author: Siideli,, J.

text:
    Plympton v. Preston et al.
    Notice to a person, before his appointment as agent, will not be binding on the principal.
    Tlie Code, while it requires notice to a debtor of the transfer of a debt, has not prescribed any particular form in which it must be given. C. C. 2613. Nor will any misdescription, even as to the amount of fhe debt, vitiate the-notice, where, from the rest of the description and the circumstances of the case, the error could not have misled the party notified.
    The mere institution of an action,by the creditors of one who had made, a cess'io bononum under thestat. of 1817, and who had since acquired other property, to compel anew- surrender, does not render the insolvent incapable, from the commencement of such action, of alienating his property in favor of a bond Jide purchaser. Under that statue, such newly acquired property cannot be considered as thenceforth in the custody of the law. Until a judicial investigation has been had and a decree pronounced, the further liability of the insolvent is a matter on pais. Any other construction would defeat the policy of the statute.
    Every one, not prohibited by law, may buy or self.
    from the Fifth District Court of New Orleans, Buchanan, J.

      Benjamin and Micou, for the appellant.

      Preston, Lockett and Goeld, ibr the defendants.
   of the court was

Siideli,, J.

In 1844, Preston gave a mortgage in fovor of &. TV. Boyd, for $8000. This debt was reduced by payments to $3,500-; and, in August, 1847, Boyd transferred the debt and mortgage to Plympton. Preston having refused to pay the accruing interest, Plympton brought suit against him in the district court of Jefferson. The defendant ajvswered that, Boyd had made a cessio bonorum, in 1820; but, having subsequently come to better fortune, his creditors had instituted proceedings against him to compel a new surrender, had obtained an order appointing the sheriff syndic, and had cited Boyd, by service upon his agent Florance, in March, 1847: that, in 1848, the creditors had procured, in the district court of New Orleans, an order to sequester all Boyd’s property, under which notice of seizure had been served upon Preston ; that other creditors of Boyd had seized She debt in Preston’s hands, under attachment; that the transfer to Plymptonvi as without legal consideration, and was simulated, and was made for the purpose of defeating Boyd’s creditors.

Plympton, before being met by this defence, brought a second suit in the parish of Orleans, in which the syndic, the suing creditors, and Preston, were made parties. He alleged the validity of Boyd’s transfer, and the invalidity of the pretensions of the defendant. He also obtained, upon giving bond, an injunction against the defendants, which he prayed might, after due proceedings, be made perpetual.

Our attention will be first directed to. the character of the transfer made by Boyd to Plympton the reality and good faith of which have been attacked.

Plympton was a resident of Boston, where he owned real estate. He employed Iiawkes, a real estate broker, to find a purchaser for his properly; and Hawkes, having learned that Boyd, who was then in Boston, desired to purchase real estate there, brought him and Plympton together, and conducted a negotiation, between them. This resulted in a written agreement, signed on the 3d July, 1847, by which Plympton agreed to convey his real estate to Boyd in exchange for two mortgage claims in Louisiana, one of them bearing eight and die other ten per cent interest. One of these claims was the Prestan debt. It was a condition of the agreement, that Plympton should satisfy himself of the security of these, claims; and, for that purpose, Hawkes addressed a letter of inquiry to Florance„ a resident of this State, who had been Boyd’s agent. On the 16th July, Florance replied, giving a detailed statement of the nature of the claims, and expressing his entire confidence in the safety of the investment. The agreement was then closed at Boston by Plympton and Boyd. The former made conveyances of thereal estate, which were recorded, and possession was given. The latter forwarded instructions to Florance to make a notarial transfer of the mortgages claims to Boyd ; and a blank power was forwarded to him, signed by Plympton, constituting an agent to accept the transfer. This power was filled up with the name of a respectable member of the bar, who was employed to superintend the execution of the. notarial transfer. The transfer is dated in August, 1847. A notice was served by the notary on the other debtor a day or two after the act of transfer was signed and upon Preston, in the early part of October following.

After a careful scrutiny of the, correspondence, the. testimony of the broker and Florance, and the documentary evidence connected with this transfer, we have not found any thing which could authorize the belief that it was simulated, or which could casta suspicion upon the-go.od faith of Plympton. He must be,, therefore, regarded, as a purchaser in good faith, and for a valuable consideration.

It was argued that Florance’s knowledge of tho institution of a suit to compel \ a new surrender, whichknowledgehederivedfromthe service of citation upon him \ as the attorney of Boyd, must be deemed, by legal constrtruetion, the knowledge of Plympton, who, upon closing his bargain with Boyd, constituted Florance his agent to take charge of the mortgage claims for him when transferred, and to superintend the preparation and execution at New Orleans of the notarial transfers. The legal effect of the institution of suit by Boyd’s creditors will be hereafter considered; but whatever its effects, so far as the good faith of Plympton and the question of notice are involved, we are of opinion that the knowledge of Floronce does not effect Plympton with constructive notice. The notice did not come to. Florance while he. was concerned for Plympton, but before his agency for Plymp-. • ton began. See Stoiy on Agency, p. 140. Stray’s Equity, p. 408. Livermore. ( on Agency, vol. 2, p. 237. Russell on Factors, 95. /

For the purpose of giving validity to this transfer, as against third persons, it was necessary that notice of the transfer should be given. This, we think has been sufficiently done. The notice delivered to Preston by the notary, on the 9th October, 1847, is in the following words:

New Orleans, 24th August, 1847.

Sir : I am requested to inform you that, by an act passed before me on the 13th August instant, Mr. B. Florance, acting as the agent of Geo. W. Boyd, sold and transferred unto Ralph Plympton, of Boston, Massachusetts, the balance of a mortgage executed by you in favor of said Boyd, before F. Barnett, notaiy, in this city, on the 28th June,.1844, for twenty-five hundred dollars.

Your ob’t servant,

D. I. Ricardo, Not. Pub.

To I. T. Preston, Esq.

Giving the defendants the benefit of the strict grammatical construction of the letter, we will consider the words “twenty-five hundred dollars,” as referring to the amount of the mortgage. Construed in this sense, there is a descrepancy between the notice and the mortgage, which was for $8000 originally, and was reduced, at the time of the transfer, to $5,500. Considered with reference to the contents of the letter as a whole, the mistake is not of such importance as to affect the validity of the notice. The Code requires that notice of the transfer should be given to the debtor (art. 2613), but has not prescribed any particular form. In Thomas v. Callihan, 5 Mart. N. S. 182, it was said that a notice of assignment of debt may be fairly assimilated to the notice which must be given to endorsers of promissory notes, although the same exactness and promptitude may not be required in the former case as in the latter. In Gillett v. Landis, 17 La. 472, the court said: “We are not aware that any particular form is required in giving notice of a transfer. The principal object of the law appears to be to prevent an improper payment after the debt has been transferred, and to protect the rights of the transferee. It matters not in what manner knowledge of the transfer is brought home to the debtor, provided it be clearly shown that he knew his former creditor was divested of all his rights to the debt assigned, and that such knowledge of the fact was derived from the transferee, or from his agent.

In looking to the analogy of notice in the case of promissory notes, we find that the doctrine rests on a practical and common-sense view of the rights of the parties. As the object of the notice is to put the party in possession of the material facts on which his liability is founded, so as to secure the liability of others over to him, the law requires a sufficiently definite description of the note to enable him to know to what one in particular the notice applies; for an endorser may have endorsed many notes, of very different dates, sums, and times of payment, and payable to different persons, so that he may be ignorant, unless the description in the notice is special, to which it properly applies. But a misdescription of the note in the notice will not vitiate, if it does not mislead the party to whom it is addressed, and is not calculated to mislead him, whether the misdescription be in the date, or the form, or the names of the parties, or otherwise. Story on Notes, § 349. And so in Mills v. The Bank of the United States, 11 Wheaton, 431, a notice which was full and accurate in other respects, but omitted the name of the holder, and stated a" wrong date, was held good, there being no other note of like drawer, endorsed by the party. The variance, it was said, could not mislead him, and was not material to guard his rights.

Applying this reasonable standard to the present case, it is impossible to say that the defendant was misled, or could have had any doubt, as to the party to whom he was to hold himself liable. A demand of payment by Boyd, after the notice, would undoubtedly have been met by a refusal.

As the attachments and sequestrations were all posterior to this notice, they could not in themselves retroact so as to defeat the rights of a bond fide purchaser. So that we are thus brought to the main question in the cause; and that is, whether the institution of the suit, prior to the transfer, for the purpose of compelling Boyd to make a new surrender, created a legal incapacity on his'part, from that date, to alienate his property in favor of a bond fide purchaser.

In the argument of this question it has been strenuously urged by the plaintiff that, G. W. Boyd was not a party to the insolvent proceedings which, in the year 1820, were instituted in the district court of New Orleans, under the title of Wm. Boyd 8f Son v. Their Creditors. It is in evidence, that G. W. Boyd was the son of Wm. Boyd, and a partner of the house of Wm,. Boyd Son. The petition in that case describes William and G. W. Boyd as tire petitioners, and is signed by a member of the bar, who describes himself as attorney of the petitioners. The oath, however, was taken by Win. Boyd alone; there is no schedule of the individual assets of G. W. Boyd ; nor did he appear- at the me’eting of the creditors. We will concede, however, for the purpose of the present enquiry, and in the absence of proof that the attorney at lawnvas not authorized to appear, that G. W. Boyd was a party to the insolvent proceedings, and by reason thereof became discharged from his partnership liabilities, subject to the legal condition óf a future liability in the event of his coming to better fortune. This contingent liability is, defined by the act of 1817, which was the law in force when the alleged discharge was granted.

