author: Eustis, C. J.

text:
    Succession of Nora.
    sThe sfcat. cf 1 5 March, 1830, s. 1, merely makes lawful certain sales of the property of successions made hy auctioneers. It does .not purport to interfere with the power of courts to direct such property to be sold hy their officers. Under the new organization of the judiciary and of the office of sheriff, hy .the constitution of 1845, such sales shouldbe made hy the sheriff.
    APPLICATION for a mandamus to the judge of the Second District Court of New Orleans. The testamentary executor of the widow Nora represented that, with the consent of the heirs of age and by the advice of a family meeting on behalf of the minors, he had, in his capacity of executor, applied for the sale of the immovable property of the succession, to be made by one Tricou, a licensed auctioneer of the .city of New Orleans: That the judge refused to comply with the petitioner’s demand, that the sale should be made by .the auctioneer named by him, thus refusing to the petitioner the exercise of a right granted to hint by a particular statute, that of having the property administered upon by him sold by a licensed auctioneer: That this refusal is a denial ,of justice which can only be remedied by a mandamus, and that the property in question exceeds the sum of 55300. ITe prayed for a mandamus to the judge .of the court below, .commanding him to comply with the .demand of the petitioner.
    In answer to a rule to show cause why a peremptory mandamus should not .be issued, Canon, J., alleged: That the sale prayed for had been ordered to be jnadeon the 25th of January, 1847, under the provision of the Code of Practice, arts. 760, 767: That it is provided by the Code of Practice, art. 1046, that the sales of property belonging to successions shall be made, in New Orleans, by the register of wills, under the direction of the judge: That by the 1st sec. of the stat. of 15 March, 1830, it was declared that the sales of .such property might be made by auctioneers, “ provided that the executor, ¡fee. .cause the procés-verbal of such sales when made in the parish of Orleans, to be recorded in the office of the register of wills, and when made in any other parish ofthis State in the office of the judge ;”that since the re-organization of the ¿he judiciary system, and the suppression of the office of register of wills, the right to employ an auctioneer to make such sales must be considered as done .away with, since the procés-verbal of the sales can no longer be recorded in the .office of the register of wills.

      Le Gardeur, for the petitioner.
    A mandamus is the only means by which the plaintiff can obtain redress. The judge alleges that he has ordered the sale prayed for, to be made by a competent officer. But that officer is not the one we have designated, as we had a right to do, and the order given is not the order prayed for.. This order is not final but interlocutory, being rendered on matters incidental to the settlement of the estate; and such judgments are not appealable from, unless they'produce an irreparable injury. In this case, not only jg there I10 irreparable grievance, but there is not even a grievance so far as the succession is concerned, as it will certainly not be contended that the parties interested can by any means be aggrieved, or injured, simply because the sale would be made by the sheriff. Indeed the only party aggrieved is the executor, who is denied the exercise of a right which is secured to him by law; but as the succession is neither aggrieved nor injured, the consequence is plain that the executor had no right, for the redress of his individual wrongs, to appeal from that judgment, had it been appealable from. The Code of Practice, art. 831, provides that a mandamus may issue at the discretion of the judge, even when a party has other means of relief, if the slowness of ordinary legal forms is likely to produce such a delay, that the public good and the administration of justice will suffer from it.
    It is not contended that the sheriff had no right to sell succession property. But cap this general authority destroy the right vested in executors by a special law of the land ? In other words, can a special law be repealed by implication ? This is the only question before the court. Until 1830, the probate judges in the country and the register of wills in New Orleans were the only persons authorised by law to make sales of the property. Code of Practice, art. 924, no. 5, and art. 1046. In 1830, the legislature passed an act, the first section of which provides “ that it shall be lawful for testamentary executors, administrators and curators to cause the property, real and personal; of such succession or successions as may be under their administration, to be.sold by any commissioned auctioneer, and such sale or sales, so made, shall be good and valid in law.” So that, previous to the abolition of the parish and probate court system, the law with regard to the sale of succession property stood thus: The power to sell was vested in the probate judges in the country and the register of wills in New Orleans, and this was the general rule on the subject; but under the 1st section of the statute of 1830, executors, administrators and curators, had a right to cause the property under their administration to be sold by any commissioned auctioneer; and this was the exception to the general rule. How does the law stand on this subject now ? The .sheriff, if the reasoning of the lower court be correct, and we have no interest or disposition to question its soundness, is the officer who has superseded the register of wills, so far as the sales of succession property are concerned. The power to sell such property would then vest in him, under the general rule of law. But as no change has taken place ip our system of laws relative to the settlement of successions, although the ministerial officers, through whose agency it was carried into effect may have been changed, the consequence is that the exception in the 1st section of the act of 1830, which existed before the adoption of the new constitution, and w.as a limitation of and a restriction upon the general powers of the register of wills, still continues to exist as an exception to the general rule, under which, in the opinion of the lower court, the sheriff is now authorized to make the sales in question. Registers of wills are no longer known to our laws; but the duty was imposed on auctioneers to file a procés-verbal of the sales made by them in the register’s office, because the latter was the clerk of the probate court; and this formality can easily be complied with now, by recording the procés-verbal in the clerk’s office of the court which orders the sale. Besides, the new constitution, art. 142, provides that “all laws in force at the time of the adoption of this constitution, and not inconsistent therewith, shall continue as if the same had not been adopted and the statute of 1830 is certainly not inconsistent with the constitution which vests no new powers in sheriffs, but simply provides (art. 83) that “ a sheriff shall be elected in each parish by the voters theof, for the term of two years.”
    If it be correct that no express repeal of the act of 1830 can be found; that there is no contrariety between the general power to sell succession property as claimed for the sheriff by the lower court, and the special power vested to the same effect in auctineers by the statute of 1830 ; and lastly, that the statute under consideration is not inconsistent with the new constitution, the conclusion must be that the statute is still in force, unless abrogated by considerations of a general character. And this brings ns to the only question before the court, that is, whether a special law can be repealed by implication.
    Zacharia;, “ Gouts de Droit Civil Francais,” vol. 1, p. 31, § 29, says: “ Toute fois, l’abrogntion tacite ne peut résulter que d’une contrariété formelle; daq le doute, ilfaut, en la rejetant, interpreter la loi nouvelle de maniére it la mettre en harmonie avec la loi antérieure. Posteriores leges ad priores pertinent, nisi contraries sint.- D’un autre colé, une loi sptciale n’est pas tacitement abrogtepar une loi genérale posttrieure. Lex specialis per generalem non abrogatur.” Pothier, in his Pandects, title De Legibus, sect. Í, art. 5, no. 25, speaks thus : “ Cum duax leges contrarios videntur, quarum- altera specialiter de casu de quo judicandum aut respondendum est, disponit, altera generaliter duntaxat disponit,- prsevalere debet illa quce specialiter disponit.” Merlin, in his “ Répertoire de Jurisprudence, Vo. Loi, §11, art. 3, says : “Les lois spé cíalessont-elles abrogées do plein droit par les lois générales pestérieures ? Non.” The Court of Cassation, in a decision dated August 8th, 1822, (Journal du Palais 17, page 561,) held that “ en principe,-íes lois et róglemens relatifs á desinatieres spéciales nepeuvent étre considérés comme abrogés par des lois genérales postérieures, qu’autant que célles-ci coritiennent des dispositions /ormelles et expresses d’abrogation.” The same learned tribunal, in another decision of July 13th, 1826', held the same doctrine, but in a different language. They said: Les lois générales ne dérogent point tacitement auxlois speciales, qui, par leur nature meme, conservent leur eífet tantqu’elles no sontpas spbcialemcnt abrogtesj” Journal du Palais, 20, p. 688.
    Sir Wm. Blackstone, in his celebrated Commentaries- on the laws of England. at page 89, of vol.-l.st, says:
    “ Where the common law and a statute differ, the common' law gives place to-the statute, and an old statute gives place to a new one. And this, upon a gen-ex-al pi'inciple of univei-sal law, that “ leges posteriores priores contrarias abrogant;” consonant to which it was laid down by a law of the twelve tables at Rome, that “ quod populus postremum jussit, id jus raium esto.” But this is to' be understood lohen the latter statute is couched in negative terms, or where its matter is so elearly repugnant, that it necessarily implies anegative. But if both acts-be merely affirmative, and the substance such that both may stand together, here the latter does not repeal the former, but they shall both have a concurrent efficacy. If by a former law an offence be indictable at the quarter sessions, and a latter law makes the same offence indictable at the assizes, here the jurisdiction of the sessions is not taken away, but both have a concurrent jurisdiction, and the' offender may be prosecuted at either,- unless the new statute subjoins express negative words, as that the offence shall be indictable at the assizes, and not elsewhere.”

