author: Merrick, O. J. Oole, J., Spoefobd, J., Spofford, J.

text:
    William Lewis v. Lewis Labauve and Sheriff.
    Tlie rules of proceeding contained in the Civil Code in regard to tho hypothecary action, after its commencement, wore repealed hy tho Act of tho Legislature, 25th of March, 1828, which provides: 11 That allrules of proceeding which existed in this Slate botero the promulgation of tho Code of Practice, except those relative to juries, recusation or Judges and other officers, and of witnesses, and the competency of tho latter, are hereby abrogated.”
    Where tho law gives a delay within which a thing may he done, the right to do tho thing oxists so long as no act of tho court or of the opposite party has intervened to conclude that right.
    A third possessor, who is not personally liable for the debt, may, for good canse, enjoin tho c xa ration of tho order of seizure even after tho delay of ten days, mentioned in Article 8366 of the Civil Code.
    Parol testimony is not admissible, that any other terms of sale were announced hy the Sheriff than those contained in the advertisement andjpi-oces verbal of sale.
    The Supreme Court will not remaud a case m order to allow the Sheriff to amend the graces verbal of a sale, whore no offort was made in the lower court to procure such amendment.
    When a sale of succession properly is ordered to be mado on the petition of tho administrator on a credit of twelve months, for the purpose of paying debts, it is not necessary the properly should bring the appraisement.
    A probate sale has the effect of extinguishing all mortgages on the property given hy tho deceased.
    APPEAL from tke District Court of tlie Parish of Jackson, Barry, J.

      McGuire & Ray, for plaintiff and appellant.

      J. W. Stell, for defendant.
   Merrick, O. J.

We think the judgment of this court, heretofore pronounced in this case, ought to be set aside, and that there should be a judgment for the plaintiff maintaining his injunction.

Article 3366 of the Civil Code provides : “ That the third possessor, who is not personally liable to the debt, may, notwithstanding', within ten days of Ms being served with an order of seizure, oppose the sale of the property,” etc. The delay here spoken of, connected with the service of the order of seizure, seems to us as much a rule of proceeding as does the delay for filing an answer to the petition and citation in an ordinary case, the delay for filing an opposition to an account or tableau of distribution ; to the meetings of creditors ; the delay for filing cross interrogatories and answers to rules ; in fine, any of the delays spoken of in the Code of Practice. Indeed, in the Code of Practice the subject of the seizure of the property is treated of at large. Article 3365, 0. C., which immediately precedes the Article in question, is reenacted in Art. 70 of the Code of Practice. That portion of Article 3366, which treats of discussion, is re-enacted (except as to the delay in which it is to be filed) in Articles 71 and 72, 0. P. Then again the Articles 738, 739 and 749, of the Code of Practice, recognize the right of the defendant, in the executory process, to obtain an injunction to prevent the sale, and no delay is fixed (except the sale) within which such injunction shall be issued. The whole object, therefore, of Art. 3366 seems to have been reconsidered and revised in the Code of Practice.

The difference between this and an ordinary prescription consists in the fact, that the prescription is a mode by which debts are barred because no suit has been instituted for the recovery thereof within a period fixed by law. In this case, it is the service which fixes the delay within which the opposition may be filed. It is a rule of proceeding, because it prescribes the delay within which an opposition, which has the nature of an answer, may be filed in a legal proceeding. Then if it is a legal proceeding, this part of Art. 3366 has been repealed by the 25th section of the Act of 25th March, 1828, which provides: “ That all rules of proceeding which existed in this State before the promulgation of the Code of Practice, except those relative to juries, recusation of judges and other officers, and of witnesses, and the competency of the latter, bo and are hereby abrogated ; and that all the civil laws which were in force before the promulgation of the Civil Code, lately promulgated, be and are hereby abrogated, except so much of title tenth of the old Civil Code as is embraced in its third chapter, which treats of the dissolution of communities or corporations.” The rules of proceeding contained in the Civil Code, in regard to the hypothecary action, after its commencement, are, we therefore conclude, expressly repealed.

But conceding that Article 3366 of the Civil Code is still in force, it has been repeatedly held by this court, that where the law gives a delay within which a thing may be done, the right to do the thing exists so long as no act of the court, or the opposite party has intervened to conclude that right. See 3 An. 196. Thus the defendant has two judicial days within which to file his answer after a judgment by default has been taken against him ; nevertheless he may file his answer and have the default set aside at any time before a trial on the tacit issue arising out of the judgment by default. 12 L. R. 7, Lallande v. Terrell. The law requires the opposition to be filed within ten days after the publication of the filing of the tableau of distribution, yet it has always been hold that it might be filed as a matter of right at any time (at least) before the case is set down for trial, and so of other instances. As the penalty of nullity is not pronounced by Article 3366, if the party does not file his opposition within ten days, we do not think that a sound construction of it would require this court to hold that the owner of an estate has forfeited the same to the person setting up an unfounded hypothecary action, if his opposition to such hypothecary action has not been filed within ten days mentioned in the Article.

Again, Article 3366 of the Civil Code provides for the delay within which an opposition is to be filed. This suit was commenced by another proceeding, the injunction, and as the Code of Practice treats of these two proceedings, injunction and third oppositions, under distinct heads, we should have no hesitation, did I believe Article 3366 in force, in distinquishing between an injunction and opposition, in order to prevent the evils which will flow from an opposite construction. The case of Berlin v. Lane, 4 N. S. 611, relied on and quoted so much at length, was decided before the great repealing Act of 1828 was passed.

The judge of the lower court erred in receiving the parol testimony of the Sheriff to show that any other terms of sale were announced to the purchasers than those contained in the advertisement and proces verbal of the sale. It is too late to move this court to remand the cause in order to allow the Sheriff to amend the proces verbal of the sale, when no eifort was made in the lower court to procure such amendment, and particularly when the proces verbal of the sale corresponds with the advertisements.

The sale having been made, on the petition of the administrator, on a credit of twelve months, for the purpose of paying debts, it was not necessary that it should bring the appraisement, and it cannot be treated as a nullity in this form of action. The probate sale had the effect of extinguishing the mortgage given by the deceased upon the property, and the mortgage creditor must look to the proceeds in the hands of the administrator.

It is ordered, adjudged and decreed by the court, that the judgment of this court, pronounced on the 28th day of July, 1855, be set aside, and that the judgment of the lower court be avoided and reversed; and we do now order, adjudge and decree, that the injunction sued out in this case be made perpetual, and the said mortgage to said Marlcham, claimed by said Labauve, is declared extinguished as to said tract of land, and it is further ordered that the defendant pay the costs of both courts, without prejudice to any right he may have upon the proceeds of said sale.

Oole, J.,

concurring. Without expressing any opinion as to the repeal of Article 3366 of the Civil Code by the Act of 1828,1 concur in the decree of Chief Justice Merrick, on these grounds, to wit:

That Article 3366 refers to oppositions, and is not, therefore, applicable to the case at bar, which is an injunction.

The “ ten days ”, therein mentioned, within which the third possessor may oppose the sale, do not, therefore, prescribe the period beyond which it is too late to sue out an injunction.

Even if this Article may be considered to govern the time within which an injunction must issue, yet the same form of expression has been held to entitle a party to act so long as no action of the court or the opposite party has intervened to conclude that right; such has been the interpretation of the court as to the time within which a defendant may file his answer, after judgment by default has been taken against him ; the same construction governs as to the time within which a party may file an opposition to a tableau of distribution. Wilson v. State Banlc, 3 An. 197.

Spoefobd, J.,

dissenting. A re-hearing was granted in this cause three years ago, for the purpose of more fully investigating tne question whether Article 3366 of the Oivil Code, limiting such an opposition as this to ten days from the service of the order of seizure upon the third possessor had been repealed.

The question has been thoroughly discussed, but the discussion has failed to satisfy my mind that there has been a repeal either express or implied.

It is urged that the Code of Practice, adopted subsequently to the Civil Code, of itself abrogated the provision in question, because Article 138 of the former Code declares, that “ the debtor, against whom this order of seizure shall have been rendered, may obtain an injunction to suspend the sale if, before the time of sale, he files in the court issuing the order his opposition in writing alleging some of the reasons contained in the following Article, and of which he shall swear to the truth.” The argument assumes that the third possessor is included under the expression “ the debtor ” in this article. But this inference is repelled, not only by the obvious meaning of the term debtor, but by the subsequent Articles of the Code of Practice itself, which proceed to draw a marked distinction between the debtor and the third possessor. Article 144 declares, that “ the executory process in matters of privilege and mortgage may be pursued, not only against the debtor or his heirs, but also against the third possessors of the things subjected to it, according to the forms prescribed in the third paragraph, 2d section, 3d chapter of the 1st part of this Code.” i. e. Arts. 61 et seq. These forms (as to the third possessor) are laid down in Articles 68, 69,10, 11, 12,13 and 14 Now the question occurs, is there anything in these Articles inconsistent with Article 3366 of the Civil Code? For if they can stand together as parts of one statute, there is no express repeal. And it seems to me clear that they can stand together. Article 11 authorises the third possessor (not personally bound for the debt) to oppose the sale, by the plea of discussion. But it says nothing about the time within which this opposition must be made. That matter is left, therefore where it stood before, regulated by Article 3366 of the Civil Code, which requires the opposition to be within ten days from the service of the order of seizure. In Article 14 a time is limited for another purpose, but not for the filing of oppositions. “ Third possessors of property which has been seized, owing to their failure of discharging the hypothecary debt within ten days after having been notified that payment has been demanded of the hypothecary debt, may, until the very day of the sale, retain possession of the hypothecated property, by paying the debt with interest and all costs incurred in the suit.” We cannot suppose that the framers of the Code of Practice were ignorant of Article 3366 of the Civil Code or of the judicial interpretation given to the corresponding Article of the old Code. And their silence in regard to the limitation of the ojqjositions filed by third possessors, whilst treating of the hypothecary action, indicates that they had no intention to change the law in that respect. Thus much for the alleged repeal by implication, a species of repeal, we may remark, not favored in law.

