author: Voorhies, J. Mebbick, O. J. Lea, J.

text:
    J. Garrett v. F. Oliver, et al.
    An .appeal will lie from an interlocutory order which works an irreparable injury,
    l'lie defendant in a possessory action cannot call his vendor in warranty.
    PPEAL from the District Court of the parish of Catahoula, Barry, J.
    Taliaferro, for plaintiff and appellant.
    Mayo, for defendants. Crawford, for warrantor.
   Voorhies, J.

This is a possessory action. The plaintiff alleges that he was in the actual and peaceable possession as owner of a certain tract of land described in his petition, from the early part of the year 1850, until the last of May, 1858, when the defendants, by fraud and collusion, usurped possession, and have since continued to retain the same illegally from him. He therefore prajrs that they may be condemned to restore to him his said possession, and also to pay him the sum of $1000 as damages for their tortious and illegal acts.

The defendant Oliver, after pleading a general denial, avers that he purchased the land in controversy from J). P. Calhoun, on the 5th of August, 1852, and has been ever since in the actual possession thereof. He therefore prays that his vendor may be called in warranty. The other defendant avers that he has been in the peaceable and uninterrupted possession of this land for more than twelve months preceding the institution of this suit, and pleads the prescription of one year in bar of the action.

The plaintiff filed a motion to strike out of the defendant Oliver's answer his call in warranty. The motion was overruled and the cause continued to cite the warrantor. From this order the plaintiff appealed, but afterwards abandoned his appeal. At the next term of the court, Calhoun filed his answer avering that he had had possession long anterior to the plaintiff, and prayed that his vendor might also be called in warranty. The plaintiff again resorted to a motion to strike out from Calhoun's answer his call in warranty. This motion was overruled and the cause ordered to be continued for the purpose of citing Sarah A. Garrett in warranty. The plaintiff then filed a bill of exceptions, on the ground that the order would produce a vexatious delay, and took the present appeal from said judgment or order.

A motion has been filed by one of the appellees for the dismissal of the appeal, on several grounds which may be considered as substantially embraced in one in which it is urged, “that the judgment is r.ot a judgment that operates an irreparable injury or any judgment that can be appealed from, it being merely a judgment or order of the court overruling a motion to strike out that part of the defendant Calhoun's answer which prayed leave to cite Mrs. Garrett in warranty.” The right to appeal from an interlocutory judgment in cases where it may work an irreparable injury to a party, has been repeatedly recognized by our predecessors. 8 R. 108 ; 11 ibid, 451. What may be viewed as an irreparable injury must necessarily depend upon the effect such order or judgment is calculated to produce on the rights of the party by the introduction of matter foreign to the proper issue. We take it as a well settled rule, in possessory actions, the inquiry must be confined to the single question, whether the plaintiff was the actual possessor and has been disturbed by the defendant or not. The examination of titles being expressly excluded in this action, except for certain purposes, it follows therefore that a call in warranty, under the circumstances disclosed in this case, must be considered as improper and productive of delay in the administration of justice. Allowing the party in this case the right to call his vendor in warranty, and consequently extending it to every subsequent vendor called in warranty, would, in our opinion, have the effect of procrastinating the plaintiff’s suit to an indefinite period, and of creating vexatious costs and delays, by the introduction of matter foreign to the issue. Hence the order may be considered as productive of an irreparable injury to the appellant. It appears to us the present case can hardly be distinguished in principle from that of Duplessis v. Lastrapes, 11 R., 451. See also Thomas v. Baillo, 7 L. R., pp. 414 and 416. We are therefore of opinion the plaintiff’s motion should have prevailed.

It is therefore ordered and decreed, that the order authorizing D. P. Calhoun to call Sarah A. Garrett in warranty, be rescinded and set aside, and that the case be remanded for further proceedings according to law, the appel-lees to pay the costs of this appeal.

Mebbick, O. J.

Without expressing an opinion upon the question whether in the case where a defendant had acquired his possession by virtue of a title withiri the year, he might not call his vendor in warranty to maintain him in possession, I concur in the decision of my colleagues on the ground that the defendant shows by his answer that he acquired his possession from his vendor more than one year previous to the institution of the suit. If the defendant has the possession which he alleges, it is a bar to the plaintiff’s action. If he has voluntarily surrendered that possession or lost it by his negligence, it is his own fault, and no attempt to regain it by taking illegal or forcible possession would entitle him to call upon his vendor in this action.

Lea, J.

I concur in the decree rendered in this case, but prefer to rest my opinion upon the ground above stated by Chief Justice Mebbick.


source: Caselaw Access Project

author: Mebbick, C. J.

license: Public Domain

text:
    Succession of Taylor, on Opposition to an Account.
    The Act of March 17th, 1852, u To provide a homestead for the wid ow and children of deceased persons,” does not protect the property of the succession from creditors, whose claims existed prior to the passage of the act.
    from the District Court of Ouachita, R. W. Richardson, J.

      McGuire & Ray, for plaintiffs.

      Garrett, for opponent and appellant. Morrison, pro se.

   Mebbick, C. J.

This case presents a question as to the construction of the Act of the Legislature, approved March 17th, 1852, and entitled “ an Act to provide a homestead for the widows and children of deceased persons.”

The fund in contest proposed to be distributed, arises from the sale of property owned and possessed by the intestate, prior to the passage of the act.

The widow, who is administratrix of the succession, proposes to distribute one thousand dollars of said fund to herself and the minor children, in virtue of this act of the Legislature. If her claim is allowed, it leaves $26 15 to be distributed to the mortgage creditor, and leaves the balance of his claim and the claims of the other opposers, some partly and others entirely, unpaid.

The Judge a quo allowed the claim of the widow and heirs, and the opponents have appealed.

They contend that the judgment of the lower court is erroneous, inasmuch as their debts existed prior to the passage of the law, and the statute taking from them all remedy, is unconstitutional and void.

The statue provides as follows, viz: Section 1. “Whenever the widow and minor children of a deceased person, shall be left in necessitous circumstances, and not possess, in their own right, property to the amount of one thousand dollars, the widow or the legal representatives of the children shall be entitled to demand and receive from the succession of their deceased father or husband) a sum, which added to the amount of property owned bj) them, or either of them, in their own right, will make up the sum of one thousand dollars, and which said amount shall bo paid in preference to all other debts except those for the vendor’s privilege and expenses incurred in soiling property.”

Sec. 2. “ The surviving widow shall have and enjoy the usufruct of the money so received from her deceased husband’s succession during- her widowhood, afterwards to vest in and belong to the children or other descendants of said deceased.”

We think the question presented to us under this statute, is one of construction, and does not of necessity involve a question of the constitutionality or unconstitutionalit}) of the act. Did the Legislature intend to give the widow or heirs this one thousand dollars to the detriment of the right of creditors existing prior to the passage of the act? We think not, and will mention a few of the considerations which lead us to this conclusion.

I. In many, if not all of the parishes of the State, there were, at the time of the passage of the act, a great number of small estates, which were held by the more sufferance of the creditors, who were willing to leave the debtor in the undisturbed possession of property, bought mediately or immediately with means furnished by themselves, trusting to the law as it then stood for reimbursement, out of the property of their debtor.

In reference to these small estates, one thousand dollars is a large sum, and if taken out of them would, in all instances, greatly reduce, and in some instances entirely absorb them. To construe the statute, therefore, in such a manner as to deprive these creditors of their claims upon the property of the deceased, would be to declare that we believe the Legislature intended to legislate away the rights of one class of persons and bestow them upon another; an injustice which we cannot suppose for a moment the Legislature intended to commit.

II. By Article 3150 of the Civil Code, it is declared, that the “ property of the debtor is the common pledge of his creditors, and the proceeds of its sale must be distributed among them ratably, unless there exists among the creditors some lawful causes of preference.” This was the law under which the rights of three of the opposers were acquired. We do not think this Article of the Code a mere idle recognition of an equitable principle not intended to give the creditor any positive right to the property of his debtor. On the contrary, we think the whole of our legislation recognizes such an interest of the creditor in the property of the debtor, as to give to the creditor the right to watch over this common pledge, and prevent the debtor himself from fraudulently parting with it. Such are the provisions of the Civil Code, traced in ■relation to the revocatory action. Such, also, is the nature of the rights of a creditor over the surrendered estate of his debtor, and over the property of the succession on which he has a claim under' administration. We think, therefore, had the Legislature intended to take from the creditor this recognized right of pledge, it would have expressly so declared.

III. It is a well settled rule of construction consecrated also by Article 8 of the Civil Code, that “ a law can only prescribe for the future; it can have no retrospective operation, nor can it impair the obligation of contracts.” Had this Article of the Code been re-enacted With the above recited statute, wo suppose it would hardly be contended that the statute could bo so construed as to act upon the past and to deprive the creditors of the rights (which then belonged to them) over the property of their debtor. The article being unre-pealed, can hardly have less force than if re-enacted with the statute. "VVe think it is a safe rule of construction, and one which should be applied to the particular case before us.

Proceeding, therefore, to give effect to these views, we find that the judgment of the lower court must bo reversed as to the sum of one thousand dollars decreed to the widow and heirs, which must be distributed as follows, viz :

To Fenetta Newman, wife of David Easlay, - $192 50

To J. P. Crosby & Co., in addition to the amount allowed them out of the proceeds of the crops, - - - - - - 5T 05

To Williams, Phillips & Co. in addition to the amount allowed them out of the crops,.- - - - 37 07

Residue of said $1000, to the said widow and heirs, viz.; - - 716 38

The claims of C. H. Morrison and Isaac Collins do not clearly appear to have existed prior to the act of 1852. Neither is the claim of Williams, Phillips & Go. for commissions, satisfactorily established'. As' the administratrix has not appealed, wo do not think the judgment can be amended in favor of Norwood, himself an appellee.