    In the case of De Armas, (10 Mart. p. 172,) the Supreme Court adopted the px-inciples recognized by the authorities above quoted, and held: “ That a particular law is not repealed by a subsequent genei-al law, unless there be such repugnancy between them, that they cannot be complied With under any circumstances..” But nowhere is this principle more cleax-ly and forcibly illustrated, than in the recent case of the Bank of Louisiana v. Farrar and wife. 1 Ann. Rep. 49. Mrs. Farrar had bound herself jointly and in solido with her husband, in favor of the bank, under the 32d section of the charter gx-anted to that institution in 1824. When sued upon that joint obligation, she resisted the claim, on the ground that the 32d section of the charter was repealed by art, 2412 of the Louisiana Code, which prohibits a wife from binding hei-self for her husband. But your honors thought differently; and his honor, the chief justice, who delivered the opinion of the court on that occasion, said: “ In Louisiana, special laws form a large portion of our legislation. It is one of the evils of the times. An effort was made in the late convention, to place some i-estraint on what was felt to he an abuse in legislation; but it failed, and special legislation is a pai-t of our system. We cannot hold this section to be repealed by what we consider an implication. For the exception of the 32d section is no more in contradiction with art. 2412, than it was to the laws in reference to which it was passed; the relation it bears to each, is to all intents and purposes, identical. It was an exception to the former law; it remains an exception to this.”
    The case of the Bank of Louisiana v. Farrar and wife, is alone decisive of this. In that case, the wife resisted the plaintiff’s demand, on the ground that the special law of 1824, was repealed by the general law of 1-825. But the court thought differently, and decided that the exception in the special law of 1824 was no xnore in contradiction with the general law of 1825, than it was with the law in referonce to which it was passed; that it was an exception to the former law, and remained an exception to the latter. In this case, the execu-' tor claims the exercise of a right vested in him by a special law of 1830? and that;' right is denied to him by the learned judge of the Second District Court, because, in 1845, the office of register of wills was abolished, whence he concludes that the sheriff has the right to sell suecessionproperty, under the general' powers of his office. But it will be decided, in accordance with the principles laid down in the case of Farrar, that tho exception in the special law of 1830 is no' more in contradiction with the laws of 1845, than it was with the laws in reference to which it was passed; that it was an exception to the former laws, and remains an exception to the latter.

      Chymes, contri.
    The plaintiff in his anxiety to prove that he has no other remedy but that of mandamus, has succeeded in showing most clearly, that he is not entitled to that writ. He admits in his argument that there is not only no “ irreparable grievance,” but no grievance at all, “ so far as the succession is concerned; as it will certainly not be contended that the parties interested can by any means be aggrieved or injured, simply because the sale would be' made by the sheriff': indeed, the only party aggrieved is the executor, who is denied the exercise of a right secured to him by law,” etc. From this we see' clearly the issue tendered by the petitioner, and the true grounds of his complaint, and what he calls a denial of justice.
    It appeal's by the answer of the honorable judge of the Second District Court, that the order for the sale prayed for by the plaintiff, was actually grant-' ed on the 25th of January, 1847. The return of the judge is not traversed, nor its truth denied; it must, therefore, be taken as true. It is distinctly admitted that the succession, and those interested in it, are in no manner aggrieved or' injured by the nature and tenor of the judge’s order ; and that the plaintiff, in his representative character of executor, in which' capacity the whole proceedings in the' cause were conducted, has sustained no injury. The whole cause' of complaint is, that the plaintiff has not been permitted to exercise his arbitrary caprice in' the choice of an agent to execute a judicial judgment or decree, in opposition to judicial discretion, fairly and clearly exercised. The object of the struggle is to deprive the court of all discretion in the choice of the officer who-is to execute its mandates and judgments, and to vest it in the arbitrary will of an irresponsible suitor, one acting (as in this case)1'not in his own right, but irr a fiduciary' capacity, under the saction and by the appointment of that very court, immediately amenable to it, and considered in law as administering in all respects under its supervision and control.
    From these facts, and others appearing in this case, we submit, in support of the cause shown by the-judge of the Second District Court, the following propositions':
    1. In the language of Lord Bacon, that “ a mandamus is a writ commanding the execution of an act where otherwise justice would be obstructed, or the* king’s charter neglected, issuing regularly only iff cases relating to the public' and the government; and is therefore termed a- prerogative writ.” 4- Bacon, page 498 — vei'bo Mandamus. And, in the language of the Code of Practice, that “the object of this order (mandamus) is to prevent a denial of justice, or the consequence of a defective police,” and should be issued where the Jaw has assigned no relief by the ordinary means, and- where justice and reason require that some mode should exist of redressing a wrong or an abuse.
    2. That no obstruction of justice has taken place, the order prayed for having been granted. That no injury has resulted either to the thing,- nor the persons interested in the thing-over which the court exercised jurisdiction in thee course of the proceedings complained of, and no injury or damage caused to the' immediate party in his representative or fiduciary character, in which capacity alone he was before the court; nor any actual damage'or loss to him iw his individual capacity.-
    3- That the exercise of a sound discretion by the court, is a power and a’ right inherent in all courts, unless forbidden by positive law, and more especially in courts of probate, which are invested by law With the supervision over the administration of estates in the hands of trustees, such as executors, administrators, tutors etc. etc.; and that the exercise of such discretion involves nothing in relation to the public and the government, in the true sense of the authors quoted, and is nothing more than ordinry judicial action upon matters coming before the courts, in the exercise of their acknowledged jurisdiction.

