of lessee is that of his lessor. 0. 0. 8404.
    APPEAL from the District Court of the parish of Morehouse, Richardson, 3.

      McGuire & Ray, for plaintiff. Ludeling, for appellant.
   Merrick, C. J.

This suit was instituted to recover of the defendants $300, the amount of rent due upon a lease, and interest, a writ of sequestration having issued, and the lessor’s privilege being claimed upon the crop of cotton and corn, and the furniture. The heirs of Seniken intervened in the suit, setting up title, and claiming to be the owners of the land, and praying for $350, and interest, and also for a privilege on the cotton. There was judgment in favor of the plaintiffs against the defendant, and the intervention was dismissed.

There was no error in the judgment. The possession of the lessee is that of the lessor. C. 0. 3404. The privity of contract and lessor’s privilege existed alone between the lessor and lessee. A third party, claiming to be owner of the land, never having had possession, cannot claim as lessor. His remedy is by a petititory or possessory action, to be brought against the lessor when his name is disclosed by the tenant. C. P. 43. It is evident, therefore, that the intervenor cannot claim the same thing as the plaintiff, nor something connected with it, for his demand is that of the property in, or possession of the land, whilst the demand of the plaintiff arises solely from the contract of letting and hiring. The intervenor has no legal interest in the success of either party, and as the lease extended beyond the period of the intervenors’ title, the court properly dismissed the intervention, notwithstanding the answer to the merits. C. P. 389, 390.

Judgment affirmed.


text:
    John Temple v. Marshall & James and Sheriff.
    An appeal was filed on the 11th July, 1855, the court being then in session and the cause was continued on the 20th July, i855. A motion made by the appellees, on the 16th July, 1856, to dismiss the appeal for irregularities in the transcript, namely, the want of an order of appeal, comes too late. If the Sheriff has se. zed more property than could be considered reasonably necessary to satisfy the judgment, the proper course is not an injunction but an application to the District Judge to reduce the seizure. O P., 652.
    Where it appears that plaintiff, in injunction, was not only surety on a twelvemonths’ bond, but co-debtor, in aoiido, with the principal in the judgment on which the execution had issued, and that the property had been sold, for which the twelve mouths’ bond was given, and also thg-t the bond was past due and unpaid — -the defendants had the right to issue execution against him in his capacity of surety. 0. P., 719, 720.
    APPEAL from the District Court of the parish of Morehouse, Richardson, 3.

      McGuire & Ray, for plaintiffs and appellants. Hunter, for defendant.
   Buchanan, J.

This appeal was filed in this court on the 11th July, 1855, the court being then in session. The cause was continued on the 20th July, 1855. On the 16th July, 1856, a motion was made by appellees to dismiss the appeal for irregularities in the transcript, namely: the want of an order of appeal. This motion comes too late. See Murray v. Bacon, 7th N. S. 271; 2 An., 138.

The next day after the filing of the motion to dismiss, the appellant applied, by petition, to the court for a writ of mandamus to the District Judge, commanding him to amend the minutes of a preceding term of his court, nunc pro tunc, so as to make it appear that an appeal had been in fact ordered.

We entertain great doubts about the propriety of granting a mandamus for the purpose demanded, but are relieved of the necessity of a decision upon this point by the conclusion to which we have come, as already expressed, upon the inadmissibility of the motion to dismiss.

We will, therefore, consider this case upon its merits, and as if the transcript were perfectly regular.

The plaintiff and appellant prayed for and obtained an injunction against a fi. fa. upon a twelve months’ bond, in which he was surety, upon several grounds.

On motion of defendants, the District Court dissolved the injunction upon the face of the petition, with damages, and plaintiff has appealed.

There is no error in the judgment of the court below. If the Sheriff seized more property than could be reasonably considered necessary to satisfy the judgment, the proper course was not an injunction, but an application to the District Judge to reduce the seizure. C. P., 652, 653.

Prom the petition, it appears that' plaintiff, in injunction, was not only surety upon a twelve months’ bond, but co-debtor, in solido, with the principal, in the judgment upon which execution had issued, and the property been sold, for which said twelve months’ bond was given. It also appears, from the petition, that the twelve months’ bond was past due and unpaid.

In plaintiff’s capacity of surety on this bond, the defendants had the right to issue execution against him. C. P., 719, 720.

