author: Eustis, C. J.

text:
    Cole v. Lucas.
    A concubine can receive as a donation from her paramour, in moveable*, but one-tenth of the value of his whole estate.
    A slave can receive nothing by donation.
    Where one who had been a slave claims a'donation of notes, alleging that she had been emancipated, it iff incumbent on her' to show that the donation was made and the notes transferred subsequent to the act of emancipation. Mere possession of the notes is not evidence of the time'when they were'delivered.
    The domicil of a citizen is in the parish in which-he has his- principal establishment, which is that in which he habitually resides; and if the place of his principal establishment be uncertain, by reason oftíis residingin different places, without any formal declaration of inteiitention as provided by law, and under circumstances Which render his residence equivocal, either of the pl'aoes where he so resides may be Considered as that of his principal establishment, at the option of those whose interests are thereby affected-. C. C. 42.-
    In a strictlegal sense that is properly the domicil of a person, where he has his- true, fixed and permanent home, and principal establishment, and to which, when absent, he intends to return. 1
    A domicil’once acquired remains until a new one is acquired, facto et' animo.

    Ohe going to another State for Health, pleasure, or any temporary purpose, with the intention of returning, has a mere transitory residence, which constitutes no new domicil, nor an-abandonment-of the old one. It is nob the act of inhabitance-which constitutes the domicil, hut the fact, coupled with the intention, of remaining.
    In cases of doubt the original domicil is considered to be the true one.
    In questions of domicil the declarations of the party whose domicil is in dispute are entitled to weight, only when mad'e previously to the event which gave rise to the suiiá
    APPEAL from the District Court of Catahoula, Mayo, J.

      Purvis, for the plaintiff.
    The notes sued on were taken by plaintiff before maturity, and for a valuable consideration. The evidence does not establish concubinage between the woman, Patsy, from whom he received them, and Miller, the payee. The notes, being personal property, had no other situs than that of the domicil-of the owner,-which was in Missouri at the time of their transfer to Patsy ; and, by the laws of that State,- the transfer of negotiable paper, with or without consideration, is valid. Succession of Pack-wood, 12 Rob. 334, 360. 9 Rob. 430". Saul v. His Creditors, 7 Mart. N. S. 71. 2 Rob. 253. Civ. Code,- 483. Story, Confl. Laws, p. 362. As to the law of domicil, see I Kent,- 76. Story,- Confl. Laws, p. 44. Pothier, Coutume d’Oriéans, ch. 1, no. 13. The notes were given to Palsy after her emancipation, and the effect of the donation must be determined by the law of Missouri, where the donation was made1. Story, Confl. Laws, pp’. 96 to 98. In cases like the present the verdict of a jury should not be disturbed. 3 Mart. N. S. 29. 12 La. 233, 290, 319.

      Frost, G. S. Sawyer, Thomas and Snyder, for the appellant,
    contended that the notes sued on were delivered to Patsy while yet the slave and concubine of Miller, the payee, and that she was as such incapable of receiving them; that the plaintiff is a holder in> bad faith, and without consideration, and colluded with Patsy to defraud the heirs of Miller; that the domicil of the latter continued to be in Louisiana, and the donations must be tested by its laws (Story, Confl. Laws, § 366. 4 Mart. 20. 5 lb. 23. 7 lb. 24. 2 Mart. N. S. 93); that the form of the donation was not such as to render it valid by the laws of this State (C. C. 483, 1523, 1525. 12 Robinson, 67. 1 Ann. R. 237); and those of Missouri are not in evidence.
   The judgment of the court was pronounced by

Eustis, C. J.

This suit is brought on certain promissory notes drawn by Hugh Lucas in favor of Samuel Miller, and by him endorsed, forming part of tlie price of a plantation and slaves situate in the parish of Catahoula, sold by Miller to Lucas, at Harrisonburg, in said parish, on the 11th May, 1843, which was mortgaged to secure the payment of the notes. They were originally nine in number, for $3,000 each, and payable one every successive year, bearing ten per cent interest if not paid at maturity. The first, that due in 1844, was paid ; and this action is instituted by the plaintiff an endorsee on the eight remaining notes, for the recovery of the amount of $24,000 and interest, and to subject the mortgaged property to the payment thereof. Judgment by default was taken against the defendant, Lucas, who makes no defence. Griffin, curator of the vacant estate of Samuel Miller, deceased, intervenes in this suit, and claims the notes as belonging to the succession represented by him. There was the verdict of a jury against the intervenor, and in favor of the plaintiff, and the former has appealed.

Miller was domiciliated in the parish of Catahoula, on the Tensas river, where he resided for several years. In 1843 he sold his plantation, which was his principal establishment, with the slaves, to Lucas. He then purchased a place on the other side of the river, in the parish of Tensas, where he resided, and his domicil must be considered to have been there, unless changed by subsequent circumstances, as to all the purposes of this enquiry. ¡Being in feeble health he left Louisiana for St. Louis, in April, 1844, where he died on the 21st May ensuing. These notes, after his death, wereffound in-the possession of a mulatress named Patsy, who had formerly been the slave of Miller, and, as is alleged, his conqubine, from whom the plaintiff alleges that he bought them, and to whom they were transferred by blank endorsements, and delivered by Miller previous to his death. The contest is between the claims of the plaintiff, as a bond fide holder of these notes, and the curator of Miller, who charges that they belong to the succession of Miller, and were obtained >by the plaintiff through fraud and collusion with one William Kirk, for the purpose of despoiling the lawful heirs of their property.

This case has been very thoroughly argued, and we are placed fully in possession of all the facts necessary to an understanding of its merits.

I. These notes, it is conceded, once belonged to Samuel Miller, and they belong to his succession, unless some person has a lawful right to them; the plaintiff pnesents himself as having that right. He is a resident of the parish of Catahoula; during part of Miller's life he resided no more than a mile from him, and the remainder not more than eight miles; he went to Missouri in the fall of 1844, or early in 1845, and procured the notes from Patsy.- From the evidence we are satisfied that the plaintiff is not in the position of a bond fide holder of these notes, without notice; on the contrary, we can recognize in him no rights but those which the person from whom he obtained them had.

H. It is then necessary to enquire into the validity of her claims. She was the slave of Miller and his concubine, and we think the evidence establishes that their concubinage was open and notorious. Under the cumulated incapacity of slave and concubine, she could not receive these notes from Miller as a valid gift, under our laws. The concubine can only receive in moveables one-tenth part of the whole estate of her paramour, and the Blave can receive nothing by donation. But it is said she was emancipated on the 13th or 14th of May, 1844, at Madison city, in the State of Indiana, and that her incapacity to receive as a slave was removed by the act of emancipation. To render the gift valid under that hypothesis, it would be incumbent on the plaintiff to show that the notes were transferred, or given, to her subsequent to the act of emancipation. The mere possession of the notes by her is no evidence of the time when they were delivered to her. The evidence by which the time of delivery is attempted to be fixed we find is extremely unsatisfactory, and not accompanied with that precision with which so important a point of a case ought to be established. The declaration of Kirk on this subject is: “After onr arriyal jn Missouri, I gave the notes back to Miller, and he gave them to Patsy, after her return from Madison, as ¡he himself told me, and I saw the notes in her possession,” It is not pretended by Kirk that he witnessed the dejiyery of the notes from Miller to Patsy; his knowledge is from the dictum of Miller; all he saw was the potes in the hands of Patsy, after her return from Madison* But when were they given to her? Were they, or not, given to her iu St. Louis, within your knowledge ? was the question to be answered. Where is the proof that she received them only since her emancipation, or on her return from Madison- Miller told him so, and this is the only evidence upon which the truth of this fact rests. The charge made by the curator is that the deceased and Kirk colluded to defeat the operation of the Jaws of Louisiana and the rights of his lawful heirs, and it would be idle to attach any importance to the declarations of the deceased made in re agenda, in furtherance of his purpose. Nor do we understand that the an.svvers of Kirk on his .cross examination, change this declaration of his as to the fact of his deriving his knowledge of the time of the delivery of the notes from Miller himself. There is some .confusion in relation t.o this fact in the deposition taken as a whole, but there ought to have been none. The fact ought to Rave been clearly and substantively established, and it is pot a little singular that this witness alone is able to testify in relation to this fact, and he the agent of the deceased and protector of Patsy.

Kirk’s own account of his connection with these notes imposes on all who are in search of the truth the necessity of scrutinizing his testimony. He says: “I saw Miller myself endorse these potes. After endorsing the notes, Samuei Miller handed them to me, telling me to keep them for Palsy’s benefit, that he intended to have ljer emancipated, and that he wanted the notes to enure to her benefit. After Miller, wh.om I accompanied on his last trip to Missouri, arrived there, I gave him back the potes, and he gave them to Patsy after her emancipation, on her return from Madison, as he himself told me, and I saw the notes in her possession.” Patsy accompanied her master and her protector op the trip to St. Louis, and the time of the delivery of the notes, as it is seen, is only stated as,coming from the bps of the deceased. Kirk does not pretend that he saw it, and whatever he did .sec he speaks .of with precision and emphasis: e. g. saw Miller myself¡ike.

The notes having been originally entrusted to Kirk in Louisiana for the benefit of Patsy apd returned to Miller ip Missouri, the ceremony of re-delivery, under .the dominion of a system of laws in which su,ch a farce is supposed to be tolerated, ought not to he left to depend upon the hearsay evidence of its principal actor, repeated by the common agent of both parties.