      4. That there is nothing in this case in relation to defective police. There is no wrong to redress; for it is expressly admitted that 1he parties interested have suffered none. There is no abuse to correct; for the privilege contended for by the plaintiff is a bare naked right, uncoupled with any perceivable interest — not granted to him by any statute, positive in its terms, passed upon any considerations of a public nature, but subject to judicial interpretation and judicial discretion.
    5. That the statute of 1830, quoted by the plaintiff, (Bullard and Curry's Digest, p. 2,) is directory only in its terms; it creates and vests no positive and absolute rights in the persons named in the statute, independent of all judical interpretation, discretion, or control: it does not, in direct terms, exclude judicial action ; and this can never be done by implication — by the general terms of the law: it cannot be conclusively inferred that it relates to the sales of property to be made by the judgment or order of the court. In its terms it would seem to relate to the extra-judicial action of the executor, curator, etc. To suppose that a statute contemplated judicial action as necessary to the accom plishment of an act — -that it should be done by virtue of a judgment or decree of a court, and at the same time deprive that court of all power or discretion as to the organ or means by which its judgement should be executed, and vest that power in a. party to the suit, would be to suppose a case that might be within the scope of legislative power; but it is a conclusion which no court should arrive at by implication. It would render the court the mere organ of the party to the proceedings — -invest him with an arbitrary authority, to be exercised ex parte, and without opposition, destructivo of I he legitimate power and authority of the court, and tending to disorder, fraud and numberless abuses. When the powers of the judiciary are necessarily called into act ion, for the accomplishment of any lawful purpose, they are necessarily seized of the whole subject — have a right to act upon it in all its parís- — lo look lo the execution, as well as the rendition of their judgments, unless restrained by some clear, positive, and prohibitory law. No such law is to be found in the statu!e quoted and relied on by the petitioner. If (he court had any discreiion in the matter, (hen a mandamus will not be granted (Louisiana. College v. The Slate Treasurer, 2 La. 394); nor is a mandamus in this case at all necessary to aid this court in its-appellate jurisdiction, as contemplated by (he (lode of Practice, art. 838.
    (i. The privilege claimed by the plaintiff has no appreciable value; it could not come before this court, nor be considered by it, in the «exercise of its appellate jurisdiction. It has no permanent-, fixed, or useful existence. It may be used capriciously, or it may not be used at all, and, if not claimed or used, the matter would belong to the court, which is (he strongest argument to prove that the court is not wholly without, power or discretion in the matter. For all these reasons we believe that this is not a case for a mandamus.
    Supposing all these objections to (lie remedy by mandamus to be overruled, and the court in possession of the cause, what judgment should be rendered ?
    1. The probate system and all its machinery, as it exisled prior to the adoption of the new constitution, has been abolished, or modified by the new constitution, to such an extent as to repeal or render inapplicable many of the statutes passed iu relation thereto. In relation to the particular statute relied on by the plaintiff, the first section declares that the sales to be made by auctioneers shall be good and valid in law, upon an express proviso: that the procesverbal of such sales shall be recorded in tne office of the register of wills, when made in the parish of Orleans, and in the office of the parish judge, when made in any other parish. The office of register of wills in the parish of Orleans is abolished, and so are (he parish judges throughout the State; and, neither the conslitut-ion, nor any law passed under it, has endowed any other office or officer with all the faculties or functions exercised by either the register of wills or parish judges; yetthe proviso of the statute is clear that such sales shall only be valid in law upon that condition.
    But suppose it should be considered that by necessary implication those duties and functions have been transferred to some other officer, and that a recording in some other office would satisfy the exigency of the law. What office is this to be ? Surely it would be for the judiciary to decide this, upon a fair and legal interpretation of the constitution and laws; and travel round the whole circle of this case, and we must come back to this point of judicial interpreta, tion. In the present state of the law there is no escaping from it; it must be. gin in the inferior court, for this court has no original jurisdiction. The cor. rectness of the judgment of a court of the first instance, pronounced on matters of law arising in the course of judicial proceedings, and submitted to its decision, connot be inquired into on a mandamus; and if the powers of this court, in the exercise of its ordinary appellate jurisdiction, will not reach the case; if the thing claimed has no value, or none but an imaginary one which will not support the jurisdiction of this court, it only proves that it is a ease in which the constitution has not provided the means of revising such judgments.
    By this statute it is made the duty of the executor, curator, &c. &c., or some one else, to cause the proces-verbal of sales to be recorded. Suppose the executor or curator fail to do it? Suppose no person else takes the trouble to do it? The statute makes it a condition precedent to the validity of the sales, that, the recording should take place. Judges of the District Court cannot be expected to devote their time to watching the conduct of suitors, of executors, curators, &c., or to the performance of any extrajudicial functions; this is forbidden by the constitution. If the law invoked by the petitioner be in force, and gives him what he contends for, the absolute right, independent of all judicial power or action, to the exercise of this privilege, the validity of all sales of this nature must depend upon the conduct and will of executors, administrators, curators, &c. and great confusion, frauds and litigation must be the natural consequence. Such a state of things must be sufficient to open the door and let in the judiciary to act upon the subject, and its judgments must be considered as judgments in the discharge of their ordinary judicial functions, and to be revised and corrected in the ordinary manner, and where this cannot be done, to remain final, as in other cases.
    2. We take it for granted, that the sheriff, by virtue of his office, is the proper person to execute all orders, judgments, decrees and mandates of the several courts of justice of this State. That this is the peculiar, appropriate, universal and necessary attribute of his office, independent of any special statute or law so declaring it. That a judgment, order, or decree of a district court, directing or ordering a sale of property, is, in every sense of the word, a judicial act or judgment, done or rendered by such court; and that the execution of such a judgment or decree would fall directly within the legal and natural attributes and functions of the sheriff’s office. That all special legislation, by which any part or portion of the duties, powers or rights of the sheriff are transferred to any one else, is an exception to the general rule; and, if the person to whom any such powers, rights and duties are transferred be an officer of the State, it is to all-intents and purposes a transfer of the duties and powers of one office under the State, to be held and exercised by another. The 126th article of the constitution of the Slate declares, that “no person shall hold or exercise at the same time-more than one civil office of emolumont.” The act of 1830, authorizing auctioneers to execute the judgments of the courts, is in conflict with this article of the constitution, and, of course, repealed by it. Auctioneers are offi - cers of the State — they are appointed by the governor, by and with the advice and consent of the senate — and commissioned as such, and their duties are regulated by law; they are the collectors of a considerable portion of the revenue of the Slate; and it is not competent to the legislature to get round the true meaning of the constitution, by cutting up and parceling out the legitimate and lawful powers, duties, and attributss of one office, and accumulating and adding them to another; and thus doing indirectly, that which it would be unconstitutional to do directly. No court of justice would be justified in sanctioning such a course, under the actual legislation on the subject; nor will this court, by mandamus, compel a district judge to act as in the case of an acknowledged, valuable, indisputable and useful right, in a case where the construction of the constitution and the statutes of the State are called in question, and where his judicial discretion is necessarily called into action.
    3. The judge of the Second District Court returns, that the order for the sale, as prayed for by the plaintiff, has been granted; but, that he has ordered it to be made by the sheriff of the parish of Orleans. In this he has exercised a sound legal discretion, upon every principle of public order, safety and convenience. To execute the j udgments and decrees of the courts of justice, is the natural and almost exclusive duty of the sheriff, as laid down and regulated by law. He acts under an oath of office, and a heavy official security. His office is in immediate contact with all the courts of justice, and he is under their easy and constant superintendence; and, asan officer of the courts, he is subject to their authority by summary process. All the records, documents and proceedings in relation to the business of the courts; are kept together in one office, and of easy access to the public. Being an independent public officer, and his duties regulated and prescribed by law, and the most summary remedies provided to restrain him within the bounds of his duty, and to punish him when he exceeds them, the public business is more safe in his hands; and his fees or compensation being fixed and regulated by law, all temptation to bargains and collusions with executors, administrators or curators, for a share in commissions and emoluments is done away with. He is elected by the people of the parish and is amenable to them; and in addition to all the other checks and securities created by positive law, the slightest violation of duty is subject to die action of public opinion through the ballot box, at short periods. The struggle on the part of the petitioner in tilis case is for the exercise of an arbitrary privilege or will, that has no intrinsic value to him in the fair and honest exercise of his functions as.executor. Its only object is to enable him to distribute his patronage, and the emoluments arising from sales of this nature among die auctioneers of the city, at his pleasure. Thisis a dangerous power with which to invest individuals, who are parties to judicial proceedings — who are mere trustees, guardians, or administrators of property for others. It is dangerous to the public to entrust the execution of judicial decrees or judgments to many persons who aro not under the immediate eantrol of the courts, who act under no official responsibility, and who owe their employment and its emoluments to the patronage or choice of one party to a suit or judicial proceeding. As to the emoluments arising from business of this nature, if they must accrue, it is certainly better that they should go to the sheriff than to any one else. His office is essentially a public one — he is not supposed to be engaged in any private business, trade or calling — it is wholly for the public — it is a very expensive one, and the profits or emoluments are divided among a host of deputies, clerks and employés, whom he is obliged to maintain for the public service, whether the emoluments of his office be great or small, and being thus distributed contribute to the support of a large number of persons and famlies who are in need of such employments. Auctioneers, on the contrary, are not only officers of the State, but they are also private merchants, traders and dealers — the whole trade and commerce of the country is open to them, they are subject to all its vicissitudes, from the accumulation of large fortunes to bankruptcy. They employ no more clerks or persons than are necessary for their private business; they contribute to the emolument or living of no one beyond the exigencies of their own interests.
    They are appointed by the governor, and in proportion as you add to their functions and emoluments, and introduce them into the administration of justice., you add to executive patronage and power, and take away from the people that power and authority over public officers, and weaken their accountability to them, which it is clearly the object of our new constitution to create and establish upon an effectual and lasting basis.
    The auctioneer, not being an officer of the courts of justice, but owing his employment to the good will of a party litigant, is beyond the reach of the summary process and proceedings of the court; in many cases he could only be reached by the ordinary and tardy process of the law. He is without the restraint of an approaching popular election and accountability to the people; he may trust to explanations, and appeals to executive clemency, mercy or favor, fora re-appointment; when appointed by partnerships and associations in commerce, he may be the mere holder of a sinecure commission, and all the public business placed in his hands be entrusted to the management and control of persons not elected by the people — not even appointed by the executive — but private merchants and traders, wholly irresponsible to the public, and in whose appointment and induction into the most important public concerns, the public has never been consulted, directly or indirectly; or he may bring his commission as so much capital into the partnership, thus trafficing in executive patronage, and advancing his private fortune at tlie hazard of the public good.
    From all these considerations it is submitted that the judge of the Second District Court has exercised a sound, legal and just discretion in this matter, and that the mandamus asked for should be refused.
   The judgment of the court was pronounced by

Eustis, C. J.

The executor of the last will of the widow Nora applied to the Second District Court of New Orleans, for the sale of the property of the succession, and prayed that the sale might be made by an auctioneer designated in his petition. The judge considering that the sale ought to be made by the responsible officer of the court, who is bound by law to execute all its orders, directed it to be made by the sheriff. The executor has applied to us for a mandamus which was granted nisi, and on the return we have the reasons for the action of the district judge, which are conclusive. This is no case for a mandamus. The law of 1830 merely makes lawful certain sales made by auctioneers. It does not even purport to interfere with the pow'er of courts to direct the property of successions to be sold by their officers, who, for grave reasons, courts may consider ought to be entrusted with them, and still less to take away that power. Und.er the new organization of the judiciary, and of the office of sheriff, by the constitution of 1845, the district judge was certainly right in directing the sheriff to make the sale of the property of the succession.