It is therefore ordered, adjudged and decreed, by the court, that so much of the judgment of the lower court as decrees to the said Elizabeth Taylor and the minor heirs of John Taylor, deceased, the sum of one thousand dollars, be avoided and reversed; and now proceeding to pronounce such judgment as should have been rendered by the lower court in this respect: It is ordered, adjudged and decreed, by the court, that the said opposition of Fenetta Newman, wife of Easlay, he sustained; and that the said administratrix pay and distribute to her, the said Fenetta Newman, the sum of one hundred and ninety-two dollars and fifty cents, and that the opposition of J. P. Crosby & Co. and Williams, Phillips & Co. be also sustained, and that said administratrix, in addition to the proportion of the proceeds of the cotton already allowed said J. P. Crosby & Co. by the decree of the lower court, do allow and pay them, said J. P. Crosby & Co., the sum of thirty-seven dollars and seven cents ; that said administratrix also pay to said Williams, Phillips & Co., in addition to the proportion of $455 29, the proceeds of the cotton crop allowed them by said decree of the lower court, the further sum of fifty-four dollars and five cents. And it is further ordered, that the said judgment of the lower court be in all other respects affirmed, said widow and heirs being allowed the residue of said sum of one thousand dollars, after making the payments herein decreed. And it is further ordered, adjudged and decreed, that the costs of the appeal be equally divided between and paid by Chandes E. Morrison, Isaac Collins, and Elizabeth Taylor, individually and'representing the minor heirs of John Taylor, deceased.


author: Buchanan, J.

text:
    Brooks v. Poirier.
    The counsel in a cause made the following agreement, which was entered upon the record: u It is agreed by counsel for plaintiff and defendant in this case, that if the final judgment which may be rendered in the case of Jehiel Brooks v. Samuel Norris, No. 263, shall be in favor of the plaintiff in that case, a judgment shall be rendered in his favor in this, and if the judgment on a final hearing in that case (No. 263) should be in favor of defendant in that suit, a final judgment shall be rendered in favor of defendant, A. Poirier, in this case.” The Court being of opinion that plaintiff had notice of the agreement, Ilel&: that his silence for eight years, during which time the suit against Norris was pending, amounted to a ratification of the agreement of counsel.
    from the District Court of Caddo, Brew, J.

      Grane & B. J. Sage, for plaintiff and appellant.

      Laud, for defendant.
   Buchanan, J.

(Spofforb, J. recusing himself.)

On the 9th May, 1843, this case being fixed for trial on that day, the following agreement was made in open Court and entered upon the minutes:

“It is agreed by the counsel for plaintiff and defendant in this case, that if the final judgment which may be rendered in the case of Jehiel Brooks v. Samuel Norris, No. 263, shall be in favor of the plaintiff in that case, a judgment shall be rendered in his favor in this, and if the judgment on a final hearing in that case, (No. 263,) should be in favor of defendant in that suit, a final judgment shall be rendered in favor of defendant, A. Poirier, in this case.”

At the same, term of the Court at which this agreement was made, the case of Brooks v. Norris, therein mentioned, was tried before a jury and a verdict and judgment were entered up, in favor of defendant; from which an appeal being taken by plaintiff, the judgment was affirmed by the Supreme Court of the State at the October term, 1843, (6 Rob. 176). A writ of error was sued out to the Supreme Court of the United States in 1848, which was dismissed at the December term 1850. 11 Howard 204. In April, 1851, plaintiff by counsel, moved the District Court of Caddo, to reinstate the present case upon the trial docket, in answer to which rule, the defendant pleaded the agreement of the 9th May, 1843, and moved for judgment upon that agreement, there being final judgment for defendant in the case of Brooks v. Norris. These cross rules were submitted to the District Judge, who overruled the application to reinstate, and ordered judgment to be entered up for defendant. The plaintiff appeals.

The sole question to be decided is the authority of the attorneys of plaintiff, Messrs. Morse & Boysdon, to make the agreement of the 9th May, 1843.

The fact of Messrs. Morse & Boysdon being the attorneys at law of plaintiff in this action, not only results from the record, in which the petition is signed by them; but the plaintiff has givep in evidence a written contract, passed before a Notary Public, fixing the terms of the compensation of those gentlemen for their professional services, and binding them to prosecute all petitory actions for lands claimed by plaintiff to eviction of the parties in possession. This is one of those petitory actions, as was also that against Samuel Norris, and the terms of the bargain between plaintiff and Morse & Boysdon are such as to give thorn an interest in the event of the suit. A comparison of the plead•ings (petition and answer) in this case and in that of Brooks v. Norris, shows them to be word for word the same, with the exception of the name of defen-da,nt. Under these circumstances there was nothing surprising in the fact of the counsel engaged in the two suits, haying agreed that the judgment in one should decide both. Neither was there any thing injurious or prejudicial to plaintiffin such an arrangement. The silence of the plaintiff during eight years would be viewed as conclusive evidence of his acquiescence in the agreement made by his counsel, and by which further proceedings in this suit were sus-pende! until the final judgment in the suit vs. Norris, which in fact only took place about eight years after the agreement; but the plaintiff has put on file, as the basis of his motion to reinstate the cause, an affidavit made by him before a Justice of the Peace in the District of Columbia, in which he not only declares that he never gave to Morse & Roysdon authority to make the agreement of the 9th May, 1843, but seeks to convey the impression that he was ignorant of the existence of such an agreement until about the date of the affidavit. The affidavit commences by stating that affiant’s “attention has been called by his present counsel in this cause and agent and attorney in fact, Bernard J. Sage, to a written agreement” &c., a form of expression which indicates that the information was very recent. Yet there are other expressions in the affidavit which are scarcely consistent with this idea. Affiant says, for example, “ that for a long time he supposed the aforesaid suits had been continued from time to time on the delay docket of the said District Court of the parish of Caddo, awaiting the issue of the suit of Brooks v. Norris, when he was surprised by the intelligence that such an agreement had been made.” In reading this, the enquiry forces itself upon us: How did the affiant come to suppose that this case was awaiting the issue of the suit of Brooks v. Norris, unless he had information of the agreement of counsel of the 9th May, 1843 ? The studied vagueness of the affidavit in relation to this most essential point of the time of affiant’s having acquired knowledge of the agreement made by his counsel, is to be construed against him. "VYe learn by the report of the case of Brooks v. Norris, in 11 Howard, that Mr. Sage, whoso name is mentioned in the affidavit, was plaintiff’s counsel in October, 1848, when the writ of error was granted by Chief Justice Eustis. It also appears from Mr. Sage's testimony, that plaintiff was a resident of Louisiana until 1845, and was in this State in the winters Of 1845, ’46, ’47 and ’48. It cannot be admitted without his positive oath of the fact, that he was ignorant during all this long period of whi^f fiqd d°T\& in his land suits in Caddo District Court,

It appears to us, in the absence of such positive oath, a decisive indication of the plaintiff’s approval of the agreement entered into by his counsel, in May^ 1843, that he never instructed his pew pounsel, ip f}ip intepva} Ipefwppft th| taking of the writ of error in Qptober- 1§48, and itg decisiqn }n D.ecepbep tern^ of 1850, to move in the present suit }p the District Court of Caddo,

This implied ratification qf fhe qcts of pl^mtiff’-s counsel,, relieves us of the, necessity of disputing the question of the general authority of attorneys at law,

It is therefore adjudged anfi decreed thqttfie jndg'ffl,eht o,f the District Court be affirmed with costs,


text:
    J. H. Dinkgrave, for the use, &c. v. Vicksburg, Texas and Shreveport Railroad Company.
    The election of a Secretary pro tem. anda resolution that “he shall receive the same salary as is now allowed the Secretary, and shall remain in office until further proceedings,” and a resolution also, “ that the salary of the (former) Secretary be and is suspended from the present time, until the further order of the Board of Directors,” amount to a removal of the Secretary.
    The authority given by the charter to the "Vicksburg, Texas and Shreveport Railroad Company to remove their Secretary at their discretion, is the law between the Company and their Secretary. The tenure of the Secretary’s office is at the discretion of the Company — his employers — and his case is taken out of the general law in relation to the hiring of labor or industry.
    It is a sufficient advertisement of calls for stock, under the 8d Sect, of the Charter of the Vicksburg, Texas and Shreveport Railroad Company, if it be published in the town where the subscriber reside.
    Calls for stock under the Charter, payable respectively, the 1st March, 1854, the 1st December, 1854, and the 1st March, 1855, make but two calls within twelve months. The term of twelve successive months, commencing the 1st March, 1854, was completed on the 28th of February, 1855.
    PPEAL from the District Court of Monroe, Barry, J.
    ÍX Ludeling, for plaintiff and appellant.

      Morrison and MeQuire & Ray, for defendant.
   Buchanan, J.

The plaintiff was appointed on the 25th January, 1853, by the Board of Directors of the Railroad Company, defendant herein, Secretary of the Company. It is admitted by the answer, that the compensation of plaintiff as Secretary, was to he one thousand dollars per annum.

On the 3d May, 1853, the plaintiff being absent, the Board of Directors appointed a Secretary pro tem. to take charge of the books, do all the writing, and attend to all the duties incumbent on the Secretary. And, at the same meeting-, it was resolved by the Board that the Secretary thus elected pro tem. “ shall receive the same salary as is now allowed the Secretary, and shall remain in office until further proceedings.”

And it was further resolved “that the salary of the Secretary be and is hereby suspended from the present time, until the further order of the Board of Directors.”

The present action was brought on the 21st November, 1853, for salary at the rate of $1,000 per annum, from the 25th January, 1853, to November 2d, 1853, being the sum of $770 83-100.

The answer of defendants correctly treats the resolutions of May 3d, 1853, as tantamount to a removal of plaintiff from the office of Secetary of the Railroad Companj'; and denies the obligation to pay plaintiff a salary for a longer period.