III.- In support ,of the validity of the transfer of these po.tes to Patsy, it is urged by the counsel for the plaintiff that the domicil of Miller was in St. Louis •or in Missouri, at the time it was made, and to .constitute .that domicil it is conceded that two things must concur, the residence and intention of making it the home of the party. These_ are facts which i.t is incumbent on the plaintiff to establish affirmatively, and it is contended are proved by the testimony of Kirk, and the witnesses examined at St. Louis. That when Miller sold his estate to Lucas, in May, 1843, the motive of the sale was to convert his property into such a disposable form as would enable him to evade the laws of this State, and secure the proceeds for the benefit of Patsy, may be considered as established. The delivery and endorsement of the notes to Kirk, for that purpose, prove that beyond all question.

On the 14th of August, 1843, Miller gaye a power of attorney authorising Kirk to have Patsy emancipated, by taking her to one of the north-western States — Ohio, Indiana, or Illinois. In this procuration he styles himself, “of the parish of Tensas.” It appears that Miller was apprehensive he would have to take back the property he had sold to Lucas, and for that reason purchased the property he then held in the contiguous.parish of Tensas.

In reply to the interrogatory, whether Miller did declare to witness his intention to make St. Louis, Missouri, or some other .county in said State, bis domicil, did not purchase property there for the purpose of making said State his home, and did not claim St. Louis as his domicil, Kirk responds : 1 know it was his intention to make Missouri his domicil. He talked of it as his home; said he had left Louisiana permanently. I believe one reason why he had left Louisiana was on account of the climate pot agreeing with him. I do not know of his buying property. I know of his renting a house in St. Louis, and he told me his calculation was to buy property as soon as he could get a good chance to invest.” Kirk also states that Miller often told him that his intention in selling out to Lucas was, to remove to Missouri, and settle there for the rest of his life ; and, in April, 1844, Miller went to St. Louis, taking with him the remainder of his slaves unsold, and at St. Louis made the same declarations to witness. Comfort, a witness, says that he saw Miller jn St. Louis on the 18th May; he informed him that he had formerly resided in Louisiana, but ¡lad sold his plantation, and had come to Missouri to reside.

As far as we can judge, w.e should thick it established that, when Miller sold to Lucas, he intended to remove out of Louisiana, at least for such a time ns would enable him to realise his purpose of securing to Patsy the benefit of the notes he had given, or intended to give, to Kirk for her use. But the power of attorney given to Kirk to emancipate Patsy does not strengthen the proof of that intention, and indicates an absence of any purpose of leaving the State at the time, and within a reasonable time after, it was made ; and there is no act of Miller indicative of any intent to le are Louisiana until upwards of ten months afterwards, when he left for St. Louis.

Dr. Doniphan, who had been his physician since 1842, and had been frequently at his honse, is asked this question: “ When said Miller left this State, on said trip to the State ,of Missouri, did you, or not, understand from him it was on account of his health, and that he should return again,” &c. ? He answers: “ I did: he spoke of having, or expecting to have, to take back his property, as Lucas could neyer pay for it, and for this reason he purchased the place he then held in Tensas parish.” Th® disease with which Miller was afflicted and died was the dropsy, and his physician advised him to leave for St. Louis. In the mortuary proceedings had at St. Lems in the succession of Miller, he is mentioned as Samuel Miller, late of St. Louis county. The inventory, dated 7th January, 1845, contains an account of one man slave and four children,,pnd one woman who had run away in October previous, and not since been heard ,of, a book-account of $500 against William. Kirie, one dinner table, two breakfast tables, one feather bed and bedstead, one small bedstead or lounge, and one gun. There is no other matter relied upon by either party, as affecting the question .of the change of domicil of Miller. The .testimony of the witnesses taken orally related to the faet of concubinage •, that of Kirk and Doniphan was taken under commissions, in answer to interrogatories propounded by the-parties respectively.

IV. By our laws the domicil of eaeh citizen is in the parish in which he has his principal establishment, which is that in which he makes his habitual residence ; and if the fact of his principal establishment is rendered uncertain by reason of his residing in different places, without any formal declaration of intention as provided by law and under circumstances which render the residence equivocal, either of the places where he so resides may be considered as that of his principal establishment at the option of the persons whose interests are thereby affected. Civil Code, art. 42. Judge Story, in his Conflict of Laws, § 41, states: “ In a strict and legal sense, that is properly the. domicil of a person where he has his true, fixed, and permanent home, and principal establishment, and to which whenever he is absent he has the intention of returning.” We think this authority to be of great weight, as well from the learning and ability of that eminent judge as from his knowledge and experience derived from an administration for many years of the jurisprudence of different States, in which rights under one of them were brought in conflict with those held under another. ,

It is generally a difficult matter to determine the place of domicil of persons ' Amoving to neighboring or contiguous States; and those who have in view to defeat the operation of laws which they wish to avoid, generally accompany their movements with such declarations and outward demonstrations as will enable them to effect their objects. As the validity of every domicil depends upon its truth, there are certain rules which have necessarily established themselves in aid of judicial enquiries after it; they are the dictates of sound reason, and supported by long acquiescence and the best authority. A domicil once acquired remains until a new one is acquired-^/rtcío et animo. Ibid, § 47. A person going to another State for health, for pleasure, or any temporary purpose, with the intention to return, has a mere transitory residence, which constitutes no new domicil, nor an abandonment of the old one. It is not the act of inhabitancy which constitutes the domicil, but it is the fact, coupled with the intention, of remaining there, lb. § 44. In cases of doubt, the original domicil of a party is considered as the true domicil. Such has been the decision of the lafe Supreme Court in the case of Gravillon's Heirs v. Richards' Executors et al. 13 La. 299; and such is the jurisprudence of the Court of Cassation. Merlin, Rep. verbo Domicile, § 2.

From a careful examination of the evidence, we think it results that the intent, indeed the sole purpose of all the acts of Miller, was to secure to the concubine the benefit of the notes which he had delivered to Kirie, probably soon after the sale to Kucas, in May, 1843; and that his declared intention to leave the State was in order to enable him to effect that object, to which this intention was subordinate, and on which it alone depended. If that object could have been affected in any other way, that there was no intention on the part of Miller to break up his establishment, and change his residence from Louisiana; and that what was said and done in St, Louis was solely in view of that object. It was all with a view to the supposed- operation of the laws of Missouri upon the incapacity under which he and his concubine labored under the prohibitive laws of this Stateand if the notes in the hands of Patsy could-have been negotiated, and she received the equivalent, the purpose of Miller would have been answered, and the Missouri residence no more thought of, He did not leave the State when he first gave the notes to Kirk, nor did he intend to leave it when he gave the power of attorney to Kirk to emancipate Patsy in one of the free States, nor when he purchased the plantation in the parish of Tensas, on the opposite side of the river to that he sold to Lucas ; and when he left for St. Louis, in April, 1844,- his physician swears that he advised him to go on account of his health, and that Miller told him he intended to return, which the interests of his property in Louisiana required.

The circumstances which are adduced in support of the change of domieil to Missouri, are certainly of no great weight. The deceased made no investment in St. Louis. It is true he hired- a house, but what sort ef a house is not told us. He of course must have had a shelter for himself and his slaves. But the inventory shows nothing in the way of furniture, which indicates any thing more than a transient stay there; and there is no proof of any fact that we ; have been able to find which indicates an intention to remain there except for the purpose of securing the notes to his concubine, through the operation of the laws of Missouri.

V. And in relation to the testimony of Mr. Kirk,- which has been the object of attack from the counsel of the intervenor, admitting the witness swore to what he saw and what he heard, its effect on legal grounds, without adverting to his position and agency throughout this affair, appears to us to have been misconceived by the counsel for the plaintiff. He urges that the declarations of Miller, in relation to his change of domicil, are evidence as part of the res gesta; but, if that be conceded, another- question arises as to the weight to be given to them. It is obvious that the declarations of Miller as to his intention of changing his domicil, made before his sale to Lucas, and the delivery of the notes to Kirk for Patsy’s benefit in Louisiana, would stand-on a very different footing from those made since and with a view of legalising what he had done, and giving effect to a violation of our laws. A party can hardly be permitted thus to make evidence to support his unlawful acts. We have understood the rule to be that, in questions of domicil the declarations of the party whose domicil is in dispute are only entitled to weight when made previous to the event which gave rise to the suit. Thorndike v. Boston, 1 Metcalf, 242. Kilburn v. Bennett, 3 Ib. 199.

The declarations of Miller are not stated to have been made previous to the combination of Miller and Kirk, made in Louisiana, to secure the notes for Patsy. The only residence claimed for Miller is during his stay for a few weeks in St, Louis. It is not pretended that he intended to reside there, but the declarations proved show that he had the whole range of the State of Missouri, which alone circumscribed his purpose. Something more than this is required to support the definite requisitions of a legal domicil; the true, fixed, permanent home and principal establishment, to which the party, whenever absent, has the intention of returning, There was no residence in a place where he intended to remain. The matter of intent is thus, as we originally stated, dependent on the original purpose conceived when the sale of the property was made to Lucas.

VI. We theréfore conclude that it is not proved that a domicil was acquired by Samuel Miller,■ before his decease, in the State of Missouri, and that his original domicil in the parish of Tensas, in this State, was his legal domicil at the time of his decease; that it was incumbent on the plaintiff to prove affirmatively that a domicil was acquired elsewhere, before the original domicil can be considered as changéd; and that, even if it were doubtful under which domicil the party died, he Woüld be held, undór the rules of law, to have died under the original domicil in Louisiana.

We have thus given the reasons for our conclusions at greater' length than usual, because we are under the necessity of reversing the verdict of a jury, and giving judgment in opposition to it. In questions of fact the verdict of juries on conflicting testimony, in matters of fraud, is entitled to great weight. In this case, it will be observed, the rights of the parties, particularly those of the succession of Miller, depend merely upon questions of law. They were laid before the jury at length by the charge of the judge, and their'application to the fiicts, with proper discrimination, is no easy task; and it is not at all surprising that a jury should have fallen into error in the conscientious discharge of their duty. Ours is equally imperative. In' supervising the verdicts of juries we can surrender none of our constitutional privileges, which give to us the exclusive control over verdicts on all questions of law. The questions of law, as presented by the facts, are in favor of the succession of Miller, and his heirs are entitled to the benefit of them.