The application for a mandamus is dismissed, with costs.

      See .stat, of 10th March, 1847, ch. 79, relative to judicial sales, and the supplemen;ary act, as it is termed, of 7 April of tho same year, ch. 96.


source: Caselaw Access Project

author: Slideli., J.

license: Public Domain

text:
    Succession of Whipple.
    The Supreme Court has no general supervising power and control over courts of inferior jurisdiction. The power it is authorized to exercise through writs of mandamus and prohibition, is limited to cases in which its exercise is incidental to, and in furtherance of, its appellate jurisdiction.
    A writ of prohibition .will no,t be directed to a District Court of New .Orleans to forbid its as' suming jurisdiction in the matter of a succession, on the application of one who had been appointed a curator of the same succession by another District Court of the city, where tho question of jurisdiction has not been raised or decided by the former tribunal. The question as to which court has jurisdiction depends, under the stat. of 30 April, 1346, § 13, upon the ■time of filing the petition for the curatorship, and one court has as much authority as the other .to determine it, so far as its own proceedings are concerned. The jurisdiction of the Supreme Courtbeing appellate only, and the question of jurisdiction not haviiifr been raised in tho court to which .the prohibition is prayed to be directed, cannot he determined.on an application for a prohibition.
    APPLICATION for a prohibition to the Third District Court of New Orleans, Kennedy, J.

      Budd, Redmond and Cohen, for the application.

      Mott and Carter, contra.
   The judgment of the court was pronounced by

Slideli., J.

Under the constitution and act of 30 April, 1846, all the district courts of New Orleans are clothed with jurisdiction in matters of succession. See .Constitution, arts. 75 and 78. Acts of 1846, p. 32. The 13th section of this act declares, that all petitions filed for the curatorship or administration of estates or for executorship of wills, the exact time of filing said petitions shall be endorsed, and in the court in which petition was first filed, as shall appear by the endorsement thereon, all of said petitions shall be transferred and .decided on.” [Sic in published stat. R.]

Jonanneau has applied to this court for a writ of prohibition to the Third District Court of New Orleans. The grounds presented are that, on the 12th January, 1847, he filed in the Second District Court of New Orleans a petition, applying for the curatorship of the succession of Whipple, upon which the usual order of advertisement was made, and he was eventually appointed and qualified as curator by that court. That one Folger, on the 12th January, 1847, butupon a petition filed, as he alleges, at a later hour, applied for the curatorship of the same succession, in the Third District Court of New Orleans, and having been also appointed curator by this latter court, has obtained therein an order for the sale of certain property of the succession. He also avers that he obtained in the Second District Court a rule on the adverse curator, Folger, to shew cause why the proceedings in the Third District Court should not be transferred to the Second District Court, and that thereupon an order of transfer was made by the Second District Court. This order was made without any concurrence, or action thereon whatever of the Third District Court. He alleges that the appointment made by the Third District Court, and all the proceedings in that court, are null and void, and prays that a writ of prohibition may issue, forbidding said Third District Court from further entertaining any jurisdiction in relation to the administration of the estate of said Whipple, inhibiting said Folger from assuming the functions of curator of said estate, and directing the sheriff to forbear proceeding any further with the intended sale of the property of said estate. The clerk’s certificate of filing, endorsed on the petition in the Second District Court, exhibits the hour of the day on which it was filed. The endorsement on the petition filed in the Third District Court, signed by the clerk, states the day of filing, but not the hour, and a memorandum also written on the petition, but not officially signed, states the hour of filing. It further appears that Folger has taken an appeal from the decree of the Second District Court; but the Third District Court continued to exercise jurisdiction over the succession, and has ordered a sale by the sheriff.

Thus each court continues to exercise its jurisdiction, and each, under the statute, having an independent organization and jurisdiction, the one is without authority to control the other; for it must be observed, that the statute has not provided which court, in case of controversy, shall decide the disputed question. This state of things may present a very proper case for legislative action. Our province, however, is to intei'pret the constitution and laws as we find them, and ■to decide accordingly.

Whether the Third District Court has, or has not, lawful jurisdiction in the matter of this succession, is a question dependent, under the statute of 1846, upon the fact of the time of filing tire petition for the curatorship in that tribunal, and that question the Third District Court has, under the statute, as full authority to ■determine, quoad the proceedings before it, .as the Second District Court has as to the proceedings in its forum. The question has never been raised in the Third District Court. The jurisdiction of this court, under the constitution, is appellate only, except in cases specially provided. We have not a general supervising power and control over courts of inferior jurisdiction. Our supervising power, through the writs of mandamus and prohibition, is limited to those cases •where its exercise is incidental to and in furtherance of our appellate jurisdiction. We cannot thus create a cause. The question of jurisdiction having never been raised before the Third District Court, nor decided by it, we are not authorized ■to hear and determine the question originally, nor would it be proper for the applicant to assume in advance that, if the question of jurisdiction was raised in ■hat .court, it would be decided adversely or erroneously.

The applicant for a prohibition is not entirely without remedy before the Third District Court itself, and, at all events, he has not presented a case within the constitutional jurisdiction of this tribunal. It is obvious that where two courts are thus proceeding, very embarrassing and anomalous results may follow, before the subject can be properly brought before the appellate tribunal. Petitions might be filed in the five District Courts of New Orleans on the samo day, in the matter of the same succession; five conflicting mandates might be sent to the sheriff, their common officer, and the same question might be determined different ways; an impropriety, says Blackstone, which no wise government can or ought, to endure. The writ of prohibition would arrest such a mischief in England, for there it is the king’s prerogative writ, and the king’s superior courts of 'Westminster have, in such cases, a superintendancy over all inferior courts of what nature soever, and may prohibit and control them. The necessity of some provision with regard to the collision of the District Courts of New Orleans, will doubtless commend itself to the attention of the proper department of the government.

Applicationfor prohibition dismissed, with costs.


author: Rost, J.

text:
    Shepherd v. Young et al.
    One who has cut wood on -the land of an adjoining proprietor, through ignorance of the line of separation of the two estates, a part of which was removed and used by him, and the remainder taken possession of by the owner, being presumed to have acted in good faith, will bo responsible only for the value of the wood used by hhn.
    Where the owner of an undivided half of a tract of land authorizes a third person to make bricks on it, the latter will not be liable to the other joint owner in damages for a trespass.
    Appeal from the District Court of Madison, Curry, J.

      Amonett and Shannon, for the appellant,
    cited Civ. Code, art. 2294. 10 La. 117, 204. 14 La. 280.

      Snyder and H. W. Dunlap, for the defendants,
    cited Civ. Code, arts. 21, 1960. 1 Story’s Equity, ch. 5, p. 155 et seq.

   The judgment of the court was pronounced by

Rost, J.

The plaintiff claiming damages from the defendants for unlawfully entering upon his land, cutting cord-wood, and making a kiln of bricks thereon, and carrying away the same, obtained an injunction to stay further waste. The defendants filed a general denial, and alleged that, if they had entered upon the plaintiff’s land, they were not aware of it at the time; that the wood was cut through mistake; that they had authority from Dunlap, the joint owner of the land, to make bricks thereon; that the plaintiff appropriated the wood cut, as well as the bricks to his own use; and that they are entitled to damages in reconvention. The court below dissolved the injunction, and gave judgment in favor of the defendants for $65 90. From this judgment the plaintiff has appealed.

It is proved that Dunlap, being the owner of one undivided half of the lands authorized the defendants to make the kiln of bricks, part of which the plaintiff has taken and converted to his own use. It is also shown that the defendants cut, without authority, a large quantity of cord-wood, a portion of which was removed by them. The remainder was taken possession of and sold by the ulaintiff. The evidence in relation to the defendants’ knowledge of the precise situation of the division line between their land and the plaintiff’s, is conflicting; but the fact sworn to by the parish surveyor, who has since traced that line, that the defendants had erected a building and a blacksmith shop, which he found to be almost entirely upon the plaintiff’s land, satisfies us that the defendants did not accurately know the limits of their possessions; and their subsequent offer to indemnify the plaintiff for the wood, and to refer the matter to any two proper persons he might select, creates in their favor the presumption of good faith.

The plaintiff is entitled to damages for the wood carried away; the defendants, on the other hand, must be compensated for the bricks converted by the plaintiff to his use. The amount allowed by the judge of the first instance, was no doubt the balance arrived at by him on their respective claims; and as its correctness rests exclusively on questions of fact and the degree of credit to which the witnesses are entitled, we cannot interfere with it. We consider, however, that the injunction should have been perpetuated in part, and in that respect the judgment must be amended.

