author: Rost, J. Slidell, J.

text:
    The Union Bank of Louisiana v. Narcissa C. Dosson et al.
    A mortgage given directly in favor of the Union Bank for a loan of money, comes under the letter of the Act of 1843, and need not be reinscribed.
    When an obligation is prima facie prescribed, there must be authentic evidence of the interruption of the prescription, before the party in whose favor the obligation is made can proceed by the viáexecutivd.
    The receipts of the cashier of a bank upon such an obligation, would not even be admissible to prove the interruption of prescription in an ordinary suit.
    APPEAL from the District Court of the Parish of Franklin, Wilson, J.

      Phelps and Hendry, for plaintiff
    This is an application by plaintiff, for an order of seizure and sale against Mr. N. C. Dosson et aL, as owners and possessors of a tract of land and slaves, mortgaged by Hugh B. Johnson and his wife Mary Johnson, to the Branch of the Union Bank of Louisiana, at Avoyelles. The amount claimed is $2500, with ten per cent interest from the 1st day of June, 1840.
    The act of mortgage was recorded 1st day of,.June, 1833, the date of the bond and mortgage declared on. The bond was for five thousand dollars, and half of which has been paid. Hugh B. Johnson and his wife are dead. The property by various sales, which are shown by the record, has passed into the hands of third persons, in whose hands, plaintiffs seeks to enforce the mortgage, and have the same seized and sold to pay the balance of the debts and interest.
    The petition was presented to Judge Barry, of the Eleventh District, who refused the order prayed for a seizure and sale. The ground on which the order was refused, was, that the mortgage had not been reinscribed within ten years after the first inscription.
    The plaintiffs have appealed from this judgment refusing the prayer for writ of seizure and sale, and asks this honorable court to reverse the judgment of the judge below, and grant the order on the following grounds : 1st. The mortgage privilege was not lost upon the property mortgaged by the failure to rein-scribe in ten years. The article 3333 of the Civil Code, does not apply to mortgages made in favor of property banks. The article of the code, has been so amended as to exclude the banks from the operation of the art. 3333 C. C. See Acts of March Tlth, 1842, and 27th March, 1843. 2d. Hugh B. Johnaon and his wife Mary Dash, both deceased, anterior to the expiration of the ten years, from the date of the first registry,' or recording of the mortgage, and as his property went into the hands of a curator, and was administered as an insolvent estate. The mortgage privilege did not expire by the failure to rein-scribe. This doctrine is held in 7 R. R. 62.
    The charter of the bank authorizes the seizure of property mortgaged in the hands of third persons, in the same mannbr as if the property had not been transferred, and a surrender by an insolvent, does not impair the rights of the bank ns mortgagee; consequently the death of the party in this case, and the subsequent sale of the mortgager’s estate by the probate judge, has not destroyed the right of the bank to seize and sell the property in the hands of third persons to satisfy their debts.
    The court is respectfully referred to the decision in 4th Ann. 471, in the case of the Improvement and Banking Company ; although between ordinary persons, the inscription would fail for want of reinscription, but the Act of 1842, and No. 96, page 52, reinscription is unnecessary; and, the Acts of 1843, No. 87, page 52, take from the recorder of records, the power to erase mortgages for want of reinscription in favor of minors interested and absent persons, nor to such mortgages as in favor of property banks; and, the object of reinscription, is merely to dispense from searching more than ten years back in ordinary transactions. 4 L. A. 476.

      Garrett, for defendant.
    1. More than ten years had elapsed from the date of the mortgage, (J une, 1833,) before any attempt was made to reinscribe it. The parish judge 'certifies, that it was reinscribed on the 22d August, 1843. At that time, it had passed into the hands of M. B. Desha, a thii'd party holding by purchase. At the expiration of ten years, the mortgage ceased to be operative on the property in the hands of Desha. 2 Ann. 522-3. Ib. 111. Ib. 800. C. C. 3333.
    The Act of 11th March, 1842, only makes an exception “as to mortgages which have been given or may be given by stockholders of the various property banks of the State.” Acts 1842, p. 232. This was not a mortgage of that character. It is respectfully submitted, that the Act of 27th March, 1843, does not apply to a case like this. The rules of construction would hardly justify the conclusion, that the Act of 1843, repeals the general provision contained in C. C. 3333. At the time of the passage of the Act of 1843, the art. 3333, as modified by the Act of 11th March, 1842, was the law of the land. Does the “new law” of 1843, “ contain provisoes contrary to or irreconcilable with those of the former law?” C. C. 23. If the Act of 1843, can be so construed as not to interfere with the law as it then stood, is it not the duty of courts to adopt that construction ? Is it safe to adopt as a rule of our jurisprudence, the principle, that the existing laws of the land may be repealed by implication, unless such repeal clearly and necessarily results from the subsequent legislative enactment ? 4 Ann. 476. 3 Ann. 399. 2 Ann. 919. 1 Ann. 54. 5 Ann. 122. Ib. 397. The period of ten years from the date of the mortgage, expired on the 1st June, 1843. If the Act of 17th March, 1843, is applicable to the mortgage filed in this case, then the property in the hands of Desha would still be affected by it, if this act did not interfere with the vested rights of Desha. He purchased the property subject to a mortgage, which, according to the law, as it then stood, could only be preserved by a reinscription before the expiration of ten years. It is submitted, that a subsequent legislative enactment rendering his condition more onerous, would be unconstitutional, and its construction must be so limited, as not to increase his liability beyond what was implied in the terms of his contract.
    2. The pleas of the prescription of ten years, should be sustained. The only evidence of any acknowledgment by the debtor, consists of certain receipts entered on the back of the obligation, by the cashier. His would not be sufficient to sustain an ordinary action. The death of Johnson and wife, did not interrupt prescription. It runs in favor of as well as against successions. 11 R. R. 449. C. C. 3492, 3493. 12 R. R. 508-9. 2 Troplong, (prescription) 804 to 808.
   By the court:

Rost, J.

This is an appeal from the refusal of the district judge to grant the plaintiffs an order of seizure and sale of certain property mortgaged to them, by H. B. Johnson and wife, to secure a loan of money, and now held by the defendants as third possessors.

The appellees pray for the affirmance of the judgment, on the following grounds : 1st. The mortgage, so far as they are concerned, has been lost, for want of reinscription within ten years. 2d. The evidence upon which the order is asked, is not all authentic. 3d. The claim against the principal debtor) is barred by lapse of time.

The mortgage given by Johnson and wife, was given directly in favor of the Union Bank, for a loan of money; it comes, therefore, under the letter of the Act of 1843, dispensing all such mortgages from the necessity of reinscription. It may be observed, that the mortgage sued upon, was given within the ten years which preceded the promulgation of that act. The first ground is, therefore, not tenable. 4 Ann. 471.

More than ten years elapsed since the signing of the bond, but several partial payments are endorsed upon the back of it, by the cashier of the bank, the last of which, purport to have been made within the ten years which preceded the institution of these proceedings. This evidence of payment would, perhaps, be unobjectionable if the plea of prescription could not be set up. But, as the obligation is prima facie prescribed, there must be authentic evidence of the interruption of the prescription, before the party can proceed by the via executives. The receipts of the cashier, so far from having that character, would not be admissible to prove the interruption of prescription in an ordinary suit. His testimony to the same fact being superior evidence, we are, therefore, of opinion, that the district judge did not err, although we do not agree with him in the reasons he gave for refusing the order of seizure and sale.

The judgment is affirmed, with costs.

Slidell, J.

Where an obligation is on its face so ancient as to appear to be prescribed, I do not think an order of seizure and sale should be issued upon it, especially against a third possessor, without authentic evidence, that prescription has been interrupted or renounced. Here, there was no such evidence. The endorsements of payment by the cashier, have no authenticity.

Considering this a sufficient reason for not disturbing the decree of the district judge, I have not thought it necessary to express an opinion upon the subject of reinscription.


source: Caselaw Access Project

author: Dünbar., J.

license: Public Domain

text:
    State v. Wilson Tucker.
    Appeal dismissed, because the record was defective, containing no final nor intercolulory decree, upon which the court was authorized to act.
    The statute of 1846 (p. 335 of the Revised Statutes) gives to the Supreme Court jurisdiction of an appeal in criminal cases, from final judgments alone, returnable as in civil suits, and requires the clerk of the court granting the appeal, to make out the transcript, as in ■ civil cases.
    APPEAL from the District Court of the Parish of Bossier, Charles A. Bul-

      lard, J.

      C. H. Morrison, District Attorney, for the State.

      Lawson and
    Cooke, and Stillman, for prisoner.
   By the court:

Dünbar., J.

The defendant indicted for the crime of murder, was found guilty by a jury, as charged in the bill of indictment, without capital punishment,

The case comes before us upon motions in arrest of judgment, for a new trial, and various bills of exceptions, all of which have been argued by counsel, on behalf of the State and the prisoner. Upon the examination of the record, we find it so exceedingly defective, that we feel ourselves constrained to dismiss the appeal. It contains neither a final or interlocutory decree, upon which we are authorized to act.

The statute of 1846 gives to this court jurisdiction of an appeal in criminal cases, from final judgments alone, returnable as in civil suits, and requires the clerk of the court granting the appeal, to make out the transcript of the record, as in civil cases.

It is therefore ordered, that the appeal in this case be dismissed, without prejudice to the right of the accused to take another appeal.

