text:
    H. L. Smith v. Wilson.
    A co-proprietor, in possession of lands owned in common, has no right in the absence, and without the express assent, of his co-proprietor, to make unnecessary improvements, e. g. building cabins, planting orchards, &c., and compel the absent owner to contribute therefor.
    If the expenditures made be such as it was lawful for one proprietor to make in the absence, and without the knowledge of, the other, then the liability of the latter is for an equal share of the expense, accompanied with an equal participation in the resulting benefit.
    The duty of the co-proprietor who is present and in actual possession,^ to take the same care of the property, as if it wholly his own.
    from the Second District Court of Plaquemines. Rousseau, J.

      A. Hennrn, for and
    But the Court finds another objection to the proceeding, as it was a partnership between the parties, and to be settled as such; and one partner cannot sue another for any specific claim in relation to it, but there must be a general settlement of all partnership accounts. This is admitted to be the law in partnerships ; but there was no partnership between the co-proprietors here ; there was only a community of property, which does not constitute a partnership. This distinction is directly recognised by our Civil Code, Art. 2777.
    “A community of property does not of itself create a partnership, however the property may be acquired, whether by purchase, donation, accession, or prescription.” [See also Arts. 820, 1214.

      The same question was discussed fully in the Roman law, and decided in the same manner, and the jurisprudence has come down to us unvaried. [See Po-thier’s Pandects, lib. if, 2, 30; contrat de socUté, Nos. 181, 18T, 191; Domat, p. 1, lib. 2, tit. 5 ; § 2; No. 3 ; 6 N. S. 01G, Percy v. Millaudon.

    What were the duties of the co-proprietor, Smith, who had the actual possession of the common property — his co-proprietor being absent and having left no one to represent his interests ?
    They are laid down distinctly by Domat, p. 1, lib. 2, tit. 5, § 2, No. 2: to manage and take care of the common property, as he would of his own. Smith considered it his interest to put the plantation in a state of cultivation, and make a levee in front and rear of it; cut canals, ditches, make roads and fences, build houses, and particularly plant the whole in orange trees, as the most direct method of rendering the estate profitable. The capital invested in its purchase $3,000 in 1809, and the same sum in 1847, was idle ; for the place was, according to the evidence of all the witnesses, in a state of waste.

      Siaith acted in good faith when planting orange trees on the plantation, instead of cultivating it in rice, as some of the witnesses say would have been more advantageous ; though others express very strongly a contrary opinion, and prefer the planting of orange trees. He was bound only to act according to the best of his own judgment, and to manage the plantation as he would his own property. That he did so, cannot be doubted. [See Domat, p. 1, lib. 2, tit. 5, § 2, No. 2.
    The Court will also consider that the taxes on the plantation, amounting to $115 for the last year, have been paid regularly since 9th April, 1847, by Smith; the nine negroes which he hired from Bahan, [p. 34,] and the other laborers, [p. 37,] have also been paid for their services, and for those advances interest is due thereon by law. [Domat, p. 1, lib. 2, tit. 5, § 2, No. 4.
    By the Roman law, among necessary expenses, which the husband was required to make on the dotal effects of the wife, at his peril, were, “ moles in mare vel fluineu projectas”- — -levees. He was compensated, also, for such necessary works, as planting vines, taking care of trees, forming nurseries. “Vel si^vites propagaverit, vel arbores curaverit, vel seminaria, pro utilitate agri fecerit neccssarias, impensas fecisse videbitur. [Pand. lib. 25, tit. 1,1. 1-3.
    xlmong the useful expenses made by the husband for the same purpose, is enumerated the planting of trees” — Veluti si novelletum in fundo factum sit.” Ibid, 1. 0, Lib. 5, tit. 3, 1. 39.
    When the same improvements have been made by one co-proprietor on the common property, the other is bound, for stronger reasons, to reimburse his portion of their value, on the great principle that joint owners must contribute rateably to useful expenses incurred on the property by a joint owner having the management of it. 0 N. S. 616, Percy v. Millaudon.

    By these principles is a recovery sought in this action for the amount of one-half of the value of the ameliorations now existing on the plantation, and by which the common interests of the co-proprietors have been enhanced to the extent of $30,000. Story’s Equity, § 1289.
    As regards the claim of the State of Louisiana to the undivided moiety of the plantation, by escheat, in consequence of the supposed death of W. Wilson, without heirs, the plaintiffs have little to say. They deny, however, his death by an exception, peremptory in its nature, made to the intervention.
    The Stale cannot recover the property from the plaintiff until it shall have discharged the amount due for its preservation, expended by- Smith ; for there is a privilege on the land for such claim. [O. O. Arts. 3191, 3193-.] The whole amount of the claim, as stated, is, in fact, all for the preservation of the property.
    . But there is no proof of the death of W. Wilson, by witnesses, as required by law. 5 An. 265, Marcos v. Barcas.

      Lombard, for defendant:
    Plaintiff and defendant are joint owners, not partners, and our Code has specially provided, that a community of property does not of itself create a partnership; O. N. S. p. 616, Pereey v. Millaudon. In that case, Percy who owned one fourteenth of a sugar plantation, was present, he as well as Millaudon, had the control and management of said sugar plantation.
    Was the administration of Smith that of a- negotiorum gestor? It was that of an intermeddling trespasser. His management has not been such as to bring him within the purview of articles 2272, 2273, 2274, 2275, 2276, 2277 and 2278 of the Civil Code of La. Smith, is now in the shoes of Burney, in the case of Baillio v. Burney, et als., reported at page 317 of the 3d volume of Robinson’s Reports. He is a tresspasser. He has taken possession of a land to which he had an interest of one undivided half only, instead of provoking a division or partition. He has fallen clown the trees, sold the wood, appropriated the money himself and made the land less valuable thereby.

      Reese, on same side.
   Slidell, C. J.

In 1809 a sale was made of a tract of land in the parish of Plaquemines to T. B. Bobertson and William Wilson, who are described in the deed as residents of New Orleans. Preston subsequently purchased the undivided moiety of Robertson, and sold it in 1847 to the plaintiff, who took possession of the land, then in a state of waste, made ditches, fences and levees, erected cabins, and planted orange trees, all at his own expense, and has also paid the taxes. Meanwhile nothing is known of Wilson. Residents of the parish advanced in years, say they never saw or heard of him; his whereabouts, and even existence, for a long time past, remains under the evidence, unknown.

In 1853, Smith brought this suit, and obtained an attachment upon affidavit of his belief that Wilson resided permanently out of the State of Louisiana. He is represented in this proceeding by a curator ad hoe, appointed by the Court. The petitioner alleges that he has made various improvements, paid taxes, &c., at his own expense, to the value of $30,000, that he has increased, by $30,000, the value of the property, and that Wilson, as the owner of the other undivided moiety is, therefore, indebted to him in the sum of $15,000, for which he prays judgment, with privilege on the land. The suit was dismissed by the District Judge, and the plaintiff has appealed.

The claim of the plaintiff not only seems unreasonably exaggerated, but is also based upon an obvious misapprehension of his rights. Smith and Wilson were owners in common of this land. From this relation, and in the absence of any express agreement, the law implied certain mutual rights and duties.! Of these, the mostprominent are the right of partition, when either desires it; the right of mutual participation of the fruits and revenues, and the consequent duty to account to each other therefor; the duty of the co-proprietor who is present and in actual possession, to take the same care of the property as if it were wholly his own; the right of incurring expenses necessary for the preservation of the common property, and consequent obligations of reimbursing one another for such outlays. If one of the proprietors make some change in the property in the other’s absence, not necessary for its preservation, which occasions the co-proprietor a loss, or which he has just cause not to approve of, the former does so at his own risk and under the obligations of an equitable restoration. It is not, indeed, a partnership, as erroneously characterized by the District Judge, but it is controlled in some respects by analogous rules. See Domat, book II. tit. 5, sec. 2. Merlin Rep. verbo indivis. Civil Code 2777,

The theory of the plaintiff’s claim is obviously inconsistent with a just application of the principles which control the relations of proprietors in common. If the expenditures he has made were such as it was lawful for one proprietor to make in the absence and without the knowledge of his co-proprieter, then the liability of the latter is for an equal share of the expense, accompanied with an equal participation in the resulting benefit. But the proposition that Wilson is indebted to Smith $15,000, because the land, as he alleges, has been increased $30,000 in value, by the improvements, is inadmissible. The duly of Smith was to prove the cost of lawful expenditures, accounting also for the fruits; the defendant is his debtor or creditor, as the case may be, for the balance, and a joint owner of the improvements lawfully made, with a right to repudiate such as were unnecessary or beyond the scope of Smith's authority, implied from their relation as owners in common, and throw the burden on Smith.

The unreasonable character of Smith's pretensions may be illustrated by entering somewhat into details. For example, he desired the Court below to fix upon the absent defendant a liability for one half of the present value of certain orange trees planted by him, a value not due, as the District Judge correctly remarked, to the plaintiff’s capital and labor alone, but to the nutriment of the soil, one half of which the defendant owned.

The District Judge was of opinion that the evidence was entirely too general and vague to enable him to state an account between the parties, and in this opinion we fully concur. The vigilance which the District Judge thought proper to exercise for the protection of an absent defendant is creditable to the administration of justice.

In affirming the judgment it has not been necessary to express, and we do not express any opinion upon the question what works or expenditures were necessary, or within the authority of an owner in common, whose co-proprietor is absent. If this litigation should be renewed, it would be well that evidence should be taken upon the comparative advantages of leaving lands so situated exposed to overflow, and improvement by alluvion, or excluding the inundation by levees, and upon other matters pertinent to the subject.

The intervention on the part of the State requires little comment. The petition of intervention is vaguely framed, but seems to suggest an interest on the part of the State, present or prospective, upon the supposition of Wilson's death without heirs. There is no evidence that Wilson is dead, and the mere lapse of time is still insufficient to raise a presumption of his death..

