author: Manning, C. J.

text:
    No. 903.
    The State vs. J. P. Bott.
    A State law authorizing the police juries of the parishes to prohibit the sale of intoxicating liquors on Sunday, does not violate that clause of the constitution of theUnited States which forbids the enactment of laws impairing the obligations of contracts. Nor does it violate article 110 of the constitution of this State, which forbids the divesture of vested rights, etc.
    An ordinance.of a police jury forbidding the sale of liquors on Sunday has not for its object the enforcement of the observance of the Christian Sabbath, but is a mere police regulation, under the police power of the State for the preservation of public order; and hence is not obnoxious to any provision of the constitution of the State, or of the United States, respecting religion. Nor is such a regulation violative of the general law, or “ law of the land.”
    The title of the act known as the “ Sunday law,’’.passed by the General Assembly of 1878 (Sess. Acts, p. 135) sufficiently indicates the object of the law.
    The power to regulate and prohibit the sale of liquors, conferred by the Act of 1878 on the police juries, extends to all incorporated towns and villages, and no town will be allowed to claim exemption from the operation of the act, by assuming the designation of " city.”
    ^PPEAL from the Parish Court of East Baton Bouge. Newton, J.

      W. N. Potts, District Attorney, for the State, appellee.

      Herron, Bird & Beale for defendant and appellant.
   The opinion of the court was delivered by

Manning, C. J.

The defendant is prosecuted for openly and publicly selling intoxicating liquors on Sunday, and on conviction was fined fifty dollars. It is the first appealed prosecution under what is known as the “ Sunday law.” The General Assembly in 1878, Sess. Acts p. 135, delegated to the police juries full and plenary authority to make such regulations as they may deem proper in regard to the sale, barter, or exchange of intoxicating liquors or merchandize on Sunday, and to totally prohibit the same on Sunday, if in their judgment necessary. Yiolations of the jury ordinances, made under this Act, are to be considered misdemeanors, and the penalties are to be enforced by indictment and information, and the power thus conferred upon these juries is to extend over and apply to all incorporated towns and villages within the limits of the respective parishes.

The defendant moved to quash the information on several grounds;

1. The Act of 1878 violates section 10 of article 2 of the constitution of the United States in this, that the defendant had paid fora license for carrying on his business during the whole of the present year, and the police jury’s ordinance prohibiting it on Sunday violated a contract.

2. That it violates art. 110 of our State constitution in that it impairs the obligation of a contract, and divests vested rights, for no purpose of public utility, and without adequate compensation.

3. That it violates art. 12 of the constitution, in that it is not intended as a police or sanitary regulation, but to enforce the observance of the Christian sabbath.

4. That it is in violation of “ the law of the land,” is without public utility, and unwarrantably, unnecessarily, and arbitrarily restricts defendant in the use of his capital and the pursuit of his lawful and licensed business.

5. That the objects of the law are not expressed in its title, in this that'the title does not indicate that violations of the jury ordinance are made misdemeanors, punishable by indictment or information.

6. That the Act was intended to confer on incorporated towns and villages the power therein granted to police juries, and not to confer upon the juries power to pass ordinances affecting towns and villages.

7. That the Act is not applicable to incorporated cities, but only to incorporated towns and villages, and as Baton Eouge is a city, it is not covered by the act.

It is unnecessary in this case to consider the regulatk n of the police jury affecting any other matter than the sale, barter, or exchange of intoxicating liquors on Sunday, and we confine ourselves to that question, pretermitting any other aspect of the regulation or prohibition than that which relates to the sale, barter, or exchange of that kind of beverages. TVe shall examine the several grounds of the motion in their order.

1. The objection that regulations, such as this, are in conflict with that clause of the constitution of the United States which forbids the States passing.laws violating the obligation of contracts, has been often considered, and Cooley says; it has been invariably held that this clause does not so far remove from State control the rights and properties which depend for their existence or enforcement upon contracts, as to relieve them from the operation of such general regulations for the good government of the State and the protection of the rights of individuals as may be deemed important. It is held that all contracts and all rights are subject to this power, and regulations which affect them may not only be made by the State, but must also be subject to change from time to time, with reference to the general well-being of the community, as circumstances change, or as experience demonstrates the necessity of such changes. Const. Lim. 574.

2. The same author says that the power to make these regulations has been sustained, when the question of conflict with State constitutions, or with general fundamental principles, has been raised. They are regarded as police regulations, established by the legislature, for the prevention of intemperance, pauperism, and crime, and for the abatement of nuisances. There is no instance, in which the power of the legislature to make such regulations as may destroy the value of property, without compensation to the owner, appears in a more striking light than in the case of statutes, whereby the sale of intoxicating liquors is entirely prohibited, and the demolition and destruction even of the building used for that purpose is commanded; and it is only where, in framing such legislation, care has not been taken to observe those principles of protection which surround the persons and dwellings of individuals, securing them against unreasonable searches and seizures, and giving them a right to trial before condemnation, that the courts have felt at liberty to declare that it exceeded the proper province of police regulation. Ibid. 583.

3. This is the rock upon which'the prosecution would split, if it really existed.

The constitution of the United States forbids the Congress from making any law respecting an establishment of religion, or prohibiting the free exercise thereof. But this is an inhibition to Congress only, leaving to the State governments the whole power over the subject of religion. There are considerable differences in the various State constitutions on this subject, but the general provision of the most perfect equality before the law of all shades of religious belief, is common to all of them.

It has been frequently said that Christianity is a part of the law of the land, and while in a certain sense and for certain purposes it may be true in those States which adopted and have retained the common law, it must be remembered that system never prevailed, nor had any lodgment in this State, save the brief period between the acquisition of this country by the United States and the Act of 1805, when the criminal part of that system was in force. Mr. Justice Story said in the Girod will case that, although Christianity is a part of the common law of the State (Pennsylvania), it is only so in this qualified sense, that its divine origin and truth are admitted. Vidal v. Girard, 2 How. 198. And it has been said by another court, that Christianity was never considered a part of the common law; so far as that for a violation of its injunctions, independent of the established laws of man, and without the sanction of any positive act of the Parliament of England, made to-enforce those injunctions, any man could be drawn to answer in a common-law court. State v. Chandler, 2 Harr. 555.

Some of the States of the original thirteen had prohibitions of blasphemy, profanity and the like in force, as existing in the common law of England at the time of their separation ; and statutes of the most vigorous kind were passed in some of them, indicating with minute precision what should and what should not be done on Sunday, for example, the Blue laws of Connecticut. We have been as yet spared in this State the infliction of similar outcroppings of the spirit of Puritanism, and the same learned author already quoted well says; — the laws against the desecration of the Christian Sabbath, by labour or sports, are not so. readily defensible by arguments, the force of which all would admit. It is no hardship to any one to compel him to abstain from public blasphemy or other profanity, and none can complain that his rights of conscience are invaded by this enforced respect to a prevailing religious sentiment. But the Jew, who is forced to respect the first day of the week, when his conscience requires of him the observance of the seventh also, may plausibly urge that the law discriminates against his religion, and by forcing him to keep a second Sabbath in each week, unjustly though indirectly punishes him for his religious-belief. Const. Lim. 476.

If therefore the regulation had for its object the enforcement of the observance of the Christian Sabbath, as charged in the third ground of the defendant’s motion, it would be open to assault; but it is manifestly a police regulation. Like the prohibition of the sale of intoxicating liquors on election-day, it is a regulation under the police power of the-State for the preservation of public order. Blackstone’s definition of the police power of the State is, “ the due regulation.and domestic order of the kingdom, whereby the inhabitants of a State, like members of a well-governed family, are bound to conform their general behaviour to the rules of propriety, good neighbourhood, and good manners, and to be decent, industrious, and inoffensive in their respective stations,”.4 Com. 162 and this definition has not been improved by modern writers. An eminent judge has described it as “ the power vested in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth and of the subjects of the same.” Shaw C. J. in Com. v. Alger, 7 Cush. 84. And he adds, it is much easier to perceive and realize the existence and sources of this power than to mark its boundaries, or to prescribe limits to its exercise.

Herein lies the whole difficulty in this and similar regulations. The distinction between a regulation, made solely in virtue of the police power, and for the preservation of the public order alone, and one made for the observance of a particular day, set apart by the votaries of a particular religion for special religious purposes, is often difficult to explain or define, and must in general be left for determination in each case. The general proposition may be enunciated, that the preservation of the public morals and of public order is peculiarly the subject of legislative supervision, and whether the prohibited act is made a criminal offence, punishable under the general laws, or subject to punishment under municipal by-laws, or parochial ordinances, are questions which the legislature must decide; and Oooley on this point adds the significant caution, that “ whatever deference the constitution or the laws may require to be paid in some cases to the conscientious scruples or religious convictions of the majority, the general policy always is to avoid with care any compulsion, which infringes the religious scruples of any, however little reason may seem to others to underlie them.” Ibid. 478.

4. This ground, that the prohibition is in violation of “the law.of the land” has been considered in the discussion of the others. Mr. Webster defined this expression in the Dartmouth College case; — “ By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property, and 'immunities under the protection of the general rules which govern society.” We have endeavored to demonstrate that the regulation in question does not affect any immunity which may not be abridged or even destroyed when the interests of public order require it.

5. The title of the Act is sufficiently comprehensive. It indicates very clearly its whole purpose. No one after reading it could fail to be informed of the object of the legislation, and that is the intent of the constitutional provision upon that subject.

6. This is untenable. The phraseology of the Act — the powers thus conferred shall extend over and, apply to all incorporated towns and villages — precludes such construction.