Application for re-hearing was made, and Acts 1839, March 10th, page 170; 17 L. R. 115; 17 L. R. 466; 2 Ann. 769, cited. Re-hearing refused.


author: Rost, J.

text:
    T. Phelps et al. v. Grorge S. Sawyer, Administrator. George S. Sawyer v. Sureties of Stone.
    A judgment rendered against an absent defendant, unrepresented by a curator ad hoc, or by a properly constituted agent, will be annulled and set aside.
    A suit against the sureties upon an administrator’s bond will be dismissed unless there be a judgment against the administrator, or he be made a party defendant.
    APPEAL from the District Court of the Parish of Catahoula, Barry, J.

      Sawyer, for plaintiff.

      Curry and Hendry, for defendant.
   By the court:

Rost, J.

Samuel P. Stone, the administrator of the succession of Elias Carter, deceased, having absconded without settling his accounts, the plaintiff was appointed in his place, and brought suit to compel him to account. The petition was answered and an account of Stone’s administration, filed by Elias Carter, Jr., who pretended tobe the agent of .Stone. Judgment was rendered in favor of the plaintiff, in that suit, for $1031. Execution having been issued on that judgment, and return, “ no property found,” the administrator brought suit against the sureties of Stone on his bond.

The defendants in that suit alleged as one of the grounds of their defence, that the judgment against Stone had been obtained by fraud and collusion, and brought a separate action against the administrator to annul it. There were other grounds of defence, which it is unnecessary to notice.

The suit of the administrator against the sureties, and that brought by the sureties to annul the judgment against Stone, were consolidated and tried together. The district court annulled the judgment and dismissed the action against the sureties as in case of non-suit. The administrator has appealed.

The power of attorney under which Elias Carter, Jr., represented Stone in the first suit, is in evidence. It is essentially a special power, and conferred no authority on Carter to defend that suit. The plaintiff had asked for the appointment of a curator ad hoc, but no appointment was made ; and as the defendant was unrepresented in the proceedings, the judgment rendered against him was properly annulled and set aside.

There being no judgment against the principal debtor, and he not being made a party defendant in the suit against the sureties, that action was also properly dismissed.

The judgments in both cases are therefore afñrmeá.


text:
    Pitts et al. v. Lewis et al.
    It is an elementary principle, that there is no rente a remiré unless the right to take back the property, on refunding the price, be stipulated in the act of sale, so as to form one of the reservations of it; and that if the stipulation is appended by a subsequent act to a sale originally pure and simple, it is either a resale or a promise to sell.
    from the District Court of the Parish of Bienville, Bullard, J.

      Land and Cook, for plaintiffs.

      Spofford, for defendants.
   By the court:

Rost, J.

The plaintiff sues for the resolution of a sale of slaves, which he alleges to have been a vente á remiré. She has made a tender of the price, and claims the slaves together with damages for the loss of their services.

The defendant, Martha C. Lewis, the wife of John L. Lewis, separated in property from him, alleges that the sale to her was absolute and unconditional, and that the slaves being at the time in her possession, under another title, the delivery followed the act of transfer. That after the sale her husband was prevailed upon to sign, on her part, a gratuitous promise to reconvey to the vendor, for the price stipulated in the sale, a portion of said slaves within two years, provided her circumstances should continue in such condition as would justify her in doing so. That she had no knowledge of the instrument sued upon ; never assented thereto, and is not in a condition to return said slaves, having been compelled to include them, with other property, in a mortgage given by her to secure a loan.

On these issues there was judgment in favor of the defendant. The plaintiff has appealed.

It is elementary that there is no vente á remiré unless the right to take back the property, on refunding the, price, be stipulated in the act of sale, so as to form one of the reservations of it, and that if it is appended by a subsequent act to a sale originally pure and simple, it is either a resale or a promise to sell.

In this case the act of sale first passed was unconditionally and absolute. The plaintiff cannot therefore claim the resolution of that sale, and must recover, if at all, upon the subsequent promise of the defendant’s husband to reconvey certain of the slaves to her.

The district judge appears to have been of opinion that the defendant’s husband had no authority to make such a promise, and that it had not been ratified by her.

We think that the evidence in the record authorizes those conclusions. The promise of the husband being a new contract, the defendant may repudiate it, while she adopts the original sale. There is nothing in the record from which a waiver of this legal right can be inferred.

Judgment affirmed, with costs.

Slidell, J.

As I understand the agreement, as to redemption, supposing it to have been executed with the authorization of Mrs. Lewis, it does not create such a right in the plaintiff as she can enforce. For the agreement, in substance, is a promise to permit the plaintiff to redeem two of the negroes, at a stipulated sum, provided the circumstances of the defendant should hereafter be such as to enable her to restore them. But her circumstances have compelled her to mortgage them; and the promise, even if it had any binding force, was qualified by a condition, which has occurred, and this apparently without any bad faith on the part of the defendant. It seems to me, therefore, that upon this ground the judgment ought not to be disturbed.


author: Slidell, J.

text:
    Stephenson v. Wilson.
    This suit was brought to make a son liable for a debt due by his father, on the ground, that he (the son) had received a large portion of his father’s property during his lifetime, upon condition of paying his debts, and had, after his death, intermeddled with his succession, and converted its property to his own use. The prescriptions of three and five years, under articles 1176,1380, and 3507 of the Civil Code, do not apply.
    If a son, on the death of his father, takes possession of his property and treat it as his own, without any letters of administration obtained, or judicial proceedings had, he will under our laws, be held responsible to creditors.
    It is apprehended, that the law is the same in Arkansas.
    APPEAL from the District Court of the Parish of Caddo. Bullard, J.

      Landrum, for plaintiff.
    Plaintiff contends the sale under which James M. Wilson, defendant, claims the slaves of his father, is fraudulent, and as to them, null and void ab initio. The property having remained in possession of the vendor, and they being creditors prior to the sale. 3 Peters, 196. 1 Cranch, 309. 6 N. S. 641. U. S. Digest, vol. 5, p. 45, sections 3903, 389, 394, 377; p. 47, sec. 419 ; p. 48, sec. 442. See supplement to U. S. Digest, vol. 2, same pages.
    The defendant had no shadow or color of title to the negroes he took into his possession, on the death of his father, and he pretends to none to the personal effects he administered. He was, therefore, an administrator to his own wrong, and liable for the debts of his father, to the value of the assets he inter-meddled with. 17 L. R. 333. 1 R. R. 435. 8 L. R. 308. U. S. Digest, vol. 4, p. 830, sec. 926, 932, 936, 940; p. 831, secs. 943, 950, 955, 956. See supplement to U. S. Digest, vol. 1, same pages.
    The sale as to third parties had no effect until after registry. B. and C. 596. 2 L. R. 125- 2 L. R. 122. 5 L. R. 263. C. C. 2417, 2242, 2250.
    Declaration that price had been paid, is no proof against third parties. 12 R. R. 95.
    The unconditional acceptance of a succession, makes the acceptor liable for the debts. C. C. 982, 986. The debtor’s property is a common pledge to his creditors. C. C. 3143, 3150, 1963, 1964. 4 N. S. 174. 4 L. R. 127.
    , As to liability and acts which constitute one executor de son tort. U. S. Digest, vol. 2, p. 302.

      Crain, for defendant,
    cited 19 L. R. 524.
   By the court:

Slidell, J.

The object of this suit, is to hold James M. Wilson, liable for a debt due by his father, Jason H. Wilson, upon the ground, that he had received a large portion of the property of his father during his lifetime, under condition of paying his debts, and had, after his death, intermeddled with his succession, and converted its property to his own use. There was a judgment in favor of the plaintiff in the court below, and the defendant has appealed.

¥e have carefully considered the testimony in this cause, and are unable to say, that injustice has been done to the defendant by the judgment below.

It appears from the testimony of a relative of the defendant, that the father, shortly before his death, conveyed a large number of slaves to the defendant; and that there was a written contract prepared by the witness, at the request of the father, which, according to his recollection, was signed, whereby the son agreed in consideration of the transfer, to pay the father’s debts, including that to the plaintiff. It is true, the witness states, that the son subsequently declared to him, that they had not closed that agreement, but altered the arrangement, and excluded the debt due to the plaintiff. But if this was so, the defendant could have relieved himself of the unfavorable effect of that witnesses’ testimony, by producing the subsequent agreement, or proving its contents. This he has not done.

If, on the other hand, the defendant repudiated altogether the existence of an agreement to pay his father’s debts as the consideration of the sale, and relied upon the bills of sale of the negroes to himself, which purport to be for a cash consideration of $8111, he is met by the grave difficulties, which result from the evidence of his want of means to make such a cash purchase, the continued possession of his vendor, and the embarrassed state of the vendor’s affairs; circumstances which may have induced the district judge to treat the sales as simulated.

In addition to these circumstances, it appears that, on the death of his father, the defendant took possession of the slaves and other property, and treated them as his own, without any letters of administration obtained, or judicial proceedings had, in the State of Arkansas, where the slaves and effects were. This intermeddling, we apprehended, would create a responsibility to creditors under the law of Arkansas; and, certainly, under our jurisprudence, would not leave the defendant on a better footing.

The prescriptions of three and five years, under articles 1176, 1380 and 3507 of the Civil Code, which are referred to by counsel, do not seem to us, applicable to the present controversy.

Judgment affirmed, with costs.


text:
    Simpson, Tutor, v. Powell, Administrator.
    It is not sufficient for the plaintiff to make out a probable case, he must make it certain. And where the suit is delayed until after the death of the person against whom the claim is alleged to have existed, and where, if it existed at all, it must have been known in his lifetime, the testimony should be peculiarly strong. *
    from the District Court of the Parishof Caddo, Jones, J.

      Land, and CooTc, for plaintiff.

      Roysdon and Spofford, and Crain, for defendant.
   By the court:

Rost, J.