Judgment affirmed with costs.


source: Caselaw Access Project

author: Slidell, O. J.

license: Public Domain

text:
    Succession of Butterly.
    The Judge of the Probate Court should not adjudicate, as in case of a tableau of distribution, upon the distribution ®f a fund not in the hands of the administratrix, but under the control of another
    The administratrix of a succession is not entitled to commissions on that part of the estate which she has not administered.
    from the Second District Court of New Orleans, Lea, J.

      P. S. Pirón, for A. Butterly, administrator and appellant.

      J. & R Bermudez, for B. Duchamp, et als., appellees.
   Slidell, O. J.

The proceeds of sale of certain mortgaged property belonging to the estate of Butterly, which sale was made under process of the Fourth District Court of New Orleans, never came into the hands of the administra-trix of the deceased; and the Fourth District Court, in proceedings to which ■she made herself party by third opposition, had refused to part with its jurisdiction by transferring the controversy to the Second District Court of New Orleans, in which Court the succession was opened, and from whose decree the present appeal is taken. Whether that refusal of the Fourth District Court was correct or not, we do not now enquire. The decree of the Fourth District Court upon the application of the administratrix, has never been brought before us by appeal. As the matter stood, we think the Judge of the Second District Court did not err in refusing to adjudicate, as in case of a tableau of distribution, upon the distribution of a- fund not in the hands of the adminis-tratrix, and threw defendant upon proceedings in another court which had refused to part with its control over the funds.

The Judge below did not err in refusing to allow the claim of the adminis-tratrix for commissions on that part of the estate which she had not administered, nor has a review of the evidence satisfied us that he erred in his estimate of the attorney’s compensation.

Judgment affirmed ; costs of appeal to be paid by appellant.


text:
    Noel Norwood v. W. D. Pettis, Sheriff, et al.
    The endorser of a note, who has been duly notified of the assignment thereof, has no right to acquire, after notice, obligations of the assignor, and set them up in compensation, to the detriment of th« assignee of the note.
    from the District Court of East Feliciana, Sterling, J.

      J. B. Smith, for plaintiff and appellant.

      E. P. Ellis, for defendant.
   Slidell, O. J.

As to the contest between Eepburn and the liquidator, we see no reason to change the conclusion to which we came, after alaborate argument in McKneely v. Brown, decided in April, 1854.

Due notice, in 1840, to Norwood, of the assignment to Hepburn, is proved ; and, after notice, Nonoood could not acquire obligations of the assignor, and set them up in compensation to the detriment of the assignee.

-Judgment affirmed ; the costs of appeal to he paid by the appellant.


author: Ogden, J.

text:
    A. B. Quillin v. Elizabeth Yair, et al.
    A purchaser of land, who has been evicted, is not entitled to recover from his wam^tor,. as- dhm-ages, the increased value of the land at the time of eviction.
    0. 0. 2482.
    from the Eighth District Court of St. Helena, Whi'erston, J.

      J. E. Wilson, for plaintiff.

      H. Q. Penn, for defendant,and appellant.
   Ogden, J.

The defendants are appellants from a judgjnent, rendering theme liable as warrantors of the title to a tract of land from which, the plaintiffs have been evicted. The only question presented by the appeals .whether the Article 2482 of the Civil Code, which determines the extent off the warrantor’s liability, has been violated by the judgment appealed.,from. The appellants contend that the verdict of the jury was not sanctioned by that article, inas--.. much as they have been condemned, as warrantors,Jna larger sum, than thq^ price which the plaintiffs paid for the land, and that it is not shown by the evidence that they had sustained any damages by the action. The sale took place in 1831. Two tracts of land, one containing 1000 arpents, and the other containing 80 acres, and adjoining, were sold together for an aggregate price of eleven hundred dollars. The vendors suffered eviction from the smaller tract of 80 acres, for which, it is alleged, they have sustained an injury to the amount of five hundred dollars, the value of that tract. The jury found a verdict in favor of the plaintiffs for two hundred and fifty dollars. The witnesses vary in their estimates of the comparative value of that particular tract with the rest of the land sold. It appears that at the present time its value is considered much augmented by the railroads constructed in its vicinity. The jury do not appear to have made the present value of the land the basis of their verdict, which was for the sum of $240. It is shown by the evidence that the tract of 80 acres was worth that amount in 1839, when the eviction occurred. There is no satisfactory evidence that the tract of 80 acres was, at the time of the sale, of more relative value, according to quantity, than the other tract — no separate estimate of them was made in the sales itself — and, according to Art. 2490 of the Civil Code, in case of eviction of a part of the thing, the value of the evicted part is to be reimbursed to the buyer according to its estimate, pro-portionably to the total price of the sales.”

The evidence shows that the land had increased in value in 1839, at the time of the eviction, and was then worth as much as the jury have allowed; the value of the 80 acres, proportionably to the total price at the time of the sale, was $100, and the plaintiffs have been allowed $140 for the increased value above the original price. The only question, therefore, is whether that increased value can be allowed, as forming part of the damages for which the vendor may be made liable.

This question was fully discussed by our immediate predecessors, in the case of Barrow v. Price, 6th An. 297. It had been held in the case of Bissell and wife v. Erwin's Heirs, 13 L. R. 147, that under the new Code, Art. 2482, which entitles the vendor, in case of eviction, to recover all the damages he has suffered, besides the price which he has paid; that such increased value of the thing sold, above the price of the original sale, as the parties might have reasonably anticipated at the time of the sale, ought to form part of the damages for which the vendor is liable on his warranty. We'consider the law as being now settled differently by the decision in the case in the 6th Ann. referred to, in which it has been held that the damages do not extend to the increased value of the property, which has been caused by the fluctuation in the estimated value of it.

It is therefore ordered and decreed, that the judgment of the Court below be reversed, and proceeding to render such judgment as should have been rendered in the Court below, it is ordered and decreed that the plaintiff, Amy B. Quil-lin, individually and in his capacity of tutor, recover from the defendants, Elizabeth Yair, wife of O. D. Strickland, sen.; Barba/ra Fair, wife of John Burton; Delia Amacher, wife of O. E. Strickland; Elizabeth Amaeker, wife of George W. Womack, and Thomas Scott Amaeker, the sum of one hundred dollars, with legal interest thereon from the 1st day of January, 1840, until paid, with costs in the several courts; and that the plaintiffs and appellees do pay the costs of their appeal.


author: Spofeord, J.

text:
    H. Keane v. W. P. Fisher—Isaac Hart, Surety.
    In a proceeding against tlie surety for the release of a fraudulent debtor from arrest, the measure of the surety’s liability is the amount of the judgment pronounced against the debtor.
    This judgment is conclusive upon the surety. He cannot go behind it to inquire into the reasons upon which it was based.
    The reasons for judgment, strictly speaking, form no part of the judgment itself, although they may, with propriety, be consulted to explain an ambiguity.
    PPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Race & Foster, for plaintiff and appellant.

      T. J. Semmes and J. Ad. Rogier, for Hart, surety.
   Spofeord, J.

At the suit of the present plaintiff, one Fisher was arrested for an alleged fraud, under the 10th Section of the Act of March, 28th, 1840, entitled “ An Act to abolish imprisonment for debt.”

The fraud charged against Fisher was that he had purchased of the plaintiff, for cash, 45 hogsheads of sugar, amounting to $1868 13-100, and obtained a delivery thereof, and then disposed of the same without paying the vendor, so that the latter could not make his money.

The defendant in the present rule became Fisher's security, and he was released from arrest. The condition of the bond, pursuant to the act of 1840, was “ that if the fraud complained of shall be established, the said Isaac Hart, security, shall be liable for the debt of the complaining creditor, in case the debtor, W. P. Fisher, shall have departed from the State without the leave of the court.”

The original case was tried by a jury, who found a verdict sgainst the defendant, Fisher, for $1868 13-100, with interest from the 11th Feb., 1850, and costs; and also found him guilty of fraud.

Judgment was rendered for the amount awarded by the verdict, and the defendant was also sentenced to three months’ imprisonment.

He appealed to this court and the judgment was, in all respects, affirmed.

The condition of the bond having been broken by Fisher's departure from the State, without leave of the court, the plaintiff took a rule upon the surety, .Hart, to show eauSe why he should not be condemned to pay the amount of the judgment against Fisher.

Upon a hearing, the District Judge rendered a decree against Hart only for the sum of $729 87-100, and the plaintiff has appealed, and now contends that the surety is liable for the full penalty of his bond, viz: $2000, that being less than the present amount of his judgment against Fisher.

The judge below predicated his decree upon a distinction which appears to have been made by this court, in giving their reasons for affirming the judgment in the former case of Keane v. Fisher.

It was said, in the opinion pronounced in that case, that the plaintiff seemed to have waived his right under the statute of 1840, so far as 27 hogsheads of die purchase were concerned, by assenting to their shipment; but as to the 18 remaining hogsheads, there was nothing to take the case out of the Statute. See 9 Annual, p. 70.

But no change was made in the judgment of the District Court. That judgment liquidated the debt of the complaining creditor at the full amount claimed, and stamped the debtor’s conduct with the irrevocable stigma of fraud.

That judgment is free from ambiguity, and is conclusive upon the surety. He cannot go behind it to inquire into the reasons upon which it was founded. The reasons for judgment, strictly speaking, form no part of the judgment itself, although they may properly be consulted to explain an ambiguity. 1 Marcadé, No. 38, p. 35.

Looking to the decree as it stands of record, the fraud complained of has been judicially established, and the suret}’’ is liable for the debt of the complaining creditor as fixed by thejudgment.

It is therefore ordered, that thejudgment of the District Court be reversed; and it is ordered, adjudged and decreed, that the plaintiff recover of the defendant, Isaac Hart, as security of Win. P. Fisher, the sum of two thousand dollars, with legal interest from the date of this decree; and the costs of the rule on the surety in' both courts.

Defendant’s counsel, for a re-hearing, contended:

The decision rendering the surety liable for the whole amount of the complaining creditor’s claim, though the fraud was established only as to a part of it, viz: 18 hogsheads sugar, of the value of $729 87-100, is based on the idea, that thejudgment against the defendant is res judicata as to the surety,and that the surety therefore is precluded from making any inquiry as to the reasons on which thejudgment was founded.