And although the petition alleges that the principal in the twelve months’ bond had enjoined the execution upon it issued against himself, upon grounds touching the validity, legality and amount of the judgment and bond; yet the plaintiff does not allege those objections to be true, nor does he even state what they are, save in the general terms above copied.

As to the plaintiff’s co-debtor having bound himself towards plaintiff to pay all the debts of the late partnership of Temple & Knox, this is manifestly no ground for enjoining these defendants in executing their judgment against plaintiff.

The allegation of the petition that thejti. fa. issued prematurely, is inconistent with other allegations of the petition.

The want of a mortgage recorded against Knox for the price of property bought by him at Sheriff’s sale, and constituting the consideration of the twelve months’ bond, does not discharge the surety on that bond. Coons v. Graham, 12th Robinson, 206.

It is, therefore, adjudged and decreed, that the judgment of the District Court be affirmed with costs.


author: Spgpford, J.

text:
    Sewell T. Taylor v. James Huey 3d et al.
    The defendant purchased the land in controversy, at a public sale provoked by him to enforce a mortgage, in his favor, resting on it. The plaintiff, claiming the land by a deed from the mortgagor, which was executed subsequent to the mortgage, but anterior to the public sale to defendant, yet not registered until afterwards, instituted a petitory action and sought to rescind the sale to defendant for various alleged defects and vices.

      Held: That it is doubtful, under the facis of the case, whether plaintiff can inquire into the regularity orgood faith of the proceedings under which defendant acquired title The mortgagor was the proper party to attack the order of seizure and sale by a direct action, and that conceding plaintiff could impeach defendants title, he had not laid a foundation for doing so in his petition, having alledged no tender to defendant of the mortgage debt which burdened the land, and which was only discharged by the sale, which he sought to treat as a nullity.
    APPEAL from the District Court of the parish of Jackson, Bichardson, J.

      Garrett, Ludeling and Thompson, for plaintiff and appellant. McGuire & Bay, for defendants.
   Spgpford, J.

Article 595 of the Code of Practice provides, that “ if the appellant wishes to withdraw his appeal before he hus cited the appellee, he may be allowed to do so, on motion to the lower court; and in such case, he may renew his appeal within the time herein above allowed.”

It is admitted, that the appellee was not cited under the first order of appeal. And as the statement of facts is silent upon that point, we will presume that the appellant obtained leave from the lower court to withdraw his first appeal. In such case, he had a right to renew his appeal, and the motion to dismiss is overruled.

Upon the merits, we find this to be a petitory action for a tract of land, in which the plaintiff, anticipating the probable defence, attacks the title of the defendants, and seeks to rescind the same for various alleged defects and vices. The defendant Huey, pleaded a general denial.

Both parties claim under one Fountain; the plaintiff by a deed passed in New Orleans, on the 29th of August, 1846, but not recorded in the parish of Jackson until the 3d of May, 1847, and the defendant Huey, under a Sheriff’s deed recorded in Jackson, on the 18th of February, 1847, when it seems he was without any notice of the plaintiff’s title. The basis of the Sheriff’s deed to Huey was an adjudication made on the 2d of January, 1847, under an order of seizure and sale issued upon an act of mortgage which had been executed by Fountain to Huey, on the 9th of December, 1845, and duly recorded on the 2d of November, 1846. And the plaintiff alleges that the land when seized was in the possession of Fountain. The seizure took place on the 10th November, 1846.

Huey, then, has the first recorded title, and without notice of any conveyance to Taylor.. He has a title, moreover, derived from the party in possession, under a sale made to satisfy a mortgage in his own favor, executed by the owner Fountain, before he had made any convej'ance to any person.

It is doubtful, under the facts of this case, whether Taylor can inquire into the regularity or good faith of the proceeding under which Huey acquired his title. Fountain was the proper party to attack the order of seizure and sale by a direct action.

But conceding that Taylor could be heard to impeach the title of Huey thus acquired, he has not laid a foundation for doing so, by the allegations of his petition. He has made no tender to the defendant of the mortgage debt which burdened the land, and was only discharged by the sale he seeks to treat as a nullity.

It is unnecessary to notice other points in the case.