Benjamin Davis died in the month of January, 1847, leaving as his heirs Celina Davis, the mother of the minor, for whose benefit the plaintiff sues, Martha Davis, wife of W. Morgan, and Emily C. Davis, the surviving wife and administratrix of Augustus N. Powell, who died in the fall of 1850.

The petition alleges that Davis had, when he died, a sum of $6000 in his house; and that Powell, who lived with him at the time, took that sum and converted it to his own use. The prayer is, that his administratrix be compelled to account to the plaintiff for one-third of said amount. In an amended petition the plaintiff further alleges, that Poioell received from Davis, in his lifetime, the sum of $3000, to be invested in land and slaves, for which he never accounted; he also prays judgment for one-third of said sum. Mrs. Morgan has joined the plaintiff in the action, praying for her share of whatever may be recovered.

The defence is a general denial. There was judgment against the succession of Powell for $1700, to be distributed among the three heirs. The defendant has appealed.

The district judge states at large in his opinion, the evidence upon which he relies. That evidence makes out a probable case in favor of the plaintiff. But this is not sufficient, he should have made his case certain; and the testimony adduced by him should have been peculiarly strong and conclusive to do away the unfavorable presumption arising from the delay in bringing the suit, and from the fact that it was not commenced until after the death of Powell, although the main fact upon which it rests must, if it existed, have been known to the children of Davis at the time it occurred.

There is no direct proof of the taking of the mone^ by Powell, or anything inconsistent with the hypothesis that if money of Davis came into his possession, it was given to him by Davis himself.

As the judgment below was for the plaintiff, we would, perhaps, have remanded the case but for some circumstances which the record discloses. One witness testified much more positively in favor of the plaintiff than any other, but his testimony is so pregnant with falsehood that the district judge has taken no notice of it in his elaborate opinion. It is shown that this witness resides out of the parish in which the case was tried; that the -plaintiff went for him and procured his personal attendance at two successive terms of the court. We will not give the opportunity of renewing such exhibitions.

It is ordered that the judgment in this case be reversed, and that there be judgment in favor of the defendant, with costs in both courts.


text:
    Edward Baker f. m. c. v. Susan Tabor.
    Although the master of a slave may have lost his right of dominion over him, by receiving from him a sum of money for his emancipation, andby permitting him to enjoy his liberty for more than ten years, the act of emancipation, passed according to the forms of law, can alone give the slave the status of a free man, which he must have before he can prosecute in a court of justice any claim, except his claim for freedom.
    He may appear in court to claim his freedom before emancipation.
    The master may claim in his own name, the benefit of any contract, and the damages resulting from the breach of any contract entered into by the slave, not emancipated according to the forms of law.
    The right of the master to claim the services of his slaves may cease, but his duty to protect them, terminates only with their life.
    APPEAL from the District Court of the Parish of Caddo, Jones, J.

      Hodge and Turner, and Buckner, for plaintiff.

      Roysdon and Spofford, for defendant.
   By the court:

Rost, J.

The defendant excepted to the action in this case, on the ground, that the plaintiff was born a slave; that he has never been emancipated in conformity with the laws made for the emancipation of slaves, and is without capacity to stand in judgment. The exception was sustained in the court below, and the plaintiff has appealed.

The facts are as stated by the defendant, and the legal inference which grows from them, is inevitable. Although the plaintiffs’ master may have lost his right of dominion over him, by receiving from him a sum of money for his emancipation, and by permitting him to eujoy his liberty for more than ten years, the act of emancipation passed according to the forms of law, can alone give him the status of a free man, which he must have before he can prosecute a claim, such as this, in a court of justice. Before emancipation, he can only appear in court to claim his freedom.

We are, therefore, under the painful necessity of affirming the judgment.

We deem it our duty to state, the cause of the plantiff appears to us a just one ; and, that he is not without a remedy. His master may claim, in his own name, the benefit of the contract entered into by him, and the damages resulting from the breach of it by the defendant, and he will, no doubt, deem it his duty to do so.

The right of the master to claim the services of his slaves may cease, but his duty to protect them, terminates only with their life. Even after emancipation, he is bound, not only to protect, but also to maintain them, when they are no longer able to maintain themselves.

The judgment is affirmed, with costs, without prejudice to a future action.


author: Dunbar, J. Dunbar, J.

text:
    Green Hill v. Snyder, Administrator.
    This suit was brought upon a judgment obtained in Mississippi. The statute of limitations was plead in defence. The plea was held to be bad, because the statute did not apply in consequence of the absence of the defendant from the State of Mississippi. Hutchinson’s Code, .831, sec. 11.
    When a suit has been brought against A and B, as partners, using the name and style of A and B, upon anegotiable note made by them as partners, the judgment obtained will be considered, at common law, a judgment in solido.

    APPEAL from the District Court of the Parish of Bossier, Bullard, J.

      Crain and Spofford, for plaintiff.

      Lawson, for defendant.
   By the court:

Dunbar, J.

This suit was brought to recover of the defendant, the amount of a judgment which the plaintiff obtained against Notley Gilmore and Thomas D. Connell, in the State of Mississippi. The defendant pleaded a general denial, payment, and the prescription of seven years, to plaintiff’s cause of action, under the statute of limitations of the State of Mississippi, passed the 24th February, 1844, prohibiting any action of debt on any judgment of that State, seven years after its rendition. He also further pleaded, that Thomas L>. Connell was only liable for one half of the plaintiff’s demand, because the judgment was not in solido. On the trial of the case, the laws of Mississippi were given in evidence; there was judgment against the defendant for the whole amount claimed, and he has taken this appeal.

We find, by reference to the law of limitations of actions, remedies, &o., of the State of Mississippi, (Hutchinson’s Code, 831, sec. 11,) it is provided : “ If any person or persons against whom there is, or shall be, any cause of action, as specified in the preceding sections of this act, (except for the recovery of lands, tenements, hereditaments or leases, for a term of years) is, are, or shall be, out of the State at the time of such cause of action occurring, or at any time during which a suit might be sustained on such cause of action, then the person or persons who are or shall be entitled to such action, shall be at liberty to commence the same against such person, after his, her, or their return to this State ; and the time of such person’s absence, shall not be computed a part of the time limited by this act.” The evidence in this cause shows, that Thomas I). Connell moved to the parish of Bossier, in the State of Louisiana, in February, 1845, where he remained until the day of his death, without having returned, in the intermediate time, to the State of Mississippi. The judgment now sought to be enforced against his administrator, was rendered in Mississippi, on the 17th May, 1841. It is therefore clear, that even by 'the laws of Mississippi, an action of debt could be maintained against his administrator on this judgment, under the circumstances above related. This view of this portion of the defence, will render it unnecessary for us to decide whether the law of prescription of Louisiana, should control this case.

It is contended on the part of the defendant, if this debt is not presci’ibed, yet, that he is liable for only one half of it, as the judgment is not in solido.

It appears, from the recox'd, that the suit in Mississippi was brought by the plaintiff against Gilmore and Connell as partners, using the name and style of Gilmore and Connell, upon a negotiable note made by them as partners, payable to the plaintiff or bearer for value received, and that the judgment now sued upon, was rendered against them in that capacity. We think there can be no doubt, that at common law, which prevails in Mississippi, this would be considered a judgment in solido. It is further contended, that the defendant is entitled to a credit for a payment made to the sheriff in Mississippi, endorsed upon the execution which issued upon the judgment of certain bank notes of a bank in Alabama, and an order for a small amount on the clerk of the court. There is no evidence to satisfy us, that the plaintiff ever sanctioned such a payment to the sheriff? or that he had any notice thereof. This payment cannot, therefore, be allowed.

In this case, defendant claimed a credit for a payment made to the sheriff in Mississippi, and endorsed upon the execution. By the Court: “It has been held by the Court of Errors and Appeals in the State of Mississippi, and by the Supreme Court of the United States, in a case coming from that State, that lapse of time was sufficient ground for inferring the implied sanction of the plaintiff to the act of an officer who had collected uncurrent notes.’’ We will, therefore, amend the decree which has been rendered in this casé, by allowing the aforesaid credit.

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

Same Case — On a Re-hearing.

By the court:

Dunbar, J.

A re-hearing has been granted in this case, upon the ground, that the defendant is entitled to a credit of two hundred and five dollars and ninety-one cents, which appears from the return of the sheriff of Choctaw county, Mississippi, on the execution issued against him in that State, which is in the following words : “ Received of Thomas T. Connell, one hundred and eighty-eight dollars and ninety-six cents, in the bills of the bank of the State of Alabama, on this execution, October 7th, 1842; also, James Phagan, clerk of the Circuit Court of Winston county, order for sixteen dollars ninety-five cents, October 7th, 1842. Edward Johnson, Sheriff, C. C.”

. We find from authorities furnished since our first opinion was render'ed, that it has been held by the Court of Errors and Appeals in the State of Mississippi, and by the Supreme Court of the United States, in a case coming up from that Stale, “that lapse of time was sufficient ground for inferring the implied sanction of the plaintiff to the act of an officer who had collected uncurrent notes.” Woodward v. Fisher et al., 11 Smedes and Marshall, 303. Buchanan, Hagan Co. v. Terinin, 2 Howard, S. C Rep. 258. We will, therefore, amend the decree which has been rendered in this case, by allowing the aforesaid credit.