It is apprehended by the surety that he is not to be conclusively bound by verdicts or judgments rendered in suits to which he was not a part}'.

The surety on a sequestration bond is not thus bound. In Clarice v. Scott, 2 A. 907, the late Supremo Court said : “In determining on the claims of the plaintiff, it is impossible for us to see nothing else but the text of the decree of the Supreme Gourt itself-, we must examine and consider the reasons on which, it was founded, and which the court felt itself bound to give as exponents of their opinion under the evidence of the rights of the parties.”

A judgment against a principal on an administrator’s bond is not conclusive as to the surety. Canal Co. v. Brown, 4 An. p. 545.

A judgment against the principal on a receiver’s bond is not conclusive as to the surety. Whitehead v. Woolfolk, 3 An. 43.

A judgment against a sheriff is not conclusive as to the surety on his bond. Mullen v. Scott, 9 An. p. 174.

Wherefore should the surety in this case be conclusively bound by thejudgment against the principal?

In what respect does his case differ from that of a receiver’s or a sheriff’s surety, or the surety on a sequestration bond, or the surety on an administration bond ?

Suppose the defendant in the original action should have confessed judgment ? — would the surety be conclusively debarred from showing error or mistake ?

The Court now say, that the judgment against the principal is res judicata as to the surety ; and thus deprive the latter of the right of correcting, as to himself, any error existing in thejudgment against the former; and yet, where the judgment of the inferior court against the principal was unconditionally affirmed, the principal applied for a re-hearing, for the purpose of having the judgment so rendered as to conform to the opinion of the court, with the view of relieving the suretjq the Supreme Court, nevertheless, refused the re-hearing, though the injustice to the surety was pointed out in the printed argument filed for a re-hearing, at p. 10, 11.

So that it seems the Supreme Courtrefused to correct the error, though pointed out — an error established by its own judgment; and now the surety is informed it is too late for him to remedy the evil.

This is certainly a hard case upon an innocent surety, who, perhaps, being informed of the facts of the case, believed he was assuming a responsibility— only to the extent of the fraud.

Re-hearing refused.


author: Buchanan, J.

text:
      W. Stoppenhagen v. H. Verdelet.
    A slave was purchased in July, received no medical aid till 18th December, though he was ailing before that time, died December 26th of a disease not incurable in its earlier stages.

      Held: That this was not a case for redhibition, because of the neglect to procure medical aid for the
    from the Fourth District Court of New Orleans. Reynolds, J.

      A. Pitot, for plaintiff.

      Budd & Lmnbert, for defendant, appellant.
   Buchanan, J.

The plaintiff purchased at auction on the 25th July, 1850, a slave man named Richard, belonging to defendant. The bill of sale was not passed until the 15th August, 1850. The slave was in the possession of plaintiff from the moment of sale, and had even been, as is proved, in his possession on trial for a week or two previous to the sale. The first account that the witnesses of plaintiff give of any sickness of the slave after his purchase by plaintiff was on the 13th December, when he was sent to Dr. Stone's Hospital. He died there on the 26th December; and the cause of his death is stated in the certificate of Dr. Stone, which is in evidence, to have been “ mortification ■ produced by extravasation of urine.” A particular account of the disease and treatment is given in the deposition of Dr. Mellhenny, who says “ he was afflicted writh urinary abscess, with mortification of the tissues of the perineum and surrounding parts. This disease -was produced by stricture of the urethra, which must have existed for several months previous to his coming to the hospital.”

Four or five physicians of good standing have been examined at length in relation to the characteristics and proper treatment of the disease which terminated thelife of this slave. From their evidence, taken in connection with the testimony given by those persons, professional and others, who saw the slave, we have come to the conclusion that-the plaintiff has not made out a case of redhibition.

' The immediate cause of the death of the slave Dich was a mortification or gangrene in the region of the bladder and urethra, produced by extravasation of urine, the consequence of a neglected stricture. There is little doubt that at the period of his being sent to the hospital of Dr. Stone, the condition of the slave was hopeless.

But there is no medical witness who testifies or even intimates the slightest leaning towards an opinion, that the disease of the slave was in its nature incurable. On the contrary, they concur in saying that a stricture of. the urethra is easily cured, if taken in time.

If the disease existed at all at the time of the sale, which is by no means satisfactorily proved, it is certain that at that period it was not only not incurable, but even that there was nothing dangerous or alarming about it. It would seem however from the testimony of the plaintiff’s witnesses, that the slave was known to be ailing for some time previous to his being sent to Dr. Stone's Hospital. But no attention was paid to his state until his ailments had increased to such a degree that he was compelled to give over working and take to his bed, when he was sent to the hospital, with the result which has been seen. We think that the District Court erred in maintaining this action.

Judgment reversed ; and it is adjudged and decreed that there be judgment for defendant, with costs in both courts.


author: Spoffobd, J.

text:
    The State v. Wm. E. Roberts.
    The refusal of the District Judge to give specific instruction to the jury is not error, where it appears from the Record that, in answer to the application for the instructions, the Judge stated that he had substantially given them in his previous charge to the jury, and when no exceptions were taken to that charge.
    from the Eirst District Court of New Orleans, Robertson, J.

      I. E. Morse, Attorney General, for the State.

      Gt. L. Bright, for defendant, appellant.
   Spoffobd, J.

The present appeal was taken from a judgment condemning the appellant to hard labor for life in the penitentiary, he having been found guilty of the crime of arson.

He places his reliance for a reversal of the judgment solely upon a bill of exceptions taken to the refusal of the district judge, after he had completed his charge to the jury, to add the following instructions as requested by theprisoner’s counsel:

“ That it is essential that the circumstances should be of a conclusive nature and tendency; that evidence is always indefinite and inconclusive when it raises no more than a definite probability in favor of the fact, as compared with some definite probability against it, whether the precise proposition can or cannot be ascertained ; that it is, on the other hand, of a conclusive nature and tendency when the probability in favor of the hypothesis exceeds all limits of an arithmetical or moral nature ; that it is essential that the circumstance should, to a moral certainty, actually exclude every hypothesis but the one proposed to be proved.”

But the district judge in signing the bill, stated that he had given these instructions, substantially, in his previous charge, to which no exceptions were taken.

There was then no necessity for repeating them, particularly in a form and phraseology so far removed from the language of common life as the periods quoted from Mr. Slarkie’s Treatise on the Law of Evidence.

The judgment is therefore affirmed with costs.


author: Spoffokd, J.

text:
    The State v. Andrew Arthur.
    If an indictment be defective, the defendant should avail himself of the defect by demurrer, motion to quash, or motion in arrest of judgment. He can not rely only on an assignment of errors apparent on the face of*the indictment, made in the petition of appeal.
    from the First District Court Of New Orleans, Robertson, J.

      1. E. Morse, Attorney General, for the State.
    Holland, for defendant and appellant.
   Spoffokd, J.

The prisoner was convicted of having paid false and counterfeited coin to.one O'Hanlon, knowing the same to be false and counterfeited.

By the judgment of the District Court he was sentenced to imprisonment at hard labor'in the penitentiary for the term of ten years, and to pay the cost of prosecution.

On tfce second day after this sentence was pronounced, his counsel filed a petition for an appeal, based upon certain errors alleged to be apparent on the record, and which he proceeded to assign as follows:—

The indictment is invalid and void in this :

1. It does not charge that the act of paying the. piece of coin alleged to bo false and counterfeited was done feloniously, nor with the intent to defraud any person or persons.

2. That the said piece of coin so alleged to have been paid by the prisoner is not described in the said indictment with the certainty required by the Constitution and laws of this State.

8. That the said indictment does not commence or conclude in the sacramental words of the Constitution of the State of Louisiana.

4. That this honorable court has no jurisdiction over the offence charged in the said indictment against the said Andrew Arthur.

An appeal was granted upon this petition, and the assignment of errors therein contained is referred to and relied' on here,.no new assignment having been made.

We cannot inquire into the validity of objections thus raised. The prisoner did not demur, or move to quash the indictment, but pleaded not guilty thereto. No bill of exceptions was taken during the proceedings. No motion in arrest of judgment was made in the court below. On the contrary, the record informs us, that when the prisoner was brought to the bar for sentence, he was ready to receive the sentence, and hg,d nothing to offer in arrest of judgment.

If there were defects in the indictment, as alleged, upon which we express no opinion, they have been waived and are now cured.

Judgment affirmed with costs.


author: Vooriiies, J.

text:
    Adam Beatty, Executor, v. J. L. Dufief, et al.
    To obtain an injunction against an order of seizure and sale, without giving surety, the petitioner for injunction must allege, under oath, some one of the grounds mentioned in Art. 789 0. P.
    PPEAL from the District Court of Lafourche Interior, Oole, J.

      J. G. Beatty, for plaintiff and appellant.

      Race & Foster, for defendant.
   Vooriiies, J.

This is a sequel of the suit which we have just decided. The plaintiff alleges that an order of seizure and sale, sued out by the defendants against the estate of Abner Robinson, deceased, is informal and void, for the reasons set forth in his petition ; that he is unable to give the necessary security for an injunction, in consequence of the large amount involved in controversy ; that the sale, if made, will be illegal and void; and that he will hold the sheriff and the defendants liable for all damages resulting therefrom. He, therefore, prays that the sheriff may be enjoined from proceeding further in the premises, and that the defendants, who reside out of the State, may be notified of his opposition, either by service on their attorney, or, if necessary, on a curator ad hoe. Service of this petition and citation was made to G. W. Race, Esq., one of the defendants’ attorneys, on the 3d of March, 1854. On the 5th of May following, (?. W. Race, Esq., was appointed by the court curator ad hoc to represent the defendants. Subsequently, the plaintiff filed a supplemental petition, alleging that notwithstanding his opposition, the defendants had procured, under their illegal order, the sale and adjudication of the property, for the sum of $25,000, less than its appraisement; that it could not be legally sold for less than its appraised value for cash; that in consequence of the illegality of the proceedings, the estate has sustained $50,000 damages, and that he is’entitled to recover from the defendants either the damages or the difference between the appraised value and the price of adjudication of the property. He therefore prays that the defendants, through their curator ad hoc, be cited and condemned to pay him said sum.