VII. By the 1468th article of our Code, those' Who have lived together in open concubinage are respectively incapable of making to each other, whether inter vitos or mortis causa, any donation of immovables; and, if they make a donation of moveables, it cannot exceed one-tenth part of the value' of the whole estate. Those who afterwards marry are excepted from this rule. No issue is made as to the proportion the amount of the gift to Patsy bears to the estate, and the only question raised is as to its validity. We have already stated our opinions of tile relations subsisting between the parties to this donation. The disabilities under which the law places persons who have lived in this condition, are created for the maintenance of good morals, of public order, and for the preservation of the best interests of society.

When the comity of this State is invoked through its tribunals, to give effect to a donation made in another State, in derogation of the laws and policy of our own, of which a citizen is seeking to have the benefit, and that appeal rests upon the operation of the foreign law, it will be time enough to answer it; but it must not be understood from the circumstance of our not noticing this point of the defence, that we are disposed to underate its gravity and importance. The difficulty of all questions relating to the conflict of laws admonishes us of the propriety of avoiding such as the rights of parties do not render necessary to be decided.

It is therefore adjudged .that the verdict of the jury be set aside, and the judgment in favor of the plaintiff reversed. And it is further decreed, that the property of the eight notes, executed by Hugh Lucas, the defendant, on the eleventh of May. 1843, payable to the order of Samuel Miller, on the first day of March, 1845, 1846, 1847, .1848, 1849, 1850, 1851, 1852, for $3,000 each, secured by a mortgage reserved in an act of sale of a tract-of land and slaves made by said Miller to the defendant, in the parish of Catahoula, and bearing even date therewith, and in contest in this suit, is in the succession of said Miller i and that the intervenor, as curator of the vacant succession of Samuel Miller, deceased, recover of the defendant, Hugh Lucas, $6,000, the amount of the notes which fell due on the first of March, 1845 and 1846, with interest at the rate of ten per cent per annum on $3,000 thereof, from the first of March, 1845; and with like interest on $3,000, from the first day of March, 1846; and that the mortgaged property, as described in the act of sale filed with the petition for reference to and description, be seized and sold to pay said sum with interest, and on such terms of credit as will meet the payment of the remaining six notes at their respective maturities; and, that the plaintiff and appellee pay the costs incurred by the intervention in the court below, and of this court, and the defendant those of the lower court not created by the intervention.


source: Caselaw Access Project

author: King, J.

license: Public Domain

text:
    Bach v. Barrett.
    Plaintiff cannot recover in an action to rescind tlie sale of a slave for a redhibitory disease, tvhere an offer to return .the slave is neither alleged nor proved.
    Appeal from the Parish Court of New Orleans, Maurian, J.

      Josephs, R- N., and A. N. Ogden, for the appellant. No counsel appeared for the defendant.
   The judgment of the court was pronounced -by

King, J.

This is a redhibitory action instituted to recover the price of a slave, who the defendant alleges was affected, at the -time he purchased him of the defendant, with an incurable disease. A judgment was rendered in the court below in favor of the defendant, and the plaintiff has appealed.

The evidence does not in our opinion fix with sufficient certainty the date when the complaint of which the slave died commenced to authorise a recoyery. The plaintiff purchased the slave on the 30th of December, 1336. Between the 5th and 10th of January following, the slave reported himself as being sick. His disease was then diarrhoea, for which he was treated. A short time after, he appears to have so far recovered as to return to his usual work, at which he continued for several weeks, when he was again found to-be unfit for service, and withdrawn by the plaintiff, in whose possession he remained until June, 1.837. He was then removed to an infirmary, where the disease under which he then labored was pronounced by the attending physician to be dysentery, aceompa.nied by incipient consumption, .and to be incurable. Of that complaint he died several months later. The disease not having manifested itsejf within three days after the sale, an attempt was made to prove its previous existence by the physician who treated him in the infirmary. That physician, judging from the condition in whiph he found the patient, thinks that the disease must have existed six or seven months before he saw Mm. Anqther physician states that after dysentery has progressed for six mqnths, it is impossible to determine, from any examination of the patient, within a month or six weeks of tlpe time when the disease commenced. Independently of this cqnflict of medical .opinion, there is a further consideration which would induce us to hesitate before reversing the judgment of tlje inferior .court. It appears from the evidence that, the slave was visited by the physician of the plaintiff in the incipiept stage of the disease. . That physician was not called to testify in the cause, and the .absence of his testimony is unaccounted for. It is to be presumed that he could Jiavo fixed with more accuracy the date when the disease commenced, and that he could have determined its true character at its origin, apd whether it subsequently became incurable from the neglect of the plaintiff. .It was incumbept on the plaintiff to make his evidence as complete as, from the nature of the pase, it was susceptible of being rendered ; apd no cause has been shown for his failure to adduce testimony so important to his success,

But apart from the 'merits as depending upqn the testimony, no offer of the plainfiff to retjjrn tile slave has been either alleged or proved.

Judgment affirmed.

         Rost, J., did not sit on the trial of this ease,

       This action was instituted on the 15 June, 1837.


author: Slidex,l, J.

text:
    McDonogh v. Derbigny.
    Where there is nothing in the record to show that the amount in dispute exceeds three hundred dollar^, the appeal must be dismissed.
    APPEAL from the District Court of the First District, Buchanan, J.

      Grivot and Boselius, for the appellant. Laharre, for the defendant.
   The judgment of the court was pronounced by

Slidex,l, J.

The plaintiff obtained an injunction against the defendant to restrain him from tearing down certain buildings, and taking away any materials then upon certain ground, of whiph buildings, materials and ground the plaintiff alleged himself to be the proprietor. He also alleged that an adjudication of the buildings and materials made t.o the defendant was null. The prayer of his petition was that the injunction be perpetuated, the buildings decreed the property of the petitioner, and the adjudication declared null and void. The petition does not assert, nor does the evidence disclose, what is the value of the buildings and materials. So far therefore as the plaintiff’s demand is concerned, there is nothing before us to show that the matter in dispute exceeds the sum of $300. It is, on the contrary, left wholly uncertain.

The defendant denied that he had any intention to destroy the buildings, or carry away the materials, and asserted a privilege upon them for the sum fif §240- This pum is insufficient to confer jurisdiction upon this court.

The judgment of the court below which declared the adjudication to the defendant null, perpetuated the injunction, and gave judgment for the defendant ^ fpr $240 with privilege, cannot be reconsidered by this court. The case falls within tlie rule recognised in the case of Plique v. Bellomé, ante 293; and the ¿notion to dismiss must prevail. Appeal dismissed.


author: Seidell, J.

text:
    Green v. Fonbene.
    Where one of the parties lo a contract which stipulated for the payment.of .a fixed penalty in case of the failure of either to comply with its terms, notifies the other that itis impossible for him to comply with the contract, and that he must consider it as null, to exonerate himself from liability for the penalty on the ground of a subsequent promise by him to perform, he must show that the new promise was accepted by the other party. Per Curiam: The gratuitous abandonment of an acquired right is not to he presumed.
    •Where a party contracted witli another to deliver merchandize for a certain price, the latter binding himself to pay the price, under a fixed penalty in case of non-complianc/e on his part; and the purchaser notifies the seller of his inability to comply and declares the contract null, it will amount to an activo breach of the contract, and the seller will not be bound to tender the goods to enable him to recover the penalty.
    Appeal from 'the District .Cpur.t of the First District, Buchannan, J.

      G. W. Christy and Wray, for the appellant,
    cited C. C. 1925, 1926.-Lynch v. Postlethwaite, 7 Mart. 218. Kelly y. Caldwell, 4 La. 40. Garcia v. Champomier, 8 La. 519.

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

Seidell, J.

The plaintiff and the defendant agreed, the former to furnish within a certain time, and the latter to receive and pay for at a certain rate, a quantity of staves. The defendant bound himself in a penalty of $5.00 for the performance of his part of the contract. Two or three months after this contract was made and before the period for its execution had expired, the defendant addressed a letter to the plaintiff, in which, after stating the depressed .condition of the foreign and domestic market .as to the article contracted for, he says it is impossible for him to fulfill the contract, and concludes his letter by saying, “therefore you will consider our contract null.” This suit is brought by the plaintiff to recover the stipulated penalty of $500. Th.e petition avers the contract, the stipulation of the penalty, the address to the plaintiff of the letter advising the impossibility on the part of (he defendant to fulfill the agreement, and undertaking to annul it, and the liability of the defendant to pay the penalty.

The answer of the defendant is as follows: " He admits his signature to the contract and to the letter annexed to the petition; and further, he says, that a very short time after writing said letter, the said plaintiff being in New Orleans, was duly informed, by a verbal notice of said defendant, that he was ready and willing to receive the staves mentioned in the contract, but that said plaintiff has never complied with his share of the contract, and has never delivered at the place designated in said contract any staves whatever, on account of pr for the said defendant; that no real tender hqs been made unto this defendant in conformity to law, so as to make him answerable to plaintiff in the sum by him claimed, his Jetper being annulled by his promise to abide by the contract; that the plaintiff has made himself liable towards the defendant in the penalty of the contract, for which defendant reserves to himself the right of suing the plaintiff; that he denies owing said Green any sum whatever, and prays to be dismissed.”

