text:
    Olivier Lafleur v. C. H. Mouton et al.
    Matter which may be pleaded to the merits, cannot be made grounds for an Injunction.
    It is a good defence for the surety on a forfeited recognizance, that the principal had been tried and acquitted of the offence for which he was bound oyer, since the forfeiture.
    An Injunction will not be dismissed when it appears that the party will be immediately entitled to the same remedy,
    Appeal from the District Court, parish of St. Landry, Cushman, J., presiding.
    Linton, for plaintiff and appellant.

      Hardy & Mouton, for defendants.
   Rost, J.

A judgment was regularly obtained on behalf of the State, against the plaintiff, as surety on a forfeited recognizance given by Olivier Lafieur. He appealed from that judgment, but failed to give bond during more than twelve months, and the judgment thus became final. Execution having issued upon it, and property of the plaintiff having been seized, he obtained an injunction, alleging that the recognizance did not state the cause for which it had been taken, and that judgment was improperly rendered against him on that ground.

It is manifest that this was a defence to the merits known to the plaintiff at the time the judgment was obtained against him, and consequently no legal ground for an injunction; but on the trial of the case, the counsel for the plaintiff gave in evidence the indictment charging Olimier Lafieur with an attempt to commit a rape, and at the same time offered legal evidence to prove that since the institution of this suit the accused had surrendered himself; had stood his trial, and had been acquitted; which was objected to on behalf of the State, and the objection sustained by the Court on the ground that the pleadings did not authorize the admission of the evidence. This is strictly true, but as we have no reason to doubt the truth of the facts alleged, and they are sufficient to authorize the injunction of the judgment, ive feel bound to adhere to the rule, not to dismiss an injunction when we believe that the plaintiff would be immediately entitled to the same remedy. See the case of Exiniceas v. Dies, 3d N. S. 480; Chambliss v. Atchison, 2d Ann. 488; Dorcey v. Hills, 4th Ann. 107; Gillespie v. Police Jury, 5 Ann. 406.

If the accused has been fairly tried and acquitted, which we do not understand to be denied by the counsel for the State, the State has no further claim under the recognizance, although it may have ripened into a judgment. See 7th An.

We have concluded to remand this case, with leave to both parties to amend; but as the costs attending this disposition of it are attributable to the plaintiff’s neglect, relief is granted to him upon condition that he shall pay those costs.

It is ordered that the judgment be reversed, and the case remanded for further proceedings, with leave to both parties to amend, the plaintiff paying all the costs incurred up to this date.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Governor of Louisiana v. Theodore Fay.
    Allowing and fixing the amount of bail are judicial acts, which the Executive is prohibited from doing by the second article of the Constitution.
    The power to bail is not incidental to the power of granting reprieves.
    So long as the opinion o the majority of the Court, in The Slate v. Longworfh^ prevails, a party convicted of a bailable offence, may be released by Habeas Corpus, after final judgment.
    The rule, that in whatever manner a man binds himself he shall remain bound, may be true in mere conventional obligations, but in criminal cases no bonds are obligatory except those taken in pursuance of law.
    Appeal from the District Court, parish of St. Mary, Voorhies, J.

      E. Simon, jr., District Attorney, and E. Simon, for plaintiff.

      Tucker & McGill, for defendant and appellant.
    Plaintiff’s counsel filed the following brief:

      Alexander Brette was convicted of manslaughter in the parish of St. Mary, on the 4th of February, 1861, and on the 8th of the same month was sentenced to seven yean's imprisonment at hard labor in the penitentiary. He took an appeal, which was carried before the Supreme Court, at its September term, 1851, at Opelousas, whereupon the judgment appealed from was affirmed.
    It appears that after the rendition of the judgment of the appellate Court, but before said judgment could be returned and recorded in the lower Court, Alexander Brette, assisted by his friends, and especially by the defendant in this suit, (his father-in-law) took certain steps to procure, or rather to secure, a reprieve and respite from the Executive of the State, in view of a definitive pardon, with the advice and consent of the Senate; whereupon, on the 5th of December, 1851, the Governor issued his warrant, addressed to the Sheriff of the parish of St. Mary, notifying the latter of the granting of a reprieve or respite to Brette, upon condition that he, Brette, should furnish his bond to the said Sheriff in the sum of $10,000, with Theodore Fay, (the defendant) as security ; the condition of the bond to be, that Brette should deliver himself up to the proper authority and comply with the terms of his sentence on the first day ofMa/rch, 1852, or before, if required, should a full pardon be not granted to the said Brette, in conformity to law and the requirement of the Constitution. This could not be done, however, until the return and recording of the judgment of the Supreme Court in the ower Court for execution, and the convict kept the Governor’s warrant in his possession until the first day of the term, when presenting himself in open court, he handed said warrant to the Sheriff.

      On the 12th of January, 1852, (first day of the session of the District Court) the judgment of the Supreme Court was filed in the lower Court and ordered to be recorded and carried into execution, (see page 9) and on the next day (13th January,) the convict having presented himself in open court and placed himself in the custody of the Sheriff, it was ordered that the bond by him given for his appearance, and to abide by the decision of the Supreme Court (Theodore Fay was Beetle's surety on that bond) be canceled and annulled. It appears that immediately after that proceeding the Governor’s warrant was read in open Court; that the Sheriff observed to the Judge presiding, that Brette had presented to him a reprieve from the Governor, but that the Judge very properly answered that the Court had nothing to do with it,—that the matter was ended in the Court by whom the sentence had been pronounced. The convict was in the custody of the Sheriff, who, in compliance with the Governor’s warrant, required him to execute the bond sued on, with the defendant as his surety, and Brette, after having furnished said bond, as contemplated in the warrant, was set at liberty.
    The bond sued on was taken by the Sheriff strictly in conformity with the terms of the Governor’s warrant, and stipulates the condition in the very words used by the Executive in granting the reprieve, and it must seem clear that the defendant's name was inserted in the warrant as being the surety who was to bind himself as such with the convict, in consequence of his having previously given his consent to becoming such surety ; nay, of his having assisted his son-in-law in obtaining the respite in consideration of which the obligation sued on was contracted. The respite had its effect after the execution of the bond ; the defendant had his eyes open when he signed it; he well knew its object; he loillingly consented to become bound as surety, and it is indeed a strange position on his part to contend that the Governor of the State, from whom the reprieve or respite was obtained, and who had the constitutional power of granting it, had no authority to require and receive the bond without which the sentence of the law would have been carried into effect, and without which the convict would have been deprived of his liberty.
    The action of the Senate was subsequently required by the Governor on the reprieve granted to Alexander Brette, but the pardon was refused by a very large majority; and on the 5th of February, after due communication made to the Governor by the Secretary of the Senate, official information thereof was given to the Sheriff of the parish of St. Mary, with instructions to take due notice thereof and to govern himself accordingly; this notification was accompanied with a letter of the Attorney General to the Sheriff, giving him his views on the subject, whereupon the latter, after diligent search for the convict within the limits of his parish, and due demand made of the defendant, as said convict’s surety on the respite bond, come to the conclusion that Brette had either absconded or fled, to avoid the sentence of the law, and made his return to the Govenor accordingly.
    This suit is brought to recover of the defendant the sum of ten thousand dollars, which is the amount of the bond or obligation by him voluntarily subscribed with Alexander Brette, a penitentiary convict, for the purpose of allowing the latter the enjoyment of his liberty, and the benefit of the constitutional right of giving bail to await the final action of the Senate on the reprieve granted by the Governor. This bond has had its effect, but the condition under which the obligation was contracted has not been complied with, and the undersigned contends that said defendant, as the surety of the absconding or fleeing convict, has become liable for the payment of the obligation sued on.
    The defendant has filed an answer, which he calls his peremptory exception to plaintiff’s demand, and which amounts to this: 1st, That the instrument sued on was taken in a case not bailable. 2d, That said instrument is a bond given for an illegal and immoral consideration, and one reprobated by law. And, 3d, That the Governor had no power to require, nor the Sheriff to receive or accept such an instrument as the one sued on—said instrument being not a bond or obligation known to or recognized by the laws of the State; and that the Sheriff had no power or authority, on receiving said instrument, to liberate the prisoner from his custody. Wherefore, he prays that the suit be dismissed and that the instrument or bond sued on be declared null and void.
    On these pleadings, the Judge a quo, without disclosing any of the reasons upon which he may have based his judgment, but simply finding that the law an(j evidence are in favor of the defendant, adopted the latter’s conclusions, and from that judgment the undersigned, representing the State, has appealed.
    I. One of the exceptions set up is: That the instrument sued on was iahen in a ease not bailable. I presume this exception will not be insisted on by the defendant’s counsel, but if it is, it will be sufficient to refer him to the decision of this Court in the case of Ex parte Longworth, 7 Ann. Rep. 6, based upon the 108th Art. of the Constitution, which provides that “ all persons shall be bailable by sufficient sureties, unless for capital offences,” &c. In that case, this Court, after reviewing a great number of authorities applicable to the question under consideration, seems to entertain the opinion, not only that the Constitution allows to a prisoner the right of being bailed after conviction during the pendency of the appeal, but that the right extends also to a convict, the execution of whose sentence is suspended by the interposition of the Executive until the action of the Senate on the reprieve or respite which he may have obtained. “In England,” says this Court, “a person improperly convicted was released not by a new trial, but by the King’s pardon, and no doubt might be bailed until the pardon could be obtained.” A fortiori, should ho bo bailed here, when the benefit of a respite has been constitutionally allowed him by the Executive, subject to the pardon being granted with the advice and consent of the Senate. Under the Constitution, our Legislature cannot meet rcgularty but once every two years; thus the convict would be obliged to wait sometimes two years before the action of the Senate could be had upon his reprieve. This was one of the considerations operating- upon this Court in the case of Longworth, for, as therein expressed, the prisoner might be in bad health, and might perhaps be deprived by death of the Executive clemency, if detained in the parish prison two years before he could enjoy it.