The curator ad hoe excepted to the plaintiff’s petition on the grounds: 1st. That the defendants were not legally in court, the petition not being an intervention and third opposition in their suit of seizure and sale, but a separate and distinct suit, in which no legal service had been made on the defendants, who are non-residents, either personally or by attachment of their property, nor could they be legally represented by a curator ad hoe. 2d. That the original petition contains no legal grounds of action, as it merely prays for an injunction to prevent the sheriff from proceeding further in the sale of the property, which had already been effected when said petition was served on the curator ad hoe. And, 3d. That the supplemental petition was filed and issued without any legal authority. The exception was sustained, and the plaintiff appealed.

We concur with the Judge d quo in his conclusion. The remedy given under the Code of Practice to the debtor against whom an order of seizure and sale has been rendered, is clearly and distinctly pointed out. He must file his opposition in writing in the court issuing the order, alleging some of the reasons contained in Article 739. See Art. 738. “When the judge grants an injunction, on the allegation under oath, of any of the reasons mentioned in that article, he shall require no surety from the defendant, but he shall pronounce summarily on the merits of his opposition, if the plaintiff requires it.” — 710. The plaintiff’s allegations are not supported by his oath; it is therefore clear that he is not entitled to this summary remedy.

Judgment affirmed with costs.


text:
    Fellowes & Co. v. J. M. Young.
    Suit on a note for the price of a slave. — Defence, that the slave was afflicted with a redhibitory evil. The slave was bought in January — was sick two days after the purchase. No physician was called till April, when the slave was ill of a disease which he had had for some weeks, and of which he died in September. JTeld: That defendant’s failure to call in medical aid at an earlier date, was a bar to any relief.
    from the District Court of East Feliciana, Merrielc, J.

      J. 0. Fuqua, for plaintiffs and appellants.

      J. B. Smith, for defendant;
   Buchanan, J.

This is a suit upon a promissory note. The defence is failure of consideration ; that the note was given for the price of a slave, who was affected with a redhibitory malady, of which he died.

The date of the sale of the slave in question was the 2d January, 1852.. A witness proves that the slave was sick two days after the sale, hut no physician is proved to have been called in until some time in April following. He died in September of the'same year.

The evidence is that the slave was found by the physician, at his first visit in April, to he affected with scrofulous ulcers. They did not heal, but continued to increase in number until the slave took a diarrhoea, and wasted awaj' until he died.

The cause of the death of the slave is not very clearly stated in the evidence of the physician who attended him. His language is as follows : “ The derangement of the bowels was not, in the opinion of the witness, the immediate cause of the boy’s death. That derangement, no doubt, contributed to that result, but the scrofulous disease of the limbs, as the bowels almost always sympathize with that disease.”

The neglect of defendant to call in medical advice for so long a time after the first symptoms of disease manifested themselves on the slave, constitutes, under the established jurisprudence of this court, a bar to his action of redhibition. Neither is there any proof that any tender was made of the slave to the vendor, as might have been done.

It is therefore adjudged and decreed, that the judgment of the District Court be reversed, and that plaintiffs recover of defendants, Joseph M.\ Young and Beverly Dunn, in solido, six hundred and ninety dollars, with eight per cent, per annum interest from January 2d, 1852, until paid, and costs in both, courts.


author: Slidell, C. J.

text:
    City of New Orleans v. R. D. Sheppard.
    The recital in a notarial act signed by a party, or in a petition in court signed by his attorney at law, describing said party as being “ of the city of New Orleans,” or “ residing in New Orleans,” will not conclude him in another action from denying that he is a citizen of Louisiana.
    A citizen of another state being sued for municipal taxes in a State court, is entitled to hare such suit transferred to the Circuit Court of th e United States.
    from Eifth District Court of New Orleans, Augustin, J.

      J. Livingston, City Attorney, for plaintiff.1

      A. K. Josephs and Durant & Horner, for defendant, appellant.
   Slidell, C. J.

The defendant being sued in the Eifth District Court of New Orleans for an amount alleged to be due for municipal taxes, took a rule to show cause why the suit should not be transferred to the Circuit Court of the United States for the Eastern District of Louisiana. After hearing evidence, the District Judge refused an order of transfer, and the defendant appealed.

The material facts presented by the evidence is as follows: The defendant had been for several years a resident, and avowedly a citizen of Louisiana. But about six years since, according to the testimony of several witnesses who were intimate with him, and who are not contradicted by other witnesses, the defendant announced his determination to reside on his farm at Shepherdstcvwn, Virginia. Erom that period they say he began to occupy a dwelling-house there, then recently finished, and which is his only domestic establishment. It is kept up by his servants during his temporary absences. He has expended about sixty thousand dollars in the improvement, of this estate, and personally superintends the cultivation of the farm. Eor several years past some of those witnesses say he has uniformly refused to vote in New Orleans when requested to do so, declaring he was no longer a citizen of Louisiana. It appears, however, that the defendant comes annually to New Orleans in the month of November, and stays until some time in April, when he returns to his estate in Virginia ; that he has large interests in New Orleans, real and personal, but for several years past has ceased to transact a commercial business here. It also appears that since 1847, about which period the intention to change his residence was, according to the witnesses, carried into effect, he is spoken of in a notarial act signed by him, and in three petitions filed by his counsel, as being “of New Orleans,” or “ residing in New Orleanswhile in the registry of a vessel, he is described as of Shepherdstown, Virginia. In qualifying here as executor of the estate of a wealthy friend, he submitted to the onerous requisition of giving bond under the statute as a non-resident; this however being at a date subsequent to the institution of this suit.

Although the circumstances above enumerated are somewhat conflicting, our conclusion from the whole is that the defendant has acquired a domicil in Virginia, facto et animo, and is entitled to be considered as a citizen of that State. Shep-herdstown is considered by himself and his friends, and has fairly become, his permanent residence and home ; New Orleans, on the contrary, a place of temporary sojourn during about five months of the year. See Succession of Franklin, 7 Annual, 395 ; Hill v. Spangenburg, 4 Annual, 411.

It is evident the District Judge would have come to a similar conclusion but for a single consideration, to which, in our opinion, he attached an undue importance. He remarks as follows : “ The concurrent testimony of respectable witnesses establishes beyond a doubt that since the year 1816, R. D. Shepherd has fixed his residence in Shepherdstown, Virginia, that he resides there upon a farm, which he has extensively improved, during eight months in the year, that he keeps there his domestic establishment, and that during four months, comprising the winter months, he lives in New Orleans at the residence of his friend, J. Touro. It is also in proof that R. D. Shepherd, for a great many years anterior to his removal to his new home in Virginia was a citizen of the State of Louisiana, and that he is now in possession of a large amount of property located in the city of New Orleans. The intention and fact of changing his domicil would therefore have been conclusively established if the defendant had not made positive declarations directly contradicting the issue which he has made in the present case. These declarations are to be found in several notarial acts produced in evidence, and in the records of two judicial proceedings instituted before the court by B. D. Shepherd in the year 1852, containing allegations that in that same year the defendant was a resident of the city of New Orleans. These declarations emanating from the defendant himself in 1852, are certainly in opposition to any idea of his intention having been definitely formed of changing his domicil as early as in the year 1816.

These contradictions have excited in the mind of the court serious doubts as to the real intention of the defendant in regard to his domicil.”

There are in evidence but four documents of date posterior to 1847 which contains the recitals “ of New Orleans,” and “ residing in New Orleans,” to which the District Judge has attributed so much significance. It is true that such descriptive words used in notarial acts and judicial proceedings are admissible in evidence against the defendant, and are fair subjects of consideration in connection with other facts touching the question of domicil. But it must be observed of these recitals, that in none of the occasions upon which they were used were they essential averments; they were not material either as regards the contract in which this occurred, - or the jurisdiction of the court to which they were addressed; they were inserted in one case by a notary, in the other by an attorney at law, and being immaterial to the matters in hand may not have received the deliberative attention of Shepherd. See Hill v. Spangenburg, 4 Annual, 555 ; Davis v. Benion, 5 Annual, 348. They are overshadowed in the present case by other facts, continuous acts done by Shepherd, and declarations immediately and deliberately emanating from him at a time not suspicious.

As to the objection that the city of New Orleans is not a citizen of the State in whose court it has brought suit against the defendant within the intendment of the Constitution and act of Congress, is sufficient to say that the objection is inconsistent with the ruling of the Supreme Court of the United States in repeated cases. See 2 Howard, 497 ; 16 Howard, 314. If this court should undertake to treat this question as res nova, and could arrive at an opposite conclusion, the plaintiff would gain a fruitless victory, and be mulcted in the costs and expense of a reversal upon writ of error.

The proposition that the right of transfer does not apply to this case, by reason of the character of the claim, is untenable.

It is therefore decreed that the judgments of the District Court be reversed ; and it is further decreed that this cause be remanded to the said District Court with instructions to said Court to grant an order of transfer to the Circuit Court of the United States as prayed for, the costs of the appeal to be paid by the plaintiff.


author: Buchanan, J. Slidell,' 0. J.,

text:
    G. Harrison, Tutor, v. S. P. McCawley.
    This was an action on an account, its correctness was only proved by one witness. There was judgment for the plaintiff. It appeared that there was no cross examination of the witness and no appearance for defendant. From the face of the account itself, it was obvious that defendant was not bound for some of the charges; the case was therefore remanded.
    Slidell, C. J., (with whom concurred Spofford, J.,) dissented on the ground that the witness had proved the correctness of the account, to the reception of which in evidence no objection was
    from the District Court of the parish of West Feliciana, Merriele, J.

      Brewer & Collins, for plaintiff.

      Ratliff, for defendant and appellant, referred to 2d Ann. 292,
   Buchanan, J.