It is therefore ordered, that the judgment of the district court be so amended, as to allow a credit to the defendant of two hundred and five dollars and ninety-one cents, as of the 7th October, 1842; and, that the said judgment be in all other respects affirmed, the appellee to pay the costs of this appeal.


author: SlidelIi, .T.

text:
    Washington Jenkins v. The Parish of Caddo.
    He who sells a debt or an incorporeal right, warrants its existence at the time of the transfer, though no warranty be mentioned in the deed.
    Even in case of stipulation of no warranty, the seller, in case of eviction, is liable to a restitution of the price, unless the buyer was aware at the time of the sale of the danger of the eviction, and purchased at his peni and risk.
    The following order is not a bill of exchange: “ On demand please pay to the order of W. J. the sum of seven thousand dollars, according to a donation made by the Shreveport Town Company to the parish, the same to be in accordance with a resolution of the police jury, passed October 6, It commences with a direction to pay a sum certain, on
    demand, but it is qualified by the subsequent reference.
    from the District Court of the Parish of Caddo, Bullard, J.

      Roysdon and Spofford, for plaintiff.

      Terrell and Hodge, for defendant.
   By the court:

SlidelIi, .T.

This suit was brought by the plaintiff, to rescind the sale of certain lots of ground, or to recover the sum of four thousand dollars, alleged to be due him by the parish of Caddo. He represents that, on the 4th day of November, 1840, he sold to the parish of Caddo certain lots of ground; that the consideration of said sale was the sum of eight thousand dollars, seven thousand to be paid to him in a draft, to be drawn by the president of the police jury of said parish on the Shreveport Town Company, and one thousand 'by draft on the treasurer of the parish. He admits that the last mentioned sum has been paid. He also avers that he was induced to believe that said company was indebted to the parish in the sum of seven thousand dollars, and that he agreed to take, in part payment of the purchase price of his lots, the draft aforesaid, and to release the parish from the payment of the same. He also alleges, that the said company was never indebted to the parish of Caddo in any amount. He admits that he has received three thousand dollars upon the draft, and states that he' has credited this amount upon the seven thousand due him by the parish; and avers that he has been unsuccessful in a suit against the four members of the company, who refused to pay, upon the draft.

The defendant pleaded the general issue, and also, that the property was purchased with the understanding that plaintiff was to receive the draft in part payment of the price of the lots, without any recourse whatever on the parish. The prescription of five and ten years is also pleaded.

There was judgment for the plaintiff for four thousand dollars, with the vendor’s privilege, upon the .lots sold. The defendant has appealed.

The facts of this case, so far as they are disclosed by the evidence, are as follows: The police jury of the parish of Caddo were about to determine the site of a court house The subject was one, we may reasonably presume, of much interest to owners of property in the parish, as it might probably enhance the value of lots near the place which might be chosen. There appears to have been in existence, in 1840, an association of individuals styled the Shreveport Town Company, and composed of seven members, Angus McNeil, Bushrod Jenkins, Henry M. Shreve, Siurgcs Sprague, Thomas F. Williamson, James B. Pickett and the firm of Cane and Bennett.

The plaintiff and another person offered lots to the police jury. The proposition of the plaintiff was, after a good deal of discussion, considered the most advantageous; and, accordingly, on the 4th November, 1840, a notarial act was executed, in which the plaintiff sells to the pai'ish of Caddo, represented by its police jury, three lots of ground in Shreveport and the buildings thereon, for the price of $8000, payable in the following manner, as recited in the deed: “ Seven thousand dollars to be paid in a draft, drawn by the president of the police jury, and signed by him as their authorized agent, the draft to be drawn on the Shreveport Company, and to be received at par value without any subsequent recourse to law or equity upon said parish or its acting agents. Also, a draft for a thousand dollars, to be drawn and executed by said Thomas Craighead Porter, as agent of the police jury, duly authorized to draw on the treasurer of said parish, Daniel W. Edgerley, for the abovementioned amount.” The deed recites, that it is executed by the president of the police jury, under the authority oí a special resolution of the police jury, dated 6th October. We find no copy of it in the transcript, and are left in ignorance of its contents, except so far as they may be inferred from the action of the president. The draft on the treasurer has been paid. The draft on the Shreveport Company is in the following form:

“$7000. Shreveport, November 4, 1840. On demand please pay to the order of Washington Jenkins the sum of seven thousand dollars, according to a donation made by the Shreveport Town Company to the parish, the same to be in accordance with a resolution of the police jury, passed October 6,1840.

“ Tho’s. C. Porter, President of Police Jury.

Mr. Bushrod Jenkins, parish of Caddo, Treasurer of Shreveport Town Company.”

Upon this draft the plaintiff admits, in his petition, that he has received $3000 from Bushrod Jenkins, James H. Cane and Thomas F. Williamson, three of the members of the company. But the draft also exhibits an acceptance, of the following tenor: “ I accept, for one thousand dollars, to be paid out of the notes in the hands of B. Jenkins, treasurer of the Shreveport Company. W. W. George, curator of succession of S. Sprague.” The draft exhibits acceptances, in a similar form, by Williamson and Cane, for $1000 each, and an absolute acceptance for the amount by B. Jenkins.

Tt is admitted that the lots, described in the act of sale, have always been used for parochial purchases since the sale. The court house was established upon it.

Angus McNeil was examined as a witness, by the plaintiff, under commission. His testimony is loosely taken. The substance of it is, that he was well acquainted with the affairs of the Shreveport Company, but that he removed from the parish in Juno or July, 1840, up to which time he acted as its president. He says his impression was, that, as president, he offered the police jury seven thousand dollars if they would locate the county seat at Shreveport, but they never did so locate it as long as he remained at Shreveport. He declares that he is satisfied that the Shreveport Company never owed the parish anything; but in answer to the interrogatory put by the defendant, “ What induced the company to agree to pay each one thousand dollars ?” he says, “ The inducement was to have the county seat located at Shreveport.”

There is an admission in the statement of evidence, that Bushrod Jenkins, Cane, and Williamson, each voluntarily paid $1000 on the draft, but that the others denied their indebtedness, and have paid nothing. That the plaintiff brought two suits against those members for their proportion, which terminated in favor of those defendants. One of those suits was against Pickett’s heirs; and a witness, who was attorney for the plaintiff in that suit, testifies that he got all the testimony he could in that suit, and used unusual diligence in its prosecution, but lost it on the merits.

Upon what ground, particularly, the suits were defeated, does not appear.

The draft for $7000 was given in part payment of the price of the purchase. Under the facts, so far as they have been disclosed, it was, in legal contemplation, the transfer of a debt for a valuable consideration, to wit, the land conveyed to the transferror by the transferree. The general rule is, that he who sells a debt or an incorporeal right, warrants its existence at the time of the transfer, though no warranty be mentioned in the deed. Civil Code, art. 2616. The principle recognized by this article is well stated by Domat. “ As in the sales of movables and immovables, natural warranty obliges the seller to deliver and warrant a thing which is in being; so likewise in the sales or conveyances of rights, such asa debt, an action, an inheritance; natural warranty obliges the transferror to transfer a right which subsists, a debt which is due, an inheritance which has fallen, an action which may be prosecuted; and if the transferror had not the right which he sells and transfers, the sale would be null, and he would be bound to restore the price and make good the damages of the buyer or transferree.” See also Toler v. Swayze, 2 Ann. 880.

But although such is the general rule of law, there is no doubt the contracting parties may make a law for themselves, and diminish or restrain, by their convention, the responsibility which, in their silence, the law would attach to their agreement. And this leads us to consider whether, in the present case, the parties have so agreed, as to take the case out of the general rule.

It is said they have done so by the clause in the deed which declares, that the draft was “ received at par value without any subsequent recourse to law or equity upon said parish or its acting agents.” But we are of opinion that this clause has not such an effect. The claim was not transferred as a mere chance; there is-nothing to show that the transferree was informed, at the time, of an uncertainty of the existence of the claim, and purchased it at his own risk and peril. Under such circumstances the stipulation must be construed, as dispensing the transferror from responsibility for the solvency of the Shreveport Company, but not from the implied warranty of the existence of the debt. The principle which controls this question is found in that article of our code, which, in treating of the contract of sales, declares that even in case of stipulation of no warranty, the seller, in case of eviction, is liable to a restitution of the price, unless the buyer was aware, at the time of the sale, of the danger of the eviction, and purchased at his peril and risk. Civil Code, art. 2481 See also Pothier vente No. 186. Troplong vente 936 et seq.

Before leaving this branch of the subject, it is proper to observe that we do not look upon the draft as a bill of exchange, a contract which would, under the commercial law, be controlled by different rules. It is not so on its face. It is true, it commences with an order to the drawee to paya sum certain, ondemand, but it is qualified by the subsequent reference to a donation, and a resolution, in accordance with which the payment is to be made, and the nature of which is ! unexplained by the instrument, and undisclosed by the evidence. The stipula11''0118 'n the deed also show that it was not intended the drawer should assume ; the attitude of an ordinary drawer of a bill.

We come now to the inquiry, whether there was, at the time of the sale, no existing liability by the Shreveport Town Company, or its members, to the parish of Caddo.

Upon this point we have no hesitation in saying, that the judgment of the district court is, in part, manifestly erroneous; and, as to the residue of the case, it is presented in such a manner, by the evidence, as to leave our minds in doubt as to the true merits of the controversy.

We have seen that this company, which was incorporated, consisted of seven members. The plaintiff took acceptances from four of those members for their proportion of $1000 each. Those who thus accepted have paid. One of them has not paid; but by taking his acceptances, the nature of which is above mentioned, the plaintiff clearly took him as his debtor pro tanto, and extinguished any claim he might have for recourse pro tanto upon the defendant. It is inadmissible for the plaintiff now to say, that as to this amount, the claim transferred had no existence, and that the implied warranty has been falsified.