Again, it is contended that the provision of which we speak was expreesl-y repealed by the 25th section of the Act of March 25th, 1828, wherein it was declared, “that all tho rules of proceeding which existed in this State before the promulgation of the Code of Practice, except those relative to juries, recusation of judges and other officers, and with respect to the competency of the latter, bo and are hereby abrogated.” Is the limitation of an opposition by a third possessor to ten days from the service of the order of seizure upon him, “ a rule of proceeding” in the sense of this statute ? No more, it would seem, than the proscription of various actions laid down in the Civil Code and other statutes. An Act of 181V (¡3.136), for instance, provided, that if after the appointment of syndics, any of the creditors of the insolvent should deem it necessary to oppose it on the ground of fraud in the insolvent debtor, or of the a23pointmont having been illegally made, he shall, within ten days next following the appointment of said syndics lay before the court his opposition, stating the facts regarding the nullity of said appointment, or the fraud by him alleged against the insolvent debtor. It would hardly bo contended that this limitation of an O23position to ten days was pealed by the Act of 1828, on the ground that it was a rule of proceeding ” contenrplated thereby. And it has been held to be a perenrptory rule. And so of numerous incidental matters in the Civil Oode. The Act of 1828 had relation to such statutes as were qsreviously in force having rules of practice for their main object, and did not repeal any thing in the Civil Code which could harmonize with the Code of practice.

Thus much upon the question of the repeal of Article 3366 of the Civil Oode, a question upon which I am compelled to differ from two of my colleagues.

But the only point upon which a majority of the court have exqsressed an opinion which leads to a reversal of the former judgment, and, therefore, the only points established as the doctrine of this case, is a point not raised by counsel either in the original argument, or in the argument upon the re-hearing. It was evidently not in the mind of the court when the re-hearing was granted, for the attention of counsel was only called, by our order, to the effect of the repealing Act of March 25th, 1828. •

That point is, that Article 3366 of the Oivil Code does not touch this case, even if in force : 1st. Because it relates to oppositions, not injunctions, and 2dly, because if it could be considered as relating to injunctions, the delay is directory merely, and not peremptory, and what is ordered to be done within a given time may, in some cases, be done later.

It suffices for me to say, that both these arguments were considered and passed for naught in the parallel case of Babin v. Lainé, 4 N. S. 64. I cannot better close this dissenting opinion than by quoting the language of Mr. Justice Matthews in that case, language whose weight is not impaired by the lapse of time, nor, so far as I have been able to ascertain uj) to the present case, by any countervailing authority. After stating that the order of seizure and sale in that case “ was regularly served on the qilaintiffs, who made an opposition to the proceeding within the ten days allowed to them, by law for that purpose ; but when the Sheriff was about to proceed to sell the property seized, they 23resented a petition to the judge a quo for an injunction to stay proceedings, which was granted, and afterwards dissolved on hearing’ of the cause ; and from this decree of dissolution they a23pealed.” The court then proceeded to give the following reasons for affirming the judgment which dissolved the third ]30ssessor’s injunction :

The right of a mortgage creditor to cause things mortgaged to be seized and sold, to satisfy the debts for which they were hypothecated, notwithstanding they may have changed owners and possessors, is legally clear and absolute. Third possessors of mortgaged property have, by law, the choice of either paying the debt for which it is mortgaged, or surrendering it to be sold, etc. If they do neither, then they must be proceeded against by what is termed an action of mortgage, etc. The law allows to them ton days after notification of the order of seizure and sale; within which they arc bound to pay the debt for which the property is hypothecated, or make opposition to the legality of the mortgage and proceedings thereon. C. 0. p. 462.”

“ It is true, that no negative expressions are found in the law denying the exercise of this right after the expiration of ten days ; but we are of opinion that the negative is so strongly implied, as to show the intention of the legislature ivas, to fix that period limited, within which alone such opposition may be made. Any other interpretation of the law on this subject would entirely destroy the facility granted to the collection of debts secured by mortgage, and would produce the same delays in that mode of pursuit, now called summary and prompt, which exist in the ordinary manner of proceeding, and which are so injurious to the credit of our fellow citizens who reside in the country.”

Still entertaining these views, I think the judgment heretofore rendered by this court should remain undisturbed.

OVERRULED OPINION.

Spofford, J.

We think the plaintiff is a third possessor in the sense of tho law.

“The third possessor, who is not personally liable for the debt, may, notwithstanding, within ten days from his being seized with an order of seizure, oppose the sale of the property mortgaged, which.is in his possession, if he has good causo to show in support of such opposition : as that the mortgage has not hoen registered, or other plea, or if there is other property mortgaged for the same debt within tho possession of the principal debtor or debtors, in which last case the possessor may demand that his property be previously discussed in the form directed under the title of suretyship, and during tho discussion, the salo of the property mortgaged and in the possession of tho third person shall bo suspended.” C. C. 3366.

This article is copied from Art. 44, sec. 2, ch. HI, tit. XIX, (p, 462,) of the Code of 1808, with hut a slight change, which is one merely of style.

That Article received judicial interpretation in the case of Babin v. Laine, 4 N. S. 611, when it was hold that if the third possessor failed to make his opposition within tho ten days, ho was debarred from making it afterwards. Tho court said: “ It is true, that no negative expressions are found in the law denying the exercise of this right aftor the expiration of ton days ; hut we are of opinion that tho negativo is so strongly implied as to show the intention of the Legislature was, to fix that period limited, within which alone such opposition may he made. Any other interpretation of tho law on this subject would entirely destroy the facility granted to tho collection of debts secured by mortgage, and would produce the same delays in that mode of pursuit, now called summary and prompt, which exist in tho ordinary manner of proceeding, and which are so injurious to the credit of our fellow citizens who reside in the country.”

No authority has been referred to which clashes with this decision.

Tho phrase “good cause to show in support of such opposition,” is very broad, and the instance given, “as that themortgago lias not been registered,” is not exclusive. If that is such a causo as must be shown within ton days, there is no reason why tho defence that the land has been purged of the mortgage by a probate sale, (the plea set up in this case) should not he interposed within the same limited time. Indeed, the Article of the Code would seem to imply that all pleas known, or which might he known, to the third possessor at tho time of tho service of the order of seizuro and salo, should ho interposod before tho expiration of ton clays.

In this case the plaintiff in injunction appears to ¡/have been served with tbe order of seizuro on the 18th June, 1852 •, he sued out his injunction, and filed his opposition on tho 2d August, 1852.

The defendant in injunction (plaintiff in the order of seizure and sale) excepted in limine, that tho third possessor had not mado liis opposition in time to he heard. Tho district judge being of this opinion, dissolved tho injunction and ordered tho salo to proceed.

Under the authorities cited, we cannot say that this decision was erroneous.

The judgment is, therefore, affirmed, with costs.


source: Caselaw Access Project

author: Spofford, J.

license: Public Domain

text:
    E. H. Williamson and Husband v. Alexander Amilton.
    A partition, even when it takes on itself the aspect and quality of a compromiso, may he attacked for lesion beyond one-fourth, hut when the partition is once made and the parties compromise on disputes growing out of it, the compromise is unassailable for lesion.

    The acceptance by the wife, separated from bed and board of tho community, under Article 2389 of the Code need not he by notarial act; like the heir’s acceptance of a succession, it may be either express or tacit.
    APPEAL from tlie District Court of the Parisli of Ouachita, Richardson, J.

      J. T. Ludehng, for plaintiffs and appellants.

      Morrison § Purvis and 31c-Guire fy Ray, for defendant.
   Spofford, J.

This suit, brought by a divorced wife against her former husband, has narrowed itself down to a claim for the rescission of a voluntary partition between them of the property they formerly held in common, on the ground of lesion only.

There are other objections in the petition which it is unnecessary to notice, as none of the exceptions filed were sufficient to require the dismissal of the suit.

I. The defendant contends that the act passed between himself and the plaintiff, after the decree of separation and dissolution of the community, was a transaction or compromise, and, therefore, cannot be annulled on the score of lesion.

Article 3045 of the Civil Code, declaring that “ transactions have, between the interested parties, the authority of the thing adjudged, and cannot be attacked on account of any error in law or any lesion," must bo construed in connection with other Articles of the Code in pari materia, so that all may have their full effect. The following Articles fully sustain the present action, if the allegation of lesion beyond one-fourth is proved :

“ Partitions made even with persons of full age, may be rescinded, like other covenants, for radical vices, such as violence, fraud or error.” 0. 0.1435.
“They may even be rescinded on account of lesion; and as equality is the basis of partitions, it suffices to cause the rescission that such lesion be of more than one-fourth of the true value of the property.” C. 0.1436.
“ The action of rescission mentioned in the foregoing- Articles, takes place, in the cases prescribed by law, not only against all acts bearing the title of partitions, but, even ag’ainst all those which tend to the division of property between co-heirs, whether such acts be called sales, exchanges, compromises, (transactions) or by any other name.” C. 0.1440.
“ But, after the partition, or the act operating the same effect, the action of rescission can no longer be admitted against a compromise (transaction) made to put an end to disputes arising m consequence of the first act, although there should be no suit commenced on the subject.” C. 0.1441.

Here is an evident exception to the rule with regard to the finality of compromises. A partition, even when it takes upon itself the aspect and qualities of a compromise, may be attacked for lesion beyond one-fourth; but the partition once made, if disputes grow out of it, and the parties compromise on those disputes, this compromise is unassailable for lesion.