This answer admits the contract and the writing of the letter, and sets up a subsequent promise by defendant to fulfill the contract. But it is to be observed that the answer does not allege that the new promise was accepted by the plaintiff; and on this very material' point the testimony offered by the defendant is equally defective. To relieve the defendant from the consequences of his own written declaration that it would be impossible for him to perform his part of the contract and that it must be considered null, it was certainly necessary to furnish evidence of a very clear and satisfactory character. This has not been done. There is testimony of a conversation between the plaintiff and a clerk of the defendant, which is of a vague character, and, taken it in its fullest legal extent, only shows that the plaintiff, in reply to a declaration of the clerk that the defendant would accept the staves if they were brought, answered that he had received a letter from the defendant renouncing the contract, and that as the defendant had told him not to make the staves he did not make them. This does not establish an acceptance by the plaintiff of the new promise or offer, nor is it to be regarded as a waiver of the clear right to the penalty which the plaintiff had acquired by the defendant’s letter, which was an active breach of the contract. Tie could with propriety say, I made no staves because the defendant wrote to me not to make .them, that he could not pay for them, and that the fulfilment of the ¿contract on his part was impossible. The gratuitous abandonment of an acquired right is not to be presumed.

There was evidence received, notwithstanding the exception of the plaintiff, to the effect that, in .conversations with .the defendant’s clerk, the plaintiff first said he had not received the defendant’s letter, and afterwards changed his ground, and said he had receiyed it. We think this testimony was inadmissible under the pleadings. The petition charged the addressing of this letter to the plaintiff by the defendant, and made it, with the contract, the basis of the action. The answer did not deny, but in clear terms admitted the writing of the letter; and set up an avoidance of its legal effect by a subsequent promise.

We are of opinion that the first conclusion of the district judge was correct, and that the plaintiff is entitled to recover the penalty. After the defendant declared his inability to fulfill the agreement, and signified in so positive a manner that he would not stand to it, the plaintiff was not bound to procure and tender the goods bargained for, Garcia v. Champomier, 8 La. 519. The district judge, in his second opinion, after granting a new trial, considered the letter not as an absolute .and active breach of the contract, but as a proposition to annul it. But in this yiew we cannot concur. The language of the defendant was unqualified and peremptory.

It is therefore decreed that the judgment of the court below be reversed, and that the plaintiff recover of the defendant the sum of five hundred dollars and costs in both courts.


text:
    Bronsema v. Rind et al.
    Where a judgment creditor alleges that property was paid for "by his debtor, hut purchased in the name of a minor child of the latter to screen it from the pursuit of his creditors, and prays that it may be adjudged to belong to the debtor, and to be liable to seizure for his debts, the vendor of the property should not be made a party to the action. The object of the action being to determine the ownership of the property, and not to annul the sale, the vendor has no interest in the question.
    A father can make no purchase in the name of his minor child, to the detriment of his creditors whose claims existed at the time of the purchase.
    No final judgment on the merits can be rendered in an action by creditors, the object of which is to declare the property purchased by a debtor in the name of a minor child to belong to the debtor, where the under-tutor of the minor, though made a party to the action, never answered, where no judgment by default was taken against him.
    Appeal from the First District Court of Jefferson, Clarke, J.

      Greiner, for the appellant. McMillen, for the defendant.
   The judgment of the court was pronounced by

King, J.

The plaintiff alleges that he is a judgment creditor of Nicholas D. Rind; that the latter is the owner of a lot of ground, with valuable improvements thereon, which he paid for with his own funds, but purchased in the name of his minor daughter, Louisa M. B. Rind, for the purpose of protecting it from the pursuit of his creditors. The plaintiff prays that the property be decreed to belong to Nicholas D. Rind, and held liable to seizure in satisfaction of his judgment, subject to a tacit mortgage in favor of the minor Louisa, for such sum as may be ascertained to be due to her. The district judge was of opinion that Jones, the vendor of the property, should have been made a party to the suit, and that a sufficient cause of action was not set forth; and he rendered a judgment of non-suit, from which the plaintiff has appealed.

The judge, in our opinion, erred. The object of the action was not to annul the sale from the vendor, but to decree the property, which it purports to convey to the minor, to belong to the father, who it is alleged is the owner, and has resorted to this device to secure it from the pursuit of his creditors. The vendor has no interest in the matter in controversy, and could not have been properly made a party to the suit. The object of the action being to determine the ownership of the property, and to render it liable for the payment of the debts of the defendant Nicholas D. Rind, the averments of the petition are sufficient, if supported by evidence, to authorize the judgment prayed for.

The defendant could no doubt have invested the funds of his minor child, is any he had, in real estate, in the name and for the benefit of the minor, and creditors could not have complained that the legal formalities necessary to render such a purchase obligatory on the minor had not been observed.

The father, however, can make no purchase of property in the name of his child, to the detriment of creditors whose claims exist at the time of such purchase. Such acquisitions, intended to prejudice the rights of creditors, are frauds upon the latter, against which they are entitled to relief. But the allegation in the present instance being, not that the purchase was made for the benefit of the minor, but for that of the father himself, who has merely used the name of his child to secrete his property from his creditors, upon establishing this fact the plaintiff will be clearly entitled to the relief which he asks.

An objection, however, has been made in this court to the regularity of the proceedings, which renders it necessary to remand the cause, without an enquiry into its Merits. The under-tUtor of Louisa Rind was made a party to the cause and was an indispensable party, there being a conflict of interest between the minor and her tutor. The father alone appeared and answered. There was no default taken against the under-tutor, and no answer filed by him. No final judgment can be rendered upon the merits, until this party is before us.

It is therefore ordered that the judgment of the District Court be reversed. It is farther ordered that the cause be remanded for further proceedings ac-’ cording to law, the appellee, Nicholas D. Rind, paying the costs of this appeal.


text:
    Cochran v. Dewees et al.
    Where an act of sale is offered in evidence by a party to prove the fact of the payment of the price of the thing purchased, but is admitted by the judge only to prove rem ipsam, and the party offering it neither excepted to the decision of the court in restricting its effect as evidence, nor in any way reserved the point, the correctness of the decision in restricting the effect of the evidence cannot be examined on appeal.
    Appeal from the District Court of Jefferson, Clarke, J.

      Greiner, for the appellant. F. B. Conrad, for the defendants.
   The judgment of the court was pronounced by

Eustis, C. J.

The defendants, sureties of Winters, city marshal of Lafayette, applied to the governor for their discharge, which was opposed by the plaintiff, on the ground that Winters had received the price of the adjudication of certain lots in Lafayette, purchased by the plaintiff, and that his title on a monition haking been annulled, the purchase money ought to have been returned to him, and that the parties were liable on their bond for the default of Winters in retaining it. The application and opposition were referred by the govvernor to the First District Court. A supplemental petition was afterwards filed, by which judgment was asked against the defendants for the sum of $1200, for damages alleged to have been sustained by the plaintiff through the neglect of duty of Winters, in making the sale, by reason of which the sale to him was annulled. To this the general issue is pleaded. The plaintiff was non-suited, and he has appealed.

It appears to us that there is no evidence of the damage sustained by the plaintiff through the acts of Winters.

In relation to the remedy of the plaintiff against the defendants, as sureties, for the return of the purchase money alleged to be paid by him, it is still open to him. In the present case, if the sheriff’s deed was offered to prove the fact of payment, and refused to be admitted by the judge for that purpose, the plaintiff ought to have excepted to the decision of the court, or have in some form reserved the point. The sheriff’s deed was admitted by the judge as evidence of res ipsa only, and no exception was taken by the plaintiff to this limited operation of it as evidence. Whatever may be our opinion of the correctness of the view of the district judge on this question, we cannot remand the case on that account, and thus amerce the defendants in costs. The non-suit must therefore stand. Judgment affirmed.


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    Whiting v. Coons.
    A keeper of public stables lias no privilege on horses placed with him on livery, for' money loaned to their owner, entitling him to be paid by preference to an attaching creditor.
    Appeal from the First District Court of New Orleans, McHenry, J.

      Boselius, for the appellant,
    cited Civ. Code, art. 2920,2921,2927,3191, 3192, 3193. No counsel appeared for the defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

There are four suits, nos. 502, 503, 505, and 506, in which the plaintiffs have judgment against the defendant, Coons, by which each has recovered a horse which had been stolen from him in the State of Ohio, together with damages and costs. The horses were in the stable of the plaintiff in this city, with four other horses, which were the property of the defendant. The latter were attached in the suits 502, 503, 505, and 506, and were held subject to the debt for which the plaintiffs severally had judgment. Coons has appealed, and we are bound, under the evidence, to affirm the judgment rendered against him with the maximum of damages.

The district judge allowed the plaintiff a privilege on the four horses which were stolen, for their keeping and feeding up to the time of the institution of the several suits, to which Whiling had been made a party defendant, and rendered a judgment for the balance of Whiting’s account against Coons, as for an ordinary debt, without any privilege; from this Whiting has appealed.

The allowance of the privilege in favor of the defendant for the livery of the four horses stolen is not-objected to by their owners, and no change of judgment on this account is- asked, and none will be made in it; but we must not be considered as assenting to the principle which the allowance, without any qualification, apparently involves, in relation to which we express no opinion.

For the rest of the plaintiff’s account, which is for cash advanced Coons, he can have no privilege on the stolen horses, and having made no attachment against Coon’s property, he has no right to participate in the proceeds with the plaintiffs in the several suits whose attachments give them a right of preference over other creditors. Judgment affirmed.


author: Slidell, J’.

text:
    Shropshire et al. v. Russell.
    A sequestration will be allowed to issue only where the party is clearly entitled to it.
    In an action by one partner against another to compel him to account for and pay over the share of his co-partner in profits alleged to belong to the firm, plaintiff is not entitled to a sequestration.
    Profits made by a partner in the purchase and sale of merchandize, in which his co-partners are entitled to share, are not subject to any privilege in favor of the latter.
    Privileges are stneti juris, and are only allowed where the lawgiver has expressly awarded them.

