text:
    F. M. Jackson et al. v. A. M. Jones et al.
    Tiloso who possess not for themselves, but ill the name of another, cannot change the nature of their tenure so as to acquire the legal possession which is the basis of a title by prescription.
    PPEAL from the District Court of the Parish of Madison, Farrar, J.

      Ilynes <& Snyder, for plaintiffs and appellants. Short & Parham, for defendants.
   Cole, J.

On the 18th of July, 1836, by virtue of the Act of the Legislature of the 2d April, 1835, and that of the 7th of March, 1836, authorizing- a certain disposition of Public School Lands situated in the parishes of Carroll and Natchitoches, the trustees for the Public School Fund for ward number one, in the parish of Carroll, caused to be sold at public auction a lease for fifty years of lot number four of section 28, in township 17, R. 13 E., containing- one huudred and forty-four acres. Sess. Acts, 1835, p. 225 ; Sess. Acts, 1836, p. 102.

At the sale, James W. Wall became the purchaser of the lease for a certain sum, for which he executed his five several promissory notes, each for the sum of one thousand two hundred and nine dollars and sixty cents, payable to the order of, and endorsed by H. P. Morancy, and severally maturing on the 18th of July of each year after the date of the sale aforesaid.

This suit is instituted against the administrator of the estate of Wall and against Jones, who purchased the lease .of Wall upon the four notes lást maturing.

Plaintiffs ask that the defendants may be decreed to surrender unto them the land sold, as aforesaid, or. to pay the notes and interest.

The plea of prescription of ten years was filed by the defendants and was sustained by the court.

Plaintiffs have appealed, but have made no appearance in this court.

By virtue of the resolutory condition implied in all commutative contracts, the plaintiffs are entitled to a dissolution of the lease, or to the amount of the notes. O. C. 2041. But this action is prescribed by the lapse of ten years from the time when the defendants were in default for the price. C. C., Art. 3508 ; George v. Lewis, 11 An.. 656.

In affirming the judgment, we would remark, that we consider the plea of prescription of ten years, which has been plead in this case, as barring the action for the dissolution of the contract of lease, and not as giving a title to the land to the defendants, by virtue of Article 3437 of the Civil Code, by which immovables are prescribed for by ten years when the possessor has been in good faith, and held by a just title during- that time, and so we understand the judgment of the District Court.

Defendants did not possess the land for themselves, but held it as lessees, and they cannot change the nature of their tenure. Those who possess, not for themselves, but in the name of another, as farmers, depositaries, and others who acknowlege an owner, cannot acquire the legal possession, because, at the commencement of their possession, they had not the intention of possessing for themselves, but for another. C. C., Arts. 3404, 3449, 3455.

The plea of prescription of five years was also made by the administrator of the estate of Wall.

This plea is also valid. The notes were prescribed after the lapse of five years from their maturity, and the mortgage given to secure their payment being a mere accessory, was extinguished with them. C. C., 3505 ; Succession of Linder-man, 3 An., p. 714.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Land, J.

license: Public Domain

text:
    Mary Sturges and Husband v. The Sheriff — L. Doughty et als. Intervenors.
    A judgment against the administrator of a succession recognizing the claim of a creditor, and ordering it to be placed on a tableau of distribution is binding upon the heirs, unless obtained through fraud or error.
    from the District Court of the Parish of East Feliciana, Haralson, J., presiding.

      J. <& C. Me Vea, for plaintiffs. J. 0. Fuqua, for Iieirs of Nettle. JR. J. Bowman, for intervenors and appellants.
   Land, J.

A slave belonging to the succession of John B. Gerald, late of the parish of East Feliciana, was sold in pursuance of an order of court by the Sheriff, to effect a partition between the heirs of the deceased.

The plaintiffs injoined the Sheriff from paying the proceeds to the heirs, on the ground that they are creditors of the succession, and are entitled to the same in payment of their debts.

The heirs opposed the demand of the creditors with the plea of prescription of one, two, three, five and ten years.

Theodore B. Gerald was appointed administrator of the succession. He filed an account and tableau of distribution, which were opposed by the plaintiffs.

The claims of the plaintiffs had been previously approved by the administrator.

On the trial of the oppositions, the administrator was condemned to pay the amount claimed by the plaintiffs, and his tableau ordered to be amended accordingly.

The judgment recognizing the plaintiffs’ claims and homologating the tableau, was signed on the 11th of February, 1854, and this suit was commenced in January, 1855.

The claims of the plaintiffs were merged in the judgment, which is binding upon the heirs, (unless obtained through fraud or error,) and which, of course, was not prescribed at the time of the commencement of this suit. 3 An. 36 ; 8 R. 497 ; 4 M. 456 ; 3 L. 194; C. P. 123.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, with costs in both courts.

Mekeick, C. J., having been of counsel, recused himself.


text:
    S. S. White v. G. W. Purnell.
    A judgment in an action of boundary cannot form res adjudicóla as to. the right of property.
    from the District Court of the Parish of East Feliciana, Ratliff, J.

      Muse t& Hardee and Bowman & Delee, for plaintiff. J. & C. McVea, for defendant.
   Land, J.

This is an action sounding in damages, for an alleged trespass to a tract of land, which is claimed by both plaintiff and defendant. *

The only question for decision is, whether a judgment rendered in “ an action of boundary" forms res adjudícala, as to the title of the land, between the parties to the suit.

Article 825 of the Civil Code providfes, that the action of boundary may be instituted, not only by the owner, but by any person who possesses as owner, and his neighbor cannot require proof of his right of property.

It seems to be clear that where the defendant is precluded from requiring proof of title, and the question of title therefore excluded, that a judgment in an action of boundary cannot form res adjudicata as to the right of property.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, with costs in both courts.


text:
    B. Caze, Administrator, v. W. B. Robertson.
    The petitory action can only he maintained by one in. whom the legal title is vested, or by his legal representative.
    from the District Court of the Parish of West Baton Rouge, Beale, J.

      S. P. Green, for plaintiff and appellant. W. B. Robertson, in pro. per.

   Land, J.

This suit was dismissed on an exception, and the question to be determined is, whether the administrator of a deceased vendor can maintain a peti-tory action against a party in possession of the land sold, when the vendee himself does not complain.

Pierre Blanchard sold the land in dispute to John Nolan, who sold to Henry W. Allen and William Nolan, and William Nolan sold to John T. Nolan, and the plaintiff in this action is the administrator of Pierre Blanchard, who, after the institution of the suit, caused the dative testamentary executor of John Nolan to be joined as a party plaintiff.

Article 44 of the Code of Practice provides, that the plaintiff in an action of revendication must make out his title, otherwise the possessor, whosoever he be, shall be discharged from the demand.

