text:
    A. Bonnafe & Co. v. John and E. M. Lane.
    íhe recordaron of* a decree rendering a foreign judgment executory in the office of recorder of mortgages creates a judicial mortgage. C. G. 3289, 3294, 3314, 3330, 3331. C. P. 545.
    The object of registration is public notice, with reasonable certainty of the substantial particulars of the mortgage; and when this is done the purposes of the law are satisfied. It is notrequired that the judgment or mortgage should be recorded at full length in the mortgage office.
    Where a judgment rendered in a common law State against two persons does not state that it is not rendered against them in solido, a subsequent recognition by a party of its solidarity, will sanction that interpretation of the judgment.
    A stipulation between A. andB. for the befiefit of third persons, even before their acceptance, cannot be annulled without the consent of A. and B.; and at any time before it is annulled, those third persons may signify their acceptance, and avail themselves of it. O. C. 1884, 1886. G. £. 35.
    Where a stipulation has been made for the benefit of several third persons, it creates on the part of the debtor a joint obligation to them, and no one of them can avail himself of it without making the others parties, so that they may signify their acceptance or refusal. The stipulation is for the benefit or those who do accept.
    A mortgage bears on the estate but not on the gathered crops, unless the creditor has made a seizure before the crop is gathered. C. C. 457.

      APPEAL from the District Court of Madison, Snyder, J.

      H. Short, for plaintiffs.

      Stockton and Steele, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiffs allege in their petition, that in 1845 they obtained a judgment in the Circuit Court of the United States for the Southern District of Mississippi, against John Lane and W. W. Chapman in solido, for $2818 86, and costs of suit amounting to $159. That on the 20th December, 1845, this judgment was made executoiy, by a decree of the District Court for the parish of Madison, against John Lane, who then owned a large estate in said parish. That a copy of the order was recorded in the mortgage office on the 30th December, 1845. That the judgment so made executory acquired by registration the effect of a judicial mortgage on John Lane’s estate there situate. That in 1846 John Lane sold his said estate, being a plantation and slaves, and the stock &c., attached thereto, to E. M. Lane, who by,the notarial act of sale took the estate, subject to certain enumerated mortgage debts, including that due to the plaintiff, and also bound himself to apply the products of the estate to their satisfaction. That he has realised $25,000 from crops; but has paid no part of John Lane’s debts. That Edward Lane has thus become bound to pay the plaintiffs. The prayer of the petition is, that John and Edward M. Lane be condemned in solido’ to pay the amount of the judgment, interest and costs. That the plaintiffs be declared to have a judicial mortgage upon the estate. That it be sold to satisfy their claim; and that they have leave to issue execution against Edward M. Lane for the deficit, if any there might be, after the sale of the mortgaged property.

John Lane being an absentee, a curator ad hoc was appointed to represent him, who pleaded a general denial. Edward M. Lane appeared and pleaded a general denial. He also answered, that should the plaintiffs succeed in fixing a liability on him in consequence of the purchase from John Lane, they are only entitled to come in concurrently with the rest of the creditors of John Lane, mentioned in the act of sale.

In the court below there was a judgment in substantial accordance with the prayer of the petition. The curator and Edward M. Lane have appealed.

The points made by the appellants will be considered in the order in which they were presented in argument.

1st. The district court erred in deciding that the recording of an order of the judge, granted in chambers, decreeing the execution of a foreign judgment, if made in the proper mortgage office, created a judicial mortgage, without any record of the foreign judgment itself.

The article 3289 C. C. declares, that the judicial mortgage is that resulting horn judgments; and in the article 3294 it is said, a mortgage results from- judgments rendered in other States of the Union, or foreign countries, only in so far as their execution has been ordered by a tribunal of this State in the manner prescribed by the law. The Civil Code had required that judicial mortgages should be recorded in the mortgage office, in order to prejudice third persons. Art. 3314. But the Code of Practice enacts that “definitive judgments, though entered on the docket of the judgments of the court, shall not hereafter affect the property of the" person against whom such judgments have been rendered, all laws to the contrary notwithstanding. Such judgment must be recorded at the office of mortgages, in order to give the party a judicial mortgage pursuant to the provisions of the law.” In article 3330 C. C. it is said, to obtain an inscription of a public act or judgment, the creditor, either in person or by an •agent, shall present an authentic copy of .the act or judgment to be recorded, to the register of mortgages of the place where the inscription is to be made.

In the present case the judgment of the Circuit Court of the United States was not recorded verbatim. The plaintiffs furnished to the recorder a certified copy of the decree of the district court rendering the judgment executoiy. This decree is entitled as in the suit of A. Bonafé and another v. John Lane; it states that it is rendered upon a record and judgment from the United States Circuit Court in the State of Mississippi, which it decrees executory in this State; it directs a writ of seizure and sale to issue against John Lane for the sum of $2818 86, with interest at eight per cent from the 9th day of May, 1845, until paid, and $159 and the costs of the executoiy proceedings.

By recording this decree the public was informed of all the essential particulars of which they would have been informed if the Mississippi judgment had been recorded verbatim,. It has never been held, that to make a valid inscription .of a conventional mortgage, an entire copy of the authentic act in which it is granted should be spread upon the public record. The object of registration is public notice, with reasonable certainty, of the substantial particulars of the mortgage; and when this is done the purpose of the law is satisfied. Suppose a mortgage creditor should go to the mortgage office, and verbally state to the recorder all the essential particulars of the authentic act of mortgage or judgment under which he claimed, and the recorder, instead of requiring a copy of the act or judgment, as he might do, (art. 3330, 3331,) should inscribe the particulars as stated ; this would be good. Such is the spirit of what we held in Ells v. Sims, 2d Ann. 254.

2d. The district court erred in rendering a judgment against John Lane, (and upon that judgment a judgment against Edward M. Lane,) for more than $1409.

If we were to interpret the Mississippi judgment as we would a judgment rendered in like terms in this State, we might, perhaps, hold that it was not a judgment in solido against John Lane and his co-defendant in that suit, A. W. Chapman. Whether we would be permitted to take notice of the meaning and legal effect of such a judgment in Mississippi, as a matter controlled by the common law, and under that system condemning Lane and Chapman in solido, is a point which we need not decide. For the language used in the act of sale is a sufficient recognition of the correctness of the legal interpretation put upon the Mississippi judgment by the decree of the district judge. The same observation applies to the objections raised as to the interest and costs.

3d. The district court erred in rendering a judgment against Edward M. Lane personally upon his promise made to John Lane, that he would apply the income of the property purchased to the payment of his debts due to the Merchants’ Bank of New Orleans, to John C. McLemore, to Geo. T. Williams, and to Bonafé & Co.

Under this point the counsel for the defendants present various propositions. The first is, that without the stipulation in the act of sale, the crops when gathered by Edward M. Lane would have been absolutely his property. That the stipulation did not have the force of an obligation as between Edward M. Lane and the creditors, until it was accepted by the creditors; therefore, any crop gathered prior to the acceptance of the stipulation was Edward Lane’s property; and all the crops claimed by the plaintiffs were gathered before the institution of this suit, which is the only acceptance by Bonafé and Co.

Before considering this proposition, it is proper to direct our attention to the terms of the instrument under which the plaintiffs claim.

It is a notarial deed, executed by John Lane and wife on the one part, and Edward M. Lane on the other, in which John Lane declares, that for the consideration thereinafter expressed he has bargained, sold, delivered Sec., unto Edward M. Lane purchasing, accepting, acknowledging possession Sec., all the following described property. The act then enumerates certain tracts of land in the parish of Madison, amounting to upwards .of nin.e hundred aci’es, some sixty slaves besides their children, whose names are not designated, and all other slaves attached to the plantation whose names may have been omitted, with the live stock, implements &c.; to have and to hold to the said vendee &c., free from all mortgages and incumbrances except those thereafter expressed. Then comes the following clause: The condition for which this sale is made is declared to be as follows, viz.: the sum of $1000 cash in hand paid by the said Edward M. Lane to the said John Lane, the receipt whereof is hereby acknowledged, and the said Edward M. Lane takes the above described and sold property subject to and liable for the following mentioned debts of the said John Lane, to wit: A number of mortgage or judicial mortgage debts are then enumerated; that to the plaintiffs being mentioned last. After which is the following clause, ‘fit being distinctly understood and declared by the parties to this act that the said Edward M. Lane does not in any manner become personally responsible for any part of any of said mortgage debts, but only that the property hereby sold shall remain liable for them, and the products thereof shall be applied to the payment and satisfaction of the same.”

Whatever the secret intentions of the parties may have been, we shall, in the interpretation of the deed, assume that the transaction was real and in good faith.

The plaintiffs act in affirmance of the contract; and the defendants do not pretend, nor would it lie in their mouths to say, that fhe deed was simulated, or made to defraud John Lane's creditors.