      Appeal from the Fourth District Court of New Orleans, Strawhridge, J.

      C. A. Jones, and Grymes, for the appellants. Benjamin and Mieou, for the defendant.
   The judgment of the court was pronouneed by

Slidell, J’.

There was much cogency in the argument of the learned counsel of' the plaintiffs upon the point made, that where one partner lays hold of the partnership property, asserts it to be his sole and separate property,- and detains it as such, a sequestration may issue at the suit of the other partners. The strong inclination of our minds is to the recognition of that doctrine ; but, on a careful consideration of the affidavit for sequestration, we find that the point is not necessary to be decided. A party who applies for the stringent remedy of sequestration must, as in the remedy of attachment or arrest, present a case clearly entitling him under the Code and statutes to that process. The allegations of the plaintiffs’ affidavit, upon which the sequestration must rest, are confused. Some of its allegations, perhaps, point obscurely to the social ownership of the fund to be sequestered, but, in the main, they treat it as a fund under the control of Russell, upon which the plaintiffs allege themselves to have a privilege, and for a portion of the amount of which they allege' he is their debtor. The affidavit is positive that he- is indebted to them in the sum of $8,000. This sum is the alleged amount of the plaintiffs’ social' share of the profit's upon corn bought by Russell, and which profits are alleged to have accrued under such circumstances as entitled the partnership to an account and the Benefit of them'. The case is not, therefore, that of a partnership sequestering property belonging to th'e firm, and unjustly claimed and detained as his own exclusive property by another partner; but a suit against the unfaithful partner to compel him to account for and pay over the shares of his partners, in profits of which he is alleged' to be a' trustee for the firm. As to the allegation of the affidavit that the plaintiffs have a privilege upon the fund constituting those profits, and' then lying in the hands of McGregor and others, Russell’s factors, we know of no provision of our Code creating'such a privilege, technically speaking. It is well settled that privileges are stricti juris, and are only allowed in those cases where’the lawgiver has expressly accorded them.

What would have been our opinion as to the right to. sequester if the affidavit really presented such a case as was assumed by the plaintiffs’ counsel in argument, it is unnecessary to say conclusively; nor do we wish to be understood as saying that, the remedy of injunction would not have been available on this occasion. We confine ourselves to a concurrence in the opinion of the district judge, who, while he expressed his regret that he could not hold on to the sequestration, decided that it was improperly issued.

The decree of the District Court dissolving the sequestration is therefore affirmed with costs.


author: Slidell, J.

text:
    Munroe v. Frosh et al.
    Where one of the partners in a mercantile firm established in another State resides in this, and is in the habit of buying goods to be shipped to, and sold by the foreign house, the partnership property will not be liable to attachment for a partnership debt contracted here by the resident partner. Per Curiam: The partnership.cannot be considered a non-resident, and the credit was given to it.

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

      Benjamin and Micou, for the appellant,
    contended that the defendants being bound in solido as commercial -partners, the residence of one partner within this State cannot prevent an attachment from being sued out against the non-resident partner. Smith v. Elliott, 3 Mart. 370. Cucullu v. Mangenal, 4 Mart. N. S. 185.

      F. B. Conrad, for the defendants.
   The judgment of the court was pronounced by

Slidell, J.

This suit is brought upon promissory notes made by the firm of Frosh Sf Muller, to the order of plaintiff. A small item of $23 is also claimed for merchandize sold here, by plaintiff, to Frosh Muller. An attachment issued, and was levied upon certain property which was bonded by the firm. There was a rule afterwards taken to set aside the attachment, which rule was sustained; and from the order of dissolution the plaintiff has appealed.

If it were established by the evidence -that the property attached belonged to Muller, this case would be quite free from difficulty; for it is satisfactorily shown -that Muller was a resident of New Orleans. But we are of opinion that the property attached belonged to the firm of Frosh Sf Muller, and a question of less easy solution is thus presented. It appears that Frosh Muller were partners in -trade. Frosh was living at Galveston, in Texas, and a house was established there under the style of Frosh 8f Muller. Muller lived at New Orleans, and conducted the business of the house at this place. The firm was in the habit of buying goods here by Muller, acting in the name of the firm, which goods he shipped to Galveston to be there sold. The property attached was money shipped by the house at Galveston, and consigned to Muller individually; -but no doubt it was the property of the house, as appears from the statement of the garnishee, and from the fact that the bond was given for it in the name of the firm. The case is therefore to be considered as that of a mercantile house having two establishments, one abroad, conducted by Frosh, and one here, conducted by Muller. The plaintiff dealt with the firm of Frosh <$• Muller by its partner here. The sales of merchandize were to the firm; the notes of the firm were taken; they are dated at New Orleans; and, in legal contemplation, under the facts stated are payable here.

It seems .to us that under such circumstances an attachment ought not to lie against the partnership. Under the facts stated, the partnership cannot be deemed a non-resident, and the credit was given to the partnership. The remedy by attachment is a stringent one; it has always been strietly construed, and has not been permitted, except in those cases where it is clearly and fairly applicable. Its object was to enable suitors in our .courts to collect their debts from non-residents. To extend the remedy to the present case would lead to practical results highly detrimental to commerce, and which we cannot believe the lawgiver ever intended to sanction. From our earliest knowledge-of New Orleans as a commercial'mart, its commercial affairs with other States of this Union, and with foreign countries, have been carried on in a great degree by houses some of whose partners resided here and some out of the State. Each of such partners, it is true, is a solidai-y debtor ; aud yet our experience does present a single case in which, upon the contract of a mercantile house made here in its name by a non-resident partner, an attachment has been sustained in our courts upon the partnership property, or even upon the interest of a non-resident partner in the partnership assets. We think a fair and reasonable interpretation of our attachment laws .and their policy, forbids us to allow the plaintiff to seize the partnership property of Frosh 8f Muller, upon a partnership debt of that house contracted here by its resident partner.

Judgment affirmed*


text:
    Jacobs v. Turner et al.
    Where notice of protest of a note is left at the counting-room of an endorser, with a person who declared himself to be his agent, the notice, having been left at the'proper place, cannot he affected by proof that the person with whom it was left was not the agent of the endorser,
    APPEAL from the Fourth District Court of New Orleans, Slmwbridge, J. There was a judgment below in this case against the endorser, T. B. Bee, from'whichhe appealed. The judge, in giving his reasons for the judgment, says: “ That notice of protest was given to the endorser Rea, by leaving it at his counting-room with a gentleman who ‘declared himself his agent.’ The regularity of this notice has been supposed to depend on the fact of the person in question being actually defendant’s agent, which I think immaterial. The notice was left at the proper place, and whether the person with .■whom it was left was agent or not, cannot invalidate it.”

      B. A. Crawford and Iiamner, for the plaintiff,
    cited 14 La. 494. 15 La. J.13. B. B. Bee, for the appellant, relied on Story on Notes, § 309.
   Eustis, C. J.

For the reasons given by the district judge, the judgment jnthis case is affirmed, with costs.


author: Kihg, J.

text:
    Succession of White.
    No appeal willlie from an interlocutory judgment which can cause no irreparable injury to the party who deems himself aggrieved.
    Appeal from the Second District Court of New Orleans, Canon, J.

      J., and IB II. Strawbridge, for the executrix, appellant. T. G. Morgan, for the opponent.
   The judgment of the court was pron ounced by

Kihg, J.

This appeal is taken from an interlocutory judgment of the District judge, sustaining an exception to the sufficiency of an opposition filed to an executrix’ account, and permitting the opponent to amend her pleadings. An examination of the record has satisfied us that the judgment appealed from is not one which can cause an irreparable injury to the appellant, and that a case is not presented which authorises the appellant to claim a revision of the judgment of the inferior court, .at the present stage of the proceedings.

Appeal dismissed*


text:
    Riley v. City of Louisville.
    The fact that the counsel of a party was not aware that the case hadheen set for trial will not entitle the party to relief from the effeet of a surprise and an ex parte trial, unless it he shown that the counsel could not, by the exercise of reasonable diligence, have ascertained the condition of .the .case, and been present at its trial.
    PPEAL from the District Court of the First District, Buchanan, J.

      Randall, for the plaintiff. Finney, on the same side. Mott, for the appellants.
   The judgment of the court was pronounced by

Seidell, J.

It is always our inclination to relieve litigants from the effect of a surprise and ex parte trial, when we can properly do so. But in the present case we could not overrule the opinion of the district judge who refused a new trial, without establishing a dangerous precedent. The defendants’ counsel v?as evidently not aware that the case was set for trial, and that the return of a commission had put it in readiness for trial; but it does not appear that he could not, by the exercise of reasonable diligence, have known the condition of the cause, and been present at its trial.

The plaintiff was not bound, by the agreement on file, to offer the depositions of all the witnessnes examined under joint commission. If the defendants’ counsel had been present at the trial, he could have offered such depositions as he deemed material to his cause. The opposing counsel was not bound/in his absence, to offer the adversary’s evidence.