A petitory action can only be maintained by one in whom the legal title is vested, or by Ms legal representatives.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, with costs in both courts.


author: Merrick, C. J.

text:
    Breaux v. Gallusseaux, Testamentary Executor.
    A nuncupative will by public act is null, if dictated in a language not understood by one of tho attesting witnesses.
    The want of capacity of one of tlie witnesses to attest what was done, could notbesuppliedby the testimony of tbe notary and the two other witnesses, that the dispositions of the will were explained by the notary to the witness, who was not able to understand them from the dictation of the notary.
    PPEAL from tbe District Court of tlie Parish of Iberville, Beale, J.
    xi. A. Talbot and Lea & Marr, for plaintiff. Z. Labauve, for defendant.
   Merrick, C. J.

This suit is brought to set aside the last will of Felix Breaux, deceased. The will was a nuncupative will, executed before a notary and three witnesses.

It appears to have been dictated by the testator to the notary in the French language.

One of the attesting witnesses did not understand the language in which the will is written sufficiently to comprehend what was said, and he now says after being shown the will, that he cannot read the French portions of the will at all.

To supply the defect, defendant interrogated the witness, on the cross-examination, ‘to show that the testator had explained in English, after the will was read, that he gave the house and lot and negro man to the legatee, Dequese.

The notary public was also offered (but his testimony was rejected) to prove that he had' explained .in English to the witness, the disposition in the will in favor of said Dequese.

This disposition did not even comprise the entire will, as it instituted the grandchildren of the testator his universal legatees, and appointed an executor.

It seems to us that tho testimony received and offered could not be received to supply the want of capacity in the witness to attest what was done. For the notarial act is then no longer the repository of the last will of the testator, but it is confided to the memory of the notary and the witnesses speaking French, whose testimony is required to complete the will. How does the witness speaking English know but there may not have been some other thing dictated in French which was omitted by the notary, or some condition annexed to the bequest which does not now appear ? The will, therefore, as written, rests upon the testimony of the notary and two witnesses, and is nota compliance with the law. See Herbert’s Heirs v. Herbert’s Heirs, 11 L. R. 361, and Bordelon v. Baron, 11 An. 616 ; 4 Mareadé, No. 59, p. 42.

If the defendant, Josephine Dequese, is entitled to recover for her services rendered the testator on the acknowledgment contained in the will, considered as a private writing, upon being corroborated by other proof, the decision in this case will be no bar to an action to be instituted by her against the heirs of the same.

Judgment affirmed.


author: Buchanan, J.

text:
    A. Graugnard v. J. Lombard.
    A statement by the Clork, in his minutes of the testimony taken on the trial, that certain evidence was objected to, does not dispongo with the necessity of a bill of exceptions to tho reception of the evidence.
    from the District Court of the Parish of Pointe Coupée, Haralson, J.

      T. J. <& W. II. Cooly, for plaintiff and appellant. U. B. & E. Phillips, for defendant.
   Buchanan, J.

James Vignes, who wrote the document under which defendant claims the land in controversy, was called by defendant to prove the execution of said document by plaintiff.

The same witness was called by plaintiff to rebut, and swore that the intention of the parties was, that the agreement to sell the land should be null and void, unless an act of sale was passed on or before the date specified in the document, to-wit, the 20th February, 1854. By a note of the Clerk in the minutes of testimony, we are informed that defendant objected to this testimony of Vignes, on the ground that it adds to and takes from the written document, and that testimony is inadmissible to vary or contradict a written act. No bill of exceptions was taken, however, in the form required by the Code of Practice.

The objection is, therefore, disregarded, and this testimony considered as if received without objection.

The last clause of the document A reads as follows: “ The parties above named obligate themselves to pass the act of sale of said land on or before the 20th of February next, 1854.”

The witness, Vignes, explains the meaning of the parties to have been, that this date, of the 20th February, 1854, was the term limited for the performance of the agreement, and beyond which it should not be operative. He says he was “ directed by the parties, at the time of the drawing up of the agreement marked A, to stipulate that unless the agreement was complied with on or before the 20th February, 1854, that the agreement was to be null and void, and that he, witness, considered that the clause in the agreement was equivalent to that; and that is the reason why he drew it up in that way.”

It is neither alleged nor proved, that any act of sale was made within the term they limited. The defendant’s answer, setting up the agreement to sell, as his title, was filed the 22d December, 1857, nearly four years after the expiration of the term; and there is no allegation of a tender on his part of the price stipulated to be paid.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and that there be judgment for plaintiff against defendant for the possession and ownership of the land mentioned in the petition, namely, the undivided third of sections 107,108, and 115 of township 6 south, of range 9 east; the half of section 109 in the same township; and eighty acres of section 114 in the same township ; and that the defendant and appellee pay costs of suit in both courts.


author: Cole, J.

text:
    Succession of James Lynch.
    The obligation of the security on an administrator’s bond can be enforced at once without proceedings against the estate of tbe principal, which is shown to be insolvent by a tableau of distribution filed in the due course of administration.
    from the Second District Court of New Orleans, Morgan, J.

      T. H. Clack, and A. Robert, for opponents and appellants. P. E. Bonford, for appellee.
   Cole, J.

The decedent, James Lynch, with his wife, Margaret Lynch, and their child, Julia, were lost on the steamship Artie, on the 27th of September, 1854.

The administrator of the estate of James Lynch having filed an account, Jeremiah Barrett filed an opposition to it, claiming to be placed thereon as heir of Margaret Lynch, alleging that he was the nearest surviving relative, being her brother ; that in fact, and by presumption of law, the wife survived her child, and that therefore, the opponent as such nearest of kin, is entitled to one-half of the net proceeds of the succession, his deceased sister’s portion as wife in community.

There was judgment against the claim of Jeremiah Barrett, and he has appealed.

The District Judge was of opinion that the relationship claimed never existed.

It appears that opponent and Mrs. Lynch were regarded by many of their friends as brother and sister.

Opponent was however known to some persons by the name of Edward Wright.

He has sought to invalidate the effect of this, by establishing it to be usual among- sailors often to change their names, and that his occupation was that of a sailor.

The letter addressed by opponent to Mrs. Lynch, under the name of Edward Wright, in conjunction with his answer to interrogatories, and the declaration of Mrs. Lynch in her lifetime, of the nature of the relationship between her and opponent, have created much doubt in our minds as to the legitimacy of his claim.

There are certain expressions in the letter which negative the particular relationship now contended for.

A careful consideration of the effect of the whole of the testimony induces the belief that the District Judge did not err in rejecting his demand.

E. A. Bienvenu, curator of Pierre Gabriel Clermont, an absentee, asks to be placed on the tableau of the succession of Lynch, in his capacity of curator of Clermont, for $8,263 17, with interest, on the ground that one Masson was heretofore appointed curator of Clermont, and that he gave bond in the sum of $15,000, with James Lynch as one of his sureties. That subsequently Masson died, and his succession was insolvent; that consequently, Lynch, as one of his securities, is bound to pay the deficit due by his succession on the amount received by him as curator of Clermont, which is $8,263 17 ; and Bienvenu asks that the tableau of Lynch be amended in this respect.