With regard to the liability of the other members of the company who have not paid, so much of the nature of the transaction is left undisclosed, that we are unable to speak with certainty as to the rights of the parties. The resolution of the police jury of 6th October is not before us, nor is the donation made by the Shreveport Town Company to the parish, which is spoken of in the draft. Nor are we informed of the precise grounds upon which the suit against Pickett’s heirs was lost. On the other hand, although ten years, save a fraction of a single day, had elapsed from the time when the plaintiff received the draft to the institution of this suit, no attempt whatever was made in this long interval to recur to the defendant. The staleness of the demand casts a shade over the plaintiff’s pretensions, which justifies a court of justice in requiring a more satisfactory showing than has been made in this case, to hold the defendant liable for this large amount.

Judgment reversed and the cause remanded ; costs of appeal to be paid by the plaintiff.


text:
    John Temple v. Moses Smith.
    A signature may be proved by means of comparison with other documents, signed by the party against whom the proof is to be made, whether such other documents are authentic, or their genuineness is first satisfactorily proved.
    This doctrine applies, not only to cases when the instrument to be proved is the immediate basis of the action, but also to cases where the instrument is offered as a matter of evidence upon incidental questions.
    The testimony of experts, sworn to give evidence upon the comparison of signatures, should be considered, and acted upon with much caution by a jury, who are not bound to surrender their own opinions, formed by their own comparison, to the opinions of witnesses, however experienced.
    APPEAL from the District Court for the Parish of Morehouse. Sharp, J.

      Parsons and Newton, for plaintiff.
    When a party denies his signature or his writing, (as in this instance,) it maybe proved in three different ways, either by persons who saw him write it, or by persons who have frequently seen him write and sign his name, or by comparison. O. P. art. 325. C. C. 2241. 2 M. R. 212. 3 M. R. 350. 9 L. R. 405. 15 L. R. 173.
    Plaintiff could not be restricted to the manner of making the proof, because the latter clause of art. 325, C. P. expressly declares, that the proof by witnesses shall not exclude the proof by experts or comparison.

      McGuire and Ray, for plaintiff.
    Comparison of handwritings is one, and a very general mode of proof, in the common law courts. Greenleaf on Evidence, § 576, says: “All evidence of handwriting, except when the witness saw the document written, is, in its nature, comparison.” But the mode of the witness acquiring the knowledge to enable him to institute the comparison, seems to be the great difficulty. Two modes of acquiring that knowledge are stated in § 577, to be considered sufficient: both these modes imply a personal knowledge in the witness of the handwriting.' There are two universally admitted exceptions to this rule in § 578, the second of which applies to this case very nearly, as one of the documents used for the comparison, is the bond signed by defendant in this case, to release the attachment. But the direct question in this case, whether papers irrelevant to the record may be admitted, for the sole purpose of creating a standard of comparison of handwritings, seems to have been very elaborately discussed in the case of Doe v. Stuckermen, 5 Ad. and El. 703, in which case the King’s Bench were equally divided — Loi’d Denman, C. L, being in favor of receiving them. Greenleaf, § 581, says: “The American decisions are far from being uniform on this question.” In Massachusetts, Maine and Connecticut, such evidence is uniformly admitted, and, with some restrictions, in many other States. On this point, we would respectfully refer to the very lucid and able argument of Mr. Evans in his 2d vol. of Pothier, p. 185, and to Lord Denman’s argument in the case. 5 Ad. and El. 422 to 429. 4th vol. Hill and Cowens’ notes to Philips on Evid. pp. 1330, 1331 — authorities from Massachusetts, Connecticut and Louisiana.
    There is still another reason wly experts should have been appointed in this case. The document ‘A’ is evidently an attempt at disguising the real handwriting, and experts are always received to testify whether the writing is a real or feigned hand, and may comparte it with other writings already in evidence in the case. See note 4 to § 580 of Greenleaf on Evid., and the authorities there cited.

      Todd and Robinson, and Boatner, for defendant.
    We fully concur with the plaintiff’s counsel in some of the positions assumed by them, in the argument of their points. For instance, they state “that document ‘A’ is not, in the sense of art. 324, C. P., the foundation of the suit, and therefore is not subject to the modes of proof therein specified. We agree with them further, that article 325, C. P., is an exception to the general rule of evidence, and must be confined to cases to which it clearly applies. They, however, contend, that article 2241 of the Civil Code, lays down the general rule for proving handwritings and signatures in all cases. So far from this being the case, the last article referred to is modified and superseded by art. 325, C. P., as was decided in the case of Plicque and Le Bean v. LaBranche ct al. 9 L. R. 562. They therefore must refer to the same class of cases. And from this, it results, that there is no express provision in either code for the proof of handwriting and signatures, except of such documents as are embraced in the articles referred to. That is, of such only as form the basis of the action, and where the defendant has been called on expressly to avow or disavow his signature. Nor has this question been settled by the decisions of this court; all the decisions cited by the counsel applying only to cases where the document to be proved formed the basis of the action, and therefore coming under the rule of the articles referred to.
    We must therefore resort to elementary works'on evidence, and the decisions of other tribunals, to settle this point; and we think that an examination of these, will satisfy the court that our position is correct.
    All the old common law authorities are most decidedly against this mode of prpof: it is a mode almost atone time unknown to the common law, and never resorted to in any instance. The attempt to introduce it under that system, has been comparatively of recent date; but the current of decisions, both in England and this country, is still against its admissibility. In nearly every State the common law rule has been adopted, excluding this mode of proof. And we would refer the court to Phillips’ Evidence, vol. 1, p. 490, Starkey Ev. p. - and to the notes on Phillips from page 1326 to 1331, and to the numerous authorities there cited.
    If, however, the court should think that proof by comparison was properly allowed in this case, then we contend, that the ruling of the court below was correct, refusing to permit the comparison to be made, either by witnesses or experts, but requiring it to be made by the jury. In all ihe cases cited by the counsel, where this mode of proof has been allowed, it will be found, that it has been left to the jury to compare the writings, without aid from any other source to assist their judgment. It is the province of the jury, to try the case according to the law and the evidence. They are the real experts, in all matters of fact. The evidence should be placed before them, as were the papers in this case, and they should be permitted to make their own deductions; nor should the mere opinions of any set of men be suffered to go before them as evidence, to affect their decisions. A different rule would bring about the greatest absurdities. It would be, in many cases, constituting a different body to try the case, by whose decision or opinions, the jury were to be entirely coni rolled, and would amount virtually to a denial of the right of trial by jury.
    We think it unnecessary to discuss the second objection raised in the bill of exceptions, marked “I,” in regard to the inadmissibility of these papers as a basis of comparison, after the witness had stated that he was acquainted with the handwriting and signature of defendant, and the object of plaintiff being to prove the document “A” to be defendant’s handwriting. The acquaintance of witness with the handwriting of defendant, was certainly the best evidence, and they should not have been permitted to decline that, and resort to an inferior grade of evidence.
    In regard to the third and last objection, raised in the bill of exceptions last referred to, in regard to the inadmissibility of the document marked “A” under the pleadings, we would simply suggest, that no allegation was made in the petition, charging the defendant with giving a pass to the slave; yet upon the trial, such an instrument was suddenly introduced, and sought to be made, as it were, the basis of the action. We contend, that a distinct charge should have' been made in the petition, of the pass having been furnished, in order to have guarded the defendant against surprise, caused by its introduction.
    Another bill of exception was taken by plaintiff, against the ruling of the court below, refusing to allow the proposed test of the accuracy of the knowledge of witness Miller, in regard to the handwriting of defendant. The reasons assigned by the court for its decision upon this point, are of sufficient force to render any remarks of ours unnecssary. The test was one certainly unknown to the law, and would lead to the inconveniences and absurdities suggested by the court.
   By the court:

Slidell, J.

The petition alleges in substance, that the defendant enticed, harbored, and carried away a slave belonging to the plaintiff, with the intention of depriving him of his property, and claims damages to the amount of the value of the slave. There was a verdict and judgment for the defendaut in the court below, and the plaintiff has appealed.

The most material matter to bo considered in the present condition of the cause is, the ruling of the district judge on a question of evidence. When the negro was apprehended, after his disappearance from his master’s abode, by the officers of a steamboat on board of which he was, a paper purporting to be a pass, signed Moses Smith, was in his possession, and was produced by him. It was necessary for plaintiff’s case, to prove, that this document was in the handwriting of the defendant. In order to do so, the plaintiff offered in evidence a number of documents satisfactorily proved to be written and signed by the defendant. Two of them are judicial bonds executed by the defendant. One of them was executed in this cause, for the purpose of bonding the property attached; the other in a criminal proceeding against Smith, on a charge of enticing away the slave in question. These documents having been offered in evidence with the permission of the court, which, we think, 'was properly allowed; the plaintiff then, as the bill of exceptions states, “ called the clerk of the court, a person said to be skilled in the knowledge of hándwriting, and was proceeding to ask him to compare the handwriting of said documents, with the handwriting of the document called a pass, and to state to the court and jury, whether or not, they were, in his opinion, written by the same hand ; to the reception of which evidence, defendant, by his counsel, objected, on the ground, that the law did not permit a party to call witnesses to prove a handwriting by comparison, except in the cases provided for in the article 325 of the Code of Practice, and of the Civil Code, 2241, which objection was sustained by the court.”