7. The claim that incorporated cities are not subject to the Act, but only towns and villages, does not much impress us. Many towns have the same weakness for assuming a title that imports broad territorial area and large population, that some of their inhabitants have latterly developed to appropriate the grand names of historio personages, but the baptism of a legislative Act neither enlarges their dimensions nor swells their numbers. The use of the borrowed designation may be permitted for the indulgence of a pardonable vanity, but not to protect against the penalty of a violated law.

Judgment affirmed.


source: Caselaw Access Project

author: Marr, J.

license: Public Domain

text:
    No. 905.
    E. T. Walters vs. Duke, Tax Collector.
    A State tax collector has the right to appoint deputies.
    Where no seizure is made by a tax collector, it is immaterial whether the twenty days personal notice to the delinquent, required by the statute of 1879, is given, „ or not. The law requires only the fifteen days general public notice by the collector, of the places in the parish where he will be present to collect taxes, to put the taxpayers in default. After that, and only in case he seizes the property of a delinquent, is the latter entitled to twenty days personal notice previous to the seizure.
    The police jury of a parish havepowerto impose a uniform and equal license tax on all persons who pursue any particular business, or profession, and in the exercise of that right, may adopt by ordinance, the same tax on the various callings and pursuits, as that imposed by the Legislature.
    The article of the constitution requiring that the title of every act shall express its objects, does not apply to the ordinances of a police jury.
    The act of the Legislature of 1879, imposing license taxes, does not violate the constitution.
    A retail merchant who carries on business in more than one store must pay a separate license tax on each store; and if he sells liquors, etc., in less quantities than a gallon, but not less than a wine bottle, he must pay an additional license tax as retail liquor dealer.
    A license tax is not a tax on property, and hence is not affected by the limitation on the power of a parish to impose taxes on property.
    ^PPEAL from the Parish Court of Catahoula.
    <7. N. Luce and Richardson & Roa-tner for plaintiff and appellant.
    Defendant not represented.
   The opinion of the court was delivered by

Marr, J.

The police jury of Catahoula parish passed an ordinance, on the 3d March, 1879, providing that; “All parish licenses, for the year 1879, shall be the same as State licenses, except the drug licenses.”

On the 14th April, the deputy tax collector gave notice in writing to E. T. Walters, to pay, within fifteen days, his State and parish license taxes: first, “as retail merchant in store No. 1, Eront street, Troy;” second, “as retail liquor dealer,” and third, “as retail merchant in store No. 2, Back street, in Troy.” The taxes were, in each case, $15 for the State, and $15 for the parish, the whole amounting to $90.

On the 19th April, Walters obtained an injunction, prohibiting the tax collector from collecting these taxes, and from interfering with him in the pursuit of his business and occupation. On hearing, the parish judge dissolved the injunction with ten per cent special damages, and ten per cent for attorney’s fees; and Walters appealed.

The petition is mainly an argument against the constitutionality of the license tax. It is also objected that the tax collector had no power to appoint a deputy; and that no estimate was made and published of the parish expenses prior to the levying of the tax. Both these objections are disposed of by the admission, on the trial, that the notice of fifteen days to tax and license payers was published according to law; also, that the estimate of parish expenses was published for more than thirty days prior to the levying of licenses for 1879, as shown by the ordinance.”

We decided at New Orleans, in a case which seems not to have been reported, that the tax collectors had the right to appoint deputies; but that is not material, since the only act done by the deputy'in this case seems to have been the giving of notice to Walters personally, requiring him to call at the office of the tax collector, within fifteen days, and to pay his license taxes.

The act of 1877, p. 146, sec. 52, requires the tax collector to give fifteen days notice of the places in his parish at which he will be present for the purpose of collecting, from all persons, the taxes due by them. In default of payment, this section authorized the collector to proceed by seizure after ten days written demand.

The statute of 1879, No. 27, p. 44, sec. 4, requires the tax collector to give twenty days notice to delinquents, at the expiration of which, if the tax or license should not be paid, he shall proceed to seize and to sell after ten days advertisement.

The admission in this case is that the general notice of fifteen days was published according to law. On the publication of this notice, it is the business of the taxpayers to repair to the places designated, and to pay their taxes and licenses. The personal notice of ten days, required by the act of 1877, twenty days now, by the act of 1879, is that which must be given to the delinquent before the collector can seize and sell his property. As there was no seizure, it is wholly immaterial whether the personal notice to Walters was given by the proper officer, or whether the time mentioned in the notice, fifteen days, was sufficient. If the tax collector had seized, on that notice, the taxpayer might have enjoined, since the act of 1879 requires twenty days notice before seizure and ten days advertisement before the sale.

The act of 1879, makes it unlawful for any person to pursue his profession or business, without having paid his license tax; and it requires the attorney representing the State, on written notice given to him by the collector, to enjoin any person from transacting his business until the license tax shall have been paid.

No law requires any written or printed notice to taxpayers individually, except where, after the fifteen days general notice, they are delinquent; and the personal notice is the prerequisite to the seizure and sale by which payment may be enforced. The general public notice of fifteen days suffices to put the taxpayers in default; and it is the prerequisite to the subsequent proceedings, whether by injunction or by seizure and sale.

If anything can be settled by judicial interpretation and decision, it is settled that the legislature and the police juries in the parishes, and municipal corporations, have power under the constitution to tax professions, pursuits and occupations, that is, to impose the license tax. This tax, like all other taxes, must be equal and uniform: that is all persons who pursue any given calling, must pay precisely the same license tax; but all pursuits or professions are not taxed alike. In this case-the tax is that imposed on all retail merchants, and on all retail liquor dealers; and it is, therefore, equal and uniform in the sense of the law.

It is objected that the police jury had no power to adopt the license taxes imposed by the act of 1879. We see no reason why the police jury should not impose precisely the same tax as that imposed by the legislature; nor can we imagine any possible objection to the action of the police jury in adopting, by ordinance, the same rates for the several pursuits and callings, as those specified in the act of the legislature, without repeating and reenacting them in the ordinance.

The constitution, art. 116, does, as urged by plaintiff, forbid the General Assembly to adopt any system or code of laws by general reference; but we do not see what application this can have to the action of the police jury in this case. The prohibition is addressed to the General Assembly, not to police juries; and the thing forbidden is the adoption of any system or code of law's. The adoption by the police jury of the license taxes imposed by the act of the legislature violates ¡no article or principle of the constitution; and it is as obligatory as if the act had been incorporated in the ordinance.

It is also objected that the ordinance is violative of the constitution in that it has no title to express its objects; and it is urged that the title of the act of 1879 does not express its objects.

The constitution, article 114, does provide that “ every law shall express its object or objects in its title;” but this article relates exclusively to “laws” enacted by the legislature, not to the “ ordinances” of police juries or municipal corporations.

The title of the act is, “An act to impose a license tax upon trades, professions and occupations for the benefit of the general fund, and to provide punishment and penalties for violations of the same, and to repeal Act No. 26, of the extra session of 1878, approved April 27,1878, and knpwn as the “ Moffett register law.”

We fail to discover anything in the act that is not expressed and indicated in the tit’e; and we do not see that it violates the organic law in any respect. The license tax imposed by this act on retail merchants and on retail liquor dealers is §15. Section 1, paragraphs 2,10. The phraseology of paragraph ten shows that the retail merchant cannot retail liquors without paying the liquor dealer’s tax. It imposes this as an additional tax on “ all retail dealers or grocers selling distilled liquors, etc., in less quantity than one gallon, but in no less quantity than an ordinary wine bottle.”

Paragraph 24 of section 1, of the act of 1879, p. 43, provides that “ every person having more than one shop, store or other establishment, or who shall exercise or follow more than one profession, trade, calling or business, shall pay the tax on each separately.”

This is copied literally from paragraph 27, section 1, of the act of 1872, p. 52. Under the dominion of this law, Willis Holmes had paid the license tax as a retail merchant; and he claimed the right to retail drugs and medicines, which he did not compound, without paying the license tax imposed on druggists. Our predecessors decided that he was liable to both taxes. 28 An. 765. In a recent ease at New Orleans, we decided that a bank engaged in the usual banking business, and which. also made loans on deposits and pledges of jewelry and other valuables, was liable to the license tax imposed on banks in general, and also to that imposed on pawnbrokers.

It is urged by plaintiff that the license tax, when added to the property tax, exceeds the limit of parochial taxation. But constitutions, legislation and jurisprudence have settled the principle that the license tax is not a tax on property. The tax on property, under our law, is a certain percentage on valuation; and the license tax is a sum imposed on the pursuit or profession, irrespective of values. The limitation on the parochial power to tax relates solely to the tax on property; and it has no application whatever to the license tax.

The constitution confers the power to tax professions and occupations; and it imposes no restriction on that power, except the general one, applicable to all taxes, that they must be equal and uniform. The license tax must be imposed alike on all falling within the different classifications, respectively, of professions, etc., taxed. All persons who pursue the business of retail merchants must pay the same license tax. All retail merchants who choose to have more than one store must pay a separate license tax for each; and all retail merchants who choose to sell liquors, etc., in less quantities than a gallon, but notless than a wine bottle, must pay the additional license tax, as retail dealers, prescribed by the statute. This is strictly in accordance with the law of equality and uniformity, and with the spirit and intent of the constitution.