The District Court was of opinion that this was not the proper manner of prosecuting his claim, and dismissed it without interfering in any manner with any right which the curator, Bienvenu, may have, to proceed by any other action.

We are of opinion that the amendment ought to have been allowed.

The sixth section of the Act of 1842 provides, “ That the courts of probate shall have exclusive cognizance of all suits or actions against sureties on the bonds of appeal, and all others which they are bound by law to receive or exact from appellants and administrators, tutors, curators and testamentary executors generally ; and no such suit shall be instituted against the security until the necessary steps have been taken to enforce payment against the principal.” Sess. Acts of 1842, p. 302, | 6.

This section declares that the ncsessary steps must be taken to enforce payment against the principal; it does not explain what aro the necessary steps. When, as in the case at bar, the principal is dead, and a tableau of his succession has been filed, from which it appears that his estate will not be able to pay the whole of his obligations, and when also the security upon one or more of his obligations is dead, and a tableau of his succession has been filed, we are of opinion, in such a case as this, that the obligation can be enforced at once against the estate of the security, and that it is not necessary, under such a state of lacts, to proceed by rule or other mode against the estate of the principal, to show cause why it should not pay the amount due.

The rule or other process cannot be deemed necessary, because the tableau of the principal already filed establishes that the whole amount could not be paid, as the estate is partially insolvent.

It would be then useless to resort to a rule or other process, when it is already known that the estate of the principal cannot satisfy the whole of the claim.

If such a course were deemed necessary, it would in the present case work the greatest injustice.

The creditor would be obliged to wait until the estate of the principal was finally settled, so that it could be exactly known what portion of the obligation could be paid by the same. In the mean time, the estate of the security might be settled, and the balance of the estate might be paid over to foreign heirs, and the creditor would be obliged to resort to foreign tribunals to recover from the different heirs the portion due by each of them upon Ms claim. Alley v. Hawthorn, 1 An., p. 126 ; Wells v. Roach et al., 10 An. 545.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be amended as follows, to-wit: that the part thereof which dismisses the opposition of A. E. Bienvenu, curator of Clermont, be avoided and reversed ; that the opposition of A. E. Bienvenu, curator of Clermont, be maintained for the sum of $8,263 17, with legal interest from the 29th June, 1856 ; that the account presented by Lynch’s curator be amended so as to place thereon Bienvenu, curator of the absentee, Pierre Gabriel Clermont, for the said sum of $8,263 17, with interest as aforesaid; that the account so amended bo approved and homolo-gated, and the funds be distributed accordingly ; that the costs of the lower court upon the opposition of Jeremiah Barrett be paid by himself, and that those upon the opposition of Bienvenu, curator, be paid by the estate ; that the judgment so amended be affirmed ; that one-half the costs of appeal be paid by the estate, and one-half thereof by Jeremiah Barrett.


text:
    B. Haynes, Liquidator, v. John A. Harbour—Gordon A. Smith, Warrantor.
    Tlio property hanks in Louisiana furnish an exception to the rule, that tho creditor who holds under two mortgages of unequal rank on the same property, and who has caused the property to he sold to satisfy his junior mortgage, cannot he allowed to sell it a second time to satisfy his senior mortgage. The property mortgaged for the subscription to the stock of the bank is liable in the hands of a third possessor, although it has bo'en previously sold at tho instance of the bank, to enforce tho payment of tho stock loan secured by the same mortgage.
    from the District Court of the Parish of East Feliciana, Ratliff, J.
    J. McVea, for plaintiff. J. 0. Fuqua, for defendant. U. B. & E, Phillips and Hardesty á Kernan, for warrantor and appellant.
   Buchanan, J.

This is an hypothecary action against a third possessor of land mortgaged to the Clinton and Port Hudson Railroad Co., for the security of 202 shares of the capital stock of said company, subscribed by Thomas .A. Cabarras & Co., and for the repayment of such loans as should be made upon the said stock. The mortgage was dated 30th November, 1835.

T. A. Cabarras t& Co. borrowed upon this stock of the company, on tho 17th February, 1838, the sum of nine thousand and ninety dollars.

This loan was not paid at maturity nor renewed, and the commissioners of liquidation of the company caused executory process to be issued for the amount of the loan upon the mortgage, under which the land now in possession of defendant was seized, and on the 2d September, 1843, was sold by tho Sheriff to Gordon Smith for eight thousand dollars cash.

This sale was made subject to the liens and mortgages of whatever kind they might be, contained in the certificate of mortgages produced at the sale.

In March, 1852, this court affirmed a judgment of the District Court of East Feliciana, which decreed that the liquidator of the Clinton and Port Hudson Railroad Co. should proceed to collect of the several stockholders, such contribution upon their subscriptions of stock, as should be necessary to meet certain outstanding bonds of the company, held by the New Orleans Gas-light Co. and others. See case reported in 7th An. 114.

On the 18th October, 1852, Gordon Smith sold to defendant, John A. J-Iarbour, the land which the former had purchased at Sheriff’s sale as aforesaid ; the parties to this conveyance consenting to waive the production of a certificate of mortgages by the notary, and the vendor warranting the vendee specially against the Clinton and Port Hudson Railroad and Banking Co. This sale was made for the price of three thousand dollars ; @1000 in an acceptance due 1st January, 1854, @1000 in a note due 1st January, 1855, and @1000 in a note due 1st January, 1856. The acceptance was paid at maturity — the notes are still unpaid.

In compliance with the decree above mentioned the liquidator made a call of three-fifths of the stock; and in April, 1854, instituted this action for three-fifths of the stock subscribed by T. A. Cabarras & Co., alleging John A. Harbour to be in possession of tho land mortgaged to secure said stock, and prayed that Harbour might be cited, and the land sold to pay the sum of twelve thousand one hundred and twenty dollars, being three-fifths of the amount of Cabarras & Co.’s subscription.

Harbour answered, admitting his possession of the mortgaged premises; alleged liis purchase from Smith, his payment of one thousand dollars on account of said purchase, and that he had made valuable improvements on the land — cited his vendor, Gordon A. Smith, in warranty, and, in case of eviction, prayed for judgment against his warrantor for restitution of the money paid and notes unpaid, and for five thousand dollars additional, being the alleged value of defendant’s improvements.

The warrantor, Smith, pleads the general issue, admits the sale to I-Iarbour, avers that he purchased in good faith at a sale made at the instance of plaintiff for 358000, which he paid in obligations of the company, worth at the time of payment sixty cents in the dollar ; prays that the demands of plaintiff and defendant be rejected, and, in the alternative, that he be replaced in the condition he was in before his purchase at Sheriff’s sale, crediting upon plaintiff’s demand the amount paid by warrantor for the property.

The case was tried by a jury, who found for plaintiff against defendant, and for defendant against Smith, warrantor, for two thousand dollars improvements, for one thousand dollars draft paid, and for the return of the two notes of defendant unpaid. Judgment having been rendered upon this verdict, the warrantor appealed after vainly seeking a new trial.