In support of the ruling of the district judge, the appellee has invoked the general principles of evidence, the opinions of English and American commentators, and the decisions of learned judges in the courts of England, and of our sister States. If we were permitted to decide the question upon these authorities, its investigation would be interesting, and its solution difficult; for there is certainly diversity of opinion, as may be seen by consulting the elaborate note to Mr. Phillips’ Treatise on Evidence, ed. of 1843, vol. 4, page 1326 to 1331. No one can peruse, even cursorily, the learned and acute disquisitions which this and kindred questions have elicited, without acknowledging, that the subject is surrounded with difficulties, not only in the abstract, but in reference to practical results in the administration of justice.

But we are not permitted to look to those sources, being of opinion, that the question is settled in the decision of our own courts, based upon our own legislation.

Under the code of 1808, p. 306, art. 226, it is said, “ that a signature may be proved by at least one credible witness declaring positively that he knows the signature, as having seen the obligation signed by the person from whom or from whose heirs the payment or execution of it is demanded, and if there be no such deposition, the signature of the person must be ascertained by two persons having skill to judge of handwriting, appointed by the judge before whom the cause is pending, which two persons shall report on oath, whether the’ signature appear to them to be that of the person whose it is alleged to be, on their having compared it with papers acknowledged to have been signed by him.”

By the amendatory code of 1825, the principle of comparison as a means of arriving at truth, was preserved, but with an enlarged applicability. “ If the party disavow the signature, or the heirs or other representatives declare, that they do not know it, it must be proved by witnesses or comparison, as in other cases.” Art. 2241.

In the subsequently adopted Code of Practice, it is said : “ If the defendant deny his signature in his answer, or contend that the same has been counterfeited, the plaintiff must prove the genuineness of such signature, either by witnesses who have seen the defendant sign the act, or who declare that they know it to be his signature, because they have frequently seen him write and sign his name. But the proof by witnesses shall not exclude the proof by experts, or by a comparison of the writing, as established by the Civil Code. Code of Practice, art. 325.

Under the above legislation, we believe it has been a matter of frequent practice to prove signatures by means of comparison with other documents signed by the party against whom the proof is to be made, whether such other documents are authentic or their genuineness is first satisfactorily proved. The decisions from an early period to the present time, are in harmony with that practice. Thus in a very early case, Sauvé v. Dawson, 2 M. R. 203, decided in 1812, in order to prove the signature of the defendant to a promissory note, the plaintiff offered an appeal bond, executed by the defendant, as a basis for comparison, and the signature to the note was allowed to be proved by a comparison with the signature to the appeal bond. In Bell v. Norwood, 7 L. R. 103, the court recognized the right of a party to contradict the testimony of a witness who had sworn positively to the genuineness of a signature, by the testimony of witnesses who had compared it with other documents on file in the cause, although they were of opinion that their negative statements did not outweigh the direct affirmative oath of the first witness, who saw the note signed. In the case of the City Bank v. Foucher,9 L. R. 410, the modes of proof provided for by the code are spoken of as not exclusive, but concurrent. In Plicque v. Labranche, 9 L. R. 522, Judge Martin observes, “ proof by comparison of handwriting, or by experts, is admissible where the defendant denies his signature,” referring to articles 324 and 325 of the Code of Practice. In Ball’s Administrators v. Ball, 15 L. R. 179, the signatures of an instument not being certified in due form, were permitted by the judge below to be proved by comparison of handwriting with other signatures of the same parties to notarial acts, and the Supreme Court sustained the ruling below, referring to the Civil Code, 2241 ; Code of Practice, 325 ; 2 M. R. 2t)3; 3 lb. 359. See also 19 L. R. 541, Davis v. Police Jury.

But it is said that the articles of the code refer only to cases where the instrument is the immediate basis of the action, as in the case of a suit upon a promissory note, or bond signed by the defendant, who denies his signature. In this view we do not concur, and it is in opposition to the ruling in Ball’s case and Davis’ case already cited. In those cases the documents to be proved were not the immediate basis of the action, but were introduced as matters of evidence upon incidental questions. The reason of the rule of evidence is as strong in one case as in the other.

"We are therefore of opinion that the comparison and testimony proposed, as set forth in the bill of exceptions, should have been permitted; but, at the same time, we think it proper to say that such testimony should be considered and acted upon by a jury with much caution, and that they are not bound to surrender their own opinions, formed by their own comparison, to the opinion of witnesses however experienced.

There are some other points to which it is proper to advert, in remanding the cause.

We think the testimony as to the declarations of the negro, were properly rejected on the ground of hearsay.

We are also of opinion that the objection to the admission of certain evidence, upon the ground of the vagueness of the allegations in the petition was properly overruled, the petition, taken as a whole, being sufficiently definite.

We think the court might have appointed experts as requested by the plaintiff, but we are of opinion that their report would not have been conclusive upon the jury, who would only be bound to give their report such weight as they might think it entitled to.

We are of opinion that the attachment should have been dissolved, this being clearly a case of damages claimed ex delicto. Prewitt v. Carmichael, 2 Ann. 943.

It is therefore decreed, that the judgment of the district court be reversed, and that this cause be remanded for a new trial, the defendant to pay the costs of the appeal. It is further decreed, that the attachment issued in this case be dissolved, and that the plaintiff pay the costs of issuing and executing the attachment.


author: Dunbar, J.

text:
    State v. Holmes.
    Section 35 of the Act of May 4, 1805, does not require that a copy of the indictment, and a list of the jttry which are to pass on the trial of the accused, should be delivered to him before arraignment. It requires that they should be delivered to him two entire days before trial.
    The proper time for the prisoner to malee the objection, that he has not been served with a copy of the indictment, is when he is called up for trial, and his not doing so at that time will amount to a waiver of a copy of the indictment.
    from the District Court of the Parish of Caddo. This case was tried by a jury before Bullard, J.

      Morrison, for the State.

      Hodge and Buckner, for defendant.
   By the court:

Dunbar, J.

The defendant, indicted for murder, was found guilty by a jury as charged in the indictment, without capital punishment, and has been sentenced to hard labor in the penitentiary during'life.

This case comes before us upon motions for new trial, arrest of judgment, and several bills of exceptions.

The defendant, upon his arraignment, stood mute, whereupon it was’ordered by the court that the plea of not guilty be entered for him, which was accordingly done. It appears that at the time there had not been a copy of the indictment served upon the prisoner; and it is now contended that for this reason a new trial should be awarded to him. We think not. The Act of 1805, p. 440, sec. 35, requires “ that every person who shall be accused and indicted for any capital crime, or any crime punishable with imprisonment at hard labor for life, or for seven years or upwards, shall have a copy of the indictment and list of the jury which are to pass on his trial, delivered unto him at least two entire days before he or she shall be tried for the same but does not require that this should be done before arraignment.

It is next urged, that a true copy of the indictment was not served on the prisoner two days before his trial, the copy which was served on him not having the endorsement, by the grand jury, of “ a true bill,” written thereon, as in the original.

We are not of the opinion that this objection can avail the prisoner, because when he was called up for trial, upon being asked if he was ready, “ his counsel said he was not ready, but olfered no motion for a continuance, and said he should interpose no obstacle to the trial, but would reserve all legal objections to the proceedings. Whereupon the court ordered the trial to proceed.”

This was the proper time to have made the objection, that the prisoner had not been served with a copy of the indictment; and his not having done so was a waiver of a copy of the indictment, if, indeed, one had not been previously served on him, of which we are by no means satisfied by the evidence, but are rather inclined to believe that a true copy of the indictment had been served on him, in conformity to law. State v. Hernandez, 4 Ann. 379.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed, with costs.


text:
    Dubose v. Elizabeth Hall et uxor.
    A plaintiff who brings an action for the resolution of a sale, on account of the non-payment of the price, after having brought suit upon one of the notes given in payment of the price, may, at any time before going into the trial, discontinue one of the actions, and proceed with the other. The suit upon the note will be a sufficient putting in morat and its effect will not be impaired by the discontinuance.
    He who sues a married woman, must allege and show, that she is separate in property from her husband, by marriage contract or by a judgment of court, as the case may be, and without that showing, he will not be able to maintain his suit against her personally, or charge her separate estate.
    APPEAL from the District Court of the Parish of Morehouse, Copley, J.

      Parsons, for plaintiff.
    In the dissolution of a sale, the parties ought to be placed in the same situation that they were before the contract was made. The vendor is entitled not only to the recovery of his property, but it should be restored to him free from any incumbrances or charges, whether for improvements or anything else. Derepas v. Shallus, 15 L. R. 371. Boner v. Mahle, 3 Ann 600. 6 Ann. 2. Pothier on Sale, No. 476. Domat, Nos. 421, 555.
    Defendant failing to comply with the terms of the contract, and having been put in default by a judicial demand, became a possessor in bad faith, and is not entitled to pay for improvements, but is liable for rents and revenues. Williams v. Booker et als. on a re-hearing, 12 R. R. 256.

      Robertson and Boatner, for defendants,
    cited Code of Practice, art. 149,334. C. C. art. 2265. 11 L. R. 108. C. C. arts. 2271, 2372, 2373. 6 R. R. 64. 5 Ann. 173. 5 Ann. 586. 5 Ann. 405. 1 R. R. 34. 3 Ann. 326. 13 L. R. 337. 8 M. R. 705. 7 R. R. 173. 11 L. R. 80. 1 N. S. 312. 1 L. R. 310. 17 L. R. 97. 9 R. R. 351.
   By the court:

Rost, J.

This is an action for the resolution of a sale, on account of the non-payment of the price.

The defendants excepted to the action on various grounds. The district judge overruled the exceptions, and they have appealed from the judgment rendered against them on the merits.