We find no error in the judgment appealed from; and it is affirmed with costs.


author: DeBlanc, J.

text:
    No. 907.
    Mrs. L. Virginia Vickers vs. Block, Britton & Co. et al.
    A valid judgment of separation of property in favor of a wife is retroactive, and takes effect from the day the wife filed her demand for a separation,
    A judgment of separation of property, which has been duly advertised, may be partly valid, and partly invalid; valid as to that part which decrees a dissolution of the community, and authorizes tho wife to resume the administration of her paraphernal effects, and invalid as to that part which decrees an indebtedness of the husband to her.
    In order to maintain a suit for separation of property, it is not essential that the husband should be indebted to the wife, or that she should own any property ' in her own right. A judgment of separation noed only decree a dissolution of the community, and tho wife’s resumption of the administration of her own effects, and the issuance of an execution is not necessary to the perfection of such a judgment.
    The title to real estate, (which stands recorded as tho property of the husband and a former partnor of his) acauirod by tho wife (who is separated in property.) at a sheriff’s sale, is null and void as to creditors of the husband and partner, who seized it before the sheriff’s deed to tho wife was recorded.
    A sale of property by one who is not the owner, conveys no title whatever to the purchaser.
    A simulated sale of property is absolutely null and void, and any judgment creditor of the owner may seize and sell the property in the hands of the pretended purchaser.
    ,1 PPEAL from the Fourteenth Judicial District Court, parish of RichOl land. Parsons, J.

      Wells & Williams, and Richardson & McJEnery for plaintiff and appellee.

      P. II. Toler, M. J. Liddell, and Richardson & Boatner for defendants and appellants.
   The opinion of the court was delivered by

DeBlanc, J.

On the 6th of November, 1873, plaintiff sued her husband for a separation of property, the dissolution of the community then existing between them, and to be authorized to resume the administration o£ her paraphernal effects.

On the 11th of September, 1874, judgment was rendered in favor of plaintiff, recognizing her as the owner of the silverware and household furniture claimed by her, dissolving the community which existed between her and her husband, and authorizing her to resume the administration of her paraphernal property.

That judgment — if valid — was retroactive as far back as the 6th of November,‘1873, the day on which plaintiff filed her demand for separation of property. C. 0. 2432 (2406).

After the filing of her demand, Mrs. Vickers purchased three lots of ground, one from Varner, on the 29th of August, 1874, another from Edwards on the 5th of March, 1875, and the third one at a sheriff’s sale, on the 4th of April, 1876. The evidence of the two first mentioned sales was recorded as prescribed by law — and the other merely deposited in the clerk’s office.

On the 27th of October, 1873, Block, Britton & Co., the defendants in this suit, obtained judgment against Henry E. Vickers — plaintiff’s husband — and H. Rush, for two thousand eight hundred and forty nine dollars, with four per cent interest thereon from the 15th of November, 1872, subject to a credit; and — on the 1st of November, 1877, caused a writ of fieri facias to issue on said judgment. Under that writ, the sheriff seized and advertised for sale the three lots of ground already referred to, which Mrs. Vickers claims as belonging to her, and the intended sale of which she has enjoined.

Defendants in injunction contend that Mrs. Vickers’ judgment against her husband is a nullity, for the reason — as they allege — that it was rendered on insufficient evidence, by consent of the parties, and that it was neither published nor executed.

That judgment — as we have said — recognized Mrs. Vickers as the owner of household furniture and silverware, which have not been seized, and so far as the creditors are concerned, it matters not that they are vaguely described in her own petition and in the decree. They do not claim any right which can be prejudiced by that description.

As to the evidence on which that judgment was rendered, it is that she owned and brought to her husbands’s home furniture and silverware valued by her witness at from fifteen to sixteen hundred dollars, and — to that extent — it stands uncontradieted; and that, at or prior to the date of her suit against her husband, she had on deposit, in the Louisiana National Bank of New Orleans, nearly seven thousand dollars, which were withdrawn by her twenty days after the institution of her suit. Neither she nor any witness examined on the trial has satisfactorily established her title to that deposit. She declared that she had sold property belonging to her, but to whom and for what price, did not tell — that she had inherited the money, and it had been given to her by her relations — her father, mother, sisters and brothers — not one of them was called as a witness, and she could not remember how much she had received from any one of them — nor was it shown when and by whom the deposit was made.

This — however—does not affect the validity of the qualified and restricted judgment which she obtained against her husband, which was duly published, and which — partly at least — was not susceptible of any judicial execution — and, here, we refer to those clauses of the judgment which dissolved the community and authorized Mrs. Vickers-to resume the administration of her separate and paraphernal property.

In “Joyce Holmes vs. Barbin,” Mr. Justice Spofford said — as the organ of the court: “The wife merely desired to have her right to a se'parate administration of her paraphernal property recognized, and the community dissolved, on account of the disorder of her husband’s affairs. This she obtained, and the record does not authorize us to hold that any writ of execution could have effected more than was effected by the simple judgment duly advertised.

13 A. p.p. 474, 475; ante p, ■ — .

In the dissenting opinion read by Mr. Justice Spencer, in Kirkpatrick vs. Finney & Byrnes, and — in that part of his opinion to which there neither was nor could be any dispute, he said: “ In order to maintain her suit for a separation of property and dissolution of the community, it is not essential that the wife should be the owner of separate property, or that the husband should be indebted to her. It is now settled that where his affairs are so disordered and his financial embarrassments so great, as to render any earnings or acquisitions of the wife by her own industry insecure, that she may maintain such suit.

“A wife’s judgment may — therefore—be good so far as it operates a separation of property and dissolution of community — and bad so far as it establishes title to specific property or indebtedness on the part of the husband.”

30 A. p.p. 225, 226.

Article 2425 (2399) of our Code was copied from the Napoleon Code, and — in'his commentaries on the latter — Marcade said : “ Ainsi, alors méme qu’il s’agirait d’une femme qui n’a rein apporté en se mariant et a laquelle il n’est ríen échu depuis le mariage, l’administration ruineuse du mari n’en devrait pas moins faire prononcer la separation. Cette femme, en effet, a intérét a s’assurer la conservation de sa moitié dans ce qui reste encore de la communauté que dissipe le mari. Que s’il n’y a pas de biens communs, elle peut avoir un talent, une industrie, dont le produit, aprés la separation, lui donnera des ressources pour elle et ses enfants, tandis que le mari, tant que dure son administration, peut tout perdre et engloutir. Et quand memo enfin cette femme ne serait en ótat de rien gagner par son travail, ne peut-elle pas dans quelques jours, recevoir des donations ou des successions qu’il lui importe de sauvegarder ?” Marcadé, vol. 5, pp. 581, 582.

So far as it decrees a separation of property, and the dissolution of the community heretofore existing between Mrs. Yiekers and her husband, and authorizes the former to resume the administration of her paraphernal property, the record fully sustains the validity of the decree of the 11th of September, 1874.

Mrs. Yiekers could — after its rendition — buy in her own name and with her own funds. She bought — that is shown by the acts introduced in evidence — three lots of ground. The sale from the sheriff to her, of the 4th of April, 1876, was not recorded, when the property,thus sold was seized by the creditors of her husband and of his former partner, whose title to said property was alone of record, and it is clear that— as to said creditors — the-sheriff’s sale upon which she relies was — in the words of the law — utterly null and void. Rev. Statutes, sec. 8189.

It matters not that the same property was — before the seizure— transferred by Edwards, who had no title to it, to Mrs. Yiekers, and that the deed passed between them has been recorded. The sale of a thing belonging to another person is null — C. C. 2452 (2427) — and it cannot be successfully contended that the recording of such an invalid sale can — as regards creditors — protect a valid title subsequently acquired and not recorded. Mrs. Yiekers herself was convinced of that fact, and did not hesitate to purchase — at the sheriff’s sale — the property to which Edwards — his vendor — neither had, nor could transfer a title.

The two other lots were sold to Mrs. Yiekers by Edwards and Yarner. The sales are assailed by her husband’s creditors as being fraudulent and simulated.

Mr. Yiekers sold to Edwards, a nephew of his wife, for $1960, on credit, a lot situated in Rayville. He sold him the whole lot, though he owned but one half of it, and it was his partner’s half in the same, which his wife bought at the sheriff’s sale. Mrs. Yiekers’ nephew sold to Parker, a gardner, employed by a brother-in-law of Mrs. Yiekers, for $2501, and on credit, the lot which he had purchased from Mr. Yiekers, and with the intention — he said — of raising commercial paper with which to transact his business. Parker had no means, and — as a matter of course — his notes could not be disposed of. He retroceded the lot to Edwards, and — on the very day it was retroceded — Edwards sold it to his aunt — Mrs. Yiekers — who paid him with'the notes which he had subscribed in favor of Mr. Yiekers, as the price of said lot. Those notes — Mrs. Yiekers declared — had been bought by her from her sister, who died at her house. How they passed into her sister’s possession, we are not informed.

As to'the third lot, Mrs. Vickers alleged — in her petition, and — to obtain her injunction — swore that she had purchased it from one Varner. On the trial, she swore that she had purchased it from Lott Chapman, who was dead at the date of the trial, and who — for several years— had been Mr. Vickers’ clerk. Varner testified that he had sold that lot to Iler, and Iler to Vickers — that no deed was passed of the sale from him to Iler, from whom alone he received the price of the sale, and who asked him to make a title to Mr. Vickers. He — thereafter—transferred the lot to Chapman, but the act of transfer to Chapman was returned to him by Mr. Vickers, who asked him to sell to Mrs. Vickers. He did so.

Iler corroborated the declaration of Varner, and — in addition— testified that he had sold the.lot to Mr. Vickers, in payment of a debt due him — the amount of which he did not mention — but which he had contracted before his — Mr. Vickers’ — marriage. Mr. Vickers — he said— was owing Lott Chapman, but how much ? He was not asked and did not tell. It was to that deceased clerk that Mrs. Vickers testified that she had paid the six hundred dollars, which — in the act of sale from Varner to her, he acknowledged to have received from her.