The ownership of the steamer by the defendants is proved. The defendants’ counsel, in his argument, attempts to present the question, whether a municipal corporation can be the owner of a steamer and responsible as such. Looking to the manner in which this caae is presented by the pleadings and evidence, we do not feel called upon to entertain the question. It is, however, not improper to remark that, although it may appear unusual that a political corporation should be the owner of such property, yet, in the present case, the circumstances were peculiar. The ownership of the steamer by the city of Louisville sprung from, and was directly connected with, the accomplishment of, a matter appertaining to its municipal concerns. The city was engaged in the erection of a court-house within its limits ; and the stone, of which it was to be constructed, was to be brought by water to the town. It loaned the money to the building contractor to purchase a steamer for the purpose, and for its security took the title in the name of the city, and the vessel was enrolled as the property of the city. ¥e may also remark that, although in a suit formerly brought in one of our courts by this corporation, its ownership of the steamer was alleged and formed part of the basis of its action, it has not thought proper now, in repudiating the ownership, to place its charter before us.

Judgment affirmed.


text:
    Succession of Wadsworth.
    In tíre absence of proof to the contrary, it will be presumed that an order directing a sheriff to sell property of a succession, was regularly issued.
    A probate sale will not be set aside, at the instance of the administratrix, on the ground that the description of the property in the advertisement of sale was not a full one, where there is no reason to believe that any injury resulted from the defective description, and the creditors of the succession do not complain.
    A probate sale of the property of a succession to which there were no minor heirs, ordered to be made on credit, on the application of the administratrix, for the purpose of paying debts, and not shown to have been made for less than the actual value of the property at the time, will not b,e set aside on the technical ground that the sale could not be legally made for less than the amount at which the property was appraised in the inventory.
    An order for the sale of the property of a succession, made at the suit of an administratrix, without citing the attorney of absent heirs, is not a nullity. Nor will the administratrix be permitted to question the validity of such a sale, made in execution of a decree of a court ,of competent jurisdiction, provoked by herself, and not appealed from, where the purchaser is satisfied,'and the heirs, who alone could have a right to complain, are silent. The administratrix, representing the succession, was authorised to provoke the sale of the property. The omission to cite the attorney of absent heirs was an informality anterior to judgment which could not be enquired into collaterally, though itjnight subject the administratrix to damages at the suit of the absent heirs. Per Curiam: The provisions of the Civil Code, arts. 1042, 1157, are, so far as regards the point under consideration, substantially .the same with those of the st.at. of 32 February, 1817.
    Appeal from the Second District Court of New Orleans, Canon, J.

      R. M. Carter, for the appellants. Benjamin and Micou, for the administratrix.
   The judgment of the court was pronounced by

Slidell, J.

The administratrix of this estate presented a petition to the court in which the succession was opened, praying that a sale of certain property might be made for the purpose of paying debts. Upon this petition a decree was rendered that the sale be made by the sheriff, after the legal advertisements, and on the following terms: the lots in New Orleans for one-fourth cash, and the balance at six and twelve months, for notes secured by mortgage on the lots. Upon a copy of this order addressed to the sheriff, he adjudicated certain lots in New Orleans to the appellants, who took a rule upon the administratrix to show cause why she should not execute a deed to them. The administratrix resisted the application on several grounds, which we shall notice in their order.

1st. That the sale was made by the sheriff without the knowledge or concurrence of the administratrix, or any one representing her.

In reference to this ground of defence the testimony of one of the counsel was taken, who states that his partner left the State a short time before the sale; that his partner did not mention to him that any sale had been advertised, nor was the witness aware of the sale until informed by the sheriff after the sale had been made; that he then called on the administratrix, who told him that she had not been informed of the sale. The counsel further stated that he had given no instructions to the sheriff, nor had been requested to do so by him. It is to be observed that this statement does not negative the idea that the partner of the witness, one of the counsel of record, and who prepared the petition for sale, had ordered the writ of sale to issue. We must presume, in the absence of proof to the contrary, that the writ issued regularly. It was in fact the prayer of the petition that the sale should be made by the sheriff, and, even without any direction of the attorneys, the clerk might with propriety have issued a mandate to the sheriff. The sheriff, in the execution of that order, did not require the assistance of the administratrix.

II. The next ground of defence is, that the description of the property in the advertisement and adjudication were wholly insufficient to inform purchasers of the location or value of the lots.

The three lots adjudicated to the appellants, with another lot, no. 6, adjudicated to another purchaser, were described In the advertisement as being the property of Wadsworth’s succession, and situate as follows: “ Four certain lots of ground designated on the plan of the same and other lots, as the numbers three, four and five, measuring each twenty-five feet front on St. Mary street, by the same width in the rear, and opening on an alley ten feet wide, by one hundred and fifteen feet four inches and four lines in depth, between parallel lines. No. six measures twenty-five feet front on St. Mary street, one hundred and eighteen feet two inches in depth, on an alley ten feet wide, fifty feet six inches and five lines on another alley ten feet wide in the rear, and one hundred and fifteen feet four inches four lines on the line next to lot no. five.” It is true that this description is not in itself a full description. It does not state in what block or square the lots are, nor even the name of the municipality in which they are situated ; and it is in proof that in the second municipality there are two streets called St. Mary. But the question is whether these are defects of which the estate can avail itself. The inventory shows that the succession has property which corresponds with that described, giving precisely the same description, with additional particulars. It is not pretended that the property is not owned by the succession, and the only ground of objection is, that the description is not a full one. If there was reason to believe that bidders at the sale had been left in the dark, and that the property had been sacrificed, we might perhaps, at the instance of creditors, refuse to compel the performance of the adjudication. But we have no reason to suppose that any injury was created by the defective description, nor have the creditors asked our interference. So far as the fact of their being two streets called St. Mary bears upon the matter, it affords an argument against the appellee, for property on the other street of that name is proved to be more valuable than the lots sold.

III. The next objection is, that the lots were sacrificed by a sale at much less than their appraised value.

It is not proved that the sale was made at less than the actual value of the lots at the time of sale. The objection is put in argument upon the technical ground, that the sale could not be made for less than the amount of appraisement in the inventory. We think this point is covered by the cases of Towles v. Weeks, 7 La. 312, and Richards v. Deuel, 11 Rob. 508. It is particularly to be observed in the present case, that there are no minor heirs, and that the sale was ordered on credit, upon application of the administratrix, and for the purpose of paying debts. We do not consider the case of Paekwood's Succession, cited by the appellee, as in point. Ante p. 96. In that case the order was express to sell according to appraisement, and there were minors interested.

Lastly. It is said that the order of court under which the sale was made was irregular, having been obtained without citation of the attorney appointed to represent the absent heirs. The counsel has referred to articles 1042 and 1157 of the Civil Code, the former subjecting administrators to the same duties and responsibilities as curators,and the latter declaring that the curator’s petition for the sale of real estate must be notified to the attorney of absent heirs, contradictorily with whom the order of sale must be made. This legislation is substantially the same, as regards the point under consideration, with the act of 1817. In interpreting that statute we held in Gibson v. Foster, ante 503, that the curator was the representative of the succession and had authority to provoke the sale of the property, and that the omission to cite the attorney of absent heirs did not involve the absolute nullity of the judgment; that it was an informality anterior to judgment, and one which could not be enquired into collaterally, though it might subject the curator to damages at the suit of the absent heirs. Applying that authority to the present case, we cannot treat the decree of the Court of Probate's commanding the property to be sold, as an absolute nullity. The purchaser is satisfied with his adjudication, and the heirs, who alone could have a right to complain, are silent* Certainly the administratrix is not to be permitted to question the validity of a public sale, made in execution of a decree of a court of competent jurisdiction, provoked by herself, and unappealed from.

It is therefore decreed that the judgment of the court below be reversed, and that the administratrix do execute an act of conveyance to Bannister and Rigney. as prayed for in the rule taken by them on the 6th May, 1847; the costs of said rule in both courts to be paid by the succession.


author: ICinu, J.

text:
    Bridge v. Oakey.
    An inspector of elections is nof answerable in damages lor a mere error of judgment in re - jecting a voter, when his motives are upright. To maintain an action against him for refusing to receive a vote, it must be alleged and proved that he acted fraudulently or maliciously. To constitute malice the act must be a wrongful one, dono intentionally, without just cause or excuse. Personal ill will to the party aggrieved is not essential to its existence; and, in the absence of any declared intention to do wrong,- the motive may be inferred from the circumstances attending the act.
    Where there are but two inspectors of an election, the assent of both is required for the reception of avoto.
    Appeal from the Third District Court of New Orleans, Kennedy, J.

      Ramie, for the plaintiff A. O. Hall, Flmore and W. W. King, for the appellant.
   The judgment of the court was pronounced, by

ICinu, J.

The plaintiff alleges that he is a qualified Voter, and that the defendant, acting as one of the inspectors appointed to hold an election, in July, 1844, refused to receive his ballot, and thereby prevented him from voting. He avers that this refusal of the defendant Was malicious, fraudulent, and illegal, and claims damages for the Wrong of which he complains. The defendant excepted that the petition set forth no cause of action; The exception was maintained and the suit dismissed. Upon an appeal to the late Supreme Court, that judgment was reversed, and the cause was remanded. 12 Rob. 688. The cause was then submitted to a jury, who gave a verdict for .the plaintiff for ; and the defendant, after an ineffectual effort to obtain a new trial, has appealed.

It is contended that the plaintiff has failed to prove that, the motive of the defendant for refusing to receive the plaintiff’s vote, was fraudulent or malicious. The principle urged by the defendant that an inspector of an election is not answerable in damages for a mere error of judgment, when his motives are upright and pure, and that to maintain an action against him for refusing to receive a vote, it must be alleged and proved, that he acted fraudulently or maliciously, is not contested by the plaintiff’s counsel, and indeed is too well settled to be questioned. The technical term malice used in describing the character of the wrong, is defined to be “a wrongful act done intentionally, without just cause or excuse.” 2 Phil. Ev. 245. Personal ill will to the party aggrieved is not essential to its existence. In the absence of direct proof of a declared intention to do a wrong, the motive may be inferred from thfe circumstances which attend the act. There being, in the present instance, no evidence of such declared intention, we will briefly state the principal facts disclosed by the evidence, from which the jury, who ai'ethe most competent judges of such issues, inferred an improper motive, and which do notin our opinion authorise us to reverse this verdict.