Defendants rely upon the 22d Section of their original articles of incorporation (Session Acts 1853, p. 187,) which provides that the Board of Directors shall have authority to remove their Secretary at their discretion.

This Section must be considered as the law between the parties, and takes the case out of the general law in relation to the hiring of labor or industry. The tenure of the office of plaintiff was at the discretion of defendants, his employers.

We doubt the right of the Courts to control or review this discretionary power of the Board of Directors; except it be, in the form of an action of damages, and that only when the removal has been accompanied with oircum-stances injurious to the feelings, or derogatory to the reputation, of the officer removed. The District Court has decided correctly, in restricting plaintiff’s claim for salary to the date of his removal from office.

We have next to enquire into the correctness of the allowance of the amount claimed in compensation. The defendant plead a reconv'entional demand for subscription for stock due by plaintiff. The plaintiff contends that by the terms of the Charter of the Company, Section 3d (Acts 1853, page 183,) the calls upon stockholders for payment of instalments of stock ought to have been preceded by certain advertisements in the public papers, which are not proved to have been made in the present case; and he also contends, that the provision of the Section, that not more than two calls for paymenFof capital stock shall be made in any successive twelve months, has been violated in this instance.

As to the advertisement of calls for stock, we consider that the object of publishing such calls in the newspapers, was to give notice to the stockholders. The plaintiff is a resident of Monroe; and the publication of the call in the Monroe newspaper, which is proved, was sufficient notice to him. We cannot see how he can have been injured by the omission to publish the call in Vicksburg or Shreveport, supposing there was such an omission ; which is not proved.

It is a mistake to consider the calls for stock payable, respectively, the 1st March, 1854, the 1st December, 1854, and the 1st March, 1855, to be more than two calls within twelve months. The term of twelve .successive months, commencing the 1st March, 1854, was completed on the 28th February, 1855.

An intervention has been filed by a party to whom the plaintiff has transferred his claim against the Company since this suit was brought. We find no error in the judgment dismissing this intervention.

Judgment affirmed with costs.


author: Vooohies, J.

text:
    John Bell v. C. C. Hearne, et als.
    A patent issued in the name of Jewries Bell¡ in 1814, and was forwarded to the Land Office at Natch - itoches, where it remained until 1819. It was then delivered to one R. T. N.'by whom it was forwarded to Jolm Bell, at Washington Oity. It was then cancelled, and a patent for the same land issued in the name of Jolm Bell. Held,: that under the evidence, the patent of Jomes Bell, under whom the defendants hold, must prevail against John Bell. Held: also, that the plaintiff by his own act,having putit beyond thepowerof the defendants to produce the patent, parol evidence was admissible to sustain the defendant’s pretensions under the patent of James Bell.

    The moment that a patent has passed the great seal, it is beyond the power of the General Government. It may be avoidedand annulled for mistake or fraud, but the question, so far as it concerns a citizen of the State, must be solved by our Courts.
    from the District Court of Caddo, Laud,, J.
    ii. G. Harper & B. L. Hodge, for plaintiff and appellant.

      Grain SHutt, for defendants.
   Vooohies, J.

The plaintiff claims the ownership of the west half and south east quarter of section nine, in township eighteen, of range sixteen, in the district of lands subject to sale at Natchitoches, Louisiana, under a patent from the United States, dated 22d January, 1850. He alleged that the defendants, Columbus G. Hea/rne, Samuel H. Dockery, and Samuel H. Hea/rne, have illegally taken possession of said land, and refuse to give up the same to his damage $1,000, which he claims, and also prays to he declared the legal owner of said property, and the defendants decreed to deliver the same to him.

The answer of Dockery contains a general denial and an averment, that he and Alfred, Dockery purchased from Columbus O. Hearne, on the 8 th of January, 184-8, the north-west quarter of section nine, in township eighteen, of range sixteen, being a portion of the land claimed by plaintiff, on which he has put permanent improvements of the value of $400, which he claims as a bona fide possessor, in case of eviction.

Columbus C. Hearne, in his answer avers, that his title to the land in controversy is derived from James Bell, the immediate purchaser from the United States; that Robert Smith, acquired the title of the latter at a Sheriff’s sale, under an execution issued on a judgment in favor of St. John, Fdbre & Co. against said Bell, and conveyed the same to John H. Howell and Cadwalder Davis, his vendors, whom he has called in warranty.

In his answer, Robert Smith, the purchaser under the Sheriff’s sale, avers that James Bell, from whom he derived his title, was the legal owner of the land in controversy. He also pleads the prescription of ten years.

It appears from the evidence that the plaintiff and his brother, James Bell purchased the land in dispute from the United States on the same day, the 3d of July, 1839, and that patent certificates were issued in their respective names by the register of the land office at Natchitoches, Louisiana, bearing the same date and the same number. On the 3d of April, 1841, this land was seized and sold at Sheriff’s sale, as the property of James Bell, under an execution issued on a judgment against him in favor of St. John, Fdbre & Co., and Robert Smith became the purchaser thereof. - It appears that James Bell, then a resident of this State, pointed out this land for seizure.

On the 10th of July, 2844, a patent was issued in the name of James Bell, and forwarded to the land office at Natchitoches, where it remained until the year 1849, and was then delivered by the register to R. T. Noel, by whom it was forwarded, through Mr. L. Hunton, of New Orleans, to the plaintiff at Washington City. The testimony of Roland Jones shows that he examined th? records of the land office at Washington and found a patent (cancelled) in the name Of tJames Bell, for the land in controversy, and on the same record a patent in the name of John Bell, for the same land, of a date some years subsequent, He heard John Bell say, « that he had sent James Bell to Louisiana With money to enter land for him (John Bell) and expressed surprise that any land purchased should be in the name of James Bell," John Wilson, the Commissioner of the CeneraiLand Office, testifies that on the 10th of July, 1844, a patent was made out in the name of James Bell, in accordance with the Register’s return, and transmitted to the Register at Natchitoches, the 12th March following, which patent was in the usual form. He declined giving a copy of it for the reason that it had been cancelled, and the record of it was not such a record as contemplated by the Act of Congress, approved April 25th, 1812. “It appears, he says, that on the 22d of June, 1850, the Hon. John Bell filed a duplicate certificate of the purchase, of the Register at Natchitoches, in his favor, for the land in question, upon which, a patent in his name was made out, for the same tend, by direction of my predecessor, and transmitted to him on that day, and the patent in the name of James Bell was cancelled. The date of the cancellation is not given in the record. There is no written representation in reference to the matter on file or record in the General Land Office.”

The plaintiff by his own act having put -it beyond the power of the defendants to produce the patent, we do not think the District Judge erred in overruling his objection to the admission of parol evidence, which was the best, of which the nature of the case admitted. The reasons assigned by the Judge appear to us sufficient to sustain his ruling : “ Because, from the testimony it appeared that the patent issued to James Bell, had been cancelled and delivered, and that it was competent to show by parol the contents of a patent which had been lost, destroyed or cancelled, and farther that it was competent to show fraud by parol; and because the plaintiff was not taken by surprise by the offering of the testimony.”

It is clear that the patent of James Bell, as the oldest, must prevail, unless legally cancelled. A patent is the highest evidence of title, and it has been held, the moment it has passed the great seal, it is beyond the power of the General Government. In the case of Lott v. Prudhomme, et als., 3 R. 295, Judge Bullard, as the organ of the Court, says: “We do not question the doctrine sanctioned by the Supreme Court of the United States, in the case of Wilcox v. Jachson, that whenever the question arises, whether the title to property, which had belonged to the United States, has passed, the question must be resolved by the laws of the United States. But when the property has passed according to those laws, that then the property, like all other in the State, is subject to State legislation, so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States. And further, that in an action at law, the patent from the United States, for a part of the public lands, is conclusive, unless attacked for error or fraud. 18 Peters, 498. It is true that such patent may be avoided and annulled for mistake or fraud, but that question, so far as it concerns a citizen of the State, must be solved by our own laws.” Applying the doctrine recognized in that case to the present, we think it is clear, under the evidence, that the patent of James Bell, under whom the defendants hold, must prevail over that of John Bell.

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


text:
    B. Fitzpatrick, Executor, &c., v. J. M. Williams.
    In authenticating a record, under the Act of Congress of 26th May, 1790, the judge stated “that full faith and credit are due to his acts as such clerk.” Held: This did not satisfy the statute» which required the judge to certify “ that the attestation of the clerk is in due form.”
    from the District Court of Union, B. W. Richardson, J.

      H. B. Essich, for plaintiff.

      Balter, for defendant and appellant.
   Buchanan, J.

This appeal is placed before us upon a bill of exceptions to the reception of a certificate of the Clerk and of a Judge of a Court of Record, of Alabama, to authenticate a transcript of the proceedings in a certain suit in which a judgment was rendered, which is the foundation of the present action.

The clerk certifies under the seal of the court that the foregoing contains a complete and perfect transcript of all the proceedings had in the within or foregoing stated case, as full as remain of record at my office, which will fully appear, reference being had to said record.

The Judge certifies that George B. Boyd is and was at the date of the above certificate, to wit: Nov. 28th, 1851, Clerk of the Circuit Court of the said county of Perry, and that full faith and credit are due to his acts as such Clerk.

The Act of Congress of the 26th May, 1790, (Cordon’s Digest, paragraph 694,) provides as follows: “The records and judicial proceedings of the Courts of any State shall be proved or admitted in any other court of the United States, by the attestation of the Clerk and the seal of the Court annexed, if there be a seal, together with a certificate of the Judge, Chief Justice, or presiding magistrate, as the case may be, that the said attestation is in due form.”