In the present case, the ¡parties, separated in property and ftom bed and board, under a judgment decreeing that an inventory and appraisement of the common property be made, and that it bo partitioned between them, went before a Notary Public and entered into the agreement now sought to be annulled for lesion.

It recited, that on the 16th of December, 1854, “ a judgment of separation of bed and board, and a dissolution of the community existing between them as husband and wife, was duly rendered ; and that with a view of settling the said community and of closing all the pecuniary affairs between them, the said Mrs. Elizabeth H. Amilton takes, and the said Alexander Amilton transfers to her, certain described property, “ as her part of .the said community” ; and “ all the balance of said community property is to belong to said Alexander- Amilton, this being a full and final settlement of said community between them.” This act was passed on the 13th January, 1855, within thirty days after judgment dissolving the community.

It is to all intents and purposes an act of partition, and the evidence of McGuire and Richardson if legally admissible, which it could hardly be, to explain so unambiguous a notarial act as this, would not have changed its character so as to withdraw it from the operation of Article 1436,1440 and 1441 of the Oode.

II. But the defendant contends that the plaintiff cannot maintain this action, because she is conclusively presumed to have renounced the community, not having accepted it with due formality thirty days after the judgment of separation. The Article 2389 of the Oivil Oode is relied on as sustaining this position.

It would be a singular provision of law which should allow a husband who, within thirty days after a judgment of separation obtained by his wife against himself dissolving the community, had made an amicable partition of the common property between himself and her, pursuant to a judicial decree rendered upon the express prayer, to plead the prescription of thirty days against her right to accept. He is effectually estopped from such a plea. Not only is there a judgment between these parties declaring her entitled to one-half the community, but he has acknowledged her right by his notarial attempt to make the partition. An acceptance of the community by a wife separate in property, although to be made within thirty days from the separation finally pronounced, need not be by a notarial act for that purpose only; but, like the heir’s acceptance of a succession, may be either express or tacit. C. 0. 982.

In the Old Oode (Article 81) there was a provision that “ the acceptance of the partnership or community of gains, shall be made in the same form as is above prescribed for the renunciation of the same." But the contradiction between such a provision and those accompanying Articles which declared that an acceptance was implied by the interference of the wife with the common property, or her suffering a judgment to go against her as a partner, was perceived by the committee of jurists appointed to revise the Oode of 1808, and in our present Oode the absurdity was removed by dropping altogether the provision which required any particular formalities whereby the separated wife’s acceptance was to be indicated. No more full or conclusive evidence of her acceptance could have been given than was given by the very act sought to be annulled, an act passed within thirty days after the decree which she had prayed for, awarding her one-half of the common estate, and an authentic act professing to partition the community, and by virtue whereof she actually received a portion of it. She claimed no delay to deliberate. The formality of an inventory was waived by her acts constantly showing her intention to accept the community, and actually intermeddling in it. She expressly accepted it by joining in an act of partition. There is nothing inconsistent with these views in the case of Audrich v. Lamothe et al., 12 An. 76. The remarks in that opinion must be construed with reference to the point in judgment; that was, that the -wife could not be held liable for debts of the community after a judgment of separation, because she had never claimed any interest in it, and never intermeddled with it, but, on the contrary, by having done neither, and having failed to procure an inventory and to accept within thirty days after the decree of separation, she was presumed to have renounced. See C. C. 2404; C. N. 1463; 5 Marcadé, 604; 13 Toullier, No. 131; Herman v. Theurer, 11 An. 71.

L’acceptation de la communauté, comme eelle d’une succession, peut se faire expressément ou tacitement verbis ou facto. II y a acceptation expresse lorsque la femme, soit principalement et par un acte dressé dans ce but, soit incidemment et dans un acte quelconque, prend la qualité de femme commune. II y a acceptation tacite, lorsque la femme s’immisce clans les biens ele la communauté.” 5 Marcadé, 594.

HI. xhe prescription of thirty days against the wife’s right to accept for want of an acceptance in a particular form with a previous inventory, having been erroneously considered by the District Judge as a peremptory bar to the present action, it only remains to inquire whether there was lesion beyond one-fourth to plaintiff’s prejudice in the partition of the 13th of January, 1855. For the exception as to the lack of more specific averments as to the value of the property and the extent of the lesion came too late.

It is a question of fact whether there was lesion or not. Our appreciation of the evidence has led us to the conclusion, that there was manifestly lesion to a greater extent than the value of one-fourth of the property. But as to the details, it would be premature to decide now what should be done upon a rescission. We can only order that the parties be referred to a notary to make a new partition. The rights of the parties can then be adjusted before the lower court in the usual form.

It is, therefore, decreed, that the judgment of the District Court be avoided and reversed; and it is now ordered, adjudged and decreed, that the .partition of the property heretofore held in common between the plaintiff and defendant, as passed before B. D. Sheppard, Recorder of the parish of Ouachita, on the 13th of January, 1855, be rescinded and annulled for lesion beyond one-fourth. And it is further ordered and decreed, that this cause be remanded to the lower court, with instructions to refer the parties to a Notary Public and appoint experts for the purpose of taking an inventory of such of the said property as may be still subsisting, and effecting a new partition in pursuance of the decree of separation between the parties, signed on the 16th of December, 1854, and that the suit be otherwise proceeded in according to law ; the costs hitherto incurred in the District Court and those of this appeal to be borne by the defendant and appellee, and the future costs to await the judgment of the court.


author: Merrick, O. J.

text:
    Moses H. Butler v. James T. Watts.
    The final decision of tlio land department upon questions of title previous to tlio issuance of patents or divestiture of title, is of itself so far equivalent to an actual eviction, as to sustain tlie action of warranty—unless the defendant in warranty shall pez’fect the title.

    The decision of the General Land Office being subject to an appeal to tlie Secretary of the Interior, is not technically res judicata; yet an exception to an action in warranty, upon the grounds that such an appeal dpes lie, does not go to the dismissal of the action. Defendant could only claim a continuance (after having taken such appeal) until the same should be decided.
    APPEAL from the District Court of the parish of Ouachita, Richardson, ¿T.

      J. T. Ludlay, for plaintiff and appellant.

      Morrison §• Purvis, for defendant.
   Merrick, O. J.

Plaintiff alleges that defendant, on the 10th day of June, 1857, sold him a tract of land containing one hundred and fifty-eight acres, for the price of. $4049 30 : $2400 in cash, and the residue in two negotiable notes payable in March 1858 and March 1859, for $1174 65 each; that since that sale, the government, having jurisdiction of such matters, has decided that the claim of said Watts was invalid, and that he had no right or title to the said lands, and that said sale was the sale of the property of another ; that since the decision by the Land Office at Washington, the defendant has transferred said promissory notes to F. F. Fargoud, with a view of defrauding petitioner and to prevent him from asserting' his just right; that he has been virtually evicted from the thing sold by the said decision, and that the sale being of the property of another, was void; but should the court or tho defendant be of tho opinion that the defendant can yet sustain his title, then and in that case, plaintiff avers that ho has just reasons to fear that he shall be disquieted in his possession by the United States or some claimant holding under or through the United States.

Petitioner prays that defendant be decreed to give security for tho refunding of the $2400 already paid, also for the repayment of the notes outstanding in the event petitioner should be compelled to pay them, and it should be finally determined that said Watts had no title to the said described tract of land; and if he fails to give the necessary security, that the sale be annulled, (petitioner offering to abandon the possession to said Watts); and that he may recover judgment against said Watts for said sum of $2400, and interest; and that said note be cancelled, or in the event of their transfer before maturity, he have judgment against Watts for their amount.

The defendant excepted, on the ground that the suit was premature, that defendant’s preemption right to the land in controversy has not been finally cancelled, nor has the plaintiff been evicted or disturbed in his possession.

A letter from the Commissioner of the General Land Office to the Register and Receiver, was offered in evidence on the trial of the exception, advising them that the defendant’s “preemption claim” to the land sold to plaintiff had been can-celled on the ground that the defendant had not complied with the provisions of the Acts of Congress of the 4th of September, 1841, and 3d of March, 1853.

The judgment of the lower court maintained the exception, and plaintiff appeals.

It is well settled, that the action of the land department upon questions of this kind is final, and that the courts, as a general rule, are without power to revise the-decisions of such department, specially entrusted by the government with jurisdiction over the surveys, location, settlements upon, and sales of the public lands. It would also seem that the final decision of the land department upon the question of title, previous to the issuance of the patent, or divestiture of title of the government, is itself so far equivalent to an actual eviction, as to sustain the action of warranty, unless the defendant in warranty shall perfect the title. Hall v. Neill, 3 An. 327.

But it is contended that the decision of the Commissioner of the General Land Office cannot have the effect of the thing adjudged, because an appeal lies from his decision to the Secretary of the Interior. It is true that tho decision of the Commissioner of the General Land Office is subject to appeal, and is not therefore, technically, res judicata; yet, as there is no limit within which the appeal is to be taken, except perhaps the delivery of the patent; and as the defendant, who is the party to take the appeal, may never apply for such appeal, we think that the exception does not go to the dismissal of the action, and at most the defendant could only claim a continuance of the cause (after having himself taken such appeal) until the same should be decided.

It is unnecessary to express an opinion upon the question, whether the provisions of Article 2535 C. C. can be invoked by way of an action, where tho negotiable paper given as the price has been put in circulation before maturity, or whether the party must wait until he 'is sued upon it, before he can require such security. The Article has no application where the money has been paid to the vendor. 17 L. R., 26 ; 2 An. 460.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and the exception overruled; and that this case be remanded to the lower court for further proceedings, and that the defendant pay the cost of the appeal.


author: Buchanan, J.

text:
    Gincy Long et als. v. Eliza Barnes.
    A judgment against a warrantor will not be amended by tbc Supreme Court, whore the warrantor has not been made a party to the appeal bond.
    APPEAL from the District Court of the parish of Claiborne, Richardson, J.
    D. Watkins, for plaintiff.