“ The surrender of property shall only exonerate the debtor to the amount of the property surrendered; and in case the said property should have been insufficient, if he acquires some other in future, he shall be bound to abandon it until final payment; provided, however, that the creditors to whom the debtor might have became indebted since his failure shall be preferred to the former creditors for then- payment on the new property acquired by the debtor, and that means of subsistence shall be left to the debtor and his family.”

W aiving the consideration of the question, whether Flor anee, who disclaim'ed, on record, the right to represent Boyd, was competent, under his power of attorney, to be the medium of the citation óf his absent principal in a suit of this extraordinary character, we will proceed to consider the effect of the suit as though Boyd himself had been personally cited, in March, 1847.

The law of 1817 was certainly conceived as much in a spirit of mercy to the debtor, as of justice towards, his creditors. The policy of the law must undoubtedly be respected in the one case as well as the other; and it seems tons that the doctrine contended for by the defendants that, on the mere filing of the petition, an incapacity to alienate at once attaches, and that the'newly acquired property of the insolvent is deemed to be thenceforth¿ra custodia legis, is repugnant to the spirit of the act and to general principles.

Until a judicial investigation is had, and a decree pronounced, the new' liability of the discharged insolvent is a matter en pais. lias he acquired means-more than sufficient for the subsistence of himself and hi's family 1 If he has, the court will order him to surrender the excess When judicially ascertained, and will compel obedience by distringas or other proper process. If he has not, the man is still free. To say that, a creditor, by taking this fact for granted alid filing a petition, may at once tie the debtor’s hands, is to defeat the policy of the law, which intended, by discharging the unfortunate debtor, to leave him at, liberty to apply his industry to the support of himself and his family, and to open the door to the bettering of his condition. But no man would dare to have dealings with a discharged insolvent, his industry would be paralyzed, and his hopes of better fortune be cut oft', if the ex parte declaration of a creditor could, per se, operate a legal sequestration of the insolvent’s earnings.

The legislature might, undoubtedly, enact a law Which would accomplish such a result; but a court cannot recognize such a rule, unless it be written down in clear terms in the Statute book. The doctrine of relation in bankruptcy, which is found in the english jurisprudence, is the creature of statute. At first, under the of statute Elizabeth, it was very severe, and from the moment of committing an act of bankruptcy, Without judicial process, the trader was deprived of all power of charging, or disposing of his property, to the prejudice of his creditors. But this severity was found to be disadvantageous to commerce, and pregnant with injustice to innocent third persons; and Was, therefore, much relaxed by subsequent enactments. No one can doubt that the existence of this doctrine of relation at all is solely owing to legislation, without which it would have had no place in the english jurisprudence,

These views are strongly corroborated by a consideration of the second section of the statute of 1826, p. 136.

The point in question was not before the court in the case of Quemper v. Bierra, 8 Rob. 204: nor do we find any thing in that opinion which conflicts with the views which we now express. The language of the court seems to us, on the contrary, unfavorable to the defendants: “Whenever the debtor is required to make a new cession thereof, this must take place after having ascertained the amount of his new debts to be first satisfied, and the extent of his means of subsistence.”

We do not concur with the district judge in the applicability to this case, by analogy, of that rule of universal jurisprudence, which is consecrated by article 2428 of the Code. This was not the case of the revendication of a specific thing. See Civil Code, arts. 2420, 2423. Tous ceux auxquels la loi ne l’interdit pas, peuvent ácheter ou vendre.


source: Caselaw Access Project

author: Slidell, J.

license: Public Domain

text:
    Plympton v. Preston.
    Where, la an action by the transferees of a debt secured by mortgage, against the mortgagor, to enforce the mortgage, the defendant resists plaintiff's right to recover, on the ground that the amount due by him had been seized in hie hands, by creditors of the transferer, previous to any notice to him of the transfer; and the plaintiff thereupon obtains from another court, on the execution of a bond With surety, an injunction directing the seizing creditors and the defendant to desist from said seizures so far as they affect the collection of the debt sued for in the first action, and so fur as they in any manner interfere With, delay, or afféct the pl-oseciition of that action, the effect of the injunction will not be to extinguish the seizures, nor to prevent the debtor from defending himBelf in that action on the ground of the want of notice of the trarfsfer, but to restrain the seizing creditors from any active interference in the action. Per Cm': The injunction does not, in terms, forbid the defendant to persist in bis defence, nor was that its legal effect.
    The production of papers in the possession of the opposite party may he required, even after the trial has commenced. Where the party then discovers, for the first time, that his interests require them; aliler-, where their importance must have been known to the party before the trial.
    Where, by the terms of his contract, a debtor is allowed a certain number of years within which to pay the capital of his debt, on condition of paying the interest punctually at fixed periods, it being expressly stipulated that, in case of failure to pay the interest .at any one of those periods, the whole of the debt shall become due and exigible; and the debtor, under the pretext of certain sequestrations and attachments levied on the debt in bis bands by creditors of the party to whom the debt was due, in which proceedings he had acted cither as the counsel or legal surety of the creditors, and thus, assisted in creating their interference with the rights of his creditor, refuses to pay the interest falling due at one of the periods fixed by the contract, and is regularly put in default, the whole debt may he exacted from him.
    from the District Court of Jefferson, Clarke, J'.

      Benjamin and Micow, for the appellant.

      Preston, Lockett and Goold, for the defendants.
   The judgment of the court was pronounced by

Slidell, J.

The purpose of this suit is stated in the case of Plympton v. Preston et al. ante p. 356. The district judge gave judgment as in case of non-suit, upon the ground that the notification to Presten of the transfer bp Boyd to Plympton, was not proved to have been made prior to the seizures levied in the hands of Preston.

It is said, by the plaintiff, that such proof was unnecessary, because, as he contends, these seizures had been set aside by the effect of the injunction in the case of Plympton v. Preston, et al.; that, by virtue of that injunction, the seizures ceased to have any legal effect, and no longer formed an obstacle to the plaintiff’s recovery. The writ of injunction, did restrain the seizing creditors from any active interference in the suit pending in the parish of Jefferson; but it did not extinguish those seizures, nor purport to restrain Preston from defending himself in that suit, upon the ground that he was still the debtor of Boyd for the benefit of his creditors, because the transfer to Plympton was not eonsumated by notice given before the seizures were levied. Issue was already joined between Plympton and Preston on the question of the validity of the transfer, tire latter resisting the action upon the ground that the seizures were made before the notification of the transfer was given to him. The injunction obtained afterwards does not, in terms, forbid him to persist in the defence, nor do we think that such was its legal effect.

The plaintiff, after the commencement of the trial and after the defendant had closed his testimony, desired, for the purpose of rebutting it and overthrowing the effect of the seizures, to prove a notification of the transfer; and for this purpose called upon the defendant, who was present, to produce the written notice alleged to have been delivered to him. The defendant admitted that, he had in his possession “ a paper in relation to a notice handed to him in the street, but that he had it not with him at the moment;” “whereupon the plaintiff prayed that the defendant be ordered to produce and file tíi& paper before the close of the trial, and that a reasonable time be allowed therefor ; but the court refused to permit said order to be entered, or to require the production of the .paper, on the ground that no such order could be granted after the trial had commenced.”

We think the court did not err. The Code of Practice authorizes a call for papers to be made dans le cows de la plaidovrie, upon the party’s then discovering that his interests require the production of papers in the possession of his adversary. But here the plaintiff knew the necessity of the production of the pajiers, before he went to trial. Preston having pleaded, in his answer, the seizures and the absence of the notice. We do not, therefore, feel at liberty to disturb the ruling of the court, or the judgment of non-suit.

We think it proper to express an opinion upon the question, which has been argued by the respective counsel, as to the breach of the condition upon which Preston was entitled to a delay in the payment of the principal of his debt. The terms of his contract with Boyd were, that he was to be allowed a delay of seven year’s to pay the principal of an antecedent debt then due, upon paying punctually the interest quarterly; “and should the said Preston fail to pay any one installment of interest, in that case the whole of the said debt to be considered as immediately due and exigible, notwithstanding the delay here above specified.”

Supposing Plympton to have consummated tire transfer by timely notice, as was proved in the oilier suit, the transfer was valid against Boyd’s creditors, and Preston became Plympton’s debtor. Plympton, therefore, having a right to require payment of the interest, having made a demand, and put his debtor in default, it is clear that the condition upon which the right to postpone the payment of the principal depended would have been broken, and the principal would have become exigible, if the defendant had not, before the demand, been served with process of sequestration and attachment by Boyd’s creditors. We are not prepared to say, nor is it necessary to say, whether, under ordinary circumstances, this would have excused the refusal to pay, so as to save the condition. But it appears that, in the proceedings of sequestration and attachment, the defendant acted either as the counsel or judicial surety of the creditors, and thus himself assisted in creating the interference with the plaintiff’s rights. This may have proceeded merely from the desire to know to whom he could with safety, pay; but, under the evidence, we would not be permitted to relieve the defendant from the rigorous performance of the contract. Judgment affirmed.