    The bond or obligation sued on is anterior to the law of 1852. At the time it was given, there was no legal restriction or impediment to the full exercise of the right of being allowed to give bail, as provided for in the Constitution, and the reprieve or respite once granted to Brette, it followed as a constitutional right, that although convicted and sentenced, his bail by sufficient sureties could not be refused; his offence had ceased to be a capital one; it had become bailable, to wit: one for which the party had the right to avoid being detained in prison, on giving the security required; and if so, as recognized by this Court in the case of Longworth, it is clear that the right was property exercised by the convict, after the Sheriff was notified of the reprieve or respite granted by the Governor.
    II. That the instrument sued on is a bond given for an illegal and immoral consideration, and one reprobated by law. The defendant’s counsel will hardly insist upon this ground of his client’s defence, and if he does, this Court will say with me that it comes from the latter with very bad grace. What! the defendant’s obligation as surety of his son-in-law, then under the benefit of a reprieve or respite granted by the Governor, that his said son-in-law, after enjoying his full liberty during the suspension of his sentence, should deliver himself up to the proper authority and comply with the terms of his sentence, should a full pardon not be granted to him, is one contracted for an immoral consideration! What! the cause of the obligation, which was not only to secure the presence of the convict after the action of the Senate and the ultimate execution of the sentence, if the pardon was refused, but also to permit Brette to enjoy his liberty, to avoid being detained in prison for several months and to remain at home with his family, was an immoral one!! Is there anything repugnant to morality in the cause and object of this contract? Surely not: it was, on the contrary, not only moral, but very natural in the defendant to lend his aid to Brette, who was a member of his family, and to afford him, by contracting this obligation, the means of avoiding detention, and of obtaining a full pardon from the competent authorities of the State. For aught it appears, the defendant himself was instrumental in obtaining the Governor’s reprieve; his name had been proposed, perhaps by himself, as the convict’s surety; it was inserted in the Governor’s warrant as such; and after having been present in the transaction the obligation sued on was subscribed by defendant, with a full knowledge of all the circumstances. There is clearly no more immorality or illegality in defendant’s contracting this obligation than there would be in any one becoming the suretj' of any person either before or after conviction, under the Art. 108 of the Constitution, and the offence being bailable, as I have already shown, the consideration of the bond was one not reprobated by law.

      III. This exception, to wit: that the Governor had no power to require nor the Sheriff to receime or accept such an instrument as the one sued on, has been strenuously urged in the Court below, where it has undoubtedly prevailed. It behooves me to show that the judgment appealed from is erroneous :■—■
    By the 47th Art. of the Constitution, the power of granting reprieves for all offences against the State, is vested in the Governor. This power was exercised in the case of Brette, and from the moment the will of the Executive was made known officially to the Sheriff, the execution of the sentence of the law was necessarily suspended. The Sheriff was bound to obey the mandate or order of the Governor; he had no right to disregard it; and in complying with it, it is clear he could not be accused of acting in contempt of the authority of the Court by whom the warrant of execution of the sentence had been issued, as all jurisdiction of said Court over the case and over the prisoner had ceased from the moment said sentence ivas pronounced and ordered to be carried into effect. The Judge a quo was well aware that such was the position of his tribunal, when on being informed that Brette had presented to the Sheriff a warrant of reprieve from the Executive, Ae answered: the court had nothing to do with it. The Governor’s warrant, issued in the exercise of the constitutional power of granting reprieves, is not a Judicial proceeding; it is, as expressed by the Judge a quo, foreign to the administration of justice, and out of the control of the Judiciary power; Courts of Justice home nothing to do with it; but yet, under the Art. 108 of the Constitution, and the interpretation adopted by this Court, in the case of Ex parte Longworth, the convict had the right of being-bailed by sufficient sureties; the sentence was suspended, but the prisoner was constitutionally entitled to be liberated; aud the question presents itself: who was to require and receive his bond with sufficient sureties? and who was to Judge of the sufficiency of the security?
    I contend that the ordering and taking of the bond in a case of reprieve, to arrest the ultimate action of the Senate, in view of a full pardon of a bailable offence, must be one of the incidental powers belonging to the Executive, in the exercise of the power conferred upon him by Art. 108 of the Constitution. 1-Iow could it be otherwise ? The obligation is not to bo given in the course of Judicial proceedings; it is foreign to the administration of justice; no Court has any jurisdiction to require it; it is not provided for by the criminal laws ; the convict does not bind himself to appear before any tribunal, but only to deliver himself up to the Sheriff who, in such cases, is merely an Executive officer. Should not the Executive, then, when the reprieve is to be followed by liberation, have the power and authority to fix the conditions and the- amount of the obligation under which such liberation is to take place, and to delegate the receiving of such obligation to the Sheriff, who, in not executing the sentence, by order of the Governor, is clearly acting under the immediate control of the Executive ? In the case of Longworth, who was admitted to bail by order of this Hon. Court, your Honors delegated the same power to the Sheriff who had the prisoner in his custody—and why ? Because the jurisdiction of the inferior Court had ceased by the appeal, and because the inferior Judge could not, after his refusal to bail the convict, act any further in the taking of the bond. There is no law that gives the Sheriff the power of receiving a bail in criminal proceedings, and yet this Court, ex necessitate, and in the exercise of their appellate jurisdiction, delegated it to the Sheriff! A¥hy should it not be so in the case of a reprieve, when the convict is no longer under the control and jurisdiction of the Court, and when his conditional release is to be the consequence only of the constitutional action of the Executive ?
    But, besides the questions presented by the defendant’s exceptions, and whether or not the Executive acted properly and legally in requiring the obligation sued on to be given by the convict, I maintain that said defendant is bound by the terms of the obligation by him voluntarily contracted, and that said obligation, having had its effect as originally intended, he has no right to be released from it.
    The obligation sued on is a civil one, (it is not one provided for by the criminal laws of the State, nor is it one taken in the course of criminal proceedings) it is in the nature of an obligation with a penal clause. 0. 0., Art. 2118. It contains two distinct contracts—one on the part of the convict, to deliver himself up to the Sheriff and to comply with the terms of his sentence, which is the principal object of the contract, and the other on the part of both obligors, to pay $10,000 as a penalty, if the principal object of the agreement is not carried into effect. O. O. 2114. The principal obligation here is independant of the penalty, though the latter depends upon the performance of the condition, that is to say: of the main object of the contract. C. C. 2115. It is stipulated to enforce (pour assurer) or rather to secure the performance of the principal obligation. 0. C. 2116. And the nullity of the penalty does not involve that of the principal obligation. 0. C. 2119. If there be a lawful excuse for its non performance, such as inevitable accident, (death, for instance,) or irresistible force, the penalty is not incurred. C. C. 2116.
    _ Now, the main object of the contract was to secure the presence of the convict at a certain period to comply with the sentence, the execution of which was suspended; this was the principal obligation; and on his failing to do so, the obligors were to pay the penal amount stipulated in the bond ; this if: the penalty. The advantage to be derived from it, or in other words, the consideration was the release of Brette from imprisonment and the right of enjoying his liberty until the final action of the Senate on the pardon applied for. The proposition was made to the Governor sometime before the contract was executed (5th of December, 1851,) it was adhered to by all parties; the defendant’s name was inserted in the warrant as being the surety ; and when the convict placed himself in the custody of the Sheriff, on the return of the mandate of the Supreme Court to the lower tribunal, his former appeal bond, also subscribed by the defendant as his surety, was canceled and annulled, and in compliance with the requirements of the Executive in his official warrant, the obligation sued on was willingly^ executed on the same day by the defendant. Volenti non fit injuria, is a maxim fully applicable to this case; so in the case of Bradford v. Shill-man, 6 N. S. 123, it was decided that the surety on a twelve months bond cannot be discharged from responsibility on the ground that the law by virtue of which the bond was given, is unconstitutional. The Court said: “The plaintiff willingly became the bondsman of a willing purchaser, and executed a bond, in the nature of a recognizance, on which he knew execution would issue de piano. It appears to us he cannot complain, volenti non fit injuria.” In the case of Poliee Jury v. Sherburne, 17 L. R. 345, it was decided that the sureties on a bond given by a Sheriff for the collection of the parish taxes, cannot contest the legality of the ordinances of the Police Jury making the assessment. By receiving the tax roll and executing the bond, the Sheriff and his sureties recognized the authority of the the Police Jury. It is too late to contest the validity of these ordinances after having acted under them. See also 3 R. R. 196. Here, again, volenti non fit injuria, the convict had the benefit of the effect of thebond, the obligors by executing the obligation, recognized the authority of the Governor; and it is now too late to contest the said authority, and to contend for the nullity of an obligation, under the shield of which, the time during which the prisoner was to enjoy his liberty, was permitted to run out, and the convict was enabled to make his escape, in defiance of the obligation ho had contracted, and of the criminal laws of the State. In the case of Longworth, this lion. Court was impressed with the truth and weight of the observations of the Attorney General, that the construction they were obliged to give to the Art. 108 of the Constitution might conflict with the best interest of society by enabling a wealthy criminal to escape justice by means of his property; here, it is worse; for the object of the defendant in endeavoring to avoid the responsibility he has incurred, is nothing more or less than an attempt to secure forever the impunity of a heinous crime, and to screen the convict’s property from the reach of our criminal laws. Such, I hope, will not be the result of his endeavors.
    _ It is a well known legal rule that when a man becomes the surety of a married^ woman in a contract in which she is not authorized by her husband, the nullity of the principal obligation will not release him, he shall be bound. The same rule also governs in the case of the surety of a minor; the latter may not be obligated by his contract, but the surety is bound. Why, then, should not the defendant be bound by the obligation sued on? He contracted it willingly, with his eyes open, with a full knowledge of all the circumstances; it matters not as to the form of his contract, whether it is called a bond or any other form, it contains an obligation, the nature and the object of which he was well aw'are of, and if it be true that every engagement entered into for a good and lawful consideration is binding, whatever be its form, (Dunbarr v. Owens, 10 R. R. 140,) I feel confident the State will recover the amount sued for.