      Vaughan Vaughan, for defendant and appellant.
   Buchanan, J.

The defendant and appellant asks for an increase of the jug'dment rendered in her favor against her warrantor, Ambrose Phillips, by the District Court. But this court cannot afford her any relief in this respect, for she has not made her warrantor party to this appeal; the only obligees mentioned in the appeal bond being the plaintiffs. The warrantor, Phillips, has made an appearance in this court, it is true; but it is, to move for the dismissal of the appeal as regards himself.

The only parties before us, are the plaintiffs and defendant.

The plaintiffs, appellees, answer the appeal, praying for an amendment of the judgment rendered as between themselves and the appellant, by disallowing the value of improvements put by defendant upon the land; which is allowed by the District Court in compensation of the rent for 1856 and 1857.

The appellees are entitled to the amendment claimed by them. The defendant has not asked by her pleadings for compensation for her improvements, at the hands of plaintiffs.

Her answer to the plaintiffs’ petition, after a general denial, avers that she purchased the land claimed by plaintiffs, from Ambrose Phillips; that she has paid her vendor, and has made, since the purchase, valuable improvements.

She prays that Phillips bo cited as warrantor ; and in case the plaintiffs have judgment against her, that she may have judgment over against said Phillips for the amount paid by defendant for the land, and for the improvements, &c.

That portion of the judgment allowing defendant one hundred and fifty dollars in the shape of an offset against rent recovered by plaintiffs, thus appears to be ultra petitum.

It is, therefore, adjudged and decreed, that the judgment of the District Court, as between the plaintiffs and the defendant, be amended, by decreeing that plaintiffs recover of defendant rent at the rate of seventy-five dollars per annum, from the 1st January, 1856, until plaintiffs are put in possession of the premises mentioned and described in the judgment; that in all other respects, the judgment in this case, as between plaintiffs and defendant, be affirmed ; and that defendant pay costs in both courts.


text:
    J. H. Dinkgrave, Administrator, v. Permelia Sloan.
    The Sheriff is not authorized to seize property in another parish, even when pointed out hy the debtor.
    APPEAL from the District Court of the Parish of Union, Richardson, J.

      J. T. Luedling, for plaintiff and appellant.

      Baker & Harris and Garret & Benton, for defendant.
   Merrick, O. J.

This is an action to recover from the defendant, a tract of land containing 150 acres in the parish of Union.

It will he needless to examine the hill of exception to the introduction of defendant’s title, under the allegation in the answer. Never having been in possession himself, and having expressly attacked defendant’s title in the petition, the plaintiff is in no condition to insist that the defendant is a mere trespesser. He must recover upon the strength of his own title.

When we examine his title we find he claims in virtue of a Sheriff’s deed executed in 1840 by the Sheriff of the parish of Ouachita. It does not describe the land as lying in the parish of Union, hut the proof clearly shows that it applies to one of two tracts of land lying in that parish, and then owned hy one Joseph Hedge, against whom the execution issued.

The writ of fi.fa. did not confer upon the Sheriff of the parish of Ouachita the power to sell the land of the defendant in execution, lying in another parish. It commanded him (in conformity to the Code of Practice) in default of personal estate of the said Hedge, to cause the money to be made out of the real estate and slaves of said Hedge, in his parish, viz : Ouachita. O. P. 643, 646. He could not go out of his jurisdiction to seize; and, when he had sold, it was impossible to deliver possession.

But it is said that the defendant himself pointed out the property, and, therefore, he could not complain of the sale, neither can those holding under him. The Sheriff was not authorized to seize property in another parish, even when pointed out hy the debtor. 0. P. 646. We think where a purchaser at Sheriff’s sale has never been in possession of the property, and relies merely upon a paper title, resulting from the proceedings of the Sheriff making the sale, something more must he shown, as a waiver of jurisdiction, than the mere return of the Sheriff. It is quite probable that a knowledge on the part of the bidders at the sale, of the location, of the land, was the cause that it brought only the trifling sum of $3 50.

The prescription of five years cannot avail plaintiff. Bodeman v. Barrow.

■Pinal judgment was properly rendered in favor of the defendant, for it is evident that plaintiff’s only hope of recovering must depend upon the Sheriff’s deed, and that, it is seen, becomes unavailing. 6 Rob. 356 ; 6 N. S. 210,

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


author: MeeRick, 0. J.

text:
    S. H. McFarland, Administrator, v. R. White.
    In tile absence of proof of tlie laws of another State where a judgment was rendered, our courts will give the same effect to tlie judgment, wlrou a reconventional demand was set up), that would be given when a like demand is set up in our courts.
    The sickness of counsel and inability to attend in person to the suit when it was tried, is no ground for annulling a judgment which was obtained without fraud by the opposite party.
    APPEAL from the District Court of the Parish of Caddo, Land, J,

      Crain fy Nutt and Drew If Kilpatrick, foi' plaintiff.

      B. L. Hodge, for defendant and appellant.
   MeeRick, 0. J.

The defendant instituted an action in the United States District Court in Texas, against the estate represented by the plaintiff, to recover Several siims of money alleged to be due the defendant by the latter. The defendant in that suit, and plaintiff in this, pleaded in bar of the same, among other things :

1st. That the demand had not been presented to him as administrator within twelve months, as required by the laws of Texas.
2d. The limitation or prescription of four years.
8d. That the allegations in the plaintiff's petition are not true.

The answer, after setting forth further special defences, and praying judgment Upon the same, prayed also for judgment against the plaintiff (after allowing him one credit) for several sums, amounting to $3,100 09, and for general relief.

At the April term, 1855, at Tyler, in Texas, a jury Was ompannelcd, and in the absence of plaintiff’s (White’s) counsel, the case Was tried and a judgment for $3,200 15 was rendered against White, the counsel remitting $ 100 of the sanie.

The defendant in the Suit in Texas, instituted this action upon the judgment in Ms favor in the District Court, for the parish of Caddo, in January, 1856.

The defendant, White, alleges in his answer (and has verified it by his oath,) that after entrusting Ms claims to Mr. Hill, his attorney in Texas, that he heard nothing concerning them, until he was called on to settle the judgment against Mm. That he was never notified of the reconventional demands made against Mm, and that his attorney Was not acquainted With the fact of such demands being made. He avers that he “ was not in any manner indebted to the said John W. Scott or his estate, and that if he had been advised of the demands being made against Mm by the defendant in the aforesaid suit in Texas, he could and Would have proved that they were totally unfounded. He then avers that When the judgment was rendered in the United States Court against him, Ms attorney, Mr. Hill, was sick, and confined to his bed in Marshall.

Upon the trial of the present suit, defendant offered Mr. Crain as a witness to prove, “ that in the year 1845, subsequent to the time when it is averred in the answer of defendant in the suit in the United States Court, that the obligations of the present defendant arose, he, witness, heard John W. Scott declare, explicitly, that the present defendant, White, was not indebted to him, but that he, said Scott would be owing to said defendant White any amount that said White would have to pay upon the judgment of Woodruff v. White, and W. T. Scott v. White et al. filed in evidence in this suit.” The plaintiff objected to this, upon the ground “ that it is not competent to offer evidence to question the validity of the judgment rendered in the United States District Court in Texas.”

The reconventional demands of the defendant White, in this case, are substantially the same, as the cause of action sot up in his petition in the suit in the District Court in Texas. Judgment was rendered in favor of plaintiff for $3,100 15 and interest, but the Judge a quo gave the defendant judgment upon his reconventional demands for the following sums, to wit: $200 with five per cent, from the 8th of May, 1848, and $500 with five per cent, interest from the 10th July 1848, and $334 82 with like interest from 14th of May, 1849 ; and the further sum of $335, with like interest from the 5th of February, 1848, and allowed them to compensate to that extent the plaintiff’s judgment for $3,100 15.

The defendant appealed; and the plaintiff has, by his answer to the appeal, prayed for an amendment of the judgment, so as to reject the sums allowed the defendant by way of reconvention.

The appellant claims a reversal of the judgment, in substance, on two grounds, viz : That the defendant had no notice of the reconventional demand against him in the suit in Texas, and that the judgment is inequitable, inasmuch as the defendant was prevented by accidont from availing himself of his defence, against the reconventional 'demand of the administrator, and as a court of equity will relieve in a like case, the same relief ought to be extended by our own courts.

It seems to us, in the absence of the proof of the law of Texas on the subject, that we must give the same effect to the reconventional demand in the Texas suit, that we would give to a like demand in our own courts. The plaintiff is considered 5as in court, and bound to take notice of all adverse proceedings and defences sot up in the cause which he has commenced and is prosecuting against his adversary.

On the other ground raised by appellants counsel, we think, from the form of the issue tendered the plaintiff by the defendant’s plea in the United States District Court, that the single judgment rendered was responsive to the issue, and a bar to any further suit upon the same demands. When rendered, it became conclusive upon the parties until set aside by an appeal or some suit in chancery or at law, to annul the same.

And if our courts will, in any case, entertain a demand in nullity by way of an answer upon a judgment rendered in another State, in the absence of proof of the laws of that State, it must be upon stronger allegations than those set up in this case. We are clearly of the opinion that the sickness of White’s counsel, Mr. Ilill, and his neglect or inability to attend in person the case when tried, is no ground for annulling the judgment of the courts of another State. I-Iis sickness might have been a good ground of continuance had it been made known to the court, and a continuance applied for, but certainly it is not a ground under our law, no other being in evidence, to apnul a judgment obtained without fraud by the opposite party.

