author: Kins, J.

text:
    Gibson v. Selby.
    'The rale that all the parties to a judgment from which an appeal is taken must be made parties to the appeal, is only .deviated from in the case of merely nominal parties, who are without interest.

      Where, on dissolving an injunction, judgment was rendered against the plaintiff and his surety in solido for interest and damages, .and the former appeals, the latter must he cited as an appellee, or the appeal must be dismissed. He is not a merely nominal party.
    The fact that the appellee himself, as a judge, granted the appeal, will not, when in the order granting the appeal he expressly declines to waive any of his personal rights as a litigant, excuse the omission to cite him.
    Wherein the petition for an appeal there is no prayer for the citation of any appellee, the omission to issue citations will not be considered as negligence on the part of the clerk.
    APPEAL from the District Court of Carroll, Curry, L This case was .argued on .a motiou to dismiss.

      Bonford, for the appellant.

      Gi.bson is the only party plaintiff, and Selby the only party defendant in the present action. It is true, the judgment dissolving the injunction is rendered against the present plaintiff and his surety. But the judgment against the surety is only incidental, and .is effective in so far only as the principal judgment against the plaintiff can be maintained. It is only where a party to the suit, having» real adverse interest to the appellant, is not cited, that the appeal will be dismissed. Here the surety is neither properly a party to the suit, nor is his interest adverse to that of the plaintiff. In the case of Brigham v. Taylor, 2 An. R. .906, it does not appear that the plaintiff’s surety was made a party to the appeal. The objection was that the real party in the cause, whose interest was adverse to that of the plaintiff, was not cited as appellee — an objection which the court properly determined to be fata! to the appeal. But it was not supposed that the appeal was defective, because the plaintiff’s surety was not made a party. No case has been presented by the defendant to this effect. The practice has never been to include the surety as a necessary party to the appeal.
    The ground of dismissal is, that the defendant hasnotbeen cited on the appeal. The defendant himself signed the order of appeal. Could a citation have effected more than the notice derived from his own act, that an appeal had been taken. The citation emanates from defendant as judge. Shall the omission of a vain formality — that of the defendant citing himself to appear in the appellate court — be deemed essential to the right of appeal ? If the court should be of this opinion, it is submitted that this case would justify the same action as was taken in 9 La. 471, viz: the granting of further time to the appellant to cite the appellee.

      Browder, on the same side.

      Selby, defendant, pro se, contended that the appeal must be dismissed. All the parties to the judgment below, are not cited. 9 La. 471. 12 La. 474. 15 La. 363. 3 Rob. 140. 5 Rob. 225. 11 Wheat. 414. 2 Peters, 140. 7 Peters, 399. 8 Peters, 268, 526. Brigham v. Taylor, 2 Ann. R. 906. There was no citation, nor copy of petition of appeal served on the defendant. C. P. 581. 582. 14 La. 292. i

      Thomas and Snyder, also appeared for the defendant.
   The judgment of the court was pronounced by

Kins, J.

The appellee has moved to dismiss this appeal on the ground, among others, that all of the parties contradictorily with whom the judgment was rendei'ed have not been made parties to the appeal, and that the appellee himself has not been cited.

Gibson, the appellant, enjoined the execution of a fieri facias, and sought in the same action to annul the judgment under which the writ was issued. The injunction was dissolved, and the plaintiff and his surety on the bond were condemned in solido to pay interest and damages on the amount-of the judgment injoined. On a motion made in open court an appeal was granted, which was not prosecuted. The present appeal has been brought up, on an order granted by the judge on an application made by petitiun. Citations were, therefore, necessary. But neither the surety in the injunction bond, against whom judgment was rendered, nor the appellee have been cited: nor has the appellant prayed that they be cited in his petition for an appeal. The settled rule, that all the parties to the judgment appealed from must be made parties to the appeal, is only deviated from in the instances of merely nominal parties, who are without interest. Drew v. Atchison, 3 Rob. 140. 5 Rob. 225. 12 La. 474. 15 La. 362. Hobgood v. Brown, 2 An. Rep. 323.

By the act of 1831, (Acts, p. 102,) the surety on an injunction bond is a party plaintiff in the suit, and, on the dissolution of thej injunction,r{a;judgment in solido is to be rendered against him and his principal. He is not a merely nominal party to the judgment in the present instance, but has an interest in having it maintained, so long as he himself is held bound. If we were permitted to consider the appeal and to reverse the-judgment as to the appellant, it would still remain in force and might be executed against the surety. It was indispensable to the consideration of the appeal, that he should£have been brought before this court. The reason assigned for the failure to cite the appellee, i. e. that he was the judge who granted the appeal, is insufficient to excuse the omission. The appellee, in the order which he granted under the mandate of this court, expressly declined waiving any of his personal and private rights as a litigant.

The first appeal was taken in April, 1846,-and, as we have said, was not prosecuted. The second was granted in August, 1847. The appellant has thus had two years to bring up his appeal, and has not, in our opinion, used the diligence which entitles hin} to further indulgence. The failure to issue citations, under the prayer of the petition for an appeal, cannot fairly be considered as the result ef negligence on the pari of the clerk.

Appeal dismissed.


source: Caselaw Access Project

author: Slidell, J.

license: Public Domain

text:
    Smith v. McMicken.
    Where a debt due to a partnership had been transferred by a member charged with the liquidation of its affairs, but who was without authority to make such a transfer, and the other partners subsequently ratify the act, they being thereby estopped from questioning the authority of the liquidating partner, any creditor, who by seizing their interest in the debt, pretends to hold under them, will be also estopped from questioning it.
    A judgment creditor of persons who were members of a partnership then in a state of. liquidation, for a debt not a debt of the partnership, cannot seize under a fi. fa. a judgment which was an asset of the partnership, nor acquire any legal rights by seizing the interest therein of the individual partners, the defendants in the execution.
    An individual creditor of a partner cannot seize under a fi. fa. a particular asset of the partnership, nerr the interest of his debtor in a particular partnership asset, He must await the liquidation of the partnership, and, in the meanwhile, seize the residuary interest of the partner in the partnership generally, by seizing in the hands of the partnership, or of the person charged with its liquidation and representing it. The partnership assets are a trust fund for the partnership creditors, who must be paid before the individual partners, and consequently their creditors, can receive any thing.
    Partners under our law are not tenants in common, in the sense of that term in th« english law.
    APPEAL from the District Court of West Feliciana, Penn, J.

      Pitot and Denis, for the plaintiff.

      Muse, Merrick and Phillips, for the appellant.
   The judgment of the court was pronounced'by

Slidell, J.

In the year 1835, a commercial partnership' was established in New Orleans, under the firm of Peyroux, Arcueil Sy Co. Its members were Sylvain Peyroux, L. II. B. Arcueil, L. A. Barjac, and Wm. A. Dawson. This firm went into liquidation in 183,9. In that year a new firm was formed under the style of Peyroux, Arcueil Sy Co., composed of the following persons, P. O. Peyroux, L. It. B. Arcueil, L. A. Barjac and F. Paul; so that only two of the partners of this new house, Arcueil and Barjac, were members of the old firm. In 3 839, the old firm of Peyroux, Arcueil Sy Co. brought suit against Farrar and wife, who had been for some years its debtors. Judgments were obtained.

In Mai'ch, 1844, Arcueil, professing to act under a power of attorney as liquidating partner of the old firm, which power, contained no special authority to seJi the assets, sold and transferred, for a valuable consideiation, to Boyle, the judgmonts obtained by the old firm against Farrar and wife. In the same month and year, Boyle transferred the judgments to Smith, the present plaintiff, and Smith has subsequently, and during the pendency of this cause, transferred them to the Consolidation and Citizens-Banks, who are now the real plaintiffs in this action. '

In 1844, Charles McMicken, the present defendant, being a creditor of the new firm of Peyroux, Arcueil SyCo., obtained a judgment against the new firm and its members, P. O. Peyroux, Barjac, Arcueil wad Paul. A writ of fieri facias was issued upon this judgment, upon which, as appears by the sheriff’s return, he seized in July and August, 1844, the judgment against Farrar and wife, and the rights of the respective members of the new firm of Payroux, Arcueil Sy Co., the defendants in execution in said judgments. The property seized was advertized for sale, and Smith then applied for and obtained an injunction in the present suit, alleging his ownership of the judgments under the transfers by the old firm to Boyle, and by Boyle to himself. The defendant answered by a general denial, and also expressly denied that any valid and legal assignment of the judgments against Farrar and wife was over made to Boyle, or to any other person.

Two points upon the merits are presented by the defendant: 1st. That no legal transfer from Peyroux, Arcueil and Co. to Boyle was ever made. That the transfer made by Arcueil to Boyle was a nullity as to the partnership, and as to creditors of the firm or of any individual composing it, because, as liquidating partner under the power of attorney, he possessed no authority to alienate the assets of the partnership. 2d. That no notice of the transfer from Peyroux, Arcueil ¿j- Co. to Boyle, nor of the transfer from Boyle to Smith, was given before the seizure to the debtors, Farrar and wife.

I. Evidence was offered to show that the assignment to Boyle enured to the benefit of the old firm. But this evidence was excepted to, and was rejected by the district judge. Whether it was properly rejected or not, we deem it unnecessary to consider. It results from authentic evidence that Arcueil and Barjac, the only members of the new firm who were partners of the old firm, recognized and affirmed the transfer to Boyle before McMicken's attempted seizure. They were thus estopped from questioning the assignment by the liquidating partner of the old firm to Boyle, on the score of authority under the power of attorney; and this estoppel precludes McMicken, who, by his seizure of their interests, pretends to hold under them.