It is therefore ordered that the judgment in this case be amended, by perpetuating the injunction so far as it inhibits the defendants from committing waste on the plaintiff’s land, by cutting down or carrying away timber or both; and that the judgment as amended be affirmed, the defendants and appellees paying the costs of this appeal.


author: King, J.

text:
    Dunlap v. Sims.
    A sale of property under execution, on a twelve-months’ credit, neither satisfies the judgment, nor novates the debt. »
    In issuing execution on a twelve-months’ bond given for the prico of property sold under a fi. fa,, it is not required that the writ should be issued against the principal and surety in the bond, nor that it should be stated, in the body of the writ, that it was issued for the amount of a twelve-months’ bond entered into by the principal and surety for the purchase of the property sold. It is sufficient that the writ direct the sheriff to seize and sell the property of the parties to the bond; and that the clerk endorse on it that it was issued on a twelvemonths’ bond, and that the property is to be sold for whatever it will bring in cash. C. P. 719, 720, 721. The style of the original suit should be preserved in the writ.
    Where an injunction has been obtained to arrest an execution, but the want of the notice of seizurerequired by art. 634 of the Code of Practice is not made one of the grounds of injunction, and no evidence in relation to it appears in the record, the officer charged with the execution of the order of seizure willbe presumed to have done his duty.
    APPEAL Appeal from the District Court of Madison, Curry, J. Sims recovered a judgment against Gray, on a joint note executed by Day and Gray, given for the purchase of a tract of land. Dunlap purchased the land at sheriff’s sale, on twelvemonths’ credit, and entered into bond, as required by the statute in such cases. Sims had an execution issued on his judgment against Gray, as stated in the opinion of the court infra, under which the sheriff seized the land and advertised it for sale, and the plaintiff enjoined the proceedings. From a judgment dissolving the injunction with damages, the plaintiff has apcfealed. 1

      Shannon, for the appellant.
    The judgment of Sims v. Gray, was satisfied by the levy, or seizure and sale of N. Gray's property to the full amount of tho judgment, interest and costs. See 2 Lord Raymond's Rep. 1072. 1 Salk. Rep. 322. 4 Massachusetts Rep. 403. 7 Johnson’s Rep. 428. 12 John. Re]). 3. Merger’s Rep. 298-9. 1 Howard’s Miss. Rep. 67-69. 2 How. Rep. 852-3. 4 How. Rep. 350-1. 5 How. 574. 6 Plow. 513. The same decisions have been made in most of the States of the Union.
    The case of Williams v. Brent, in 7 Mart. N. S. 205 to 222, seems to be the foundation on which all subsequent decisions have been made — that a sale of property on twelve-months’ credit does not satisfy or novate the original judgment. The reasons given in the decisions in the common law States, well apply in this State. Article 719 of the Code of Practice requires, in the case of aforfeited twelve-months’ bond, the clerk to issue an execution or fi.fa., as on final judgment. The clerk should have issued the execution in fiivor of Sims against Dunlap and Lilly, the surety on the bond, for the amount of the twelve-months’ bond, interest and costs, and have stated in the body of said execution, that the same is the amount of a twelve months’ bond entered into by said Dunlap and Lilly, for the purchase of certain land, sold to satisfy a judgmentof Sims v. Gray, which bond had not been paid. Then the payment of that amount would be a complete bar against any other execution on the twelve-months’bond. Issued as it has been, it would not prevent an execution from issuing on the bond. It has always been the policy of the law to require as much certainty in writs issuing from the court as is practicable. Can the sheriff proceed to sell the land of plaintiff, without giving him notice of the seizure as required by art. 654 of the Code of Practice? Under the prayer for general relief, the court is bound to notice every legal objection. See 12 Rob. Rep. 205.

      Sloefdon. Sleele and Thomas, for (.he defendant.
   The judgment of the court was pronounced by

King, J.

F. Sims, the defendant in this action, obtained a judgment against IV. Gray, and, in virtue of & fieri facias issued thereon, certain lands described in that judgment were seized, which, failing 1;o produce two-thirds of their appraised value on the first exposure, were sold on a ei-edit of twelve months, and adjudicated to H. W. Dunlap, the plaintiff, who gave his bond with surety, for the price, with five per cent interest. Several months after the maturity of the bond, Sims caused an execution to issue thereon, direcliogthe sheriff to make its amount, with interest and costs, by seizing property of the principal and surety in the bond. Dunlap, the plaintiff, enjoined the writ, on the ground thathe was no party to the judgment under which it issued, and that his property was illegally seized to satisfy it. The injunction’was dissolved in the court below, with fifteen per cent damages and five per cent interest on'the amount of the judgment enjoined, and the plaintiff has appealed. He contends that the judgment of F. Sims against; N. Gray, was satisfied, by the seizure and sale of property to an amount sufficient to cover the debt, interest and costs, for which a twelve-months’ bond was given.

No principle is better settled in our law, than that a sale of property under execution, on a credit of twelve months, neither satisfies the judgment nor novates the debt. The numerous authorities to which we have been referred from other States, where a different rule prevails, are wholly inapplicable here. 7 Mart. N. S. 205. 9 La. 92.

It is next contended that the clerk should have issued the execution in favor of F. Sims, against Dunlap and Lilly, the parties to the bond, and should have stated, in the body of the writ, that it was the amount of a twelve-months’ bond entered into by Dunlap and Lilly, for the purchase of certain land, &c. No' such recital in the body of the writ, as that contended for, is required by law.. The writ directed the sheriff to seize and sell the property of Dunlap and Lilly, the parties to the bond ; and on it the clerk endorsed that it was issued upon a twelve-months’ bond, and that the properly seized under it should be sold for whatever it would bring in cash, which is in strict accordance with the requirements of the Code of Practice. See arts. 719, 720, 721. The style of the original suit was correctly preserved in the writ. This follows as a consoquence from the well recognized principle to which we have adverted, that a sale on twelvemonths’ credit operates no novation of the debt. The execution which issues on a twelve-months’ bond, is to effect a sale for the purpose of satisfying the judgment.

The objection that the plaintiff was not served with the notice of seizure required by the 654th article of the Code of Practice, cannot be considered on this appeal. It was not made a ground of injunction by the plaintiff, and no evidence in relation to it appears in the record. In the absence of such testimony, the officer must be presumed to have done his duty.

The plaintiff has no just ground of complaint against the damages assessed by the lower court. The injunction was evidently obtained to protract the payment of a debt due, which the plaintiff in execution was proceeding legally to collect.

Judgment affirmed.


text:
    White et al. v. Henderson.
    A contract to pay compound interest is lawful, if made after the interest has accrued. C. C. 1934.
    Appeal from the District Court of Carroll, Curry, J.

      Stacy and Sparrow, for the plaintiffs. Stockton, Steele, and Thomas, for the appellant.
   The judgment of the was pronounced by

Eustis, C. J.

This suit is brought on three promissory notes, made by the defendant to the order of the plaintiffs. The defendant pleads that they were given in error; that the consideration of them was corrupt, illegal and usurious, being for usurious and compound interest, and for commissions not really due; that, at the time he made them, he believed he owed the plaintiffs the amount, but that the fact is otherwise, the plaintiffs owing him $6,000, which he claims in reconvention. The plaintiffs are merchants in New Orleans, and the mercantile establishments of the defendant were in Mississippi. The transactions between the parties were mercantile, and extended back a long series of years.

There was judgment in favor of the plaintiffs, and the defendant has appealed.

The notes were given for the balance of the account of the plaintiffs against the partnership of John Henderson & Company, of which the defendant was a member. On settlement of the accounts, and in discharge of the balance due, on the 27th of February, 1838, notes of that firm were given to the plaintiffs, which were reduced by payments to the sum of $13,701 36, on the 7th of April, 1840; for which the defendant gave his firm’s note, payable at different terms, one of which was paid, the other three are those sued on. At the same time, the unpaid notes of John Henderson & Co. were given up- to himby the plaintiffs.

These notes the defendant retains, and has not offered to return, and he seeks to avoid the payment of his own notes by opening the liquidated accounts of himself, the firms of John Henderson Sf Co., and Henderson, Jenkins & Co,, of which ha was a partner, with the plaintiffs, and the house of Maunsel White to which they succeeded, which accounts, between the years 1834 and 1840, show, it is contended, that the notes sued on were made up exclusively of interest compounded and illegal commissions. Transcripts from the plaintiffs’ books were produced at the instance of the defendant, and made evidence.