The trails of simulation can never be completely obliterated, and two of the acts on which Mrs. Vickers bases her demand bear the impress of those characteristic trails. They are not supported by a single substantial probability, and — were we to admit that she had the means to buy — we would, nevertheless, be compelled to hold that the deeds from Varner and Edwards to her are but empty forms, which — it is evident — are without even a tinge of reality. As to the sheriff’s sale, it was not recorded, and the title to the property adjudicated to Mrs. Vickers, at that sale, still appeared of record as belonging to her husband and his partner, when that property Was seized to satisfy a judgment rendered against them.

We are told that, if the property does not belong to Mrs. Vickers, it belongs to Varner, Edwards, or the succession of Chapman, and not to Mr. Vickers. We believe otherwise. But be this as it may, those pretended owners are not before us, nor have they authorized plaintiff to enjoin the execution of the writ issued on the creditors’ judgment.

To protect their rights, defendants have had to employ counsel and incur expenses, and they are certainly entitled to a portion of the damages which they claim.

It is — therefore—ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed; and — proceeding to render such judgment as should have been rendered by the lower court,

It is further ordered, adjudged and decreed that plaintiff’s injunction is dissolved, the sales from John R. Edwards and George H. Yarner to her, passed — the first, on the 5th of March, 1875 — the other, on the 29th of August, 1874, declared to be simulated, and the property seized by the sheriff of the parish of Richland subject to the enjoined seizure.

It is further ordered, adjudged and decreed that defendants recover —as damages — from Mrs. L. Virginia Yickers and Geo. M. Moseley, G. A. Maes and I. L. Bois — the sureties on her injunction bond — the sum of two hundred and fifty dollars and the costs in both courts.


author: White, J.

text:
    No. 916.
    W. H. H. Mullin & Prewitt McGowen vs. B. Hart, Sheriff.
    A third possessor of property who has bought it subject to a mortgage containing the pact de non alienando, and who has assumed the payment of the mortgage debt as a part of the purchase price, can not enjoin the executory proceedings of the mortgage creditor, on the ground that he had paid, under a special agreement with the creditor, usurious interest to the latter, and hence that all interest was forfeited, which would have applied the payments made on interest account to the principal, and thus extinguished the debt. Nor can such an injunction found on the ground that the excess of interest paid over and above that allowed by law, should have been credited on the principal of the debt, and thus made the sum due less than that claimed in the executory proceedings.
    An action for the recovery of usurious interest is prescribed by one year from its payment.
    APPEAL from the Fourteenth Judicial District Court, parish of More-house. Parsons, J.

      Todd & Brigham for plaintiffs and appellants.

      Franklin Garrett and Newton Hall for defendants and appellees.
   The opinion of the court was delivered by

White, J.

Benjamin Hart sold on the 16th January, 1873, certain real estate to one Locke, and took as evidence of the credit price a note of Locke for $2100, payable twelve months after date. Locke subsequently sold the property to Mullin & McGowen, who as part of their purchase price, assumed the payment of the note of Locke, purchased as above stated. On the 31st of July, 1877, Hart, as the holder of the original note of Locke, identified with the act of sale to Locke, which contained the clause de non alienando, obtained an order of seizure and sale to enforce tne sum remaining due on the note, stated in the plead-ings to be $431, with eight per cent per annum interest thereon from 10th October, 1876. Mullin & McGowen,- as third possessors of the property covered by the writ of seizure and sale issued against Locke, enjoined on the grounds—

First — That the parish court from which the writ issued was without jurisdiction ratione materia.

Second — That certain credits had not been allowed, which reduced the note about one hundred dollars below the sum claimed.

The parish court perpetuated the injunction; the issue was taken to the district court, where the decree of the parish court was reversed and the injunetion.dissolved. From this decree the present appeal is prosecuted.

First — The question of the jurisdiction of the parish court has been abandoned by counsel in consequence of the opinions in Newman Bros, vs. Cuney, 30 An. 1201, and in Decker vs. Frankenberger, 30 An. 410.

Second — The sole question then before us is the quantum of credit allowed.

As presented by the briefs of counsel and proof, although not Inj the pleadings, the increase of credit results from a claimed charge of usury. It seems that by agreement between the holder of the note and the third possessors of the mortgaged property, the latter paid twelve per cent interest in consideration of the forbearance of the former. That the payments of the amounts were regularly credited on the note; the interest for the purposes of the credits being computed at eight per cent, although twelve per cent was paid. The contention of plaintiffs is that this payment of four per cent additional entails the forfeiture of all interest, and that the sums paid as such should therefore be credited on the principal, leaving nothing due. That if not so, the sums paid as interest over and above eight per cent should be imputed to the principal, thereby reducing the debt from $431, as claimed, to $346 47. We think the propositions untenable. The contract sought to be enforced is the original sale between the plaintiff and defendant .by the proceedings via executiva, and there is not even an intimation that such contract was remotely tainted with usury. The usury, if any is shown by the proof, results from a contract other than the one sued on, and not a necessary part of it. Norwood vs. Waddell, 11 L. 493.

Even however were this not the case, it is obvious that the demand of plaintiffs in injunction when analyzed reduces itself to an action for the recovery of usurious interest paid. The executory process issued not against them but against Locke, not to enforce any obligation they may have assumed as between themselves and their vendor, but to compel the execution of the primordial contract between Locke and the defendant in injunction; hence necessarily not against the plaintiffs in injunction, who instead of being defendants are purely actors seeking to frustrate the enforcement of a legal contract by indirectly claiming as plaintiffs a sum by them illegally paid as usurious interest on a distinct agreement. Under this condition of things the pleaded prescription is applicable. 6 A. 470; 18 A. 712; 24 A. 156; 26 A. 23.

We do not think this a proper case for the allowance of damages for a frivolous appeal, but we consider there was error in not allowing the special damages for counsel fees on the dissolution of the injunction.

It is therefore ordered, adjudged and decreed that the judgment of the district court be so amended as to condemn plaintiffs and their surety, John Jones, to pay in solido the sum of forty dollars as counsel fees; and that in all other respects the judgment be affirmed with costs.


author: Manning, C. J. Mare, J.

text:
    No. 813.
    R. T. Jennings et al. vs. H. F. Vickers et al.
    An exception, which if maintained, will terminate the suit, ought to be tried and decided in limine.

    A mortgage is not negotiable, in the sense of the commercial law, although it be given to secure a negotiable instrument, and if it has been extinguished, or for any cause has ceased to be a subsisting obligation, so that it could not be enforced by the mortgagee, then it cannot be enforced by any transferee of his, especially to the prejudice of a third possessor of the property on which the mortgage rests, who has paid the price of the property to the mortgagee, extinguished pro tanto the mortgage debt, and obtained from the mortgagee an order on the Recorder of Mortgages to cancel the mortgage.
    ■Whore the transferee of a mortgage, which covers three different parcels of ground in the possession of three different persons, forecloses on two of the parcels, which sell for enough to pay his whole debt, and fails to enforce the sales, but by agreement with the possessors of the two parcels allows second sales to bo made which do not realize the amount of his debt, he cannot afterwards proceed for the residue of his debt against the possessor of the third parcel of ground covered by the mortgage, who has bought the land in good faith, paid its purchase price, and to that extent, by special agreement with the mortgagee, extinguished the mortgage.
    APPEAL from the Fourteenth Judicial District Court, parish of Rich-land. Bay, J.

      W. W. Farmer and Biehardson & JBoatner for plaintiffs and appellees.

      P. H. Toler and M. J. Liddell for defendants and appellants.
    The opinion of the court on the original hearing was delivered by Manning, C. J., and on the rehearing by Mark, J.
   Manning, C. J.

The transcript in this case is so voluminous, the pleadings so prolix, and the issues sought to be presented so numerous and contradictory, that the patience and industry of the' Court has been severely taxed in its examination. The issues necessary to be decided are few and simple, and can be embraced in a narrow compass.

The plaintiffs — R. T. Jennings, John Chaffe, Brother & Son, and Chaffe & Bell, assignees of Winston Morrison & Co., bankrupts — join in an hypothecary action against several defendants for the enforcement of a conventional mortgage executed by H. E. Yickers in favor of Winston Morrison & Co., of date 1st October, 1872.

No defence was opposed to the action by any of the defendants except Mrs. Mulhern.

• The following is an accurate and brief statement of the facts disclosed by the record:

EL E. Yickers, being indebted to Winston Morrison & Co., executed in their favor on 1st October, 1872, a conventional mortgage on his property situated in Richland parish, the debt thus secured being evidenced by three promissory notes for $12,650 each, due respectively 1st of January, 1873,1871 and 1875, with 8 per cent per annum interest from date, which mortgage was duly registered in the Recorder’s office of Richland on the 1st day of October, 1872, the day of its execution, the property now in possession of Mrs. Mulhern and sought to be subjected to this mortgage being fully described therein. It appears that there was a verbal agreement between Yickers and Winston Morrison & Co. that in case the former could sell any of the mortgaged property the latter were to receive the purchase price and cancel the mortgage upon the property sold.

On the 5th of July, 1873. W. Morrison & Co., the successors and liquidators of Winston Morrison & Co., pledged to R. T. Jennings, as collateral security, one of the Yickers notes — that due 1st January, 1871. On the 25th of August following they sold to John Chaffe, Brother & Son another of the notes. The third note was surrendered as part of their assets in bankruptcy and was sued on herein by their assignees.

On the 12th of August, 1873, H. E. Yickers sold to P. S. Mulhern the lands upon which this mortgage is now sought to be enforced. Hiram Morrison, of the firm of W. Morrison & Co., was present,received the purchase price, which is credited to Yickers on the note sold to Chaffe, and signed an order directing the Recorder to cancel the mortgage upon the lands sold.