The Judge of the District Court, therefore, did not err in excluding Mr. Cram’s testimony.

But we have already said we consider the judgment responsive to the issue made, and it is also conclusive against the demands which the defendant now endeavors to set up by way of reconvention, and he should not have been allowed the several credits above mentioned.

It is ordered, adjudged and decreed by the court, that the judgment of the lower court be amended in favor of the plaintiff and appellee, so as to reject entirely the defendants reconventional demand ; and that the judgment appealed from, awarding the plaintiff the sum of $3,100 15 and eight per cent, interest thereon from April, 1855, be affirmed; the defendant and appellant paying the costs of appeal.


author: Merrick, C. J.

text:
    Same Case—On a Re-hearing.
   Merrick, C. J.

The point in regard to the interest allowed by the judgment was not made in the original brief in this case. It is too late to make the point in a petition for a re-hearing.

It is ordered, that the petition for a re-hearing in this case be refused.


author: Cole, J.

text:
    Phœbe E. Davis v. William H. Compton and Sheriff.
    The property of the cummunity is liable to seizure, for the debts of the husband contracted bofore the . marriage.
    APPEAL from the District Court of the Parish of Morehouse, Richardson, J.

      Todd & Brigham, for plaintiff.

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

The sole question in this case is, whether the property acquired during marriage is liable to be seized and sold on execution, to pay a judgment obtained against the husband before marriage.

Art. 2372 C. C. declares, that the debts of both husband and wife anterior to the marriage, must be acquitted out of their own personal and individual effects.”

This Article must be interpreted in connection with Article 2373 of the same Code, which pronounces the husband to be the head and master of the partnership or community of gains, and permits him to administer its effects, dispose of the revenues which they produce, and alienate them by an encumbered title, without the consent and permission of his wife.

Art. 2372 entitles either the wife or husband, when debts of either originating before marriage have been paid out of the community, to be reimbursed the amount so paid at the dissolution and settlement of the community.

As the husband has the right to alienate the effects of the community without the consent of his wife, creditors of the husband bofore marriage ought also to have the right to seize the effects of the community to satisfy their claims. 2 An. 226, Grice v. Lawrence, Syndic; 3 An. 615, Glenn v. Elam.

Moreover, the wife has only an eventual interest in the community, and may never accept it.

Defendant has asked for an amendment of the judgment, so as to allow him interest and damages on the amount of the judgment enjoined.

The damages were properly disallowed by the District Judge; the statute would compel us to accord sufficient interest with that which the judgment already boars, to make it amount to eight per centum per annum, but as the record docs not disclose the rate of interest of the judgment, we are bound to suppose that the District Judge did Ms duty, and that no interest was allowed, because the judgment bore already eight per centum interest.

Judgment affirmed.


author: Cole, J. Merrick, C. J.,

text:
    Cornelia V. Ford v. W. W. Simmons.
    In a suit brought to recover the value of a slave from the person hiring him, oil tho ground that the slave was hilled on the promises, and while in tho possession of tho person so hiring, and that tho person refuses to account for his death—JIdd: that tho Coroner’s inquest over the body of the slave was inadmissible as evidence, being 11 res inter alias acta.”
    "When a slave dies in the possession of the person hiring him, the person so hiring is bound to pay the value of said slave to his owner, unless he can show that he is not liable for his loss? because his, death was produced by some cause for which ho is not legally accountable—this is an exception to tho general rule that the actor must prove his case.
    The onus prdbandilics upon a party who is obliged to free himself from liability by proving a fact, when tho knowledge of that fact is supposed to be more within his reach than that of his adversary.
    APPEAL from the District Court of the Parish of Caddo, Craswell, J.

      Cram & Nutt, for plaintiff.

      Land & Winans, for defendant and appellant.
   Cole, J.

This suit is instituted to recover of defendant the value of the slave Lewis, hired to him by plaintiff, on the ground that the slave was illegally and by violence killed on the premises of defendant, who refuses to account for Ms death, and to pay petitioner Ms value.

The answer is in these words : “ In this case the defendant for answer denies all and singular the allegations contained in plaintiff’s petition, and especially denies the ownership of the slave Dennis, charged with killing the slave of plaintiff.” “ Wherefore he prays that plaintiff’s demand be rejected, with costs.”

There was judgment in favor of plaintiff for the value of Ms deceased slave, and defendant has appealed.

The Coroner’s inquest was received in evidence : this was inadmissible, as it was “ res inter alios acta,” but the bill of exceptions to its admission cannot be noticed, because it does not contain the objections to its introduction.

As the slave was hired to defendant, it was the duty of the latter to return him or show he is not liable for his loss, on account of his death having been produced by a cause for which he is not legally accountable.

If a principle adverse to this were adopted, the rights of proprietors would bo but little protected in the lease of their slaves.

■ After the bailor has proved that his slave has been hired to and put in the possession of the bailee, it then becomes- the duty of the latter to explain why he cannot return Mm. Story on Bailment, {¡áll.

It is not for the master to establish the reasons why the bailee cannot deliver to Mm his slave.

This is an exception to the general rule, that the actor must prove his case, and justly so, because it is more rational to believe that the sources of knowledge of the loss of the slave are with the bailee than the bailor, for the former is in possession of the slave. Pothier, Contract de louage, 109.

It is a recognized principle, that the onus probandi is upon tho party who has to free himself from liability by the proof of a fact, the knowledge of which must be supposed to be more within his power than that of his adversary.

In the case at bar, the slave was delivered to defendant; ho was obligated, therefore, to explain why he could not return him, or to pay his value. Nicholls v. Rolland, 11 Martin, 190.

He would not have been liable if he had established facts sufficient to raise a reasonable presumption, that the slave had met with his death by accident or violence, for which no fault or laches could be imputed to him ; this has not been done.

Judgment affirmed, with costs of appeal.

Merrick, C. J.,

concurring. I concur in tho decree in this case, but I think there is sufficient evidence in the record to charge the defendant, and do not wish to express an opinion upon the presumption arising from the non-dclivory of tho slave by the lessee.


text:
    Delight S. Stewart v. Thomas J. Stewart et al.
    To determine, under the Act to provide a homestead for the widow and children of deceased persons, approvod March 1741832, whether they aro entitled to receive any thing from tho estate, tho sum of their entire property is to be considered, and if it amounts to $1,000, nothing can bo withdrawn, from the estate, although some one minor heir or tho widow may bo in necessitous circumstances and not possess the $1,000.
    APPEAL from the District Court of the Parish of Union, Mayo, J.

      Regenberg § Essich, for plaintiff.
    /. T. Ludeling, for defendants and appellants.
   Merrick, O. J.

This ease presents a question of construction, arising under the Act to provide a homestead for the widow and children of deceased persons, approved March 17th, 1852. Acts 1852, p. 171. The parties have agreed upon the following statement of facts, viz :

David Stewart died in the parish of Union on the 23d day of January, 1853, leaving a window, Delight S. Stewart, plaintiff in this case, and the following children, to wit, Thomas T. Stewart, Sarah A. Stewart, wife of Charles Rally, Elizabeth Stewart, wife of David Pickett, William Stewart and David Stewart. William and David Stewart were minors at the death of their said father. The said heirs were the children of said David Stewart by a former marriage. Delight S. Stewart has no children and is still a widow. Plaintiff, at the death of her said husband, was left in necessitous circumstances, and does not possess, in her own right, property to the amount of one thousand dollars; that she owns nothing except her interest in the community property, if there be any. David Stewart left property at his death, the exact amount of which is not ascertained yet. William Stewart and David Stewart, minors, were each worth in their own right, at the death of their father, property amounting to one thousand dollars.”

The District Judge decreed the widow $1,000 and interest, subject to a credit for whatever sum of money or amount in value of property she might receive from the community, and the defendants appeal.

We are unable to arrive at the same conclusion as the District Judge, although, as we have already had occasion to remark, there is much obscurity in the statute. If the title of tlie Act be observed, it is to provide a homestead for the children, as well as the widow. If the body of the Act be considered, it is apparent that but one sum is to bo drawn from the .estate, viz, “ a sum which added to the amount of property owned by them (the widow and children), or either of them, in their own right, will make up the sum of one thousand dollars.” It is not to make up one thousand dollars to each of them, but one thousand to them all. Hence, if the minor children are worth five hundred and fifty dollars, the widow would receive in usufruct only four hundred and fifty dollars ; if they were worth nine hundred and ninety dollars, the widow would receive only ten dollars.

Now, suppose the children in the present case had inherited a large estate from their mother, the first wife of the intestate, and their father’s succession were unable to pay its creditors ; if plaintiff’s position be correct, the widow would take $1,00() from the creators, which, upon her death or marriage, would go to these heirs in full property, no matter how wealthy they might be, a thing which could happen only for ten dollars, if the minor children had been worth only nine hundred and ninety dollars; and thus they become enriched at the expense of their father’s creditors, simply because they have less need for such assistance.

But each of the minor children, in this case, has in his own right $1,000 to provide a homestead, and the statute does not appear to contemplate more than one homestead. We, therefore, conclude, that in considering whether the widow and heirs of the deceased are entitled to receive anything from the deceased, the sum of their entire property is to be considered, and if it amounts to $1,000, nothing can be withdrawn from the estate, although some one minor heir or the widow, may be in necessitous circumstances and not possess the $1,000.

It is, therefore, ordered, adjudged- and decreed by the court, that the judgment of the lower court be amended and reversed, and that there be judgment in favor of the defendants, and that the plaintiff pay the costs of both courts.