What then is the legal effect of the deed between the parties themselves. Undoubtedly the covenant to apply the products, by which we understand the crops and fruits of the plantation, to the payment of John Lane's creditors, was a part of the consideration of the sale. It was a covenant for the benefit of the vendor, who was personally bound for those debts; and to say that, under this covenant, as between the vendor and vendee, the latter could divert any of the crops to his own use, until the enumerated creditors of the vendor were fully paid by the application of the crops, is utterly inadmissible under a reasonable and fair interpretation of the covenant. And this interpretation is not weakened by considering the vendee’s position, as the purchaser of land encumbered by mortgages in favor of those creditors. The payment of those creditors was, therefore, a matter in which vendor and vendee were mutually interested : the one to discharge his personal liability, the other to relieve his property from encumbrance

Such being the intention of the contracting parties, and their duty inter se, how does the matter stand as to the creditors. Here is a stipulation for their benefit. The covenant which Edward made with John Lane was to apply all the crops to the payment of the enumerated debts. Now, although those creditors were not parties to that contract, the law authorises them to avail themselves of its benefit. A person may also in his own name make some advantage for a third person the condition or consideration of a commutative contract or onerous donation; and if such third person consents to avail himself of the advantage stipulated in his favor, the contract cannot be revoked. Art. 1884. Again in article 1896 it is said, a contract in which anything is stipulated for the benefit of a third person, who has signified his assent to accept it, cannot be revoked, as to the advantage stipulated in his favor, without his consent. Moreover, the lawgiver, not content with recognising the right and leaving the remedy to implication, has in express terms given the benificiaiy an action to enforce it. C. P. 35.

Now it is obvious, that the covenant being one in which, as we have already noticed, the vendor and vendee had both an interest, there could be no revocation of that covenant without their mutual consent. No such consent to revoke is proved; and it is therefore clear that the plaintiffs in this cause, having signified their assent to accept the benefit stipulated in their favor, the covenant, as to them, now stands irrevocable.

Whether, under the provisions of our Civil Code and Code of Practice, which are conceived in a highly equitable spirit, and have not followed literally the terms of the Napoleon Code, Edward and John Lane could revoke the stipulation as concerns the other creditors named in the deed, until they have had notice of its provisions and an opportunity of adopting or declining its benefit, is a question upon which it is not now necessary to express an opinion.

We therefore conclude, that Edward M. Lane has no right to treat as his own, the crops gathered before the plaintiffs accepted the stipulation; but that on the contrary, it must be considered as a fund in his hands in which they have an interest, with a right to enforce its appropriation pursuant to the covenant.

The next proposition advanced by the counsel is, that the stipulation is in favor of all the creditors, and not of any one of them; that it must be accepted by all before it is complete and binding; and that payments under it must be made to all, or with the express or implied consent of all, and not to any one of them.

We are of opinion, that it was not necessary that all the creditors should accept, in order to enable one or more to avail themselves of the intended benefit. We consider the contract as malting the future crops a fund to be applied for the benefit of all the enumerated creditors, if they chose to accept the stipulation, and if any do not avail themselves of it, for the benefit of those who do.

But we are also of opinion, that the plaintiffs, as the matter now stands, have not the right to appropriate the fund absolutely to themselves, in disregard of the other beneficiaries, who for aught that appears to the contrary, have still the right of participating in the fund. It is obvious, that thus far the fund realised from the crops is insufficient to pay the five creditors in full. He who asks equity-must do equity. It will be necessaiy to remand this cause for the purpose of making the other beneficiaries parties. If they decline a participation, the plaintiffs will then have a right to be paid in full.

The next proposition is, that the fund is derived from the mortgaged property, and must be distributed according to the rank of the several mortgages.

The mortgages bear upon the estate, but not on the gathered products of the estate. A mortgage creditor can acquire a mortgage right or privilege upon an ungathered crop, by seizing the land upon which it is growing. C. C. 457. Domat, book 3, tit. 1, sec. 1, par. 7. But when the mortgage creditor remains inactive, and the crop is gathered and sold, there is no right of mortgage or privilege upon the proceeds. If, therefore, there is any preference among the enumerated creditors in the distribution of this fund, it must flow, not from their mere right as mortgages, but from the stipulations of the deed. As the other creditors are not now before us, we think proper to withhold, at present, an opinion upon the point, whether those creditors who choose to accept are to be paid out of the fund concurrently, or in the rank of their respective mortgages.

We see no objection to so much of the decree as orders the property to be seized and sold under the judicial mortgage.

It is therefore decreed, that so much only of the judgment of the district court as condemns the said Edward M. Lane personally, be revei'sed; and that as to the question of the personal liability of the said Edward M. Lane to pay to the said plaintiffs, out of the proceeds of the crops by him received, the amount of the debt of John Lane to the said plaintiffs, ascertained by the decree of the district court in this cause, this cause be remanded for further proceedings according to law, and with leave to the said plantiffs by supplemental petition to make the Merchants’ Bank of New Orleans, John C. McLemore, and George T. Williams, their successors, representatives, or assigns, parties to the said proceedings. And it further decreed, that the costs of this appeal be paid by the plaintiffs.


source: Caselaw Access Project

author: Slidell, J.

license: Public Domain

text:
    Charles Morgan v. Mary C. Morgan et al.
    Parol testimony will not be received to contradict a written release or establish title to real estate, as being part of a community property.
    APPEAL from the District Court of St. Tammany, Stirling, S.

      Jesse R. Jones, for the plaintiff,
    contended: The property having been acquired during the marriage, one-half of it must still belong to the heirs of the deceased wife; unless they have been legally divested of the title. C. C. articles 2371, 2374 and 2375. Morris v. Covington, 3d Ann. 261.
    The defendant gave in evidence a suit brought into the court of probates by the plaintiff and his brother, against Gen. D. B. Morgan, their tutor, claiming forty thousand dollars, accompanied with an agreement, in virtue of which a judgment was given approving the account rendered by the tutor, and granting a full discharge. The counsel for defendant on the trial, contended that if plaintiff had any interest in the property in controversy, that that interest was conveyed to his tutor by the agreement and judgment. The agreement must be understood and interpreted by reference to the suit which it settled.
    Articles 172 and 173 of the Code of Practice require, that in bringing a suit '‘the petition must contain a clear and concise statement of the object of the demand, as well as of the nature of the titles, or of the cause of action on which it is founded;” and ‘‘ifthe plaintiff demand a specific object, he must describe it with certainty in his petition, in such a manner as to leave no doubt as to the object demanded.”
    The suit brought by the plaintiff and his brother claimed of their tutor $20,000 each, in money arising from his administration of property inherited by them from their mother and others, and concluded by a prayer for a judgment against him for that sum, or for such sum as should appear to be due. Clearly, that was not a petitory action; no property was described or claimed.
    The plaintiff and his brother, after examining the account rendered by their tutor, became satisfied that he had accounted for all the monies coming into his hands on account of the administration of their property during their minority, and consequently signed the discharge. But the property now in controversy was held in common, and as much in their possession as in the possession of their tutor. The act referred to no more conveys the title of plaintiff in these lands than it does the title to the slaves which the tutor mentions in his account.
    Such was the understanding of all the parties, which plaintiff offered to prove upon the trial, but the testimony was rejected by the court; and to the opinion of the court in rejecting the testimony we reserved a bill of exceptions. By that testimony it would have been shown that Gen. Morgan always acknowledged these lands to be communily property, and to be held jointly by him and the three children of his first wife. To sustain the bill of exceptions, see 1 Greanleaf’s Evidence, secs. 109 and 189.

      Alfred Hennen, fox' defendants,
    contended : There is a bill of exceptions taken by the plaintiffs to the refusal of the court to receive the evidence of William Marbury, who was offered as a witness to prove that “JD. B. Morgan had at various times, from the year 1820 up to the year 1847, acknowledged that the lands in controversy had been paid for with the funds belonging to the community that had existed between him and his first wife, the mother of the plaintiff; and that he held and possessed the same jointly with the plaintiff and the other children of his deceased wife.”
    The objection to the evidence was, that it came from the father of the petitioner in a suit against his wife. It was the same as if the husband had been introduced to give evidence for his son in a suit against his wife; which is forbidden. C. C. art. 2260.
    The evidence, if admissible, could not affect the titles of the defendant, who claimed as a third party, against whom the declarations of the grantor could not be received. The titles are in dii'ect opposition to such admissions. If the evidence were before the court it could make no difference in the merits of the case. Its only effect would be to prove that the claim of the petitioner is unfounded; for it would then show that the purchase of the property had been made after the dissolution of the community on the 22d January, 1816. The use of community funds for the purchase, after the dissolution, did not make it community property. C. C. 2269.
    The admissions of Morgan would have been good in an action against himself; but they could not be given to prejudice the mortgage he had granted to the Citizens’ Bank on the 15th August, 1837, nor to the prejudice of any one claiming under it, especially as it is not pretended that these acknowledgments wei'e known to the bank, or to those claiming under the mortgage granted to it.
   The judgment of the court was pronounced by

Slidell, J.

We are of opinion, that the plaintiff is precluded from sustaining this action by the I'elease executed in favor of his father in 1835. Its terms are studiously full and comprehensive.

There was an offer by the plaintiff to show by parole that D. B. Morgan verbally acknowledged the property in question to be community property held and possessed jointly by himself and his childi'en. We think the testimony was properly excluded, so far as it would go to contradict the release or establish title in the plaintiff. We are not prepared to say, that the evidence woxxld not have been admissible, with reference to the defendants’ plea of prescription, for the pui'pose of showing the character of the defendants’ possession. But as the case is with the defendants upon the release, the evidence, if it had been admitted for the purpose of the question of prescription, would not have changed the result of the cause.

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


author: Rost, J.

text:
    Langfitt and Perry v. Ervin Brown, Administrator.
    A stock mortgage in the Clinton and Port Hudson Hail Hoad Company takes precedence' of a mortgage stock loan made under the provisions of the charter Of said company.
    Where property was sold on twelve months' hond by the sheriff, for less than the amount of a prior mortgage, it was no sale; and the surety on the twelve months’ bond is not bound.
    APPEAL from the District Court of East Feliciana. Stirling, J.