Judgment affirmed.


text:
    M. A. Copley v. John Lawhead & Co.
    A partnership formed for the purpose of running a steam-sawmill, and making and selling lumber, and of carrying on the lumber business generallyis a commercial partnership. O. C. 2796.
    APPEAL from the District Court of the parish of Morehouse, Richardson, J.

      Morrison, for plaintiff. Parsons, for defendants and appellants, Newton & Hull, for Sharp & Shelton.

   Spoffokd, J.

The defendáis have appealed from a judgment against them insólido, upon a promissory note signed in their partnership name.

The only question is, was the partnership a commercial one? The articles state that the partners associate themselves “for the purpose of running the steam-sawmill at Point Pleasant, and of making and selling lumber, and of carrying on the lumber business generally.” The lumber business generally, includes the buying of timber as well as the selling of lumber. « Commercial partnerships are such as are formed (1) for the purchase of any personal property, and the sale thereof, either in the same state or changed by manufacture.” C. C., 2796. See also Succession of Hamblin, 3 Rob, 130; Hubbell v. Read, 14 L. 244; Nachtub v. Praque, 6 An., 759.

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


author: Merrick, 0. J.

text:
    E. J. Jones and Rebecca Jones v. J. Moore.
    Plaintiff brought suit upon a decree rendered by a Chancery Court in Arkansas, and upon a delivery bond executed by defendants to entitle them to retain possession of certain property seized under an execution issued upon the decree. He alleged, in his petition, “ that said bond having been forfeited, acquired the force and effect of a judgment according to the laws of Arkansas; that the original judgment was satisfied and novated in this, that the bond was taken for the delivery of property as aforesaid, and forfeited as aforesaid, and therefore the said bond became a new judgment, having the effect as aforesaid ; that both said judgments, the original and statutory judgments, have the effects of and are joint and several judgments, according to the laws of Arkansas.” The defendant alleged, in his answer, that the bond set up by plaintiff was false and forged as to his signature.

      JZeld: that the allegation of novation, with the qualification annexed, is not so absolute as to prevent ihc plaintiff from recovering on the original decree in chancery. If, therefore, the defendant did not execute the bond the original judgment was not extinguished: if he did execute the bond the plaintiff is eutitled to recover on the forfeited bond.
    PPEAL from the District Court of the parish of Union, Richardson, J.