Spofeosd, J., took no part in this case.


author: Spoeeokd, J.

text:
    State v. Allen Jumel.
    The statute against carrying concealed weapons does not infringe the constitutional right of the people to keep or hear arniá—it is a moasuro of police prohibiting only a particular ihode of bearing armsj which is found dangerous to the peace of society.
    A prosecution for the tc offence>} is only barred by the lapse of one year.
    APPEAL from the District Court of the parish of Ouachita, Richardson, J.

      F. R. Sttlbbs, District Attorney, for the State.

      Balee)- fy llarris, for appellant.
   Spoeeokd, J.

The defendant and appellant Was indicted on the 29th April, 1856, for having, on tlie 11th September, 1855, carried a weapon concealed about his person, an offence punishable under the Act of March 14th, 1855, sec. 115, (Sess. Acts, p. 148,) by a fine not less than $250, nor more than $500, or imprisonment for one month.

I. It is urged that the law is repugnant to that provision of the Constitution of the United States which declares, that the right of the people to keep and bear arms shall not be infringed. Amendments, Art. 2.

The statute in question does not infringe the right of the people to keep or bear arms. It is a measure of police, prohibiting only a particular mode of bearing arms which is found dangerous to the peace of society. See State v. Chandler, 5 An., 489; State v. Smith, 11 An., 633.

II. We have never considered the Act of March 14th, 1855, “ relative to crimes .and offences,” as within the prohibition of the Article 115 of our State Constitution.

III. The defendant in the court below moved to quash the indictment, on the ground that it was not found until more than six months after the day the offence was alleged to have been committed, and that the prosecution was, therefore, barred by limitation.

The law provides that no person “ shall be prosecuted for any fine or forfeiture, under any law of this State, unless the prosecution for the same ” (i. e. the fine or forfeiture) “ shall be instituted within six months from the time of incurring such fine or forfeiture ; nothing herein contained shall extend to any person absconding or fleeing from justice.” Acts 1855, p. 151, sec. 10.

The limitation of six months does not apply to the present indictment, because it is not a prosecution to recover a fine or forfeiture ; it is a prosecution for an “ offence ” barred only by the lapse of one year, according to the first clause of section 10, just referred to. The object of the proceeding was not to recover any special “ fine or forfeiture,” but to convict and punish an offender. The Judge was empowered to punish the accused, upon conviction, either by fine, or imprisonment. The Grand Jury and the District Attorney had no election as to the penalty, and therefore, could not, and did not prosecute the party for the recovery of a fine or forfeiture. The fact that the Judge, after the accused was found guilty of the offence charged, chose to sentence him to pay a fine, under the discretional power vested in him by statute, did not have such a retroactive effect as to change the character of the proceeding from that of a prosecution for an offence which, had the Judge thought proper, might have been punished by imprisonment alone, into a claim for a fine merely.

IV. The Judge sentenced the prisoner to pay a fine of $310, and in default of payment thereof, to be imprisoned for sixty days. The accused complains that in the last part of the sentence the Judge transcended his power, because the statute only authorizes him to order an imprisonment for one month. That would be correct if the Judge had only ordered the party to be punished by imprisonment.

But the statute provides two modes of punishment, the one imprisonment simply, and the other a fine not to be less than $250, nor greater than $500. If the Judge sentences the party convicted to imprisonment, as the sole penalty of liis guilt, the extreme term is one month, and then no fine can'be imposed. But he may prefer to sentence him to pay the fine authorized by the statute, and then he may compel the person convicted to obey this sentence, by holding him in custody until he does obey, or is discharged by law. The object of imprisonment in such a case, is not to punish the party for the offence of which he was convicted, but to compel him to execute the sentence of the court by payment of the fine imposed by law, or to punish him for not obeying the sentence of the court. Such a case is specially provided for by law. “ Every person being adjudged to pay a fine, shall, in default of payment or recovery thereof, be sentenced to be imprisoned for a period not exceeding one year.” See Act relative to criminal proceedings,” sec. 4, (Soss. Acts, 1855, p, 151.)

Judgment affirmed, with costs.


author: Cole, J. Spofford, J.,

text:
    Cash v. Whitworth and Poag.—White v. Same.
    A proprietor is not bound to yield a part of liis soil for tlie construction of a levee, which originally was not required to protect his own land from inundation, hut which was rendered necessary by closing a bayou in order to reclaim swamp lands belonging to tho State, or to others.
    A divestiture of vested rights may be effected, not only by a change or destruction of the title to tho property, but also by a destruction of tho property itself.
    APPEAL from the District Court of the parish of Caddo, Creswell, J.

      Crain Sf Nutt, for plaintiff.

      Land fy Winans and Hinton fy Smith, for defendants and appellants.
   Cole, J.

An Act of the Legislature, approved March 19th, 1857, (Session Acts, 1857, p. 269,) authorised the Third Swamp Land Commissioner to close Pascagoula and other bayous, ageeeably with the provisions of “ An Act to reclaim and drain the overflowed lands in the State of Louisiana,” No. 133, approved 16th March, 1854. The tenth section of this Act made it the duty of the Engineers, in their respective districts, to determine the locality, extent and dimensions of the necessary levees and drains to reclaim the swamp and overflowed lands of the State.

It is admitted by the parties, “ that the defendants, under a contract with the Swamp Land Commissioner, are about to enter on the land of plaintiff and build a levee along the bank of bayoiilffiscagdiflffTiBouF five “IntlMredNards" fET lengfli, cutting off five or six acres of pIaiñtiffrisTañd in the parish of Caddo, which land is and has been planted in cotton ; that they will dig up the earth and renderjhe said five or six acres entirely worthless; that said land is apart of the best portion of plaintiff’s land and is worth, with the crop, eighty dollars per acre; that the said defendants are about to build a levee, or dam, across said Pascagoula bayou, in order to .prevent the water of Red River from running down said bayou, which is a natural outlet of said waters ; that in a high stage of water a large volume of water passes down said bayou ; that the effect of closing its_ mouth will be to raise the water on plaintiff’s land, rendering the whole of his land more liable to overflow and injury; that all his best land- is immediately on the bank of Red River and said bayou, and that his plantation will be depreciated in value ; that the defendants avow their intention of commencing and prosecuting said work, and will do so unless inhibited by injunction, without paying, or offering to pay plaintiff any compensation or remuneration.

The defendants propose to act strictly in accordance with the instructions of the engineer of the third swamp land district, who has the control and supervision of the work, and in pursuance with the Act of the Legislature authorising said work to be done, but as yet has not commenced work.”

Plaintiff sued out an injunction to prevent the intended action of defendants. The writ was sustained and defendants have appealed.

It is averred by plaintiff, that the said Acts of 1854 and 1857 are in violation of Articles 130,131 and 132 of the constitution of the State, which make it the duty of the Legislature to organize a Board of Public Works, to consist of four Commissioners, who shall be elected by the legal voters of the different districts, and who shall exercise a diligent and faithful supervision of all public works in which the State may bo interested, except those made by joint stock companies.

It is unnecessary to decide the constitutional questions raised by appellee on these Articles, as he appears willing to waive them in the event he is compensated for his injury previous to the undertaking of the work, and our view of the case grants him this compensation.

It is contended by defendants, that the Constitution of 1852 recognises the right of the State to construct levees and drains to reclaim the swamp and overflowed lands (Art. 128), and that this power was delegated by the Act of 1854, to the Swamp Land Commissioners, (Revised Statutes, p. 425,) and that the Act of March 19th, 1857, specially authorised the works in question. Purther, that the lakes, navigable rivers and watercourses in the State, are legitimate subjects of legislation, whether the object be to close, open, or make new channels or outlets for them, and that the constitutionality of the Act of 1857, under which the defendants were acting, cannot be seriously controverted'.

The principal question in the case at bar is, whether the construction of the proposed levee on the land of plaintiff, for the purpose of closing the Pascagoula bayou, and the destruction of the quantity of land, as shown by the admission of facts, will be an expropriation of his propferty, or a divestiture of his vested rights, in the sense of Article 105 of the Constitution of 1852, which is as follows : “ No ex post facto law, nor any law impairing the obligation of contracts, shall be passed, nor vested rights be divested, unless for purposes of public utility, and for adequate compensation previously made.”

The determination of this proposition depends on the signification in Article 105 of the words “ nor vested rights be divested.”

It is averred by defendants, that neither the legislature, nor the courts under the territorial or State governments, have ever considered the construction of levees under statutory authority, as the expropriation of private property for public purposes, but only as matters of police or administration for the public welfare, and that the levee laws command the riparian proprietors on the Mississippi river to construct levees on their lands at their own cost, and make no provision for any compensation.

We conceive, however, there is an essential difference between the obligations of proprietors, under the general system of levee laws, and those of plaintiff in the present case.

The levee laws have been enacted for individual and public utility. The use of the space of ground on the banks of the Mississippi river, necessary for the making and repairing of levees and roads, was one of the conditions of the ancient grants of land on the Mississippi, and sufficient depth was always given to each tract to prevent the exercise of the public rights from proving ruinous to the individual.” 7 An. 150, Zenor v. Parish of Concordia.

The safety of each front proprietor required, not only the construction of a levee on his own land, but also on that of his neighbor.

The levee system of Louisiana has been devised and maintained, not for the reclamation of swamp lands, but the protection of arable soil from overflow and inundation.

Each levee has been considered as the continuation of one great plan, for the preservation of the cultivated fields of the inhabitants, or of those that might be brought into cultivation.

It never has heretofore been deemed a part of the levee system, that a proprietor was bound to yield _aj>art of Jris soil, for the construction of a levee for the purpose of reclaiming overflowed lands, when it was not necessary .originally to prevent his lands from inundation., but only rendered so by the dosing of a bayou for the purpose of reclaiming the lands of the State or of individuals.