The appellant urges, as against the plaintiff, that the creditor who holds two mortgages of unequal rank on the same property, and who has caused the property to be sold to satisfy his junior mortgage, cannot be allowed to sell it a second time to satisfy his senior mortgage. This, as a general proposition, is true. But these property banks as they are called, of which so many were chartered by the State of Louisiana about twenty or thirty years ago, and of which the Clinton and Port Hudson Railroad and Banking Co. was one, furnish an exception to the rule, which results from their peculiar organization.

The capital upon which those banks did business was the price of bonds sold in the market, which were secured by mortgage of the property of the individual stockholders. It was confidently expected, that the profits of their business would' enable those banks to pay their bonds in full at maturity, without calling upon the stockholders for contribution. The subscriptions to the stock were not payable in cash but in an hypothecation of the subscribers’ land or slaves, to the amount of the subscription. The lure held out to proprietors of lands and slaves to encumber their property in this manner consisted in a credit of fifty per cent, upon their stock, to which they were entitled in the shape of loans, of which the capital was reimbursable in a long series of years. In order to secure the bank against loss upon such loans, the mortgage given by the stockholder at the time of subscribing for stock was made to include a mortgage for the repayment of stock loans. These acts of mortgage were thus double obligations with one obligor, but two distinct obligees. And this court decided in the case of Meeker v. Clinton and Port Hudson Railroad Co., 2 An. 971, that the two hypotheca-tions were of unequal 4’ank ; that for the security of the stock, taking effect from the date of subscription; while that for the security of stock loans, only dated from the time of borrowing. In that case it was held, that a Sheriff’s sale in a proceeding upon a stock loan was null, unless the price was sufficient to cover the older, or stock, mortgage. But we have seen that in the sale of 1843, at which this appellant became the purchaser, this difficulty was obviated by his assumption of the stock mortgage, that being the mortgage mentioned in the certificate read by the Sheriff at the sale, and which is in evidence. Neither can the defendant any more than the warrantor pretend ignorance of the existence of this incum-brance on the property at the time of the conveyance by the latter to the former. For it is mentioned and made the subject of a special warranty, in his act of sale.

The judgment appealed from is, therefore correct, as between the plaintiff and defendant; and we have next to examine that between the defendant and the warrantor.

The verdict of the jury is without doubt correct, so far as regards the restitution of the price of sale. But we are not satisfied that the large allowance made for improvements, is justified by the record. These improvements consist of a gin-house, outhouses, fences and repairs to dwelling-house.

This court in 16th La. Rep. 421, and in 12th Robinson, 255, construed the Article 2485 of the Civil Code, as giving the right to the evicted possessor to recover of his warrantor, only the increased value given to the premises by the improvements. And in the case of D’Aquin v. Coiron, 3 La. 398, ordinary repairs, necessary for the enjoyment and cultivation of the property, are not improvements, the cost of which the vendor is bound to reimburse to his vendee. We notice, moreover, that the witnesses gave their testimony upon the trial of this case, on the 24th April, 1858, five years and-a-half after the sale from Smith to Harbour, and that the land has been cultivated by defendant as a cotton plantation during the whole of this time. The so styled improvements proved are nothing more than what were obviously, most strictly necessary for carrying on the plantation and securing the crops. And we do not view it as either legal or equitable, that the warrantor who sold to a purchaser with notice of an incum-brance, and who has been paid but a small portion of the price for which he sold, should pay the expenses, or any portion of the expenses, of making six crops upon the land sold, without receiving any benefit from those crops. C. C. Art. 2531, paragraph 2 ; Yeatman, Woods & Co. v. Erwin, lately decided.

It is, therefore, adjudged and decreed, that the judgment of the District Court as between plaintiff and defendant, be affirmed; that as between defendant and warrantor it be reversed; that the defendant, John A. Harbour, recover of the warrantor, Gordon A. Smith, oue thousand dollars ; that the said Smith restore to said Harbour the two notes of one thousand dollars each, described in the answer; and that the costs of the District Court be paid by the warrantor, those of appeal one-half by warrantor and one-half by defendant.

Mebkick, C. J., recused himself in this case.


text:
    J. S. Hampton v. G. W. Watterston.
    The verdict of a jury in those words, “ Verdict in favor of plaintiff,” is not sufficient to form the basis of a judgment.
    from the District Court of the Parish of J., siding.

      W. E. Walker, for plaintiff. II. Duncan and C. J. Bradley, for defendant and appellant.
   Land, J.

This is a suit by the endorsee of a promissory note against the maker.

The defence is, a transfer of the note after maturity, by the.payee to the plaintiff, a failure of consideration, and a claim in reconvention or set off against the payee.

The causé was tried by a jury, who found the following verdict: “ Verdict in favor of plaintiff.”

Upon this verdict, a judgment was rendered against the defendant, for the sum of six hundred and twenty-eight dollars and eighty cents, with interest at the rate of eight per cent, per annum, from the first day of March, 1855.

The verdict of the jury was incorrect, and not sufficient to form the basis of a judgment. C. P. 522 ; Hosea v. Miles, 13 L. 109; Collins v. Hamilton, 14 L. 343.

As the defendant unsuccessfully applied for a continuance on the ground of the absence of witnesses, and as the testimony of. the payee of the note was improperly received, to which a bill of exceptions was taken, we will remand the cause.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed, and the verdict of the jury set aside, and the cause remanded for a new trial, and that the plaintiff pay the costs of this appeal.


text:
    State, ex rel. Dubuisson, v. The Judge of the Second District Court.
    A suspensive appeal does not lie from a judgment, removing from office the liquidator of the affairs of a partnership.
    a mandamus to the Judge of the Second District Court of New Orleans, Morgan, J.

      M. Grivot, for the relator.
   Land, J.

This is an application for a mandamus.

The relator being the curator of the succession of John Twibell, was appointed liquidator of the partnership affairs of Twibell & Atkins, and was afterwards removed from the office of liquidator by a judgment of the Second District Court.

From this judgment of removal, the relator applied to the District Judge for a suspensive appeal, which was refused; and he now takes the rule in this case, on the Judge, to show cause why he should not be commanded to grant the order for a suspensive appeal.

The answer of the District Judge shows a sufficient cause why the writ of mandamus should not be granted.

A suspensive appeal will not lie from a judgment appointing an administrator, curator, or liquidator of succession property; nor will a suspensive appeal lie from a judgment destituting a curator or liquidator, when a further administration of the succession property is necessary. C. C. 1113; C. P. 580, 1059; 5 An., 518.

From such judgments a devolutive appeal only lies.