      Defendant’s counsel filed the following brief:
    This is an action brought by the State to recover from the defendant the sum of §10,000, the penalty of a bond signed by him as the security of one Alexander Brette, which was given under the following circumstances, as particularly detailed in the petition, to wit: On the 4th of February, 1851, in the
    District Oourt of the parish of St. Mary, Brette was convicted of the crime of manslaughter, and sentenced to seven years’ imprisonment at hard labor in the Penitentiary, and to pay the costs of prosecution. He appealed to the Supreme Oourt, and during the pendency of the appeal went at large under a bail bond, taken by order of the District Oourt. The judgment was affirmed by the Supreme Court, and on the mandamus being read’in the lower Oourt, and ordered to be executed, Brette appeared in open Oourt, and delivered himself into the custody of the Sheriff, whereupon his said bail bond was canceled of record.
    The Sheriff ha d been notified of the reprieve of Brette by the Governor, by the following communication from the Executive Department, which was in his hands at the time Brette was in custody. As this communication forms a material part of the case, and is relied on by the State as vesting power in the Sheriff to take the bond and to liberate the prisoner, we give it at length in our brief:—
    Executive Office, Baton Rouge, 1 December 5, 1851. )

      To the Sheriff of the parish of St. Mary :

    Whereas Alexander Brette was tried and convicted before the Fourteenth Judicial District Oourt, on the 4th of February, 1851, of the crime of manslaughter, and sentenced on the 8th of the same month to seven years’ imprisonment at hard labor in the Penitentiary, with costs of prosecution:
    Now, be it known that for good and sufficient reasons, I do hereby grant a reprieve or respite to the said Alexander Brette, until further consideration of his case, upon condition that the said Alexander' Brette shall furnish bond and security to the Sheriff of the parish of St. Mary in the usual form, in the sum of $10,000, with Theodore Fay, of said parish, as security, the condition of which bond to be that the said Alexander Brette shall deliver himself up to the proper authority, and comply with the terms of his sentence, on the 1st day of March, 1852, or before, if required, should a full pardon be not granted to said Alexander Brette, in conformity to law and the requirements of the Constitution.
    Given under my hand, and the seal of the State, &c.
    ( T „ 1 * By the Governor:
    ) u \ (Signed) JOSEPH WALKER.
    CnAKLES Gayabbe, Secretary of State.
    Acting under the authority herein communicated, the Sheriff, on the 13th of January, 1852, took the bond which forms the subject of this suit, and liberated the prisoner, Brette, from his custody, who has ever since been at large.
    The bond is in the usual form, made payable to the Governor, and in other respects conformable to the terms of the above communication.
    The Senate refusing to concur in the pardon recommended by the Governor, the fact was officially notified to the Sheriff, whereupon he made an unsuccessful search for the body of Brette, and made return accordingly.
    The defendant resisted the payment of the penalty of the bond on the following grounds, as setforth in his answer or peremptory exception to the plaintiff’s action, that—■
    1st. The instrument sued on was taken in a case not bailable, and without any legal authority.
    2d. The Sheriff” had no power to receive the bond and liberate the prisoner, Brette, from custody, and in doing so he acted without authority and against the law.
    3d. The mandate from the Governor to the Sheriff was unauthorized, and clothed him with no power to take the bond and liberate the prisoner.
    4th. The said instrument was not a bond or obligation known to or recognised by the laws of this State, and could not be enforced against the principal or this defendant, his security.
    5th. From the face of the instrument, as recited in the plaintiff’s petition, it was given for an illegal and immoral consideration, one reprobated by law and in contravention of the same.

      6fh. The Governor and Sheriff were alike without authority to demand or accept such an instrument as the one sued on, and the same is void.
    Wherefore defendant prays that this suit be dismissed at plaintiff’s cost, and the instrument or bond sued, on be declared null and void, and for general relief, &c.
    Upon this issue the case was tried on its merits, and judgment was rendered in conformity to the defendant’s prayer, from which the State has appealed.
    The validity of the bond, and the consequent right of the State to recover the penalty from the surety, depends mainly upon two questions:
    1st. Whether the Sheriff, by virtue of the authorization of the Governor, or by virtue of any power vested in him by law, had authority to accept the bond and liberate the prisoner from his custody.
    2d. If he had the requisite authority, then, whether the bond is not viciated by the illegality of the cause or consideration for which it was given.
    I. It will scarcely be seriously contended by the counsel for the appellant that the Sheriff had any power to receive the bond, except what he derived from the mandate of the Governor. In the case of Slocum et al. v. Robert (16 L. R. 178) it was held that in case of judicial bonds taken by the Sheriff from persons in his custody, “ he has no power to take any other bond but that which he is authorized by law to take.” That was a bond taken in a civil proceeding, where the prisoner was in the custody of the Sheriff under a writ of arrest, and taken under article 224 of the Code of Practice. And all the cases wherein the Sheriff is authorized to take a bond from persons in his custody are civil cases, the law prescribing the conditions of the bond, and the Judge fixing the amount of the penalty, so that what is done by the Sheriff is merely ministerial. In criminal cases, however, he has no power to take any bond except as ordained by the Judge. (State v. Jones, 3 An. 10 ; State v. Lougeneau, 6 An., 700 ; State v. Wyatt etal., 6 An., 701.)
    But has the Governor the power to take the bond, or to authorize the Sheriff to take it? Wo say he has not. If he has such power, it must be derived from one of these three sources—-first, from the express terms of the Constitution or the statutes of the State; second, by necessary implication, in order to exercise some power expressly granted, or third, it must result from the nature of his office.
    There is no statute granting this power, or in any way relating to it. The articles of the Constitution defining the powers and duties of the Governor do not touch it. Article 33 vests in him the “ supreme executive authority of the State.” By Article 55 it is made his duty “ to take care that th'e laws be faithfully executed.” Article 47 gives him power to grant reprieves for all offences against the State, and except in cases of impeachment, with the consent of the Senate, to grant pardons and remit fines and forfeitures after convictions.” There is certainly no such power expressly granted in any of these articles, or in any other in the Constitution.
    But the power to let to bail is claimed to be necessary in order to exercise the reprieving- or pardoning power granted by Article 47. This necessity, we suppose, (to have any effect) must be a legal necessity—such as would render nugatory the power to reprieve or to pardon, without exorcising the power to bail, which, in that case, would be properly considered as a latent or implied power. But does any such necessity exist? Cannot the convict whom the Governor thinks proper to reprieve and pardon, remain in the custody of the Sheriff, or in the parish prison, until the action of the Senate can be had, as well as go at large ? . True, it would be less for his comfort and convenience, but the comfort or convenience of the prisoner cannot amount to a legal necessity for the exercise of a power not expressly granted. Nor is the question to be effected by the right of bail secured to the prisoner by Article 108 of the Constitution, as interpreted by this Court in the late case of Ex parte Longworth, 7 An.
    That case, while it maintains the right of the prisoner to be bailed, even after conviction, does not intimate that the bail is to be granted by the Governor, but it clearly shows that that power is to bo exercised by the Judge. If there was a legal necessity for bailing the prisoner, or if he had a constitutional right to bo bailed during the pendenc3r of his pardon before the Senate, the bail should have been granted b3r the Judicial, and not the Executive authority, upon the presentation of the reprieve under the signature of the Governor and the seal of the State. This would be in conformity, as near as the difference of circumstances would permit, with the mode of taking advantage of the King’s pardon in England, which is, “ to procure the King’s sign manual or privy seal, signifying his Majesty’s intention to afford a pardon to the prisoner, either absolutely or conditionally as the case may be, and directing the justices of the goal-delivery to bail him, on his entering into a recognizance to appear and plead the next general pardon that shall come out. This mandate the justices obey, taking security, if the pardon is conditional, for the performance of the stipulation upon which it is granted, and afterwards issuing their warrant to the goalorfor his discharge.” (4 Hawkin’s P. 0., 361.)
    It is in conformity to the principles of the English law, as well as of our own, that the bail be granted and the bond received by a judicial, and not a ministerial officer. The King does not grant the bail himself, nor issue his mandate to that effect to the Sheriff of the shire, but to the justices of the goal-delivery.
    But, lastly, does the right of the Executive to let to bail in such cases result from the nature of the Executive office ? So far from it, the granting of bail is quite incompatible with the duties of the Governor, as prescribed and limited by the Constitution.
    Article 1 of the Constitution divides the government of the State into three departments—-the Legislative, the Executive and the Judicial. Article 2 provides that “mo one of these departments, nor any person holding offiee in one of them, shall exercise power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.” Article 62 vests the Judicial power in the Supreme Court, in Distri -t Courts, and in Justices of the Peace. Hence it is clear that the Governor cannot do any judicial act. But it has been decided by this Court, in the case of The State of Louisiana v. Jones, (3 An. 10) that “ the granting of bail and determining the amount in whieh the pan-ties shall be bound, a/re judicial acts.” The duties and powers of the Governor, as well as of the Sheriff, are purely ministerial. The granting of bail by the Governor, in the case at bar, was exercising power properly belonging to the Judiciary, and was, therefore, in direct violation of the prohibition contained in Article 2 of the Constitution.
    The proposition, then, appears to be clear, that there was no authority whatever, either in the Governor or the Sheriff, to take the bond; but that they were, on the contrary, forbidden by Article 2 of the Constitution to do so. The case, then, does not differ from the case where a Justice of the Peace or a Parish Judge assumes to take a bond without authority, except that the case at bar is much stronger against the pretensions of the State, this bond having been taken without any color of judicial authority.- But it has often been held by this Court that “a bail bond'taken by a magisPi-ate, in a case in which he is prohibited by law from admitting the party to bail, is void, and the State cannot recover onit." (State v. Herbert, 10 R. R. 41; State v. Jones, 3 An., 10 ; State v. Harper, 3 An., 598; State v. Hays, 4 An., 59.) Whatever is done in contravention of a prohibitory law is void. (C.' C. 12.)
    II. But supposing there was the necessary authority in the officers who let the prisoner ('JBrette) to bail, is not the bond viciated by the cause or consideration for which it was given ? We think it is.
    The governor grants a reprieve or respite to the prisoner upon the express “ condition that he shall furnish bond and security to the Sheriff of St. Mary, in the usual form, in the sum of $10,0.00, with Theodore Fay, of said parish, as security.” The giving of the bond, then, was the price paid by the prisoner for the reprieve or respite granted by the Governor, and for the privilege of going at large. The Governor had the discretionary power to grant the reprieve or not, according as he might judge of the merits of the application; but we submit that he had no right to append any such condition to the exercise of that power. It amounts in effect to a commutation of the sentence from imprisonment for seven years in the Penitentiary to the payment of $10,000 fine—an arrangement which, however good as a financial operation on the part of the State, but illy comports with a just regard for public morals, or with the Constitutional power of the Executive. The power to grant a reprieve or pardon does not imply a power to commute a sentence of imprisonment to the payment of a sum of money. If it did, it might be no difficult matter for the rich to “buy out the law,” and thus to “go unwhipped of justice.” If it had been designed to lodge such power in the Executive, it would have been expressed in the Constitution, and the price of every reprieve or pardon should have been fixed by a regular fee bill. If the State should be permitted to recover in this action, it might in truth bo said that Brette had bought his liberty at the price of $10,000, and the State has received the money !
    III. This leads us to consider a point relied on by the counsel for the State, to wit: that although the bond may have been, taken without authority, yet it is good as a voluntary obligation; in other words, that the bargain entered into between the prisoner (Brette) and Fay, his security, on the one part, and his Excellency, the Governor on the other part, by which the former undertook and agreed to pay, in a certain contingency, the sum of $10,000, in consideration that the latter should grant Brette a reprieve, and permit him to go at large, is good and binding on the security, as a voluntary obligation, although the Governor had no legal power to contract in the premises. It is a sufficient answer to this proposition that this Court has held in numerous cases that “ a bail bond taken by a magistrate without authority, is void, and the State cannot recover on it.” (See cases above cited.) This bond lacks one of the essential elements of a valid agreement, to wit: “parties legally capable of contracting." (C. C. 1772.) Without legal authority to receive the bond, the Governor had no legal capacity to bind the other parties. The maxim invoked in the Court below by the counsel for the State, that “ in whatsoever manner a man binds himself, he shall remain bound,” it was decided by Judge Martin, is not true in “judicial bonds taken by the Sheriff from persons in his custody.” (Slocum et al. v. Robert, 16 L. R., 173.) The fact that Brette has enjoyed the benefit of the bond and escaped the walls of the prison can not cure the defect of authority. It was a dereliction of duty in the public officer in granting him his liberty, for which, doubtless, he would be punishable under the common law, as for an escape. (3 Hawkins’s P. C., 254 and 157.) But the validity of the bond is to be tested by well established principles of law, which are not to be affected by any accidental advantage or disadvantage that may have accrued to any of the parties concerned. Public officers must act under authority of law, in order to give validity and binding effect to their acts, especially in criminal proceedings; and as there is no color of authority for receiving the bond in the case at bar, we trust the Supreme Court will find no difficulty in affirming the judgment of the Court below.
   Rost, J.