It is unjust that improvements should be made at the expense of one individual when he is not to be benefited by them, and when they are created, not for his good, but for that of the State, or persons who may own land on a bayou, or in its -vicinity. Money is taken from him, without an equivalent, to enrich others.

Such a system strikes at the very foundation of the rights of property, and can not be enforced in any nation which respects justice and individual rights. The principle of such a system would be to make great ameliorations, benefiting a large number of people at the expense of the few, who might own property in the immediate vicinity of the works requisite to effect these improvements.

In the case at bar, plaintiff is expected to give his land for the purpose of stopping up a bayou and making a levee. "Why is he called upon rather than another? The only reason that can be given is, because his possessions lie where the work is to be done, which is to be the source of riches for the proprietors of lands at' a distance from him. If such a principle were adopted, there would be no protection for individual proprietors.

We admit that a proprietor, who owns lands in caving bends, may be obliged, from public necessity, to construct his levee so far back as to diminish materially his arable land, but this case is essentially different from that now under consideration.

There is, therefore, no principle in the levee laws, in this State, which can authorise the action of defendants.

It is also contended by appellants, that the injury to the land of plaintiff is a damage, but not a divestiture of vested rights.

We are of opinion, however, that a divestiture of vested rights may be effected, not only by a change or destruction of the title to property, but also by the destruction of the property itself.

Suppose that a man had leased a tract of land for a series of years, and erected thereupon a dwelling house, and defendants should destroy the house; this would certainly be the highest degree of the divestiture of vested rights, for although, technically speaking, the title is not touched, yet the object of title, the property itself, is destroyed.

What is the great object of titles to property? Is it not that the property may be safely enjoyed ? The destruction of the property is then, at least, as much a divestiture of vested rights as the wresting of the title from its lawful owner.

Property may be justly said to be destroyed when it is rendered unfit for the object for which it was intended.

Now, the evidence establishes that the proposed action of defendants will render five or six acres of his land entirely worthless. That this land is and has been planted in cotton, and constitutes a part of the best portion of his plantation.

As then the action of defendants will render a part of the property of plaintiff unfit for the purpose for which it was intended, and as effectually destroy it for the object of cultivation as if the title had been divested, we consider that their proposed operations will divest plaintiff of a part of his vested rights, and thus violate Article 105 of the Constitution of Louisiana.

The case of Dubose v. Levee Commissioners, 11 An. 161, is not adverse to the principles in the present decision.

The judgment of the lower court perpetuated the injunction. It ought to be amended, so as to perpetuate it until adequate compensation is previously made.

It is, therefore, ordered, adjudged and decreed, that the judgment be so amended as that the injunction shall be perpetuated, until adequate compensation be previously made to plaintiff for the works contemplated by defendants, as described in the petition; and that the judgment, so amended, be affirmed, and that defendants pay the costs of appeal.

Spofford, J.,

concurring. I concur in the decree in the above entitled causes. The objection urged in argument by the plaintiffs to the mode of choosing the Third Swamp Land Commissioners, cannot avail them in this collateral manner. He is an officer of the State de facto, acting under color of legal authority, and he is not a party to this suit. To declare his action null and void by a side-long judgment in a suit between third persons, would be contrary to reason as well as to precedent.

But the conceded facts of this case show an attempt to divest vested rights, without adequate previous compensation, in violation of Article 105 of the State Constitution. It should be remarked that this is not the exercise of a right of servitude upon the lands of plaintiffs for the purpose of building a levee authorized by law, along the bank of a navigable river. If it were, the plaintiffs would in my opinion, have no right to complain. The sole object of the parties enjoined is to build a dam across the mouth of Pascagoula bayou, and thus close it, with a view of reclaiming swamp and overflowed lands, not belonging to the plaintiffs in injunction, and without any view of benefiting their lands. This, I think, it is within the competence of the sovereign power to order. But in doing it, the State must take care not to divest the vested rights of third persons, without making an adequate previous compensation.

My opinion that the defendants were about to impair the vested rights of the plaintiffs, is based upon the facts that they were about to enter on the lands of plaintiffs and cut off five or six acres, which land is and has been planted in cotton ; that they intend to dig up the earth, and render the said five or six acres utterly'worthless, it now being the best part of the plaintiffs’ land and worth, with the crop, eighty dollars per acre ; and that this is to be done for the purpose of making a dam across Pascagoula bayou, not for the benefit of plaintiffs, but of other persons.

These admissions, to my mind, imply an intended invasion of the plaintiffs’ right of property ; an interference with their dominion which includes the exclusive jus utendi at abutendi; and even the destruction of the tillable soil itself, as well as the growing crop. This is, to all intents and purposes, an expropriation for which the owner should receive adequate compensation, without which previously made,,the defendants would be trespassers upon the lands of plaintiffs ; for the plaintiffs’ lands owe no servitude by law, for the mere purpose of building a dam across Pascagoula bayou. The other damages alleged are consequential merely, and furnish no ground of action.-


text:
      W. D. McDonald and J. A. Coon v. James Vaughan.
    By the sequestration of the property of a non-resident the court acquires jurisdiction over him.
    When the law, for tlio purposes of justice, allows, in certain cases, a fictitious citation, in the placo of a real one, it is necessary that the formalities, required to operate the legal fiction, he strictly ohsorvod.
    A defendant is not bouhd by a citation served upon an officer undor the title of advocato, instead of curator ad hoc.

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

      C. H. Morrison, for plaintiff and appellant.

      J. T. Ludeling McEnery, for defendant.
   Buchanan, J.

There were two exceptions filed in this case. The first—to the want of citation. The second—to the jurisdiction of the court. The latter •was sustained by the court below, and the suit dismissed.

Defendant is a resident of Camden, Arkansas, and not present in this State when this suit was brought against him by sequestration and injunction to rescind a sale of land. Under the writ of sequestration, the Sheriff seized and took into his possession four promissory notes, the property of defendant, being the same notes which were given for the price of the land, and which the plaintiffs pray to have cancelled.

The petition asks for the appointment of an advocate to represent the absent defendant. The district court appointed, in conformity to this prayer, a member of the bar as advocate to represent the absentee.

We are of opinion that the district court had jurisdiction of the defendant by the sequestration of his property. In this respect the case differs from that of Dupuy v. Hunt, 2 An. 564, relied upon by counsel for appellee.

The exception to the citation was, however, well taken. The Articles 57 of the Civil Code, and 116,194 and 964 C. P., which are the only laws applicable to the point, all use the expression curator ad hoc, (except Art. 194, C. P., which says special curator,) to designate the representative of the absent defendant for the reception of citation, under the appointment of the court before which the action is instituted. As citation is indispensable, and as the law, for purposes of justice, allows, in certain cases, a fictitious citation in the place of a real one, it is necessary that the formalities, required to operate the legal fiction, be strictly observed. The law styles the officer of the court, through whom the defendant is brought into court, a curator ad hoc. The defendant cannot be considered as bound by a citation served upon an officer bearing the title of advocate.

The cause must be remanded for a new citation, 10 An. 552.

It is, therefore, adjudged and decreed, that the judgment of the district court be reversed ; that the exception to the jurisdiction be overruled ; that the exception to the citation be maintained ; that the cause be remanded to be proceeded in according to law ; and that the appellee pay costs of appeal.

Spoffokd, J., took no part in this case.


author:
Merrick, 0. J.
      Spofford, J., Buchanan, J.

text:
    Russel Jones v. State of Louisiana.
    An action by the master to procuro tho emancipation of bis slave, under the Act of the Legislature of 15th of March, 1855, (since repealed,) held to be appealable.
    APPEAL from the District Oourt for the Parish of Claiborne, Brew, J.

      Brew & Kilpatrick, for plaintiff.

      J. W. Watkins, District Attorney, for defendant and appellant.
   Merrick, 0. J.

This suit was instituted under the Act of 15th March, 1855, relative to slaves and free people of color, in order to procure the emancipation of a slave named Maria.

The judgment of the lower court, on the verdict of the jury, being in favor of the emancipation, the State has appealed.

The plaintiff having died since the appeal was taken, his representatives have made themselves parties and answered the appeal. The slave herself has so far intervened in this court as to file a brief by counsel, and a motion to dismiss the appeal, on the ground that the State is without interest, and cannot, therefore, prosecute the appeal any more than a third person.

The suit was between the plaintiff and the State, and the parties have formed the usual issue on the appeal. The negress Maria does not appear to have any legal interest in the suit. The proceedings instituted by her master appear to have been conducted gratuitously on his part, and they were subject to his control, and he was at liberty to abandon them at any time. So long as the slave had not acquired the condition of statvAibera, she had no legal right, however much she might otherwise have been interested, in the success of the proceeding of her master, which was intended to operate the donation to her of her freedom. Her motion to dismiss cannot be considered.,

It must be observed that the slave in controversy was worth over three hundred dollars. See Const. 123; Acts 1856, relative to revenue.

This is a civil case. The State has waived its sovereignty and placed itself as an ordinary suitor. It had a sufficient interest in the matter to induce it to pass a law, authorizing the plaintiff in this class of cases to cite it as an ordinary defendant. The question is the emancipation of a slave, that is the matter in dispute. It is over $300 by presumption of law. It is a civil suit, and Art. 62 of the Constitution says, the appellate jurisdiction of this court shall extend to all cases when the matter in dispute exceeds $300. This is not, therefore, a case for the court, ex officio, to decline jurisdiction.

On the assignment of errors, it is sufficient to observe that the statute under consideration was decided by this court in the case of the slave Harrison to be unconstitutional, and that the Legislature has not only acquiesced in that decision but also declared that slaves shall no longer be emancipated in Louisiana. Acts 1851, pp. 55, 229.