      The counsel for the plaintiff submitted the following grounds for a rehearing: We submit that the proper weight has not been given to the injunction, obtained by the plaintiff. The defendant admitted his indebtedness; but pleaded that he was in danger of being disturbed by other persons. If these seizures were set aside, or ho was protected, then he was bound to pay. Were not the seizures set aside ? They had been enjoined by a competent court. An injunction may not always dissolve the seizure, as, for instance, when the defendant enjoins the sale, leaving the property in the sheriff’s hands. But where A. enjoins a levy upon his property to pay the debt of B., then the seizure itself is dissolved. If this be not the effect of an injunction, it would be difficult to say what it means. If a party, whose property has been seized for another’s debt, cannot take it' out of the sheriff’s hands on giving bond, then the greatest oppression would sometimes take place, and the law would afford no remedy. But it is the constant practice of intervenors to take out of the sheriff’s hands merchandize attached or seized, on giving bond for its value. What distinction is there between that case and this ?
      The injunction was granted in the first'instance, by the Fifth District court of New Orleans. The decree of the court in that suit, only perpetuates it. If the injunction did not, from the moment it was granted, put an end to the seizure, then does the decree perpetuating it have that effect? The nature of the remedy is not altered, by perpetuating it. If the injunction did not dissolve the seizures, they will still be in force, notwithstanding the judgment maintaining the injunction.
      The plaintiff was bound, before receiving his money, to protect the defendant from loss. If he was protected by the injunction, then his excuse for not paying was at an end. Was he not protected ? Suppose, at the moment the injunction was served upon him, he had paid Plympton his money. Would he afterwards have been liable to the seizing creditors on Plympton’s injunction being dissolved, or would their only recourse have been on the injunction bond ? The answer to this question solves the difficulty. He was fully protected, and was bound to pay-

        It was one of the grounds of injunction, and it was proved in the record of tlois case, as well as in the other, that the defendant had himself been active in procuring the very seizures upon which he relied for his defence.. That fact precludes him from all equitable claim to the credit originally stipulated. The court says that, he may have considered those steps necessary for liis protection; but how could that possibly be? He was aware already of the insolvent proceedings of Wm. Boyd Sf Son. If the proceedings rendered G. W. Boyd incapable of transferring, then their existence or pendency was a good defence to plaintiff’s demand, and the defendant had only to plead it when attacked. The apprehension of one disturbance cannot be relieved by creating another. But if, on the other hand, the defendant believed that those proceedings prevented a valid transfer; if he really apprehended trouble or annoyance from them, why were new proceedings instituted, and why was he active in procuring new seizures ?
      Again, if Boyd was a party to the surrender, then it is obvious that for all his old debts the stay of proceedings was in force; consequently the seizure, the attachment, and even the sequestration at the prayer of only a part of tho creditors, wore all null, and created no legal disturbance—gave no reasonable ground of apprehension that the money could be again demanded, if once paid to plaintiff. These proceedings must then have originated, not from the necessity of protecting himself against paying under a transfer, void by tho incapacity of the transferor to make it, but only from a desire to create new difficulties.

        Rehearing refused.


author: Rost, J.

text:
    Oakey v. Drummond.
    The return of a sheriff that he served a copy of the citation and petition on defendant, by leaving them at Ms domicil in a certain street, in the hands of Ms wife, a free person above the age of fourteen, does not show a sufficient service under art. 189 C. P. It should have stated the absence of the defendant from home, and that the person with whom the citation was left was living there.
    A PPEAL from the Third District Court of New Orleans, Kennedy, J.

      Ben. jamin and Micou, for the plaintiff.

      Mott and Fraser, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

The defendant having failed to answer in this case, the plaintiffs took a judgement by default, which was made final after the legal delays. The defendant has appealed, and assigns, as an error apparent on the face of the record, the want of legal service of the citation, and of a copy of the petition, upon him.

The sheriff’s return states that he served a copy of the citation and petition on the defendant, by leaving the same at his domicil in Apollo street, between Clio and Calliope streets, in the hands of his wife, a free person, above the age of fourteen.

This return is insufficient, under art. 189 of tho Code of Practice. It should have stated the absence of the defendant from home, and that the person with whom the citation was left was living there. Kendrick v. Kendrick, 19 La. 38.

It is, therefore, ordered, that the judgment in this case be reversed, and the case remandedfor further proceedings according to law; the plaintiff and appellee paying the costs of this appeal.


author: King, J.

text:
    Bettis et al. v. Amonett.
    Tho right of the commissioner of the general land office of the United Statas to vacate illegal entries of the public lands, prior to the issuing of a patent, has been repeatedly recognized, and can no longer be questioned.
    Where an act of Congress making a donation of public lands toa State, directs the secretary of the treasury of the United States to make the location of these lands, and a resolution of the legislature of the State authorizes the governor to ask for their location, and provides for the contingency of the authority being conferred on him to make the selection, a selection of the lands hy the governor, and the acquiescence of the government of the United States in a location made in accordance therewith, will be legal. Per Cur: The power of the secretary of the treasury to delegate the authority to designate the lands for location, cannot be doubted.
    from the District Court of Madison, Selby, J.

      Thomas and Snyder, for the plaintiffs.

      Amonett, for the appellants.
   The of tire court was pronounced by

King, J.

This is a petitory action, instituted for the recovery of a fractional section of land, acquired by the plaintiffs from the State of Louisiana, and for rents ftom the date of their purchase. The defendant claims under a title eminating originally from the United States, and prays, in the event of eviction, for the value of his improvements. The cause was tried by a jury, who gave the plaintiffs the land claimed, and compensentcdthe value of the improvements with the rents. From a judgment rendered in conformity to this verdict, the defendant B. F. Amonett, W. Amonett, the executor of Slaughter, and T. W. Amonett, have appealed.

The land in controversy was acquired by the State of Louisiana from the United States, under the provisions of the act of the 3d March, 1827, (Story’s U. S. Laws, p. 2072,) authorizing the secretary of the treasury to locate two townships of land for the use of a seminary of learning, and was sold by the State to the plaintiffs, to whom a patent has been issued.

The selection of a part of the lands authorized by this statute, including the tract claimed by the plaintiffs, was made by the governor of this State, on the 3d July, 1835. Prior to this location the fiactional section in dispute was entered by Shaddoc and Ross. Their entry, however, was subsequently cancelled by the commissioner of the land office, on the ground that they had failed to establish their right to enter it, and the receiver was authorized to refund the price. Notwithstanding this action of the commissioners, the original purchasers and their vendors have continued to occupy and cultivate the land ever since.

It is contended by the defendant that the sale to Ross and Shaddoc divested the United States of their title, and that the subsequent designation of this land for the use of a seminary of learning, was illegal and void.

The right of the'commissioner to vacate illegal entiles of lands, prior to issuing of patent,, has been repeatedly recognized, and can no longer be questioned. Pepper v. Dunlap, 9 Rob. 288. Guidry v. Woods, 19 La. 337.

It is next contended that the act of the 3d of March, 1827, directs the location of the seminary lands to be made by the secretary of the treasury, and that the selection made by the governor of this State was in itself illegal, and has not been since approved.

A resolution of the legislature of this State, passed in 1835, requested the governor to ask for the location of the seminary lands, and provided for the contingency of the authority being conferred on that officer to make the selection. See Acts of 1835, p. 158. That the secretary of the treasury could delegate the authority to designate the lands for location cannot be doubted, and the acquiescence of tho general government in the locations which were thus made, and which have been matters of record in the land department for fourteen years, must, in tlie absence of proof of the reverse, be taken as evidence both of the delegation of authority to the executive of this State to make the designation of lands, and of the approval of his acts by the secretary of the treasury. The previous entry of Ross and Shaddoe having been set aside, the location made by tire State of Louisiana was valid.

The plaintiffs have asked that the judgment appealed from be amended, by allowing them rents from the date of their purchase. Thejury considered that the improvements made by the defendant were a fair equivalent for tire rents, and the testimony upon this point is not such as to authorize us to interfere with then' verdict. • Judgment affirmed.


author: Eustis, C. J.

text:
    The Bank of Kentucky v. Conner et al.
    After a cessio honorum by an insolvent, an action to annul a contract made by liim in fraud of bis creditors cannot be maintained by any creditor individually. It must be instituted by the representative of the creditors. Aliler, when there has been no cession. C. 0.190, 1965. Stats. 25 March, 1808; 20 Feb. 1817.
    from the Fifth District Court of New Orleans, Buchanan, J.

      Mott, for the plaintiffs.

      David and Grymes, for the appellant, Conner.

   The judgment of the court was pronounced by

Eustis, C. J.

On the 6th of May, 1846, a judgment was rendered in the Fifth District Court of New Orleans, in the case of Sarah Conner, a free woman of color, against Theophilus Freeman, by which it was decreed that the plaintiff was entitled to her freedom, and that the defendant emancipate the said plaintiff according to the formalities required by law.

The president, directors -and company of the Bank of Kentucky, alleging themselves to be creditors of the said Theophilus Freeman, by virtue of a judgment obtained by them in said court against said Freeman, on the 9th of November, 1S46, brought their suit against both Sarah Conner and Theophilus Freeman, for the purpose of annulling this judgment obtained by Sarah Conner for her freedom, and subjecting her, as the property of Freeman, to execution under their judgment. They obtained a judgment by default, which, on evidence taken, was confirmed. It decreed the judgment of the 6th of May, declaring said Sarah Conner to be entitled to her freedom to be null and void, and subjected said Sarah Conner, as the slave of Freeman, to the plaintiff’s execution. After an ineffectual attempt to obtain a new trial in the district court, Sarah Conner has appealed.