The defendant and H. Gillingham, were appointed inspectors of election for the third ward of the second municipality. On the evening immediately proceeding the election the defendant attended a meeting composed exclusively of inspectors of the political party to which he belonged, called for the purpose of procuring a concert of action among them in relation to the Elliott votes. The deliberations of the meeting were protracted, but resulted in no definitive action. On the morning of the election the defendant at first refused to open the polls, on the ground that the sheriff of the parish court could not be found, and that his presence was necessary to preserve order. After some discussion the inspectors appointed an officer to keep order, the polls were opened, and sixteen votes were received. Gillingham refused to receive the vote of the seventeenth person who presented himself, on the ground that the right of suffrage was claimed upon an Elliott certificate of naturalisation, which did not, as he believed, contain the required oath. The defendant insisted that the vote was legal and should be received. Other voters, possessing the requisite qualifications, and among the number was the plaintiff, subsequently presented themselves. No objections were made to their qualifications, but the defendant refused to receive their votes, stating that the vote of the seventeenth voter was under consideration. After this difference of opinion arose between the inspectors, this answer was uniformly returned by the defendant throughout the day to all who applied to cast their votes, in consequence of which no other votes were received at that box. Gillingham, the co-inspector, desired to receive the votes of such qualified persons as presented themselves, but was met by the steady refusal of the'defendant, who persisted in asserting that the seventeenth ballot was still under consideration. Gillingham declared to the defendant at the time that his opinion was formed in relation to the certificate of naturalisation of the seventeenth voter. The defendant replied that his mind was also made up. The defendant further declared that he would receive no other votes until the seventeenth vote was received. The polls are required by law to be closed at four o’clock, r. m. This refusal to receive votes after the sixteenth was cast, was persisted in by the defendant until about one minute before four o’clock, when he announced that he was ready to reject the Elliott vote and receive the others. Before the voters could reach the polls it was announced that they were closed.

Other facts are disclosed by the testimony, which no doubt operated upon the minds of the jury, but which we do not deem it important here to detail. Upon this testimony we will only remark that, the repeated assertion made by the defendant that the seventeenth vote was under consideration, is wholly inconsistent with the fact that the opinions of both of the1 inspectors in relation to the propriety of receiving it had been previously formed and expressed. There being but two inspectors, the assent of both to its reception was indispensable. The refusal of one to receive it was sufficient to cause its rejection. From the moment that Gillingham, declared his opinion that the vote was illegaland should not be received, it was rejected, and beyond the control of the other inspector, who could no longer treat it as under advisement. That the defendant was awai’e that such was the effect of the refusal- of one of the inspectors is manifest from his own declai'ation that,- no other vote should be deposited until the seventeenth was received. The rejection by Gillingham of the seventeenth-vote offered, even if improperly done, which is not urged, furnishes no excuse or justification for the defendant’s refusal to receive the votes of qualified votei's, who subsequently presented themselves. We think that the verdict of the jury ought not to be disturbed.

Judgment affirmed.

      ' Slidell, J., did not sit on this case, having been of counsel.


text:
    Hite et al. v. Vaught.
    The institution of'an action, and recovery of judgment, against one of two drawers of a joint and s everal bill interrupts prescription as to the other; but it will commence to run again as to the latter from the time of such interruption. Per Curiam: We cannot regard the effect of the judgment- against one co-debtor in solido as extending to the other, so as to change the title of the creditor and clothe the debt with a new character as to the latter; on tile contrary, he will remain a mere debtor, on a bill, notwithstanding the merger into judgment of the liability of his co-debtor. C. C. 2092, 3505, 3517.
    Appeal from the District Court of Jefferson, Clarke, J.

      Mott, for the appellants. Brewer and Miestund, for the defendant,
    cited Jacobs v. Williams, 12 Rob. 183. Carrdby v. Navarre, 3 La. 362. Segond v. Landry, 1
    Rob. 335. Troplong, Préscrip. no. 45. Duranton, Préscrip. no. 117.
   The judgment of the court was pronounced by

Slidell, J.

The defendant is sued upon a bill of exchange, drawn at Louisville, by the firm of C. M. & W. Vaught, upon W. Vaught, dated 8th May, 1838, and payable at ninety days. The defence is prescription; and, in the consideration of this plea, weave to treat the defendant as a solidary debtor with C. M. Vaught, -it being proved that W. Vaught was a member of the firm of C. M. & W. Vaught, by whom the bill was drawn.

The present suit was not brought until March, 1847, and, the contract being subject to the prescription of five years, it is clear that the defendant has been liberated by lapse of time, unless in some way prescription has been interrupted, or otherwise impaired. To defeat the plea the plaintiffs rely upon the transcript of the record of a suit brought in Kentucky against C. M. Vaught, in 1839. He confessed judgment on the 29th May of that year, and the last proceeding in that cause was the issuing of a fieri facias, in June, 1839, and its return of nulla bona in August following.

It is obvious that these proceedings against one of the solidary debtors interrupted prescription as to the co-creditor, TV. Vaught. But the prescription thus interrupted began to run again in 1839, and since that time five years intervened before the institution of this suit, and prescription was thus fully acquired. We cannot regard the effect of the judgment against O. M. Vaught as extending to TV. Vaught, so as to clothe the indebtedness of the the latter with a new character, and subject it to the prescription applicable to judgment debtors. The title of the creditor, as against TV. Vaught, was not changed by the rendition of a judgment against the co-debtor in solido; on the contrary, he still remained, as he originally contracted, a mere debtor upon a bill of exchange, notwithstanding the merger into judgment of C. M. Vaught's liability. See Civil Code, arts. 3505, 2092, 3517. Troplong on Préscription, §630.

Judgment affirmed.


author: Rost, J.

text:
    Meeker v. The Commissioners of The Clinton and Port Hudson Railroad Company.
    Sec. 24 of the stat, of 14 March, 1842, relative to the liquidation of banks, giving to the commissioners appointed under the statute the powers of syndics, has never been considered as placing the stock mortgages under the control of the commissioners.
    A mortgage to secure a loan not made at the date of the mortgage, is an obligation subject to a potestative condition on the part of the debtor. Such a mortgage does not take effect from the date of the registry. It has effect only from the date, and for the amount, of the loan.
    Appeal from the District Court of East Baton Rouge, Burk, J. Joor, and

      T. G. Morgan, for the plaintiff. A. M. Dunn, and Roselius, for the appellants. Elmore, Attorney General, for the State.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff enjoined an execution issued by the commissioners of the Clinton and Port Hudson Railroad Company, on a twelve-months’ bond given to them by her, for the purchase at sheriff’s sale of certain property mortgaged to the Company by her husband, Moses Meeker, and herself, to secure stock and a stock loan of her said husband. The grounds of injunction are that the petitioner, though not a party to the loan, was a party to the mortgage ; that having an interest in discharging the claim, she is entitled by law to the privilege of paying nine-tenths of it in the obligations of the Company; that she has tendered to the defendants and to the sheriff ten per cent of the amount of the bond in specie, and the balance in notes and bonds of the Company, which they have refused to receive. The defendants aver that the plaintiff is their debtor by a contract with them for the purchase of property, and cannot avail herself of the privileges granted to the debtors of the corporation before its failure. The injunction was perpetuated, and the defendants appealed.

The Clinton and Port Hudson Railroad Company being desperately insolvent, its charter was adjudged to be forfeited by a decree of court, and its assets placed in the hands of the defendants, as State commissioners. If no other <lu0stions arose in this case but those apparently involved in the issue, it would present no difficulty after the decisions in Felps v. Commissioners, &c. 10 Rob. 89. French et al. v. Stanton et al. 1 Ann. R. 8. On those questions the judgment appealed from is clearly erroneous. But, on the argument, the evidence in the record suggested another enquiry, to which, as guardians of the public interest, we deemed it our duty to call the attention of the counsel in the cause and of the attorney general. That officer has appeared on behalf of the State, and asks that the sale under which the plaintiff claims be set aside and annulled. The grounds of his application will be best understood by a brief Statement of the facts of the case.

The property sold to the plaintiff had been mortgaged to the Company by her husband and herself, in July, 1838, to secure one hundred and ninety shares of one hundred dollars each, of its capital stock, and the act contained a stipulation that the mortgagor, Moses Meeker, should be entitled to a credit equal in amount to one-half of his stock, and that the same property should stand mortgaged for the loan. In 1839, the legislature, notwithstanding the well considered objections of the governor, passed an act authorising the loan of the bonds of the State to the Company for the sum of $500,000 ; the Company bound itself to pay the capital and interest of said bonds; and, in order to secure the payment thereof, pledged to the State their capital stock, with all their property moveable, immovable, and slaves, and subrogated the State to all the stock mortgages which had been executed under the original and amended charter of the Company, amounting to the sum of $750,000. These conditions having been complied with, the bonds were delivered to the Company, who have never paid the interest accruing upon them.

On the 20th July, 1840, Moses Meeker availed himself of his credit to the amount of $3,566, for which, he gave his note payable one year after date, and renewable according to the provisions of the charter. This note was not paid at maturity; and after the rendition of the judgment of forfeiture, in 1842, the commissioners instituted proceedings against Meeker upon it, and obtained judgment for the amount thereof and interest, and further that the properly-described in the act of mortgage be seized and sold under the decree. The property was accordingly sold, but no certificate of mortgage was produced by the sheriff on the day of sale, and no mention was made of the stock mortgage. The commissioners appearing to be of opinion that it was extinguished by the judicial sale, and that they were authorized to grant a release of it on the books of the recorder of mortgages; so that, if the sale was legally made, the plaintiff, who became the purchaser, now holds the property free from the stock mortgage. The question presented is, whether that mortgage was extinguished by the judicial sale; and, if not, whether the commissioners have power to grant a release .of it.