The judgment of the lower court must be reversed, and a judgment rendered in favor of the defendant.

It is ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment against the demand of the plaintiff, as in case of nonsuit, and that the plaintiff pay the costs of both courts.

Spofford, J.,

dissenting. This is a suit by the master for the privilege of emancipating his slave, with leave to remain in the State.

The action is neither petitory nor possessory; no question of title or of money is involved.

There is no amount whatever in dispute. Even the value of the slave is not shown. And there is no question about the bond given by plaintiff.

The whole proceeding was instituted under an anomolous provision, forming part of a statute which has become doubly inoperative, first having been declared void by a majority of this court, and afterwards expressly repealed. See State v. Harrison, 11 An. Acts 1857, p. 229.

The law, if ever in force, only conferred a jurisdiction upon the District Courts. No appeal to this court was authorized by it. And the proceeding fell only within the jurisdiction gracieuse of even the District Court, like the emancipation of minors, the authorization of married women to alienate or encumber their property, &c.

The “ matter in dispute” being only the privilege of the master to free his slave, and that privilege not appearing in any way to exceed three hundred dollars in value, I think the motion to dismiss the appeal should prevail.

Buchanan, J.

It appears that there is an amount exceeding $300 involved in this cause. Plaintiff has given bond in the sum of $1000, as required by the Act of 1855, “ relative to slaves and free colored persons,” section 72, that the slave Maria shall not become chargeable to the State.


author: Cole, J. Spoffokd, J.,

text:
    John B. Wilson v. Benjamin Porter.
    A sale mado "by a minor is not absolutely void.
    An action to set asido a sale made during minority, must bo brought by the minor after attaining the age of majority, or by his representatives—such, an actionboing personal to the minor.
    APPEAL from the District Court of the Parish of Ouachita, Mayo, J.

      Baker & Harris and J. T. Ludehng, for plaintiff and appellant.

      McGuire & Ray, for defendant.
   Cole, J.

This is a petitory action; petitioner alleges he is the owner of a negro boy named “ Jim,” having purchased him by authentic act from Mary Melinda Wilds, wife of Clark McDowell, that one Porter has the slave in his possession, and has had illegal possession of him for three years.

He prays to be decreed his owner, and asks also for the value of his hire for three years.

Poirier plead the general denial, and also averred that in 1843 he purchased the negro from the same vendor from whom plaintiff acquired his title, and has had him ever since in Ms possession.

Mary M. McDowell intervened, claiming the slave, and alleged she had sold him to the plaintiff one day after her majority to enable him to institute this suit against the defendant, and that he acted as her agent in its institution; and she demanded judgment in her favor for the slave. She further avers the sale was passed by her when she was a minor emancipated by marriage, and she was induced to execute the act by the fraud of defendant.

C. C. Henderson, W. P. Snow, under-tutor to Sarah E. Henderson and Sarah Henderson, surviving wife of James L. Henderson, deceased, also intervened, alleging’ themselves to be the legal proprietors of the property in contestation.

The judgment was in favor of defendant, quieting him in his title and possession of the slave “ Jim," and against plaintiff and the intervenors.

The plaintiff and the intervenor, Mary M. McDowell, alone appealed, so that it is unnecessary to consider the intervention of the Hendersons.

The facts of the case are as follows:

On or before the 4th December, 1843, Mrs. McDowell, authorized and assisted by her husband, sold to the defendant the slave “ Jim," then aged ten years.

The deed is not dated, but it was proved and recorded on the 4th of December, 1843.

On the 24th May, 1848, she, authorized and assisted by her said husband, executed to the plaintiff an act of sale of the boy “ Jim,” and other slaves. In this sale, for the consideration of five hundred dollars, she sold to plaintiff “ all the right, title and interest,” that she had in the following slaves, to wit: Lavinia and her two children, Jim and a girl, whose name is not mentioned, Daphne and her two children.

The validity of the sale to defendant is principally contested on the ground of the minority of his vendor, and the first question for our investigation is, whether the sale by a minor is essentially a nullity; and second, if it is not, whether the right of action, to set it aside on account of minority, is personal, and can only be prosecuted by the minor, when arrived at .the age of majority, or by his representatives.

The sale by an emancipated minor is not absolutely void, for it may be rendered valid by ratification, either expressed or implied, in the manner provided by law, 0. 0. Art. 1778; and the persons who have treated with a minor cannot plead the nullity of the agreement, if it is sought to be enforced by the minor, when his disability shall have ceased, 0. 0.1785 ; further, the minor cannot make void the engagement which he had subscribed in his minority when once he has ratified it in his majority, whether that engagement was null in its form, or whether it was only subject to restitution. 0. 0. Art. 2225.

Art. 2218 of the Oivil Gode grants an “ action of nullity or of rescission of agreements,” by which a minor can, within a certain period after his majority, institute legal proceeding to annul acts passed by him in his minority.

As, then, a sale executed by a minor can afterwards be ratified, enforced or set aside by an action of nullity, it follows that it is not essentially null.

The plea of minority is personal and cannot be set up but by the minor, arrived at the age of majority, or his representatives, unless it might be also urged by the assignees of this personal right.

This principle cannot be doubted ; for the general rule is, that no one can institute an action but the party having a certain, interest in its cause and issue ; but no one but the minor or his representatives are interested to resdnd a sale on the ground of minority.

The vendor has rights of action against the vendee to avoid sales for such causes as error, fraud, violence, lesion, nonpayment of the price.

If the vendor has not received the price of property sold by him he does not, by again disposing of it to a third party, transfer to the second vendee the right of action for the price due by the first vendee; or, if a vendor could have a sale annulled for lesion, and had merely sold his rights to the property to a second vendee, the latter could not sue the first vendee to have the transfer to him rescinded for lesion.

That the plea of minority is personal is clear, for if it be not specially urged, the sale by a minor is valid, unless it be null for other causes; the plea may be made or omitted by the party to a suit as may appear most beneficial to his interests.

In sales of property, affected by informalities on account of the non-observance of the laws relative to the transfer of the effects of minors, it has often been held, that such errors could not be pressed by the vendee for the purpose of annulling the sale, as the minor, when arrived at the age of majority, might not seek to rescind the sale on such grounds, and that such defences were personal to the minor or his representatives.

Inasmuch then as the plea of minority is personal, and the sale by a minor of his property is not absolutely void, and as the right of action to annul the sale was not transferred to the plaintiff by the intervenor, Mary MeDowell, the plaintiff cannot, therefore, attack the sale of the intervenor, McDowell, to the defendant. ■

Mary McDowell is also debarred from any right of action for the recovery of the slave “ Jim,” because the record of her suit against her husband shows that she obtained judgment in 1843, (still unreversed,) against him for the value of this slave, on the ground that he had sold him and received and used the price ; and further, because she sold all her right and title in the said slave without selling, or reserving her revocatory action to have her transfer to the defendant annulled, and as all her right and title in the slave were sold after her majority, she has, therefore, no more interest in him, and her right to institute the revocatory action for his recovery no longer exists.

The fraud on the part of defendant towards her in his purchase of the slave does not appear to be established by the testimony.

Judgment affirmed, with costs of appeal.

Spoffokd, J.,

concurring. I concur in the opinion as to Wilson’s claim against Porter.

As to the petition in intervention of Mary M. Wilds, it does not seem to be a claim to rescind her sale to Porter on the ground of minority, but on account of fraud and deceit, alleged to have been practiced on herself and husband. Those allegations are scarcely sustained by the evidence.


author: Buchanan, J. Spoffokd, J.,

text:
    W. R. McAlpine, Receiver, v. B. H. Jones et al.
    A party will not be allowed to delay a trial upon the merits of a cause by pleading singly, a variety technical objections, tending to retard his adversary's action.
    APPEAL from the District Court of the Parish of Ouachita, Richardson, J.

      Raker & Harris, for plaintiff and appellant.

      McGuire é Ray, for defendant.
   Buchanan, J.

This suit was instituted in June, 1853, in the parish of Oua^ chita, claiming certain slaves alleged to have been stolen from the State of Mississippi, and to be illegally in the possession of defendants. A writ of sequestration wap issued, under which two slaves were taken into the possession of the Sheriff of the parish of Ouachita, on the 17th June, 1853. The slaves sequestered wore bonded by the two defendants, Burrell H. Jones and Louisa Jones, under an order of court, on the 21st June, 1853. In December, 1853, Louisa Jones, one of the defendants, filed an exception to the mode of her citation. Simultaneously with this exception, the other defendant filed other exceptions to the action. These exceptions having been sustained by the District Oourt, an appeal was taken, and the judgment reversed by this court, and the cause remanded. See the report of the case in 10th An. 552.

After the cause was returned to the District Oourt, Louisa Jones filed an exception to the jurisdiction of the court, alleging her residence to be in Union parish. This exception cannot now be entertained. She must be considered as having waived it by her former plea. A party will not be allowed thus to delay a trial upon the merits of the cause by pleading singly, a variety of technical objections tending’ to retard his adversary’s action; obtaining thus a separate judgment upon each, from the court of the first instance and from that of last resort.

The judgment of the District Oourt is, therefore,' reversed, the exception of the appellee, Louisa Jones, overruled, and the cause remanded for further proceedings according to law : the appellee, Louisa Jones, to pay the costs of this appeal.

Spoffokd, J.,

concurring. Upon the authority of Scolt v. Bowles, 3 An. C37, I concur in the decree in this case.

Although the appellee appears to me to have been in time to plead to the jurisdiction, there being no default against her, yet the pica should have been overruled, as this is.;one of the cases where a party may be sued out of the parish of his domicil.