      Hardee and Bowman, for plaintiffs.

      Me Vea and Winter, for defendant»
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs seek lo recover of the succession of Reddin Brown-t the balance due on a twelve months’ bond which he signed as surety. The property for which the bond was given had been mortgaged to the Clinton and Port Hudson Rail Road Company by <S. D. Worthington and his wife, to secure seventy three shares of the stock of the Company, and any loans which might be made thereon to Worthington. He subsequently obtained a loan, which he failed to pay at maturity. The commissioners took out an order of seizure and sale, and the' property mortgaged Was sold under it, at 12 months’ credit, to John Morgan, who gave the bond sued upon with Reddin Brown as security. Partial payments were made on said bond, and.!the unpaid portion is admitted to have been duly transferred by the commissioners to the plaintiffs.

The defence is, that before the judicial sale, the stock mortgage rested upon the property, and had been transferred by the company to the State; that this mortgage had the preference over the one under which the sale was made ; and that as the amount of the adjudication was less than the amount of the first mortgage, there was no sale, and the bond is void.

This defence prevailed in the district court, and the plaintiffs appealed.

The question presented by the issue was passed upon by this court in the case of Meeker v. The Commissioners of the Clinton and Port Hudson RailRoad Company. 2d Ann. 971.

The ground of the decision in that case, was, that the mortgage for a loan to be made, was an obligation on a condition potestative on the part of the mortgagor, which could produce no effect until the condition was accomplished. Such is the rule laid down in art. 2029 C. C.; and we do not think that mortgages are excluded from its operation. Had the mortgage in that case been contracted on a casual or a mixed condition, we would of course have given it effect from its date those : conditions not preventing the obligation from being absolute on the party bound.

It is urged, in behalf of the plaintiffs, that the evidence upon which the court acted in the case of Meeker, is not found in this record; that the only evidence offered by the defendant to prove the anterior mortgage of the State, is an act purporting to be a subrogation in favor of the State, made by James H. Muse, as agent of the company; and that this act is insufficient to establish that fact, because there is no evidence in the record, of the authority of Muse, or of the assent of the stockholders to the act of 1839, under which the subrogation was made; and because, further, the act of subrogation is not shown to have been recorded in the parish in which the land is situated.

The defendant has shown that the stock mortgage is outstanding and unsatisfied. This would, strictly speaking, be sufficient for his defence. But the claim of the plaintiffs originated in the loan to Worthington of his share of the $500,000, obtained by the company under the act of 1839. Worthington would be estopped from alleging that the stockholders did not on their part comply with the provisions of that act; and it appears to us that the plaintiffs do not stand in a more favorable situation.

The assent of the stockholders to the act of 1839; their compliance with its provisions, and the consequences that have resulted to the State, are matters of history of which we cannot be ignorant.

The omission to record the act of subrogation in the parish where the property is situated, if necessary in any case, cannot affect the rights of the State in this controversy. The plaintiffs received the bond upon which they sue from the commissioners appointed by the State to liquidate the affairs of the company, after its insolvency and the forfeiture of its charter. The condition of the creditors was fixed before that time; and the holder of the stock mortgage, whoever he be, must take precedence of that under which the plaintiffs claim

We are of opinion, that as the bid offered at the judicial sale was less than the amount of the stock mortgage, there was no sale, and the defendant is not bound by his signature to the bond.

The judgment is therefore affirmed, with costs.


text:
    Hypolyte Lanoue v. Antoine Bessy.
    Where an appellant has acquiesced in a judgment and satisfied it, the appeal will be dismissed.
    APPEAL from the District Court of East Baton Rouge. Burk, J.

      J. M. Elam, for plaintiff.

      T. G. Morgan, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

There is a motion to dismiss this appeal, upon the ground that the appellant, since the order of appeal, has acquiesced in the judgment and satisfied it. The motion is accompanied by a transcript from the judgment docket of the court below, certified by the clerk, by which it appears that satisfaction of judgment was entered and signed by the attornies of both parties. The appellant has not thought proper to file an affidavit that the act of his attorney was unauthorised.

Appeal dismissed, at costs of appellant.


author: Preston, J.

text:
    Francis Thomas v. Municipality Number Two.
    The ordinance of the Municipality No. Two of New Orleans of the 12th of March, 1839, authorising the treasurer to employ collectors of taxes, did not entitle the treasurer to the commissions allowed for amounts collected. They belonged to the persons employed.
    The collectors of taxes cannot claim commissions for sums collected and paid over to the treasurer by the attorneys for the municipality, nor for sums paid directly by tax payers to the treasurer.
    APPEAL from the Second District Court of New Orleans, Canon, J.

      J. C. Larue, for plaintiff.

      R. Hunt, for defendant.
   The judgment of the court was pronounced by

Preston, J.

On the 12th ofMarch, 1839, the Second Municipality of New Orleans adopted a resolution which authorised the treasurer to employ such persons as he deemed proper to collect the taxes on real estate and slaves, sums due for paving banquettes, ground rents, and all monies and notes due to the corporation.

The compensation for collections of taxes on real estate and slaves was fixed at 2¿ per cent, and for all other collections at 1 per cent.

On the 11th of August, 1846, the treasurer employed the plaintiff as a collector, and placed in his hands a large amount of claims for collection.

By an ordinance adopted on the 19th of January, 1847, the council repealed tire resolution authorising the treasurer to employ persons to collect the taxes and other dues to the municipality, and provided for the election of one collector by the council. The compensation for collections of every description was fixed at 1 per cent.

The plaintiff was elected collector under this ordinance, and held the office until the first Tuesday in May, when, under the ordinance, a new election took place. The plaintiff alleges that from the 11th of August until the 3d of May, he made collections on which his commissions, according to the ordinances, amounted to $3901 65, of which he admits the payment of $2097 58, leaving a balance due him of $1804 07, for which he brings suit against the municipality. Pie annexes an account of $184,408 collected by him from the 3d of February to the 1st of June, 1847, on which -he admits a commission of 1 per cent has been comptrolled and paid to him, amounting to $1844 08. "We presume, from this account and other evidence, he was qualified as the elected collector about the 3d of February, and made these collections under the ordinance of the 19th of January, 1847. The plaintiff’s claim is thus narrowed down to any balance of commissions due to him for collections made between the 11th of August, 1846, and the 3d of February, 1847, and. indeed, his counsel admits in his brief that he claims for collections from the 11th August, 1846, to the 26th of January, 1847, only. It is incumbent on him, therefore, to show the exact amount of taxes on real estate and slaves collected by him between those periods, the commissions being 2¿ por cent; and the exact amount of all other monies collected by him for the municipality, the commissions being one per cent; and deducting any commissions received by him from the aggregate, he is entitled to the balance.

Plaving been employed by the treasurer to collect, and the council having allowed commissions at the above rates for his collections, it is our opinion that he is entitled to the commissions on what he actually collected, and no more.

Sums voluntarily paid to the treasurer were not collected by him, and he is not entitled to commissions on them.' It was the duty of the treasurer to receive such sums without commission, and in consideration of his salary of $3,000 per annum, as this court in effect decided in the case of Turner and others against the Municipality.

Pie cannot claim commissions, for sum collected and paid over to the treasurer by the attornies of the municipality. For such collections the municipality allowed the attornies commissions.

The plaintiff claims commissions for large payments of ground rents collected from W. and J. Montgomery and others. There is no evidence that he collected or paid those sums to the treasurer. On the contrary, a document certified by the comptroller and treasurer of the municipality and given in evidence by the plaintiff, indicates that those large sums were paid directly into the treasury by the Montgomerys and Paulding, for the capital as well as ground rents due upon their lots. If so, the collector could not charge a commission for collecting them, nor could the treasurer charge or allow a commission for receiving them.

The receipts of the treasurer to the plaintiff for monies collected and paid into the treasury by the plaintiff, while he was employed by the treasurer, and before his election by the council, show collections made by him only to the amount of $18,140, and Mr. Breedlove, the treasurer at the time, proves that those receipts, twenty in number, show the whole amount of money collected by Mr. Thomas for taxes on real estate and slaves, and paid over to him as treasurer, during the time they are dated, that is, from the 20th of August, 1846, to the 21st of January, 1847. The commissions on this sum amount to four hundred and fifty-three dollars.

It is unnecessary to examine the bill of exceptions, for it is admitted by the parties, that the commissions now claimed by the plaintiff were allowed to Mr. Breedlove, in settlement of a suit brought by the municipality against Mr. Breedlove, he or his surety guaranteeing the municipality against the claim of the plaintiff.

The account of the plaintiff should have been audited by the comptroller and paid to him, and not settled with the treasurer.

We are therefore of opinion, that the judgment of the Second District Court should be reversed, and judgment rendered in favor of the plaintiff against the defendants for $453, with interest from the judicial demand, and costs in the district court; the appellee to pay the costs of this appeal.


text:
    John Bass v. N. S. Balph et al.
    The consideration of a receipt may be explained by testimony.
    Where the act of sale of slaves is silent as to the possession, it may be proved by parol.
    APPEAL from the District Court of Madison. Snyder, J.

      H. Short, for plaintiff.

      J. J. Amonette, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff sues the defendant for two slaves named Willis and Mary. The defendant, having given his note for the price of the slaves, which remains unpaid, though due, is indifferent as to the result of the suit, but called John Gamble, his vendor, in warranty, who defends the suit.