II. Upon the question of notice, the record exhibits evidence which leaves upon our minds no moral doubt that notice was duly given. But the competency of the witnesses by whom it was proved, was excepted to. We are not obliged to consider the question of competency, and may disregard that evidence entirely. For there is a question which stands before the question of notice, and overshadows it. If solved in favor of the plaintiff it will become unnecessary to enquire whether notice of the assignment to Boyle was duly given. That question is, whether the seizure made by McMicken was lawful ? Whether upon an execution against certain members of the old firm of Peyroux, Arcueil Co. for a debt.not the debt of that firm, McMicken could seize the judgment which was an asset of the old firm, or even acquire any legal right by seizing what is termed in the sheriff’s return, the interest of the individual partners, who were defendants in the execution ? If such seizure was unlawful and conferred no right upon the seizing creditor, it obviously follows, that McMicken has no right ,to discuss the question of notice as affecting the transfer.

For the proper consideration of this question, which propounded in its simplest form is, whether a creditor of a partner can seize a particular asset ot the partnership, or even what he chooses to call the interest of his debtor in a particular partnership asset, it is necessary to consider briefly the nature of the contract of partnership, and the consequent character.of partnership property and the rights of its members. By such a course of enquriy we will be enabled to ascertain the true purport of the expression, “ the share of any partner,” which article 2794 of the Code, permits to be seized and sold to satisfy his individual creditors.

• Our Code has defined a partnership to be, a synallagmatic and commutative contract, made between two or more persons, for the mutual participation in the profits which.may accrue from property, credit, skill, or industry, furnished in determined proportions by the parties. Art. 2772. This definition, for the purpose of our present enquiry, is substantially the same as that found in the Coda Napoléon, and that given by Pothier. It accords with the civil law as presented by Domat, who defines partnership to be a covenant by which two or more persons unite in carrying on some commerce, some work, or some other business, that they may share among them all the profit or loss which they may have by the joint stock which they have put into the partnership. He cites the principle of the roman law — Sicuti lucrum, ita damnum quoque conmuno esse oporlet. And if we look to the common law writers, we find in the general theory a substantial harmony with our own, with the French, and with the civil law. It is a contract, says Chancellor Kent, of two or more persons to place their money, effects, labor, and skill, or some or all of them in lawful commerce or business, and to divide the profit and bear the loss in certain proportions. See Code Napoléon, art. 1832. Fothier, Gontrat de Societé, p. 1. Domat, book 1, title 8, sec. 1, §1.

Being, in every jurisprudence with which we are acquainted, considered as taking its origin in the contract of the parties, and .each partner being bound to respect and fulfil the contract, it is obvious that no person claiming to hold under any of the parties, after the formation of the partnership, can derive any legal right or benefit through a violation of that contract. It is also to be ovserved that a participation of the profits is of the essence of partnership. But profits are the excess of gain over loss. From these essential characteristics of the contract, us exhibited by the very definition of our Code, and by its other provision's upon this subject, there results a principle which is consecrated by the jurisprudence of centuries, and rests upon authority too high to be questioned. The partnership once formed and put into action, becomes, in contemplation of law, a moral being, distinct from the persons who compose it. It is a civil person, which has its peculiar rights and attributes. Une personne Active et morale séparée des associés. Fictas cujusdam personas-vicem obtinet. Seethe authorities cited in Troplong on Part. §68, Sec. Hence, therefore, the partners are not the owners of the partnership property. The ideal being thus recognized by a fiction of law, is the owner;- it has a right to control and administer the property, to enable it to fulfil its legal duties and obligations; and the respective parties, who associated themselves for the purposes of participating in the profits which may accrue, are not the owners of the property itself, but of the residuum which may be left from the entire partnership property, after the obligations of the partnership are discharged.

This distinction between the partnership as an abstract ideal being and the ¡persons who compose it, is illustrated by rules so familiar that it would be an unnecessary waste of time to argue in their defence. Thus the failure of the partnership does not involve the failure of its members. The creditor of a partner, who is at the same time the debtor of the partnership, would not,when sued by the partnership, be permitted to plead the debt due to him by the former in compensation. So a member of the partnership, sued by his individual creditor, could not plead in compensation a debt due by his creditor to the firm. Ward v. Brandt, 11 Mart. 331. Terran v. De Lastra, 2 La. 326. Pardessus, part. 4, tit. 1, ch. 1, sec. 3. So it has been held in France that the wife’s tacit mortgage does not attach upon real estate belonging to the firm. Dalloz, Hypothéque, p. 166.

From these principles we think it fairly results that, the individual creditor of a partner cannot seize a particular asset the property of the partnership, nor even the so called interest of the partner in it, under the pretext that 'his debtor has an undivided interest in it. He must await the liquidation of the partnership, and, in the mean while, lay hold of the residuary interest of the partner in the partnership generally,by levying a seizure in the hands of the partner-" ship, or the person charged with its liquidation and representing it. Such is the opinion expressed by Troplong, who is sustained by the authority of Pardessus. Le créancier particulier d’un assoeié ne peut done faire saisir les eilets et autre choses formant l’actif de la socíété, sous pretexte qu’une partie indivise en appartient á son débiteur. II doit attendre la liquidation, se borner á former des oppositions susceptibles de conserver ses droits, et exercer ceux de son debiteur, dans le partage des profits. Pardessus, Droit Commercial, part 4, tit. 1, cb. 1, sec. 4.

If a contrary doctrine were recognized, it would not only clash with the contract of the partners when they entered into the partnership, and with the essential rights and attributes of the partnership, but in practice would lead to a confusion which might prove inextricable. If numerous creditors of the partners lay seizures in the hands of various debtors of the partnership, thus 'entangling perhaps its only assets, how is the partnership to be liquidated? The partnership assets are a trust fund for the partnership creditors, who are to be paid before the respective partners, and, by consequence, their creditors can receive any thing. But the duty of the partnership is frustrated, and may become utterly impracticable, if its control over its own property is wrested from it. Such a state of things would enable the creditor of the partner to do what the partner could not himself do. It would, be in direct'conilict with the spirit of that provision of the Code which says that, “ every partner may make use of the things belonging to the partnership, provided he employs the same to the uses for whieh they are intended, and he does not use them in such a manner as to prevent his partners from using them according to their rights, or against the interest of the partnership.” Art. 2841.

If doubts have existed on this subject in pur pourts, and the practice has grown up of seizing the assets of the partnership, instead of seizing the residuary interest of the partner in the hands of the partnership, it has arisen from looking to the englisli authorities as laid down by the courts of common law jurisdiction; authorities which we cannot follow on this subject, without breaking down on our own jurisprudence.

In Fox v. Hanbury, Lord Mansfield said : “ If a creditor takes out execution against one pai’tner, as in Salk. 392, the vendor would be tenant in common.” In Haydon v. Hayden, Salk. 392, Lord Holt said: “ The sheriff .mast seize the whole and sell-a moiety thereof undivided, aDd the vendee will be tenant in common with the other partner.” This doctrine rests upon a basis which is certainly false under our system, to wit, that partners are tenants in common. And even in England the courts of common law have, in later times, become alarmed at this doctrine, and doubted its correctness. In Burton v. Green, the defendant was sued for a false return of nulla bona. It was proved that the defendant in execution had a one-third share- in a.colliery, where there were goods and fixtures belonging jointly to him and his partners to more than three times the amount to be levied under the execution; and it was contended, on the part of the plaintiff, that the sheriff should have levied on this joint property to the extent of one-third. The defence was that, partnership property could not be seized under a writ of fieri facias sued out against one partner only; and that, even if it could, a commission of bankrupt had been sued out against the debtor, and the property in the goods had'passed to the assignees. Lord Tenterden, among other remarks, said: “lam not quite satisfied as to the interest which the sheriff might have sold under the execution. There is great difficulty in making the sheriff a tenant in common with the partners.” 3 Carrington and Payne, 306. See also the opinion of Kent, Chief Justice, in Wilson & Gibbs v. Conine, 2 John. 281.

We are of opinion that McMicken took nothing by his seizure either of the judgment, or the so called interest of JLrcueil and Barjac in it.

Judgment affirmed.

       Bubtis, C. J,, being interected, did not sit on the trial of this case.


text:
    Succession of Harrell.
    Notes not payable to order or bearer, are subject only to the prescription of ten years, estab^ lishedby art. 3508 for-personal .actions generally.
    It is not neceessary to interrupt prescription, tbat the acknowledgment of a debt should bo in writing, nor that it should be made in the presence of the- creditor. C. C. 3486, 3517.
    The owner of a note due by a solvent succession is entitled to legal interest from the death of the debtor, though there was no stipulation in the note for the payment of interest* C. P. 989.

      APPEAL from the District Court of East Feliciana, Boyle, J.

      Delee, for the appellants.
    The admissions of the deceased were insufficient to interrupt prescription. 9 La. 562. 10 La. 569. 5 La. 205. 3 Mart. N. S. 707.

      Merrick, contrá.
   The judgment of the court was pronounced by

Kins, J.

The administrators of James M. Harrell, deceased, filed an account of their administration of his succession, which was opposed by Cassandra Harrell, who alleged that she was a creditor of the deceased for the amount of three promissory notes, and that the administrators refused to pay her demand, or to recognize it in the account presented. She prayed to be placed upon the account as a creditor, and for a decree ordering her to be paid in due course of administration. The administrators, in their answer, neither admit nor deny the execution of the notes, but hold the opponent to strict proof of the signatures of the deceased; they deny that the notes have ever been legally presented, or that they have been admitted by any person having authority to do so: and they further plead that the notes have been prescribed by the lapse of time. The opposition was sustained in the court below, and a judgment was rendered in favor of the opponent for the amount claimed, with interest from the death of the deceased ; and the administrators have appealed.