By article 1934 of the Civil Code, a contract to pay compound inierest is lawful, if made after the interest has accrued; and there is no evidence that the commissions charged were a cover for an usurious loan, or for the exaction of a higher rate of interest than it was lawful to stipulate. Dunbar v. Gould, 16 Johnson’s Reports, 374. Daquin v. Coiran, 3 La. 394. Flower v. Millaudon, 19 La. 139.

The allegation of the defendant that the notes sued on were given in error is unsupported by evidence, and repugnant to every probability dependant on his possession, position and conduct. The parties were merchants engaged in the cotton trade; the accounts between them were communicated at certain periods, and, independent of the ratification implied by his acquiescence in their correctness, we have two liquidations of the amount due by notes, on which time was granted by the plaintiffs..- The defendant, with the notes of John Henderson 8f Company in his pocket, and having the'benefit of them against all the parties to them, which the plaintiffs gave up to him in exchange for his own, asks the court to determine that he gave the latter in error of his rights, and in ignorance of what' the accounts, which had been’ regularly furnished to him, made manifest. His appeal for relief against this error would have been strengthened by a disposition on his part to repair it, by returning, or offering to return, that which was received in error, restoring to the plaintiffs the notes of John Henderson Sf Co., and-re-integrating them in their rights, as they stood before the error of receiving the notes was committed. Judgment affirmed.


author: Kino, J.

text:
    Armor, Executrix, v. Downes.
    Where several notes, payable at .successive periods, and secured by the same mortgage, have all matured, theholderof those which matured the last may obtain an order for the seizure and ssle of the property, without proving that the other notes have been paid. If unpaid, the fact should be shown, when the holders may claim to participate in the proceeds of the mortgaged property.
    Appeal from the District Court of Madison, Curry, J.

      Shaw and Lawrence, for the plaintiff. Pepper and Amonett, for the defendant.
   The judgment of the court was pronounced by

Kino, J.

The defendant executed four promissory notes, payable to James Armor at different dates, and gave a special mortgage, by authentic act, to secure their payment. The executrix of Armor being in possession of the two notes thus secured, which last matured, obtained an order of seizure and sale of the hypothecated property, from which the defendant has appealed.

The appellant contends that the judgment was improperly rendered upon two of the notes. That the property can only be seized and sold to satisfy the whole debt which it was mortgaged to secure, on the principal that the mortgage is indivisible, and that the holders of the different notes are entitled- to partioipale in tlio distribution of the proceeds of the hypothecated property. In support of that position, he invokes the 586th article of the Code of Practice, and the decision in the case of Pepper v. Dunlap, 16 La. 163. The former provides that, “when the seizing creditor has a privilege or special mortgage on the property seized for a dobt of which all the instalments are not yet due, he may demand that the property be sold for the whole of the debt, provided it be on such terms of credit as are granted to the debtor by the original contract.” In the latter it was held that, when the seizing creditor only sues for such instalments of a debt, secured by special mortgage, as-are due, the property mortgaged is to be sold for the whole of the debt, on the terms of credit granted by the original contract, and that this may be claimed by the creditor without showing that he is the owner of the subsequent instalments, it being sufficient to mention the latter in the petition. See also 10 Rob. 49. The principle here recognizod,; however correct, we deem inapplicable to the circumstances of the present case. Here all the instalments became due long before the institution of the'present proceedings. If the two notes which first matured be still unpaid, the fact should have been shown affirmatively, in order to bring the case within the operation of the rule established in the case of Pepper v. Dunlap; otherwise a decree might be .rendered for the sale of property, to satisfy a debt which had already been extinguished. The fact of their non-payment is not alleged in the petition, nor has it been made otherwise to appear. If the notes which first matured be unpaid the holders may still protect their rights, and claim to participate in .the proceeds o.f the mortgaged property.

Judgment affirmed,.


author: King, J,

text:
    Benton v. Roberts.
    A deposit, made with a merchant, of a sum of money tendered in payment to a creditor, will not discharge the debt, nor place the money at the risk of the creditor. C. P. 412 et seq.

    A creditor is not hound to accept a tender of a sum less than the whole amount due to him.
    The amount of a judgment obtained in a court of the first instance, from which a suspensive appeal was still pending, cannot he compensated against a twelve-months’ bond already due.
    Where a debt was attached by a third person, but the attachment subsequently set aside upon the execution of a bond by the defendant in attachment, the bond stands in lieu of the property attached, and, after the release which it operates, the pendency of the suit cannot be urged by the debtor as a reason for withholding any part of the debt.
    Appeal from the District Court of Carroll, Curry, J.
    J. Dunlap and Sparrow, for the appellant. Prentiss and Finney, for the defendant.
   The j udgment of the court was pronounced by

King, J,

The plaintiif enjoined, in this action, an execution issued against him on a twelve-months’ bond, on the following grounds: 1st, That before the writ issued, he tendered to the defendant $5,583 34, which, it is alleged, was the only sum then remaining due. 2d, That he had paid the defendant $4,000, about the time when the twelve-months’ bond matured. 3d, That he had obtained a judgment against Roberts, the plaintiff in execution, for $1,770 14, with five per cent interest thereon, from the 7th of July, 1843, until paid, which he was authorized to compensate against the bond. 4th, That the twelve-months’ bond on which the execution was issued had been attached, at the suit of Lewis Selby, for $1,551, with five per cent interest from February 12th, 1844, of which the plaintiff was duly notified, and that ho was authorized to retain that sum to abide the results of the attachment suit. The injunction was dissolved in the court below, with ten per cent damages, and .the plaintiff has appealed. '

I. It is admitted that the alleged tender was mad.e .to Roberts, the judgment creditor, and that the sum was subsequently deposited with a merchant. The effect of a tender and doposit in this form, even if it had be.en of the entire .amount due, would neither have been to operate a discharge of the debt, nor to place the money at the risk of the creditor. Code of Prac. art. 412 et seq. But the tender, in the present instance, was .of a sum less than that due, which Roberts was pot bound to accept.

II. The sum of $4,000, alleged to have been paid, was received by the sheriff" .after the writ came into his handstand was duly credited thereon.

III. The plaintiff had obtained a judgment against Roberts for the sum stated in the petition, which, at the date of the writ, was pending .on a suspensive appeal before the Supreme Court. While thus pending the debt was not exigir ble, and could not be compensated against a twelve-months" bond which was due, ;and consequently could have formed no ground for an injunction.

IV. The attachment of Selby had bean set aside by Roberts, up.on his giving ,the bopd required by .law. This bond stood in lieu of the property attached, and, .after the release which it operated, the pending of that suit could no longer be urged as a reason for withholding any part of the debt. Code of Prac. art, 259. 18 La. 58.

It has been urged .that, notwithstanding the payments admitted to have beep made, and that the bond bears ten per cent interest, the judge below has com .demned the plaintiffs to pay the ivhole amount of the bond, and ten per cent additional interest, besides damages. We do not so understand the judgment. It is perhaps obscurely worded. We understand, however, that it condemns the plaintiff to pay the amount of tíre bond, with ten per cent interest, which it bears on its .face, after deducting therefrom two credits, amounting together to $4,000, to take effect at specified dates; and that it further condemns the plaintiff and his sureties in the injunction bond, in solido, to pay ten per cent damages on the .amount of principal and interest due, after deducting the credits recited in the judgment. We think the evidence fully supports the judgment. The object of the plaintiff in obtaining the inj unction was manifestly delay, and he was properly-amerced .in damages. Judgment affirmed.


author: Kmo, J.

text:
    The State v. Gilbert.
    Where a court organized under the stat. of 1 June, 1S-16, for the trial of slaves charged with capital offences, fails to convict the accused of the crime with which he is charged, it may, under the 9th section of that act, punish him for any inferior offence established by the ev.dence, without sending him before the tribunal specially appointed for the trial of minor .offeippes; but unanimity in the court is as essential to decree the milder punishment, as t.o pronounce the sentence of cleatti. When the court is not unanimous, there is a mis-trial; but such mis-trial will be no bar to a second trial for the same offence.
    The confessions of a slave accused of a crime, made under the influence of threats or violence, are inadmissible in evidence to establish his guilt.
    APPEAL from a court organized for the trial of the defendant in the parish of East Feliciana.

      Elmore, Attorney General, for the State.

      Saunders and King, for the appellant.
    A second trial was illegal. Act of 1 June, 1846, s. 9. Confessions, not voluntary, are inadmissible in evidence. 2 Starlde on Evid. p. 48. Roscoe’s Crim. Ev. p. 28. Greenleaf on Ev. p. 263.
   The judgment of the court was pronounced by

Kmo, J.