It is, therefore, ordered, adjudged and decreed, that the rule taken in this case be discharged with costs.


author: Land, J. Merrick, C. J.,

text:
    Z. Porche v. P. M. Moore, Administrator, et al.
    The donee is a universal one in the sense of Article 1539 of the Civil Code, when the donor has given to him all his property, reserving only enough to himself for subsistence.
    The specification of each particular thing given, in the act of donation, does not change the character of the donation so as to avoid the obligation, on the part of the donee, of paying the debts of the donor.
    from the District Court of the Parish of Pointe Coupee, Ratliff, J.

      A. Provosty, for plaintiff. F. PL Farrar and John Yoist, for defendant and appellant.
   Land, J.

This is a suit to recover from the donee a debt due by the donor to the plaintiff, at the date of the donation.

In the year 1852, Onil Bourgeat made a donation inter vivos of certain land and slaves, to Constan.ee Dumoulin, which embraced nearly the whole of his property, reserving, however, as a charge upon the property, an annuity of four hundred dollars, payable to himself.

In the suit of Blanche E. Bourgeat v. Constance. Dumoulin, this act of donation was adjudged by this court to be valid. 12 An. 204.

The only question now presented on the merits for decision is, whether the donee is liable for the debts of the donor, existing at the date of the donation.

Independently of the general rule, that the property of the debtor is the common pledge of his creditors, Articles 1538 and 1539 of the Civil Code provide, that the property given passes to the donee, with all its charges, and that the universal clonee is bound to pay the debts of the donor existing at the time of the donation, or to abandon the property given.

Constance Dumoulin was certainly a universal donee — -for the donor scarcely reserved property enough for his personal maintenance.

The Articles of the Code defining universal and particular legacies, have no application to donations inter vivos.

Legacies or donations mortis causa are different in many essential particulars from donations inter vivos, and are governed by different rules.

Legacies may be made of future as well as present property. C. 0. 1455, 1599.

They do not divest the donor or testator of his title to the property given, and cannot take effect during the lifetime of the donor, and are revocable. C. C. 1455, 1683. They do not become null and void for want of acceptance before the death of the testator. 0. C. 973. They may embrace the whole of the donor’s property. C. Ovl455, 1599.

Donations inter vivos are different in all these respects. The donor is divested of his title, and the donation takes effect, in presentí, and is irrevocable. C. C. 1454. They become null and void for the want of acceptance in the lifetime of the donor, and cannot embrace the whole of the donor's property, under the pain of nullity. C. C. 1488, 1527. And can only comprehend the present property of the donor. C. C. 1514.

Where dispositions of property are so radically different in their nature, and the rules by which they are governed are so adverse, it would seem to be a misapplication of law, to decide a question as to the validity or effect of one, by the rules prescribed for the other.

Under the head of donations inter vivos, the Code treats of universal donees ; and under the head of donations mortis causa, it treats of universal legatees. A donation inter vivos, of all the donor’s property, is expressly forbidden and declared null for the whole. C. C. 1484. A donation mortis causa of all the donor’s property is expressly permitted, and is valid, and the universal legatee is one to whom the whole of the donor’s property is given. C. C.1599, 1455.

Who then is a universal donee in the sense of Article 1539 of the Civil Code ?

If the question is decided by the law of legacies, the universal donee is one to whom the whole of the donor’s property is given — -but such a donation is null and void under Article 1484 of the Civil Code, and, therefore, can not be.

If the question is determined by the law of donations inter vivos, the universal donee.is one to whom less than all the property of the donor is given, because the donor is bound to reserve to himself enough of his property for his subsistence and cannot, therefore, give the whole.

To determine the question by the law of donations mortis causa, the conclusion is, there can be no universal donee under the law of Louisiana, although the lawgiver has declared otherwise, and imposed on him the obligation of paying the debts of the donor existing at the date of the donation.

Such a decision would not be in pursuance of the law, but against its express and plain provisions.

It seems, therefore, clear, that the question cannot be determined by the law of donations mortis causa, but must be decided by the law of donations inter vivos ; and that the universal donee is one to whom less than all the donor’s property is given.

In this case, Onil Bourgeat gave all his property to Constance Bumoulin, reserving only enough to himself for subsistence, and the donee is a universal one, in the sense of Article 1539 of the Civil Code.

The specification of each particular thing given in the act of donation, cannot have the effect of changing the character of the donation, and avoiding the obligation of paying the debts of the donor ; for the reason that such an interpretation of the law, would provide an easy mode for its evasion.

The donee, Constance Bumoulin, has, however, pleaded, in this court, the prescription of one, three, and five years, to the plaintiff's action. The suit is on a promissory note, payable to the order of plaintiff, and the prescription of five years is applicable. The note became due on the 1st day of March, 1853, and the petition was filed on the 24th of February, 1858; but the record contains no citation, and the defendant did not appear and answer the petition, until the 18th of March, 1858, more than five years after the maturity of the note.

Prescription is not interrupted by the filing of a petition in the Clerk’s office; but by service of citation or appearance, and answer of defendant. Bonnet v. Ramsey, 6 N. S. 130 ; Matter of Mason, 9 Rob. 105.

The plaintiff has the right to have the cause remanded, on the plea of prescription.

It is, therefore ordered, adjudged and decreed, that the judgment be reversed, and the cause remanded for further proceedings according to law; and that plaintiff pay the costs of this appeal.

Merrick, C. J.,

dissenting. The plaintiff appears to me to have mistaken his remedy. The donation does not appear an universal donation, (which is allowed in certain marriage contracts,) as is evident, to my mind, by a comparison with the analogous subject of donations mortis causa. Besides, if the obligation is intended to be imposed upon the donee to pay the debts of the donor, the contract ought to be made in the form of an universal donation, in order that he may know his liability.

Airis alieni, quod ex hereditaria causa venit, non ejus qui donationis titulo pos-sidet, sed totius juris successoris onus est. Si itaque nemini obligata prcedia per donationem consecuta es; supervacuam geris sohcitudinem, ne ml heredes dona-tricis, ml ejus creditores te jure possint conmnire. Code Lex. 15, lib. 8, t. 54.

Savigny says, (in reference to the Roman law,) if any one makes a donation by delivery of every individual thing constituting his entire estate, and there is nothing said in regard to his debts, no obligation is imposed upon the donee to pay them. But he adds, if the conveyance be made in the dishonest intention of injuring the creditors, they have against the donee the Pauliana actio in which it is of no consequence whether the donee was privy to the dishonest intention or not. Vol. 4, p. 139, Berlin ed.; Zachariee, seconde partie, liv. 2d, sec. 315.

The donation in this case was of certain enumerated things. They are not declared to constitute, nor did they, in fact constitute, as we have already decided, the entire estate of the donor. The donee then took by particular title. Her title might, therefore, have become the basis of prescription, and was not affected by defects in her author’s title. See Black v. Pontalba.

If the donation were in fraud of plaintiff’s right, it is governed by Art. 1975 of the Civil Code, which is in these words:

“ If the contract be purely gratuitous, it shall be presumed to be in fraud of creditors, if at the time of making it, the debtor had not, over and above the amount of his debts, more than twice the amount of the property passed by such gratuitous contract.”