I. It is contended that, the execution of the notes has not been sufficiently proved. A witness swears that he has frequently seen the deceased write, and sign his name, and thinks that the signatures to the notes .are his. It is true, that the witness does not declare that he knows the signatures to be genuine, nor could he have sworn to more titan his belief of their genuiness from his knowledge of the hand writing of the deceased, without having seen him execute the notes, or heard him acknowledge his signatures. C. P. 325. 2 Greenleaf on Ev. s. 576. This testimony, however, is supported by proof of repeated acknowledgments of the deceased to different persons, that he owed the opponent three notes, corresponding in amount with those claimed, and these acknowledgments were continued to within a few days of his death. We think that the execution of the notes has been satisfactorily proved.

II. The ground principally relied upon by the appellants is prescription. Two of the notes ere not drawn payable to order or bearer, and are consequently only subject to the prescription of ten years, applicable to personal actions generally. C. C. 3508. One .of them matured on the 1st of March 1837, and the other on the 1st of March, 1838. The third note is payable to order, and matured on the 1st of January, 1840. The plaintiff’s opposition w»as served on the 9th of June, 1847. Thus more than ten years elapsed between the maturity of the first note and the judicial demand, and more than five years elapsed between the maturity of the third note and the service. The opponent relies on acknowledgments of the debt made by the deceased and by his executors, to show interruptions of the prescription with regard to both notes.

The overseer and manager of the deceased says that, he held a conversation with the deceased in relation to the notes in controversy, in February, 1844. The deceased was about to absent himself from the State, for the restoration of his health, which was delicate. He said that he owed the opponent three notes amounting to about SI,700, and that he wished to make a large crop for the purpose of paying them. The notes were not exhibited to the witness when the conversation was held, but he saw them during the same year in the possession of the opponent. The opponent was not present at the conversation, It was a conversation in reference to the business of the deceased, which he was giving in charge to the witness. Two other witnesses state that the deceased told them repeatedly, in 1844, that he was indebted to his mother, the opponent, by note., for money borrowed, and spoke of his desire to pay the debt, but mentioned neither the number nor the amount of the notes. The last admissions of the debt by the deceased, were mad.e during his last illness, a few weeks previous to fiis death. He then spoke of it as being due on notes in the possession of his mother. This testimony leaves no reasonable doubt, that the repeated acknowledgments of the deceased were mad.e with reference to the notes now in controversy, the number and amount of which he described. They are distinct acknowledgments of a specific debt, made before prescription had been completed on either of the notes. The objection urged that the acknowledgments were merely verbal, and not made in the presence of the creditor, and therefore did not interrupt prescription, are untenable. Our Code neither requires that the acknowledgments of the debt should be in writing, nor that it should be made in the presence of the creditor, in order to interrupt the prescription. C. C. 3486, 3517. Erwin v. Lowrey, 2 An. Rep. 315.

.We think that the interruptions of the prescriptions pleaded, by repeated acknowledgments of tlxe deceased, haye been clearly established. It therefore becomes unnecessary to enquire into the effect to be given to the recognition of the notes by the administrators, or to consider the evidence in relation to the credits endorsed upon them.

The judge did not err in allowing interest from the date of the testator’s death, on the two notes which stipulated for no interest. C. P. art. 989.

Judgment affirmed.


author: King, J.

text:
    Clark v. The State Bank of Alabama.
    A judgment creditor is not bound to resort to a revocatory action before seizing property^ which he believes to belong to his debtor, and to be held by a third-person under a sima* lated sale. If opposed in the excution oí his writ, he will be allowed to show the transfer to be simulated; but to authorize such proof, when the possessor avers that he is the owner and exhibits a title, simulation must be specially alleged in the answer. The possessor must be informed by the pleadings of the attack to be made on his title, or testimony to establish its simulation will be inadmissible.
    APPEAL from the District Court of Carroll, Copley, J.

      Short, for the plaintiff.

      Harmon, for the appellants.
   The judgment of the court was pronounced by

King, J.

The sheriff seized a slave in the possession of the plaintiff, .under an execution issued upon a judgment obtained by the Bank of Alabama against T. J. Couch. Clark instituted this suit to enjoin the writ, alleging thathq was the owner of the slave seized, by a title derived from Jordan. The answer of the bank was a general denial of all the allegations in the plaintiff’s petition, and of tlie plaintiff’s right to sue out an injunction. Upon these pleadings the parties proceeded to trial. The defendants offered to prove that, the sales of the slave seized, by Couch to Jordan, and by Jordan to Clark, were fraudulent and simulated. The testimony was objected to, and excluded, on the ground that it was inadmissible under the pleadings; and the defendants took a bill of exceptions. The plaintiff having exhibited a title under private signature aceompanied by possession, the judge perpetuated the injunction, without prejudice to the right of the defendants to seek the recision of the saie on the ground of fraud or simulation in a direct action, and the defendants have, appealed.

The judgment creditor is not bound to resort to a revocatory action before seizing property which he believes to belong to his debtor, and to be held by a third person under a simulated sale. We have repeatedly held that, in such eases, the creditor may disregard the pretended title and seize, and that, in the event of being opposed in the execution of his writ, he will be permitted to show the transfer to be simulated and unreal. Wright v. Chambliss, 1 Ann. Rep. 262. Hobgood, v. Brown, 2 Ann. Rep. 324. But in order to authorize the introduction of such proofs, simulation must be specially alleged in the answer, when the possessor of the property seized avers that he is the owner, and exhibits title in support of his alleged ownership, tie must be informed by the pleadings of the intended attack to be made upon his title, that he may prepare for his defence. No such notice was given by the pleadings in the present instance, and the judge did not, in our opinion, err in rejecting the testimony offered. Judgment affirmed.


text:
    Hall et al., Syndics v. Nevill et al.
    A motion to dismiss on the ground of informality in the mode of bringing up an appeal, must ho made within three judicial days after the filing of the record.
    A sale of a tract of land, which is described by its name and as containing a certain number of acres, is not a sale pm- aversionem, the property not being designated by adjoining tracts, nor sold from boundary to boundary.
    A purchaser at a judicial sale is not protected in the case of a mere redhibitory vice; but whore there is a deficiency in the quantity of land sold, the purchaser at a syndic’s sale is entitled to a proportional diminution of the price. C. C. 2598, 2599. His rights are not as broad as those of an ordinary vendee, who may have the entire contract rescinded in case of partial eviction, whore the part from which he is evicted is of such consequence relatively to the whole that he would not have purchased without the part from which he has been evicted. C. C. 2487.
    The sale of the property of another is null; and in such a case eviction by judicial authority is not required to entitle the purchaser to relief. C. C. 2427.
    Where the purchaser was aware, at the time of the sale, that the thing sold belonged to another, art. 2427, by implication, refuses him damages in case of eviction ; but it does not affect his right to recover the price. That right exists though the purchaser was aware that the thing sold belonged to another, unless excluded by express stipulation, or unless the purchaser bought expressly at his own risk and peril. C. C. 1960, 2481.
    APPEAL by the defendants from a judgment of the District Court of West Feliciana, Penn, J. There was a motion to dismiss this appeal, on the ground that one of the defendants had given no appeal bond.

      Phillips and Ratliff, for the plaintiffs.

      Moise, Merrick, and Brewer, for the appellants.
   The judgment of the court was pronounced by

Slidell, J.

There is a motion to dismiss the appeal as to one of the defendants. It comes too late, not having been made within three judicial days after the record was filed. See O'Reilly v. McLeod, 2 Ann. Rep. 138.

This suit is upon notes given for the price of land, and the defendants resist the payment upon the ground of a deficiency in the quantity. They ask the reeision of ths sale, or, at least, a reduction of the price. The land was adjudicated to the defendant Stephen Nevill, at a syndic’s sale of the estate of the insolvent, Dunbar, by the following description: “ One tract of land called the Posey tract, containing four hundred acres.” This was not a-sale per aversionem, the property not being designated by adjoining tracts or tenements, nor sold from boundary to boundary.

The deficiency alleged is one hundred and sixty acres, being more than one twentieth. It is said that purchasers at syndic’s sales obtain only the right, title, and interest of the insolvent, and cannot refuse to pay the price bid, unless they are actually evicted, or a disturbance is apprehended. We are referred to articles 2180,2597 and 2598 of the Civil Code. In the case of mere redhibitory vices, the purchaser at judicial sale is not protected. But where there is a deficiency of quantity, as is alleged in the present case, the purchaser at a syndic’s sale is entitled to the same relief'as an ordinary purchaser. See Davenport's Heirs v. Fortier, 3 Mart. N. S. 697. We proceed therefore to the consideration of the alleged deficiency, and of the title of the insolvent.

Dunbar surrendered a tract of land called the Posey tract, which was stated in his bilan as containing four hundred acres. He purchased a tract of Margaret Posey of two hundred and forty acres, the title of which is not disputed, and the deed then declares: “ It is understood by the aforesaid parties agreeing that the improvements purchased by the said Margaret Posey from Wylie Moore, and by said Moore from Francis Marks, are included in this transfer, the above improvements being probably public land.” The tract has been surveyed under an order of court. There are two hundred and forty acres, of which the title was in Dunbar; but the residue, one hundred and sixty acres, has never been severed from the public domain. The plaintiff’s counsel acknowledges, in his brief, that Dunbar was, to that extent, the transferee of what he terms a settlement right.

No purchase having ever been made of the United States, the syndic’s sale of this tract, so far as it involves the public land, namely, one hundred and sixty acres, was the sale of the property of another, and consequently null. The possession of Dunbar, and by consequence that of the defendants, acquired from the syndic, was a trespass upon the public domain. That possession did notdivest, nor affect, the title of the United States. In a case like the present a regular eviction by judicial authority is not required, to entitle the purchaser to relief. See Civil Code, 2427. Pepper v. Dunlap, 9 Rob. 289.