This suit is based upon an account of a factor with a planter, running through a period of about two years, and embracing items for plantation supplies, cash advances and bills receivable of various persons other than the defendant, with interest, &c. The record is very carelessly made up, for we do not find any answer, although the proceedings favor the idea that an answer was in fact filed. The case appears to have boon regularly called and tried, in the absence of the defendant’s counsel. The only evidence offered in support of the claim was that of a witness, who testified that the account was . correct, the articles charged were furnished as charged, and were worth the prices at which they were respectively charged. Witness was clerk for John C. Morris, during the whole time in which said account was made. The account itself was also offered in evidence, but none of the many notes with which the defendant was therein charged. With regard to some of those notes, the defendant would not seem, without some further explanation, to be chargeable. For instance, the item of “your lady’s note $379 48-100” — “-cash, Bank Louisiana, interest as perinterest account and account current, $613 13-100”— “R. W. Hendrielcs's note $323 13-100” — “cashamount, John, Hamilton, $139, 06 100” — “cash paid Mrs. Lemon $4 50-100.” As the transcript does not inform us of the issue upon which the cause was tried, and as the evidence, taken exparte, does not make out satisfactory proof of the various items embraced in this demand, although the general expressions used by the only witness examined, might imply that upon a cross examination he would have been prepared to establish the liability of defendant for all those items, we think it advisable to remand the case for a new trial.

It is therefore adjudged and decreed, that the judgment of the District Court be reversed; and that this cause be remanded to said court, to be proceeded in according to law ; the costs of appeal to be paid by the appellee.

Slidell,' 0. J.,

dissenting. In this case the witness swore the account was correct, and it was therefore received in evidence. He was not cross-examined, nor was any objection made to the admission of the evidence. The District Judge believed him and gave judgment. I cannot say I disbelieve him.

There was a judgment by default, and there is no entry setting it aside, and no answer appears in the transcript.

If there was no answer, its absence and the judgment by default are corroborating circumstances. See Lopez v. Bugel, 7 L. R. 181 ; Leeds v. Debuys, 4 Rob. 257.

If there was an answer, which has been lost or mislaid, non constat, but it contained admission, inconsistent with the objection to the sufficiency of evidence, now suggested in argument merely, by the appellant’s counsel. If we were permitted to entertain presumptions as to the contents of an answer, the existence of which is not shown, and is not even positively asserted by the appellant’s counsel, upon what principle should we presume in favor of the defendants, in face of the opinion of the District Judge?

We all agree that, there was no legal excuse for the absence of defendant’s counsel at the trial. It will be a dangerous precedent to reverse an opinion of a District Judge on a question of facts, where the witness has sworn positively, where the District Judge believed him, and the appellant suggests here objections which should have been the subject below of exception or cross-examination. Such a precedent might be an encouragement to counsel for defendants to be absent from trial. I have also to observe that the clerk’s certificate of the transcript is defective.

I think the judgment should not be disturbed.

Spofford, J., concurs in the opinion.


author: Spofford, J.

text:
    The State v. S. G. Ladd.
    In a case of felony, where the jury after haying retired to consider their verdict, at length in» formed the Judge that they could not agree, and the Judge thereupon stated that he must have a verdict in the case — that it was one of peculiar character, and that he had reason to believe that some of the jury had been tampered with previous to the trial, Held: that such remarks liad a tendency to coerce the jury into a verdict from improper motives, and are sufficient grounds for remanding the case for a new trial.
    A bill of exception should give a plain and concise statement of the facts which present the question of law, and the facts should not be set forth in detached and scattered parcels.
    A Judge should not sign a bill of exception, containing a statement of facts, the accuracy of which he does not recognise.
    from the First District Court of New Orleans, Robertson, J.

      I. E. Morse, for the State.

      Larue & Whitaker, for defendant and appellant.
   Spofford, J.

The prisoner has appealed from the judgment of the First District Court of New Orleans, sentencing him to hard labor in the Penitentiary for three years, having been found guilty of manslaughter with a recommendation to the mercy of the court, under an indictment for the murder of one Sahlessinger.

Various bills of exceptions were taken by the defendant’s counsel during the proceedings, and are relied on here to procure a reversal of the judgment.

We find it necessary to decide only one of the legal points presented.

The cause was submitted to the jury on the 29th of June, 1854. In the evening of that day they informed the Court, through their foreman, that they had not agreed upon a verdict and that there was no probability of their doing so, whereupon they were ordered to be kept in the custody of the Sheriff, and the case was continued until the next morning at 10 o’clock. On the next morning the jury were again called, and one of the members stated that they had not agreed, nor was there any probability of their agreeing; the Court then briefly stated its reasons for confining the jury yet longer, whereupon the foreman asked if there was any verdict they could bring in between guilty and not guilty, when the court told them again what verdicts they could render, and further stated the penalties attached to each. The jury then retired and remained out until a little after o o’clock in the evening, when .they were called into court, and in answer to an inquiry from the Judge, one of them remarked that they had not agreed nor was there any prospect of their agreeing; whereupon the Judge stated that he must have a verdict in- the case, that it was one of a peculiar character, and that “ he had reason to believe, from information received, that some of the jury had been approached and tampered with previous to the trial of the cause.”

They then retired and found the verdict already stated.

We are of opinion that the exceptions to the last remarks addressed by the Judge to the jury were well taken. Those remarks, under the circumstances, had a natural tendency to coerce the jury into a finding, from improper motives.

A new trial must, therefore, be awarded.

It will be observed that we have taken the material facts from the minutes made by the Judge at the foot of the bills of exceptions. There are some discrepancies between the statements made in the body of these bills and those appended by the Court. This is not in accordance with approved precedents. In Price v. Powell, 3 Comstock, 352, it was said that a bill of exceptions must give a plain and concise statement of the facts which present the question of law, and the facts should not be set forth in detached and scattered parcels.

As the power of correcting a bill of exceptions, if erroneous, is lodged with the Judge (C. P. 489,) he should not sign one that contains a statement of fact, the accuracy of which he does not recognise. The bill should, at least, be consistent.

It is ordered that the judgment appealed from be reversed, the verdict of the jury set aside, and the cause remanded for a new trial.


text:
    Wolf & Clark v. A. J. Lowry, et al.
    The right of a wife to a separation of property is not limited to the cases mentioned in Art. 2S99 C. C.
    If there be such derangement of the husband’s affairs, or if his habits and circumstances be such as to render a separation necessary to preserve the acquisitions of the wife for the use of her family, a separation will be decreed.
    The failure of the purchaser of lands sold to satisfy existing mortgage debts, to record the sheriff's deed, will not authorize a mortgagee to whom nothing was due out of the price of the adjudication to treat the sale as null, according to the provisions of the Act of 18th of March, 1818.
    Under no circumstances would the subsequent mortgagee be entitled to have the lands resold, without reimbursing the price of the former sale, which had been applied to prior incumbrances.
    from the District Court of the parish of Madison, Snyder, J.

      R. G. Stoekton and A. T. Steel, »for plaintiff and appellant.
    J". J. Amonett, for defendants and appellees.
   Ogden, J.

This is an hypothecary action by which the plaintiffs seek to subject certain property in the possession of the defendants, to a judicial mortgage in their favor, resulting from a judgment which they obtained in 1841, against Oliver B. Gobi.

The plaintiffs’judgment was duly recorded, so as to operate a judicial mortgage on the real estate owned by Cobb, and at the time of the registry he was the owner of the property in controversy, now sought to be subjected to the payment of the judgment. There was, however, at that time prior mortgages existing on the property to a very large amount. Under those prior mortgages the plantation and negroes were seized by the Sheriff, and on the 24th of August, 1841, the whole property, by two different adjudications, was sold by the sheriff to Mrs. S. AT. C. Cobb, the wife of Oliver Cobb. The property did not bring enough to satisfy the judgment of the seizing creditors. The sheriff on the 27th of August, 1841, executed two deeds of sale to Mrs. Cobb, of the property which had been adjudicated to her, but these deeds were not recorded until the 14th of January, 1847. Oliver B. Cobb was declared a bankrupt by a decree rendered on the ICth January, 1843, in the United States Circuit Court for the District of Louisiana, and on the 12th of May, 1843, he obtained a certificate of discharge from all debts owing by him at the time of presenting his petition.

The defendants pleaded several peremptory exceptions, based upon the proceedings in the bankruptcy of Cobb, which need not to he stated, as the case will be disposed of by a decision on the points presented by the defence to the merits. The first question is whether the legal title to the property vested in Mrs. Cobb, by the adjudications made to her previous to the bankruptcy of her husband. In 1841, she obtained a judgment against her husband, decreeing that her property should be separated from his. It is contended that this judgment was not in accordance with the prayer of Mrs. .Cobb's petition, which simply demanded the restitution of her paraphernal property, and that the judgment was not, in fact, a judgment of separation of property, by which the community could be dissolved. Wo are not at liberty to'go behind the judgment which was rendered by a Court of competent jurisdiction, and which is not impeached on the ground of fraud or colluson. The objection that Mrs. Cobb was not the creditor of her husband, and had no dotal property which was in danger from the embarrassment of his affairs, and had therefore no right to a separation of property, cannot be sustained under the jurisprudence, as settled by our predecessors. In Davoc v. Darcey, 6 Rob. 342, it was hold that the right of the wife to a separation of property was not limited to the cases mentioned in Art. 2399 of the Codo, and that she might obtain a separation of property, when the habits and circumstances of her husband rendered it necessary to preserve for her family, the earnings from her industry or talents. The same question was afterwards decided in the case of Penn v. Crockett & Garland, 7 An. 343, where the right of the wife, which had been made the basis of an action of separation of property, was the value of a slave which had been given to the wife during the marriage, and had been alienated by the husband. The Court reaffirmed the former decision, and hold that in case of this derangement of the husband’s affairs, this was sufficient to authorize a judgment of separation of property in favor of the wife. After these repeated decisions, we must consider the law as settled, the question being one of the construction of statutory laws, involving no fundamental principles. The only other question to be determined on the merits, is whether the judicial mortgage of the plaintiffs can now be enforced on the property in consequence of the failure to record the sheriff’s deeds to Mrs. Cobb until the year 1847. On the 24th of August, 1841, the second writ under which the sheriff had seized and sold her property, was returned as satisfied. Mrs. Cobb went into possession, and in 1843 sold an undivided half of the property to the defendant, Lowry. The other defendants acquired title subsequently by sale under execution against Mrs. Cobb, and by a transfer from Lowry of his interest. The plaintiffs having caused their judgment to be reinscribed before the expiration of 10 years, now claim the right to have the property sold to satisfy their judgment, disregarding the former sheriff’s sale, and the effect it was supposed to have had of extinguishing the plaintiff’s mortgage. This, it is contended, must necessarily be the consequences of the failure to record the sheriff’s deeds in conformity with the Act of the Legislature of the 12th of March, 1813. This act declares that all sales of lands or slaves made by any Sheriff .or other officer by virtue of any execution shall be recorded as to land, in the parish where the land shall be situated, and as to slaves, where the owner has his domicil, and further provides that sales “which shall not be recorded agreeably to the provisions of the act shall be utterly null and void to all intents and purposes, except between tho parties thereto.” There are other provisions of the law to be considered in deciding upon the lights of the parties before us. Art. 685 of the Code of Practice, declares “If the seizing creditor be a vendor or has any privilege or special mortgage on the property seized and offered for sale which is anterior or entitled to a preference over other privileges or special mortgages existing on said property, ho may require that the property be sold at any price to pay him, although the purchase money be not sufficient to satisfy all the privileges or mortgages with which the property is burthened.” Art. 690. “ The adjudication itself, has the effect of transferring to the purchaser all the rights and claims which the party in whose hands it was seized might have to the thing adjudged.” Art. 708. “The purchaser is bound for nothing beyond the price of his adjudication, and if after paying the said creditor as directed in the preceding article, there remains nothing more due, to discharge mortgages subse. quent to that of the seizing creditor, the Sheriff shall give him a release from these mortgages.”