I think a judgment ought to be rendered in favor of the defendant, Constance Dumoulin, as in case of a nonsuit.


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    Joseph Schwartz v. Thirty-two Flatboats.
    The qualifications of the members of the City Council cannot be inquired into in a suit to enforce a contract made by the Mayor, under a resolution of that body authorizing it.
    A sale made at auction by the Comptroller, and afterwards clothed with the formalities of an authentic act, cannot be annulled on the ground, that the adjudication was made by a person who was not regularly licensed as an auctioneer.
    Wharfage dues charged by a corporation, are not, properly speaking, a ¿a®, like that which is levied for the support of government.
    from the District Court of the Parish of Jefferson, Burthe, J.

      A. W. Jourdan and C. Roselius, for plaintiff aud appellee. R. K. Cutler, for defendants and appellants.
   Land, J.

This is a proceeding in rem, instituted by plaintiff as lessee of certain revenues of the city of Jefferson, for the recovery of wharfage charges or taxes due by the owners of the boats, provisionally seized in this suit.

The opinion of the District Judge is elaborate, and his conclusions upon the merits correct.

He did not err in. rejecting' the testimony offered on behalf of defendants. The testimony offered was immaterial.

For the reasons given by the District Judge, it is ordered, adjudged and decreed, that the judgment be affirmed, with costs, subject to a credit of ninety dollars remitted in the court below.

OPINION OP THE DISTRICT JUDGE.

At a sale made by the Comptroller of the City of Jefferson, under the directions of the Mayor and Aldermen of Jefferson City, Joseph Schwartz became the purchaser of the privilege of collecting' for his own use and benefit, the revenues of the port of said town during eight years. The adjudication was ratified by the council, and the Mayor authorized to sign a transfer of the rights of the corporation ; the lessee agreeing to collect the wharf and levee dues according to the tariff of port charges adopted at the sitting of May 4th, 1858.

The present suit is brought by the lessee to recover the wharfage due by thirty-two flatboats, under said tariff of charges. A number of similar suits having been brought either against the owners, or against the property itself where the owners were unknown, the different cases have, by agreement, been consolidated.

The defendants, after excepting to the demand of plaintiff on the ground that the suit is not properly brought, because the City of Jefferson is the only party which can stand in judgment in a case of this nature, plead the following' means of defence:

1st. The contract is null, because it is a contract between T. F. Laizer, Mayor, and Schwartz, and that the Mayor cannot bind the corporation. In order to be binding upon the corporation, the contract should have been made in the name of said corporation.

2d. All the proceedings of the council in this matter are null and void, because some of the members of said council were not legally in office, and were incapable of doing any act obligatory on the City of Jefferson.

3d. The council of Jefferson City is a judicial person, having no other powers than those specially granted by its charter, and no power has been given to lease the port revenues; they, therefore, could not make such contract.

4th. Schwartz used fraudulent means to have the tariff of port charges changed; and the said Schwartz, a committee of the council, and some of the defendants, had made an agreement before the adoption of the tariff, by which certain levee charges should be fixed at a certain sum, when, in fact, the tariff has been fixed at a much hig'her rate.

5th. The sale was made at auction by the Comptroller, who had no right to make such sale. The sale, therefore, is null.

6th. The ordinance fixing the tariff is unconstitutional, inasmuch as it is not equal and uniform.

7th. The council had no right to sell the future revenues, and the sale is made for a much smaller price than the council could have collected itself.

8th. The lessee has not complied with the obligations of the contract, by neglecting to place check posts, repair wharves, &c. The contract is, therefore, null and void.

9 th. The ordinances ordering the sale, fixing the tariff authorizing the Mayor to sign the contract, are null and void, because the council was by law prohibited from transacting' any business in the month of May, until they had provided for the payment of the interest of the funded debt.

Such is the defence, and we will examine these different pleas seriatim :

I. The contract purports to be between F. J. Laizer, Mayor of the city of Jefferson, and Joseph Schwartz ; after reciting the quality in which J. F. Laizer appears, the act states that the contract is made in conformity with an adjudication and sale made by order of the council, and there is annexed to the contract a resolution of that body authorizing the Mayor to sign the act. It is clear, then, that the act is that of the council, represented by its Mayor, and not that of the Mayor alone.

II. The question raised in the second ground of defence was decided incidentally, and after mature deliberation, the court has not changed its opinion, and thinks that the qualifications of the members of the council cannot be inquired into in these proceedings.

III. It is true that the City of Jefferson is a judicial person, and has no other powers than those specially granted by its charter or by necessary implication. The question now presented to the court is this : Does the charter of the City of Jefferson give to the corporation the right to lease the revenues of the port ? We find by section first of the charter, “ that the corporation has the power to sue and be sued, plead and be impleaded, defend and be defended, in any court whatever ; to hold, possess, enjoy and retain, all and every kind of property whatever, provided the same be for municipal purposes, and the same to sell, alien, lease, farm and dispose of.

Sec. 12th of the charter gives to the corporation power to lay and collect taxes in such a manner, and for such amounts as they may deem expedient on all steamboats, ships, flatboats, rafts and crafts of every description, landing at the levee of said corporation.

These two sections of the charter are too clear to admit of any doubt upon the question of power to lease the revenues of the port. But, says the defence, the council can only sell transfer or lease for municipal purposes. For what other than municipal purposes could the contract have been entered into ? The farming of markets, wharves, port dues, &c., are clearly acts of administration, and may be made injudiciously. But is nevertheless a right which corporations enjoy and which they can exercise.

IY. The question raised on the fourth ground of defence has also been decided incidentally. We are, indeed, at a loss to know how a binding agreement could have been made between Schwartz, the committee of the council, and some of the defendants, about the rates of wharfage, before the passing of the ordinance fixing the tariff, and before the adjudication by the Comptroller to Schwartz.

Y. The charter provides that “ all contracts for public works, or for materials and supplies, ordered by the council, shall be offered by the Comptroller at public auction, and given to the lowest bidder. The Comptroller shall, in addition to the duties herein enumerated, perform such others as the council may prescribe.”

Admitting, for the sake of argument, that the Comptroller can only act as an auctioneer for the sale of contracts for public works and supplies, it does not follow that an adjudication made by him to the highest bidder, and ratified by the council, is null and void, as well as the contract signed after the adjudication. The law which forbids the sales at auction by other persons than auctioneers, imposes a fine upon those who exercise the trade or business of auctioneer without a license, but it does not annul the sales thus made and afterwards clothed with all the formalities of authentic acts. But cannot the sale of property at auction by the Comptroller be considered as one of those duties which the council may prescribe.

VI. The ordinance fixing the tariff of wharfage and levee charges, is said to be unconstitutional, because it imposes a tax which is neither equal nor uniform.