Evidence was offered at the trial to prove that, prior to his purchase, Nevill knew that the title to the one hundred and sixty acres was defective. This testimony was immaterial, and was properly rejected. It would not debar the defendant from resisting payment pro tanto. It is true, article 2427 of the Code, by implication, refuses damages, when the buyer was aware of such ownership; but it does not affect in such a case the right of relief as to the price. That right exists even where there was knowledge on the part of the buyer, unless excluded by a stipulation of non-warranty, and where the purchaser has expressly bought at his own risk and peril. See C. C. 2481, 1960. Code Napoleon, 3599, 1629, 1630. Duranton, vol. 16, § 362. Troplong, Vente, § 482. Such also appears to have been the doctrine of the civil law.

But although the defendant is entitled to relief, his rights are not as broad as those of an ordinary vendee. The latter may have the entire contract rescinded in case of partial eviction, where the ovicted part of the thing sold is of such consequence, relatively to the whole, that he would not have purchased it without the part from which he is evicted. C. C. 2487. But the purchaser at a judicial sale, is entitled to a proportionate diminution only. C. C. 2598, 2599. C. N. 1636. Pailliet, Manuel de Droit Franjáis.

The testimony does not furnish us the means of making the reduction of price, and the cause must be remanded.

As further testimony will probably be offered with regard to the mortgage in favor of the Bank of Louisiana, we express no opinion on that branch of the case.

It is therefore decreed, that the judgment of the District Court be reversed, and that this cause be remanded for further proceedings according to law, the plaintiffs paying the costs of this appeal.


author: Rost, J.

text:
    Vaughan et al. v. Christine et al.
    A sale made without the formalities prescribed by law, by a tutor, of the immovables of his pupil, is absolutely null; but may be ratified by the minor, after majority, expressly or by implication.
    All absolute nullities resulting from defects of form are embraced within the general provisions of art. 3507 of the Civil Code.
    Absolute nullities are of two kinds: those resulting from stipulations derogating from the force of laws made for the preservation of public order or good morals, and those established for the interest of individuals. The former are not susceptible of ratification, and the prescription of five years, under art. 3607 of the Code, is inapplicable to them; hut if, by subsequent dispositions of law or by the succession of time, such stipulations cease to be illegal, they may from that time he ratified, and become subject to the prescription of art. 3507. Thus the partition of a succession made before the succession is open, may become valid by ratification, or by lapse of time, after tbeopeningof the succession. But in relation to absolute nullities established in the interest of individuals, the rule is, as to onerous contracts, without exception, that the party in whose favor they are established may ratify the contracts, either expressly or impliedly.
    In all cases of executed contracts susceptible of tacit ratification, a presumptionjof ratification juns ei de jure, results from silence and inaction daring the time fixed for prescription.
    Where one who had caused herself to he appointed a tutrix, taires] possession, by virtue of her appointment, of slaves belonging to her pupil, converts their labor to her own use, and when called upon to account denies the existence of the trust, contests the title of her pupil to the slaves, and claims as her own the fruits of their labor, she will not be allowed commissions on the amount recovered from her for the hire of the slaves, which cannot be considered, within the meaning of art. 342 of the Civil Code, as revenues accruing-,,to jthe minors through her care and labor.
    APPEAL from the District Court of East Baton Rouge, Burk, J.

      Stirling, Collins and A. M. Bunn, for the plaintiff,
    as to the plea of prescription cited C. C. 3507. 3 Rob. 316. G. S. Lacey, for the defendants and intervenor, appellants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff sues her tutrix, and the husband of the latter, as co-tutor, to compel them to render an account of the tutorship, and to deliver certain slaves belonging to her, together with the fruits produced by them, pending her minority. The defendants filed an exception, which was properly overruled, and subsequently answered to the merits, specially denying the tutorship, and the possession of any property belonging to the plaintiff, and averring that she has no title to the slaves claimed by her. They further claimed in reconvention the sum of $5,117 12, according to an account annexed to their answer, alleged to be due them partly by the plaintiff, and partly by her deceased mother, whose succession she has accepted.

On the day on which this answer was filed, Frances B. Cooney, a sister of the plaintiff’s mother, intervened, alleging that the plaintiff set up title to and sought to recover the slaves mentioned in her petition in right of her mother, Mary Mathilda Vaughan, deceased, whose only heir she is; that the said Mary Mathilda Vaughan and the intervenor were both daughters of John Cooney, also deceased; that the said Cooney left at his death five children; that an informal partition in writing of the property left by him was subsequently made, between the surviving widow and the heirs under the authorization of the Court of Probates, and that the negroes claimed were assigned by this partition to the plaintiff’s mother, who took possession of them at the time. The intervenor alleges eight grounds of nullity, arising from defects of form, in the act of partition, and tlm judicial proceedings had in relation thereto. She prays that the partition may be declared null and void, and that the slaves claimed by the plaintiff be restored to the succession of her father, to be hereafter divided and disposed of, according to law. The plaintiff, in her answer to the petition of intervention, pleaded the ratification of the partition by the intervenor, and the prescription of five years, under art. 3507 of the Civil Code.

The judge of the first instance held that he had no jurisdiction of the intervention, rations materiee. We are not apprized of the existence 'of any law limiting his jurisdiction in cases like this. We consider the intervenor to have been properly before the court, and the plea of prescription filed against her claim will be first noticed.

Her counsel does not deny that more than five years had elapsed from the time she attained the age of majority to the filing of lior petition in intervention, and is willing to concede that, if the informalities alleged against the partition were merely relative nullities, the prescription pleaded would bar her action. But he contends that the nullities alleged are absolute nullities, to which the short prescription does not apply. He cites, amongst other authorities in support of his position, a passage from Toullier, in these words: “La vente sans formalités, faite par le tuteur, des immeubles de son pupille, est absolúment nulle.” Yol. 8, no. 508, Paris ed. Such is and has ever been the law; but the counsel overlooks the distinction that there are absolute nullities of different kinds, and that all absolute nullities arising from defects of form -come within the general provisions of art. 3507.

The distinction which exists in relation to absolute nullities is broad and easily defined. If the contract is tainted with a nullity resting on motives of public order or having its origin in the respect due to good- morals, if it be one of the conventions prohibited by art. 11 of the Code, it is an absolute nullity, to which the law perpetually resists ; it is not susceptible of ratification, and the prescription of five years is inapplicable to it. A contract by the father or the husband to surrender the paternal or the marital power — an obligation to pay money for the commission of a crime,or for doing an immoral act — the partition of a succession made before the succession is open, are instances of such conventions; and even in those cases, if, by subsequent dispositions of law or by the succession of time, the obligation ceases to be illicit, it may, from that time be_ratified, and become subject to the. short prescription. Thus, for instance, the partition of a succession made before the succession was open, may become valid by ratification, or by lapse of time, after the opening of the succession.

The other class of absolute nullities-are those'established for the interest of individuals,- and in relation to these the rule in onerous contracts is, without exception, that the party in whose favor they are established may render valid the acts in which they are found, by his ratification express or implied. Toullier cites as one of the absolute nullities of this class, the very case relied on by the intervenor’s counsel — the sale of the immovables of the minor by his tutor. That sale, he says, is null — absolutely null; and yet the minor after he becomes of age may ratify it, not only expressly but tacitly.

“Enun mot,” continues the same auther, “ nous ne connaissons point de nullité fondée sur l’intcrot privé q.ui ne puisse étre réparée par la ratification expresse ou tacite. Le vice le plus absolu des conventions, le défaut ou la non-existence clu consentément, peut nóanmoins étre réparé par la ratification, soit expresse, soit tacite.” 8 Toullier; nos. 515-, 518. 7 Toullier, nos. 553, 559.

In all executed contracts, which under this view of the law may be tacitly ratified, a presumption juris el de jure of ratification, results from silence and inaction during the time fixed for prescription. The informalities alleged by the intervenor in this case have been cured by lapse of time, and she has no claim to the slaves in controversy. The plea of ratification appears to us to be also fully sustained. But it is unnecessary to go at large into an examination of it.

The judgment of the court below has given the plaintiff the slaves claimed, and the sum of $973 76, the balance of the hire of said slaves, after deducting therefrom so much of the indebtedness of the plaintiff and her mother to the defendants, as has been legally proved. The judge has given us the estimates upon which the judgment rests, and we are satisfied that he has done justice between the parties.

The defendant alleges that commissions should have been allowed to her on the income of the plaintiff. The tutor is bound to administer the property of the minor honestly for his use, and to credit him annually with the revenues it produces. When he does this, he is entitled to a commission of ten per cent on those revenues, as a remuneration for his care and labor. C. C. art. 342. In this case, the defendant caused herself to be appointed tutrix of the plaintiff, took possession of the slaves claimed, by virtue of that appointment, converted their labor to her own use and benefit as long as she could, and, when called upon to account, denied the existence of the trust which she had sworn faithfully to discharge, contested the title of her ward to the property, claimed as her own the fruits it had produced, and set up a claim in recouvention, more than half of which is utterly unfounded. She has placed herself before the court not as an administrator, but as a spoliator. The amount recovered from her is not revenue accruing to the minor through her care and labor. Under this state of facts, the court below did not err in refusing to allow the commissions claimed. This case materially differs from that of Aubic v. Gil, cited in argument. 7 Rob. 50. Judgment affirmed.


text:
    Dubroca v. Her Husband.
    In an action by a wife against her husband for a separation of property, intervenors are entitled to the delay necessary to cite the original parties, and for them to answer, though the effect may be to retard the action. ■
    Where an intervenor in an action between a husband and wife for a separation oí property, excepts to a decision of the court refusing to delay .the trial to enable him to cite the original parties, but afterwards enters into, and files in the case, an agreement by which he waives his opposition to the cause being then tried, in consideration of the plaintiff’s agreeing, as far as she was concerned, in the execution of any judgment she might recover, to sell the lands, slaves, and moveables separately, and tile case is tried and plaintiff obtains a judgment, the intervenor cannot afterwards, on the ground of a violation of the agreement as to the sale of the property, take a.jndgment by default and proceed to try his intervention. The action was ended when final judgment was rendered for the plaintiff, on the waiver of the right of the intervenor. The judge could pronounce upon the merits of the intervention only at the time of deciding the principal action. C. P. 394. The waiver was equivalent to a withdrawal of the intervention'. The remedy of the intervenor, for the violation of the agreement, is by a separate action.
    Where anote expresses on its face that it was given for value, a denial of consideration, unsupported by evidence, is not enough to impose on the plaintiff the burthen of proving the consideration. f
    from the District Court of West Baton Rouge, Burk, X.