There is no evidence that any steps have been taken by the master of Sarah Conner to effect her emancipation under the laws of the State ; and we express no opinion as to her condition or status, but are only called upon to decide on the validity of the judgment appealed from, as it stands between the parties. If the plaintiffs have no right of action, the judgment cannot be sustained. Perry v. Goodwin, 6 Mass. Rep. 498.

Article 190 of the Civil Code provides that an enfranchisement made in fraud of creditors is null and void. By art. 1965, the law gives to every creditor, when there is no cession of goods, as well as to the representatives of all the creditors, when there is any such cession, or other proceedings by which they are collectively represented, an action to annul any contract made in fraud of their rights.

It appeal's that, in January, 1844, Freeman became insolvent, and subsequently ceded his property to luis creditors in tho late first judicial district court. The syndic, therefore, of the creditors of Freeman is the party competent to institute an action of this kind. By the insolvent acts of 1808 and 1817 judgments confessed by debtors in fraud of creditors may be declared null and void at their instance; and the recourse of the creditors against this alleged fraudulent judgment is direct and obvious, if, in point of fact, it stands in the way of the exercise of their legal rights. But we consider the action by die individual creditors, in this instance, as untenable.

The judgment of the district court is therefore reversed, and the plaintiff’s petition dimissed, with costs.


text:
    Lemoine v. Garcia.
    No appeal will lie from a judgment overruling a motion to dissolve a sequestration, made by a defendant after he had bonded the property sequestered. Such a judgment is not final, nor does it work any irreparable injury.
    No appeal will lie from an order refusing to set aside a sequestration, where the question of releasing the property is tho only matter for consideration, and the record contains no information as to the value of tho property, though tho action was on a claim exceeding three hundrod dollars.
    from the District Court of St. John the Baptist, Nicholls, J.

      Buisson and Maureau, for the plaintiff.

      T. W. Collens, for the appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiff caused to be sequestered a quantity of sugar and molasses belonging to the defendant, for the purpose of enforcing a privilege for supplies to the defendant’s plantation. A motion was made by the defendant to set aside the seqestration, which failed, the judge decreeing that the privilege and sequestration be maintained and the motion overruled. From this decree the defendant has appealed.

It appeal's that two writs of sequestration were taken out by the plaintiff, one directed to the sheriff of the parish of St. John the Baptist, and the other to tho sheriff of the parish of St. Charles. Under the former writ eighty-five hogsheads of sugar and a quantity of molasses were taken, which were given up on the defendant’s giving his bond, with security, as the law directs. Under the writ directed to the sheriff of the parish of St. Charles, forty-three hogsheads of sugar and about five hundred gallons of molasses were seized, but were held subject to two previous sequestrations from the district court. It is obvious that, as to the sugar and molasses sequestered in the parish of St. John the Baptist and given up on the defendant’s bond, the appeal is premature, the decree of the district court not being a final judgment, nor one working an irreparable injury. If it be erroneous, the defendant will have his relief on the final judgment of the cause.

As to the sugar and molasses sequestered in the parish of St. Charles, we are not informed as to the value of the property, nor as to the amount for which it is held subject to the previous sequestrations; and non constat that the matter in dispute as to this property is of sufficient value to give jurisdiction to this court, on an appeal in relation to it.

On the authority of Plicgue v. Bellowmé, 2 An. 293, the appeal in this case must fail, it not being within the jurisdiction of the court.

Appeal dismissed-


text:
    Succession of Destrehan.
    A tutor, appointed under the provisions of sec. 4 of the stat. of 10 March, 1834, on tho express condition of his being exempted from giving security, cannot be subsequently required to-give security, though the property of the minor, which, at the time of his appointment, consisted chiefly of real estate, has been since converted into money and negotiable paper, for the purpose of affecting a partition.
    APPEAL from tho District Conrt of Jefferson, Clarice, J. The judgment from which this appeal was taken is in these words:
    “A rule was taken on the tutor of the minors D estrellan, requiring him to show cause why he should not give security for his administration, and, in default thereof, why his office should not be vacated. The appellant relies on art. 350, C. C. This provision of the Code we think relates only to tutors who are bound by law to give security. The present tutor was appointed under the act of 1834. He holds his office on the express condition that, he shall be dispensed with giving security. This court is without authority to change the terms and conditions on which the office was originally conferred by the law, and accepted by the incumbent. It is therefore ordered that the rule be dismissed. ” From this judgment, Rost, the plaintiff in the rule appealed.

      Roselius, for the appellant.
    It is shown that, when the tutor of the minors was dispensed with giving security for the faithful administration of his trust, the property of Iris wards consisted almost exclusively in their interest in the real estate inherited from their father. Under the state of things then existing, the tutor could only administer this property in conjunction with the heir of age, and receive their share of the revenue yielded by it. But, shortly after his appointment, all the property was sold to effect a partition, and produced $173,310 30, throe fourths of which will go into the possession of the tutor, either in money or negotiable notes.
    The question is whether the act of 1834 is to be construed as exempting the tutor from furnishing security for the faithful administration of his trust, no matter what may bo the change produced in disposable property or funds in the hands of the tutor? In other words, is the rule in the 330th art. of the Civil Code entirely inapplicable to a tutor who has been appointed under the act of 1834? There is certainly nothing in the language of that law which imperatively requires such an interpretation. Before a tutor can be dispensed with the obligation, of giving security a family meeting is to be consulted. Now, on what fact is then- advice to be based? Surely on the special circumstances of the caso; they must take into consideration the extent of the responsibility which will devolve on the tutor. And can it be seriously pretended that when, as in tho present case, that responsibility is comparatively light, at the time the dispensation was granted, such an entire alteration in the state of facts as is shown to have taken place here cannot effect the obligation of the tutor to give security. It is confidently submitted that this is not a sound construction of the law of 1834. The policy of the law is to protect tho rights of minors.

      F. B. and C. M. Conrad, contra.

    The defendant received his ’appointment under tho provisions of the act oi 1834. On the trial of the rule it was shown that, those who had a right to the tutorship declined it, in consequence of the tacit mortgage and of the security they would have been obliged to furnish. These facts were placed before the family meeting, and they recommended to the court the appointment of the defendant without security, under the provisions of the 4tli section of that act. Here then the case contemplated by that act had occurred. “No one would take upon himself the tutorship and comply with the existing law, by giving security, &c.” And accordingly the court, with the advice of the family meeting, nominated “ a discreet and responsible person ” to be tutor. If no one would give the required security, when the estate, according to the plaintiff’s argument, involved comparatively trifling responsibility, this unwillingness to act would certainly exist in a stronger degree when both the responsibility and the security are augmented, and no one would now be found-to act as tutor to the minors. The act of 1834 exempted the tutor from giving security, without reference to the estate or condition of the minor. It is an exception to the general principle of art. 330, and after the family meeting and the judge have conferred the appointment, there is nothing in the act authorizing a change in its terms. The plaintiff however goes back to the article of the Code, the language of which is inconsistent with the provisions of the special act; for the latter says, in express terms, that the duties of the tutor shall be the same as required by the existing laws, except as to giving security; while the former, intended only for cases of tutorship in which security had already been furnished, says that “ this security may be increased or -diminished at the instance &c.” It is highly illogical to say that a s ecurity, which under the act of 1834 was never given or required, should be increased or diminished.
   The judgement of the court, (Rost, J. not sitting,) was pronounced by

Slidell, J.

For the reasons assigned by the district judge it is decreed that the judgment be affirmed, with costs.


author: Slidell,' J.

text:
    Courtade v. Chamberlain et al.
    The administrator of a succession, being an officer appointed by the court for the discharge of certain duties, must be considered always present in court, like a party to proceedings there pending; and no prescription can commence to run in his favor before the homologation of his account.
    from the District Court of Jefferson, Clarice, J.

      Thompson, for the

      W. IT. Hunt, for the appellants.
   The of the court was pronounced by

Slidell,' J.

This causo was tried ex parte. It is said that a sufficient interval, under the rule of the court, had not elapsed between the time of setting for trial, and the day of trial. It would be with reluctance that we would reverse an intrepretation of his own rule by a district judge, except in a very clear case of error; and wc will express no opinion on the point, as, on other grounds, we have determined to remand the case.

The object of this action is to impose on the heirs of Chamberlain, one of whom is a minor, a responsibility for the gross amount of the inventory of the -estate of Laglaise, of which Chamberlain was appointed administrator, in 1832. After Chamberlain's death, the present plaintiff took out, in 1846, letters of administration of Laglaise’s succession. The heirs of Chamberlain answered that he had undertaken the succession merely to protect the interest of one Bor gas, whose agent ho was, and who held a privileged claim sufficient to absorb the succession; that Chamberlain was also a creditor of Laglaise, for an amount exceeding his gross estate. ' Interogatories were propounded to the plaintiff pertinent to the defence.

At the trial of the'cause, in the absence of the defendants, the plaintiff offered what it is reasonable to believe are detached portions of the record of Laglaise’s succession, and not the entire record. The gross inventory was $469, consisting of a few articles of merchandize, and various notos for small sums made by several parties. An order of sale was made, upon the suggestion that the property was perishable. The result of the sale does not appear.