The act appointing the commissioners was passed on the 26th of March, 1842. It provides that the liquidation shall be conducted according to the provisions of an act passed for the liquidation of banks on the 14th of the same month. No express authorisation is given in the latter act to the commissioners of the banks to interfere with the stock mortgages pledged to the State, but the 24th section of the act provides that, in all matters not specially provided for., the powers, duties, and liabilities of the commissioners shall be the same as those conferred or imposed on syndics of insolvent estates. Sess. Acts of 1842, p. 34.- The stock mortgages are not, properly speaking, assets of the bank, and the section giving to the commissioners the powers of syndics has never been considered as placing those mortgages under their control.

It was argued at bar that the relation existing between the Clinton and Port Hudson Railroad Company and the State was that of debtor and creditor; and a distinction was endeavored to be drawn from this assumed fact between the situation of that corporation, and that of the property banks. The distinction is not easily perceived. The bonds of the State were loaned, and the stock mortgages given in pledge in this case, as in the others. If the act for the liquidation of banks gave no power to the bank commissioners over the stock mortgages, it can giye none to the defendants. But besides, in the act authorizing the appointment of these commissioners, the legislature have placed their intention beyond all doubt, by providing that nothing therein contained shall be so construed as to affect the right of the State to foreclose the mortgages of the stock-holders according to existing laws. Sess. Acts of 1842, p. 460.

The course adopted by the commissioners in this case not only affects the right of the State, but effectually destroys it. They have not sold, the stock debt and mortgage, which is all they would have power to do if they had any control over these claims, but, in a sale under the mortgage to secure a loan, they have considered themselves authorized to sink the whole stock mortgage. Should their powers be such as they suppose, this proceeding would still be illegal, and the only way in which the property could have been transferred free from mortgages, would have been to sell it under the stock debt and the mortgage given to secure it, that mortgage taking the precedence of the other.

The commissioners seem to have acted under the belief that the mortgage for the stock and the mortgage for the loan were of equal rank, because they were included in the same act and bore even date. This is an error. The stipulation of a mortgage to secure a loan not made, is an obligation on a condition potestative on the |>art of the debtor. Conventional mortgages of that kind do not take rank from the date of their inscription. It is not the contract itself which forms the vinculum juris, but the accomplishment of the condition. The mortgage would have remained inoperative if the credit had not been used, and it can only have effect from the date and for the amount of the loan. 2 Troplong, Hypothéque, nos. 477-480. The loan in this case, case was made more than a year 'after the State had been subrogated to the rights of the Company in the stock mortgages. Those mortgages take rank from the date of their inscription, and when property affected by them is seized for a stock loan, made after that inscription, it must be sold subject to them. The sheriff was without warrant of law to sell the property free from the stock mortgage; and the commissioners are not authorized to release it. The amount of the adjudication was less than the amount of the stock mortgage, and therefore there was no sale. No title vested in the plaintiff under the adjudication, and he cannot be required to pay the price.

For the reasons assigned it is ordered that the judgment so far as it perpetuates the injunction, be affirmed with costs, It is further ordered that the siezure be set aside, that the sale made to the plaintiff, and the bond given by her, be avoided and annulled; reserving to the defendants their rights under the judgment obtained by them against Moses Meeker.


author: Siidem,, J.

text:
    Dick et al. v. Bailey et al.
    Where a sheriff of another State, who had acquired possession and a special property in goods seized under an attachment, before issue joined in the action, without the authority .of the law or of the partios litigant, ships the goods to this State, with instructions to an agent to sell them at private sale, he will thereby divest himself of any special property in the goods, and the original owner may resume his control over them here, or they may be seized at the suit of on.e of his creditors.
    Appeal from the Fifth District Court of New Orleans, Buchanan, J.

      L. Peirce, for the plaintiffs. T. J■ Lacy, for the intervenor,
    who appealed. A sheriff who abuses his trust is answerable only to the parties injured. His sending property seized beyond the State, in his own name, cannot destroy his special property in it, nor change its ownership. Brownwell v. Manchester, 1 Pick. 132. At common law a sheriff had authority to remove beyond his bailwick property levied on. Gilbert on Distresses, pp. 49, 50. The right of property and possession was in the sheriff alone, after the seizure. 13 Johnson, 151. 4 Burr. 1563- He could maintain trespass or trover. 6 Johns. 196. 7 Cowen, 332. 8 Wend. 667.

      Plantón, on the same side.
   The judgment of the court was pronounced by

Siidem,, J.

The plaintiffs allege that Bailey, a planter and a resident in Louisiana, is indebted to them for supplies furnished to his plantation, and for which they have a privilege upon his crop; that he shipped a portion of his crop to them for the purpose of paying them, and transmitted a bill of lading, but that the cotton on its transit was taken at Vicksburg, in Mississippi, by some person unknown, and was forwarded to Payne Sy Harrison of New Orleans. They pray for judgment with privilege upon the cotton or its proceeds. Payne Sy Harrison answered that they had sold the cotton before the writ of sequestration issued, and held the proceeds subject to the order of the court; that it had been received by them as consignees under a bill of lading in the name of the sheriff of Warren county as shipper, and under a letter of instructions from that officer to sell the cotton forthwith and remit the proceeds to him. Steel, in his capacity of sheriff, intervened in the cause, alleging a property in himself acquired by the levy of a writ of attachment at Vicksburg, upon the property then on board a steamer, in the suit of Freeman v. Bailey, and his shipment to Payne & Henderson for sale on his account as sheriff. Freeman also intervened, and joined in the claim of the sheriff.- Bailey answered by confessing the indebtedness to Dick & Hill and their right of privilege, and denying the right of Payne Harrison, or any person other than Dick & Hill. The court below gave judgment against the sheriff and Freeman, and in favor of the plaintiffs.

Two questions only have been discussed by counsel: First, whether the acts done by the sheriff at Vicksburg constituted a seizure of the cotton and created a possession in the sheriff; and secondly, whether, supposing the sheriff to have seized and acquired possession, his special ownership so created was lost by his subsequent act of sending it out of the State of Mississippi to Payne Sy Harrison, with the instructions and for the purpose above stated.

The conclusion to which we have come on the second point renders it unnecessary to consider the first. We will assume that the sheriff did seize and take possession of the property under a lawful writ. The intervenor contends, and we think correctly, that a sheriff who seizes goods under lawful process acquires a special property in them, which would authorize him to maintain an action of trover against a wrong doer. It is also true that this special property is not lost if the sheriff commits the custody of the goods to a person chosen by himself, such person being considered his agent or servant. Nor are we prepared to say that even the removal of the property out of the sheriff’s bail-wick, or out of the State of Mississippi, by himself or servant, would, under all circumstances, divest such special property. Upon this' point the authority cited by the intervenor is entitled to great respect. In that case (Brownwell v. Manchester, 1 Pick. 233,) the sheriff of a county in Massachusetts attached some she'ep, removed them into the State of Rhode Island, and delivered them to two persons, chosen by himself, for safe keeping. Those persons put them in charge of a third for safe keeping, and the sheep were forcibly taken from this keeper by a stranger, who afterwards delivered them to the defendant in attachment. The sheriff brought an action of trespass against the wrong doers, and recovered. In the argument of the cause the point was expressly urged, that the sheriff had no authority to act without the State, and that as soon as the chattels were carried into Rhode Island the attachment was dissolved, and the possession of the officer became wrongful. But the court held that the special property was not so determined, and said that there was no difference, as to the authority of the officer over the goods, between carrying them just over the line of an adjoining State and carrying them into an adjoining county, which it seems, at common law, the sheriff might, in some cases, lawfully do.

But, conceding to this authority its full weight, the case before us differs in three obvious particulars. The object of removing the animals into the adjoining State might well have been their better pasturage and preservation; but there is no reason to suppose that the cotton could not have been kept as safely at Vicksburg as in New Orleans, The next point of distinction is much more important. In that case the sheriff was acting in the accomplishment of a lawful purpose, the safe keeping and preservation of the property, which was an official duty. Here the purpose was an unlawful one, and a gross violation of his official duty. Before issue joined in the cause, and even any notice of the defendant of the existence of the suit, he sent the property out of his bail-wick and State, for the purpose of selling it forthwith at private sale, and with peremptory orders to the consignee to do so. This was entirely beyond, and in violation of, his official duty and authority, and it is not pretended that the defendant and owner, Bailey, ever sanctioned the proceeding. The sheriff, then, by thus abusing his authority and vloiatiDg his official duty, became, as it would seem under the common law authorities, a trespasser ah initio. See the opinion of Lord Ellenborough, in Phillips v. Bacon, 9 East. 302, and the cases cited in Sewall on Sheriffs, 255. The third point of distinction also is material. In Brownwell’s case the trespasser who disturbed the possession of the sheriff was a mere stranger. But here the party who disputes his special ownership is a bona fide creditor, acting through the ministry of the law, and with the concurrence of the original owner.

Looking, then, to the fact that the sheriff, if he ever acquired possession and a special property, brought the goods out of the State of Mississippi without authority of the law or of the parties litigant, for the accomplishment of an unlawful purpose, we consider him as standing before us without a special property in the goods, and that the original owner might have reclaimed and resürtíed tlld control over them after they reached this State. And if he could do so we see no reason why the plaintiffs should not be allowed to subject the property to their privileges, especially when the original owner joins with them against the trespasser, and had shipped it to the plaintiffs before the attachment.- Judgment affirmed.