      Regenburg & Essick, for plaintiff:
    But this case must be decided by the law applicable to it. whether that law is harsh or otherwise. What then is the law applicable to the issues presented by the answer? The. sheriff states on his return that James Moore signed the bond. It is also slated at the end of the bond, that it was signed, sealed and delivered in the presence of the Sheriff. Execution issued upon the bond against all the parties thereto.
    The proceedings «re, therefore, all regular and without any defects whatever. Now the first position we take is, that the Sheriff’s return cannot be contradicted but must be conclusive against the defendant^ and if the defendant did not sign the bond, his remedy is against the Sheriff for a false return. This in the doctrine of the common law, and is well established. The court will judiciously notice the fact, that the common law is the basis of the jurisprudence of the State of Arkansas ; Copley v. Sandford, 2 A. 335. King v. Sejvur, 4 A. 129.
    Greenlonf says, that “ The return of a Sheriff, also which is conclusively presumed to he true, between third persons, is taken, prima facie, as true even in his own favor; and the burden of proving it false, in an action against him for a false return, is devolved on the plaintiff, notwithstanding it is a negative allegation. In line, it is presumed, until the contrary is proven, that every man obeys the mandates of the law, and performs all his official and social duties; Green leaf on evidence, section 40. See also Clark v. Lyman, 10 Pick., 47. Boynforne v. Willard, 10 Pick., 1(39.
    “As between the parties to the process, or their privies, the return is usually conclusive, and not liable to collateral impeachment. This is a well established general rule, one necessary to secure the rights of the parties, and give validity and effect to the acts of ministerial officers, leaving the person* injured'to their redress, by an action for a false return 4 Philips on evidence, 1087, and cases there cited. Bee also pages 1088, 1089 and 1090 of same book. We are not, however, left to de. ide solely by the principles of the common Jaw. what effect the precedings in Arkansas would have in that State ; but the i|ue:4ion has been decided by the highest tribunal of that State, and as the court- of that State has fully discussed the nature and effect of the delivery bond and the forfeiture thereof; and as it. may be inconvenient or impossible for your honors to examine the reports of the Supreme Court of Arkansas, we will make a few extracts from the most important decisions of that court, which w ill clearly show the nature of theimml and the forfeiture thereof; and also of the new or statutory judgment which arises by operation of law from the forfeiture of the bond.
    In the case of RuddelL v. Magruder, 6 Eng. Rep. 583, the court, said “ When the bond has been forfeited, it has, by operation of law. the force and effect of a judgment on which execution may issue, and the Sheriff’s return to that effect is conclusive record evidence of the fact of such forfeiture, and cannot be contradicted by parol evidence even at the return term. Thus the non-delivery of the property transforms the bond, by operation of law, into a statutory judgment, on which statutory judgment execution may issue against all the obligors in the bond. The execution does not issue upon the bond, but upon the statutory judgment; which, by operation of law, springs into being upon the forfeiture, and then exists in contemplation of law.
    Also in the case of Biscoe et al.,v. Sandefer el al., decided at the January term, 1854, and reported in 14 Ark. Rep., 584, 585, the eourt said, “ This new judgment is considered as possessing the qualities, force, effect and dignity of a judgment obtained in the ordinary mode of proceeding according to the course of the common law, and in a eourt of competent jurisdiction scire facias may be issued to have execution upon it, (3 How. Miss., R.) and in another §tate it will be regarded as a judicial proceeding within the meaning of the Act of Congress of 1780. As a judicial proceeding it may challange full faith and credit, and can no more be impeached collaterally than any other judgment. The precise question came under review in the court of appeals of Kentucky, in the case of Kelly v. Louk, 7 B. Monroe, 223, and was fully discussed and ably considered. It was an action of debt brought on one of these statutory judgments from the State of Mississippi, and the court held that while the statutory judgment remained in force, unreversed or annulled, it was record evidence of right in the plaintiff, and could only be impeaehed by evidence of as high a grade as itself; and further, that nul tiel record was the only proper admissuble defence to it in the court. In Kentucky a delivery bond is for the whole debt, and on forfeiture has the force and effect of a judgment on which execution issues as of course. 1 Morehead & Brown’s Laws, Ky., 641. Joyce v. Farquar, 1. A. K. Marsh, 20, 21; Chilty v. Gleim, 3 Men., 425. And so as in Virginia a replevy bond is held to be an extinguishment of the previous judgment, and of all liens created by execution, because the bond when made has the force and effect of a judgment, and execution issues against all the obligors for the whole debt.
    The present law came before this court in Reardon, ex parte, 4 Eng. 450, and was pronounced constitutional; subsequently in the case of Rudclellv. Magruder, 8 Eng. 579, that case was confirmed, and it was held, that the nondelivery of the property transformed the bond, by operation oí law, into a statutory judgment, on which execution might issue against all the obligors for the debt, interest and eost remaining unpaid; that the forfeiture imparted to the bond the force and effect of a judgment; that .the Sheriff’s return of the forfeiture, was conclusive evidence of the fact, and could not bo controverted by parol proof. Substantially the doctrine of the cases in Mississippi is adopted by this, and undoubted when the law is the same, the decisions of the courts should correspond, as far as justice, comity and reason will permit, and we think it would be impossible to establish any other doctrine, without leaving the debts exposed to grevious evils, without seriously impairing the harmony of the law, and without departing from the manifest intention of the Legislature.”
    See also Miner v. Lanmshne, 4 How. Miss. 350; Saunders v. McDowell, ibid; Wagner v. Baker, ibid; U. 8. Bank v. Patton, 5 How. Miss. Rep. 200; McNutt v. Wilcox, 3 llow. Miss. Rep. 419; Annis v. Smith, 16 Peters’ Rep. 304; Brown v. Clark, 4 How. U. S. Rep.
    In the next place, admitting that the Sheriff’s return can be impeaehed, then the onusprobaudi is on defendant, because:'
    1st. A sworn officer is presumed to have done his duty until the contrary be shown. Gentile, admr. v. Paley, 3 An. 148; seo also Hennen’s Digest, p. 479, sec. 44, and references.
    2d. Judicial proceedings are presumed to be regular until the contrary is proved. HMell v. Olannon, 13 L. R. 495; Despan et al. v. Swinuler, 3 E S. 705.
    3d. The effect of a legal presumption is to relieve the party in whose favor "ft is from the necessity of making any proof. Succession of Tilgham, 7 Rob 393.
    4th. The plea of the defendant goes to charge the officer with a culpable neglect of duty, and it must be proved by him, although it involved a negative. 1 Grcenleaf on Evidence, sec. 80; Phillips on Evidence, p. 195; Morgans. Mitchell, 3 N. S. 576.