It has been decided more than once, that such charges were not, properly speaking, a tax, like that which is levied for the support of government. It is a compensation paid by those whose vessels, crafts and rafts, find a landing and accommodations for their vessels and merchandise. We cannot consider such contributions, compensation or tax, to be unequal, because one vessel having a cargo worth thousands of dollars pays the same wharfage as that which is worth but as many hundreds. Can it be reasonably argued, that a scale of proportions should be made of the value of vessels, cargoes, &c., landing at the levee, in order to establish an equal proportion of wharfage for each vessel and cargo ? The fluctuations of the market would require a constant change in the tariff, according to the respective value of the vessels and cargoes. The same reasoning applies to rafts.

VII. If the contract is onerous to the corporation, what right does it give to .the defendants to interfere ? As long as the council of Jefferson City does not complain, we may well suppose that there is no just cause of complaint, for the members of said council are the true representatives of the interests of the people of Jefferson City.

VIII. If the lessee has failed to place check posts, and to repair the wharves, as required by the contract, the council has the right, under said contract, to annul the lease without applying to a court of justice, and without indemnifying the contractor. But how can the defendants expect to be heard, when they complain of the non-execution of a contract to which they are no party. They have mistaken their remedy ; and the council of Jefferson City is the source from which they must seek redress.

IX. The Act of 1856, providing for the payment of the interest of the funded debt of Jefferson City, makes it the duty of the council annually, in the month of May, specially to appropriate and set apart from the revenues of said city a certain sum for the payment of the interest of their funded debt, and it is not lawful for the council to proceed to other business until such appropriation is made.

The appropriation was made on the 26th of May, 1858. No particular day of May being fixed by the law for such appropriation, the council could, without violating the law, wait until the last day of May to make it. Art. 2052 of Civil Code says, expressly, “ where a time is given or limited, the obligor has, until sunset of the last day, limited for its performance, to comply with his obligation.”

Moreover this law, which has no sanction, instructs the council when they are to provide for the payment of their debt, but does not annul their other acts in case they should neglect to comply with its provisions. We cannot believe that the Legislature intended that no act of administration should be done in May, before the appropriation for the payment of the debt. And perhaps it would be necessary lor the council to act previously, for the purpose of finding the means of paying said debt.

Upon the whole, we think that no well founded ground of defence has been opposed to plaintiff’s claim.

It is, therefore, ordered, adjudged and decreed, that there be judgment in favor of plaintiff, against the thirty-two flatboats provisionally seized in this case, for the sum of five hundred and sixty dollars, with interest from judicial demand, and costs of suit; this judgment to be satisfied by privilege on said flatboats and on the proceeds of the sale of the same..


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    City of New Orleans v. S. Lambert.
    An ordinance of the City Council, ordering a "blacksmith’s shop to he closod as anuisanco, is authorized "by law, and may bo carried into effect by an injunction restraining the owner from continuing it.
    PPEAL from the Third District Court of New Orleans, Duvignaud, J.

      J. J. Michel, for plaintiff and appellant. C. Roselius, for Defendant.
   Land, J.

The petition alleges that the defendant is the proprietor of a certain blacksmith shop, situate in the Fourth District of the city of New Orleans, and that said shop is subject to the police regulations of the city, and liable to be closed and stopped in its operations whenever it becomes a nuisance, or dangerous to public health or safety.

The petition further alleges that the shop renders living in the neighborhood inconvenient and unpleasant, on account of the noise, the odor and smoke thereof, and that the same is a nuisance and carried on in violation of the city ordinances.

The defendant obtained a rule on the plaintiff to show cause why the injunction issued in this case should not be dissolved, on the grounds that the ordinance referred to in the petition is a mere nullity, and that the petition does not set forth any case for an injunction.

The rule was made absolute, the injunction dissolved, and the plaintiff ordered to pay the costs of suit.

It does not appear from anything in the record, that the ordinance referred to in plaintiff’s petition is amere nullity, nor has the defendant’s counsel favored the court with an argument on that point.

The facts set forth in the petition authorized the issuing of an injunction, and if true, are sufficient to perpetúate it.

Article 665 of the Civil Code provides, that if the works or materials for any manufactory or other operation, cause an inconvenience to those in the same, or in the neighboring houses, by diffusing smoke or nauseous smell, and there be no servitude established by which they are regulated, their sufferance must be determined by the rules of the police, or the customs of the place.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed, the injunction reinstated, and the cause remanded to the lower court for further proceedings according to law, and that the defendant pay the costs of this appeal.


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    B. Haynes, Liquidator, v. David Pipes.
    A judicial sale to enforce a mortgage for the security of a stock loan by a bank, does not release the mortgage for the security of the subscription of stock.
    from tlie District Court of the Parish of East Feliciana, Ratliff, J.

      J. Me Vea, for plaintiff. F. Hardesty and J. 0. Fuqua, for defendant and
   Buchanan, J.

The plaintiff seeks to enforce the stock mortgage of the Clinton and Port Hudson Railroad Company against a third possessor of the mortgaged property. The defendant plead, that he purchased the land mortgaged at a sale made by order of the United States District Court sitting in bankruptcy, and that the Commissioners of the Olinton and Port Hudson Railroad Company made themselves party to the proceedings in bankruptcy, and promised to give defendant a release, if he would buy the property for a certain sum, which he did.

It is needless to inquire how far the Commissioners were competent to make a verbal agreement to release a debtor of this insolvent corporation; or how far a sale in bankruptcy operated to extinguish this mortgage, for it appears from the evidence that this agreement related to a different debt due the company, and by a different debtor, from the debt which is the object of the present proceeding.

It is in proof, that after the sale made in the bankruptcy of John M. Smith, this property was again seized and sold, (in August, 1844,) to satisfy the stock loan, to Charles M. Smith, ■ which had never been assumed by John M. Smith. Now, in the case of Haynes v. Harbour, we have just decided, (in conformity to the decision in Meeker v. The Clinton and Fort Hudson Railroad Company, 2d An. 971,) that a judicial sale to enforce the mortgage for the security of stock loans, did not release the mortgage for the security of the subscription of stock. Besides, in the sale of 3d August, 1844, this property was adjudicated by the Sheriff to the defendant, subject to the mortgage which it is the object of the present proceeding to enforce.

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

Meeeicic, C. J., having been of counsel in these cases, took no part in this decision.


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

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    E. T. Parker, Sheriff, v. E. W. Robertson, Auditor.
    Tlio Act of 1857 having provided that “ all tho criminal expenses incurred in tho different;'i)arislios'o tills State, by arrests, confinement, and prosecution of persons accused of crime, tlieir removal.t*d prison, tlie pay of witnesses, and all other expenses attending criminal prosecutions, except ilio- pay _ of jurors, shall he paid by the State, upon the certificate of the Cleric and tho presiding Judge of tho several courts of this State,” tho duties of the Auditor relative to accounts for such expenses thus certified, are ministerial and imperative, and bo must issue his warrant on tho Treasurer therefor. It would he otherwise, if the certificate of the Cleric and Judge should show upon its face that it was not drawn in accordance with the law, as, for instance, if it purported to ho for feos in civil suits.
    The 15th section of the Act of 1855, which gives the Sheriffs $100 per annum for their fees in criminal cases, did not intend this sum as tlieir solo compensation. There are many services rendered by Sheriffs, which aro not provided for in tho fee hill.
    The party convicted in a criminal case must he condemned to pay tho costs, and after a return of nulla bona, or after tho Clorlc and Judge arc satisfied by sufficient evidence that tho convict has no property, then the State becomes responsible for the costs.
    from the Second District Court of New Orleans, Morgan, J.