The defendant, who is a slave, was tried by a court composed of two justices of the peace and ten owners of slaves, under the provisions of the act of 1846, for an attempt to commit a rape on the person of a white woman, a crime punishable by death. The court failed to agree upon a verdicton the first ttr.ial, and .a second trial was had, when the defendant was convicted, and the court, in the exercise of the'power granted by law, sentenced him to imprisonment in the penitentiary for life. Froxnthis judgment the present appeal has been taken.

Two grounds are relied on for a reversal of the sentence of the inferior tribunal: 1st. That the first trial was a bar to all further proceedings for the same offence, under the peculiar provisions of the statute of 1846. 2d. That the

conviction of the accused was produced by giving in evidence his confessions extorted by violence.

I. In support of the first ground it is contended that, the 9th section of the .act of 1846 (Acts, p. 115,) virtually forbids a second trial,by authorising the jury, if they fail to convict or acquit the accused of the crime charged, to decree corporal punishment, which discretion is .substituted in lieu of a second trial; and .that a failure to exercise this power is a bar to all further proceedings, the contingency of a mis-trial being unprovided for by the act.

We cannot yield our assent to this interpretation of the statute. The 9th section referred to is in these words: “ All the members of the court established by this act, shall have a voice in determining the guilt or innocence of the accused ; but a unanimous concurrence shall be required to convict or acquit. In case, however, such court shall not convict or acquit the accused of an of-fence punishable with death, it shall have the power to decree the infliction of .such corporal punishment,?as it may consider deserved by the prisoner.”

This statute provides two digtipet tribunals, differently composed, for the trial ,of offences committed by slaves — the one for the trial of such as are capital, and the other for the trial of those which are not capital. The 9th section, above quoted, relates to the tribunal for the trial of capital cases. We understand •the object of the second branch ofthe section to be, only to empower the court, in the event of not convicting the accused of a capital crime, to mitigate the severity of the law, and, in lieu of the sentence of death, to decree such cox-pox-al punishment as they may deem commensurate with the gravity of his of-fence. On a failure to convict of the capital charge, they are vested with the same power of punishing the accused for such inferior offence as may be established by the evidence, without sending him before the tribunal specially constituted for the trial of minor crimes; b.ut unanimity of the court is as essential ;to d.e.cree the corporal punishment,5 as to pronounce the sentence of death. When this unanimity does not occur, there is a failure of 1 rial; and wo find nothing in .this grant of discretionary power, nor in other parts of the act, which, in that event, forbids a second investigation of the charge. The general rule of law which permits a second examination upon the occurrence of a mistrial remains untouched by the statute, and applies to prosecutions like the present.

On the trial a witness was offered on the part of the prosecution, to prove confessions made by the accused while undergoing corporal punishment. The admissibility of these confessions was objected to, the objections were overruled, and the opinion of the court was excepted to. No rale is better understood .than that which excludes from evidence the confessions of a person accused of a crime, to establish his own guilt, when made under the influence of threats or violence. A conviction upon such evidence is abhorrent to the principles .of that humane system of laws from which we derive most of our rules of criminal proceedings, and cannot be countenanced. It is objected that the confessions given in evidence are not set forth in the bill of exceptions, and that this .court is, therefore, not informed whether they were of a character to influence the jury. It is true that the bill of exceptions is loosely drawn; it distinctly states, however, that confessions, extorted by violence, were given in evidence. If the tendency of those confessions was to criminate the accused, they were clearly inadmissible; and, if they were offered for any other purpose, they should have been equally excluded, on the ground of irrelevancy. In either event, they should not have been received.

It is therefore ordered that the judgment of the inferior court be reversed, that the verdict be set aside, and the cause remanded for a new trial, with instructions to the inferior court not to receive the confessions of the accused given under tho influence of threats or violence.


author: Slidell, J.

text:
    Bookout v. Anderson.
    The plaintiff in a petitory action must recover upon the strength of his own title.
    Where a partnership has been dissolved and one of the partners has died, a surviving partner, engaged in liquidating its affairs, cannot release the right of recourse of the partnership, as accommodation acceptors, upon a third person, so as to render the latter competent as a witness.
    Third persons, creditors of a purchaser holding under a title complete by the sale and delivery of the property, cannot be affected by secret equities between the vendor and purchaser.
    Appeal from the District Court of Madison, Curry, J.

      T. N. Pierce, Shannon and Stacy, for the plaintiff and intsrvenors. Henderson, for the defendant. Bemiss, Thomas and Snyder, for the appellant, Shelton.

   The judgment of the court was pronounced by

Slidell, J.

This is a petitory action to recover certain slaves of the defendant, who asserted ownership by purchase of the plaintiff in Mississippi. Paxton and others intervened in the suit, claiming the slaves under a deed of trust, executed by Boolcout in Mississippi, for the security of Tientan, Caddy Co. Pending the suit, Shelton and one Robert Anderson, joint mortgagees of the defendant, purchased the slaves at judicial sale upon the foreclosure of their mortgage. They were made parties by the intervenors, who charged that the mortgage was fraudulent. The defendant, Samuel Anderson, having become bankrupt, the case was dismissed as to him, and was tried between the plaintiff, the intervenors and Shelton. There was judgment for the plaintiff, and Shelton now brings the case before us on appeal.

We shall first consider the claims of the intervenors. The deeds.of trust under which they claim were executed between Boolcout and Harny Houghton of the first part, H. & A. Paxton of the second, and Tiernan, Cuddy & Co. of the third part. Their object and consideration were as follows : Tiernan, Cuddy & Co., commission merchants at New Orleans, had given BoCkoui, Sf Houghton a credit to draw from time to time on their house for a certain amount, and accordingly, on the 9th of February, 1836, certain bills were drawn by Boolcout, in favor and endorsed by Houghton, upon Tiernan, Cuddy Sf Co., who accepted them-; these bills were payable in January, 1837. The first deed was executed in contemplation of the drawing of these bills. The second was executed on the day of their acceptance, and conveys certain lands in Mississippi and the slaves in question to the trustees, in trust to secure and save harmless the house of Tier-nan, Cuddy Sf Co. from all damage and responsibility that may result by virtue of the acceptance, as also to ensure the prompt and punctual payment of the bills, at their respective maturities, to that firm, together with commissions, costs and charges. There is the usual proviso that the title thus conveyed and the trust created shall determine and be void, if the grantors shall pay the house the bills at their maturity, with all costs and charges ; and that, in case of nonpayment of any of the bills, the trustees may, at the request of Tiernan, Cuddy Sf Co., sell such portions of the property as they may think proper on thirty days advertisement, and apply the proceeds to the payment of such of the bills as may become due and remain unpaid, and then, from time to time, sell the residue to meet the bills as they may fall due and remain unpaid.

These bills, as we have said, matured in 1837. Whether they were negotiated or not, whether they have been paid or not, in short what has become of them, has not been proved. Tiernan, Cuddy & Co. stopped payment in 1836; their affairs fell into such confusion as to make it improbable that they ever paid their acceptances; and the bills, at the time of the trial of this cause in 1845, if negotiated and outstanding in the hands of third persons, must, in the absence of evidence, be deemed to be prescribed. The intervenors have not even alleged in their petition that Tiernan, Cuddy & Co. had ever paid, or even been called upon to pay, the bills. Under such a state of pleadings and evidence we may well treat the claim of the intervenors as not existing, and dismiss it entirely from our consideration as though they, and the cestuis qui trust, whom they represent, had never had any connection with this controversy. Anderson has been dismissed from the cause, his assignee in bankruptcy has not been made a party, and the controversy is thus narrowed down to a consideration of the rights of Shelton.

Standing as plaintiff in a petitory action Boolcout must recover upon the strength of his own title, and not upon the weakness of his adversary’s.

Before proceeding to the main question it is proper to examine the bill of exceptions taken to the admission of the deposition of Houghton, a witness for the plaintiff and intervenors. This deposition, taken some years since under commission, had boen admitted at a former trial, was excepted to on the ground of interest, and on appeal the former Supreme Court sustained the exception. No attempt has been made to take the testimony of Houghton anew, nor has the impossibility of doing so been shown. The attempt however has been made, at the second trial, to cure the objection of interest, by showing that before his deposition was taken, Tinman, one of the house of Tinman, Cuddy Sf Co., on the suggestion of the counsel of the plaintiff and intervenors that a release was indispensable to make him a competent witness, had addressed a letter to Houghton releasing him. The counsel is the witness who gives this new testimony. He states that he delivered the letter to Houghton, before his testimony was taken. It is clear that the release thus given was utterly ineffi cient in law. When it was given the firm had been dissolved; Tiernan was the mere liquidating partner, and one of the partners had died. Tinman was without authority to discharge the right of recourse of his firm, as acceptors for the accommodation of Houghton, for each, as we have seen from the recital of the deed of trust, and the averments of the petition, was his real position, although only endorser on the accepted drafts. Moreover, Houghton is proved to have had an interest in the price of the slaves which were the subject of the agreement between Anderson 8f Houghton, and must be considered therefore as having an interest in their recovery. The testimony of this witness was therefore improperly received.