The plaintiff had brought a suit upon the first note given to him in payment by the defendants, which was still pending when the present action was instituted. The defendants pleaded the action on the note, in bar of the other. In answer to that exception, it is only necessary to refer to the case of Adams v. Lewis, 7 N. S. p. 404, in which it was held, under a similar state of facts, that the' plaintiff may, at any time before going into the trial, discontinue one of the actions, as was done in this case, and proceed with the other.

We think that the defendant was put in mora by the suit commenced against her, for'that portion of the price which had matured; that as she did not comply with the prayer of the petition, the subsequent discontinuance of the suit did not impair the force and effect of the demand. The exception that she had not been put in default, was therefore also properly overruled.

We are of opinion that the fourth exception was well taken. The plaintiff should have alleged and shown, that Mrs. Hall was separate in property from her husband, by marriage contract, or by a judgment of court, as the case may be, and without that showing, he could not sue her personally, or charge her separate estate with the damages he claims.

As, however, it would seem from the answer filed to the merits by the defendant, that she had the right to contract as a. feme sole, we have come to the conclusion, to remand the case for further proceedings, with leave to the parties to amend.

We deem it proper to state, that we are satisfied that the subject matter of the sale was not a tract of land, but merely a settlement right, and that the warranty to the defendant should be construed with reference to the thing sold.

It is ordered, that the judgment in this case be reversed, and the' case remanded for further proceedings, with leave to both parties to amend; the cost of this appeal to be paid by the plaintiff and appellee.


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    James Gates, for Use, &c., v. Renfroe et al.
    Plaintiff was one of two sureties upon a note made in Georgia, and placed in the hands of a trustee. He afterwards paid the note and brought this suit against his co-surety and the maker of the note. Held: That,the plaintiff having paid, without being sued, and without informing the principal debtor, no equity exists in his favor; and the case must be determined as if the trustee himself was seeking to enforce the trust against the defendants. C. C. 3025.
    Minor children, as long as both parents are living, are subjected exclusively to the author' ity of the father, who administers their property, and who is bound to provide for them and to protect them in their persons and rights.
    He may delegate a part of tho paternal power to the teachers he employs to educate them, but he cannot permanently divest himself of any portion of it by contract.
    There may be cases in which a court of justice would be authorized to take away this power.
    Trusts are unknown to our laws, and the only cases in which they have ever been enforced by our courts, are those of marriage settlements, which, so far as they create no new tenure of property, have been, by comity, assimilated to marriage contracts.
    APPEAL from the District Court of the Parish of Caddo, Jones, J.

      Roysdon and Spofford, for plaintiff.

      Terrell and Hodge, for defendants.
   By the court:

Rost, J.

The plaintiff, who is a citizen of the State of Georgia, sues for the use of James W. Howard, and seeks to recover from Campbell Renfroe and Josiah Renfroe, whom he alleges to be residents of the parish of Caddo, the sum of $700 and interest, which he alleges he paid for them as surety on a note which they had given to one Isam B. Troutman, for a valuable consideration, which note they failed to take up at maturity.

The facts of this case are novel in their character. In 1847, Campell Renfroe lived in Georgia with his wife and children. His father-in-law brought suit against him for the board of his family ; and-his wife sued him at the same time, for alimony and a divorce. He proposed to compromise these suits, by securing $700 to be settled upon his two children for their support. The proposition, it seems, was accepted. The note sued on was executed and placed in the hands of George R. Hunter, selected by the parties as trustee, in place of Troutman, who refused to serve. The note is signed by Campbell Renfroe as principal, and by Josiah Renfroe and James Gates as joint and several sureties. It was not paid by Campbell Renfroe, at maturity, and the plaintiff afterwards gave his note in place of it to the trustee, who has testified that the note thus given has been paid.

The defendant resists the claim of the plaintiff on the ground that the note was originally given without consideration, to his knowledge, and that, he obtained possession of it by fraud, after it became due, and also without consideration.

There was judgment for the plaintiff against Campbell Renfroe for the amount paid by him, with interest and costs, and against Joseph Renfroe for one half of said amount and interest, and all the costs. The defendants have appealed.

The plaintiff having paid without being sued, and without informing the principal debtor, no equity exists in his favor. And the case must be determined as if the trustee himself was seeking to enforce the trust against the defendant. C. C. 3025.

There is nothing in the record to show the validity of the original contract, under the laws of Georgia, unless it be authorized by some statute of that State. Our impression is, that it can no more be sustained under the common law than under our own; and that it implies such a delegation of paternal power to a third person during the existence of marriage, which neither system of jurisprudence recognizes. We believe that there, as with us, minor children, as long as both parents are living, are subjected, exclusively, to the authority of the father, who administers their property and is bound to provide for them and to protect them in their persons and rights. He may delegate a part of the paternal power to the teachers he employs to educate them, but he cannot permanently divest himself of any portion of it by contract. There may be cases in which a court of justice would be authorized to take away their power from them, but the present is not one of that class.

As at present advised, we are of opinion that there was no legal obligation upon the defendant to pay the note he gave. If we are in error in this, our decision must still be against the plaintiff, on the ground that trusts are unknown to our laws, and that the only cases in which they have ever been enforced by our courts, are those of marriage settlements, so far as they create no new tenure of property, which have been, by comity, assimilated to marriage contracts See Harper v. Stansborough, 2 Ann. 377. Succession of Franklin, 7 Ann.

It is ordered that the judgment in this case be reversed, and that there be judgment for the defendants ; the plaintiff paying costs in both courts.

Slidell, J. Upon a question dependent on a foreign jurisprudence, we must necessarily speak with much diffidence. My impression is that this action could not have been maintained in Georgia.


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    King and Gerson v. W. J. Q. Baker.
    Under article 626 of the Code of Practice, orders of execution must be sealed with the seal of the court.
    A surety upon a delivery bond taken under the statute of 1842, inay avail himself of the defect, that there was no seal of the court upon the execution in 'he hands of the sheriff at the time the bond was taken.
    A surety upon such a bond may avail himself of all the means of defence of his principal, which do not result from the condition or personal incapacity of the principal.
    A surety cannot be bound, as a general rule, ader more onerous conditions than his prin. pal.
    The rule that, in whatever manner a party chooses to bind himself, he shall be held to be bound, does not apply to judicial bonds. In such cases a sheriff has no power to take any other bond than that which he is authorized by law to take.

      APPEAL from the District Court of the Parish of Ouachita, Sharpe, J.

      Garret and Ludeling, for plaintiffs.
    No principle of law is better settled than that, a person will not be allowed to deny the truth of judicial admissions made by him. 1 R. R. 544. 9 R. R. 381. 4 Ann. 293. 4 Ann. 416. 5 Ann. 22. 6 Ann. 719. Greenleaf’s Ev. sec. 22, A party to a bond cannot object, that it is irregular, or that the sheriff had no right in the property. In whatever manner one thinks proper to bind himself, he shall be bound. 2 N. S. 672, 3 M. R. 569. 4 N. S. 25, 5 M. R. 194. 4 N. S. 122. 6 N. S. 123. 10 M. R. 197. 3 Ann. 234
    By executing the bond, the defendant waived all right (if he had any) to object to irregularities or defects existing in the proceedings. 9 R. R. 186. “ Volenti nonjit injuria.”

    Sureties are entitled to oppose all exceptions which are inherent to the debt, but not those which are personal to the debtor. C. C. 3037. Poth. Obli. 380-1. 12 M. R. 385. 10 L. R. 415.

      Baker, for defendant.
    Even if the execution was properly admitted, it is shown that when the sheriff seized the slaves and took the bond, that the execution was without a seal of court. It was, then, no execution at ail. C. P. 626, 724. Plaintiffs acquired no rights under it. nor could any be acquired ; no bond could betaken under it; there is nothing for such bond to stand on. All such bonds presuppose a legal execution. If the principal obligation is null, or that upon which it stands is null, the penal clause is also null. C. C. 2109. 6 R. R. 450. Welch v. Thorne, 16 L. R. 188. 18 L. R. 166. 5 Ann. 514.
    The bond was without a cause. The law only permits the defendants in execution to bond their property. Acts of 1842. p. 210, sec. 2. As to Mrs. Crownritch and her security, the bond is a mere nude pact. C. C. 1887, 1890. 17 L. R. 118. 5 R. R. 101. 1 Ann. 192. .

      Mrs. Crownritch executed the bond in error of fact, and is not bound, ignorantia facti excusat. 10 L. R. 376. The rule, that in whatever way a man binds himself, so is he bound, has no application in this case. Welch v. Thorne, 16 L. R. 118. Ib. 173. 9 R. R. 535. 4 Ann. 374.
   By the court:

Rost, J.

The plaintiff brought suit against 'W. J. Q. Baker, on a bond executed by Ellen A. Crownritch and the said Baker, as her surety, conditioned that certain slaves seized at the suit of the plaintiffs, as the property of John M. Crownritch, the husband of the principal in the bond, should be delivered to the sheriff on the day of sale, which bond had become forfeited by the non-delivery of the slaves at the time stipulated.

The defendant resists the payment of the bond on two grounds: 1st. That there was no legal execution in the hands of the sheriff at the time he took the bond. 2d. That the defendant alone had the right to give a delivery bond, and there is no law authorizing the sheriff to take the bond sued upon.

The plaintiffs have appealed from the judgment rendered in the court below in favor of the defendant.

It is proved, that the seal of the court was not affixed to the writ under which the sheriff seized the slaves, and that this defect was only supplied after the bond sued upon had been executed.

It is not denied that, under article 626 of the Code of Pratice, orders of execution must be sealed with the seal of the court; but the plaintiffs contend, that the defendant in eitacution alone can take advantage of the informalities of the proceedings in the suit or under the judgment, and that Baker is a stranger to him and should not be permitted to assert his privileges or to dispute the validity' of the seizure of his property.