The intervenors allege, that Gamble sold the slaves to the defendant for his note of $1250, which has been transferred by Gamble to them, insist on the validity of the defendant’s title, in order that they may be paid with the privilege of vendor upon the slaves, they being in the possession of the vendee. The intervenors were interrogated upon oath, and showed so little interest in the note, that a verdict was very properly rendered against them. They had been paid by Gamble all but a small balance, and for that looked to him for payment.

The whole controversy, therefore, is between the plaintiff and Gamble, the warrantor of the defendant. In January, 1846, the plaintiff sold to Gamble the two slaves in controversy, with thirteen others. The consideration for the whole was Gamble’s three notes, for $1716 66§- each, payable respectively on the 1st of January, 1847, 1848 and 1849 : amounting in the aggregate, to $5150.

The court has no doubt, from a careful examination of the pleadings, documents and evidence in the case, that this sale was simulated. The testimony of Story, received without objection, establishes the simulation. The slaves, moreover, remained in the possession of the vendor. And he sold, or had already sold, (the evidence does not show clearly -which,) the two slaves in controversy to Archibald Yeizer. These two slaves were claimed from Yeizer, who testifies that he compromised with Gamble for Bass, and transferred the bill of sale to Bass and delivered it to Gamble, representing himself as the agent of Bass, to be delivered to Bass. He received a draft of Gamble for $125, which was paid, and gave up two notes of Bass, for $1000 each, which had been given to him for land in the State of Mississippi. He says Gamble wished the witness to transfer the slaves to him, but he peremptorily refused to do so. All the transaction was for the benefit of Mr. Bass, Mr. Gamble representing himself as the agent and friend of IkZr. Bass. Gamble thus obtained the two slaves; hired them to the defendant, Balph; and, on the 8th of March, 1847, sold them to him for $1250, on his note payable the following January.

In March, 1847, Gamble took possession of all the other slaves clandestinely; whereupon Bass sued him for the amount of the notes given for the whole, and prosecuted him for larceny, in taking clandestine possession of the slaves; proceedings perhaps inconsistent with each other.

A settlement of their controversies was then proposed, and made; in which the plaintiff complains that he was overreached, it having been in some degree forced upon him by Gamble, he having the assistance of his counsel, while he, Bass, was unexpectedly deprived of the benefit of counsel, was entirely unacquainted with business, and did not know what he signed.

The criminal prosecution was abandoned in a letter of Bass to the justice of the peace, acknowledging his error; and in which he states, that Gamble had acted as he had a right to do with his own property.

The settlement of their civil controversy is evidenced by the following receipt;

$5150. Richmond, May 22d, 1847.

Received of Dr. John Gamble, five thousand one hundred and fifty dollars, in payment and full satisfaction of his three certain promissory notes, all dated January 3d, 1846, each for the sum of one thousand seven hundred and sixteen dollars and sixty six and two-thirds cents, due January 1st, 1847, 1848 and 1849, being the same notes on which I have instituted suit against the said John Gamble, and have held him to bail; and Allen Peirse, Esq., my attorney in said suit, is hereby requested and directed to cause the said suit to be dismissed at my costs, and to deliver the said notes to Dr. Gamble, his agent or attorney; and I hereby declare and acknowledge the above payment to be satisfaction in full of all my accounts and demands whatsoever against the said John Gamble. Witness, (Signed,) R. C. Downs. (Signed,) John Bass.

We decided in the case of Fletcher v. Fletcher, that the consideration of a receipt may be explained by testimony. Two of the notes were not due; the first had not been paid when it became due. It is highly improbable that all three were paid together in money before the two last became due. Mr. Downs, who was witness to the receipt, does not say any money was paid, much less so large a sum. On the contrary, he proves that when the receipts were passed he understood that Gamble was to give Bass some real estate; does not know how much, or what it was, and that Bass expressed himself satisfied with any paper that witness might draw, that would bring about evidence of a settlement. Mr. Peirse, the counsel of Bass, says the notes were given up in conformity with a letter received from John Bass, and that Gamble told witness that he was to make a donation of the negroes to Mrs. Bass. The testimony of these gentlemen was received without objection, and with the testimony we have detailed, and other circumstantial evidence, induced the juxy to render the following verdict, with which the district court was satisfied : “'We, of the juxy, find a verdict dismissing the suit of the intervenors, and cancelling the note of Mr. Balph, and restoring the two negroes sued for to John Bass.” The juxy probably concluded that the real payment or consideration for the receipt and return of the notes given for the slaves, was the abandonment by Gamble of his claim to at least the two slaves in controversy.

We yield to their conclusion, as it was the duty of both parties to annul unreal titles to either negroes or money, that their writings might be the evidence only of real transactions.

The testimony of the witness Yeizer was objected to as contradicting the act of sale of the slaves from Bass to Gamble. The act of sale did not declare that the slaves had been delivered to Gamble, which, under article 2454 of the Civil Code would have been conclusive as to the delivery. It did not, therefore, contradict the act. The testimony was admitted to show that Gamble, in the compromise with Yeizer, did not act as the principal, but as the agent of Bass, and received the slaves for the latter, and not for himself. It tended to render more probable to the jury the abandonment by Gamble of his claim to the two slaves in controversy, on receiving back the notes given for them, because he was in possession of them, not for himself, but for Bass.

We are of opinion, that the verdict and judgment does justice to all the parties, and that no principle of law has been violated in obtaining them. The judgment of the district court is there affirmed, with costs.


text:
    Zachariah Dorsey v. Carrollton Bank.
    The sheriff who has made a seizure may proceed to sell, after the return day of the writ has expired, where the failure to sell has not been attributable to the plaintiff.
    APPEAL from the District Court of Carroll, Snyder, J.

      Win. Bryan, for plaintiff.

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

Preston, J.

In 1844, the defendants obtained a judgment against the plaintiff and Thomas V. Davis, for $1797 25, with interest and costs. On the 13th of December, 1848, the defendants issued execution on their judgment, which the plaintiff enjoined, but in May, 1849, dismissed his injunction. The sheriff had seized a tract of land and two slaves, and the injunction being dismissed, on the 20th of July, 1849, advertised the property for sale.

The plaintiff again obtained an injunction against the execution. He alleges that certain credits were given on the execution, after it came into the sheriff’s hands. It is proved that they were given before the present injunction was obtained. He further alleges, that the date of a credit of live hundred dollars was not definitively fixed by the defendants. The credit referred to a receipt in the plaintiff’s possession, fixing the date of the credit, which enabled him to give the date to the sheriff himself, and to settle correctly with either the sheriff or his creditor.

Another ground for’ obtaining the injunction was, that the plaintiff had dismissed his first injunction, in consideration of an arrangement made with the defendants, that he should have a delay of one and two years for the payment of the balance of the judgment against him. He has furnished no evidence of such an arrangement. The last ground for obtaining the injunction was, that the sheriff was proceeding to sell under an execution which had expired. This court said, in the case of Rowley v. Kemp, 2d Ann. 361: “ It is well settled, that, having made a seizure, the sheriff was not bound to return the writ, unless required by the plaintiff, but might proceed to sell under the seizure, notwithstanding the expiration of the return day of the writ, the failure to sell not having been attributable to the plaintiffof which there is no proof in this case.

"We think the appeal was taken in this case without any grounds whatever, and therefore affirm the judgment, with costs in both courts, and five per cent damages on the amount of the execution enjoined.


text:
    C. C. Lathrop, Administrator, v. Thornton Lawson et al.
    The statutes of February 14th, 1821, and March 13th, 1827, in relation to protests and notices of protest of bills of exchange, &c., were not intended to change the commercial law as it stood before, but to afl'ord, in aid of commerce, a new, convenient and permanent means of proof. No one is bound to employ a notary to malte demand of a note or to give notice to an endorser.
    Entries in books, or memoranda made by persons in the discharge of their professional duties and who are not interested, are admissible in evidence, if made in the course of their busi ness and contemporaneously with the transactions to which they relate, where such perons have subsequently died.
    Where the certificate of a notice is informal, not having been attested by two witnesses, the notice may be proved by other evidence, and the certificate made by the parish judge who made the protest and gave the notice, but who subsequently died, is competent evidence of the protest and notice.
    APPEAL from the District Court of East Feliciana, Stirling, J.