      5th. If the defendant denies his identity, he must prove that he is not the man. The proof furnished by the record is prima facie sufficient against him. Whiting v. Ivy, 3 An. 649.

      Baker & Harris, for defendants and appellants:
    The defendant will not contest the position assumed by the plaintiff in his petition, “ that the original judgment (of Elijah J. Jones and Rebecca, his wife, y. George W. Rutherford and James Moore, Administrators of Joel Wodel) was satisfied and novated by the taking of the delivery bond, according to the laws of the State of Arkansas.” The court below considered that this action was based on the forfeited delivery bond.
    Let us then proceed to see what the proof was as to the signature to the bond. As before stated, all the proof offered is comprised in the transcript from the court in Arkansas. The action was on the bond. The defence was that the signature of the defendant was false and forged. The original bond was not offered. No effort was made to prove by witnesses that the defendant signed the bond. The whole reliance was the Sheriff’s return on the execution and his approval of the bond. We submit that when the defendant denies his signature, on oath, it is incumbent on the plaintiff to prove it. This they failed, nay, did not attempt to do. -They were not entitled to a judgment.
    But tile plaintiffs meet all objections by asserting that the return of the Sheriff on the bond is, by the laws of Arkansas, a judgment, and interpose the Constitutional provision “that full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State.” Art. 4, sec. 1. And the latter clause of the Act of Congress of 26th May, 1790': “And the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them in any court within the United States as they have by law or usage in the courts of the State from whence the said records are or shall be taken.”
    The general doctrine in relation to foreign judgments seems now to be, that they are prima facie evidence, but that they are impeachable. That when a forcing judgment is made the basis of an action, the court will inquire whether the foreign tribunal bad jurisdiction of the subject matter of the parties, and whether the defendant had actual or constructive notice. Beyond this the court will not go, but hold the forcing judgment binding, subject to be avoided if founded in fraud or pronounced by a court ndt having competent jurisdiction over the cause. .
    Story’s Oommentataries; Conflict of Laws, pp. 499 to 615 ; 1 Kent, 261, and notes ; United States Digest, vol. 5 ; Supplement, 230; 13 Johnson, 192, 205 ; 10 L. 18, 220, 381. We conclude, then, if in looking into the transcript from Arkansas, your honors should find that the court had jurisdiction of the subject matter, and that the defendant had actual or constructive notice, that the judgment of the court a quo is correct, and sustainable, both by authority of the general doctrine relative to foreign judgments, by the Constitution and Act of Congress, as well as our own Code of Practice, Arts. 752, 753.
    But before proceeding to inspect this Arkansas record, let us inquire what is such a judgment as, by the general doctrine, is to be held prima facie evidence, and what, in contemplation of the Constitution and Act of Congress, are judicial proceedings. Judicial proceedings can only be carried on where there is a Judge — one clothed with judicial power. To illustrate: the judicial power of the United States shall be vested in one Supreme Court and such inferior courts as the Congress may from time to time ordain and establish. Art. 3, sec. 1. By the Constitutions of the several States, the judicial power is vested in such courts as are enumerated in each respectively. By the Constitution of the State of Arkansas, Art. 6, sec. 1: “The judicial power of this State shall be vested in one Supreme Court, in Circuit Courts, in County Courts, and in Justices of the Peace. The General Assembly may also vest such jurisdiction's may be deemed necessary in corporation courts, and when they deem it expedient, may establish Courts of Chancery.” Digest of the Statutes, p. 59. To constitute a valid judgment there must be a Judge, a cause, a plaintiff and defendant.