There was nothing left from the price of the adjudication to Mr. Cobb, to discharge any portion of the plaintiffs judicial mortgage, and it was the duty of the Sheriff to have’given a release to the purchaser from that mortgage. The price paid by Mrs. Cobb was applied to the extinguishment of the mortgages having priority over that of the plaintiffs. She was equitably subrogated to the rights of the antecedent mortgages under whose executions the property was sold, and had a right to avail herself of any legal or equitable defence, by which, these creditors, if they had become the purchasers of the property themselves, might have opposed the present action. Judice v. Ker, 8th An. 465. The plaintiffs were not injured by the failure to record the Sheriff’s deeds at the time the sales were made. They did not commence any proceedings to enforce their mortgage until after the deeds were placed on record. They then had notice that the property had been sold to satisfy the mortgages existing on it which had precedence over their own — it is true these prior mortgages were then cancelled, but they were cancelled by reason of the Sheriff’s sale of the property, made for the very purpose of satisfying these mortgages, and the sale could not under these circumstances have produced the effect of extinguishing the prior mortgages, without at the same time extinguishing the subsequent ones — Mrs. Cobb or those claiming under her, might at any time after the deed was put on record, have required the Sheriff to give the release of subsequent mortgages as provided in Art. 708, of Code of Practice. The plaintiff had acquired no intermediate rights to be affected by the failure to record the Sheriff’s deeds. Whatever rights they had, existed anterior to the Sheriff’s sale, and no objections being made to the fairness and regularity of that sale, the plaintiffs, as junior mortgagees, could have had nothing to oppose to the effect which the law declared should be given to it, of releasing the subsequent mortgagees in case there was nothing left from the price of the adjudication for their discharge.

The plaintiffs would not under any view that can be taken of their rights be entitled to have the property sold, to satisfy their mortgage without reimbursing the purchase money on the former sale, which has been applied to the ex-tinguishment of the mortgages which stood before them, and no such offer has been made. See cases of Sewell v. Payne & Harrison, 5th An. 255, and Coiron v. Millaudon, 3d An. 664.

We are therefore of opinion that a legal and equitable defence has been made out against the plaintiff’s action.

It is therefore decreed that the judgment of the Court below be affirmed with costs.


text:
    Heirs of Joseph Fowler v. Adam Beatty, Testamentary Executor.
    1. The endorser of a note secured by mortgage is not entitled to executory process, without authentic evidence of the transfer to him both of the note and mortgage.
    2. To entitle attorneys in fact to orders of seizure and sale, authentic evidence of their authority must be produced.
    3. And where the obligation is prima facie, prescribed, there must be authentic evidence of the interruption of prescription.
    from the District Court of the parish of Lafourche. Cole, J.

      Pace & Foster, for plaintiffs.

      J. C. Beatty, for defendant and appellant,
   Vooriiies, J.

On the 10th of July, 1840, Abner Pobinson made six promise sory notes to the order of Joseph Fowler, jun., amounting to $59,254, with ten per cent, interest from maturity until paid, and to secure the payment of the same mortgaged a certain plantation and'slaves. On the 7th of April, 1841,, he also made six other promissory notes, each for the sum of $5,000, to the order of W. Bogczi't & Co., which were endorsed in blank by the latter, and.in»-ventoried as belonging to the succession of Joseph Folder, jun., deceased..

The plaintiffs allege that the succession of Joseph Fowler, jun., was opened iii¡ August, 1S50, in the Second District Oourt of New' Orleans 5 that they were, duly recognized as his legal heirs, and as such put in possession of his succes-. sion, administered by Wilhelmus Bogart, as curator, by virtue of a decree cf that court; that upon a judicial partition, the Pobinson notes w7ore allotted to, certain of the heirs named in the petition, some of whom represented by John L. Dufief, James J. Fowler, and John II. Skinner, as their attorneys in fact;, that the capacity of said attorneys in fact is judicial^ recognized in the pro-v ceedings of the succession, a copy of which proceedings being annexed to this-, petition ; that after allowing all credits to w'hich the maker of the notes is cn~-titled, and which are endorsed thereon, the sum of $1.36,911 86,, will be due to. them on the 10th of February, 1854, as appears from the statement of interest annexed to their petition; that Aimer Robinson, whose estate is legally represented by Adam Beatty, died several years since; and that they exhibit against his estate a title and evidence of debt to the amount of $148,510 50, with interest, importing a confession of judgment and a special mortgage and privilege on the property described in their petition. The petition concludes with a prayer for an order for the seizure and sale of the property to satisfy their demand.

The order prayed for was granted on the 28th of December, 1853, for the sum of $136,911 80 ; with ten per cent, per annum interest thereon from the 10th of February, 1854, until paid, and $'250, charges for copies of records and acts filed with the petition. The defendant has appealed from this order of seizure and sale, and assigned for its avoidance, as ‘errors apparent upon the face of the record, 1st. That “ there is no authentic evidence of the transfer to J. Fowler or his heirs of the mortgage granted to W. Bogart & Co., bn which the order of seizure was taken.” This objection is well taken. The inventory of Fowler's estate is not in evidence. The endorsement of W. Bogart & Oo. is a matter in pais, of which the act of mortgage contains no proof; nor is there any authentic evidence of the transfer from them to the plaintiffs before us. It is well settled that the endorsee of a note secured by mortgage is not entitled to executory process against the mortgagor, without authentic evidence of the transfer to him both of the note and mortgage. 12 R. 230, 13 L. 515, 6 N. S. 531, 4L. 321. 2d. “There is no authentic evidence of the capacity of the parties as heirs and agents and attorneys of heirs in which they assume to act in this case.” There is no authentic evidence in the record of the alleged agency of John L. Bufief, James J. Fowler and John U. Slcinner. It is true there is an allegation to thateffect in the petition on which thejudgment putting the heirs of Fowler in possession of his estate is based, but we think this is insufficient, inasmuch as nothing shows that the principals intended to confer on their agents under the alleged powers of attorney, any other authority than that which was necessary to accomplish the object for which those proceedings were instituted. 4 A. 61, 5 A. 117, 2 A. 491.

We may also observe there is no authentic evidence of interruption of prescription. Union Bank v. Dosson, 7 An. 550.

The view which we have taken of the case renders it unnecessary to notice the other objections.

It is therefore ordered and decreed that the order of seizure and sale in this case be set aside and avoided at the plaintiffs and appellees’ costs. This decree to be without prejudice to the rights acquired by the purchaser under the order of seizure and sal$ already executed.

In this case it is ordered that the decree be amended so as to read as follows .

It is therefore ordered, adjudged and decreed that the order of seizure and sale granted by the Judge d quo be set aside and avoided, the plaintiffs and ap-pellees to pay the costs of both courts, and this decree to be without prejudice to the rights acquired by the purchaser under the order of seizure and sale already executed.


text:
    John Williams v. Piner & Co.—Grant & Barton, Intervenors.
    P. & Co. shipped to T. in New Orleans a lot of cotton, the proceeds of which were to be forwarded to G. &B. of New York. This arrangement was acceded to by G. & B., who wrote to the consignees, ¡prior to the attachment, to remit to them the proceeds of sale. Held: The cotton could not be attached as the property of P. & Co.
    PPEAL from the Second District Court of New Orleans, Lea, J.

      Benjamin, Bradford & Finney, for plaintiff.

      J. Livingston, for intervenors appellants.
   Ogden, J.

This suit was brought by attachment against F. D. Finer & Ira McKinney, and against the commercial firm of F. D. Finer & Go., of which the said Piner & McKinney are alleged in the petition to be the sole members. £. Yeatman & Go., cited as garnishees, and required to answer whether tliey had effects in their hands belonging to F. D. Piner and Ira McKinney, or to one of them, or to the firm of F. L). Piner & Go., answered negatively, with a qualification to the following effect: that they had received eighty-seven bales of cotton under a bill of lading annexed to their answer; that they had received a letter from Grant & Barton, of Philadelphia, (through their agent,) whoso names appear on the bill of lading, and that by said letter they were given to understand that the cotton was shipped by Hastings & McGracken for the firm of Piner & Fiser, for account of the parties mentioned in the bill of lading, and that by the letter they were requested to forward to Grant & Barton the proceeds of the cotton shipped for their account. The garnishees stated further, that since the attachment had issued, they had received a letter from F. D. Piner, surviving partner of Piner <& Fiser, informing them of the shipment and requesting them when the cotton was sold to forward checks for the proceeds to the houses mentioned in the bill of lading. A memorandum in the bill of lading shows that 17 bales of the 87 wore shipped for account of Grant & Barton, New York, who, as intervenors, have set up a claim to the proceeds of the sale.