The certificate of the Clerk appears to us to fulfill the requirements of the Act of Congress. But that of the Judge does not conclude in the mode required by that statute; and we have found no precedent which authorizes the substitution of the words “ that full faith and credit are due to his acts as such clerk,” in the place of “ that the attestation of the clerk is in due form.” The Act of Congress in the concluding part of the section cited, says, indeed, following the words of the Constitution of the United States, that a record certified in the manner prescribed shall have “full faith and credit,” in every other State; but that faith and credit is not a fact to be certified by the Judge.

We think the Judge’s certificate defective, and that it should have been rejected.

It is therefore adjudged and decreed that the judgment of the District Court be reversed, and that there be judgment for defendant, as in case of nonsuit, with costs in both courts.


author: Voorhies, J.

text:
    Dickson et al. v. J. Marks.
    To maintain the possessory action, the plaintiff himself or his vendors must have had actual possession of the land as owner for twelve months previous to the disturbance, unless he had been ejected by force and arms. A civil possession at the time of disturbance is sufficient when it has been preceded by an actual possession by the plaintiff or his vendors for one year.
    The legal title to the public lands isvested in the United States Government, and the c-iml possession, of lands accompanies the title. The United States Government has no such actual possession of the public domain as will enable the vendee of the Government to maintain a possessory action for a disturbance of possession, subsequent to the vendee’s purchase.
    Corporeal possession of lands is a residence on or occupation of or cultivation of the same
    To maintain the possessory action, length of time of the possession is immaterial, when the party in possession was evicted by force or fraud.
    Taking possession of land in the absence of the party already in possession, by fencing it in, is not a taking 'oi et armis ; but such taking is perhaps a fraud..
    Force or fraud in taking possession of land is a question of fact to be determined by the evidence adduced.
    from the District Court of Caddo, Laud, J.

      Landrum, for plaintiffs and appellants..

      Grain, Nutt & Eodge, for defendant.
   Voorhies, J.

(Spofford, J. recused himself.)

This is a possessory action. The plaintiffs allege that they have been in the undisturbed and peaceable possession as owners of the land described in their petition since the year 1840, and for the last eleven years next preceding the filing of their petition ; that the defendant has violently and illegally taken possession of the same within the last three months, &c.

They therefore pray that the defendant may he condemned to return to them the possession of said land and to pay them rent and damages.

The answer contains a general denial and an averment that the defendant himself has been in actual possession ever since 1848, &c.

The cause was tried by a jury, and from a judgment rendered on their verdict in favor of the defendant, the plaintiffs have appealed.

A bill of exceptions taken by the plaintiffs’ counsel to the District Judge’s charge to the jury is first presented to our consideration. We do not think the judge erred in charging the jury: That, to maintain the possessory action, the plaintiff himself or his vendors must have had actual possession of the land as owner for twelve months previous to the disturbance, unless he was evicted by force and arms. That a civil possession at the time of disturbance was sufficient when it has been preceded by an actual possession by the plaintiff or his vendors for one year. That the legal title to the public lands was vested in the United States Government, and that the civil possession of lands accompanies the title; that the United States Government had no such actual possession of the public domain as would enable the vendee of the Government to maintain a possessory action for a disturbance of possession subsequent to the vendee’s purchase. That corporeal possession of land is a residence on or occupation of or cultivation of the same. That the length of time of possession is immaterial when the party in possession was evicted by force or fraud. That taking possession of the land in the absence of the party already in possession by fencing it in, wojild not be a taking vi et armis; but that such taking would perhaps be a fraud., and that force or fraud in taking possession of land was a question of fact to be determined by the evidence adduced.

Upon the merits we have carefully examined the evidence and are not prepared to say that the verdifct is erroneous.

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

Re-hearing refused.


author:
VooRhies, J.
      Garrett,

text:
    W. G. Kennedy v. M. F. Mason, Administrator.
    Where the punishment inflicted by an overseer on the slave of his employers is excessive and cruel} by reason of which, the slave dies, the overseer will be liable to his employer in damages.
    from the District Court of Ouachita, R. W. Richardson, S.

      Garrett & Ludeling, for plaintiff.

      McGuire & Ray, for defendant and appellant.
   VooRhies, J.

The plaintiff claims $600, with interest, alleged to be a balance due him on a settlement made with the defendant’s agent on the 12th of March, 1852, for his salary as overseer of the plantation of the late James W, Mason.-

The defendant claims in compensation and reconvention, $1000, averring that her agent retained in the settlement $600, in payment of a negro man named Jim Crack, one of the slaves attached to the plantation, who died in Jan., 1852, in consequence of having been cruelly whipped and beaten by the plaintiff.

The alleged reservation is in these words:

“ On this 12th of March, 1852, John C. C. Sharp, agent for the estate of J. W. Mason, has paid to Warren G. Kennedy, as stated above, the sum of $866 15, which by agreement is applied first to extinguish the balance due on the obligation of said John C. O. Sharp for estate, dated Jauuary 1st, 1851, which is surrendered to John C. O. Sharp, agent, and the balance of the said amount paid is to be imputed as far as it goes to the payment of the wages for the year 1851, said Sharp refuses to pay the balance, $600, until it shall be ascertained judicially, whether the death of the slave Jim Crack was caused by any improper treatment of said Kennedy. March 12th, 1852. Signed in duplicate.

W. G. Kennedy,

John C. C. Sharp.”

The question then to be considered, in order to fix the liability of the plaintiff, is, whether the death of the slave Jim Crackwaa caused by any improper treatment or imprudence on the part of the plaintiff.

The testimony of Ferand and Fife is assailed by the plaintiff’s counsel, as unworthy of credit. If discarded, it is contended by them, it would leave the defendant’s demand entirely unsupported by proof. On the other hand it is also asserted that some of the plaintiff’s witnesses are unworthy of belief, as their testimony is contradictory. Leaving the testimony of the first out of view, although it appears to us corroborated by some of the plaintiff’s own witnesses in relation to the material facts. We think it may be safely assumed that the record exhibits the following state of facts: The slave Jim Crack had runaway and been absent for some time from the plantation, when he was captured and brought back on the 5th of January, 1852, about seven o’clock in the evening, the weather being extremely cold. He was shortly afterwards stripped of his clothes, tied down with his belly to the cold ground, and beaten with a hand-saw and whip ; he remained in that position at least an hour and a half, during which the beating continued with short intermissions. He was then rubbed with a mixture called No. 6, and a dose of castor oil was administered to him. Mr. Butler, whose testimony stands unimpeached, says: “ I saw the boy standing up with a negro on each side, holding him up; when they turned him loose, he staggered, and fell. The negro called one of the others, by name John, and asked him to help him up; the boy helped him up, and took him out of the gate.” It appears he was then conducted to his cabin, and about four hours after, found dead in his bed. Dr. Roane, who made a post mortem examination of his body the next day, about sixteen or eighteen hours after his death, says; “I saw that he had been whipped and considerably bruised on his buttock, and each side of his shoulders. The buttock and sides of the shoulders did not appear much cut, but considerably bruised, from which the blood oozed and stuck to the shirt in a few places. That amount of whipping under ordinary circumstances, would not produce death. I thought it imprudent to whip the boy at that time and under the circumstances. Prom internal and external indications, I think it more likely that death was caused by a congestive chill,’ than by the whipping; but more likely death in this case was caused by a combination of all the circumstances.” Under this state of facts we do not think it is unreasonable to infer that the slave's death was caused by the severity of the punishment inflicted upon him, combined with his exposure to the weather. Had the plaintiff taken proper care of him after he retired to his cabin, he might have averted the unfortunate consequence : but he did not. This was gross negligence on his part.

Our code provides, Article 2295, “Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.” Conceding to the plaintiff the fair reputation which he seems to enjoy as a good and humane overseer, and the approbation of the defendant during the long period be was employed by her as such, yet, we think in this instance, he permitted his passions to mislead him into the commission of an act highly improper and imprudent. The punishment inflicted by him, notwithstanding the opinion of some of the witnesses to the contrary, was excessive and cruel; and, as Dr. Roane says, imprudent “at that time and under the circumstances.” The Civil Code, Art. 173, Provides: “The master may correct and chastise him, though not with unusual rigor, nor so as to maim or mutilate him, of to expose him to the danger of loss of life, or to cause his death.” In Hendricks v. Phillips, 3 An, 618, Mr. Justice Slidell, as the organ of the court said: “ It may be conceded that the planter who employs an overseer, in the absence of orders to the contrary, delegates to him the power of punishment contemplated by law, and necessary for the preservation'of discipline and the public order. But, certainly, the overseer is restricted by the same measure of power which the law has imposed upon the owner; and, if he transgresses it, he violates his duty, and is answerable to his employer in damages, and to public justice which he has offended.”

We therefore conclude that the plaintiff is liable to defendant forthe value of the slave in question as provided for in the reservation made between him and the defendant in their settlement.

It is therefore ordered and decreed that the judgment of the District Court be avoided and reversed, and that the defendant’s plea of reconvention he allowedj to an amount sufficient to extinguish the plaintiff’s claim, and that the said plaintiff pay the costs of both courts.

Garrett,

for a re-hearing, filed the following argument:

The plaintiff by his counsel asks for a re-hearing. Owing to the great difficulty of presenting fully, to this court, a case turning entirely on questions of fact, he thinks that injustice has been done, in as much as the jury and Disiriot Judge with better means to determine a question of fact, decided in his favor. As your Honors have been unable to concur with the jury and District Court,, the plaintiff would respectfully urge that the case be sent back to be investiga*, ted by another jury.

If this application should be refused, on the main question as to the cause of the death ot the slave, we then insist that the decision is erroneous as to the amount of damages sustained by the defendant. It will not he pretended, that she is entitled to more than the value of the slave. The plaintiff contends there is no evidence to show that this slave was worth six hundred dollars. The opinion of the court would indicate that the memorandum at the bottom, of the account and settlement, amounted to an admission on the part of the plaintiff, that this slave was worth that amount. I see that such is the ground taken by defendant’s counsel in the brief filed in this case. If an opportunity had been afforded to plaintiff’s counsel to examine this brief before, the case was submitted to this court, it would not have been difficult to show-that no such admission was ever made by the plaintiff.