There is no error in the judgment in this case. The allowing of bail and the determination of the amount in which the parties are to be bound, are judicial acts which the Executive is prohibited from doing by the second Article of the Constitution of the State. The power to bail is not incidental to the power to grant a reprieve. See State v. Jones, 3 An., page 10.

The argument that the Court is wholly divested of jurisdiction after a final judgment, is inapplicable to a case of bail, so long as the opinion of the majority of the Court in the case of The State v. Longworth prevails. The party entitled to be bailed may be relieved by habeas corpus. See 7th An., page 247.

It is said that the defendant, Fay, signed the bond with his eyes open, and the rule “volenti non fit injuria," has been earnestly pressed upon us. This was a favorite maxim of the late Judge Martin, but he took care to limit its application to civil cases. In the case of Slocum el al. v. Robert, which was that of a bail bond, he remarked: “ It has been urged that we have often said, that in whatever manner a man binds himself he shall remain bound. This may be true in mere conventional obligations, but not in judicial bonds, taken by the Sheriff from persons in his custody; in such a case the Sheriff has no power to take any other bond but that which he is authorized by law to take.” 16th La., 174.

Wo take this to be sound doctrine, at least in criminal cases, and as no law authorized the Sheriff to take the bond sued upon, no recovery can be had upon it.

The judgment is affirmed, with costs.


author: Dunbar, J.

text:
    Charles Gravenberg v Joseph Savoie.
    The plaintiff in a petitory action is not bound to show title in himself good against the world. lie is only requ red to produce a title as owner “ causa idónea ad tra/nsferendwn domimmnf' to repel the presumption of ownership, resulting from mere possession; and the date of his title ought to if^rior to the possession of the defendant.
    Property conveyed to the husband, in lieu of a sum of money inherited by the wife, is paraphernal.
    Appeal from the District Court, Parish of St. Mary, Voorhies, J.

      Gibbon- and Simon, for plaintiff.

      Wilson & McClarty, for defendant and appellant.
   Dunbar, J.

This is a petitory action, commenced on the 5th of April, 1847. The plaintiff claims to be the lawful owner and possessor of three certain tracts of land on the Bayou Teche, in the parish of St. Mary, having a front of about thirty arpents on each side of said bayou, with the ordinary depth of forty arponts. He says that he has been disturbed in his possession by the defendant, who has forcibly entered upon a portion of said land, built a small house upon the same, and refuses to leave the promises. The petitioner prays for an Injunction to prevent the cutting of timber, waste, &c., and that he may be quieted in his title and possession. The defendant, to this petition, filed two answers. In the first, filed 14th June, 1847, he sets up a general denial, and further states, “ that on the 30th of March, 1847, he filed in the Land Office at Opelousas his declaratory statement of pre-emption and proof to Fractional Section 53, Township 13, South of Range East in Southwestern District of Louisiana; and on the 18th of April, same year, tendered payment for the land at said office, which was refused; that a protest had been filed by plaintiff, and that he, the said defendant, is a bona fide settler on said land, which is public, and that he is justly and legally entitled to a pre-emption right thereto. On the 29th of Jan’y, 1861, the defendant filed an amended answer, in which he sets up that he is now the owner, and was at the inception of this suit, of the said Fractional Section 53 in Township 13, containing one hundred and twenty acres and two-hundredths, and prays to be quieted in his title. The case was tried by the District Judge, without the intervention of a Jury. Judgment was rendered for the plaintiff, and the defendant has appealed.

On the trial of the cause, the defendant introduced in evidence the Receiver’s 'receipt and Register’s certificate of the Land Office at Opelousas, for his purchase of Fractional Section No. 53, containing one hundred and twenty acres and two hundredths. From the surveys and other evidence, it appears that the land thus purchased from the United States is on the East side of the Bayou Teche, within the limits of the lands claimed by the plaintiff. It therefore fol^ lows that to entitle the plaintiff to recover the land in dispute, he must show an older and better title than the defendant.

The plaintiff, who is the owner of a large sugar plantation on both sides of the Bayou Teche, composed of sevei-al tracts of land, traces his title to the land in dispute through various mesne conveyances to one Catharine Tousswrt, femme Loisel. The said Catharine Tousswrt, on the 9th of June, 1784, being then owner of a tract of land fronting on the West side of the Bayou Teche, containing fifty arpents front, at a place called the uChieot Noirf and having no wood-land, on the West side of the Teche, or Thievas it is written in the requéte obtained from the Spanish Governor on the recommendation of the Commandant, an order of survey for the same quantity of land on the East side of the said bayou, or river. She then, on the 21st of December, 1795, claiming to be the owner of the lands on both sides of the Teche, sold- to Pierre Etiw, her son-in-law, for his wife, Viotoire Borel, ten arpents front of said land, on both sides of the Teche. It is proper here to remark, that this tract thus sold appears from the surveys and certificates of confirmation to be in the centre of the two large tracts of fifty arpents front on both sides of the Teche, claimed by Gatharine Toussa/rt. On the 18th of November, 1801, Pierre Etier sold to Wm. Desk the lower half of said tract, being five arpents front on each side of the bayou. Several years afterwards, William Desk sold his portion of the said land to one P. F. Oyon, and the latter sold back to Pierre Etier, who thus became again the owner of the whole original tract of ten arpents front on each side of the bayou, which had been previously sold to him for his wife, Viotoire Borel, by her, the said Gatharine Toussart. The lower half of the said ten arpents front on the East side of the Bayou Teche being the land entered by the defendant, and now in dispute in this suit.

On the map of the Township in evidence, it is put down as land claimed by Wm. Desk, bounded above by land of Pierre Etier, confirmed by Commissioner’s certificate B, No. 1531, and below by land of Framgois Prevost, confirmed by commissioner’s certificate A, No. 1361. By reference to the certificate B, No. 1531, it appears that the United States Commissioners, on the 28th of September, 1811, confirmed Pierre Etier in his claim to four hundred superficial arpents, having a front of five arpents, with the depth of forty on each side of the Teche, founded on settlement and occupancy by Gatha/rine Toussart for more than ten consecutive years previous to the 20th of December, 1803, represented in a plat of survey filed with the claim, to be bounded on the upper side by land of Nicolas Prevost, and on the lower side by land of Wm. Desk. By reference to certificate B, No. 1361, we find that on the 28th of August, 1811, the United States Commissioners confirmed Afompois Prevost in his claim to a tract of land containing three hundred and thirty-eight American acres, founded on an order of survey in favor of Gatharine Toussm't for fifty arpents in front by the depth of forty arpents, bearing date the 27th of July, 1784, signed by Miro, the Governor of the Province of Louisiana, with proof of settlement, on and previous to the 1st of October, 1800, in the county of Attakapas, on the East side of the Bayou Teche, of which the part confirmed is for the ten arpents in front on the said bayou, with forty arpents in depth, bounded on the upper side by the remainder of the same original tract now claimed by William Desk, and on the lower side by land of Antoine Bonté. Here then the United States Commissioners, by two acts of confirmation, in 1811, more than forty years since, recognised the title of Gatharine Toussart to the tract of fifty arpents front on the East side of the Teche, by settlement and occupancy, and under the order of survey granted to her by Governnor Miro, on the 9th of June, 1784, and confirmed the titleto the tracts of land oí Pierre Etier above, and Francois Prevost below the land claimed by Desk.