      McVea and Winter, for plaintiff,
    contended: Plaintiff, in his capacity as administrator of the estate of Tilomas L. Andrews, deceased, sues on the following note : “ Clinton, 7th April, 1842. Six months after date I promise to pay to the order of Burrell Myers, the sum of four hundred and ninety-six dollars and two cents, bearing ten per cent interest from date, for value received; payable at the Branch of the Union Bank of Louisiana, at Clinton. (Signed) T. Lawson.” Endorsed, “B. Myers," “ J. L. DeLee." “Received on the within, one hundred dollars, this 15th May, 1845.”
    There was judgment against Lawson, the maker, by default. The case having subsequently come on for trial as to Myers and DeLee, the endorser’s, plaintiff offered in evidence the note (the signatures being admitted) and the protest made on the 10th October, 1842, by L. Saunders, parish judge, in his notarial capacity. These were received without objection. Plaintiff then offered the certificate. The certificate is as follows, and was attached to the protest itself: “ State of Louisiana, Parish of East Feliciana. I certify that the endorsers of the note hereto annexed, and a copy of which is hereon written, were notified of the demand and protest of the same, by written notices directed to Burrell Myers and John L. DeLee, and deposited by me in the postoffice at Clinton, La., this day, October 11, 1842. (Signed) L. Saunders, Parish Judge.”
    It was admitted by the defendants that Saunders was dead, and that the signature attached to this instrument, annexed to the protest, was genuine and his.
    The certificate, thus fortified by defendants’ admissions, was offered by plaintiff for the purpose of showing that the notices of protest were served in the manner as stated therein by Saunders, he having been the notary who protested the note sued on; his death and signature to the certificate being admitted, and the same being offered as an entry made by the notary, a third person, since deceased, in the way of his professional duty, contemporaneous with the protest and to which no suspicion could attach, and as being the best evidence of which, under the circumstances, the nature of the case admitted.
    To its introduction defendants objected, on the ground that the certificate was inadmissible, as not being in conformity with the act of 1821 for such case made; not having the two witnesses required by the statute. The court below sustained this objection, refused to receive the certificate, and plaintiff reserved his bill, attaching to it the document offered and rejected. Plaintiff being thus deprived of the means of showing notice to the endorsers, there was judgment of non-suit against him, and he now prosecutes this appeal.
    The question presented for the consideration of this court, is fully and fairly stated in the bill of exceptions, and is confined to the admissibility of the certificate relied on to show the notices. We conceive that the judge a quo erred in refusing to receive it.
    It is true that the act of 1821 prescribes that the certificate or declaration of the notary of his manner of serving the notices, attested by two witnesses, shall be received as legal proof of such notices,
    But we understand that the repeated decisions of this court have established, beyond question, that the act of 1821, as well as the subsequent act of 1827, have introduced no change in the commercial law as it stood before their adoption; that they have merely introduced a new method of proof, more suited to the convenience of commerce, but which does not exclude other means of proof, of which the party may choose to avail himself. We cannot deem it necessary to cite authorities in support of this position, nor to show that had the notary, L. Saunders, been living, the plaintiff might, have introduced him upon the stand as any other witness, and proven by parol the manner in which these notices were given, so as to bind the endorsers. The certificate, in proper form, may be the best evidence; but if informal, the parol testimony of the notary himself becomes the best.
    But if, as in this case, the notary be dead, and the party thereby deprived of the personal examination, is he left without a remedy ? Shall there be a total failure of justice ? The notary’s death having deprived the plaintiff of what, from the informality of the certificate, had become the best evidence, is there no secondary evidence which may supply its place? We think there is. The general rule relative to entries or memoranda made by third persons, since deceased, in the course of a professional duty contemporaneous with the act and connected with it, is clearly laid down by Greenleaf, vol. 1, § 115,116, pp. 138, 139 et seq. From secondary, they have become, by the death of the party, the best evidence of which the case admits, and as such are admissible.
    That this general principle is applicable to cases like the present where the entry or memorandum made by a notary now deceased, is offered to show service of notice so as to bind endorsers, seems to be well settled by the case of Planters’ Bank v. Bass, 2d Ann. 430, when this court expressly recognised its application; and we also refer, in support of this position, to the cases cited, viz : Nicholls v. Webb, 8 Wheaton, 326, where the whole question is ably discussed and many authorities reviewed; and to Chitty on Bills, 642.
    We think, then, that we show a protest made at proper time, in legal and proper form, and as the original act, which the court will perceive it is, good without the record or transcription provided by the acts of 1821 and 1827. Union Bank v. Morgan, 2d Ann. 418.
    We think we have also shown that the judge a quo erred in refusing to receive the certificate of the notary to show service of notice; that though informal as a certificate under the act of 1821, it was admissible as the entry or memorandum of the notary deceased, under the authorities referred to.
    Should the court decree the certificate admissible, we conceive that it fixes conclusively the liability of the endorsers, and ask that the judgment of the court below be reversed, and judgment rendered in favor of the plaintiff and against DeLee and Myers in. solido, for the full amount sued for; but if your honors should be of opinion that the certificate offered, though admissible, is not sufficient to fix their liability, without further testimony, we ask that the judgment be reversed, and the cause remanded for further proceedings according to law.

      A. W. DeLee, and Muse and Merrick, for the defendant,
    contended: This suit is against the appellees, Myers and DeLee, as endorsers of a promissory note.
    The only question in this case is presented by the plaintiff’s bill of exceptions to the opinion of the judge of the lower court, in refusing to admit in evidence the certificate of the notary of the manner in which the notices of protest were given. The court will see that the certificate is not made in conformity to the act of the Legislature, (see Bullard and Curry, p. 41, No. 6,) not having two witnesses to the same.
    The adjudications upon this subject have settled the law. See Davis v. Bour. geat, Executor, 3d Ann. 121, and the case there cited, viz: Gas Bank v. Nutall, 19 L. R. 449. Debleux v. Bullard, 1 R. R. 67.
    •But it is here contended, that the death of Judge Saunders, who could have been a witness if he had been living, takes the case out of the rule established by the above decisions. Such, it is believed, cannot be the law. 1. Because the statute has pointed out what shall constitute proof in like cases, and this certificate is not in conformity to the act. 2. Because the admissibility of entries made by third persons does not, as a general rule, depend on the fact of their being either alive or dead, but upon the entry itself. And it makes no difference as to the admissibility of such entries whether the party making it be living or dead. Greenleaf, No. 120. Hence, it being settled that the entry is inadmissible, the party being alive, it must follow that his death does not render that legal evidence which was illegal before. 3. Because the entiy was not made in the usual course of business as contemplated by law, which requires it should be signed by two witnesses. The authorities in regal’d to the entries made by deceased persons, refer only to those cases which are made in the usual course of business. But it is believed that no authority can be found, in which an imperfect act under a statute has been held admissible in evidence, after the death of the officer leaving it unfinished, when, were the officer living, his imperfect act would have been clearly inadmissible. Under the statute, the signature of the two witnesses were as necessary to give validity to the actas the signature of the notary. How then can it be said that a certificate not signed by the two witnesses was made in the due course of business. The certificate, therefore, becomes just as objectionable, because not done in the usual course of business, the statute having prescribed that course of business, as it would were the course of business prescribed by custom or immemorial usage.
    In the case of the Planters’ Bank v. Bass, cited by plaintiff’s council, 2d Ann. 438, the suit was brought on a note protested in the State of Mississippi. It does not appear that two witnesses were required by the law of Mississippi as is the case in Louisiana. And it was proved that the notaiy was the one usually employed by the bank to make demand, &c.
    In the case of Nicholls v. Webb, 8 Wheaton, 326, the note was protested in Tennessee, and the notary “kept a regular record of his notarial acts.” The record was duly established by proof. It is not shown that there was any statute regulation on the subject.
    The Supreme Court of the United States admit the proof (the notary being dead) on the ground that if the law did not authorise the reception of this kind of secondary evidence, “ few persons would be disposed to risk so much property upon the chance of a single life.” They say further, that the evidence is the best evidence the nature of the case admits of. (p. 333.) So undoubtedly it was. And no one would feel disposed to question the correctness of these decisions, arising as they do under the general principles of the common law. But in Louisiana it is otherwise. There is a special provision of law which provides the manner of authenticating protests, and perpetuating the testimony in regard to the same. This class of cases admits of the highest proof. And the proof only fails where there is negligence, and something omitted of the regular course of business of the notary’s office. The general principles of law exclude the testimony offered.
    In the cases cited, the proof was reluctantly admitted as the only means of making proof in Mississippi and Tennessee, and other common law States, where the notary who had regularly fulfilled his duties should happen to die. Here the plaintiff asks the court to offer a premium to negligence, and place on the same footing the irregular proceedings of parties or notaries, as those executed in conformity to law. It is for the plaintiff, we think, to show authorities to justify these principles and satisfy this honorable court, that where a party has failed to comply with a statute, he can be relieved from the consequences of his omission. The authorities cited, it is believed, established no such doctrine.
   The judgment of the court was pronounced by

Slidell, J.

This case being on trial as to Myers and DeLee, the endorsers, plaintiff offered in evidence the note and the protest made on the 10th October, 1842, by L. Saunders, parish judge, in his notarial capacity. These were received without objection. Plaintiff then offered the certificate of notice. The certificate is as follows, and was attached to the protest itself: “ State of Louisiana, parish of East Feliciana. I certify that the endorsers of the note hereto annexed, and a copy of which is hereon written, were notified of the demand and'protestof the same, by written notices directed to Burrell Myers and John L. DeLee, and deposited by me in the postoffice at Clinton, La., this day, October 11, 1842. (Signed) L. Saunders, Parish Judge.”

It was admitted by the defendants that Saunders was dead, and that the signature attached to this instrument, annexed to the protest, was genuine.

To its introduction defendants objected, on the ground that the certificate was inadmissible, it not having the two witnesses required by the statute. The court below sustained this objection, refused to receive the certificate, and plaintiff reserved his bill, attaching to it the document offered and rejected. Plaintiff being thus deprived of the means of showing notice to the endorsers, there was judgment of non-suit against him, and he now prosecutes this appeal.

It is true that, under the statute, the certificate of the notary must be attested by two witnesses, in order to make proof per se. But it has been repeatedly held that the statutes of 1821 and 1827 were not intended to change the commercial law as it stood before their adoption; but to afford in aid of commerce a new, convenient, and permanent means of proof. The legislation was auxiliary, and was not intended to exclude other means, of which the party might choose to avail himself.

Had the notary been living, the plaintiff might have brought him upon the stand, upon objection to the informality of the certificate of notice, and proven by parol the manner in which the notices were given. But if the notary be dead, and the party thus deprived of a personal examination, is he to be left without relief; and is there, to be a total failure of justice, because the notary has neglected his special duty in a matter of form which was necessary to make the certificate authentic evidence ? We think otherwise. Upon proof of Saunders' death, and of his signature to the certificate, the certificate was admissible in evidence under the general rule relative to entries or memoranda, made by third persons since deceased, in the course of a professional duty contemporaneous with the transaction and connected with it.