This order, with the deed from Yickers to Mulhern, was presented to the Recorder by Morrison and Mulhern for record. That officer refused to cancel the mortgage as requested, assigning as a reason that he had no authority to do so, unless Mr. Morrison could produce the notes. Since he could not do this, both documents were left with the Recorder by Mulhern and Morrison, the latter promising to send up the notes as soon as he reached New Orleans, on receipt of which the mortgage was to be cancelled and the deed recorded, Mulhern stating he would not pay for the deed unless the mortgage was cancelled.

Morrison, on reaching New Orleans, instead of sending up the notes as promised, gave credit upon one of them for the notes received from Mulhern and negotiated it to John Chaffe, Brother & Son, without notice of the transaction above related. The note due 1st January, 1874, having been previously pledged to B. T. Jennings.

Yery soon afterwards Mr. Mulhern died, and his wife having qualified as administratrix of his estate, this suit was brought against her. The original mortgage from Yiekers affected three several pieces of property; one of which at the institution of the suit was in possession of H. E. Yiekers; one of W. W. Farmer; and one of Mrs. Mulhern, who are the three defendants. The suit was filed 11th October, 1875. On 26th of March following, Jennings, with consent of Morrison, sold his note to John Chaffe, who also subsequently purchased that sued upon by Chaffe & Bell, assignees. *

The defendant in her answer filed October 26th, 1875, urges as her defence that the mortgage herein sought to be enforced, was in effect cancelled and extinguished by the order of 12th August. That Morrison & Co. were the owners of the notes at that time, and the present holders having acquired subsequent, by and with knowledge of this transaction, are bound thereby. She propounds interrogatories to Chaffe and Jennings to prove this defence. Jennings answers that he held the note prior to the sale to Mulhern (acquired it 5th July), and knew nothing of any agreement with Yiekers or Mulhern. Chaffe answers that he acquired the note held by him on 25th August, but without any knowledge of Morrison’s promise to have the mortgage cancelled. The defendant thereupon filed an amended answer, and called in warranty H. F. Yiekers. On the 17th of September, 1877, she filed an exception, in which she urged the dismissal of the action upon three several grounds, Viz: That Farmer, being one of the defendants, could not represent the plaintiff; that the plaintiffs are all really acting in the interest of the defendant Yiekers, who is charged with being the owner of the notes, and the sole person interested in prosecuting this suit; and that there is a misjoinder of parties.

The court tried the exception, but did not decide it. It is not easy to see why, since time had been consumed in trying it. The exception was tumbled into the omnium gatherum, yclept the merits — a practice which not infrequently wastes time and labour. An exception, which if maintained, will terminate the suit, ought to be tried and decided in limine.

Jennings held his note as collateral, and subsequently sold his interest in it, and the suit upon it, to Chaffe, who at length became ,the owner of the interests of the assignees in bankruptcy of W. Morrison & Co., and of the other members of the Chaffe firm. When interrogated specially upon the nature of his purchase of these three several interests, he answers that it was an absolute purchase,-and that he was subrogated to all their rights.

There were judgments against H. E. Vickers upon which executions issued, and at the sale one of the plantations was bought by Mr. Farmer, as attorney of the plaintiffs in execution, for $3,7U0, and another was bought by Vickers’ wife for $33,711, and these two bids were sufficient to pay the special mortgage which is now sought to be enforced. The bids were not complied with. The property was not offered a second time at their risk. If these bids had been complied with, the Mulhern property would have been free from mortgage, and Mrs, Mulhern could never have been pursued for any part of the demand now made upon her. The whole debt would have been extinguished.

While matters were in this condition John Chaffe went from New Orleans to the plantation where Vickers and his wife lived, taking his attorney with him. It is insisted by Mrs. Mulhern that the result of that conference was an agreement that Mrs. Vickers should be released from liability for her bid of over $33,000, and that-the property should be again exposed for sale, should be bought by Chaffe, and then should be resold to Mrs. Vickers (who is separate in property) for a price agreed on. A resale was had in the same year, when the plantation which had been adjudicated at $3,700 on the previous sale, was now bought by John Chaffe for $4,400, and that which had been adjudicated at $33,700 was now bought by the same purchaser for $4,000. The place bought by Mr. Chaffe’s lawyer at the first sale brought an advance of seven hundred dollars, and the place bought by Mrs. Vickers at the first public auction suffered a diminution of $29,700, and this in a few months. In the next month after this purchase by Chaffe, he sold to Mrs. Vickers the place she had bought at the first sale, for $14,572.28.

Chaffe could have held Mrs. Vickers to her bid of thirty three thvusand dollars, and that, with the bid for the other place, paid the mortgage debt. Both his and Mrs. Vickers’ conduct afterwards shew there was an agreement by which she was released by Chaffe from paying her bid, and the arrangement was then entered into, under which the second sheriff’s sale was had, the purchase was made by Chaffe at a price so low as to leave a large margin to cover the Mulhern plantation, and immediately afterwards, before the new year’s planting operations began, he sold to Mrs. Vickers for an advance over his own bid of ten thousand five hundred and seventy two dollars. He was entirely at liberty to remit to Mrs. Vickers any debt she owed him. If he thought it more prudent as a business man not to pursue Mrs. Vickers for the sum she had become apparently liable for, and instead, to agree privately with her on a solution of the complication, such as that subsequently carried out, he had the unquestionable right to do with his own as he willed.

But he cannot do this to Mrs. Mulhern’s injury. He cannot at his. own option change the victim to be sacrificed, and loosing the bands which bound the one, avert the knife from a prostrate Isaac, and plunge it instead into the heart of the lamb which 'he has dragged from the thicket of mortgages in which‘it was entangled. Mrs. Mulhern has been released by his release of Mrs. Yickers.

The lower court held otherwise.

It is ordered, adjudged, and decreed that the judgment of the lower court is avoided and reversed, and that the defendant Mrs. Mulhern have judgment against the plaintiffs on their demand and. for the costs of appeal, and her costs in the lower court.

On Application fob Reheabins-..

Mare, J.

The mortgagor, Yickers, with the consent of the mortgagees, Winston Morrison & Co., sold to Mulhern part of the land mortgaged. The mortgagees received the entire price; and they gave-an order, in writing, to the recorder, to cancel the mortgage so far as it bore upon this part of the land. This was not done because the mortgage notes were not presented to the recorder. The mortgagees promised to send the notes to the recorder, but failed to do so. They credited the price paid by Mulhern on one of the Yickers’ mortgage notes, which they afterwards endorsed specially and delivered to Chaffe, Brother & Son in part payment of a debt.

The recorder retained the order to cancel from the day of its date, 12lh August, 1873; and he finally recorded it, in the book of mortgages, under date 4th September, 1875, and made a pencil memorandum in-the margin of the record of the Yickers mortgage, referring to the book and page of the record of the order to cancel.

There were three mortgage notes given by Yickers, to the order off Winston Morrison & Co., each for §12,650; payable, respectively, May 1, 1873,1874,1875. In July, 1873, the note maturing 1st May, 1874, was delivered to R. T. Jennings, endorsed by the payees and by W. Morrison & Co., their successors, with other notes, as collateral for a debt of §8400, which they owed him. The note payable ^st May, 1875, was. the one endorsed to Chaffe, Brother & Son, with the credits on it, and the one payable 1st May, 1873, W. Morrison & Co. retained until it passed to their assignees in bankruptcy, 16th June, 1874.

A mortgage is not negotiable, in the sense of the commercial law? and whether it be transferred by separate assignment, or merely as accessory to .the negotiable note secured by it, the transferee has no greater rights than his transferror had at the date of the transfer. If the mortgage has been extinguished, or for any cause has ceased to be a subsisting obligation, so that it could no longer be enforced by the mortgagee, it cannot be enforced by the transferee. See Schmidt vs. Frey, 8 Rob. 435; Bowman vs. McElroy, 14 An. 587; Doll vs. Rizotti, 20 An. 264.

If this be true with respect to the mortgagor, with how much greater force must the rule apply to the third possessor, who has > paid the price of his purchase to the mortgagee, extinguished, pro tanto, the mortgage debt, and obtained from the mortgagee an order to cancel the mortgage.

The two notes payable 1st May, 1873, and 1st May, 1875, passed from the possession, and ownership of the mortgagees after the order to cancel had been delivered by the mortgagees to the recorder; and the mortgage, with respect to them, was extinguished on the 12th August, 1873, so far as it bore upon the land sold to Mulhern.

The note held by J ennings was specially endorsed to him. or his order. Jennings delivered it without endorsement to Ohaffe, long after its maturity, and during the pendency of this suit. Ohaffe did not acquire it, therefore, in the usual course of business, before maturity, without notice. When J ennings, with the consent of Morrison, sold the note to Ohaffe, or rather, his interest in the suit then pending on the note, the extent of his right and interest”was fixed at 54200, the price paid him by Ohaffe; and Ohaffe had no right to enforce the mortgage as against the land sold to Mulhern, except to the extent of the 51200; and interest from the 23d March, 1876, the date of the payment by him to Jennings, upon the hypothesis that he succeeded to all the rights of Jennings.

But the property mortgaged to secure all the notes, which was not sold to Mulhern, had been sold, at the second sale by the sheriff, part to Farmer for 51000, and the remainder, nominally to Ohaffe, but in reality to Mrs. Tickers, for 511=572, making in all 518,572, to be applied to each of the three notes owned by Ohaffe. There were large credits on the notes which matured in May, 1873, and May, 1875. But applying the total proceeds to the three notes equally, the portion to each would be 56190, which extinguished the amount due Ohaffe on the note which he acquired from Jennings, the only one of the three which could have been enforced against the property sold to Mulhern, under the most favoraole hypothesis for Ohaffe.