The judgment given against the heirs of Chamberlain upon this evidence, is for the gross amount of the inventory, §469. If the assets realized that amount, Chamberlain would, at least, have been entitled to credit for his commissions.

We are i ot disposed to shield administrators of estates; but, on the contraiy, to scrutinize their acts closely. But looking to the proceedings and evidence in this case as a whole, we cannot divest ourselves of the belief that the judgment is excessive, and that the ends of justice will be promoted by remanding the cause.

With regard to the plea of prescription, we have to remark that it is clearly untenable, so far as the running of prescription during Chamberlain’s life is claimed. Chamberlain was an officer, appointed by the court to discharge certain duties. As such, he must be considered as present before the court, in the nature of a party in proceedings there pending. Prescription had no commencement in his favor, at least, before the homologation of an account. As there is no evidence to establish the date of his death, it is unnecessary to consider what term of prescription would apply in favor of his heirs.

It is decreed, therefore, that the judgment of the court below be reversed, and that this cause be remanded for a new trial; the appellee paying the costs of this appeal. '


text:
    Gaines v. The Merchants’ Bank of Baltimore et al.
    A judicial sale of all the right, title and interest of a creditor in any farther dividend that may be declared among the creditors of an insolvent, is a sale of the debt due to the creditor (0.3?. 690, 694); and where the debt was due by a bill or note, which was never in the actual possession of the sheriff, the seizure is invalid, the sale null, and the purchaser may recover back the price paid by him.

      To make a valid seizure of a bill of note under a Ji.fa., the sheriff must take actual posses* sion of it.
    A party seeking to recover back, on the ground of the nullity of the sale, money paid to ft judgment creditor as the price of property sold under execution, must pursue the course pointed out by art. 711 C. 3?., and make the judgment debtor a party to the action; and the judgment obtained against him and the creditor jointly must provide that execution shall be first taken out against the debtor, but, on its being returned unsatisfied, that execution may be issued against the creditor. Per Curiam: Art. 711 C. P. relates to the eviction of the purchaser from the thing purchased by him; but it is declaratory of a principle relating to cases where the sale is virtually defeated from other causes.

      from the Fourth District Court of New Orleans, Strawbridge, J.

      Britton and Hammer, for the plaintiff.

      Bonford and T. A. Clarice, for the appellants.
   The judgment of the court (Slidell, J. not sitting, having been of counsel in the case,) was pronounced by

Eustis, C. J.

On the 1st of August, 1843, the Merchants Bank of Baltimore caused to be sold, under an alias fi. fa., issued on a judgment against the president, directors and company of the Bank of the' United States, all the right, title and interest of said bank in any further dividend that might be declared in the estate of William Kenner Sf Co. The plaintiff became the purchaser, for the sum of one thousand dollars, which he paid to the sheriff. The present suit is lo recover back this sum. The president, directors and company of the Bank of the United States have been made parties, by a curator ad hoc appointed by the court for that purpose, and judgment was rendered in the district court in favor of the plaintiff; and it was further adjudged that, execution should first issue against the Bank of the United States, and, in case of no property being found on execution issued, that the judgment be satisfied out of the property of the Merchants’ Bank of Baltimore. From this judgment both banks have appealed,

It appeal's that the Merchants’ Bank of Baltimore undertook to sell certain assets belonging to the United States Bank, pending the litigation in which they were involved in the memorable suit relating to the validity of the assignment made by that bank, which, upon the final' decision, was determined to be valid, except so far as the United States were concerned. This decision defeated the attempt of the Merchants’ Bank of Baltimore to reach the assets of the Bank of the United States under their execution.

The ground on which the plaintiff has recovered in the district court is, that the sale under execution was a nullity, and that the plaintiff, who was the purchaser, acquired nothing under it.

The thing sold was the light, title and interest of the bank to the future dividends to be declared in the estate of William Kenner Sf Co.; and the sheriff^in his deed, undertook to convey to the purchaser all the right and title which the bank had to the said before described property. The estate of William Kenner Sf Co. was under the administration of a syndic, and the Bank of the United States was its creditor, and we are authorized in assuming that it became-so in the ordinary course of its dealings. We infer from the evidence, that the'bank was the holder of bills or notes of that firm, on which the dividends received, had been duly credited. Under the rule laid down in the case of Trudeau v. Me Vicar, 1 Annual Rep. 426, and under articles 690 and 694 of the Code-of Practice, by the description above noted, the debt due by Kenner Sf Co. to the' bank was sold, and the title of this debt the purchaser had a right to exact from the sheriff. The evidence does not satisfy us that the sheriff ever took into his. possession the obligations of Kenner Sf Co. which the bank held, or any title whatever to said debt.

In the case of Fluker v. Bullard, 2 Annual Rep. 338, we held that a sale1 under a f. fa. of a promissory note, never in the actual possession of the sheriff,, confers no title on the purchaser. To make a valid seizure of tangible property,, the thing levied upon must be taken into actual possession by the officer. So,, where notes, offered in evidence before their maturity, have been withdrawn by-permission of the court on leaving certified copies of them in the record, the-levying of nfi.fa. upon the copies of the notes, and notice to the maker, will not constitute a legal seizure. Galbraith v. Snyder, Idem. 492. Á bond can be legally seized by the sheriff only by his obtaining actual possession of it. A purchaser at a sheriff’s sale, made without a previous seizure, acquires nothing. Offut v. Monquit, Idem. 785. To make a valid seizure of a promissory note under a fi.fa., the sheriff must take actual possession of the note. Taylor v. Stone, Idem, 910.

However the fact of possession by the sheriff may be, no delivery of the title was ever made by the sheriff to the purchaser, notwithstanding his demand to that effect, and his notice to the’sheriff not to pay over the money to the plaintiff until the evidence of the debt should be delivered to him. The good faith of the plaintiff in this transaction being unquestioned, the judgment of the district court against the Merchants’ Bank of Baltimore for its recovery back, must be sustained.

This suit grows out of the scramble for the wreck of the assets of the late Bank of the United States of Pennsylvania, and a similar one, instituted by the plaintiff, was before this court on a previous occasion, and is reported in 2 Annual Rep. 280. The judge of the late Commercial Court of New Orleans, from whom the appeal was taken, non-suited the plaintiff, on the ground that the remedy sought by the plaintiff was one of strict right, and that the party seeking to recover back money paid to a judgment creditor, being the proceeds of property sold under execution, ought to pursue the course indicated by article 711 of the Code of Practice, and make the judgment debtor a parly to the suit. The Bank of the United States was made a party to this suit, and the district court overruled an exception made by the curator ad hoc, that no cause of action was presented in the petition against said bank.

Article 711 provides that, if the purchaser has been evicted from the thing adjudged to him, on the ground that it belongs to another person than the party in whose hands it was taken, he shall in that case have his recourse for reimbursement against the seized debtor and tire seizing creditor; but, upon the judgment obtained jointly for that purpose, the purchaser shall first take execution against the debtor, and upon the return of such execution, no property found, then he shall be at liberty to take out execution against the creditor. This article it is time relates to the eviction of the purchaser from the thing purchased by him; but it is declaratory, as we think, of a principle relating to cases where the sale is virtually defeated from other causes. In the present instance, the money of the plaintiff has been applied directly to the benefit of the Bank of the United States, in part satisfaction of the judgment held by the Merchants’ Bank. If the proceedings are regular, satisfaction has been entered on that judgment to the extent of the amount made under execution. On this amount being recovered back by the plaintiff, the satisfaction entered must be rescinded, or a new judgment must be rendered for the amount, of which the Merchants’ Bank, on paying back the amount unduly received, are entitled to have the benefit. The Bank of the United States is thus the real party in interest in this litigation; and, we think, the district judge did mot err in rendering judgment as prayed for in the original petition. Judgment affirmed.


text:
    Clement, Tutrix, v. Story et al.
    "VVitliin the limits of the city of New Orleans, the parties interested may elect in which of the district courts they will open a succession; but when opened in one of the courts, it has the same exclusive power over it as the court of Probates under the late judicial organization. An action for a debt due by the succession can he brought in no other court.
    from the Second District Court of Ne y Orleans, Canon, J. A.

      Hennen, for the appellants.

      L. Peirce and Josephs, for .the defendants.
   The judgment of the court was pronounced by

Rost, J.

The petition of the tutrix of the minor heirs of the late Benjamin Story alleges that, the mother of said minors died before their father; that her succession was settled in the then court of Probates, and their rights liquidated at the sum of $20,056 25, for each; and that to secure the payment of these sums their father gave them a mortgage, in favor of the judge of the court of Probatfes, on immoveable property .situated in this .city ; that another minor heir died shortly after the date of said mortgage, -and ¡the petitioners inherited from him the sum of $2,507 03, each ; that their father did not invest their funds oil interest, as he was bound to do; and that, at his death, he left, besides the petitioners, three heirs of age, who have accepted the succession, purely and simply, and received their portion in the succession of their mother and of their deceased brother. The prayer is that the heirs of age be cited; that they may be ordered to render an account of the estate of the three minors in the successions of their mother and brother; and that they be adjudged to pay the petitioners $80,000, with interest at the rate of eight per cent per annum from the 21st November, 1845, until paid, and that the property mortgaged may be seized and sold to satisfy this judgment.