    Now, what does the plaintiff exhibit? A claim, as a judgment; a judicial proceeding. The execution issued on the original judgment of Jones and wife v. Rutherford and Moore, Administrators of Wodel. The return of the Sheriff reciting the seizure of the negroes Daniel and Bill, the property of
      Rutherford,-, the giving by Rutherford the delivery bond; the advertisement of the slaves, the return of the execution before the sale day, and that this execution was not satisfied. The venditioni exponas directing- the sale of the negroes previously seized; the Sheriff’s return thereon; the delivery bond and fi. fa. and Sheriff’s return thereon. Nowhere in the record is there to be found any judgment of any court'against the parties to this delivery bond, it is not pretended that there ever was a judgment asked for and obtained thereon; but the plaintiffs contend, that by virtue of the statute of the State of Arkansas, p. 49, sec. 46, the Sheriff’s return is a judgment, is a judicial proceeding which, by the Constitution and Act of Congress, is entitled to full faith and credit. These delivery bonds are of modern origin, and certainly the return made by the Sheriff on one of them, never entered into the contemplation of the framers of the Constitution or of Congress, when adopting the Art. 4, sec. 1, or enacting the Act of 26th May, 1790. The acts of officers are not judicial proceedings. It is evident that these acts are not considered in this light in Arkansas. The law of Arkansas gives to the party in favor of whom a delivery bond has been executed, various remedies. By sec. 38, a lien.was effected on the property seized; by sec. 39, the right was given to seize the same property or any other of the defendant’s subject to seizure, and sell it after five days notice ; by sec. 40, if the condition of the bond be broken the defendant and his security shall be deemed to have notice of the facts, and the plaintiff, without further notice, may, on the return day of the execution or any subsequent day of the time, move the court for judgment on the bond against the defendant and his securities, or any of them, or the plaintiff may, at his option, bring an ordinary suit on the bond. We concede that a judgment thus rendered, would be a judicial proceeding. By section 41, it is further provided, that if no judgment had been entered on the bond, the plaintiff might have judgment after twenty days notice, without any formal pleading. Digest of the Statutes of Arkansas, p. 500, by English.
    Now, suppose that instead of adopting any of the modes above provided, the plaintiff chooses, under sections 46 and 47, to issue execution against the parties to the bond, and that one of the parties named in the bond, his property being seized, should either enjoin or sue out a writ eoram nolis, and allege that his signature was forged, on the heaving, what would be the course of procedure? We are to presume that the rule of evidence is universal, no one is held to the proof of the negative, it would be incumbent on the defendant in such case to prove the signature to the bond. With us the rule is fixed, that a man is bound to admit or deny his signature, having denied ikon oath, and it being proved, he is barred every other defence. O. P. 324, 325, 326. It is just as it would be, if a delivery bond had been taken under our Act of 1842, p. 210, which provides that the defendant in execution, whose property had been seized, shall have the right to retain possession until the sale day, on condition that he execute his bond in solido in favor of the plaintiff, with godfi and sufficient sureties for the delivery of the property at the time of the sale, and upon a forfeiture of said bond, made to appear by the certificate of the officer, the bond shall have the effect of a twelve months’ bond, and execution shall issue against all the parties to the bond.
    If such execution was to issue, and property of one whose name appeared to the bond should be seized, and he were to enjoin, alleging that his signature to the bond was forged, would the court hesitate to perpetuate the injunction if, on trial, the party in whose favor the bond was taken, failed to prove the genuineness of the signature? We think clearly not. The case at bar is still stronger in favor of the defendant in this case, as the original bond was not produced, and was not within the State or in possession of a court or officer in this State, which could have been reached by an order of the court.
   Merrick, 0. J.