An inspection of the account shows that the plaintiff had allowed a large, amount of the wages due him for previous years, to remain in the hands, of his employer. When he was discharged from her service, he of course asked, for a settlement and the payment of the amount due him. Sharp, as defend-. ant’s agent, had the money in his hands. It rested with him to pay plaintiff just so much as he (Sharp) might think proper. Sharp for defendant, admitted in this account and settlement, the amount due to. plaintiff. He paid a part. He refused to pay the balance $600, for the reason stated. He might have refused to pay the whole debt and assigned the same reason. He had the plaintiff in his power so far as the payment of any part of the amount due was in question. The sole object of this paper was to make a settlement, showing the actual amount coming to the plaintiff on his wages, involving transactions extending back several years. When that amount was ascertained, Sharp then paid the plaintiff all except $600, which he refused to pay for the reason assigned. Sharp no doubt intended to retain in his hands an amount fully sufficient to cover the value of the slave. But can it be said that the plaintiff assented to this as a the price of the slave. The agreement does not express that the price of the slave was fixed by either party at $600.

As I was present when this agreement was made, and know that there was no such understanding between Sharp and plaintiff, I must confess that I have been taken by surprise by this argument in defendant’s brief. The ground assumed by defendant in the court below, was, that it was unnecessary to prove a price, and the defendant took a bill of exceptions because the court refused so to instruct the jury. The District Court decided that the value must be proved, 7 Rob. 204.

The defendant’s counsel asked one of his witnesses the value of this slave, who said “ negroes of the size and age of Jim Crack were worth at the time, $900 to $1000, but I don’t know what a runaway negro of that character would be worth.” “It is admitted that the boy Jim Crack had frequently run away previous to the last time, at which time he had been out for more than two months.” And Mrs. Essick, who had “ known Jim Crack since he was a small boy,” declares that with his character and habits he was entirely worthless. Justice would certainly require that your Honors should at least so far amend the judgment rendered, as to allow the question of value of this slave to be determined by the District Court on hearing testimony.

Re-hcaring refused.


text:
    N. Klein v. E. A. Coon and Husband.
    The Writ of injunction may be granted in all cases when it is necessary to prevent one of the parties to the suit from doing an act injurious to the other party, and for which an action will lie. O. P. 80S. Therefore, in an action to annul a judgment, obtained by the wife against her husband, on the ground that it was obtained by fraud and collusion, an injunction will lie to restrain the wife from executing her judgment.
    An affidavit “ that all the facts and allegations in the foregoing petition are true, and those stated to be derived from the information of others, he believes to be true,” is sufficient to authorize an injunction.
    from the District Court of Ouachita, R W. Richardson, J.

      Garrett, for plaintiff and appellant.

      Morrison, for defendant.
   Buchanan, J.

This is an action in nullity of a judgment obtained by a married woman against her husband. The grounds of nullity alleged are fraud, collusion, insolvency, &c. Simultaneously with the citation, the plaintiff sued out a writ of injunction to prohibit the defendant from proceeding in. the execution of the judgment sought to be annulled, until the further order of the Court.

The defendant excepted to this action, and moved to dissolve the injunction on the grounds:

1st. That the law does not authorize an injunction in such a case.

2d. That the allegations of the petition do not warrant an injunction, there being no injury shown.

3d. That the affidavit for injunction is insufficient.

The first and second objections may be considered together.

The scope and operation of the conservatory writ of injunction are very extensive, under article 303 of the Oode of practice. That writ may be granted in all cases when it is necessary to prevent one of the parties to the suit from doing an act injurious to the other party, and for which an action will lie.

If this case were nothing more than a third opposition, claiming a priority or preference upon the proceeds of property seized, undoubtedly the remedy of injunction would be misapplied. But the prayer of the petition is that the judgment, which is the foundation of the execution, be annulled, and that the execution be quashed. Nothing is more frequent in actions of nullity than the conservatory process of injunction, and in no case is it more appropriate. It retains things in statu quo, pending the decision of the issue, and prevents the interest of third persons from being compromised.

As to the third ground of exception, and of the motion to dissolve: The affidavit is in the following words: “ Nicholas Klein makes oath that all the facts and allegations in the foregoing petition are true, and those stated to be derived from the information of others, he believes to be true.” This affidavit is identical in form with that in the case of Livingston v. Dick, 1st An. 323, which was held to be sufficient.

It is therefore adjudged and decreed that the jpdgment of the District Court be reversed; that the exceptions and motion to dissolve injunction be overruled ; and the cause remanded for further proceedings — the defendant and appellant to pay costs of appeal.


author: Spofford, J.

text:
    A. C. McKeen v. H. Kurfust et al.
    The servitude given to the public upon the banks of navigable rivers or streams by article 446 of the Civil Code, is not necessarily confined- to the definition of “ banks,” as given in article 448 of the Oode.
    A cotton shed on the bank of a river, ■which prevented the public from depositing their goods upon the bank in the usual stage of high water, when the principal business of this kind was done, was held, therefore, to be an obstruction to the use of the bank by the public.
    PPEAL from the District Court of Ouachita, B. W. Bicha/rdson, J.
    l McGuire & Bay, for plaintiff.

      Garrett, and J .D. & J. McEnery, for defendants and appellants.
   Spofford, J.

The district judge found that the cotton sheds complained of in the plaintiff’s petition were upon the bank of the river; for his judgment only decrees that the obstructions be removed therefrom, and the public permitted to have the free use of the bank of the river.

In this, which is mainly a question of fact, the evidence of the witnesses sustains his decision.

The defendants’ answer seems to imply that they claim the right to obstruct a part of the bank; for they say that they “ have left a large portion of the bank on their said land, free to be used as a landing, or for any other purpose of public utility.”

They seem to confound'the right of property with the right to exclude the public from the use of it. It may be conceded that they never dedicated to the public the land between Eront street and the water line. But, like all riparian proprietors upon navigable streams, they hold their land in subordination to the general law. The shores of navigable rivers must be left free. C. C. 660, 661. The appellants contend for too literal an interpretation when they say that the public have no servitude upon the shore above the ordinary high water line, which constitutes, strictly speaking, “ the bank.” C. C. 448.

Article 446 guaranties “ the use of the bank of navigable rivers or streams to the public; accordingly every one has a right freely to bring his vessels to land there, to make fast the same to the trees which are there planted, to unload his vessels, to deposit his goods, to dry his nets, and the like. Nevertheless the property of the river banks belongs to those who possess the adjacent lands.”

Here it is evident that by reason of the obstructions complained, of the public cannot “ deposit their goods” upon the bank in the usual stage of high water, when the principal business of that kind is done. The shore is obstructed by the cotton sheds.

We do not think this is a proper case for damages.

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


text:
    State v. E. Gilbert.
    The securities on a bail bond¡resisted payment on tlie ground that the bond did not state the party principal was bound to appear and defend any legal charge against him. The recital and condition of the bond showed that tlie principal had been arrested and was then in actual custody on a charge of the murder of John Jirya/nt. It recited that the principal had been “committed for trial by A. JP. Thompson, Esq.,'1 and that on a writ of habeas corpus he was brought before “ his honor, JR. W. IHchardson, Judge of the 12th Judicial District, who rendered the decree written on the other side of tlie sheet.” The bond concluded with the condition: “Now, therefore, if the said Gilbert shall .well and truly be and appear, in his own proper person, at the court-house in Monroe, on the 1st Monday of May next, being the next term of the 12th Judicial District Court in and for the .parish of Ouachita, and there continue tobe and appear, from day to day and term to tei'm, or to be and appear at any other time and place, as contemplated in the decree of court, when ordered by the court, and continue to appear until discharged by the court,” etc., etc. Held: that it was sufficiently clear that tlie principal had been bound over for trial upon the charge of the murder of John Bi'ya/nt.

    Interlineations made before the bond had been signed does not vitiate it.
    Where it appears that the Sheriff was the only Sheriff defacto, under color of title, his acts must be held good in controversies between third parties.
    When the Judge has determined to admit a prisoner to bail, and fixed the amount of the bond to be given, he may delegate to the Sheriff the power to accept such sureties as are, in his opinion, sufficient. Should any one be aggrieved by his refusal to accept the security tendered, he can then apply to the Judge who is empowered to hear evidence upon the subject.
    The power of the Sheriff to release a .prisoner, upon his giving the proper securities, may be gathered from the order of the.courtand the context.
    Filing a.bailbond in open court, and the order of the Judge to call tlie parties thereto, may becon-sidered.as n-n approval of the bond by the court.
    from the District Court of Ouachita, lí. W. Richardson, J.

      Caldwell, District Attorney. Ludeling, for the parish.

      Garrett, for defendant and appellant.
   Spofford, J.

This record discloses that on the 3d May, 1853, the Grand Jury of the parish of Ouachita found a true hill of indictment against Edward W. Gilbert for the murder of John Bryant; that on the 4th of May the District Attorney called up the case, and on the statement of the Sheriff that a warrant had been issued and placed in his hands, also a copy of the indictment and venire, and that he had been unable to arrest the defendant, on motion, the court granted leave to the prosecuting officer to have the defendant and his securities called out on their bond, which was done according to law, and they failed to answer.

Thereupon came the sureties, and filed in the ease of the State v. Gilbert the following document, which is styled on the record an answer:

L. A. Gilbert, Francis Hasson, J. T. Simmons, Wm. A. Simmons and T. W. Phillips, who are charged as security for defendant in the above entitled case, about being called out on the bond said to be signed by them, show for cause why judgment should not be rendered against them, that

1st. Said bond has not the legal requisites to bind the securities. It does not state that the party principal is bound to appear and defend any legal charge against him.

2d. There are interlineations in the bond, which are material to the validity of the bond, and which have been illegally and improperly made.