The rehearing is therefore refused.


text:
    No. 951.
    W. C. Williamson vs. T. P. Richardson, Sheriff, et al.
    A decree dissolving an injunction, on the ground that it was not accompanied by the bond reauired by law, cannot be pleaded as res adjudícala in a second injunction issued with bond by the same plaintiff,' ior the same causes oí action.
    The service of the notice oí seizure and sale by a deputy sheriff who is a minor, cannot be availed oí by the defendant in an executory proceeding as a ground for enjoining the proceeding. That would be to allow, in effect, the validity of the appointment of a ministerial officer to be attacked collaterally, which is not permissible.
    A vyrlt of seizure and sale, although issued nominally only against the mortgaged premises, includes, without any particular specification of them, all things on those promises which are immovable, either by nature, or by destination.
    It is not necessary for the sheriff to advertise and sell mortgaged property, seized under executory proceeding, in lots or tracts of not less than ten, nor more than fifty acres. Such property is properly advertised'and sold in block.
    The crop growing on mortgaged premises is a part of the realty, and the owner of the premises, when they and the crop are seized under a writ of seizure and sale, has no standing to set up a privilege on the crop, alleged to exist in favor of a third person.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Parsons, J.

      Cobb & Qunbij for plaintiff and appellant.

      B. W. & B. Bichardson and Bichardson & Boatner for defendants and appellees.
   The opinion of the court was delivered by

White, J.

The executors of J. P. Crosley having obtained an order of seizure and sale, the plaintiff enjoined on substantially the following grounds:

1.That the notice of the order of seizure and sale, which by law must precede the writ and be served before its issuance, was served upon him by a deputy sheriff who was a minor. Hence the writ now in the sheriff’s hands is illegal, and cannot be executed.

2.That the stock, crop, farming implements, etc., seized, are not covered by the writ, or nominally included in the mortgage; hence their seizure is illegal.

3.That the sheriff has advertised and intends to sell the land, without having caused it to be surveyed into tracts of not less than ten nor more than fifty acres, and that such a sale would be illegal. That the act of 1877, repealing the act of 1870, which latter provided the means or mode of executing article-of the constitution, is itself unconstitutional, null and void, and hence is not to be regarded.

4.That the farm-hands or laborers had an interest of one-half in the growing crop, and that it could not be seized for his debts.

The defendants pleaded res adjudícala, and reserving their exception, answered by a general denial, and prayed tlio dissolution of the Injunction with twenty per cent general and ten per cent special damages. The lower court dissolved the injunction with ten per cent special •damages. Plaintiff in injunction appeals.

1st. The plea of res judicata is not well taken. It is founded on the decree in the case of Williamson vs. Richardson, sheriff, 30 A. 1163, decided by us at our last term here. In the case relied on the present plaintiff enjoined the present writ on the first ground above stated and others, and the further ground of prescription. We held that the plea of prescription was not good, and that the other grounds could not be urged in a petition without bond, and dissolved the injunction. Thereupon the present injunction was taken with bond. We will consider the grounds of injunction seriatim-.

First — The proof establishes that the deputy sheriff who served the notice was a minor. Whilst such fact would have furnished a very good reason for his non-appointment, or a good cause for removal,-we are at a loss to understand of what avail it is to plaintiff. The law provides that every sheriff may, with the approbation of the court, appoint as many deputies as he sees proper, and before entering on the discharge of their duties they must be sworn by the judge. O. P. 764. There is no pretense that the deputy who served the papers had not been so appointed and qualified, and therefore, although he might have been liable “to removal, plaintiff was utterly without right or without interest to ■collaterally attack the validity of the appointment of a purely ministerial officer. We have recently had occasion to pass upon an objection of this nature, which went to the qualification of the sheriff, and our conclusion was that to reeognize the right of litigants to question collaterally the title of ministerial officers defacto exercising the duties Incumbent upon them by law, would make the administration of justice a mockery, by enabling a defendant to try the sheriff, the clerk, and every other ministerial officer before he himself was tried or his obligations enforced. Our conclusions then expressed have undergone no modification from applying them to the facts of this case. State vs. -; Thos. S. Elder vs. City of New Orleans, ante p. 500.

Second — Although the writ only issued against the mortgaged premises, it necessarily issued against the immovables by nature or destination, which were a part of those premises. There is no pretense that the things seized and not described eo nomine in the writ and act of mortgage were not such immovables. The complaint is that they were not ordered to be levied on by the writ, and that the sheriff, a ministerial officer, had no authority to decide as to whether or not particular things were or not immovables by destination or by nature. The fallacy consists In taking for granted that the order did not cover the immovables by destination. The order to seize and sell the mortgaged property was an order to seize and sell all of it — not a part but the whole — and the sheriff would have been liable in damages had he failed to do his duty and levy under the writ on those things which by operation of law were a part of that which the writ covered.

Third — We see no reason to modify the views we have already expressed as to the effect of the repeal of the statute of 1870 providing for the division of lands. We adhere to those views.

Fourth — The crop was a part of the realty, and if any person 'had acquired on it a right equivalent to an anticipatory mobilization, such person might be heard to assert such right if any. But the defendant in execution has assuredly no standing in judgment to that end.

We think the damages below allowed are adequate. The judgment is affirmed with' costs.


author: Manning, C. J. Spencer, J.

text:
    No. 933.
    Yale & Bowling vs. John T. Cole.
    The law requires that an attachment bond should be for a sum one half more than the amount claimed by the plaintiff.
    Where the bond priven by a plaintiff in attachment is for a sum as much as fifty seven dollars less than the amount required by law. he can not invoke the rule de minimis, and his attachment must be set aside.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Parsons, J.

      Biohardson & MoEnery, for plaintiffs and appellants.

      Cobb & Ounby for defendant and appellee.
   The opinion of the court was delivered by

Manning, C. J.

This suit commenced by attachment. The sum claimed is $3,287.07 with eight per centum interest on eight hundred dollars thereof from June 15, 1878, and on the residue thereof from December 1,1878. The attachment was ordered to issue on the plaintiffs giving bond in the sum, and conditioned, as the law directs. Bond was given in the sum of five thousand dollars.

The defendant moved to set aside the attachment on the ground, that there was no sufficient bond executed by plaintiff before the issuing of the writ as required by law. The amount of the bond lacks fifty seven dollars of exceeding the sum claimed and one half more.

If art. 245 of. the Code of Practice now requires, as it did formerly, that the amount of an attachment bond must exceed that which is .claimed one half, the bond given in this case is insufficient.

The profession is familiar with the history of this article, yet it is necessary to go over it. The words used are, that the party applying for an attachment must give bond in a sum “ exceeding one half that which he claims.” The corresponding French text is de la moitié en sus de la somme par lui demandée. When a construction of this article first became necessary, resort was had to the French text. Our Codes were written mainly in French, and translated into the English tongue. The English text of the Code of Practice suffered by a bad translation, which made reference to the French text specially useful and often necessary. Said the court in Williams v. Barrow, 3 Louisiana, 57 — the “ article now under consideration is very obscure. A sum exceeding one half of the sum claimed cannot perhaps in fairness be understood to be only one half of that sum,” and following a construction already made of the article respecting appeal bonds, which was verbatim this one, the court said it meant the sum claimed and one half more.

This was adhered to ever afterwards, the court saying in Graham v. Burckhalter, 2 Annual, 415, one of the prerequisites to issuing the writ is that the bond shall be for a sum exceeding by one half that which he claims, and the same language is employed in Planters’ Bank v. Byrne, 8 Annual, 687.

When this Code was revised and re-enacted in 1870, the identical language of this article was retained. Its judicial construction had been settled since 1831, and no doubt it was thought that language, the meaning of which was unerringly known, had best be retained, since there could no longer be any dispute about it. Hence the first time this court had occasion to construe it after 1870, it was assumed that the Revisal meant what the original Code meant, and a'bond which was for the sum claimed and one half more, minus a deficiency of less than a dollar, was held good under the maxim de minimis. Bodet v. Nibourel, 25 Annual, 499, and we have repeated that construction. Miller v. Chandler, 29 Annual, 88.

The plaintiffs ask us to break this regular and unbroken line of decisions, and for no other reason than that the words of the law are precisely the same as before, which we think is the best reason for maintaining the construction that has been given before and since 1870. The argument appears to be, that because several gentlemen of the bar edited the Code of Practice at different times, and had the word “ by” printed in brackets in the text, and the compiler of the Revisal in 1870 did not insert that word, ergo it was designed that the construction which depends upon that word was intended to be excluded. Whereas we think that the compiler adhered to the exact words, that had always been in the Code, because their meaning was certainly known through a judicial construction that had never varied. The Code of Practice, for some unaccountable reason, was put into the form of an Act in 1870, but we know that legislation, so far as it affects this Code, was merely revisory with very little revision, and it cannot be construed, as if it went on the statute book then for the first time. Besides, it is settled and has become axiomatic, that when laws are re-enacted in the same words of the original act, the judicial construction of those words is a part of the re-enactment.

The plaintiffs’ counsel treat the subject as if the word “by” had at one time been employed in this article of the Code, and was afterwards left out, when in fact it was never in the text, and what was in the text was construed as meaning “ the sum claimed and one half more.” The meaning this article has had since 1831 is imparted to it by, and is derived from, judicial construction, and was formulated in the first decision in the phrase above quoted, and not by the use of the preposition, the omission of which is the sole basis of the argument for a change of that construction. The injection or interpolation of “by” was not the cause or the consequence of that construction. The meaning is well expressed without its use, and was expressed in the words, “the sum claimed and one half more.” The omission of that word cannot therefore change that construction.