Thus, where the question was upon the precise day of a person’s birth, the account book of the surgeon who attended his mother upon that occasion, and in which his professional services and fees were charged, was held admissible in evidence. Cited by Greenleaf, Evid. vol. 1, p. 136,

In Poole v. Dicas, 1 Bingham N. C. 649, it was held that an entry of the dishonor of a bill of exchange, made in the usual course of business at the time of the dishonor, in the book of a notary by his clerk who presented the bill, may be given in evidence in an action on the bill, upon proof of the death of the clerk who made the entry. Tindal, C. J. said: We think it admissible, on the ground that it was an entry made at the time of the transaction, and made in the usual course and routine of business, by a person who had no interest to misstate what had occurred, and he cited Doe v. Tenford. There, it was the usual course of practice in an attorney’s office for the clerks to serve notices to quit on tenants, and to endorse on duplicates of such notices the fact and time of service. On one occasion, the attorney himself prepared a notice to quit to serve on a tenant; took it out with him, together with two others prepared at the same time, and returned to his office in the evening, having endorsed on the duplicate of each notice a memorandum of service ont he tenant; two of them were proved to have been delivered by him on that occasion; and it was held on the trial of an ejectment, "after the attorney’s death, that the endorsement so made by him was admissible evidence to prove the service of the third notice.

In Welsh v. Barrett, 15 Mass. 380, the book of the messenger of a bank who was dead, in which, in the course of his duty, he entered memoranda of demands and notices to the promisers and endorsers upon notes left in the bank for collection, was received in evidence of a demand on the maker and notice to the defendant, as endorsers of a note so left for collection. There seems to be no danger, said Parker, C. J., in submitting to the consideration of the jury what a man has actually done and committed to writing, when under obligation to do the act, it being in the course of the business he has undertaken, and he being dead.

In Butler v. Wright, 2 Wendell, 369, it was held, that the memoranda of a deceased notary of the demand and notice of payment of a promissory note, are prima facia evidence of the fact. See also Halliday v. Martinett, 20 John. 173. So in Nichols v. Goldsmith, 7 Wendell, 161, the memorandum of a deceased cashier of a bank was held primd facia sufficient to charge an endorser with notice.

Now, with what propriety can we reject a rule of evidence so well recognised, and so clearly founded in good sense and public convenience ? Is it because we have the statutes of 1821 and 1827? But those statutes were made to aid the mercantile community, not to deprive them of means of proof already within their reach. No one will say that a bank or a merchant is bound to employ a notary to make demand of a note, or give notice to an endorser.

But, then, it is said the plaintiff chose to employ a notary, and the statute instructed him how he was to record his notice. Certainly he was bound to do so, in order to give his employee the full benefit of his services and make the certificate authentic pi'oof, proof per se. But if he does not do so, is the bank, for example, to be in a worse position than if its cashier or its messenger had been employed ? The very facts that Saunders was a public officer is an additional reason for putting his entry on as good a footing as that of the cashier or messenger. For it was an inducement to employ him, that if he properly discharged his official duty, his certificate would be a permanent authentic document, making evidence per se. And it would be a great hardship, that when the public have been induced by his official character to employ him, they should be made the victims of his negligence to such an extent as that his entries or memoranda should, after his death, be on a worse footing than those of a private individual. If we were so to hold, we should be attributing an undue effect to the statutes, and would occasion great alarm in the mercantile commnnity.

In the case of Davis v. Bourgeat, 3d Ann. 121, cited by the defendant, there was no attempt to prove the handwriting of the notary, &c., as in the case of an entiy or memorandum by one deceased, so that the point now considered was neither presented nor decided. So in NeBlieux v. Bullard, 1 R. R. 67.

In the case of the Gas Light Bank v. Nutall, if the present point was raised at all, it was not, so far as we can judge from the report, elaborated at bar nor by the court. If it was the intention of the court to consider an informal certificate as utterly valueless, we are constrained to say that we cannot adhere to that opinion.

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


author: Rost, J. Slidell, J.,

text:
    John B. Gerald v. Theodore B. Gerald.
    Where a family meeting is held under the act of 18th of March 1§47, for the emancipation of a minor, the tutor must be cited before the meeting is held.
    Article 62 of the Constitution, which invests the courts with the judicial powers, cannot be extended by implication.

      The grant of judicial power, in article 79 of the Constitution, is an exception to article 62. The grant of judicial power therein conferred upon clerks of court does not extend to their deputies.
    The laws of 29th of May, 1846, and 16th of March, 1848, do not confer on deputies the judicial powers vested in clerks by the Constitution. Those acts give no other powers to deputy clerks than those previously vested in them by law.
    APPEAL from the District Court of East Feliciana, Stirling, J.

      Roberts and Thompson, for plaintiff,
    contended: The first point is, as to the service made upon the tutor. It is contended, that service should have been made upon him previous to the meeting of the family. The authority recited to sustain this point is 1 N. S. 551. We also call attention to the same authority as having no sort of bearing upon the case at the bar. We contend, however, that his presence at the time of the homologation of the proceedings, and acquiescence therein, cured the error, if it was one, and bars him from raising the point now. If such a mode of proceeding were allowed in our courts, for parties to acquiesce in all the proceedings that are had in any case until after its final judgment, and then to prevent their execution, and raise quibbles of this character, the courts, instead of being the defence of the oppressed, would be the most potent agent in the hands of the oppressor. For various and palpable reasons, this court will readily see that such a course could not be allowed.
    The second objection is, that no under-tutor was present at the family meeting. Now, the fact was proved most clearly before the court, when the rule to show cause why distringas should not issue was made absolute, that the under-tutor resided out of the State at the time these proceedings were had. But, admitting the position that he was not absent, and that if he was, an under-tutor ad hoc could not be appointed to him, what weight is it entitled to in this court ? It was never contemplated by law, that an under-tutor should be present at family meetings, provoked by the minor himself by virtue of a peculiar law made for his special benefit, as the one under which this emancipation was sought. A mere reference to the act itself refutes such a position. See acts of 1847, p. 65. Such family meetings being provoked by minors themselves, the necessity for the under-tutors does not exist. For the powers and duties of under-tutor, see C. C., 301, 302, 303; 1 N. S. 462; 2 L. R. 145; C. N. 420, 442; 11 L. R. 189; 4 L. R. 389; 10 L. R. 328. We are happy that this point is made, as it is important the question should be settled, and settled now. The appointment of minor’s counsel under-tutor ad hoc is an objection altogether technical; for we cannot conceive how the duties of an under-tutor and an attorney would clash. The one, sworn to protect the interest of his client; the other, his ward.
    The third objection, that a judgment by default, should have 'been taken, -we deem unnecessary to notice, further than to invite the court to an examination of the authorities cited by defendant’s counsel, which show that the doctrine does not apply, even by the most latitudinal construction, to a case like the present.
    The objections to the legality of these proceedings, on the ground that the deputy clerk happened to sign the papers and orders, is, indeed, a novel one. We have been accustomed, in this State at least, to regard the act of the deputy, either of the clerk, sheriff, or notary, as being the act of the clerk, sheriff, or notaiy, himself. To unsettle this principle would be dangerous to the interests of every party litigant in the State. We have examined the authorities referred to by defendant’s counsel, and find nothing to sustain the position whatever. We refer to the same authorities, and submit them for construction and decision.. It was certainly contemplated, that the clerk should have the power of calling family meetings to emancipate minors. Such would be the most natural construction which could be placed upon the act of 1846. The language of the statute is directory, as it is in all cases of a similar nature. The petition for family meetings in all cases must be addressed to the' judge, though the same may be ordered by the clerk, or his deputy. The clerk has many powers of a judicial character given him by the act of 1846, and yet all petitions must be addressed to the judge, and he is to decide all points where any opposition is made. Such being the case, why make this case exclusive of that rule ? We see no good reason why the subsequent action of the judge in this case is not curative, if he should have made the order; nor why the clerk is not fully authorised to order the meeting.