It is difficult to understand how the title to the tracts of land both above and below the Desk tract-—all of them being in the Toussart claim of fifty arpents front on the East side of the Teche—could be recognized and confirmed by the United States Commissioners without their recognizing and confirming, at the same time, the intermediate tract claimed by William Desk. By reference to the proceedings of the Board of Commissioners, on the 1st of May, 1815, by Report No. 39 and Report No. 41 and 42, on the Desk claim, it will be seen that the Commissioners declared that William Desk claims five arpents front by the depth of forty, on the North, and five arpents front with forty-two arpents in depth on the South side of the River Teche, the part on the South or West side proceeding from a concession to John Bte. Duhon, and sold by him to Madam Loisel (Widoio Bor el) or Catharine Toussart, by her to Pierre Etier, and by him to the claimant, William Desk. The five arpents front on the East side of said bayou being claimed by William Desk, under the title or order of survey to Catharine Toussart, wife of Loisel, by Governor Miro, dated the 27th of July, 1784, for fifty arpents front by the depth of forty, on the East side of the River Teche, which is filed in the claim of Framgois Prevost. That the necessary deeds of conveyance are filed, and sufficient proof of occupancy. But they gff on and declare that the land claimed by Williami Desk, on both sides of the Teche, had been already confirmed to him by the Commissioners by certificate B, No. 1440 or 1543, and conclude that it is not necessary to confirm his claim over again. This was a gross and palpable mistake, and has been the cause, in all probability, of the present contestation. By reference to these two certificates, it will appear that the land on the West side of the Teche, here referred to, under the order of survey, to Jean Bte. Duhon, bearing date the 24th of June 1778, with settlement on and previous to the 1st of October, 1800, was confirmed to William Desk, but on examining certificate B, No. 1543, it will be seen that the land embraced in that certificate is for eight hundred arpents on the West side of the Teche, under a different order of survey from that mentioned in said Reports above referred to, at a different place called the Oak Point, and appears to be entirely a different tract of land. It is further shown that the plaintiff purchased of the United States Government the back concession or pre-emption of the Desk tract and the adjoining tracts, both above and below. He offered in evidence a plat of survey by which it will be seen that on the 16th of April, 1842, the Surveyor General of Louisiana approved of the survey of the land purchased by the plaintiff as front proprietor of the Desk tract now in dispute, and the Pierre Etier tract above, and the Francois Prevost tract below; which survey was approved nearly seven years previous to the purchase of the defendant. Indeed the purchase from the U. S. Government of the back concession by the plaintiff must have been made not later than the 15th of June, 1836. See act of Congress, approved 24th of February, 1835, being supplementary to the act entitled an act to authorize the inhabitants of the State of Louisiana to enter the back lands. See also act of June 15, 1832, Statutes at Large, 4th vol., 753, 534. It was as front proprietor, then, or owner of the Desk tract as far back as the 15th of June, 1836, that plaintiff purchased of the United States the back concession of the Desk tract. This, we consider was an admission or acknowledgment on the part of the Government, (nearly thirteen years previous to the purchase of the.defendant on the 13th of January, 1849, of the register at Opelousas,) that the piaintiff, Charles Gravenberg, was the owner of the Desk tract “under a claim confirmed by the commissioners appointed for the purpose of ascertaining the right of persons claiming lands in the State of Louisiana.” We have therefore cometo the conclusion, from all the facts in this case, that it has been satisfactorily established that the Desk tract was not public land on the 13th of January, 1849, and therefore not liable to entry; that the defendant, Joseph Savoie, could acquire no right by his purchase, and that said purchase was absolutely null and void. Morrison v. Whetstone, 5 Ann., 636.

But it is urged by the counsel for defendant that the plaintiff has failed to make out a chain of title to the land in question from Catharine Toussart. We are not, however, able to discover any defect in the chain of title from Catta rine Toussw't down to the plaintiff. The only seeming defect is in the sale of P. F. Oyon of this land to Pierre Ftier and Julie Prevost, the widow Etier— the title from the latter not having been afterwards conveyed to the plaintiff. But it appears that the plaintiff claims under Gabriel Fusilier, who purchased this land from Vietoire Borel, the widow of Pierre Etier, the daughter of Ga-than'ine Toussa/rt, and for whom the said land had been conveyed by her mother by deed, bearing date the 20th of December, 1795, before referred to in this decision. The title to this land was then, and continued to be, in Vietoire Borel, rather than in Pierre Etier, her husband; for, by reference to the deed, it will be seen that the conveyance of the land was made to Pierre Etier for the sum of money which his wife, Victovre Borel, was entitled to receive from the estate of her deceased father, Pierre Borel. Property conveyed to the husband, in lieu of a sum of money, inherited by the wife, is paraphernal. 1st La., 523. Savenat et al. v. LeBreton et al.

We do not, however, consider that it is necessary for the plaintiff-in this action to show title in himself good against the whole world. The plaintiff in the petitory action is bound to produce a title as owner “causa idónea adtransferendum dominium,” to repel the presumption of ownership resulting from mere possession and the date of his title ought to be anterior to the possession of the defendant. Bedford v. Urquhart et al., 8th La., 246. This we think, at least, the plaintiff has done.

There are circumstances, too, connected with the entry and purchase by the defendant of the land in dispute not calculated to impress us very favorably in his behalf. It is shown by the evidence that the plaintiff and those under whom he claims had been for many years previous to the entry of defendant, in the open and notorious possession of the land in dispute under title as owners. During the progress of the cause the plaintiff offered in evidence the testimony of witnesses to prove that the defendant had clandestinely in the middle of the night, built a small cabin on the tract of land in dispute, without the knowledge of the plaintiff who found the said cabin there the next day; that the defendant never cultivated said land, and well knew that the same was claimed, occupied and possessed by plaintiff, was part of his sugar plantation, and had been cleared as such, but the said evidence having been objected to by defendant’s counsel, on the ground that the court could not look behind the certificate of the Land Office at Opelousas, was rejected ; to which opinion of the court rejecting said testimony the plaintiff took a bill of exceptions. We do not consider it material to decide, from the views we have already taken of this cause, whether this evidence should have been admitted. It does, however, appear from the certificate of the Register at Opelousas, dated the 20th of December, 1849, that after diligent search in his office he has been unable to find the caveat or protest of the plaintiff against the preemption right of the defendant, or the original proof of the pre-emption right of the defendant, and that neither could be found in the files or records of his office.

The government has, however, given to the defendant a remedy to the extent of having his purchase money refunded to him. The act of Congress, approved the 12th of Jan’y, 1825, provides, “ That every person, or the legal representative of every person, who is or may be a purchaser of a tract of land from the United States, the purchase whereof is or may be void by reason of a prior sale thereof by the United States, or by the confirmation or other legal establishment of a prior British, French or Spanish grant thereof, or for want of title thereto in the United States from any other cause whatsoever, shall he entitled to repayment of any sum or sums of money paid for or on account of such tract of land, on making proof to the satisfaction of the Secretary of the Treasury that the same was erroneously sold in manner aforesaid by the United States, who is hereby authorized and required to repay such sum or sums of money paid as aforesaid.”

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


author: Slidell, J.

text:
    John H. Barret v. James Emerson et al.

      Bona fide purchasers, who have advanced their money upon the faith of the proceedings of a Court of justice—a judgment, execution and sheriff’s deed—who have possessed peaceably for many years—who have expended large amounts in improvements—will not be turned out of possession on account of mere informalities, at the instance of a party who shows no injury, and exhibits no equitable ground for relief.
    l'he validity of a judgment for want of citation, cannot be attacked in the Supreme Court when it was not made a ground of action in the Court below.
    Appeal from the District Court, Parish of St. Mary, Voorhies, J.

      Walker, for plaintiff and appellant

      —cited Delogny v. Smith et al, 3 L. R. 418 ; Mmjfield v. Casnier, 7 N. S. 185 ; 8 N. S. 246 ; Morris' v. Croeller, 4 L. R. 150 ; Spiller’s Heirs v. Raumgazrd, 4 L. R. 207.

      Cork, for defendants.

      Olivier, for warrantor—cited Copela/nd v. Labatut et al, 6 A. 61; Stoelcton v. Downey, 6 A. 581.
   Slidell, J.

This action is brought by the plaintiff to annul a sale of real estate made by the Sheriff of the parish of St. Mary, in 1844, to H. Laba/rthe under a fieri facias, issued upon a judgment obtained by H. Labarthe against Peyroux, Ri/carde & Co., as third possessors, and by which a tacit mortgage upon the real estate was recognized. The defendant holds under the Sheriff’s deed through various mesne conveyances accompanied by uninterrupted possession. Important improvements have been made since the Sheriff’s sale. The plaintiff holds under a sale from Peyroux, one of the members of the firm of Peyroux, Riva/rde & Co., and who appears to have acquired the interest of his copartners. This purchase was made by the plaintiff in 1846.

The grounds for annulling the judicial sale alleged in the petition are :

“ 1st. That the writ upon which the said lots purport to have been seized and sold, was issued without authority of law, and was not a legal writ.

“ 2d. No notice of the seizure of said lots was served on SyT/oaim, Peyroux, then sole owner of said lots, nor on either of the firm of Peyroux, Rima/rde & Co., nor on any person by them, or either of them, thereunto lawfully authorized. *

“ 3d. No notice to appear for the purpose of naming an appraiser was ever served on said Peyroux, Rivarde & Co., or on either of the members of said firm, nor on any person by them or either of them thereunto lawfully authorized.”