8d. Wm. H. Dinkgrave, who acted in taking said bond as Sheriff, was not Sheriff at the time he took said bond, never having taken the oath or given bond as required by law, and being ineligible under the Constitution of the State to act as Sheriff.

4th. Said bond is not a judicial bond, not having been taken according to law.

5th. Said bond is not legal, and there was no authorization to the Sheriff to take and approve the securities to said bond. Appearers pray for trial by jury.

The prayer for a trial by jury was granted, to which the District Attorney excepted.

Proceedings on a forfeiture of appearance bonds and recognizances, are summary proceedings, and are ordinarily to be tried without the intervention of a jury. We think the jury should have been refused in this case, more particularly as all the questions involved are questions of law. But as all the evidence comes up before us in the record, we shall review the case as if it had been tried by the District Judge without a jury, and therefore pass in silence the exceptions taken to the mode of interrogating jurors and to the Judge’s charge.

As the securities, by their answer, did not delay the cause, we are of opinion that the Judge did not err in permitting it to be filed.

The issues to be tried have been made by the securities themselves, and the discussion must be confined to the points made in their opposition.

I. The first point is that the bond does not bind the principal to appear and defend any legal charge against him. The condition of the bond is, “That whereas the above bounden Edward W. Gilbert has been arrested and is now in actual custody on a charge of the murder of John Bryant, deceased, and whereas the said Gilbert was committed for trial by A. F.-Thompson, Esq., and on a writ of habeas corpus was brought before his honor, R. W. Richardson, Judge of the 12th Judicial District Court, who rendered the decree written on the other side of this sheet: now, therefore, if the said Gilbert shall well and truly be and appear in his own proper person, at the court-house in Monroe, on the 1st Monday of May next, being the next term of the 12th Judicial District Court in and for the parish of Ouachita, and there continue to be and appear, from day to day and term to term, or to be and appear at any other time and place, as contemplated in the decree of the court, when ordered by the court, and continue to appear until discharged in due course of law,” etc.

It is sufficiently clear that he was bound over for trial upon the charge of the murder of John Bryant. This is the only fair and reasonable construction of -the bond, and it fully meets the first objection of the sureties.

II. The interlineations were fully accounted for and proven to have been made before the instrument was signed. Indeed this objection seems to have been abandoned.

III. There is no weight in the position that Dirilcgrave was not Sheriff de jure• Conceding that he was not, it is shown that he was the Sheriff, and the only Sheriff de facto, under color of title, and his official acts as such are not absolute nullities, but must be held good in controversies between third persons. Citizens’ Bank v. Bry, 3 An., 633; McInstry v. Tanner, 9 Johnson, 138; Mason v. Dillingham, 15 Mass., 171.

IV. and V. The fourth and fifth objections will be considered together, as the former is too vague to be noticed, unless explained by the latter.

Under these heads it is contended that the power to approve the sureties on a bail bond in a criminal case is a judicial power, incommunicable in its nature; that the Judge could not authorize the Sheriff to approve the sureties, and, if he could, he did not; that he never approved them himself; and, therefore, that the prisoner was improperly discharged, which is urged as a valid reason for discharging the sureties.

The argument upon this point has been pressed with ingenuity and force, and presents the only serious difficulty in the cause.

But, upon consideration, we are unable to concur in the view of the matter taken by the appellant’s counsel.

To decide whether a party accused of crime, is entitled to be admitted to bail, and to fix the amount for which security shall be given before the party is enlarged, require judicial action. But to know whether a man is solvent for a given sum, does not require the exercise of the same learned discretion. We find that, in civil matters, Sheriffs are constantly in the habit of accepting sureties under laws authorizing them to “take bonds;” but laws cannot authorize them to perform judicial functions under the inhibitions of the Constitution.

In fact, from their duties as Tax Collectors and their commerce with the people, Sheriffs have the best possible opportunity to know the pecuniary circumstances of the citizens of their respective parishes.

Upon principle, we see no sound reason why, after the Judge has determined to admit a prisoner to bail, and fixed the amount of the bond to be given, he should not be permitted to delegate to the Sheriff the power to accept such sureties as are in his opinion sufficient. Should any one be aggrieved by his refusal to accept the securities tendered, he can then apply to the Judge, who is empowered to hear evidence upon the subject.

The authorities in our own reports, on. the whole, favor this opinion. In the State v. Jones, 3 An., 15, it was said that “ the granting of bail and determining the amount in which parties shall be bound, are judicial acts. These were performed by the Judge in the present instance. The bond being subject to none of the rules peculiar to recognizances, may be validly executed in the presence of such officer of the court or other person as the judge may delegate to receive it.”

And in the State v. Sewell, 3 Ann., 576, it was said, “the accused was not admitted to bail by the Justice of the Peace, but by the District Judge, who could legally delegate to his clerk, or to a Justice of the Peace, authority to accept the Bond.”

It now Becomes important to observe what order was rendered by the District Judge in this case upon the hearing of the habeas corpus. It is in these words1

“The accused having been brought before me on a writ of habeas corpus, praying to be discharged from imprisonment by order of A. F. Thompson, Justice, etc., upon a charge of murder,of John Bryant, or otherwise, that he may be admitted to bail: it is ordered and decreed that the said Edward, W. Gilbert Be admitted to give bond, with good and sufficient security in the sum of twenty thousand dollars, for his appearance at court, in the parish of Ouachita, on the 1st Monday of May next, or elsewhere, if so required by order of said court, at any other time or place, and to be and appear at such times and places, from term to term, until discharged in due course of law.

“ It is further ordered that the said bond be taken by Wm. H. Dinkgrave, Sheriff of the parish of Ouachita, and in default of the accused giving said bond, that he be conveyed by said Sheriff to Vernon, in the parish of Jackson, (there being no safe jail in this parish,) and delivered to the Sheriff of said parish, etc.

“Done and signed this 2d day of April, 1853.

R. W. Richaedson, Judge.”

The return of the Sheriff is endorsed :

“Received the within decree and order of the court on the 2d day of April, 1853, and on the same day, after having received a bond from E. W. Gilbert, with L. A. Gilbert, J. T. Simmons, Francis Hasson, W. A. Simmons and T. W. Phillips as security for the sum of $20,000, for his appearance at the 12th Judicial District Court of Ouachita, at the trial of the within named suit, at the May term of said court, and from term to term; discharged the said E. W. Gilbert from custody, and return the within bond in court.

Signed, W. H. Dinkgrave, Sheriff.”

The bond is marked “Piled May 2d, 1853.”

As we have seen, the indictment was found on the 3d May, and the bond forfeited on the 4th.

The order of the Judge that the bond “be taken”by the Sheriff, when construed in commotion with the entire context, we think conferred upon the Sheriff the power of releasing the prisoner as soon as he should give sureties that seemed to him ample for the sum of $20,000.

If any ratification of the bond were required, the filing in open court, and the order of the Judge to call the parties thereto, seem to us to constitute an approval of the same by the court'.

As was said in the case of the State v. Wyatt, it is not for the surety to dispute his own sufficiency.

We are of opinion that the bond was taken according to law, and that the sureties are bound.

The judgment is, therefore, affirmed, with costs.


author: Spoeford, J.

text:
    B. Davis v. Barham, Sheriff, et als.
    In tliis case the judgment creditor sued the Sheriff for misfeasance in office, in counselling the judgment debtor to remove his property to avoid a seizure. The debtor was called to testify on behalf of the Sheriff, and on his voire dire stated: “ I believe I have an interest in this case. I feel just this way; I never did owe Dams (the plaintiff) the debt, and he never can collect it of me. If Col. Bw-Jiam (the Sheriff) has it to pay, I shall feel in honor bound lo. help him. I should only feel legally bound to pay Col. Ba/rham the debt and interest in case of Dct/ois v. Myself.” Meld: that the witness was incompetent.
    PPEAL from the District Court of Morehouse, Richardson, J.
    jt.L Parsons, for plaintiff and appellant.

      McGuire & Bay and Hunter, for defendants.
   Spoeford, J.

The present action has been brought against Thomas H. Bar-ham, Sheriff of the parish of Morehouse, and the sureties on his official bond for his alleged neglect and malfeasance in office; he is charged with having neglected to execute a writ of fieri facias, issued under a judgment of the present plaintiff against Dixon Hall, and placed in his hands with proper instructions, when there was ample property, subject to seizure, to pay the execution, and with having, in violation of his official duty, advised and aided the defendant in execution, to remove the said property beyond the jurisdiction of the Court, which he did, thus defeating the plaintiff in an attempt to make his money.

The only defence really set up, under the plea of the general issue, is that the property which has been removed, was not liable to seizure under a judgment against Dixon Hall, but belonged in good faith, and under just title, to Hall’s wife and children.

No exception was taken to the petition on account of the generality of its allegations. But, on the trial, a bill of exceptions was tendered to the ruling of the District Judge, who permitted the plaintiff to prove by W. T. Hall, son of Dixon Hall, what property was in possession of the latter, in the parish at the time the execution issued, and was removed to Arkansas by his father, defendant in execution, under the advise of Barham, Sheriff. The objection was that the property was not distinctly specified in the petition. The petition necessarily implies that it was all movable in its nature, and'by reasonable inference, that some of it consisted of slaves. Their names and number are not particularized. The only object of requiring a more specific designation of the property would be to prevent the Sheriff from being surprised in his defence ; and as there is ample evidence before us that he was not surprised, we see no occasion to disturb the ruling of the District Judge. This very witness, amongst other things testifies as follows: “ the morning after the execution issued in this case I had some conversation with Col. Barrham; he told me that he had told my father to have the negroes out of the parish by eleven o’clock the night before, as he was bound to be there at that time to make a seizure; ho also exhibited to me at that time a list in the handwriting of Mr. Parsons,” (the counsel for plaintiff in execution) “ directing what negroes were to be seized.”