      E. T. Merrick, for defendant,
    contended : In this case, defendant’s counsel will merely call the attention of the court to the points of law raised by the assignments of error, and in the same order, viz.: 1st. The record shows that, March 21st, the family meeting was ordered to be held nn the 28th day of -March, 1848. The .citation was not served on defendant until April 1st, 1848. A fair construction of the act of 1.847, p. 65, s. 2, requires the .citation .to be served previous to the holding of the family meeting. Cause is to be shown to the family meeting as well as to the judge. Their (the family meeting’s) advice is worthless, unless they are informed of the facts. See 1 N. S. 551, as to the necessity of citation. 2d. There is nothing to show that the under-tutor was absont.' In truth he was and still is in the parish. His presence (or at least that of the tutor under the act of 1847,) was indispensable to the validity of the family meeting. C. C. 302. An under-tutor ad hoc is an office unknown to our law- If one existed, plajnti.ff’s attorney could not, as was sought to be done in this case, act contradictorily with himself, and approve for the opposite party or oppose a proceeding which his client was provoking. 3d. The judgment by default or an answer was indispensable to a decree of emancipation, for want thereof ,th.e proceeding apd judgment qr.e null ip this case. p. P. art. 606, No. 4. Ibid, 60.9, 359. Bird v. McMicken, 5 ,N. S, 515. 6 N. £. 212. 7 N. S. 287. 8 N. S. 284. Ibid, 302, Calvet v. Calret et al. 4th. The foregoing points b.eing established, it must follow that ajl the .subsequent, proceedings were null. Sublato fundamento cadit opus. 5th. The ninth section of the act of 1846> P.. 65, did pot contemplate investing the clerk with power to condemn ex parte. The order certainly could not be made except after citation. In this case it was made by the deputy clerk before citation.
    The act of J846, p. 63, conferring judicial power in certain cases upon clerks, can never be held to confer the same power upon their deputies. This act gives to the clerks a large part of the judicial power of the late parish judges. The most important interests of the parish are thus conferred upon them. The Constitution authorises this judicial pow.er to be confided to clerks and not deputies. Art. 79. This being an exception t.o article 62, which invests the Supreme Court, the District Court, and Justice of the Peace, with judicial power, cannot be extended to any other .officers except those specified, and whose election had b.een .expressly provided for by the Constitution. Article 82. The statute of 1846, p. 67, sec. 18, and the act amendatory thereto, of 1848, p. 116, do not confer on deputy clerks the judicial power given to the clerks, but simply ‘‘the power now vested bylaw in deputy clerks.” Yariops reasons will occur at once .to your honors why this very great power was not .conferred on the deputies, and why they were left with the simple power which they had possessed prior to said act of 1846. As to the distinction between clerk and deputy, under act of Congress, 1790, see S.ampson & Qverend, 4 Bib. 409, 1 Greenleaf, No. 5,06. See also ,C. P. 7.82,
    6th and 7th. No judgment by default or contestatio litis having been formed either upon the petition to file an account or for a writ of distringas, the order to file an account, and the decree for and writ of distringas, were also erroneous. 4 L. R. 13.
    8th. For the foregoing reasons, we contend that all the proceedings in the court below ought to be reversed and annulled.
    We further contend, that, inasmuch as under the act of 1847, p. 6.4, ss. 1 and 2, the district judge alone was the person to whom the petition is to be presented and who alone is authorised by said act to call a family meeting j and inasmuch as said family meeting in this case was ordered by the clerk, that, therefore the whole proceedings are null, apd the petition, instead of being sent back for further proceedings, ought to be dismissed. See a.ct 1829, s. 2, Bullard .and Curry, p. 582, and act 1847, p. 65, s. 2.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, who is a minor over eighteen years of age, applied to the district court to be emancipated, under the act of 1847, providing for the emancipation of minors. The clerk of the district court made the order for the family meeting required in such cases, and appointed an under-tutor ad hoc, to attend said meeting, on the suggestion of the plaintiff that his under-tutor had left the State. The family meeting advised the emancipation, and its proceedings were homologated. The plaintiff then presented another petition, praying that his tutor might be ordered to account. The order on this petition was made by the clerk’s deputy. The defendant took no notice of it, and after the operation of the legal delays, the plaintiff obtained a rule to show cause why a distringas should not issue against him to compel obedience to the order of the court. On the plaintiff’s motion to make that rule absolute, the defendant appeared and excepted to the proceedings, on the ground that they were illegal and void ; that the plaintiff has never been legally emancipated, and that, if he had been, he could not stand in judgment. These exceptions were overruled ; and the defendant has appealed from the decree making the rule absolute.

The following grounds of error are assigned on the appeal : 1st. The defendant was not cited till after the family meeting had been held. Under the act of 1847, he should have been cited before that time. 2d. The act of 1846 which confers certain judicial powers upon clerks does not confer the same powers upon their deputies.

These grounds of error are both well founded in law. The citation, with a copy of the petition and of the order made thereon, should have been served upon the tutor before the family meeting was held, as has been the uniform practice under the act of 1829, on the same subject-matter. Family meetings have not the means of arriving at correct conclusions, unless they are informed of the facts within the knowledge of the tutor. It is stated, in the procés verbal, that the tutor was cited, but did not appear at the meeting. This is an error: the citation was served four days after the family meeting had been held.

Article 79 of the Constitution authorises the clerks of the district courts to exercise important judicial powers. This is an exception to article 62, which invests the Supreme Court, District Courts,- and Justices of the Peace with the judicial power of the State, and cannot be extended by implication to any officers not specified in the article. The grant of judicial power is made to an officer recognised by the Constitution, and elected by the people; not to the deputies whom he appoints and dismisses at pleasure. The organic laws of 1846 and 1848 do not purport to confer on deputy clerks the judicial powers vested in clerks by the Constitution. They give them no other powers but those previously vested by law in deputy clerks.

It is urged, that under the former organisation of the judiciary, clerks were entrusted with certain judicial powers which their deputies uniformly exercised, and that the framers of the Constitution and the Legislature of 1846 must be presumed to have known and contemplated the ancient practice, legislation, and jurisprudence. A majority of the court do not consider this a legitimate presumption. The only act giving judicial powers to clerks under the old system was passed in 1828. It speaks of clerks alone; deputy clerks had no authority to act under it; and we cannot, without an express declaration of the Convention and of the Legislature, presume that they intended to sanction and authorise that which is wrong and illegal. If the wording of the 79th art of the Constitution left it doubtful whether the powers it confers were extended to deputy clerks, the former practice and the former jurisprudence of the State might assist us in ascertaining the intention of its framers. But, in the absence of all grant of judicial power to deputy clerks, there is no room for interpretation.

This distinction between the clerk and his deputy is not peculiar to our jurisprudence, An act of Congress provides, that the records and judicial proceedings of the courts of any State shall be proved or admittéd in any other court in the United States, by the attestation of the clerk, and the seal of the court annexed, &c. Under this act, it has been uniformly held, that the clerk who certifies the record must be the clerk of the court himself: the certificate of his under-clerk, in his absence, or of the clerk of any other tribunal, is incompetent for that purpose. X Greenleaf, No. 506, and cases there cited.

There being no emancipation, and no legal order to account, the defendant is not in default.

For the reasons assigned, it is ordered, that the judgment in this case be reversed, and the case remanded for further proceedings according to law; the plaintiff and appellee paying the costs of this appeal.

Slidell, J.,

dissenting. In consequence of the abolition of the parish judge and probate court system, it was obvions to the framers of the Constitution, that there would be a serious accumulation of the business of district judges. To prevent this accumulation from becoming too onerous, and to facilitate the administration of justice, it was provided by article 79, that “ the Legislature shall have power to vest in clerks of courts authority to grant such orders, and do such acts as may be deemed necessary for the furtherance of the administration of justice, and in all cases the powers thus granted shall be specified and determined.” Under this constitutional grant of power, the Legislature enacted the Statute of 1846, which is entitled, “ An act-to carry into effect the judiciaiy system.” In the various sections of this statute, in which power is conferred to grant specified orders and do enumerated acts, clerks only are mentioned. The only section which speaks of deputy clerks is the 18th, where it is said that each of said clerks shall have power to appoint as many deputies as he may judge necessary to be approved by the district judge, and sworn in by him in open court or in chambers ; that the clerk shall be responsible for the official conduct of said deputies, and said deputies shall have all the powers now vested by law in deputy clerks.

There is an ancient, and I think a very sound rule of interpretation: Si de interpretations legis quéeratur, in primis inspiciendum est quo jure civitas retro in ejus modi casibus usa fuisset.” It is familiar to eveiy one that, under the former organisation of the judiciary system, during a very long course of years deputy clerks had been in the practice of discharging all the duties performed by their principals. In Kirkman v. Weyer, nearly thirty years ago, the question was, whether the clerk of the district court is authorised by law to appoint a deputy with power to administer oaths, and issue executory writs ; and it was urged, that the exercise of public offices by deputy, was opposed to good policy, contrary to justice, and repugnant to the spirit of our Government. That, if permitted in any case, it must be by express law; and that, previously to the act of 1817, no one could pretend that power was granted by law to clerks to administer oaths by deputy. Martin, J., observes: “ Clerks of courts have had deputies' ever since the establishment of the American Government in this countiy; and the act of 1817 appears to have recognised such deputies. The clerk and the sheriff are the only officers which the Legislature may have had in view under that act. The attorney general is not an officer particularly attached to any court. It seems to me to be too late now to call in question acts done by a deputy clerk. A deputy clerk may do all acts which his principal can.” And Matthews, J., said: “I believe it may be laid down as an. undeniable fact, that the clerks of the- different courts of the late Territorial Government were in the constant habit of acting by deputy wherever their convenience required it. The same practice has prevailed under the State Government; without its legality or propriety having been ever before called in question. It has, then, been a custom coeval with the American government of the country; and even were we to allow that it originated in error, the maxim would then (if in any case) apply that communis error facit jus. I am of opinion with Judge Martin, that this custom has been sanctioned by the Legislature, in the act relative to deputies of the officers of our courts.”

The ancient usage of the State was impliedly sanctioned in 1825 by the 782d article of the Code of Practice, which declares, “ Clerks may appoint deputies, for whom they shall be responsible, and who shall take an oath before the court to fulfil well and faithfully all the duties entrusted to the clerk whom they represent.”

The system of entrusting a portion of the judicial power to clerks of court was not an entire novelty. In 1828, it was enacted by a Legislature, acting under a Constitution which contained no express provision like the 78th article of our present Constitution, that the orders of arrest, attachment, sequestration, provisional seizure and injunction, as well as the commissions to take the deposition of witnesses in civil matters, may be issued, either by the judge before whom the cause is brought, or by the clerk of his court: provided that the parlies applying for the same, comply with the formalities prescribed by law to obtain any one of the above-mentioned orders. It will not be denied that these functions involve the exercise of judicial power. And it is to be observed, that the grant of power is to clerks ; deputies are not mentioned.