The petition contains no allegations, nor the record any proof, of any injury having been sustained by Peyroux, the defendant in execution, under whom the present plaintiff claims, in consequence of the informalities alleged; nor of any offer, on the part of the plaintiff, to warrant that the property, if resold, would bring a higher price than it did before; nor any tender of payment of the mortgage debt which incumbered the property before Peyrouas acquired an interest in it, and for the satisfaction of which the judicial sale was made. Why should dona fide purchasers, who have advanced their money upon the faith of the proceedings of a court of justice, a judgment, execution and Sheriff’s deed—who have possessed peaceably for many years—who have expended large amounts in improvements—be turned out of possession on account of mere informalities, at the instance of a party who shows no injury, and exhibits no equitable ground for relief? Such a result is inconsistent with repeated decisions which of late years this Court has felt it to be its duty to make. See Cerion v. Millaudon, 3d Annual, 668; Sewell v. Payne, 5th Annual, 260; Copeland v. Labatut, 6th Annual, 61; Stockton v. Downey, ib. 585. We are aware that those decisions are not in harmony with the jurisprudence which, for a time, prevailed in this State. But they were the result of careful reflection. We believed them to be a return to sound and equitable principles, which we thought had been lost sight of in a too rigorous regard for form. We found a sanction for them, not merely in natural equity, but in the jurisprudence of other enlightened countries ; and we saw that the titles of many honest citizens had been rendered insecure, public confidence shaken, and the public prosperity affected by the temporary adoption of a contrary doctrine.

In the argument before this Court, the plaintiff’s counsel attempts to raise another objection to the judicial sale, which was not alleged in the petition. The validity of the judgment itself is attacked here, on the ground of defect of citation. We are of opinion that the objection cannot be heard here, not having been made a ground of action in the Court below; and it is proper to add that the transcript does not afford us the proper means of considering the point suggested, inasmuch as the evidence contains only excerpts from the record of the suit of Labarthe v. Peyroux, Rivarde & Co.

Judgment affirmed—costs of appeal to be paid by plaintiff.


author: Dunbae, J.

text:
    Sophie Blanchard, wife, &c., v. Lucien Decuir.
    Hypothecary action for a minor’s mortgage founded on a judgment against the tutor. At the time the judgment against the tutor was obtained, the plea of prescription would have defeated the plaintiff—but the tutor did not set it up. Held—the renunciation of prescription by the tutor could not affect the right of defendant as third possessor, inasmuch as the defendant could at any time avail himself of the plea of prescription under Article 8429 of the Code.
    APPEAL from the District Court, Parish of St. Martin, Voorhdes, J.
    JUDGMENT OE DISTRICT COURT.
    The hypothecary action of the plaintiff is founded on a judgment rendered in her favor against her natural tutor, Mwrin Blamelm’d, on the 7th of October, 1850. On the 20th of December, 1846, when the citation was served on Mwrin Blcmeharrd in that suit, the plaintiff was then upwards of twenty-nine years of of age. Her right of action against her tutor was barred by the prescription of four years previous to the month of November, 1842. At that time her tutor had already been legally divested of his title to the land now owned by the defendant, on which she seeks by the present action to enforce her legal or tacit mortgage; to which the prescription of four and ten years are opposed by the defendant.

      It is well settled that the extinguishment of the principal obligation by proscription also carries with it the extinguishment of the mortgage as its accessory. The only question, therefore, presented in this case is whether the tutor by waiving the plea of prescription, which it cannot be denied he had the right to do, has reinstated or revived the mortgage on the property .which had ceased to belong to him. So far as it relates to himself, there is no doubt but what the plaintiff’s legal mortgage would take effect on his unincumbered property from the date of his renunciation, in the same manner as the reinscription of mortgages required to be recorded which are already prescribed, the mortgage to take effect only from the. date of its reinscription; but if in the meantime other rights were acquired by third persons, it is clear that these rights could not be affected by the rt inscription. In the present case the renunciation of prescription by Marin Blanchard could not, therefore, affect the rights of the defendant as third possessor, inasmuch as he could at any time avail himself of the plea of proscription which the tutor had renounced, under the provisions of article 3429 of the Civil Code. This article, which is identical with article 2226 of the Nap. Code, is clearly applicable, in my opinion, to cases of mortgages. Troplong, vol. 4, Privileges et ITypotheques, pp. 47, 66, Nos. 878 and following; Duranton, vol. 20, Nos. 144, 147, 148, 150, 152.
    The grounds of objection urged by this defendant’s counsel to the admissibility of the plaintiff’s evidence, I do not think are tenable—if anything, the objection goes more to the effect than to the admissibility of the evidence—the objection is, therefore, overruled.
    It is, therefore, ordered, adjudged and decreed, that the demand of plaintiff be rejected, at her costs.

      A. Voorhies, for plaintiff and appellant.

      E. Simon, for defendant.
   Dunbae, J.

It is ordered, that the judgment of the District Court be affirmed, for the reasons given by the District Judge, with costs.


text:
    Succession of Edmond Dejean.
    Where an administrator placed upon the tableau, as privileged, a judgment which had been obtained on a prescribed note in a suit in which the prescription had not been pleaded, a mortgagee whose claim existed at the time the prescription accrued, may set it up against the judgment creditor.
    It is not necessary to re-inscribe a mortgage, where the property has been sold at a succession sale and the proceeds reduced to possession.
    The administrator had placed F. upon the tableau as a mortgage creditor, but ascertaining that the judgment was obtained on a prescribed note, moved for leave to strike off the claim. By the Court: The insolvent had an undoubted right to waive prescription; and after it had accrued, the natural obligation which remained was a sufficient consideration for the subsequent promise to pay. The judgment obtained on that promise is binding.
    Appeal from the District Court, Parish of St. Landry, Overton, J.

      Lataste, for administrator, and Swayzé, and W. B. Lewis, for Dupré.

      Linton, for 'himself. King & Linton, for F. Dejeam.

   Rost, J.

The judgment, under which the opponent Felix Déjean claims -the first mortgage on the shares of the property of the deceased, coming to Auguste Antoine and Evm'iste Déjean, was obtained on a prescribed note and the claim of Lastie Dupré, the other mortgage creditor of the same parties who-opposed him, existed at the time the prescription accrued; the judgment in favor of Felix Déjean was rendered by default, and the waiver of .prescription by the makers of the note is a matter of record; under that state of facts the waiver of prescription does not affect the right of Dupré, .who .was not a party to the proceeding, to plead it in the concourse. -The mortgage in favor of Déjean, resulting from his judgment, can only take effect after the other is satisfied. Felix Déjean has made the point that Dupré’s mortgage, which was recorded in 1839,- has lost its rank for want of re-inscription.

Under our peculiar jurisprudence that a succession sale extinguishes all mortgages existing on the property in the name of the deceased; there are few cases in -which a re-inscription would be necessary, after such a sale. In this case, however, the proceeds of the sale appear to have been reduced to possession in 1847, long before the expiration of ten years from the date of the original inscription, and no reinscription was necessary. See Shepherd v. Orleans Cotton Press Company, 2d An. 110, and the authorities there cited.

The administrator had placed Felix Déjean on the tableau as a mortgage creditor of the insolvents Antoine, Auguste and Moriste Déjean, when he discovered, in the course of the proceedings in coneowrso, that the judgment of Déjean had been obtained upon a prescribed note—he moved the Oourt for leave to amend the tableau by striking off that claim from it. The Court having over-ruled the motion, he took a bill of exceptions, and has brought the case before us by an appeal.

We are of opinion the Court did not err. Antoine, Moriste and Auguste Déjean had an undoubted right to waive prescription, and after it accrued the natural obligation which remained was a sufficient consideration for their subsequent promise to pay. The judgment obtained upon that promise is binding upon them, but can only be enforced after the claim of Dupré is satisfied.

It is, therefore, ordered that the judgment be affirmed, with costs.


text:
    Eugene Wartel v. P. Darbein et al.—Meuillon, f. m. c., Intervenor.
    Under Article 2456 of the Code, when the vendor retains possession, there is reason to presume that the sale was simulated. This presumption, however, is not conclusive—but throws on the vendee the burden of proving that the transaction was in good faith and the sale real.
    Appeal from the District Court, Parish of St. Landry, Cuslwnan, J., presiding.

      Garland & Lastrrappes, for plaintiff and appellant.

      Déjean, for defendant.

      Martin, for Intervenor.
   Slidell, J.

This case presents a controversy between an attaching creditor and a purchaser from the debtor. The latter was successful in the Court below.

The material facts are as follows: The plaintiff seized the slave in dispute under a writ of attachment against the defendant on the 14th April, 1852. On the 30th March, 1852, the defendant sold the slave to the Intervenor for $900, which was paid in cash in the notary’s presence; but this act was not recorded until the 15th April, 1852. The slave, when seized, was in the possession of the defendant’s wife, and had been since the sale. The defendant seems to have gone to France with the intention of a temporary absence, expecting to return in the fall'; such at least was the statement made to one of his acquaintances, to the intervenor, and to the plaintiff by letter, after his departure. His declaration was that he would return in the ensuing summer. The notary and and other witnesses give the Intervenor an excellent character for truthfulness and integrity, and he is shown to be in good circumstances. A witness states he told him, in a conversation about Darbein, that he would reconvey the slave to him on his return from France upon his repaying the price.

It is said that under the article 2456 of the Code, the vendor’s retention of possession affords reason to presume that the sale was simulated. This is true, but the presumption is not conclusive. Rethrows upon the vendee the burden of proof that the transaction was in good faith, and that the sale was real. This the purchaser did to the satisfaction of the District Judge, and an examination of the evidence has not satisfied us that his conclusion was erroneous.

But it is said that even if there was no simulation, the sale is inoperative for want of seasonable registry.