      Hiriart and R. N., and A. N. Ogden, for the plaintiff.

      Bennett, for the defendants. Elam, for the intervenors, appellants.
   The judgment of the court was pronounced by

King, J.

In the suit of the plaintiff against her husband, V. Dubroca, for a separation of property, LeBlanc and McCalop intervened, and prayed for judgments against the defendant for the amount of several promissory notes, and that the plaintiff’s claim should be rejected. The judge permitted the interventions to be filed, but refused to delay the trial of the .cause for the purpose of enabling the intervenors to cite the original parties, and the intervenors took a bill of exceptions. Subsequently, but daring the same term of the court, an agreement was entered into and filed in the suit, by which the intervenors waived their opposition -to the cause being then tried, in .consideration of which the plaintiff agreed that, in executing such judgment as she might obtain against her husband, as far as she wasconcerned, the land, slaves, and moveable property should be sold separately. Tile cause proceeded to trial, and the plaintiff obtained a judgment for a large sum. At a subsequent term of the court the intervenors applied for judgments by default against the original parties to the suit, to which the latter objected, on the ground, that the suit was at an end, a final judgment having been previously rendered. The objection was at first sustained, but the judge subsequently reconsidered his opinion and permitted defaults to be entered. To this ruling, abill of exceptions was taken. The plaintiff and defendant filed answers. The latter denied that any consideration had been given for the notes. On the trial of the interventions the judge considered that the intervenors had failed to prove the consideration of the notes, and rendered a judgment as in case of non-suit. Tile intervenors have appealed, and ask the reversal of both judgments. They contend that the property was sold in block under the plaintiff’s judgment, in violation of the agreement; and that they were authorized, by reason of this breach of the engagement, to proceed at a subsequent term of the court to final judgment on their interventions, and to show the insufficiency of the testimony to sustain the judgment obtained by the plaintiff.

The suit being one by a wife against her husband for a separation of property, the intervenors were entitled, under the rulé established in the case of Ardry v. Ardry, 16 La. 264, to the delays necessary for serving citations upon the original parties, and for the latter to answer, although the effect might have been to retard the progress of the cause. If this right had been insisted upon by the intervenors they would have been entitled to a reversal of the judgment, and to have the cause remanded in order that they might be heard. But they waived their right to be heard when the principal action was tried, and permitted final judgment to be rendered. The judge is expressly required to pronounce upon the mei’its of the intervention, at the same time that he decides upon the principal action. C. P. art. 394. The waiver by the intervenors of their right to oppose the progress of the cause,.and their consent that it should proceed to judgment, was equivalent to a withdrawal of the intervention. The judge, under the express renunciation by the intervenors of their right lo be heard, was dispensed from pronouncing upon their intervention at the only time when legally he could have pronounced upon it, to wit, when deciding upon the principal action. The final judgment, which he was thus permitted unopposed to render between the principal parties, terminated the suit. There was no longer an action pending, in which third persons could intervene. If, as is alleged, the agreement under which the interventions were withdrawn, was subsequenlly violated, the effect of this breach of the contract was certainly not to set aside the judgment, and reinstate the parties as they stood before the court at the date of the agreement. The remedy of the intervenors is by a separate action.

We think that the judge erred in enlertaing the intervention after a judgment had been rendered between the principal parties; but the demands of the intervenors having been dismissed, on the trial on the merits, as in case of non-suit, the rights of the parties are left in the same position that they would have been if he had declined to consider the interventions, and it does not become necessary to disturb the decree. We are not to be understood as assenting to the correctness of the ground upon which the district judge rejected the claims of the intervenors. The notes, upon which their interventions were founded, express that they were given for value. The denial of the consideration, unsupported by evidence of any kind, was not sufficient to impose upon the intervenors the burthen of proving the consideration. Bradford v. Cooper, 1 An. Rep. 326. Judgment affirmed.

      Eostis, C. X. did not sit on tho trial of this caso, on account of relationship to one of ihe parties.


author: Kino, J".

text:
    Seaton v. Sharkey.
    The sale ofa pre-emption right, in contravention of aprohibitory clause in the act of Congress under which the right of pre-emption accrued, is null; and constitutes no impediment to an entry of the land by the party entitled to the pre-emption, who will, by the purchase from the government, acquire an absolute title, unaffected by the previous sale.
    Parol evidence is inadmissible to prove an agency for the purchase of real estate»

      APPEAL from the District Court of Madison, Selby, L

      Stacy and Sparrow, for the plaintiff.

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

Kino, J".

This is a petitory action instituted to recover a tract of land. Lafferty acquired a right of preemption to a quarter section of land, which he sold to Seaton, the plaintiff in this action. Seaton, by a verbal sale transferred one half of. the tract to Sharkey, the defendant. The period for the land sales was approaching, and Lafferty, who was.still the creditor of Seaton fora part of the price, apprehending that the right of preemption would be forfeited, and that he would lose the debt, notified Seaton of his intention to make the proofs of his claim at the land office. Seaton being without the pecuniary means necessary to make the purchase from the government, proposed to the defendant, who was equally interested with himself in the land, that the latter should make the requisite advances, and take the title in his own name. The defendant proceeded to the land office, advanced the money with which the entry was made in the name of Lafferty, and also paid the latter the balance due him by Seaton. Lafferty immediately transferred the title, to the defendant, and a patent has since issued in favbr of the latter. The plaintiff has instituted this action to be declared the owner of the entire quarter section, and to be put in possession of that portion of it occupied by Sharkey. The defendant relies on his title derived from the preemptor, and on his patent. The jury awarded one half of the land to each of the parties, and condemned the plaintiff to pay $261, the amount advanced for his use by the defendant. Both parties are dissatisfied with the verdict, and have appealed.

The sale from the preemptor, Lafferty, to Seaton, was in contravention of the prohibitory clause of the act of Congress of l'834, under which the right of preemption accrued, and was null. It conveyed no title whatever to the vendee, and constituted no impediment to the entry of the land by Lafferty, who indeed under the statute was the only person who could have availed himself of the preemption right. See cases of Poirrier v. White, and Prevost v. White, 2 An. Rep. 934, 936. His purchase from the government vested in him the absolute title, unaffected by the previous sale to Seaton. This title he transferred to Sharkey. But it is contended that, the -defendant acted as the agent of the plaintiff in effecting the entry, and in receiving title from Lafferty, and that the title thus acquired inured to the benefit of the plaintiff. The only evidence by which the alleged agency was attempted to be shown was parol testimony, which was expressly excepted to as being inadmissible to prove an agency for the purchase of real property. The exception was well taken. Sales of real estate are required to be in writing, and written proof alone is admissible to establish an authority to purchase such property. 2 La. Rep. 596. 1 An. Rep. 73. Much of the evidence goin’gto establish the agency, and the verbal sale from the plaintiff to the defendant, was admitted by the judge only for the purpose of proving the circumstances' under which the entry was made, and the state of the accounts between the parties. The jury, who were probably unable to discriminate between evidence admissible for one purpose but not for another, considered the facts both of the agency and of the verbal sale as proved, and rendered a verdict in accordance with the agreement of the parties, as established by testimony inadmissible for that purpose. We think that the plaintiff has failed to show the agency of the defendant by legal proof, and upon establishing that fact his title depended.

The plaintiff and defendant both claimed fruits and improvements. As the parties were considered by tbe jury, to be respectively the owners of the portions of the land which they possessed, those claims were not passed upon.. Justice requires that they be left open for future adjustment.

It is therefore ordered that the judgment of the District Court be reversed, and that the defendant be decreed the owner of the entire land in controversy, to wit, of the north west quarter of the section number twenty one, in township number fifteen north, of range number eleven in the land district north of Red river,, containing one hundred and fifty-eight 24-1-00 acres. It is further ordered that the cause be remanded for the purpose of enabling the parties to litigate in relation to their mutual .claims for rents and improvements; the ■defendant paying the costs of this appeal.


text:
    Bibb et al. v. The Union Bank of Louisiana.
    A mortgage on slaves duly recorded in the parish in which the debtor had his domicil and residence, and in which the slaves wore at the time, is not required to he reinscribed in a parish to which the debtor subsequently removes with the slaves, in order to preserve its effect.
    Arts. 3442, 3444, which provide that one who acquires a slave in good faith, and by a just title, will be protected by the prescription of five years if the real owner resides in the State, and by ton years if he resides out of it, apply only to the owner; they do not affect mortgage creditors. Prescription is acquired by the third possessor of mortgaged property, not by the lapse of time established for the prescription of the property itself, but by that fixed for the hypothecary action.
    APPEAL from the District Court of St. Tammany, Penn, J.

      J. R. Jones, for the plaintiffs,
    cited C. C. arts. 3444, 3445, 3446, 3447, 3,414. 19 La. 302. 2 Rob. 466.

      Halsey, for the appellants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs obtained an injunction to arrest the sale of four slaves seized by the sheriíf of St. Tammany, at the suit of the Union Bank against Bickham and wife. They claim title to the slaves under a sheriff’s sale made at the suit of Marlin, Pleasants ^ Co. against the same parties, and also by prescription. There was judgment in their favor in the court below, and the defendants appealed.