The defendants excepted to the petition that, the Second District Court, in which it was filed, was without jurisdiction, all the matters and things put at issue by said petition being now at issue and undecided between the same parties in the Fourth District Court, in the matter of the Succession of Benjamin Story, which has been opened there, and also in the suit of Mrs. Maclde against the other heirs for a partition of said succession. They further excepted that the Fourth District Court is the only proper tribunal for the settlement of the succession of Benjamin Story and all matters pertaining thereto. The judge of the Second District Court sustained these exceptions, and dismissed the petition. The plaintiff has appealed.

There is no error in the judgment. The succession of Mrs. Story has been finally settled, and the claims of the minors are debts of the succession of their father, to be'settled in the action of partition now pending before the Fourth District Court.

It is urged that the act of 1846, creating the District Courts for the city of New Orleans, confers equal jurisdiction on each of the five courts, and what one can do, each of the others can also do. It is said that the pendency of a suit for partition, does not preclude one of the parties thereto from instituting a personal action against the others for a debt due by the ancestor.

Before the new organization of the judiciary, courts of Probate had exclusive power, with a few exceptions, to decide on claims for money brought against successions administered by curators, testamentary executors or administrators, and to establish the order of privileges, and the mode of payment. They had also exclusive power to regulate all partitions of successions, in which minors were interested, and all actions of partition were to be brought in the court where the succession was opened.

We do not understand that the act of 1846 has repealed that legislation. Within the limits of the city of New Orleans, the parties interested may elect in which of the District courts they will open a succession; but, when one of the courts has been seized with it, it has the same exclusive power over it which pertained to the court of Probates.

Judgment affirmed-


text:
    Baker et al. v. Morrison et al.
    A return on a Ji-fa. that, it was impossible to make a demand upon the defendant personally and that no property of liis could be found, will authorize the plaintiff to proceed against the surety on a bond given to release property which had been sequestered.

      ■Where a sheriff inserts in a sequestration bond a condition not required by law, the condition will not be binding on the surety. The bond must be construed with reference to the law under which it was taken.
    The legal intent of a sequestration bond being, under arts. 270, 280 C. P., to secure the delivery of the property to be applied towards the satisfaction of the plaintiff’s claim when adjudged, and the penalty of the bond being inserted to secure the performance of that act, the injury sustained by the plaintiff, on a broach of the condition, will be the value of the property sequestered, which, had it been produced, would have been applied to the payment of his claim; but the mere amount of that claim, without reference to the value of the property sequestered, is not the measure of the injury sustained, nor of the liability of the sureties in the sequestration bond.
    from the Fifth District Court of New Orleans, Buchanan, J.

      I. W. Smith, Ldbatt and Cohen, for the plaintiffs.

      Hornor, for the appellants.
   The judgment of the court was pronounced by

Slidell, J.

Under a sequestration issued in the suit of Baker et al. v. Doane et al., certain moveables were seized, which wore restored to the defendant, Doane, upon his giving bond, with Morrison and Deacon as his sureties, in the penal sum of $2500. The bond recites the levy of the sequestration upon, the goods and their restoration to Doane, and then states as the condition: “If the said defendant shall not send the above described property out of the jurisdiction of this court, and that he will faithfully present the same in case he should be decreed to restore the same to the plaintiffs, and shall satisfy such judgment as may be rendered in the suit pending as above mentioned, then this obligation to be void; otherwise, to remain in full force.”

In that suit the plaintiffs had judgment against Doane and his co-defendant Bossier, in'solido, for $763 83, interest and costs, with privilege on the property sequestered. A fien facias was issued, which was returned by the deputy sheriff as follows: “ No money, no properly found, after demand of both parties.”

The plaintiffs then brought this action against the sureties on the bond, claiming judgment for the amount of the judgment against Doane, with interest and costs. The petition contained a prayer for general relief. There was judgment for the plaintiffs according to their prayer, and the defendants have appealed.

At the trial of the cause the defendants offered a deputy sheriff to prove that, during the running of the fi. fa. against Doane, he was absent from the State, which testimony the court rejected, because it went to contradict collaterally the return. The defendants insist that the testimony was admissible, and if received would have established the physical impossibility of a dezizand upon Doane. "We deem it unnecessary to determine the question of admissibility; for, if it was physically impossible to make a demand upon Doane, upon a return of the writ to that effect, and also that no property could be found, the right to proceed against the surety would have accrued.

The court below erred in condemning the defendants to pay the amount of tho prior judgment, interest and costs. It is true that the litteral terms of the bond authorized such a decree. But it is properly argued for the defendants that the bond must be construed with reference to the law under which it was given, and that the additional condition inserted by the sheriff is not binding upon the surety. This was expressly held in Welsh v. Barrow; and the opinion of Judge Martin in Boswell v. Lainhart is to the same effect. The 279th article of the Code of Practice, which grants the right of bonding sequestered property, contemplates a security equivalent to the value of the goods released. Article 280 declares that the surety shall be responsible, that the defendant shall not send the moveables or slaves out of the jurisdiction of the court; that lie shall not make an improper uso of thorn, and that he will faithfully present them after definitivo judgment, &c. A marked difference exists in the provisions of the Code in cases of attachment. There the bond is, “that he [the defendant] will satisfy such judgment as may be rendered against him in the suit pending.” Art. 259.

The legal intent of the instrument being to secure the presentation of the property to be applied towards the satisfaction of the plaintiffs’ privilege when definitively adjudged, and the penalty of the bond being inserted to secure the performance of that act, upon breach of the condition, the question is, quantum damnificatus. The injury sustained by the plaintiffs is the value of the sequestered property, which, if it had been presented, would have been applied to the payment of the plaintiffs’ claim. A judgment resting upon the mere standard of the amount of the plaintiffs’ claim, without reference to the value of the property sequestered, is, therefore, erroneous.

As we have no evidence of the value of the property, the suit must be dismissed. Under the express terms of the bond the sureties are liable in solido.

It is, therefoi-e, decreed that, the judgment of the court below be reversed, and that this cause be dismissed as in case of non-suit; the plaintiffs paying the cosls in both courts.


text:
    Darden v. Nolan.
    Decision in Youngblood v. Dodd, 2 An. 187, affirmed.
    from the District Court of West Baton Rouge, Nicholls, J.

      Herron, for the plaintiff.

      Lobdell and Greves, for the appellant.
   The of the court was pronounced by

King, J.

The plaintiff claims in this action his wages, as an overseer, on the plantation of the defendant, for the months of November and December, 1846. He also claims twelve hundred dollars on a written agreement, by which the defendant stipulated to employ him as an overseer for the year 1847, averring that he was discharged by the defendant, on the 1st of January of that year, without just cause. The defendant admits the alleged agreement, but avers that he dismissed the plaintiff in consequence of abusive language and menacing gestures used by the latter to him, as well as for negligence and misconduct as an overseer. The jury awarded to the plaintiff the sum claimed in his petition, and the defendant has appealed.

We are unable to concur with the jury, and are constrained to reverse their verdict. The evidence shows that the plaintiff used the most grossly abusive and insulting language to the defendant, accompanied with a threatening manner, which was not provoked by the latter, as far as appears from the record. After the violent altercation which occurred between the parties, in which they indulged in mutual recriminations, it was impossible that the relations of employer and overseer could longer continue, and we find nothing in the evidence to authorize the conclusion that this result was produced by the fault of the defendant. We think that the defendant was fully justified in discharging the plaintiff. Youngblood v. Dodd, 2 An. 187. Conrey v. Brandegee, 2 An. 132.

For the month of December, and a part of the month of November, during which the plaintiff rendered services as overseer under a separate contract, he is entitled to the wages stipulated.

The judgment of the District Court, is therefore reversed; and it is decreed that the plaintiff recover of the defendant the sum of one hundred and twenty-five dollars; the plaintiff paying the costs of this appeal, and the defendant those of the court below.


text:
    Maillefer v. Saillot.
    Where, after a judgment rendered on the opposition of the tutor, rejecting the application of a minor, under tlic stafc. of 23 January, 1829, to be emancipated before attaining the ago of twenty-one years, the minor marries without the knowledge or consent of bis tutor in another State, the marriage will not have the effect of emancipating him, nor will it authorize him to demand an account and settlement of the.tutorship. Art. 3C7 C. 0. which provides that the tutor is emancipated of right by marriage, relates to marriages authorized by law, not to those contracted in fraud of its provisions.
    from the First District Court of N ew Orleans, McHenry, J.

      Biron and T. W. Collens, for the plaintiff.

      Castera, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, being at the time over nineteen years of age, applied to the district court to be dispensed with the age required by law for attaining majority, under the act of 1829. The family meeting convoked to take his application into consideration advised the judge to grant it; but the tutor opposed it; and, after hearing evidence, the court gave the following judgment: “The testimony shows that the applicant is unable to manage his own affairs, and that he is unwilling to work. We think that the tutor’s opposition must be maintained, and the costs paid by the minor.”

After the rendition of this decree the plaintiff went to the city of Mobile and there married, without the knowledge or consent of his tutor, and immediately returned to institute the present action, in which he calls upon the defendant to account and pay over to him the funds which he holds as tutor, on the ground that he has been emancipated by marriage. The defence is: 1st. That the plaintiff, having married without the consent of his tutor, has no right to compel him to account until he attains the age of twenty-one years. 2d. That the judgment which refused the plaintiff his emancipation, on the ground of incapacity to manage his own affairs, has never been appealed from, and is final against him.