In Monday v. Wilson, 4 Louis. 341, it was said that the Act of 1810, which provides, “ that no notarial act concerning immovable property shall have any effect against third persons, until the same shall have been recorded in the office of the Judge of the Parish where such immovable property is situated,” (See Bullard & Curry’s Digest, p. 596,) was not applicable to sales of slaves. We are not aware that this decision has been overruled. We prefer, however, not to determine the case on that point, the question being one of much importance, and our present means of research is limited. There is another point on which the case may be put; and that is, that even supposing registry to be necessary in case of sales of slaves, the intervenor is protected by the 2d section of the Act of 1839, which provides that all acts passed before any notary out of the parish of Orleans and filed, as required by the first section of that Act, within twenty days after their execution, shall take precedence of any other act passed in relation to the same propei’ty of a subsequent date, although first recorded, any law to the contrary notwithstanding. See Acts of 1839, pi 194, and Consolidated Statutes, p. 430, Nos. 13, 14.

Judgment affirmed, with costs.


text:
    Joseph V. Bacon & Son v. Thomas Maskell.
    The transfer and possession of a mortgage note will enable the transferree to obtain an order of seizure and sale—though the public act of transfer shows no acceptance by the transferree.
    Where the vendor has bound himself to raise certain mortgages on the property sold, he will not be entitled to ^n order of seizure and sale, unless he can show by authentic act that he has done so.
    APPEAL from the District Court, Parish of St. Mary, Voorhies, J.
    ACT OF TRANSFER.
    State of Louisiana, Parish of St. Mary.—Before me, Thomas A. Smith, a notary public in and for the parish of Si. Mary, duly commissioned and sworn, personally appeared Gyrus B. ff. Whelden, of said parish, who declared that he had transferred, and by these presents does hereby transfer to Joseph V. Baoon and Thomas H. Baoon, of Boston, Mass., partners in trade, doing business in said Boston under the name of Joseph V. Bacon & Son, a certain promissory note for one thousand, five hundred and fifty-one dollars and ninety-one and a half cents, signed by Thos. Maslcell, dated January 9, 1850, and payable one year after date to the order of said Whelden, with eight per cent, interest from maturity, the said note is secured by mortgage act of said MasIcell to said Whelden, passed before J. A. Dumartrait, recorder, on the 9th of January, 1850, and is signed “ne varietur” by said rocordor, to identify it therewith—and the said Whelden declared that he does also, by these presents, assign and transfer to said Joseph V. Bacon and Thomas H. Bacon his rights in and under said mortgage, to secure and enforce the payment of said note, hereby subrogating them to all his rights in said note, and in the mortgage given to secure the same, so far as relates to the said note, the consideration of this transfer is the amount of said note, the same being accounted for to said Whelden by said transferrees on settlement.
    Done, passed and signed at the parish of St. Mary aforesaid, in presence of William Ager and Williann 0. Dwight, competent witnesses, who have signed these presents with said appearcr, and me said notary, after due reading, this tenth day of April, in the year of our lord, one thousand eight hundred and fifty-one. 0. B. G. WHELDEN.
    WILLIAM AGER.
    WILLIAM 0. DWIGHT, Witnesses.
    A true copy from the original filed in my office.
    THOMAS A. SMITH, Notary Public.

      Dwight and Lea, for plaintiff.
    Maslcell, for defendant and appellant.
    Lea, for plaintiff
    —cited 7 M. R. 239 ; 1 A. 323 ; 5 A. 124.
    Maslcell, for defendant
    —cited 5 Rob. 85 ; 1 A. 323 ; 4 A. 152.
   Rost, J.

This is an appeal from an order of seizure and sale; the appellant seeks to have it set aside on two grounds.

1st. That the transfer of the note sued upon, from the original payee to the plaintiffs, although made by authentic act, is insufficient; because the plaintiffs were not parties to it, and their acceptance of it is not shown,

2d. That by the act of sale, out of which the note originated, the vendor bound himself to raise certain mortgages existing on the property sold, within a reasonable time; that the note was transferred to the plaintiffs, after its maturity and after a reasonable time had elapsed; and no recovery can be had upon it by them, unless they show that those mortgages have been raised.

Wo think the transfer and the possession of the notes by the plaintiffs sufficient to authorize the order of seizure—but the other ground appears to us well taken. Near eighteen months had elapsed since the sale when the order issued, and the payment of the note could not have been enforced, even in an ordinary suit, unless the plaintiff had shown that the mortgages, which the vendor had assumed to raise, had been satisfied and erased from the books of the recorder; the same showing is indispensable in this proceeding, and unless it can be made by authentic acts, the plaintiff must resort to an ordinary suit.

It is ordered that the order of seizure and sale appealed from be set aside, and that the costs in both Courts, since the filing of the petition, be paid by the appellee.


author:
Preston, J.
     By the Court

text:
    Pierre J. B. Fontenet v. Louis Debaillon, Adm’r. &c.
    Where by the terms of sale of the property of an insolvent succession, fixed by the creditcrasy ifite property was to be sold on a credit—the “ purchasers giving their obligation, with two approved securities', each,” &c.—it was the duty of the Administrator himself to require two good sureties, and the responsibility is his, if it was not done.
    Where by the terms of such a sale, 'the price of the property sold was to bear ten per cent interest until paid, the Administrator is chargeable with the interest until the principal is paid ; ancB lit is no defence for him that he paid some of the claims against the estate before the expiration a3' the credit term.

      By the Court: It is urged that the plaintiff has lost the benefit of his judicial mortgage by hi&fhilure to re-inscribe his judgment within ten years. It is far from clear that this principle is applicable to mortgages which an administrator is bound to raise for the purpose of selling the property and settling the debt? of the succession. But even if it is, the plaintiff obtained a judgment that his claim should be paid with the benefit of his judicial mortgage. Besides it was the duty of the administrator to have p id the plaiDtiff, as a creditor with ajudicial mortgage in 1841, and he cannot tak1 advantage of any thing which has occurred from his constant resistance of payment until now, ten years afterwards. We consider, therefore, that the plaintiff has not lost the benefit of his. judicial mortgage.
    Appeal from the District Court, Parish of St. Landry, Overton, J.

      Latast'e'r for plaintiff.

      King, for Administrator.

      Linton, for the Heirs.
   Preston, J.

A judgment was obtained for tlpe plaintiff, Fontenet against Jean M. Debaillon, for thirteen hundred and seventy-four dollars seventy-three’ cents, with interest at the rate of ten per cent, per annum from the 18th of June, 1837. It was recorded in the mortgage office on the 11th day of June,, 1838, for the purpose of creating a judicial mortgage against Debaillon's property.

Debaillon died in the parish of St. Landry on the 30th of October, 1838), leaving property appraised in the inventories at upwards of thirty thousand dollars. His children, however, hada claim against him of about twenty thousand! dollars on account of the paraphernal property of their deceased mother. They renounced the succession of their father, and it was administered as an insolvent estate.

A meeting of the creditors having been convened, it was determined and decreed that the property should be sold, “ one-half the purchase money to be paid in one year and one-half in two years, with interest from the date of saleT at the rate of ten per cent, per annum, the purchasers of real estate and slaves giving their obligations, with two approved securities, each, and the property remaining mortgaged to the estate, until final payment, and the purchasers of movables giving approved personal security, these being the terms and conditions decided on by a majority of the creditors of said estate, and by the family council of the minor heirs.”

The sale took place on the 2d of April, 1839, and the following days, and produced with other sales made in 1840, 1843 and 1846, the sum of $32,658. If interest at ten per cent, during the two years of credit is added, according to-the conditions of the sale and also some small collections of notes and accounts-due the deceased, the mass of the estate would amount to $38,000, for which the administrator is bound to account.

On the 2d day of April, 1839, the defendant, a son of the deceased, was appointed Administrator, and took charge of the estate. In 1843 he presented to the Probate Court a tableau of the debts of the succession, for classification. He did not place upon it the judgment in favor of the plaintiff against the deceased, and the latter filed an opposition to the tableau. It was not tried until in November, 1849, when the District Court, to which the case had been transferred, rendered a judgment that Pierre J. B. Fontenet “should be placed on the tableau of classification of the creditors of the estate as a judicial mortgagee creditor for the sum of $1,374 73, with yearly interest thereon at the rate of ten per cent, per annum from the 18th day of June, 1837, until paid, with privilege upon the proceeds of the immovable property of the estate from the 11th day of June, 1838—the date of registering the judgment; and the administrator was ordered to pay the claim in conformity with the judgment.” The administrator failed to do so, and the plaintiff took steps to compel him to render a further, full and final account of his administration.

After much delay he rendered the account on the 30th of January, 1851, but by it showed that he had no funds to pay the plaintiff’s judgment, nor assets sufficient to pay the privileges and mortgages anterior to the mortgage of the plaintiff.

The plaintiff filed an opposition to the acpount on many grounds, which have given rise to our present investigations. It has been seen, however, that the administrator is apparently bound to account for $38,000. Now, the expenses and debts, including a very large mortgage to the Union Bank of Louisiana, which he has paid, amount, by his account, to but $13,144. The balance of the estate must first be appropriated to pay the tacit mortgage against the estate in favor of the children of the deceased, as heirs of their mother.

The claims of those heirs amounted to about $20,000 ; and even if we should allow two years interest, at five per cent., while the notes given for the proceeds of the sale of the estate were maturing, the aggregate would be but $22,000. The claim for interest, from the death of their mother until the sale, is untenable, as no doubt during that period they were supported by their father, or out of the estate—most of them being minors.

The $22,000 and $13,144 paid by the administrator deducted from $38,000, the supposed mass of the estate, would still leave $2,856 to he appropriated to the payment of plaintiff’s debt and interest, which is more than sufficient to extinguish both. The case resolves itself, therefore, into the consideration of the excuses offered by the administrator for not having in hand the means of paying the plaintiff, or rather his argument to show that he is not accountable for so large a sum as thirty-eight thousand dollars.