In May, 1839, Brickliam and wife, then residing in the parish of Washington, obtained a loan of $5,000 from the Union Bank, and to secure the payment thereof mortgaged the slaves in controversy, and other property. They, at the same time, gave the bank for the amount of the loan a bond payable twelve months after date, which was protested for non-payment at maturity. Bickham, and wife subsequently removed to the parish of St. Helena, taking their slaves with them ; and, on the 28th December, 1840, the slaves in controversy were sold in that parish at sheriff’s sale at the suit of Martin, Pleasants &f Co. The certificate of mortgages, adduced by the sheriff at the -sale, shows that there were no mortgages on the property seized in the name of Bickham aDd wife in the parish of St. Helena, except certain judicial -mortgages, the oldest of which was that of the seizing creditors. More than five years elapsed from the date of this sale to that of the seizure made by the Union Bank.

The plaintiffs contend : First, That as the mortgage of the Union Bank was not recorded in the parish of St. Helena, and as no mention is made of it in the certificate of mortgages adduced on th„e day of sale, they acquired the slaves free from that mortgage. Secondly, That if the mortgage was still in force against third persons from the date of its inscription in the parish of Washington, they have possessed the slaves claimed in good fhith and under a just title for upwards of five years, and prescription must ayail them against the claim of the defendants, under articles 3444, 3445, 3446. 3447, 3414, of the Code.

The first point made must be considered as settled in favor of the defendants by the decision in the case of the Commissioners of the New Orleans Improvement and Banking Company v. Jewett, 11 Rob. p. 20.

The second presents no difficulty. Art. 3442 of the Code provides that, he who acquires an immovable in good faith, and by a just title, prescribes for it is ten years if the real owner reside in the State, and in twenty years if the owner resides out of the State. Art. 3444 provides that, for the prescription of slaves the time will be one half of that required for immovables. These prescriptions only run against ihe real owner. They do not affect mortgage creditors.

By an express disposition of art. 2180, .of the Nap. Code, prescription is acquired by the third possessor of mortgaged property, by the lapse of time fixed by law for the prescription of the property itself. This disposition lias been omitted in art. 3374 of our Code, which is otherwise the same; and the prescription against mortgages can only be acquired by the time fixed by law for the prescription of the hypothecary action.

It is therefore decreed that the judgment in this case be reversed. It is further decreed that the injunction sued out by the plaintiffs be set aside and dissolved, and the defendants allowed to proceed under their execution. And the claim of the defendants, bearing interest at the rate of ten per cent per annum, it is further decreed that the plaintiffs, together with Ambrose While and Thomas Oreen Davidson their sureties on the injunction bond, be adjudged to pay the defendants, in solido, $100 damages. It- is further ordered that the plaintiffs pay costs in both courts.


author: Eustis, C. J.

text:
    Courmes v. Maxent, Tutor, &c.
    Whore in the account renderedby a tutor in an action' to compel an account, certain notes given by the purchaser of property of the minor are stated to be not yet settled, inconsequence of a suit relative to the property, and they'are not produced, and no evidence is offered as to their security, and no demand of payment of the notes is proved to havebeen made, nor suit instituted, nor other attempt to recover them, evidence will be received to show the disturbance of title by the suit, but judgment will be rendered against the tutor for their amount. Per Curiam,; We will not permit a tutor to plead for others, who are silent, against his pupil.
    APPEAL from the District Court of East Baton Rouge, Bur/c, J.

      Caslera, for the plaintiff.

      T. O. Morgan, for the appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

The defendant is appellant from a judgment against him in favor of the plaintiff, for the sum of $2,412 31, with interest from the 18th March, 1839, as heir of his deceased grandmother; and for the further sum of $2,412 31, with interest from 18lh March, 183G, as assignee of J. B, Forester Maxent', which judgment also dismisses him from the trust as administrator of the succession of the late Henrietta Maxent.

On behalf of the appellant it has been submitted that, the District Court erred in refusing to the defendant further time to plead and answer. The suit was instituted iu March, 1847. There was an agreement of counsel made in July, to try the cause in October following, and it was not tried until January, 1848. The defendant had abundant time to bring forward every just matter of defence, and the event has proved that the judge did not err in refusing the application of the defendant, which would only have resulted in delay, had it been granted.

The defendant offered evidence on the trial of the cause, to show a disturbance, by a suit of third persons, of the title and possession of Davenport, who had purchased a plantation, one-third thereof belonging to the plaintiff, a minor, and given his notes for the amount of the purchase money, which notes were returned in the account rendered by the defendant as being in his hands and unpaid, and for which the defendant was sought to be made liable. They were stated in the defendant’s account as not yet settled, on account of the suit existing as to the plantation : they were not produced nor tendered, and no evidence concerning their security was given on the trial of the cause. The district judge refused to receive the evidence, and the defendant took his bill of exceptions. "We concur with the judge in his opinion. He would not permit, in his expressive language, the tutor to plead for others, who are silent, against his pupil. No demand is proved to have been made of the notes, no suit was instituted, no attempt made to secure them ; and non constat that the purchaser would have made any such defence, or that he would not have paid the notes rather than have subjected himself to the payment of interest.

If the evidence offered were taken as part of the defence, the defendant has not placed himself in a situation to avail himself of it.

It is objected that the judge erred in allowing the plaintiff interest from the 18th of May, 1836, on the amount claimed under the transfer of Forester Maxent. If the judgment be opened, we should allow the plaintiff an increased amount, in consequence of the total neglect of duty on behalf of the appellant in his trusts of tutor and administrator ; but as the plaintiff does not insist on an amendment of the judgment, we shall make no change in it.

It is therefore ordered that the judgment appealed from be affirmed, the costs of this appeal, by consent, to be equally divided between the parties ; and their agreement, of date the 24th of March, 1848, on file in this court, concerning the mode in which this judgment may be in part satisfied, to be made apart of this judgment and certified accordingly.


author: Slidell* J.

text:
    Michael v. His Creditors.
    A judgment homologating a tableau of distribution presented by the syndic of an insolvent will be reversed, where the notice to the creditors of the filing of the tablean was published without any order for publication.
    APPEAL from the District Court of West Feliciana, Boyle, J.

      McVea and Winter, for the opponents, who appealed.
    No other council appeared.
   The judgment of the court was pronounqed by

Slidell* J.

Thorn McGrath desired t° oppose the tableau of distributiou filed by the syndic, but the court refused them permission to do so, upoh the ground that it came too late, au order of homologation having been rendered, although not yet signed.

The order of homologation was irregular. The notice to creditors of the filing of the tableau, was published without any order for publication.

It is therefore decreed, that the judgment of the court below be reversed, and the cause remanded for further proceedings according to law; (he appellee paying the costs of this appeal.


text:
    Bemiss v. Dwight et al.
    Where the purchaser was awave, before the sale, of the existence and object of a suit in which a third person setup title to'the property sold, he caanofc suspend payment of the price, uorrequire security againstthe dangerof eviction. C. C. 2535.
    Where a judgment for a principal sum, with interest at-ten percent a year, was rendered, before the stat. of 19í'cbruary, 1844, reducing the rate of conventional interest to eight per cent, a twelve-months' bond given for the price of property sold under a fi. fa. issued on the judgment, though executed after the passage of that act, might lawfully contain a stipulation for interest at ten per cent. Per Curiam: The judgment creditor had a vested right to interest at that rate until paid.
    An amendment inconsistent with the original petition is inadmissible.
    APPEAL from the District Court of Madison, Selby, J.

      Bemiss, Thomas and Snyder, for the appellant.

      Amonett, for'the defendants.
   The judgment of the court was pronounced by

Slidell, J.

Under an execution in favor of Dwight Sf Hartman against the plaintiff’s husband, she became the purchase}- at sheriff’s sale of certain slaves then belonging to him, and gave her twelve months’ bond, bearing ten per cent interest. She failed to pay her bond,"execution was issued, and she enjoined the writ in the present suit.

The first ground of injunction was that, since her purchase her husband’s title to the slaves had been adjudged void by the District Court of Madison, in the suit of Dupuy v. Bemiss. This was true, but before the trial of the present suit in the court below, the case of Dupuy v. Bemiss was decided by this court. The judgment of the District Court was reversed, and the title of Bemiss was sustained. See the report of that case, 2 Annual R. p. 509. So far as that ground was involved the court did not err in dissolving the injunction, the danger of eviction being dispelled. But the defendants- contend that, ns there was no actual eviction, the mere danger of eviction at the suit of Dupuy was not a sufficient ground for suspending the payméntof the price, because at the time of her purchase, she was aware of the existence of that suit. It is proved that the suit of Dupuy v. Bemiss was pending when Mrs. Bemiss purchased, and that she was then aware of its existence and object. Her case then falls within the exception of the Code, art." 2535, which while it gives the buyer, who is disquieted in his possession, or has just reason to apprehend that he will be, the right of suspending payment, denies him'this equitable protection when he was informed before the sale of the danger of eviction. The purchaser was therefore bound to pay, her only recourse being for the restoration of the price if eviction should actually occur; the injunction was consequently wrongful, and the defendants wore entitled to- damages. See Fuller v. Harman, 9 Rob. 205.

Another ground of the injunction was that} ten per cent interest was unlawfully stipulated in the twelve-months’ bond. This bond was executed after the statute of 1844, which-reduced- the rate of conventional interest to eight per cent. But the judgment upon which the-execution issued bore ten per cent interest, and the bond properly followed the judgment.- The statute could not, and was not intended to, affect past contracts and rights acquired under tliem. The judgment creditor had a vested right to ten-per cent interest until paid, and that right would have been impaired if the credit of twelve months were allowed at an inferior rate.