The plaintiff’s petition was filed June 22d, 1S52, and the attachment was levied on the same day. The bill of lading is dated at Cold Water, in the State of Mississippi, April 20th, and the garnishees state the cotton was received on the 1st of May. By the evidence, it appears that they use two separate and distinct firms in Mississippi, of Finer & Fiser, and F. D. Piner & Go., the latter being composed of F. D. Piner and Ira McKinney. F. D. Piner was also one of the firm of Piner & Fiser. The latter firm of Piner & Fiser were indebted to Grant & Barton, of Philadelphia, who held their note at the time of this transaction, past due, for the sum of $516 25. Ira McKinney, who testifies in the case, states: “The firm of Piner & Fiser, by M. D. Fiser, made an arrangement with me as the firm of F. D. Piner & Go., to pay to Grant S Barton the proceeds of seventeen bales of cotton, by which arrangement F. D. Finer & Go. let Piner & Fiser have the 17 bales of cotton, which I caused to be shipped at the instance of M. JD. Fiser, with other cotton, to Cold Water, to Hastings & Me Gradeen, shipping merchants, and which I entrusted them to ship to B. Yeatman <& Go. New Orleans, on account of Grant & Barton.” This, it is contended by the counsel for the intervenors, was an agreement between the two firms, for the benefit of Grant & Barton, the creditors of Piner & Fiser, which, according to Article 1884 of the Civil Code, Grant & Barton, although not parties to it, have a right to enforce; and the case of Bonnefe & Co. v. McLane, 5th Ann. 225, is relied on in support of that position. If there was no proof of the arrangement in favor of Grant & Barton having been accepted by them previous to their attachment, it might perhaps still be contended that F. JD. Piner & Go., to whom the cotton at first belonged, having come under the obligation towards Piner & Fiser, of shipping it to New Orleans, to be sold for the benefit of Grant & Barton, that the cotton, having been thus shipped in pursuance of the agreement, the consignees, Yeatman & Co., held it and the proceeds of it when sold, in trust for Grant & Barton, for whoso benefit the agreement was made; that by receiving the cotton under such a bill of lading, Yeatman & Co. accepted a trust in favor of a third person, from which they would not have been discharged by paying the money over to either F. B. Piner & Co. or to Piner & Fiser, without the consent of Grant & Ban'ton, or without having first notified them of their acceptance of the trust, and permitting a sufficient time to elapse from such notification to justify the belief that Grant & Barton did not design to avail themselves of the benefit of the stipulation in their favor. We are relieved, however, from the necessity of deciding that question, because from the answers of the garnishees, it appears that Grant & Barton did accept the arrangement which was madoin their favor, and wrote a letter to Yeatman & Co., requesting them to forward the proceeds of the cotton. That the letter written to this effect, by Grant & Barton, was received by Yeatman & Co. prior to the attachment, we think may be inferred from the answers of the garnishees. They state first, that such a letter had been received from Grant <& Barton, without saying whether it was received prior or subsequent to the attachment, and immediately afterwards proceed to say, that since the attachment issued in the case, they had received a letter from the surviving partner of Piner & Fiser, informing them of the shipment. The cotton rvas shipped two months previous to the attachment. Ample time had intervened for Grant & Barton to receive information of the arrangement in their favor and instruct Yeatman & Co. on the subject, before the attachment was levied. The garnishees, by stating that the letter from F. B. Piner was received since the attachment, left it to be inferred that the letter from Grant & Ban'ton had been received prior to that time. At all events, it was the duty of the plaintiffs, under these circumstances, if they thought it left doubtful by the answers, to have given the garnishees an opportunity to explain. They were mere stakeholders, and had no interest to answer evasively.

There being no charge of fraud or combination between any of the parties to the injury of the plaintiffs, we think, on legal principles, the intervenors are entitled to a judgment in their favor for the proceeds of the seventeen bales of cotton received by the garnishees for their account.

It is therefore decreed, that the judgment of the Court below, as regards the claim of the intervenors, Grant & Barton, be avoided and reversed, and that there be judgment in favor of said intervenors against F. B. Piner, as member of the firm of Piner S Fiser, for five hundred and sixteen dollars twenty-five cents, with seven per cent, interest from Feb. 7th. 1852, until paid ; that the plaintiff’s attachment as regards the seventeen bales of cotton in controversy be dismissed, and that the proceeds of said cotton, in the hands of the garnishees, P. Yeatman & Co., be applied to the payment of the judgment in favor of the intervenors — the costs in both courts to be paid by the plaintiff and appellee.


author: Bucüaítan, J.

text:
    W. R. Wilder v. Franklin’s Executor.
    The court; iu this case refuser^to enforce a claim which was stale, and which had the appearance of being “ trumped up ” against a dead man’s estate.
    from the District Court of the parish of West Feliciana, Merriek, J.

      Batliff, for plaintiff and appellant.

      Brewer S Collins, for defendant.
   Bucüaítan, J.

This is a claim for work and labor done, presented under circumstances so suspicious that two District Judges have rejected it.

The petition, filed in April, 1848, declares that plaintiff constructed in 1887 or 1838, for Isaaa Franklin, on his plantation, two patent cisterns, value four hundred dollars, for which he was never paid. The proof in support of the claim is the testimony of two witnesses, each proving a different conversation , said to have taken place between plaintiff and Isaac Franklin, in March or April, 1846, in New Orleans, both conversations being of the same import, to-wit; that Wilder claimed of Franklin eight hundred dollars for the work which forms the object of this suit; that Franklin contended four hundred dollars was all that it was worth; that it was finally agreed between the parties that four hundred dollars should be paid, and received in full of the claim; and that Franklin promised to pay that sum on his return from his plantation, which would be in a few days. Franklin died on his plantation a short time afterwards — never having returned to town. The executor of Franklin pleads the general issue and prescription. The District Judge in his decision has commented with much reason, on the staleness of this demand. So long a period indeed had elapsed between the performance of the work and the judicial demand of payment, that plaintiff had forgotten, as his petition shows, in what year the work had been done. Taking the latest year mentioned by him, (1838) he suffered eight years to elapse before making any demand of payment of his debtor, one of the wealthiest men in the State: and at that late period, although his debtor confesses a certain sum due, which he, plaintiff, agrees to accept in full of his demand, the plaintiffs takes the precaution to have the acknowledgment and settlement repeated in the presence of different witnesses, without exciting any remark from Franklin, either as to the long period which had elapsed since the debt was incurred, or the pertinacity with which it was thus suddenly pressed. It is evident that both of the respectable District Judges who have passed upon this claim, regard it as trumped up and fictitious.

The evidence in support of it is pretended verbal admissions, the weakest kind of proof. These admissions come, moreover, from a mouth that is closed in death. Contradiction is, therefore, doubly impossible.

There is one circumstance about the evidence of the witnesses, by which the plaintiff has sought to establish his claim, that has particularly attracted our notice. The petition declares upon a contract for building two patent cement cisterns, “ for which they (South and Franklin) agreed to pay petitioner two hundred dollars each.” Yet the witness Lockwood says, “ I was present when W. B. Wilder made a demand on Mr. J. Franklin, for cisterns built on his plantation, in West Feliciana. I know that Mr. Wilder's account amounted to near eight hundred dollars, and that Mr. Franklin refused to pay that amount; they compromised after considerable talk. Mr. Franklin agreed to pay four hundred dollars, and that Wilder must look to South, for the balance.”

And the witness, O'Biennis, deposes as follows : “ I know that plaintiff built the cisterns on the plantation of Franklin and South. When Mr. Wilder presented his claim against Mr. Franklin, amounting to nearly eight hundred dollars, Mr. Franklin objected te pay the whole amount, but said that he acknowledged that four hundred dollars was for work that he was willing to pay for — and he told to Mr. Wilder, that he was to look after Mr. South for the balance.” Thus, each of plaintiff’s witnesses declares his knowledge that plaintiff’s account amounted to near eight hundred dollars, while the plaintiff alleges in the petition that the price contracted for, was two hundred dollars per cistern, making a total price of only four hundred dollars.

On the whole, we think that the Court of the first instance has done justice in rejecting the plaintiff’s demand.

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


text:
    James Dalzell v. Steamboat Saxon.
    Defendant received on board a quantity of molasses, to be delivered at tlie port of Louisville and reshipped thence to Pittsburg. The molasses was discharged at Portland, within the corporate limits of, but about two miles below, Louisville, and, while there, were damaged by a sudden rising of the river. Held: That under the evidence received without objection, of a usage of discharging Pittsburg freights at Portland, and under the proof that defendant made all reasonable endeavors to protect the molasses while at Portland, and to re-slnp it, the boat was not responsible for the damage.
    PPEAL from the Fourth District Court of New Orleans, Reynolds, J.
    ü Hamner & Hays, for plaintiff and appellant.

      Wolfe & Singleton, for defendant.
   Ogden, J.

The plaintiff shipped on board the steamboat Saxon 300 barrels of molasses, to be delivered at the port of Louisville, and to the captain of the steamer Saxon or his assigns. The bill of lading also contained a clause in the following words: “ Steamer Saxon agrees to re-ship at Louisville, to J. Dahell at Pittsburg, on the best terms she can, without extra charge for re-shipping.”

The molasses was landed in Portland, which is within the incorporated limits of Louisville, and, by a sudden rise in the river, before it could be re-shipped, a part of it was so much damaged that the agent of the consignee at Pittsbnrg would not receive it. This suit is brought to recover the value of the molasses, which was not re-shipped under those circumstances, and for damage occasioned by the overflow to that part of the consignment which was received at Pittsburg. It is shown by the evidence that it is usual for boats to discharge at Portland cargoes intended for immediate shipment to ports above Louisville, and it is shown that the agent of the boat at Louisville, without delay, engaged a steamboat at Louisville to take the molasses to Pittsburg; that the captain of the other boat on which the molasses was to be re-shipped, did not comply with his agreement, and that shortly after, the river rose so rapidly, that, with every exertion, it was impossible to prevent the loss which occurred.