There is no pretence that the slaves named by this witness as having been removed from the State, under the Sheriff’s advice, to elude a seizure ho said he was bound to make, were not upon the list furnished to the defendant, and he could not, therefore, have been surprised by the evidence.

The other hills of exceptions taken by the defendant’s counsel have not been insisted on in argument, and we shall find it proper, under our view of the facts, to discuss but one of those presented by the plaintiff.

The case of Elizabeth Hall v. Hill, McLean & Co., reported in 6th An. 746, furnishes the key to this controversy. In that suit the identical title now interposed by the Sheriff as a bar to this action, and which had been recognized by the District Court as valid, on appeal, was finally decreed by our predecessors to be a simulation and to confer no right of property upon Mrs. Sail, the plaintiff in injunction. Thomas S. Barham, was one of the sureties on her injunction bond in that case, and, as such was by law a party thereto, and was actually decreed to pay $100 damages as a penalty for his imprudence.

It is very material to notice that this decree of the Supreme Court was rendered at Monroe, at the October term 1851; that the present plaintiff’s attorney had intelligence of this result on the 20th October, and, on that day, procured his writ of execution from the Clerk’s office in Bastrop; that, on the 21st, he had an interview with the Sheriff, Barham, and informed him of what he intended to do, and at the same time told him that the suit of Elizabeth Hall and Husband v. Sill, McLean & Co. had been decided against her: on the evening of the same day (the 21st) he placed the execution in the hands of the deputy Sheriff with a written memorandum of the property to be seized and the property not to be seized, and directed him to make a levy at once.

It is further to be noticed that the Sheriff interposed no. objection to making a seizure according to the instructions of the plaintiff’s attorneys, and did not ask a bond of indemnity, although they desired to know if he would require one.

The evidence of Mr. W. T. Sail shows that most of the slaves named in the deed of reconveyance from A. G. Sail to D. Sail, Sr., (to be noticed hereafter) were in the parish at the time the execution issued; that some' of them were removed from the parish after the execution issued, ten of whom he mentions whose aggregate value he estimates at $6,500, which is more than the plaintiff’s judgment amounted to ; that they were removed in consequence of,, and about the time, the execution of Davis v. Hall was issuedthat they were removed to Arkansas and there sold. Then follows the remarkable statement already quoted, that the morning after the execution issued, Col. Barham told him that he had told his father, to have the negroes out of the parish by eleven o’clock the night before, as he was bound to be there at that time to make a seizure; and that he then showed witness the list of property to be seized, prepared by plaintiff’s counsel.

The Sheriff stated to another attorney for the plaintiff, that, with attorneys* he was not disposed to exact an indemnity bond, but would seize whatever property they pointed out, upon the assurance that they would hold him harmless.

This witness further stated that, on the morning of the 22d Oct. he met Col.. Ba/rham, and asked him what he had done on the execution : he said he had; gone up the night before and that morning, but got there too late ; the negroes, had been removed.

The witness also says that, upon consultation with the other attorney on the’ morning of the 22d, they could not ascertain that there was any other property to be seized except the slaves Peter and Gus, which were seized accordingly.

The Sheriff’s return upon the,/?, fa. in Davis v. Hall, signed by Thos. N. Barham, officiary, is as follows : “Rec’d the within October 21st 1851, and on the 22d day of the same month, I seized upon one negro man, Peter, of dark complexion, aged about 80 years, said negro having been previously seized under ¡if. fa. William S. Yancy v. Dixon Hall, Sr., and the said negro advertised to be sold on the first Saturday in December, 1851; at the same time gave notice of seizure and took bond from the defendant for the delivery of said negro, with Dixon Hall, Jr. and E. B. Barnes, as security; on the 80th day of same month seized upon one negro boy named Gus or Augustus, aged about 14 years, advertised to be sold the first Saturday in January, 1852, and before sale, as above mentioned, the same was enjoined.”

It is in evidence that Dixon Hall, the defendant in execution, had the recorded title to. the slaves in question, in his own name, at the date the execution was issued. He had convoyed them to his brother, A. G. Hall, in Mississippi, in March, 184S, and brought them back in Moreheuse parish, in March, 1849, both deeds being of record in the proper office. The fact that he had them removed, shows that he also had possession. It is otherwise proved that he had the control and management of the property.

The only pretended adverse title was that of his wife and children, which had been adjudged a simulation in a suit to which Barham was a party, and of the result of which ho was advised.

Under these facts we are of opinion that the Sheriff cannot rightfully avail himself of the defence that Mrs. Hall was the real owner of the slaves removed by his advice. The action is an action in damages for a malfeasance as well as for a non-feasance, for acts of commission as well as of omission. If the Sheriff had merely refused to seize on the ground that the property did not belong to the judgment debtor, the case would present a different aspect.

But he did not so refuse; on the contrary, he misled and deceived the plaintiff’s counsel into a belief that he would seize; he did not ask for an indemnity bond; he admitted, even to the defendant in execution, that he was “ bound to make a seizure and to avoid doing what he acknowledged to be a duty, he forgot his station, betrayed the trust confided to him by the law, counselled the clandestine removal of the property beyond his bailiwick for the purpose of obliging a friend, and furnishing himself an apparent excuse for official neglect and confederated with the judgment debtor to aid him in the removal, by notifying him of the hour to which he would postpone the levy in furtherance of .their common design.

The defence that the property was not liable to seizure is thus rebutted by the Sheriff’s own conduct and admissions.

The only evidence in support of this defence worthy of a moment’s consideration, is that of the other party to the alleged conspiracy, the judgment debtor himself, who had the candor to testify: “ I don’t know when the execution in Davis v. Hall issued, but we found out that we were a little lame and started before the battle.” It seems that one of the grounds of the decision in Elizabeth Hall v. Hill, McLean & Co., 6 An., was that the plaintiff failed to prove the reality of the sale from her husband to his father in 1839, although the case was closely contested and every attempt was made to procure this proof.

As a dernier ressort, the husband himself, who could not be a witness for his wife or children, was brought forward in this suit as a witness for the Sheriff, to supply the utter deficiency of other testimony than that emanating from his own lips.

Now, even if he were a competent witness for this purpose in this cause, it is evident the Sheriff’s misconduct in colluding with him to remove the property beyond the reach of process, has caused the plaintiff to lose an opportunity of making his debt, and damaged him to that extent; for, had he made the seizure as he undertook to do, and could have done, the sale could only have been stayed by another injunction, sued out by Mrs. Sail, on the trial of which her husband could not be a witness, and which must, therefore, have shared the fate of the injunction against Hill, McLean & Co.

After the preceding remarks, it is not, perhaps, essential to pass absolutely upon the question of the competency of Dixon Hall as a witness in this cause, but our impression is that he should have been rejected, and that the bill of exceptions to his admission was well taken.

Upon his voir dire he testified as follows: “ I believe I have an interest in this case. I feel just this way: I never did owe Davis the debt, and he never can collect it of me. If Ool. Barham, has it to pay, I shall feel in honor bound to help him. I should only feel legally bound to pay Col. Barham the debt and interest in case of Davis v. Myself."

The case of Brumgard v. Anderson, 16 L. R. 343, where the witness was held incompetent, seems to be an authority in point.

The Code (Art. 2260, O. C.) declares that the witness must not be interested either directly, nor indirectly, in the cause. It is a curious matter in legal history, that the terms “nor indirectly” appear to have been overlooked and practically repealed by a course of precedents probably too numerous to be now disturbed. The adjudicated cases, adopt the English rule that the witness must be directly interested in the event of the suit, and be called to support that interest, or he is not disqualified. It matters not how trivial the interest may be, if it be direct, pecuniary and dependant upon the result of the suit. This seems to be the upshot of the cases.

In the matter before us, the witness swears that he believed himself interested. He gives a portion, at least, of the grounds of his belief. He acknowledges both a moral and legal obligation to pay Ba/rhemn, the Davis debt and interest, in case this suit should result in fixing liability upon Bwrha/m. But he emphatically denies that he ever did owe Demis, or that Davis can ever make him pay.

The testimony shows that the witness has the control of means which he thinks he can screen from his creditors at his will, which he intends always to screen from Davis, but will unlock to indemnify his friend, the defendant in this case, if he is condemed by our judgment.

Admitting these facts to be true, we do not think the witness’ opinion touching his interest in the event of the suit was erroneous. If it was not, he should have been rejected.

Leaving his testimony out of view, there is no foundation for the verdict of the jury, which then loses all its weight.

The fact that the slaves seized in the suit of Hill, McLetin & Co., have been brought back from Arkansas,-since the pretended sale there, shows that their proprietor did not intend that Barham, who was a surety on the injunction bond in that case, should suffer.

Whether he will be permitted to suffer by those whom he has befriended in the matter out of which this-suit grows,, depends upon the sincerity of their professions.

Our duty is plain. Disposed as we are to protect ministerial officers, in the honest discharge of their functions, against captious and unjust suits, we are also bound to hold them to a rigid measure of responsibility, when they wilfully obstruct the course of justice. The sharp lessons which Courts are too often compelled to teach, concerning fraud and simulation, will be read to little purpose, if they shelter their own officers from liability for lending their potent aid to the devices of debtors, who having the means, are determined not to pay their debts.