An application was made by the plaintiff, after issue joined, and at the time at which the cause was tried, for leave to amend the petition. This the court refused, and wo cannot say. there was error. The matters alleged in the proposed amendment, are inconsistent with the original petition, they are not stated to have come to her knowledge since the institution- of the suit,- nor are they pleaded with such fullness and certainty as to show a want of right on the part of the defendants to enforce the bond.

The judgment of- the court below is therefore affirmed, with costs, but with the amendment that the said Dwight Hartman do recover of the said Elizabeth M■ Bemiss and Alonzo Snyder, her surety, insólido, the sum of $100 as damages.


text:
    Burton and Husband v. Chaney.
    A note in these words: “ I-promise to pay to the order of A.” &c., but which, instead of being endorsed by A., has his signature affixed to it under that of the maker, is neither payable to order nor bearer; and-' an action on it will not be prescribed by five years, under art. 3505 of the Civil Code.
    Where an obligation to pay money at a certain time is silent as to interest, it' will commence only from the time of the debtor’s being put in defauit.
    APPEAL from the District Court of East Feliciana, Boyle, J.

      Merrick, for the plaintiffs.

      Z. S. Lyons and T. &. Morgan, for the appellant'.
   The judgment of the court was-pronounced by

Eustis, C. J.

The defendant is sued on his signature to two promissory notes, as they are called in the plaintiffs’ petition. They are' drawn by Whiten and have the words, “ I promise to pay to the order of Bailey D. Chaney,and at the office, &c.” in each. They were given for a tract of land and a slave purchased by Whiten at a probate sale, aud, instead of being endorsed by Chaney, as their import implied they were to have been, his signature was appended to llie foot of each note, under that of the maker.

It is contended, that the defendant is discharged by the lapse of five years, under article 3505 of the Code. But it seems to us that these instruments are payable neither to order nor to bearer, inasmuch as the defendant himself never endorsed them, and chose to throw the contract lie iaaJe into an entirely different form, and that they are not prescribed under that article.

The district judge allowed interest from the default of the defendant only, and we think decided correctly. Judgment affirmed.


text:
    Jenkins, Curator v. Bonds.
    Whore after obtaining an order allowing an appeal, the appellant fails to give bond or surety and abandons his appeal, he cannot afterwards renew it. C. P. 594.
    APPEAL from the District Court of Madison,. Selby, J.

      A. Pierse, for the appellant.

      'StocTcton and Steele, for the defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

Judgment having been-rendered in favor of the defendant and intervenor, against the plaintiff, the latter, by motion in open court, the defendant’s counsel being present and-assenting, took an appeal, returnable in February, 1847. Neither .bond nor security was filed, and this appeal was abandoned. This motion was made in October, 1846, and in August, 1847, an appeal was allowed from the same judgment, as it is said, adjudging the intervening party to be the owner of the land, S^c., upon the plaintiff’s giving security according to law. The appeal bond under this order was given in favor of the defendant only, and not in favor of the party against whom the plaintiff undertook to appeal.

A motion has been made to dismiss this appeal. So far as relates to the defendant, the appeal must be dismissed, on account of the failure to prosecute the original appeal. Dozer v. Sargent, 4 La. 41. Code of Practice, art. 594. In relation to the intervening party, no appeal bond has been filed, in compliance with the order granting the appeal.

But the interests of the defendant and intervenor are identical, and the judgment in favor of the former is conclusive as to the rights of the latter, as the case stands in the plaintiff’s.own .petition. ' Appeal dismissed.


author:
Rost, J.
      King, J. Slidell, J.

text:
    Oates v. Caffin.
    Possession in another State of a slave wlio had run away from his master, a resident of this State, cannot be the basis of a possessory action here. The possession continued in his master, whose rights remained unimpaired. The law establishing that action is a real statute, and has no extra territorial operation.
    A slave who absconds from his master steals himself, and stands as other stolen things, and neither possession nor title can be acquired to him.
    The laws of this State on the subject of slaves, whether in the Civil Code or the Code of Practice, or in the ordinary statutes,being on the same subject, must be construed together and in suoli a manner as to give effect to all.
    Art. 49 of the Code of Practice, authorizing possessory actions for slaves, is limited by the dispositions of the statutes relative to slaves and by the penal statutes, to such slaves as are not fugitive, or have not been stolen.
    APPEAL from the Fifth District Court of. New Orleans, Buchanan, J.

      Prentiss and Finney, for the appellant.
    Art. 49 of /the Code of Practice points out what is necessary to sustain the possessory action, and we have brought ourselves strictly within its provisions. We have shown, in the first place, possession as owner for eight or nine years preceding the disturbance by the plaintiff. According to a decision of the Supreme Court in the case of
      Ellis v. Prevost, 19 La. 251, the running away of the boy did not interrupt our possessessory right, and could not interrupt nor divest it until some one should have maintained one year’s adverse possession. The court, in that case, held that where there had been once real and actual possession of property, although the corporeal possession be abandoned, yet the mere intention to possess will keep alive the possessory right until some one has succeeded in holding one year’s adverse possession. And the civil possession, preceded by the actual corporeal possession, will sustain the possessory action. Our actual possession, our immediate power, sustains our possessory right, unless one year’s adverse possession can be shown. This cannot be pretended on the part of the defendant, for our suit was brought within less than a year after the boy ran away, and within a few weeks alter the commencement of adverse possession.

      Labarre and Eoselius, for the defendant.
    Suppose a man’s horse escapes from him, and is stolen while he is straying and beyond the control of his owner, in whom would the possession be laid in the indictment against the thief? The roman law lays down the doctrine on this subject with great clearness: Fere, quibuscumque modis obligamur, iisdem in contrarium actis liberamur: cum quibus modis adquirimus, iisdem in contrarium actis amittimus. Ut igitur nulla possessio adquirí, nisi animo et corpora potest: ita nulla amittitur nisi in qua utrumque in contrarium actum. § 153. ff. dereg. jur. ant. It is no objection to this rule to soy that, under certain circumstances, the master may not only lose the possession, but also the ownership of a rnnaway slave, as when he is sold under the laws of the State where he is confined, &c. This is an exception to the general rule, resting on the necessity of the case: and the assent of the master, in those cases, is implied from his long silence. Butthere is another text of the roman law, still more explicit on this subject: Si servns, quern possidebam. fugerit; si pro libero se gerat, videbitur a domino possideri; sed hoe tune intelligendum est, cum, si adprehensus fuerit, non sit patatús pro sua libértate litigare : nam si paratus sit litigare, non videbitur a domino possideri, cui se adversarium prteparavit. D. 1. 41, t. 3, 1. 15, § 1. De Usurpationibus et Usucapionibus. The doctrine laid down in the case of Ellis v. Prevost, 19 La. 251, so far from conflicting with the position we have assumed, on the contrary, supports it. Would it not be absurd to insist that a thief could maintain a possessory action, because he had preserved the custody and control of the thing stolen for more than a year ? It is a maxim as old as the law itself, that no one is permitted to invoke his own turpitude in support of a legal right.
    The provisions of the Code of Practice are in perfect harmony with this view of the subject. Art. 49 declares that, in order to bring the possessory action, the party must have had the possession quietly, and without interruption, by virtue of one of the titles prescribed in the 47th article, &c. What are those titles ? Either as owner, or usufructuary. Has the plaintiff shown that he possessed the slave in dispute, by either one or the other of those titles ? Certainly not. For, independently of the unfavorable presumption which the facts of the case raise against him, he has not shown that he possessed the slave, as owner, for a single day.
    In this case the judges being equally divided in opinion, the judgment of the lower court, under art. 68 of the constitution, is affirmed, each of the judges giving his separate opinion.
   Rost, J.

This is ,a possessory action; the subject, a fugitive slave. The facts are as follows: In 1833, the slave Isaac ran away from the defendant, who soon after advertized him, and offered a reward for his apprehension. Nothing was heard from him till the summer of 1846, when the jailor of Canton, in the State of Mississippi, advertized him as being confined in the jail of that place. The defendant went to Canton, took the slave out of jail, and brought him to New Orleans, where he resides. The plaintiff alleges, and has proved, that he was in possession of the slave, in the State of Mississippi, for .eight or nine years, and until the 15th October, 1845, when the said slave ran away from him. He prays to be restored to his possession, and has appealed from the judgment rendered .against him, in the first instance.

The possession of the plaintiff in the State of Mississippi, cannot be the basis of a possessory action. The law establishing that'action is areal statute, and we cannot presume that our legislsture has given to it an extraterritorial operation, more especially in a case like this, when the effect of that construction would be to give to the inhabitants of the State of Mississippi, rights which the legislature of their own State has no power to give them. The man Isaae, was held to labor under our laws, and the authorities of the State of Mississippi were at all times bound to deliver him to the party to whom the labor is due. The legislature of the State of Mississippi could not release the plaintiff from the obligation to deliyer him, nor could the legislature of Louisiana take from the defendant the right to enforce the delivery. U. S. constitution, art. 4, sect. 2. Prigg v. Commonwealth of Pennsylvania, 16 Peters, 608. Story’s Com. Con. U. S., vol. 3, p. 676.

The possession of which our Code speaks is a possession in Louisiana, which the owner of the property can at all times contest. Should the law be otherwise, no one can possess a fugitive slave as owner.

Our laws regulating the condition of slavery are derived, through those of Spain, from the roman jurisprudence. The rule of that jurisprudence was that, the slave who absconds from his master steals himself, and that he stands as other stolen things, and neither possession nor t.itle can be acquired to him. Servum fugitivum sui furtura facere, et ideo non habere locum nec usucapionem, nec longi temporis prascriptionern, manifestum est; ne servorum fuga dominis suis ex .quacunque causa fiat.damnosa. L. l.Cod.De Serv.Fugit. The fugitive slave had no situs, The possession continued in his master, whose rights remained unimpaired. These rules were incorporated in the Spanish jurisprudence, and are found in law 23, tit. 14, Part. 7. Gregorio Lopez, in his commentary on that law, states ,at length the jurisprudence .of Spain ,on that subject.