This action is brought by the plaintiff, upon a decree rendered in the Oil-cut Court in Chancery, for the county of Saline, of the State of Arkansas, for $974 38, and interest at six per cent, and costs, against one Rutherford and the defendant, and upon a “delivery bond” made on an execution issued upon said decree.

By the statutory law of Arkansas, the Sheriff or other officer charged with the service of any execution, is required to levy it upon personal property, and the defendant is authorized to retain possession of the same until the day of sale, by giving bond in favor of the plaintiflj with sufficient security, to be approved by the officer, in double the value of said property, with a condition for the delivery of the property to the officer at the time and place of sale named in such condition and with the further condition, that in case the property shall not he delivered according to said condition, the bond shall have the force and effect of a judgment on which an execution may issue against all the obligors. By the same statutes it is provided, that the forfeiture of the bond shall be shown by the return of the officer, endorsed on the execution. See Dig. of Statutes of Arkansas, pp. 500, 502, secs. 37, 46 and 47.

The plaintiff, in his petition, after alleging that said bond having been forfeited, acquired the force and affect of a judgment, according to said law of Arkansas, further averred, that the “ original judgment was satisfied and no-vated in this that the said bond was taken for the delivery of property as aforesaid, and forfeited as aforesaid, and therefore the said bond became anew judgment, having the affect as aforesaid; that both said judgments, the original and statutory judgments, have the effects of and are joint and several judgments, according to the laws of the State of Arkansas.”

The defendant excepted to the plaintiff’s petition, as containing inconstant demands. The exception being overruled, he filed an answer containing a general denial and an averment, that the bond set up in the plaintiff’s petition was false and forged as to his signature, and he sustained his answer by his affidavit.

The principal question raised in this court, and the only one requiring our notice, arises from his denial of the signature to the bond. The defendant contends, that he is not bound to prove a negative, and that the burden of proof is upon the plaintiff to show, that the signature to the bond is genuine. The plaintiff, on the other hand, having rested - his case on the record, which he offered in evidence, says, that under the Constitution of the United States and the Act of Congress of 1790, his statutory judgment is conclusive against the defendant, must have the same effect in Louisiana, that it has in Arkansas, where the original judgment was rendered, and the statutary judgment substituted in its place.

We do not deem it important to decide either of the questions here presented. The allegation of novation with the qualification annexed, is not so absolute as to prevent the plaintiff from recovering judgment upon the original decree in Chancery. If, therefore, the defendant did not execute the bond, the original judgment was not extinguished, and the plaintiff is entitled to recover on his original decree. If he did execute the bond, the plaintiff is entitled to recover on the forfeited bond, but the original judgment alone indicates how much of the bond may be executed as a judgment. The defendant, therefore, has no interest in establishing the bond, except for the mere purpose of defeating a legal demand by a technicality. See case of Ruddell v. Magruder, 6 English Rep. 583.

We are not prepared to say, that the judgment ought to be amended in favor of the plaintiff for the small amount of costs claimed. And to the cost of the transcript, we see no reason why it may not be taxed among the costs under the judgment already rendered.

Judgment affirmed.


author: Buchanas, J.

text:
    Estate of John and Martha Routon.
    The validity of a judgment ordering a partition cannot be inquired into, on the trial of an opposition to an administrator’s account, which is not based on the partition, and which does not embrace any of the property divided.
    XX PPEAL from the District Court of the parish of Catahoula, Barry, J.

      Taliaferro, for the administrator. Hendry, for appellant.
   Buchanas, J.

John and Martha Bouton died in 1850, leaving five children surviving, and grandchildren, issue of two children deceased. Talbot A. Bouton, one of the children, qualified as administrator, and in the same year brought a suit for partition of the slaves belonging to the estate, upon which a judgment was rendered in December, 1850. In 1854, Robert J. Riant, guardian of William H. Bouton, grandchild and one of the heirs of John and Martha. Bouton presented his petition, calling upon the administrator to file an account of his administration, which he has done. The account filed charges the administrator with moneys received, and credits him with moneys paid. The guardian of William H. Bouton has opposed several items of the credit side of this account, but the principal ground of opposition relates to the slaves which had been partitioned under the judgment of court before mentioned.

Opponent alleges that the proceedings in partition were null, as regards the minor, for want of a compliance with legal formalities.

The judgment of the District Court sustained the opposition as to the items of credits objected to, but rejected it as to the slaves embraced-in the partition, reserving to the minor heir the right to prosecute all rights and claims set up in the opposition in a direct action.

The opponent appeals, and relies for a reversal of the portion of the judgment, of which he complains, upon the case of Paxton v. Cobb, 2 La., 139, in which it was held to be a general rule in jurisprudence that wherever a man may sue, he can except, when the matter which he might have annulled in an action is presented as the basis of a demand against him. That authority does not justify the present attempt to impugn collaterally the judgment of partition. The present account, which is opposed, is not based upon the partition, neither does it include any of the property which was divided under the judgment of partition. That judgment, to which all the heirs were parties, and which has been executed, cannot be treated as a mere nullity. It can only be declared null by another judgment rendered in a suit instituted against all those parties. The parties necessary for declaring its nullity are not now before us.

Judgment affirmed, with costs.