There was judgment in favor of the plaintiff ordering the tutor to account. The defendant took a devolutive appeal, and, under reservation of it, rendered his account, which was homologated, and the balance ordered to be paid to the plaintiff. The defendant also appealed from this decree.

We are of opinion that the district court erred, and that the disposition of the Code which provides that minors are emancipated by marriage, means the marriages which the law authorizes, not those which are made in fraud of its provisions. It appeal's to us that the plaintiff’s marriage in the State of Alabama can no more affect the judgment rejecting his application for emancipation, than any other form of emancipation obtained in that State would affect it.

Through motives of public policy, the law does not pi'onounce the nullity of marriages thus contracted; but it is equally against public policy that they should b 1 lield to confer upon the parties all the rights which result from the marriages of minors legally authorized.

It is ordered that, the judgment in this case be reversed, and the plaintiff’s petition be dismissed, with costs in both courts.


text:
    The State v. Bailey.
    Where, after the evidence had been concluded in a prosecution for murder, the attorney for the State states to the judge, out of the hearing of the jury, that 110 case had been made» out against the prisoner, but makes no offer to discontinue and the court, taking a different view of the evidence, communicates the opinion of the prosecuting attorney to the jury, the court cannot be required to charge the jury that they were bound to acquit the prisoner in consequence of a virtual abandonment of the prosecution. The jury should be charged that, they were not bound by the opinion of the prosecuting officer, but were bound to examine the case and decide according to their oaths. Per Curian: Without a proposition on the part of the State, assented to by the prisoner, the issue had necessarily to be submitted to the jury; and, when thus submitted, they, and not the prosecuting officer, were the judges of the guilt or innocence of the accused.
    The opinions of medical men, examined as witnesses in a prosecution for murder, as to the cause Of the death, arc not conclusive upon the jury. Their testimony must be weighed by the jury, as other evidence.
    from the First District Court of New Orleans, McHenry, J.

      Elmore, Attorney General, for the State.

      Sever, for the appellant.
   The of the court was pronounced by

King, J.

The defendant was convicted of murder, and has appealed from the judgment of the lower court given thereon. The grounds on which he asks a reversal of the judgment and a new trial, are presented in a bill of exceptions taken to the refusal of the judge to charge the jury as requested on the trial. The bill of exceptions is as follows:

“ Be it remembered that, on the trial of this cause, while his honor, the judge, was charging the jury, he informed the jury that the attorney general had expressed to him the opinion that no case had been made out by the evidence against the defendant, and that he could not therefore urge a conviction by the jury; whereupon the counsel for the defendant asked his honor the judge, to charge the, jury, that, inasmuch ns the attorney general had expressed, and his honor had communicated to the jury, the opinion aforesaid, his honor was bound by law to charge the jury that they were bound to acquit the prisoner, the law officer of the State having virtually abandoned the prosecution; but the judge refused to charge as requested, and, on the contrary, charged the jury that they were not bound by the aforesaid opinion of the attorney general, but that it was their duty to examine the case irrespective of'said opinion. To which refusal to charge as aforesaid requested, and to the said charge as given by his honor, the counsel for the defendant then and there excepted. And, moreover, the counsel of defendant asked his honor to charge the juiy, that they were bound by the opinion as to the cause oí the death of the deceased, as testified to by the physicians who gave their evidence on the trial; but the judge refused to charge as requested, but charged that they were bound to consider the whole evidence. To which refusal the said couns.cl then and there excepted, and tendered this bill of exceptions for signature.

By the Court: The communication made to the court by the attorney general Was not made in the hearing of the jury, and the court does not suppose that the attorney general expected that his opinion, given in this manner, would have been made known to the jury. The court, taking a different view of the case, felt that it was justice to the prisoner that the opinion of the attorney general should be made known: the court, therefore, charged the jury to take the case under consideration, and decide according to the oaths they had taken as jurors.”

The district judge did not, in our opinion, err, in his instructions to the jury. The attorney general made no motion to discontinue the prosecution. He declined urging a conviction, and so informed the court, but still permitted the prosecution to proceed. The judge, on whose mind the evidence had produced a different impression, with all fairness communicated to the jury the opinion of the attorney general, and thus gave the prisoner the full benefit of that opinion. He left the case where the attorney general had left it, to the consciences of the jury, to be determined upon the testimony; and could not have done otherwise with the impressions which that testimony had made upon his mind. Without a proposition on the part of the State, and assented to by the prisoner, the issue had necessarily to be submitted to the jury; and, when thus submitted, they, and not the prosecuting officer, were the judges of the guilt or innocence of the accused.

The second point presented by the bill of exceptions is untenable. The general rule of evidence is that, witnesses can only testify to facts within their knowledge. An exception to the rule permits medical men to give their opinions in evidence on questions depending upon professional skill. But those opinions are not conclusive. They are to be weighed, as other evidence, by the jury, as the district judge properly charged. 1 Greenleaf on Ev. § 440. Brabo v. Martin, 5 La. 276. Judgment affirmed.


text:
    York v. Chilton.
    In an action for damages for an illegal arrest, if no probable canse be shown for tlie arrest, malice on tlie part of the person at whose instance it Was made will be presumed;
    from the Fifth District Court of New Orleans, Buchanan, J.

      Frost and J. Barker, for the appellant.

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

Eustis, C. J.

This is an action by the plaintilf, who was the master of the british barque Aldebaran, against the defendant, growing out of the alleged agency of the defendant in removing the plaintiff’ from his command, in the port of New Orleans, in the month of April, 1845. The plainfiff claims ten thousand dollars damages. There was a general verdict for the defendant, and the plaintiff has appealed. The case stands before us for consideration, under certain bills of exception taken to the rejection cf evidence offered on the trial of the cause.

The district judge was of opinion that certain points of law which this c&se presented, had been determined by this court in the case of Barker v. Fork, 3 An. Rep. 90, and acted upon this construction of our decision in his refusal to admit the evidence; That suit was instituted by Barker, an attorney and counsellor at law, against the owners of the barque Aldebaran, for professional services alleged to have been rendered to them on the removal of captain York from the command of the Aldebaran. We came to the conclusion, that the services alleged to have been rendered to the owners were not proved, and affirmed the verdict of the jury, which was for the defendant. The claims of tho plaintiff for damages against the present defendant, we consider entirely unaffected by anything decided in the suit of Barker; and that all the questions both of law and fact are open for enquiry.

We are not at all surprised at the error into which our learned brother has, we think, fallen, when we consider the manner in which these cases have both been presented, as appears by the records ; and the only mode by which any legal principles can be properly applied to this case is, by leaving entirely out of view everything which is irrelevant to it, and placing the causes of action of the plaintiff in legal and proper form. We suppose they may be reduced to these heads: The acts of the defendant, in depriving the plaintiff of the possession, custody and command of the Aldebaran, and his confederating with others for that purpose, depriving him of certain articles of personal property, interfering with his authority as master, and exciting the crew of the vessel to disobedience and mutiny, slandering and calumniating him, injuring him by these acts, and imparing his standing as a shipmaster and his character as a man, and causing him to be arrested and imprisoned under the process of the recorder of the Third Municipality. These1 appear to be the substance of the injuries for which the plaintiff seeks redress from the defendant; they are charged in the petition with sufficient forms of aggravation and wrong to cover almost any evidence that can support them. No exception has been taken to their cumulation in the same action, nor to the manner in which they are charged. On reducing the defendant’s pleas and answers to their legal form, they may be considered as tendering the general issue, and a justification of the acts of the defendant, under the authority of the District Court of the United States, of her Britannic Majesty’s consul in New Orleans, and of the owners of the barque Aldebaran, and as alleging gross misconduct on the part of the plaintiff in the command of the barque, thereby endangering the safety and the interest of the owners.

The district judge confined the evidence of the plaintiff to the taking of a chronometer, alleged to belong to the defendant, and to tho false imprisonment charged in the petition; considering all the other matters as being disposed of by this court in the case of Barker, and by the decision of the district court of the United States on a libel filed by the defendant against the barque Aldebaran ¡ We are of opinion that the court erred in so restricting the plaintiff’s evidence, and that all relevant testimony, under the issues as stated, ought to have been received, and was not precluded by the decision in those cases. In relation to the proper testimony to be received under them, we have no reason to believe that any difference of opinion can exist between this court and the district court; and therefore consider that there is no necessity of going into details in relation to it. We can state, however, in general terms, that the depositions of the witnesses offered, and the record of the suit in the district court of the United States, ought to be admitted in evidence ; and that the sailing orders to the plaintiff are not inadmissible. 'The same may be said of the bills of lading offered. The admission of both may be proper, at a certain stage of the cause. The bill of parcels for the chronometer offered by the defendant, not having been proved, we consider ought not to have been received in evidence.

There is a bill of exceptions to the charge of the judge, in relation to the a,-rest of the plaintiff, at the instance of the defendant, under process from the recorder’s court. We think the judge in this ease ought to charge the jury that, if there appear no probable cause for the arrest of the plaintiff, there is a presumption of malice on the part of the person at whose instance it was made.