If a fugitive slave is to be viewed in law as if he had been stolen, the law of this case does not differ from that of McGrew v. Browder, 2 Mart. N. S. 17.

Our statutes on the subject -of fugitive slaves are derived from the roman and Spanish Jaws, and rest so manifestly on the same principles, that our predecessors have given effect to the statute against persons harboring them, in cases where the want of criminal intent in the party was apparent. Rouquette v. Richardson, 3 La. 452. This decision was made since the adoption of the Code of Practice. How could the defendant in that case have maintained a possessory action, when the court condemned him to pay damages for the possession, though unattended with criminal concealment.

We are told that the Code of Practice recognizes the possessory action for slaves, and that we are bound to give effect to its provjsjons. This is true. But we must also give effect to the other bodies of laws by which we are governed, and I am not aware that the dispositions of the Code of Practice are more imperative, or of greater public concernment, than those of the Black Code. Our different laws on the same subject must be construed together, and in such a manner as to give effect to all. The construction contended for by the appellant would justify a possessory action, even if the slave had been stolen. I cannot give it my assent. I believe, on the contrary, that art. 49 of the Code of Practice, authorizing possessory actions to be brought for slaves, is limited in its application, by the dispositions of the Black Code and of the penal statutes of the State, to such slaves as are not fugitive or have not been stolen.

I am of opinion that the judgment ought to be affirmed.

Eustis, C. J. concurred in the opinion of Rost, J.

King, J.

The plaintiff held actual possession, as owner of the slave in contest, in the State of Mississippi, for more than eight years, and commenced this action within twelve months from the date of this disturbance. If the controversy related to any other than a fugitive slave no doubt could be entertained of the plaintiff’s right to recover.

In a possessory action, the question of property can never be enquired into. The plaintiff, who has possessed for more than twelve months previous to the disturbance, is not required to exhibit his title. Possession for that length of time in good or bad faith, even as an usurper, accompanied by a claim of ownership, creates such a presumption that the possession is rightful as to dispense with the production of title. C. P. arts. 49, 53. C. C. 3417, 3418. The proof necessary to sustain the action may be made by parol. All the rules in relation to this action are expressly declared to apply to slaves. C. P. 46. I do not think that fugitive slaves form an exception to the rule. No exception is declared, and I think none results from our legislation in regard to absconding slaves. By our laws, the owner may not only be deprived of possession, but legally divested of title to his fugitive slave, without his knowledge or assent. Bui. and Cur. Dig. p. 791, §14. The principle that the possession of the fugitive slave continues in the master ceases to apply, when-the slave has been arrested and sold under the authority of law. An adverse possession then commences. The slave is no longer to be regard as a fugitive, and could only be reclaimed in a petitory action. In-view of the law which thus permits title to be acquired to an absconding slave, the presumption cannot arise that, the possessor as owner for more than twlve months, is the possessor of stolen property; nor after such adverse possession can it be presumed that the slave is still a fugitive, and that the possession continues in the master. The more legitimate presumption would be that, the adverse possession had been legally acquired.

If the plaintiff were claiming in a possessory action under ordinary circumstances, founded on a possession of more than a year in the State of Mississippi, the courts of this State would respect that possession and give effect to it, and not drive the party to his petitory action. The case,of McGrew v. Browder, 2 Mart. N. S. p. 17, was a possessory action, and the plaintiff relied exclusively on his possession in the State of Alabama, which prevailed.

The case appears to me ,to depend entirely on our own express legislation, which permits lawful possession as owner to be acquired of a fugitive slave, and which authorizes such possessor to assert his right of possession in an action of this kind, without exhibiting his title or explaining the origin of his possession.

I think that the judgment of the District Court ought to be be reversed.

Slidell, J.

Slaves are expressly declared to be subjects of the possessory action, and the general rules which control the action apply to them. I am not aware that the law makes any distinction, and we are not permitted to make any. In this action, it matters not whether a party possessed in good or bad fail'll, or even as an usurper; he is still entitled to the possessory action. C. P. 49. And in such an action the question of property cannot be examined. Id. 53. Civil Code, 3418.

But it is said that the slave who absconds, .steals himself. This may make the slave himself a thief, or may place him in the category of stolen things; but it does not necessarily make the person in whose possession he is after-wards found a thief, or even a receiver of stolen property. By the roman law a person was considered a thief if he knowingly harbored or concealed the fugitive for the purpose of profiting by his services to the injury of his master. It is worthy of observation that our Code expressly recognizes a slave as property, which one may acquire by finding and a possession of fifteen years. Arts. 3385, 3513.

Third persons may acquire the ownership of a stolen thing. For example, they may acquire the ownership of a stolen moveable by an uninterrupted possession for ten years, and this without being obliged to produce a title ; nor can their bad faith be set up as a defence. C. C. art. 3475. If the ownership of a stolen thing may be acquired, a fortiori it would seem that the possession of a stolen thing may be acquired.

Statutes of prescription are statutes of public repose. The law did not intend to encourage the receiving of stolen property, but to forbid men to be harrassed after the lapse of a certain time by the charge of being wrong-doex-s, inferring from a long possession its honesty and justice.-- The same motive, it seems to me, dictated the rules which control the possessory action. As it was desirable that after the lapse of a cex-tain time questions of ownei’ship should be put at rest, so it was also deemed desirable that,' after the lapse of a certain time, questions of thei-ightof possession should be put at rest. We cannot, in interpreting either system, make exceptions which the law has not made. In applying to the present case, the same presumption which the law accords to possessors in other cases, there seems to me nothing unreasonable. The slave may be a runaway, yet the possessor .mqy have purchased in the best faith from a third pei-son. He may even have acquired a perfect ownership by the authority of justice, under the laws of police which authorize the sale of unclaimed fugitives.

Gregorio Lopez, in his commentary upon the’Seventh Partida, observes: Sex-vi fugitivi non perdimus possessionem si tamen earn prosequamur; si vero prosecutionem omittamus et non requiramas ubi sit, et servus deponit animum revertendi, tunc pex-dimus possessionem. What is thus said appears to me to refer to the relation of the master, and the fugitive,- inter se. Pothier appears so to have considered it. In his ti'eatise on possession he comments on the the principle of the Civil law. Nous perdons malgré neus la possession des choses mobiliéres, losqu’elles cessent d’étre sous notre- garde; e’est-á-dire, lorsq’elles cessent d’étre dans un lieu od nous puissions les avoir quand nous le voudrons : Res mobiles, excepto homine, quatenxxs sub custodié nostrá sint, hactenús possideri, id est quatenús si velimus.naturalem possessionem nancisci1 possixnus. L. 3, § 13, ff. de adq. poss, Le droit romain exceptait de ce principe la possession que nous avons de nos esclaves. Nous étions censés conserver la possession d’un esclave fugitif, quoiqu’il ne fét plus dans un lieu on il fut en notre pouvoir de l’avoir quand nous le voudrioixs. La-raison de l’exception- est, que-tout ce qu’un esclave a, meme la possession, appartient a son maitre; la possession que cet esclave fugitif a de lui-méme’est une possession qui appartient é son maitre. Pothier, Traite de la Possession, no. 79, and note.

I do not perceive why the plaintiff’s possession- should be disregarded, because it was a possession in Mississippi and not in Louisiana. In applying the law of prescription it seems to me clearthat respect must be accox-ded to possession, whether it be foreign or domestic. A question might be raised whether a title by presci-iption acquired in one country would be considered conclusive when the px-operty is brought into another countx-y, where a longer term of prescx-iption is established. But I cannot think that the foreign possession should ever be deemed wholly inoperative, unless the lawgiver has so expressly declared.

I cannot recognize the doctrine that any legislation of Mississippi whatever, which would affect the rights of the Louisiana owner of the fugitive, would necessarily be a violation of the constitution of the United States. The provision of the constitution pertinent to the matter, is as follows: “No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.” This clause of the constitution should not be interpreted as interfering with the police power belonging to the other slave-holding States, in virtue of their general sovereignty. In virtue of that power Mississippi has full jurisdiction to arrest a fugitive slave in order to secure her own citizens against his depredations or evil example, and to sell him to pay the expenses of his prosecution or detention. So if the slave had committed murder and was convicted, it surely would not bo a violation of the constitution by the State of Mississippi to hold the slave and execute him. See the cases of Prigg v. Commonwealth of Pennsylvania, 16 Peters, 624. People v. Tompkins, 9 Johnson, 70.

The constitution was not intended to enlarge the ownership of the master, but to protect it. It ought not therefore to be so construed as to confer upon the owner of the fugitive slave a higher ownership than he enjoyed in his own State. There are rights of the sovereign which are paramount to the rights of the citizen, and to which the latter must yield. If the slave had remained a fugitive in Louisiana, the public authorities could have arrested and sold him as a runaway, and divested the ownership of the master, by virtue of laws of police enacted for the general welfare. Why should not the State of Mississippi have the same right to protect her citizens, within her ewn limits ?

The clause in the constitution must, therefore, be interpreted with reference to the evil which it proposed to remedy. Its object was to secure to the citizens of the slave-holding States, the complete right and title of ownership in their slaves as property, in every State in the Union into which they might escape from the State where they were held in servitude, to guard against the principles and doctrines prevalent in the non-slave holding States, by preventing them from obstructing or abolishing the rights of the slave holder. It certainly did not intend to clothe the ownership of the master with higher rights and attributes in another slave-holding State than he enjoyed in his own, or to exempt this species of property unqualifiedly from the operation of those general rules which are applicable to other kinds of property susceptible of being moved from place to place.

I think the judgment should be reversed.

Judgment affirmed.