It does not appear that any thing came into the hands of the plaintiff from the seizure of the slaves Peter and Gus; if any thing should hereafter be made, it will enure to the benefit of those who may pay the judgment in Davis v. Sail. It is, therefore, ordered, that the judgment of the District Court be reversed, and the verdict of the jury set aside; it is further ordered, adjudged and decreed, that the plaintiff, Benjamin Davis, recover of the defendant, Thomas N. Barham, Sheriff of the Parish of Morehouse, the sum of three thousand two hundred and thirty-six and 23-100 dollars, with interest thereon, at the rate of eight per cent, per annum, from the 1st day of October 1843 till paid, and the costs of this suit in both Courts. It is further adjudged and decreed, that the said plaintiff recover of the sureties on the official bond of the said Barham, Sheriff, the following sums, to-wit: of the succession of William A. Williams, herein represented by Mary B. Garrick, administratrix, the sum of three thousand dollars; of A. J. Bolo, the sum of four hundred dollars; of Oliver Wilder, the sum of four hundred dollars; of B. B. BillingsVy, the sum of five hundred dollars; oí John W. Head, the sum of two hundred dollars; and of the succession of A. J. Lee, herein represented by Mrs. Lee, his widow and adminis-tratrix, the sum of five hundred dollars — the said sureties, or either of them, upon payment of any part of the judgment herein rendered against them to be subrogated pro tanto to the rights of the plaintiff herein against their principal, the said Thomas N. Barham; and it is further ordered that this judgment be credited with any moneys which shall have been made by the plaintiff prior to its payment by defendants, .out of the seizure of the slaves Gus and Peter, in the suit of Davis v. Hall, but this clause to be without prejudice to the right pf the plaintiff to an immediate execution of the present judgment.


author: Spoitord, J.

text:
    State v. Gilbert.
    The party to an appeaxamce bond will not be bound where the requisites of the law have not been observed in taking at.
    from .the District Court of the parish of Jackson, •-, J.

      Caldwell, District Attorney, for the State.

      McGuvre & Bay, for defendant and appellant.
   Spoitord, J.

The defendants have .appealed from a judgment against them upon a forfeited appearance bond.

The Clerk certifies that the record contains all the documents filed, proceedings had, and evidence adduced, in the case.

The defendants opposed the forfeiture of the bond in the Court below, on the special ground that there was no order of Court authorizing the Sheriff to take the bond, and that it was not taken by the Judge, or by any person duly authorized.

The bond is attested by the Deputy Sheriff, and does not appear to have been taken in open Oourt.

We find no order of the Court admitting the accused to bail, fixing the amount of the bond to be given, or authorizing any person to take it.

A diminution of the record has not been suggested.

This matter has been the subject of so many adjudications, that it is surprising to find the most palpable requisites of the law neglected by officers who are charged with the duty of securing the appearance of persons accused of crime. State v. Clendennin, 6 An. 744. State v. Longuineau, 6 An. 700. State v. Harper, 8 An. 598. State v. Hays, 4 An. 59. State v. Jones, 8 An. 10. State v. Sewall, 3 An. 575.

It is ordered that the judgment of the .District Court be reversed, and that the State take nothing by its motion.


text:
    W. B. Nicholson v. Sherard & McDorman.
    Where a party to a suit is required to answer interrogatories in open court, the questions should be read severally to him in open court, on the day fixed for the purpose by the order of the court; he should dictate his answer to the Clerk, that they may be put of record, in the presence of the Judge and of the opposite party.
    Therefore, where the answers were written by the counsel of the party interrogated, out of court, and brought into court, and sworn to in open court, and leave obtained to file them without being read to the court, and without the knowledge of the opposing counsel, Held: that they were not admissible in evidence.
    C. C., 487, 2481, 2487.
    from the District Court of Claiborne, Drew, J.

      McGuire & Ray, for plaintiff and appellant.

      E. J, H. Jones, for defendants.
   Buchanan, J.

Suit upon a joint and several note of defendants, dated 17th November, 1849, due 1st January, 1851, and payable to J. T. Wafer, or bearer.

Defence: failure of consideration; that the note was given for certain lands which defendants purchased of one James T. Wafer, but to which the vendor had no title; and that defendants have been compelled to purchase the lands from another person.

The first question to be decided is the admissibility of defendants’ answer to the interrogatory annexed to plaintiff’s petition. Plaintiff prayed that defendants should answer the interrogatory in open court. This was not done. The answers were written by counsel of defendants out of court, and were brought into court by the defendants, and sworn to in open court, and leave obtained to file those answers, without being read to the court, and without the knowledge of plaintiff’s counsel.

By answering in open court, we understand that the questions should be read severally in open court to the party interrogated, who shall thereupon dictate his answers to the Clerk, the recording officer of the court, that they may be put of record, in the presence of the Judge and of the opposite party, on the day fixed for the purpose by the order of court; or if there has been no order, as in the present case, after notice to the party interrogating. We think the motion to strike out the answer to interrogatory should have prevailed.

There appears to be no ground whatever for the defence set up. It is proved by their own witness that defendants have been in the uninterrupted possession of the land mentioned in their answer ever since the date of the note sued on, to wit: the year 1849. One of the defendants, McDorman, has thought fit to purchase the same land twice over since that time from other persons; first, from James Grisom, in February, 1850; and secondly, from E. V. Ludeling, in November, 1853. But it has not even been attempted to be shown that either Grisom or Ludeling had a superior title to James T. Wafer, the payee of the note sued upon, nor indeed any title whatever. The defendants have proved a conveyance from Wafer to themselves of the same date as the note, November 17th, 1849. This conveyance, although the parties chose to give it the form of a penal bond, was, according to our law, a title between the parties. C. C., 2431, 2437.

Followed, as it has been, by an uninterrupted possession in the vendee, continuing to the present moment, it would be as inequitable, as it is unsanctioned by law, to absolve the defendants from the payment of the price.

The defendants have been under the strangest misconception of their legal rights. They have made out no case either for the rescission of the sale or for requiring security before paying the price — remedies given by law to the purchaser under the vendor’s obligation of warranty. They do not even ask for either of those remedies. But they have got the property, and they imagine that they may also keep the price, because they have since purchased the same land from other persons. This case is not within the purview of Article 487 of the Code, because the acquisitions which defendants have made from Ludeling and from Grisom are not proved to have been made to supply a deficiency in the title which they had previously acquired from Wafer.

Judgment of the District Court reversed, and it is adjudged and decreed that plaintiff recover of defendants, in solido, two hundred and fifty-four dollars, with legal interest from judicial demand, 1st March, 1854, until paid, with costs in both courts.


author: Lea, J.

text:
    Hair & Labuzan v. N. T. McDade, Tutrix, &c.
    Where a debt for costs is merged in adjudgment against the principal, the surety when sued can only prescribe against the judgment.
    A tutrix has a right to administer upon the estate of her minor children, without taking out letters of administration, unless required to do so by the creditors.
    from the District Court of Bossier, —--, J.

      Landrum, and Grain & Nutt, for plaintiffs and appellants.

      Looney, for defendant.
   Lea, J.

(SroiroKD, J. recused himself, having been of counsel.)

This is a suit against Nancy T. McDade, as tutrix of the minor children of James G. MaDade, and as administratrix de son tort of his succession, for the recovery of the costs of a chancery suit instituted in the State of Alabama, in -which pro • ceedings the said McDade became surety on an injunction bond, the condition of which was, that in the event that an injunction sued out by one Matthew Ldbrouse, enjoining the prosecution of a suit against him by the plaintiffs, should be dissolved, they, the sureties, would be liable for the payment of “ the sum so enjoined,” and all such damages, costs, &c., as the defendant might sustain by the wrongful suing out of said injunction, and all costs of the chancery suit. The injunction was dissolved by a final decree rendered therein, and a judgment for the costs (amounting to $536 32) rendered against Labrouse, the principal on the bond. The' plaintiffs allege that they have made ineffectual attempts to collect the amount of this judgment for costs from Labrouse, the principal in the injunction bond, and they now ask for judgment condemning the defendant to pay the same.

For answer, the defendant pleads the general denial, and further adds the plea of res adjudicata, and the prescription of three, five and ten years.

The plea of res adjudicata is not applicable to this case. The costs of the suit in chancery formed no part of the plaintiffs’ demand in the suit referred to, nor does the compromise appear to have embraced any matter of indebtedness not set forth in the petition. The claim for the costs incident to the chancery suit, has no necessary connection with, and is not embraced in the judgment which was the basis of the former suit against McDade. The liability of McDade's representatives in this suit is dependent exclusively upon the nature of his obligation as surety on the injunction bond above referred to. The only real question to be determined is, whether the plea of prescription should be maintained. All the objections incident to the injunction bond, with the exception of the costs of the chancery suit, have been satisfied. The case stands before us precisely as if McDade had boon surety on a bond given exclusively for the costs of the chancery suit. Upon the dissolution of the injunction by a final judgment, McDade might have been sued for the amount of these costs as surety. No judgment was rendered against him in the decree dissolving the injunction, but such a decree was rendered against his principal, and though, as surety, the defendant is entitled to oppose all exceptions belonging to the principal debtor which are inherent to the debt, yet as that debt had become merged in a judgment against the principal, the plea of prescription is no longer available to the surety, except as against a judgment. See 12 Rob. 577, Irish v. Wright ; also, 6 Annual, 109. The transcript of the record, containing a certified copy of the bond, together with the taxed bill of costs filed in evidence, without objection, sufficiently establish the plaintiffs’ right to recover the amount of costs actually incurred, viz: $586 32, with interest from judicial demand, say 24th July, 1853. The defendant is not an administratrix de son tort. As tutrix, she had a right to administer upon the estate belonging to her minor children, without taking out letters of administration, unless required so to do by creditors. See Bryan v. Atchison, 2 An. 462. She admits, however, in her answer, that she is administratrix of the succession of her deceased husband.

The costs of the transcript filed in evidence, forms no part of the costs of the injunction suit, but may be properly taxed as incident to this suit.

It is ordered, that the judgment appealed from be reversed ; and that the plaintiffs, Hair and Labuzan, for the use of George B. Saunders, do have and recover of the defendant, Mrs. Nancy T. McDade, as tutrix of her minor children, and as administratrix of the succession of James G. McDade, the sum of $536 32, with interest thereon at the rate of five per centum per annum from the 24th day of February, 1853, till paid, with costs in both courts ; the said judgment to be paid in due course of administration.