There is no need to interpolate any word. Change the collocation, and it will read “ exceeding that which he claims one half.” And if changing the collocation be as objectionable as interpolation, both were avoided when the construction of the words actually used was first judicially made.

It is manifest that the plaintiffs understood the article in the sense so long received. If it had been supposed to mean that the bond need be only in excess of <jne half of the sum claimed, a bond of seventeen hundred dollars would have been a compliance with the requirement. They gave a bond for five thousand dollars, and invoke the rule cle minimis. Those who invoke process of this kind have been uniformly required to fulfill the minutest requirement. Even if the application of that rule was justifiable when the deficiency of the bond was less than one dollar, such application is not a precedent to be followed in this case.

The lower court sustained the motion, and set aside the attachment, and its judgment is affirmed.

Dissenting Opinion.

Spencer, J.

Article 245 O. P. of 1870 requires the plaintiff in attachment “ to annex to his petition his obligation in favor of the defendant, for a sum exceeding one half that ivhioh he claims.” To my mind this language is absolutely free from ambiguity. Grammatical rules make the participle exceeding take as its object the words one half. What is the bond to exceed ? “ One half that which he claims!” No other sense can be given these words, without interpolation or transposition. Now as I take it, courts have no such authority, where the words used have a plain and obvious meaning, and do not lead to absurd conclusions. I think that the experience of every practising attorney will bear me out in saying that there is not one attachment in a thousand where the damages awarded exceed one half of the debt claimed ; and that the rule requiring a bond to exceed by half, the debt, is an onerous and unnecessary exaction from litigants.

In 1868 (see acts of that year No. 125) the Legislature re-enacted article 575 of the Code of Practice, relative to appeals, and provided that for suspensive appeal, appellant should give bond “fora sum exceeding one half the amount for which the judgment was given.” It will be seen that the language here is identical with that under consideration. By interpolation of the word “ by,” or by transposing the words one half to the end of the sentence, the clause would require a bond one and a half times greater than the debt. In Denton vs. Reading, 22 An. 607, this court had the meaning of these words under consideration, and said: “ But under the provisions of the act of September 29,1868, the bond is required to exceed one half the amount of the judgment. We find the law so written, and see no grounds to authorize us to give it a different interpretation.” And the court held an appeal bond for one half the amount of the debt good. Had-it not been for the French text of the old Code of Practice, I am satisfied no court would have dreamed of interpreting these words, as they were interpreted. But the Code of Practice has been revised and re-enacted. In every edition of the Code of 1825, published after this court interpolated into the English text the word “ by,” that word was inserted in brackets in article 245. And the fact that in the revisal of 1870 the word was left out, shows that it was intentional. The lawyers (if not the legislators) who did the work of revision, knew that that word should be inserted to conform it to the jurisprudence. It was not done. The omission to do so was manifestly intentional. The case in 29 An. referred to does not decide the question, and what is there said was obiter. The bond was in that case nearly double the debt sued for. In many districts of this State the article as it now stands has been uniformly interpreted as meaning one half of the debt; and as that interpretation would prejudice no one, whilst that now adopted will be ruinous in its effects upon the rights of many litigants in pending suits, we should hesitate long before inflicting this unnecessary injury, more especially when we have to torture the law, by transposition or interpolation, to bring it into harmony with our conclusions. I cannot bring myself to assent to this result. The words of the law, the reason of the law, the interest of litigants, ■all forbid me. I therefore dissent from the opinion and decree in this «ase.


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    No. 906.
    The State vs. W. R. Barrow.

      A certified copy of a marriage license from another State of the Union, certified by the clerk of the court, who is also judge of the court, as a copy from the records of his o.R it, and also certified by him, as judge, declaring the attestation to be in due form, and having the seal of the court affixed to it, is in due form, and admissible in evidence.
    The proof that certain letters were written by the defendant may be made by a comparison of handwriting.
    A verdict of a jury will not beset aside because of ill-timed remarks of the judge, in his charge to the jury, when the remarks contain no error of law, and no comment on the facts.
    Where a defendant is tried on a charge of bigamy, the onus of proof is on him to show, as a matter of defence, that his wife had absented herself for the space of five years before his second marriage, and that he had not known she was living within that time; or that he had been divorced by competent authority at the time of his second marriage; or that his former marriage had been declared void by competent authority.
    Where an information, charging the crime of bigamy, alleges that the offence was committed more than a year before the filing of the information, but that it had not been made known to any public officer authorized to direct a prosecution, until within one year immediately preceding the filing, the burden of proof will be on the defendant to show that such knowledge was brought to an , officer having authority to investigate the crime before the said year.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Parsons, J.
    TP. N. Potts, District Attorney, Franklin Garrett and Bobt. Bay for the State.

      Bicha,rdson & McFnery for defendant.
   The opinion of the court was delivered by

Manning, C. J.

The defendant was convicted of bigamy, and was sentenced to pay a fine of five hundred dollars and to be imprisoned in the parish jail two years, from which he appeals. The case comes up on several bills of exception, and a motion in arrest of judgment.

A certified copy of the license for the defendant’s first marriage in Alabama, and of its celebration, was received in evidence. It was authenticated by the clerk of the court, as a copy from the records of his office, and this clerk is also the judge of that court. He certifies that fact as well as the copy, and as judge, declared the attestation was in due form, and affixed the seal of the court. The authentication was complete. Paget v. Curtis, 15 Annual, 451.

The objection that a copy of the record was inadmissible because a copy of the original paper was alone receivable in evidence has been disposed of in Smith v. McWaters, 7 Annual, 145 and West Feliciana R, R. v. Thornton, 12 Annual, 736.

One of the witnesses was asked whether the first wife was then living, and answered that she knew it by common report. It is of no consequence whether she was living at the time of the trial. If she were living at the time of the second marriage, that is the essential matter as to time, and the jury so found. We assume there was evidence to justify it.

The proof of the defendant’s letters to his first wife was made by comparison of handwriting. We have only to. deal with the mode of proof, and the law justifies it. The sufficiency of the proof was a matter for the jury; One of them bears date subsequent to the second marriage.

The judge’s charge is complained of. He spoke to the jury of the sanctity of marriage, of the reprehensible facility with which divorces are obtained in some States, of the disfavor with which our law looks upon the frivolous pretexts that are made the basis of judgments of ■divorce, and much more of the same tenour. We are inclined to think that much of this might have been omitted without prejudice to the interests of society, but we are not prepared to say that it was such serious error as to call for a reversal of the judgment, and setting aside the verdict. It was not error in law, and was not a comment upon the facts.

The questions presented by the remaining bills are more serious.

The information recites that the commission of the crime was in date more than a year before its filing, and avers that it had not been made known to any public officer having authority to direct an investigation or prosecution until within one year immediately preceding the filing — that the first wife, being alive, had not absented herself from the defendant for five years, and had not been divorced from him, and that the first marriage had not been declared void by the sentence of any court of competent authority.

The prisoner prayed the court to charge the jury that the facts which suspend prescription must be set forth in the information, and that the prosecution must prove them. The charge was refused, the judge saying that it was necessary to allege them, but not necessary to prove them on the trial. He was also asked to charge that the information must on its face negative that prescription had run against it, and that this negation must be proved, and he refused the charge that such proof was necessary. The further charge was prayed that the prosecution must prove that there had been no divorce — no separation between the spouses for five years — and that the first marriage had not been declared void by a competent court — that neither the information, nor the statutes “ set out any excuses ” for the defendant to commit the crime, and that he cannot be required to prove that he comes within those “ excuses,” but that the State must prove that he does not come within any of them — nil of which charges were refused.

In our statutes, a crime is usually denounced by name, and we-resort to the common law to ascertain what is the legal definition of the crime thus denounced. Eor example — whoever shall commit the crime •of murder shall be punished in such way — and we ascertain from the ■common law what is murder. The crime of bigamy is not thus treated. The statute reads thus If any married person shall marry, the former husband or wife being alive, the one so offending shall, on conviction, pay a fine not exceeding five hundred dollars, and be imprisoned not exceeding two years.

The provisions of this section shall not extend to any person whose husband or wife shall absent himself or herself from the other for the space of five years, the one not knowing the other to be living within that time; nor to any person who shall be at the time of such marriage divorced by competent authority, nor to any person whose former marriage, by sentence of competent authority, shall have been declared void. Rev. Stats, sec. 800.

Lord Mansfield said in Rex v. Javois, 1 East, 643; — it is a known distinction that what comes by way of proviso in a statute must be •insisted on, by way of defence, by the party accused; but where exceptions are in the enacting part of a law, it must appear in the charge that the defendant does not fall within any of them.

It must therefore be insisted on, by way of defence, that this party .accused comes within one of the provisos of this statute, and he must prove that his wife had absented herself from him for five years, he not knowing that she was alive within that time; or that they had been divorced by competent authority ; or that their marriage had been declared void by competent authority. It was so held in State v. Lyons, 3 Annual 154, and in Fleming v. People, 27 N. Y. 329. The rule is thus stated in an approved work; — Where, in a statute, an exception or proviso qualifies the description of the offence, the general rule is that the indictment should negative the exception or proviso. In such ■cases, when the subject of the exception relates to the defendant personally, or is peculiarly within his knowledge, the negative is not to be proved by the prosecutor, but on the contrary the affirmative must be proved by the defendant as matter of defence. But on the other hand, if the subject of the averment do not relate personally to the defendant, or be not peculiarly within his knowledge, but either relate personally to the prosecutor, or be peculiarly within his knowledge, or be at. least as much within his knowledge as within the knowledge of the-defendant, the prosecutor must prove the negative. Wharton Crim. Law, l 614. It is tersely stated by Greenleaf; — but when the subject matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party. 1 Evidence § 79.