Now, under this legislation it was the constant and uniform practice, during along series of years, in our Courts at New Orleans, (of the practice in the country courts I have not the same knowledge,) for deputy clerks to grant orders of attachment, arrest, and sequestration : orders specified in the 1st section of the act of 1846. No one, I believe, questioned the practice. It was assented to by the courts and the profession. Is it not reasonable to suppose, that the framers of the Constitution and the legislators of 1846 had in contemplation the ancient practice, legislation, and jurisprudence 1

To deny deputies the same extent of power, with reference to their principals, which they exercised without question, under the former judiciary system, seems pro tanto to defeat the purpose of the Constitution and of the act of 1846 ; which, as I have already suggested, was to prevent too great an accumulation of labor upon the district judges, and to promote the speedy and convenient progress of justice. If the interpretation which I maintain be not the correct one, those facilities, in several cases, are less now than they were before; and deputy clerks, who, under the old system, could order arrests, attachments, sequestrations, provisional seizures, and commissions, are now without authority to do so.

I do not say that the 18th section of the act of 1846 is entirely free from ambiguity; but I consider it susceptible of being construed as meaning, that the powers and functions of deputy clerks should be the same as they had formerly been; that is to say, that they should be capable of fulfilling all the duties of which the clerk is capable. C. P. 782.

In considering that a clause in a State Constitution, and the action of the Legislature under it, should receive a liberal interpretation, I wish not to be misunderstood. There are cases in which fundamental principles of truth and right may be involved: principles which do not owe their existence or their sanction to the Constitution. If a case should arise in which an interpretation of the Constitution or a statute should be invoked, which would bring them in conflict with such a principle, it would certainly be the duty of a judge to construe the former with a jealous strictness.

In conclusion, I may add, that as far as I have been able to ascertain, deputy clerks have, under the new judiciary system, been in the habit of exercising all the functions and powers of clerks, as they did under the old system. This contemporaneous exposition is entitled to much weight. The question before us is important for the past as well as the future.


text:
    Isaac Davis v. C. B. Binion.
    Upon a question of domicil, the declarations of aparty made in authentic acts are admissible in evidence against him, but he is not concluded by such declarations, and may disprove them in all cases where the domicil is not one of the causes of the contract.
    In a suit brought by attachment the defendant cannot reconvene and claim damages for the wrongful issuance of the attachment, unless the plaintiff resided in a different parish from that in which the suit is brought.
    APPEAL from the District Court of Carroll, Snyder, J.

      L. Selby, for plaintiff.

      Short and Collins, for defendant.
   The judgment of the court was pronounced by

Rost, J.

This suit was commenced by attachment on a claim of two thousand dollars, not due at the time, on the ground that the defendant was on the eve of leaving the State forever, and of removing his properly out of the State before the debt became due. .

. The defendant Binion answered the petition, denying the existence of the claim of the plaintiff, or of any contract under which it could have originated. He further answered, that he had a plantation and slaves in the parish of Carroll, which he never intended to abandon, and that the object of his visit to the State of Mississippi, during which the attachment issued against him, was well known to the plaintiff. That the sueing out of the attachment was a fraudulent, vexatious, malicious and illegal proceeding, by which he had been put to great trouble and expense. He asked that the attachment be dissolved, and a judgment in reconvention for counsel fees and other damages.

The case was hied before a jury, who returned the following: “We, the jury, find for the defendant in this, that the attachment was wrongfully sued out by the plaintiff, and we assess the defendant’s damage at two hundred and fifty dollars.” Sam’l. Neim,, Foreman.

The judgment was, that the attachment be dissolved at the costs of the plaintiff ; and that the plaintiff pay the defendant the sum of two hundred and fifty dollars. The plaintiff appealed.

The plaintiff sues upon a verbal contract for two thousand dollars. The witness offered to prove, it is his brother-in-law who testifies that he heard a contract between Davis and Binion, and that Binion agreed to give Davis two thousand dollars for certain buildings and improvemens on a quarter section of land; and that he has heard him say that he owed Davis that amount. Unfortunately for this witness his subsequent testimony shows that these statements cannot be true. He says that Davis and Binion originally bought of William Collins, on joint account, the improvements on two quarter sections of land. They then made a division, and each obtained a preemption right to the quarter section that fell to his share. It was found that the two quarter sections were equal in regard to the land ; but that the improvements on the quarter section of Binion were worth two thousand dollars more than the improvements on the quarter section of Davis.” If this be true, as Binion and Davis were joint owners, it is clear that one-half of those improvements belonged to Binion, and that he could not owe Davis two thousand dollai-s.

Franklin, the next witness for the plaintiff, says that Binion told him he intended to separate from Davis. That shortly after he said he had done so; and that the difference in the value of the two- quarter sections, including the improvement, was $2000. He did not understand Binion to say that he was to pay Davis $2000 dollars.

Other Witnesses testify that Davis sent to Binion a note for two thousand dollars to be signed by him, which he refused to do, giving as a reason, “according to some of the witnesses,” that it was for too large' an amount, and did not contain stipulations which were to be inserted in it; and stating, according to others, that he never agreed to pay any such amount, and that if Mr. Davis thought that his quarter section was so valuable he might take it and give him the other.

The evidence in the record shows conclusively, that although Davis and Binion had agreed to make a division of the land, the terms and conditions upon which it was to be made were never finally agreed upon between them. The contract remained incomplete: the plaintiff claiming two thousand dollars, and the defendant, if he consented to pay anything, only offering a portion of this sum on certain conditions not clearly stated by the evidence. Being satisfied that no contract has been proved, it is unnecessary to enquire whether the contract alleged could be enforced at law, and also whether the plaintiff had reasonable cause to believe the facts to which he swore to obtain the attachment.

It is urged, that the district judge erred in admitting the proof of any damages arising in this suit; and that, if any damages were sustained by the defendant, his remedy is by a separate suit on the attachment bond.

The reeonventional claim for damages rests upon the allegation that the plaintiff is not a resident of the parish in which he sues, and is made under the well known amendment to art. 375 of the Code of Practice.

To prove the residence of the plaintiff in the State of Mississippi, the defendant offered, among other evidence, an authentic act, to which the said plaintiff is a party, passed a short time before the institution of this suit, and in which he represents himself to be a citizen of that State; to the admission of which the plaintiff’s counsel objected, on the ground that Binion was not a party to it. But the court overruled the objection; and the plaintiff took a bill of exceptions.

The district judge did not err; the document was admissible to show the declaration of the plaintiff as to his domicil. Upon its admission the plaintiff offered to prove, that the act had been dictated “by the defendant’s counsel, and that that portion of it which states the plaintiff to be of “Hind’s county, State of Mississippi,” was not read to him by the notary or any body else; and that he never read the act himself, or knew of said declaration until it was offered in evidence here. The court refused to admit the evidence, and charged the jury, that the plaintiff was bound by his declarations of domicil in the authentic act. To these rulings of the court the plaintiff’s counsel objected. We are of opinion, that the district judge erred in his charge to the jury. The same question was before us in the case of Hill, McLean 8f Co. v. L. Spangenberg, 4th Ann. 553; and after mature deliberations we held, that a party so situated was not concluded by his declaration's of domicil in authentic acts passed with third persons, and that lie might disprove them. We have no doubt of the correctness of the rule in all cases where the domicil is not one of the causes of the contract.

We have no means of ascertaining to what conclusion the jury would have come as to the residence of the plaintiff, if this charge had not been given. We will therefore dismiss the reconventional claim without prejudice.

It is ordered, that the judgment in this case be reversed. Itis furtherordered, that there be judgment in favor of the defendant, with the costs of the district court; those of this appeal to be paid by him. It is further ordered, that the claim of the defendant in reconvention be reserved.


text:
    Same Case — On a Re-hearing.
    THE appellee, Binion, prays for a re-hearing, and makes but one point, namely, that the court has erred, in supposing that his reconventional demand was founded on the non-residence of the plaintiff, Davis. If it had been so founded, we admit that the district judge may have injured plaintiff by the decision. But we do not rely on the amended article of the code: 375. The residence or non-residence of Davis was and is wholly immaterial.
    On the contrary, our whole demand in reconvention was based on the proposition that, in every case of malicious and vexatious attachment, defendant may claim reconventional damages for injury to his good name. Offat v. Edwards, 9 R. R. 90, decides this clearly, and is in every respect a parallel case.
    The domicil of the plaintiff, then, being unimportant, the ruling of the district judge caused no injury. We have never disputed the principles tf Hill, McLean 4* Co. v. Spangenberg. But in that case the residence was material. In this it is not. Moreover, Davis was allowed to prove his actual residence. The record shows it. We pray, then, that the judgment below may be affirmed in all respects.
    The court will also observe that the defendant was not permitted to prove any such damages as he might have recovered against plaintiff on the attachment bond.
    He was restricted to such as grew out of the nature of the action itself. We think, then, with great deference, that the court has misapprehended our pleadings in this point. On that, therefore, we desire to be re-heard.
    Short and Collins, for defendant.
   The judgment of the court on a rehearing was pronounced by

Rost, J.

We inadvertently omitted to state in the opinion in this case the

conclusion to which we had come, that the defendant could not go into the question of damages on his reconventional demand without the plaintiff’s assent; and that as the assent was withheld he must resort to his action on the attachment bond. For this reason we considered that his right to reconvene depended upon the place of his domicil.

The re-hearing in this case is refused.