The plaintiffs claim is in the nature of a petitory action. He alleges himself to be the' legal owner of the slaves, and contends that what passed between him and Anderson in the State of Mississippi, was a mere ‘ negotiation ’ for the sale of the slaves and a certain plantation on which they then were, and that, pending the negotiation, Anderson was allowed- to have possession, it being understood that no title or right of property was to vest in Anderson, until after the performance of the condition precedent of payment, when plaintiff was to make him a deed for the land and slaves ; and that there has been no performance on Anderson’s part.

The testimony on this point is loose and vague; but, if it be considered as putting the original transaction on that footing, the subsequent conduct of the parties can hardly be considered otherwise than as an abandonment of the condition precedent, at least as against third persons. The agreement, or negotiation,as the plaintiff terms it, was for the lands and slaves at a total price of $65,000. Bookout subsequently executed absolute deeds for the lands which were'recorded, and contained acknowledgments of cash payments of $50,000; the witnesses to these deeds proving now, however, that the money was not really paid at the time of their execution. Besides, there are in evidence various receipts dated in Mississippi and signed by Bookout, acknowledging considerable sums as received at sundry times “on account of the purchase of lands and negroes lying on Cold Lake,” the site of the plantation. In a letter written by the plaintiff to the defendant, he speaks of the plantation as “your plantation-” The agreement for purchase took place in the spring of 1838; and, according to the plaintiff’s own petition, payment was to have' been made in the summer of 1838: yet the petitioner slumbered on his alleged rights, this claim for the property not having been set up till April, 1840. These and other facts in the record exhibit Bookout, as against third persons, in the attitude of a mere creditor for the price of property of which he had made delivery to the purchasei', in a State where it is proved that slaves are chattels, to which title maybe made even by verbal contract and delivery. The vendor must be considered as having waived the condition precedent, if it existed, and trusted to the personal security of the vendee. The secret equities between him and Anderson cannot, under the circumstances of the case, be invoked against third persons.

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


text:
    The Union Bank of Louisiana v. Guice, Executor.
    Novation, like other contracts, derives its binding force from the intention of the parties. Where there was no intention to novate a debt, there can be no novation.
    Where a mortgage was executed to secure the payment of hank-stock, subscribed for by the mortgagor under the provisions of a bank charter, which provided that each stockholder' should he entitled to a loan to the amount of one-lialf of his stock, and the mortgage stipu" lated that the property mortgaged should stand hypothecated for any stock-loan so made, the statement in the act of one-half of the amount of the stock, as the maximum to he advanced, is sufficiently definite. Nor will such a mortgage he affected by any change in the evidence of the advances made; the fact that they were made andhave not been satisfied, being sufficient to give it effect.
    "Where mortgages have been executed by the stockholders under their interpretation of the provisions of a hank charter, the court will be governed by the construction put upon it by the manner in which they have executed it, whatever might be its opinion, had the questions been brought up originally, on the refusal of the stockholders to execute the mortgages-in the form actually adopted. C. 0.1951.
    In cases of doubt, the interpretation must he against him who has contracted the obligation. C. C- 1952.
    Where the directors of a corporation are empowered by its charter to make by-laws, not contrary to law, for the general administration of its affairs, the shareholders may he hound by provisions and rules beyond those actually containedin the charter.
    Appeal from the District Court of Concordia, Curry, J.

      Stacy, Sparrow and Denis, for the plaintiffs. Frost, Prentiss and Finney, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

The legislature loaned to the plaintiffs the-bonds of the State, for $7,000,000, and took as security for their reimbursement, a pledge of mortgage obligations subscribed by the respective stockholders, for amounts equal to those of the stock they held. It was provided by the charter of the bank that, after the sale of the state bonds, each stockholder should be entitled to a loan equal in amount to one-half of his stock. The acts of mortgage stipulated that the property affected for the security of the stock, was also to stand hypothecated for the stock loans, and that, in case of non-payment of such portions of the loan as might be required by the regulations of the bank, the stockholders should incur for those loans, the liabilities provided by the 24th section of the charter, in case of non-payment of loans on mortgage.

The defendant is the executor of one of the stockholders who failed to pay her instalments at the time fixed, and he resists the claim of the bank to be reimbursed the whole amount of the stock loan, with interest at the rate of ten per cent per annum, under the 24th section of the charter, on the following grounds: 1st, That the debt has been novated and the mortgage extinguished. 2d, That the mortgage is null under article 3277 of the Civil Code, because the specific sum for which it was given,, is not mentioned. 3d, That the charter does not require the stockholders to give mortgages to secure the stock Joans. 4th, That the whole debt is not due; the instalments of the stock loans are fixed by the charter, and the demand of the whole debt did not put the defendant in default. 5th, That the 24th section of the charier, authorizing the bank to charge interest at the rata of ten per cent, applies to ordinary mortgage loans, not to stock loans. 6th, That the claim is prescribed. The court below gave judgment in favor of the plaintiffs, and the defendant appealed.

There is nothing in the objection that the debt was novated. Novation, like other contracts, derives its binding force from the intention of the parties to make it. Here no such intention existed; the executor acknowledged the debt, and promised, in his fiduciary capacity, to pay arrears according to the regulations of the bank. Articles 984 and 985 of tne Code of Practice, expressly authorized him to do so. The act of pledge given by him, in 1843, clearly shows that it never was in the contemplation of the parties to novate the debt. We view his written promise as a mere acknowledgment of it. The authorities cited in opposition to this view, are not applicable to this case. There the party acting in a fiduciary capacity, were sued personally, for having exceeded their powers; here the executor has not exceeded his powers, and the plaintiffs do not seek to make him personally liable.

The mortgage had not been given to secure a pre-existing obligation, and-was not extinguished by the delivery of the bond of the testator to the executor. It had been taken by the bank, under article 3259 of the CivilCode, in the manner usual with merchants, to secure future advances. Those mortgages are not affected by any change in the evidence of the advances made; the facts that they were made and have not been satisfied, are sufficient to give them effect, provided the maximum to be advanced be stipulated in the act. Here the maximum was stated to be one-half of the amount of the stock; the sum was sufficiently definite.

We do not perceive how this claim could have been prescribed.

The other grounds of defence imply that the stockholders did not, at the beginning, give a correct interpretation to the charter, and contracted, in their acts of mortgage, obligations which it did not contemplate. What might have been our opinion in relation to some of the points submitted, if the questions they in volve had been brought before ns originally, on the refusal of the stockholders to give the mortgages in their present form, it is unnecessary to say. As the stockholders bound themselves of their own free will, we must hold them to be bound. The charter is a contract, and if the intent of the parties to it be doubtful, the construction put upon it by the manner in which it has been executed by both parties, or by one with the express or implied assent of the other, furnishes-the safest rule for its interpretation; and, in casesof doubt, the interpretation must be against him who has contracted the obligation. Civil Code, arts. 1951, 1952.

The form of the acts of mortgage, and the various stipulations they contain, must have been prescribed by some regulation of the board, passed under the authority given by the 21st section of the charter. Regulations of that kind may bind tlie corporators beyond the charter. “ The effect of the power to make by-laws, is that the shareholders are bound by'a set .of provisions and rules beyond those actually contained in the charter.” Wordsworth, on Joint-stock Companies, p. 152, (29 Law Library). See also 2 Rob. 209. Moreover, the mortgages giving effect to .the obligations created by the charter, as the stockholders understood it, have been given in pledge to the State to secure the reimbursement of its bonds; and any action of courts of justice having the tendency to diminish or impair those obligations, would enable the stockholders to commit a fraud. Judgment affirmed.

      Eustis, O. X, did not sit on the trial of this caso, being interested in it.

      The 21st section of the charter of the bank, (stat. of 2 April, 1832), is in these words:
      “The deliberations of tho board of directors of tho said corporation shall have the same force and effect as the deliberations of the stockholders. Tho board of directors sliall make-regulations and ordinances for the general administration of the affairs of the bank, which they may alter or add to as the interest of the corporation shall require; and they shall likewise establish rules for conducting the affairs of the said bank, which they may, in like mannor, alter or add to, as may be necessary for tho service of the bank: provided, the said regulations, ordinances and rules shall not bo contrary to law.