It appears to us, that this argument proves too much. If the principal in the bond represented her husband, and acted in his behalf, her surety was, in fact, the rurety of the defendant in execution, and may avail himself of all thp means of defence of his principal which do not result from his condition or his personal incapacity. A surety cannot be bound, as a general rule, under more onerous conditions than his principal. Gilbert v. Meriam, 2 Ann. 160.

If, on the other hand, the principal and surety on the bond are strangers to the defendant in execution, then it is clear that the sheriff had no authority to take the bond, because the act of 1842, under which it was taken, gives to the defendant alone the privilege to retain in his possession the property seized, on executing a delivery bond.

The plaintiffs invoke the rule, that in whatever manner a party chooses to bind himself, he should be held to be bound ; but we have uniformly adhered to the decision of our predecessors, in the case of Slocumb v. Roberts, that this rule is not applicable to judicial bonds, and that, in such cases, a sheriff has no power to take any other bond but that which he is authorized by law to take. 16 L. R. 174.

The judgment is affirmed, with costs.


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    Wolfe v. Pruitt.
    An application for a new trial on the ground of surprise, will not be listened to, unless the party applying shall have used due diligence.
    APPEAL from the District Court of the Parish of Morehouse, Copley, J.

      McGuire and Ray, for plaintiff.

      Robertson and Boatner, for defendant.
   By the court:

Slidell, J.

The evidence upon which the cause was tried not being presented by the transcript, we are unable to say whether, on the merits, the judgment was erroneous.

An application was made for a new trial, on the ground, supported by affidavit, that the defendant was surprised in not being permitted to take interrogatories propounded to plaintiff, as confessed; the clerk, as is asserted in the affidavit, having neglected his duty as to issuing copies of the order to answer, &c.

The defendant obtained an order to answer in April, 1851. In November he filed an application to have the interrogatories taken, as confessed. But he does not appear to have required the action of the court upon it. No action was had, before the trial, upon the application; nor was any motion made for a continuance, so as to give further time to have service made. After trial and judgment, under these circumstances, the district court may well have considered that there was a want of due diligence, and that the application for relief on the grounds stated, came too late. "We find no sufficient reasons or precedent for disturbing the judgment.

Judgment affirmed, with costs.


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    George M. Savage v. Eliza Foy and Husband.
    When boundaries between two tracts of land are fixed and determined by acts of the same date, passed by the mutual vendors of the claimants, more than a quarter of a century before the existence of any controversy, and acquiesced in by all partios for that long period of time, they must remain undisturbed.
    When an owner has alienated one or two estates which belonged to him, and the property, or any part of it, is contested, the limits assigned to it by the vendor at the time of the sale, must be consulted. The limits anciently subsisting between the two estates must not be regarded, because the designation which the vendor makes of the metes and bounds, forms new limits between the two estates, or between the parts of them which he has sold. C. C. 840.
    In this case the plaintiff joined a claim for the price of a slave to his action of boundary_ Per Curiam. We do not wish to be considered as approving such an impropriety in pleading as this; but considering that substantial justice has been done in this branch of the case, by the judgment of the district judge, we shall not disturb it.
    APPEAL from the District Court of the Parish of Ouachita, Sharpe, J

      McGuire and Ray, for plaintiff.

      Baker and Morrison, for defendants.
   By the court:

Dunbar, J.

This is an action of boundary. The plaintiff claims title under various mesne conveyances from C. and C. A. Betin. On the 14th December, 1825, C. and C. A. Betin sold two hundred and fifty arpents of land on the Bayou de Siard, to Thomas Friend, by certain metes and boundaries, with a plat of survey made by James McLauchlin, surveyor of the parish of Ouachita, on the 8th of December of the same year. On the 10th July, 1828, C. A. Betin sold to John T. Faulk four hundred arpents of land on the said bayou, adjoining on the lower side the land first above mentioned, sold by C. and C. A. Betin to Thomas Friend. These two tracts, making together the quantity of six hundred and fifty arpents, were at one time held in common by the defendant, Eliza Foy, then widow of Peter J. Evans, and Nancy Miriam Evans, the sole heir of Peter J. Evans. After the death of Peter J. Evans, and marriage of the said Nancy Miriam with the plaintiff, the defendant, Eliza Foy, sold her undivided half of said land to the said Nancy, her daughter, and the plaintiff, George Savage, claims title to the same, under the last will and tostament of his deceased wife, the said Nancy Miriam Evans.

The defendant claims title to the lands adjoining those above described, under various mesne conveyances from the same vendors, C. and C. A. Betin, who the same day and year that they sold to Thomas Friend, as before mentioned, sold to A. H. McCommack one hundred and fifty arpents of land, by certain metes and boundaries, with a plat of survey made by Janies McLauchlin, on the 8th December, 1825. And under various mesne conveyances, the defendant claims title also from the heirs of Breville Breard, to three hundred and forty arpents of land, making in all five hundred and fifty arpents.

Plaintiff’s counsel contends, that as it is shown by the evidence that the defendants are in actual possession of eight hundred and thirty-five arpents of land, being the whole of the Breard Breville tract of four hundred arpents, the whole of the M. J. S. Breard tract of four hundred arpents, and thirty-five arpents of the Charles Betin tract, as they appear on the township map, in evidence in this cause, when their titles call only for five hundred and fifty arpents, they should not be allowed to retain the overplus, and that it should be given to the plaintiff, who has not by that exact quantity, what his titles call for.

It is further admitted by the counsel of defendants in argument, that there is enough land to satisfy all claimants under the three confirmations before mentioned to Charles Belin, M. J. S. Breard, and Breard Breville. But we do not see how it is in our power to alter the special locations and boundaries made in the deeds from the Belins to Thomas Friend and A. H. McCommack, to be found on the plats before referred to, as annexed to said deed. W. W. Farmer, a witness who surveyed these lands, and made a plat thereof, which is in evidence, says, that the calls in the deeds and plats correspond, as he found them on the land, and he had the deeds with him. Sterling, another witness, says that P. J. Evans, (through whom the plaintiff claims) never had in possession any part of the McCommack tract, and that Thomas Friend and A. H. McCommack settled on their tracts of land in 1825 or 1826, about twenty-two years before their suit was brought.

We consider that the plaintiff cannot go behind the deeds from the Belins to Thomas Friend and A. H. McCommack. The boundaries between these two tracts of land being fixed and determined in these acts, passed by their mutual vendors at the same date, more than a quarter of a century since, and acquiesced in by all parties for that long period of time, must remain undisturbed.

We are further of opinion, that the plaintiff is estopped from claiming other boundaries than those mentioned in these deeds, and in conformity to which, there has been such long and undisturbed possession. Zeringue v. While, 4 Ann. 301. There is, moreover-, a positive provision of the Civil Code on the subject, which declares, that “when an owner has alienated one or two estates which belonged to him, and the property of any part of it is contested, the limits assigned to it by the vendors at the time of the sale, must be consulted. The limits anciently subsisting between the two estates must not be regarded, because the designation which the vendor makes of the metes and bounds, forms new limits between the two estates, or between the parts of them which he has sold.” C. O. art. 840.

The plaintiff has joined in this action of damage, a claim for the price of a slave. We do not wish to be considered as approving such an impropriety in pleading as this; but considering that substantial justice has been done on this branch of the case by the judgment of the district judge, we shall not disturb it. We think that the compromise entered into between the plaintiff and defendant, settled all such matters between them as the payment in error complained of.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed, with costs; reserving to the plaintiff any claim he may have against his vendor, the defendant, by reason of any deficiency in the land sold.


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    Vaiden v. Abney.
    When a continuance is refused by a district judge, the Supreme Court will not disturb the judgment rendered, even when the correctness of the particular ground on which the judge a quo placed his refusal, is doubtful, provided the court be satisfied that there was another valid ground for the refusal of the continuance, presented by the party opposing it.
    The rule, that on an application for a continuance, due diligence should be shown, is well settled.
    It is equally clear, that a party's assertion that he has used due diligence will not be heeded, when his laches are patent upon the record.
    APPEAL from the District Court of the Parish of Bossier, Bullard, J.

      Crain and Jones, for plaintiff.

      Lawson and Fuller, for defendant.
   By the court:

Slidell, J.

The defendant complains that a continuance was improperly refused by the district judge, and asks that the cause be remanded. When a continuance is refused by a district judge, we are not disposed to disturb a judgment rendered, even if we doubt the correctness of the particular ground on which the judge placed his refusal, provided we are satisfied there was another valid ground for the refusal of the continuance, presented by the party opposing it.. In the present case, one of the grounds upon which the plaintiff opposed the continuance was, that the defendant had not used due diligence to obtain the testimony of the witness, for the purpose of obtaining whose testimony, the defendant desired further time. We think the want of due diligence was manifest. This cause was put at issue in August, 1848. In May, 1851, the defendant applied for a continuance, in order to obtain the testimony of a witness, on commissions. In May, 1852, when the cause, after this long delay, came to trial, the application for continuance which we are now considering, was made. The defendant states in his affidavit, that he took out a commission in February, 1852, and sent it to Alabama, but it has not been returned. He does not explain why he waited so long before taking out the commission, nor what measures he took to procure its execution; nor does he give any reasonable excuse for all his antecedent negligence. If, under such circumstances, defendant can obtain continuance, litigation would be endless.

The rule, that on an application for continuance, due diligence should be shown, is too well settled to require comment. It is equally clear, that a party’s assertion that he has used due diligence will not be heeded, where his laches are patent upon the record.

Judgment affirmed, with costs.