We are not aware'of anything else in this case which requires our attention, and remand it with the hope that it may be closed by the judicious verdict of a jury, whose peculiar province it is to terminate questions of damages of this nature.

It is therefore decreed that the judgment of the District Court be reversed, and the case remanded for a new trial, with directions to the judge to act on the matters embraced in this opinion as therein laid down; and it is further ordered that the appellee pay the costs of this appeal.


author: Kins, J.

text:
    The State v. Hernandez.
    Where a prisoner, on being brought to the bar, declares that he is ready for trial, and accepts the jurors summoned to pass upon the charges preferred against him, he cannot afterwards object that a copy of the indictment was not served upon him.
    from the First District Court of New Orleans, McHenry, J.

      Elmore, Attorney General, for the State.

      J. M. Wolfe, for the appellant.
   The judgment of the court was pronounced by

Kins, J.

The accused was convicted of counterfeiting silver coin current in the State, and, after sentence, appealed. Nd bills of exception were taken upon the trial of the cause. The accused relies for a reversal of the judgment of the lower court on a number of alleged errors, assigned as apparent on the face of the record. They are the following: 1st. That there is no statute declaring it an offence to counterfeit coin within this State, and the offence as charged in the indictment is not in the words of any statute relating to the counterfeiting of coin. 2nd. That it does not.appear from the record that the defendant was served with a copy of the indictment, two days previous to the trial; nor that the grand-jury was drawn as required by law, nor of whom it was composed; nor that the accused was defended by counsel.

I. It appears to have escaped the attention of counsel that the accused was indicted under the 13th sec. of the act of 1818 (B. and C.’s Dig. p. 264); and that the offence is charged literally, in the words of the statute.

II. The defendant has brought before us a record defective in many respects, and exhibiting some of the proceedings connected with the drawing and empannelling of the grand-jury. He cannot expect us to give him the benefit of -his own laches, and to presume that the proceedings of the lower court have been irregular. If he had reason to complain of the drawing or composition of the jury, he should have brought before us a complete record, exhibiting any irregularities which may exist in the proceedings to his prejudice.

When the accused, was brought to the bar, he declared himself ready for trial, and accepted the jurors who were to pass upon the charges preferred against him. This was a waiver of a copy of the indictment, if indeed one had not been previously served upon him. Whether or not the prisoner was defended by counsel does not appear; but there is nothing to show that he made an ineffectual application to the court to assign him counsel.

Judgment affirmed,.


text:
    The State v. Monasterio.
    No appeal will lie from a judgment, sentencing one prosecuted under the stat. of 2d April, 1832, for selling intoxicating liquors to a slave without the consent of his master, to forfeit any license held by him, and to be forever deprived of the right of holding such a license in future, and condemning him to pay afine of three hundred dollars and the costs of prosecution, or to remain in jail until such fine and costs, and jail fees are paid, for a term not exceeding six months. Par Cur: Tho fine is not sufficient to give jurisdiction *, the forfeiture gives no jurisdiction of itself, nor can it aid tho deficiency of the fine in that respect; and the costs, being matters of course, can have no such effect.
    from the First District Courtof New Orleans, McHenry, J.

      Elmore, Attorney General, for the State.

      Budd, for the appellant.
   The of the court was pronounced by

Eustis, C. J.

The defendant has appealed from a judgment of the First District Court of New Orleans, by which he was, after conviction, sentenced, for the offence of selling liquors to slaves, to forfeit any license or licenses he may hold under any authority of this State, and to be forever deprived of the right of obtaining and holding any such license, and was further sentenced to pay a fine of three hundred dollars, and the costs of prosecution, which fine, together with the jail costs, was to be paid into the hands of the sheriff immediately in open court after judgment, and, in default thereof, to be arrested and conveyed to jail, there to remain until said judgment be satisfied and the jail fees paid, or for a term not exceeding six months. This prosecution was under the act of 2d April, 1832, entitled u An act more effectually to prevent slaves from obtaining spirituous or intoxicating liquors, without the consent of their masters.

The attorney general has moved to dismiss the appeal, on the ground that this court cannot take cognizence of it, because the fine imposed does not exceed three hundred dollars.

The proceedings against the defendant were by information in the name of the State, for the offence committed, and were criminal and not civil proceedings. The jurisdiction of this court is limited on criminal cases to questions of law alone, whenever the punishment of death or hard labor is inflicted, or when a fine exceeding three hundred dollars is actually imposed. Con. article 63.

The fine imposed is not of an amount sufficient to give the court jurisdiction^ The forfeiture gives no jurisdiction of itself, nor can it aid the deficiency of the fine in that respect. Tho costs, being matters of course, after conviction can have, po such effect, under the definite and positive limitation of the constitution.

Appealed dismissed.


author: Seideia, J.

text:
    Clements v. Cassilly et al.
    Where, in a bond executed for the release of property attached, three persons are named as principals, but the bond is signed by but one of the principals and a surety, the latter will not be bound, in the absence of evidence to destroy the presumption that he expected the three persons named as principals to be bound as such, or to show that he would have any recourse against them, if he paid the amount.

      from the Fourth District Court of New Orleans, Strawbridge, J.

      Perrin and Finney, for the appellant.

      Conklin and Mott, for the defendants.
   The judgment of the court was pronounced by

Seideia, J.

An attachment having been levied upon the property of the defendant, a bond was given to release it, which was signed by Fullerton, as surety. Cassilly, Wooden and Babcock were named as the principals in the bond, but Wooden was the only one of the principals who signed. Judgment having been rendered against Wooden alone, and a. fieri facias having been taken out against him without success, a rule was taken against Fullerton to show cause why he should not be condemned to pay the amount of the judgment. The district judge discharged the rule, and the plaintiff has appealed.

We are of opinion that the surety is not bound'upon this bond, Cassilly and Babcock, the proposed principals, not having signed it; and there being no evidence to show that the surety would have any recourse against them if he paid the money, or to destroy the presumption that he expected them to be bound as principals. See Wood v. Washburn, 2 Pick. 24. Bean v. Parker, 17 Mass. 591.

Judgment affirmed.


text:
    McMasters v. Palmer.
    Pleas in reconvention mast be set forth with the same certainty, as to amounts, dates &c., as if the party opposing them were plaintiff in a direct action.
    Where evidence in support of a reconventional demand has been illegally received, though excepted to on the ground of its inadmissibility on account of the vagueness and uncertainty of the plea in reconvention, the court of the first instance cannot deprive the party of the rights acquired under his bill of exceptions, by offering to grant a new trial if he would make any showing contradictory of the evidence so received.
    from the Fifth District Court of New Orleans, Buchanan, J.

      Van Faison, for the appellant.

      Remy and SouU, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

The defendant was the banker of the plaintiff, who now sues for $300,'the alleged balance in his favor of their general account, which he annexes to his petition. The defendant denied his being in any manner indebted to the plaintiff; and alleged that, on the contrary, at the time specified in the petition as the period when the discount business to which it alluded terminated, the balance, instead of being against the defendant, was in his favor, for a sum exceeding $2,400. He prays for a judgment in reconvention. The plaintiff excepted to the plea in reconvention on the ground that it is too vague and uncertain, and should have been set forth with certainty as to amount and date. The court did not act on this exception, but, on the trial of the cause, when the defendant offered in support of his claim in reconvention three checks of his own to the order of the plaintiff, which it is admitted the bank paid him, the said plaintiff opposed their admission as evidence, on the grounds alleged in his exception. This opposition was overruled by the court, and he took a bill of exceptions. The court proceeded to try the cause, and gave judgment in favor of the defendant in reconvention, for $2,050.

The plaintiff moved for a new trial, on the grounds alleged in his bill of exceptions, and further on the ground that the judgment is contrary to, or at least unsupported by, evidence, because the checks admitted by the court to prove the reeonventional demand do not raise a presumption of indebtedness of the plaintiff to the defendant.

The district judge stated, in refusing the new trial, that he had admitted the defendant’s checks in evidence as items to his credit, in addition to the items placed to his credit in the plaintiff’s account. He further stated that, at the time of rendering the judgment, he had told the plaintiff’s counsel that if he would make any showing that these checks did in reality refer to other transactions than those embraced in the account, he would grant a new trial; no showing having been made the new trial was refused, and the plaintiff took the present appeal.

Under the uniform jurisprudence of this court, tire exception of the plaintiff was well taken, and should have been sustained. The plea in reconvention was too vague and uncertain, and the defendant should not have been permitted to offer evidence under it. Pargoud v. Grice, 6 La. 75. White v. Moreno, 17 La. 372. Jonau v. Ferrand, 2 Rob. 216. Wilcox v. His Creditors, 11 Rob. 347. 5 La. 450. The court could not deprive the plaintiff of the rights acquired under his bill of exceptions, by offering to grant a new trial if he would make a showing contradictory of the evidence already received.

It is true, as urged by the plaintiff, that the mere paying over of money, or of a bank check, by a party to another, is not, as a general rule, presumptive evidence of a loan. But as the checks on which the defendant relies are not properly before us, we are unable to determine whether the defendant has brought himself within any exception to that rule.

Taking into consideration the previous connection in business of the parties and the object of this suit, we believe that the ends of justice will be promoted by remanding it.

It is, therefore, ordered that, the judgment in this case be reversed, and the case remanded for further proceedings, according to law, and in conformity with the rules laid down in the foregoing opinion; the defendant and appellee paying the costs of this appeal.