We think the bill of lading, under the circumstances, and evidence of usage received without objection, was satisfied by a delivery on the wharf at Portland, and that all was done that could have been reasonably expected to procure a re-shipment of the molasses to its port of destination. The loss was occasioned by an inevitable accident, for which the owners of the Saxon, as bailees, cannot be rendered liable. Story on Bailments, § 25.

It appears, however, that there were savings, for which the defendants are liable. They sold the molasses which the consignee refused to receive, and are liable for the amount realized by the sales, after deducting such charges as they are entitled to make.

Their counsel expresses a willingness that a judgment should be rendered against them for such amount as the plaintiff may be entitled to recover on that score ; but the evidence does not enable us to decide what the amount is. The petition contains a prayer for general relief, under which the plaintiff is legally entitled to recover the savings ; and as the defendants, who alone could have furnished satisfactory evidence on this subject, have not enabled us to dispose of the case finally, it must be remanded at their cost.

It is therefore ordered and decreed, that the judgment of the court below be affirmed, so far as to exonerate the defendants from liability for the loss and injury to the molasses, and that the case be remanded for a new trial as to the liability of the defendants for the proceeds of the molosses sold by them — the defendants and appellees to pay the costs of this appeal.


author: Voorhies, J.

text:
    The State of Louisiana v. C. D. Potter, et al.
    Where there is no bill of exceptions in the record, and no assignment of error apparent on the face of the record, the judgment oí the District Court will be affirmed.
    PPEAL from the Eirst District Court of New Orleans, Robertson, J.

      Isaac E. Morse, Attorney General, for plaintiff.

      O'Meal, for defendants, appellants.
   Voorhies, J.

The defendant was convicted of manslaughter, and sentenced to five years’ imprisonment at hard labor, and to a fine. He has appealed! from that judgment.

, On the trial of the cause in the court below, no bills of exception appear to. have been signed. And in this court the appellants’ counsel has made no a§r signment of errors of law apparent upon the face of the reoord, nor made any points or argument. We have been unable to perceive any error of law ap* parent on the face of the proceedings.

It is therefore ordered, that the appeal be dismissed.


text:
    City of New Orleans v. The Mechanics’ Society.
    An association u to relieve the wants, comfort the suffering, and promote the happiness of their fellow-creatures,” is a charitable society, and exempt from taxation.
    from the Fifth District Court of New Orleans, Augustin, J.

      Labatt & Eustis, for plaintiffs.

      Mott & Frazer, for defendants and appellants.
   Ogden, J.

The defendants are appellants from a judgment rendered against them for the amount of a tax on real estate used by them for the purposes of their association, which the city claims the right to collect.

The defence is, that the property of the defendants is exempt by law from taxation. The case turns on the question recently decided in the case of Catholic Society for Religious and Literary Education v. The City of New Orleans, in which we held that the City could not legally collect taxes assessed on property exempted from taxation under the Act of the Legislature of 3d May, 1847, entitled “ An Actto provide a revenue for the support of the government of this State.” The Mechanics’ Society is a charitable institution. In 1850, the State made a donation to the society of a piece of ground, for the purpose of constructing thereon buildings for a library, locture-room, and cabinet of natural history and mechanical inventions, and for a course of lectures on the physical sciences. The property is exempt from taxation under the 3d and 4th Sections of Article 2d of the Act of the Legislature referred to, which exempts from taxation lots and buildings used for purposes of education and for charitable institutions for the relief of indigent and afflicted persons. The objects of the association are expressed in the preamble of their Constitution to be “ to relieve the wants, comfort the sufferings, and promote the happiness of their fellow-creatures.”

The defendants come clearly within the operation of both sections of this article, and their property has been illegally assessed for taxes by the city.

It is therefore ordered and decreed, that the judgment of the court below be avoided and reversed, and that there be judgment in favor of the defendants, with costs in both courts.


text:
    Thornhill, for the use, &c., v. Lloyd & Frierson.
    Where plaintiff claims $800 and ten per cent, damages, but alleges no ground on which damages are claimed, and offers no proof in support of the damages, the claim for damages will be regarded as nominal, and the Supreme Court is without jurisdiction in such case.
    from the Fourth District Court of New Orleans, Reynolds, J.

      Chilton & PerJdns, for plaintiff.

      Wolfe & Singleton, for defendants and appellants.
   Slidell, C. J.

The suit is for $300, with interest from judicial demand, and ten per cent, damages upon a draft drawn by H. J. Hildebrand, upon the defendants, a New Orleans firm, requesting them to place to the credit of S. F. Thornhill, with Thornhill & Co., who are residents of New Orleans, the bal-anee of the proceeds of the drawer’s cotton. It is alleged that the proceeds were three hundred dollars, that the draft was presented by plaintiff at New Orleans to the drawees, who promised to pay it within ten days, but that on due presentment they refused to pay. There is a simple demand for the ten per cent, damages, and without any suggestion whatever of the ground on which a right to recover damages from the acceptor is based. No grounds of such right being alleged in the petition, no liability therefor, by the acceptors being by law implied, and there-being no evidence whatever adduced at the trial in support thereof, we must consider the claim of damages by which the amount is swelled beyond $300, and which was disregarded by the judgment below, as merely nominal, and the Court consequently without jurisdiction. See Constitution, Article 02. Red River Railroad v. Williams, 16 La. 183. Copley v. Ross, 1 Annual, 311, and cases there cited. .

Appeal dismissed at costs of appellant.


author: VooitniES, J.

text:
    H. W. Palfrey, for the use, &c., v. B. Marigny.
    The Register of Conveyances is not responsible in damages, to a purchaser at Sheriff’s sale, on account of his false certificate, that the title to the land sold was in the defendant in execution, when the purchaser ought not to have been misled by the certificate, and when his own chain of title afforded him the means of knowing, that he held previously, a title good as against the one sold.
    PPEAL from the Fourth District Court of New Orleans, Beynolds, J.
    LX Hamner & Hays, for plaintiff and appellant.

      LeGardeur, for defendant.
   VooitniES, J.

The defendant, who is the Recorder of Conveyances for the city of New Orleans, is sought to be made responsible to the plaintiff, who sues for the use and benefit of William H. Garland, tutor of his minor children, in the sum of $2,100 for damages.

The record shows that a writ of seizure and sale was issued on a judgment at the suit of Alfred Mouchon v. Saul Mouchon, tutor, &c., in virtue of which a lot of ground, situated in the suburb Annunciation, together with the buildings and improvements thereon, was levied upon as the property of the defendant in execution, and, upon a certificate of non-alienation from the office of the Recorder of Conveyances, was adjudicated to the plaintiff for the sum of $2,100. On the 16th October, 1845, this lot was sold by the syndic of Paul Mouchon to James Grimshaw, who conveyed the same to J. G. Bernard, under whom Mrs. Frances M. Garland, wife of William H. Garland, held by virtue of a deed of sale, dated the 25th June, 1850. The record contains the following admissions: “ H. W. Palfrey purchased the property at Sheriff’s sale without knowing it was the same held by Mr. and Mrs. Garland. Having-ascertained it was the same, he agreed with Mr. Gcurland that he was to take his place as purchaser, and pay the sheriff; for this purpose Mr. G. consulted Mr. Hunt and afterwards paid the money to the sheriff or furnished the amount for me to pay him. Mr. G., Mr. Hunt and myself were together in the Sheriff’s office where the money was paid, and Mr. Bermudez, attorney of plaintiff in the case, was also waiting there to receive it. In conversation with Mr. Garland, I told him that I considered the new title a good one, and his title as invalid. For this reason he decided on taking my place.”

It is obvious from this state of facts that Henry W. Palfrey had full knowledge of the antecedent alienation, and, in consequence of which, ceded his bargain to Mr. Garland, by whom the price of adjudication was paid. Not having sustained any injury from the error committed by the Recorder of Conveyances in his certificate, it is clear, therefore that he has no just or legal ground of complaint. Garland being then the real purchaser at the Sheriff’s sale, it is evident that he could not have been misled by the certificate of the defendant’s deputy, because at the time and previously, he must have been aware of Paul Mouchon’s divestiture of title to the same property; nay he himself or his wife, was the owner of it by the outstanding title, as to the existence of which, the plaintiff alleges he was induced in error through the defendant’s fault. 2 An. 265.

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

A re-hearing is asked in this case. But we see no reason to change the judgment. In saying that Garland was not misled by the certificate, our meaning would, perhaps, have been more properly expressed, if we had said, he ought not to have been misled. -His own chain of title afforded him the means of knowing that his title was good against the plaintiff in execution.

Re-hearing refused.


text:
    D. A. Wogan v. W. W. Thompson.
    A specific return of “ IfoiUa'bon-a” on execution against th<5 defendant is not necessary to fix the liability of the surety on appeal bond.
    Where there has been a change in the condition of the defendant, so that the creditor cannot take out execution, or make a levy under execution, the liability of the surety on the appeal bond, is at once fixed.
    from the Fourth District Court of New Orleans, jReynolds, J.

      Goold «lb Stansbury, for plaintiff.

      Emerson & Huntington, for defendant and appellant.
   Buchanan, J.

This appeal is taken by the surety on an appeal bond, from a judgment against him after execution against his principal, which was returned unsatisfied, “the defendant having obtained-a stay of proceedings against his person and property from the Third Judicial District Court, for the parish of Jefferson.” The appellant relies upon the phraseology of the 20th section of the Act of 1839, (page 170 of the session Acts) requiring the specific return of “nulla bona” to fix the liability of the surety on an appeal bond ; and he quotes the overruled case of Chalarou v. McFurlan, in 9th La. Rep. But the law and the decisions upon this matter were fully reviewed in Ally v. Hawthorn, 1st Annual, page 122 ; and we adhere to the doctrine there enunciated, that if the creditor cannot take out an execution or make a levy under an execution, by reason of a change in the condition of the judgment debtor’s estate, which prevents its being reached by that process, the liability of the surety on the appeal bond is immediately fixed.

Judgment affirmed with costs.