The contrary -was ruled by Wightman J. in Reg. v. Heaton, 3 Foster & Finlason, 819, where he said — the burden of proof, that a person ‘ charged with bigamy has not been continually absent from the wife for seven years, and that she was not known to him to be living within that time, is on the prosecution and not on the prisoner, for how can he prove the negative that he did not know. But this was at Nisi Prius, where he alone was presiding, and in Reg. v. Ellis, 1 F. & F. 309, also at Nisi Prius, Willis J. said ; — whether evidence is necessary on the part of the-' prosecution to shew that the prisoner married, knowing his first wife to be alive, depends upon the particular facts of each case. The rule, that the onus of proof in such cases is on the defendant, is better supported-' by authority, as will be seen by an examination of the decisions fortifying Wharton and Greenleaf m locis citatis.

The other question presents more difficulty. The lower court is-stated in the bill as ruling that, although the circumstance that suspends prescription, i. e. want of knowledge of the commission of the offence by a public officer having authority to investigate it, must be-alleged, yet it need not be proved. If by this is meant that nobody need prove it, the charge is clearly-wrong, but we construe it as meaning, that the State is not required to make the proof. Confessedly, more-than a year had elapsed from the commission of the offence before the filing of the information, and prima facie, prosecution for it was barred.. For that reason the averment was made that knowledge of it had not been brought to an officer having the power to prosecute.

Ordinarily, a negative averment has not to be proved, and often canDOt be. The negation is not susceptible of proof, other than by proof of the affirmative fact which is denied. The negation here is, that knowledge of the crime was not brought to a public officer of' requisite authority. The proof must be of the affirmative fact that such knowledge was thus brought to him. Upon whom is the onus ?

It must rest on the party who can most conveniently and most. certainly make the proof. Now an affirmative can more certainly, naturally, and logically be proved than a negative. If the onus is outlie State, then it must prove that knowledge was not brought to any of' its officers who had authority to investigate the crime. It must prove a universal negative. If the onus is on the defendant, he need only prove that knowledge was brought to one of such officers. He need only prove a particular affirmative.

This is not in conflict with State v. Walters, 16 Annual, 400, nor Morrison’s case, 31 Annual, 211. The former held that the State must prove that the offence had been committed within the period fixed by the statute of limitation, which is unquestionably true. The latter held that when a prisoner is indicted for an imprescriptible offence, and is convicted of a prescriptible one, the conviction will not be sustained unless the State shews a previous indictment within the prescriptible time, or cause why such indictment was not found.

The information in the present case expressly alleges that the sole offence charged in it would have been prescribed, but for an absence or omission of a particular fact or circumstance which by law suspended prescription. The defendant must prove that such fact or circumstance existed affirmatively, whereby the prosecution is barred. This proof was not made. Therefore

The judgment of the lower court is affirmed.


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    No. 822.
    H. W. Fairchild vs. H. W. McEnery et al.
    The pleas oí error of law, of fraud, and of want of consideration, will not avail to defeat the enforcement of a written and honorable obligation, unless they are clearly proved.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Parsons, J.

      Cobb & Gunby for plaintiff and appellee.

      F. P. Stubbs for defendants and appellants.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiff sues upon two notes for $1772.32 each, dated September 30,1874 and payable respectively Dec. 1, 1875 and 1876 with interest from Aug. 1,1874, signed by the defendants in solido, and secured by a mortgage on two-thirds of the Magenta plantation. The defence is, error in the execution of the notes and mortgage ; fraud of the plaintiff; want and failure of consideration.

In 1859, J. D. McEnery, the father of the defendants, in his capacity of tutor to them and their sister, acquired an undivided half of the Magenta place. Mrs. Mason, their maternal grandmother, owned the other half, encumbered by a mortgage to secure the payment of one of the purchase notes. Hanneman held this note, and foreclosed the mortgage, and bought that undivided half of the place through his agent Pritchard, who stipulated with McEnery to convey to him, when he should pay the amount of the Hanneman debt.. McEnery had gone into bankruptcy, but before doing so had had recorded a statement of his indebtedness to his minor children, whose mother was dead, prior to January 1870. There were mortgages on Mrs. Mason’s part of the plantation that were primed by Hanneman’s, amounting to $30,000, so that the arrangement was advantageous in reliéving the property from them.

McEnery paid a part of this Hanneman debt, but was unable to complete it, and without completing it, he could not obtain a transfer of the title to himself of that part of Magenta, owned by Hanneman. At this juncture he applied to Fairchild, the plaintiff, to assist him by a loan of the necessary sum for the full payment of the Hanneman debt. The application was made to the plaintiff, not because he was a man of means, which he was not, but because of the long and intimate personal friendship between him and McEnery, and he responded to this call of his life-long friend by putting at his disposal all the money he had, and that not being enough, by borrowing the residue. McEnery executed two notes for the sum thus borrowed from the plaintiff in June 1872, and secured them by special mortgage on the property which he had thus been enabled to acquire from Hanneman. In 1873 he paid a small portion of one of these notes, and shortly afterwards died.

He had contracted a second marriage, and there was one child of that marriage. His widow became the administratrix of her husband’s succession, and his sons now of age, the defendants, were her sureties, and managed the plantation. Knowledge of the manner in, and the means by, which their father had been enabled to secure the ownership of the Mason-Hanneman half of Magenta was imparted to the two brothers, and they agreed for themselves and their sister to assume the payment of the plaintiff’s debt. At that time the agreement was verbal only, but it was subsequently put in writing viz in July 1874, and after an interval a formal sale was made of the succession property of J. D. McEnery, under order of court, under which the defendants and their sister bought the Magenta place. After the title to this place was thus perfected, and the agreement touching the assumpsit of the Fairchild debt was to be carried out, their sister, who had meanwhile married, and who was expected to bear her portion of that debt, refused to assume anything. The two brothers then assumed the whole.

In September 1874 they executed three notes to Fairchild for his debt, the first of which was for $1500 payable the ensuing December. The notes now in suit are the other two, and were secured by mortgage •on their two thirds of Magenta. They made a payment on the first note in January 1875, and that note is now owned by another person. This suit was filed in November 18Í7.

The answer is that they owe nothing — that they and their sister were the creditors of their father for. a sum far exceeding the value of his estate, by reason of his tutorship, and their mortgage had been •preserved by his act in having it recorded — that this mortgage primed Fairchild’s, and was entitled to be satisfied to the exclusion of Fair-child’s, but they were ignorant of this, or rather they were told by the lawyers of their father’s succession that it was not so, and that Fair-child could make his debt — that they looked to these lawyers, who were Messrs. R. W. & R. Richardson, for guidance, and implicitly relied upon their counsel — that R. J. Oaldwell, another lawyer and .their maternal uncle, was the instrument used by the Richardsons to obtain from them the written agreement of July 1874, which led to the execution of the notes and mortgage — and that the whole was done under error as to their true position and rights, occasioned by the wilfully erroneous information given them by the Messrs. Richardson, whom they charge as being the lawyers of Fairchild, and who were acting in his interest— that their act was produced by the fraud thus practiced upon them, and no consideration existed for the notes.

There is nothing to connect the plaintiff with this scheme for the spoliation of these defendants, except that his lawyers are charged with grave professional malfeasance. The record has naturally attracted our special scrutiny, and we are constrained to say, and are justified in saying, that these imputations are made wantonly, and to all appearance under the sting of self-accusation for having yielded to the gratification of a moral sense at the expense of pecuniary loss. The Messrs. Richardson testify that they distinctly and explicitly informed the defendants— one of whom is said to be a lawyer — of their legal rights, that the plaintiff’s mortgage was inferior in rank to their own, and that they could exclude it by enforcing their own. R. W. Richardson repeats many times that he had nothing to do whatever with the Fairchild debt or compromise, and R. Richardson is explicit that he informed B. T. MeEnery particularly, and he thinks the other brother also, of the legal status of that debt. The defendants were already apprised of the nature of their father’s debt to Fairchild. They knew the fact that Fairchild’s money paid the vendor of one half of Magenta. If the titles had shewn the real facts, it would have appeared that Fairchild had satisfied the vendor’s lien and ought to have been subrogated to his right. But these friends were thinking more of securing a great benefit to one of them, than observing the formalities necessary to ensure such a security as would prevent harm to the other. What more natural, what more honorable, wliat more praiseworthy than that the two sons should redeem-the promise of their dead father, and by this recognition of the sanctity of his obligation perpetuate his justly honoured name and reputation, and raise up to him, by this deed of honest restitution, a monument as durable as that of which the Roman poet sang.

At the time this promise was made, the Fairchild debt was inconsiderable, compared with the value of the property. The hopes of large-returns from investments in planting had not then been extinguished, and in assuming that debt at that time, the defendants were justified in the expectation that the profits of cultivating the plantation would' enable them to meet the notes in due time. If the event had crowned-their hopes, is it probable that the plaintift would ever have been driven-to this action to enforce his rights?

The experience of every practising lawyer in these 1'ate years, when engagements, made while hope was filling every breast, had to be fulfilled under circumstances that were beginning to inspire despair, will furnish a counterpart to this case. Heirs of successions, who willingly promised everything that might be demanded, and who goaded their lawyers by their importunities to conclude advantageous arrangements for them, seek to repudiate their engagements, and make their lawyer the scapegoat, upon whose head are laid all'their sins, and whose destruction will expiate their own wrongs.

The judgment of the lower court was in favor of the plaintiff for the amount claimed in his petition, with recognition of his mortgage.

That judgment is correct and is affirmed.