It appears that the administrator did not take the security required by the conditions of the sale from Gervais Fontenet and some others, for property of the succession sold to them, and that losses exceeding five thousand dollars have occurred from that cause. The administrator claims exemption from liability for these losses on two grounds: first, that he entrusted the Probate Judge to take the bonds, as was the custom of the times, which was neglected; and next, that the father of Fontenet, then solvent, was offered and accepted as his security; that immediately afterwards he became insolvent, and the loss would have occurred even if he had signed the bonds. Neither excuse is tenable. It was the duty of the administrator himself to require two good seeurities, and the responsibility was his if it was not done. And if he had seen that the security was duly taken it would have been an inducement to the Fon" tenets, father and son, to have struggled more zealously for the reciprocal benefit of each other, to have avoided the loss. It is evident that the administrator did not subsequently exercise that care and rigor on the subject which became his office. He might have re-sold .the property at the risk of Fontenet, and thus have prevented the loss. When the first term of payment became due he should have caused the property to have been seized and sold under the special mortgage, and the neglect to do so was utterly inexcusable. He did not do so even when the second term of payment became due, but waited until more than a year afterwards, when the property was sold at twelve months credit for not as many hundreds as thousands were bid at the probate sale.

We are bound to presume that a rigid requisition of the security required by the creditors would have prevented this extraordinary loss; and perhaps even a prompt re-sale of the property for non-compliance with the conditions of the first sale, or the enforcement of payment by the seizure and sale of the property when the first instalment became due, would have prevented the loss.

We are, therefore, bound to conclude that the District Court has justly charged the administrator with the losses which have thus occurred.

He contends next, that the ten per cent, interest should not be added to the amount of the sales of the estate from its date until the terms of payment expired, according to the conditions of the sale, because he alleges, and indeed proves, that he paid some claims against the estate before the expiration of those terms. But this should not deprive the succession of the benefit of that interest, because the creditors and heirs, having fixed the terms and conditions of the sale, were bound to wait for payment until the expiration of the terms. Under the arrangement the interest was as much a part of the price due to the mass of the estate as the principal, and the plaintiff who is the last mortgagee creditor, has a right to insist on the administrator being charged with it. If he has really suffered any loss by anticipating payments, he has still on hand upwards of two hundred. shares of the capital stock of the Union Bank, with which to indemnify himself; and it may be remarked that the principal interest stopped by anticipated payments was that accruing to the Union Bank, and moreover that the stock should have been sold and the proceeds applied to the debt of the Bank, thus leaving a larger surplus of the proceeds of the property mortgaged to the Bank for the subsequent mortgage.

It is possible a small amount should be deducted from $38,000 for interest on account of the funeral expenses and law charges paid by the administrator before the proceeds of the sales were realized. The sum would be too inconsiderable to change the result, especially as there are other claims which the administrator did not pay until long after those proceeds were realized.

It is said the Court committed a great error in charging the administrator with interest from the day of sale on a sum of upwards of six thousand dollars given for cattle, which were deliverable only in the summer after the sale, and the interest to commence on the price after the delivery. The sale took place in April, 1839. The cattle were deliverable during the summer following, and on the supposition that the terms of payment were to commence from the day of sale, and not of the delivery, interest should not have been charged for the few intervening months between the sale and delivery; but this again would make no difference in the result as to the plaintifi’, a sufficiency remaining to pay his claim after making a reasonable deduction from the $38,000 on account of this interest.

It is urged that the plaintiff has lost the benefit of his judicial mortgage by Ms failure to re-inscribe his judgment within ton years. It is far from being clear that this principle is applicable to mortgages which an administrator is bound to raise for the purpose of selling the property and settling the debts of a succession. But even if it is, the plaintiff obtained a judgment that his claim should be paid with the benefit of his judicial mortgage. It was not appealed from by the administrator or any creditor, and remains in full force. Besides, it was the duty of the administrator to have paid the plaintiff as a creditor Avith a judicial mortgage in 1841, or certainly with the proceeds of the sales of 1846, andhe cannot take advantage of any thing which has occurred from his constant resistance of payment until now—ten years afterwards.

We consider, therefore, that the plaintiff has not lost the benefit of his judicial mortgage, and is entitled to be paid next to the privileges and anterior mortgages out of all the proceeds of the real property. There were no mortgages anterior to his but those of the heirs of Mrs. Debaillon and the Union Bank. Their claims, with all the privileges, added to the claim of the plaintiff, do not exceed the $38,000, for which the administrator ought clearly to have accounted on the 13th of June, 1846, and paid over to plaintiff his claim. Even if by our errors in calculation there may have been a balance against the estate instead of being in its favor, we are sure the administrator may fully indemnify himself by the sale of the Union Bank stock still in his hands.

An appeal has been taken by the heirs of Mrs. Debaillon. The evidence does not satisfy us that their claim against their father’s succession exceeded $20,000; and on this supposition the administrator must, for the reasons given, account for a sum sufficient to pay them without curtailing the claim of the plaintiff.

The judgment of the District Court is therefore affirmed, with costs.

A re-hearing was applied for and granted.

By the Court

:—This cause being considered on a re-hearing, it is ordered that the judgment heretofore rendered by this Court be re-affirmed.

      This judgment wae pronounced in 1S51, and that on the re-heaving in -1852.


author:
By the Court
     Slidell, J., Dunbar, J. Slidell, J.,

text:
    Robert Patterson & Co. v. M. A. Frazer & Wife.
    A married woman cannot, by surrendering* to her husband the partial or entire administration of her paraphernal property, exonerate herself from liability for debts incurred for her individual use, or for the purpose of rendering that property productive,
    A minor, who is a married woman is not incapacitated by article 374 of the Code from incurring debt beyond the amount of one year’s revenue, for her individual use, or for the benefit of her paraphernal property.
    A PPBAL from the District Court, Parish of St Mary, Voorhies, J.

      T. H. Lewis, for plaintiffs.

      Gibbon, for defendants and appellants.
    OPINION AND DECREE OE THE DISTRICT COURT.
    The defendant, Haney Frazer, is sued by the plaintiffs for the recovery of advances which they have made to her for the purchase of building materials, and for provisions and supplies for the use of her plantation.
    The evidence satisfactorily establishes all the items of the amount sued upon, ■except $10 charged as commission for the endorsement of Hollander's note, $1 54 for postage, and $2000 charged as cash advanced. This charge is evidenced by the receipt of M. A. Frazer, the husband. It is not shown that it has inured to the benefit of the defendant.
    The plea of minority cannot avail the defendant for the advance of money to purchase building materials employed and used on her plantation, and for supplies and provisions furnished the same.
    The plea of prescription may apply to the privilege claimed, but cannot affect the plaintiffs’ rights of action to recover the amount due them, independent of the exercise of such privilege.
    It is therefore ordered,' adjudged and decreed, that the plaintiffs recover of-the defendant the sum of seven thousand two hundred and ninety-nine dollars and thirty-one cents, with legal interest from judicial demand, and the cost of this suit to be taxed.
   By the Court

—(Slidell, J., dissenting.) Judgment affirmed for the reasons given by the District Court.

Slidell, J.,

dissenting. My opinion is that the wife ought not, under the circumstances, to be held bound at all, even to the extent to which her paraphernal estate has been improved with the money of the defendants, in erecting the sugar house and permanent improvements. My reason is, that in all the business out of which the claim sued for arises, the plaintiffs, as I understand the evidence, dealt with Messrs. Hollander & Frazer so long as Hollander & Frazer continued in partnership, and after Hollander withdrew, with Mr. Frazer and ■Hollander as his agent. The correspondence, purchases, shipments, &e., are with, for and to those parties. Mrs. Frazer's name does not appear, and the management of the estate and crops appears to have been entirely in the hands of the partnership, and afterwards of the husband. The credit appears to me to have been given to them, and the contracts were made with them.

A re-hearing having been granted, the judgment of the Court was pronounced by

Dunbar, J.

This cause comes before us on a re-hearing. After the most mature reflection, we are not able to see' that we should change the opinion heretofore given as to the law of this case.

In Dickerman et al. v. Reagan, 2d Ann. 440, this Court decided that “the separate property of a married woman is liable for debts contracted during marriage for her individual use, or for the improvement of her separate property, or for marriage charges, which she is bound by law to bear, though the debt was created while her paraphernal property was under the administration of her husband, and during the existence of the community of acquets and gains.” A married woman cannot, by surrendering to her husband the partial or entire administration of her paraphernal property, exonerate herself from liability for debts incurred for her individual use, or for the purpose of rendering that property productive. In Dailey et al. v. Pierson & Wife, 5 Ann. 125, this Court held the same doctrine. We still adhere to these opinions.

But it is contended that the defendant, being a minor, could not bind herself legally by promise or obligation for any sum exceeding the amount of one year of her revenue. Civil Code, Art. 374. We do not think that this article applies to the species of indebtedness under consideration. The defendant, who is emancipated by marriage, has under the -provisions of the preceding article, 373, the full administration of her paraphernal estate, and may pass all acts which are confined to such administration. However, the defendant has not made this objection in her answers. We think, at any rate, it should have been specially pleaded.

We have found, on the further examination of this case, an error, which should be corrected. We perceive that the defendant proved that the plaintiff sold of her crop of sugar, sixty hogsheads, amounting to the sum of $2,978 98, only $2,000 of which has been accounted for by plaintiffs, which was advanced by them to the defendant’s husband previous to their shipment. This will leave $978 98 for which the defendant should have credit.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and proceeding to give such judgment as should have been given in that Court—it is further ordered, adjudged and decreed, that the plaintiffs have judgment against the defendant for the sum of six thousand three hundred and twenty dollars and thirty-three cents, with legal interest from judicial demand, and that the costs of appeal be paid by plaintiffs.

Slidell, J.,

dissenting. The impressions I heretofore expressed, upon the question of the wife’s liability, under the peculiar circumstances of this case, have not been removed by further investigation.

       This Judgment seems to have been delivered in 1850—by what Judge it doe? not appear. Present: Eüstis, C. J.; Rost, Slidell & Preston, Associate Justices. The judgment on the re-hearing was pronounced in 1852,