      Randell Hunt, for plaintiff. E. W. Mo'ise, Attorney General, for defendant and appellant.
   Cole, J.

On the 15th of December, 1858, an account of E. T. Parker, Sheriff of the parish of Orleans “ for fees incurred in the prosecution of criminals from the 1st of April to the 30th of June inclusive,” was presented to the Auditor of the State of Louisiana, to be audited, which was refused.

The bill included not only fees, but also the expenses incurred during the specified period for cab-hire, refreshment to jurors, the pay of witnesses, candles, lamps, &e., with the exception of the pay of officers.

Plaintiff then applied for a mandamus to direct the Auditor to draw a warrant upon the Treasurer of the State, in his favor, for the amount of the bill, and to deliver the warrant to him.

The order issued, commanding tho Auditor to show cause why the writ should not be granted.

Upon the trial of the rule, it was made absolute. The Auditor appealed.

Tho bill of plaintiff is claimed under the Act of 19th March, 185’?, entitled “ An Act relative to the payment of expenses incident to the prosecution of criminals.” Sess. Acts, 1857, p. 187.

Sec. 1. Be it enacted, &c., “ That all the criminal expenses incurred in the different parishes of this State, by arrests, confinement, and prosecution of persons accused of crime, their removal to prison, the pay of witnesses, and all other expenses attending criminal prosecutions, except the pay of jurors, shall be paid by the State upon the certificate of the Clerk and the presiding Judge of the several courts of this State.”

The bill of plaintiff was certified, as required by the preceding section.

The duties of the Auditor would appear to prevent him from impugning’ the certificate, when it is upon its face within the particular jurisdiction confided to the Judge and Clerk by the section aforesaid of the Act of 1857.

Sections 5 and 12 of the Act of 1855 “ to regulate the office of Auditor of Public Accounts,” read as follows :

See. 5. Be it enacted, &e., “ That it shall also be his duty, first, to audit, adjust, and settle all claims against the State, payable out of the treasury, except such claims as may be expressly required by law to be audited and settled by some other officer or person.”

Sec. 12. “ That in all cases of accounts audited and allowed against the State, and in all cases of grants, salaries and expenses allowed by law, the Auditor shall draw a warrant upon the Treasurer for the amount due, in the following form,” &c. Sess. Acts. 1855, p. 125, §ji 5 and 12.

The Act of 185V, already recited, provides that the criminal expenses shall be paid “ upon the certificate of the Clerk and the presiding Judge of the several courts of the State.”

The Act of 185Y leaves it to the wisdom of the Judge and Clerk to interpret the Act of 185V, and to decide what are the expenses inteuded by it. The duties of the Auditor relative to accounts thus certified are ministerial and imperative. He has no supervisory control over the Judge and Clerk, and is not an appellate or superior tribunal vested with the power of deciding that these officers have been in error in their interpretation of the law.

The Legislature have manifested their confidence by clothing them with the power of certifying these accounts. They are also able to certify knowingly, because the services are rendered in causes that have been tried before them.

It is true, that as the certificate is, according to Mr. Crittenden, “ the evidence of the exercise of a special and limited jurisdiction, it must show upon its face a case within that jurisdiction.”

If, for example, the certificate of the Judge and Clerk should show upon its face, that it was for fees in civil suits, the Auditor might refuse to authorize its payment, because there is no law empowering the Judge and Clerk to certify them in order to have them paid by the State.

But when the law orders that the expenses in criminal matters shall be paid upon the certificate of the Judge and Clerk, it leaves to them the interpretation of the nature of the expenses, and the Auditor is obliged to follow their interpretation and to view as expenses whatever they have so considered, which have been caused in criminal matters before them.

If they abuse their trust, or err in their interpretation, it is easy for the Legislature to deprive them of the power of certifying.

Our construction of the powers of the Auditor appears to have been that of several of the Attorneys General of the United States in analogous cases, and also that of several of the Justices of the Supreme Court of the United States.

The fourth section of the Act of Congress of 8th May, 1V92, (1 Statutes at large, 2YY,) has this provision in relation to the Marshal’s accounts : “ The same having been examined and certified by the court or one of the Judges of it, in which the service shall have been rendered, shall be passed in the usual manner at, and the amount thereof paid out of the Treasury of the United States to the Marshal,” &c.

Mr. Justice Story was of opinion “ that the certificate of the Judge upon the examination of the Marshal’s accounts was conclusive, and that the items of the charges are not re-examinable in any manner, by the officers of the Treasury Department.” He further says, “ Some years since, the same question was brought before the Judges of the Supreme Court of the United States for their consideration, upon the instance of some one of the Judges. It was then fully considered by all of us; and it was the unequivocal opinion of the Judges, (and my impression is, that there was an entire unanimity of opinion), that the certificate of the Judge upon the accounts of the Marshals was conclusive and could not be re-examined at the Treasury Department, but must be passed as of course. I have never, at any time, heard a doubt expressed by any Judge, that this was the true and only legitimate construction of the statute; and I have no objection to its being communicated to the Treasury Department.” Rep. of Com. H. R., No. 132, 2d sess. Oong. p. 8.

See also, upon the same and analogous questions, the opinions of Attorneys General TJ. S., Reverdy Johnson, H. S. Legaré and J. J. Crittenden. Hommerich v. Hunter, State Treasurer, ante p. 225.

Upon the hypothesis, however, that the certificate of the Clerk and Judge is not conclusive, and that the Auditor was entitled to go behind the certificate and to re-examine the Sheriff’s account, he was still bound to issue the warrant demanded, because all the items in the account are for the expenses of criminal prosecutions in the parish of Orleans, which the Legislature in the Act of 1857 declares shall be paid by the State.

The correctness of the fees is not disputed, but the liability of the State for their payment is denied. The expenses in the bill, except the fees of the Sheriff are admitted to be a legal charge against the State. The Attorney General in his brief says, that the expenses of cab hire, lights, &e., are admitted, and that the inquiry is “ narrowed ” down to this : did the State, in the Act of 1857, assume the payment of Sheriff’s fees in criminal cases ? It is denied that fees are included in the word “ expenses ” in the Act of 1857, already quoted. In justification of this denial, reference is made to the Acts of 1805,1807 and 1808 of the Legislative Oouncil of the Territory of Orleans, and to those of 1813,1817,1842 and 1848 of the Legislature of the State.

Even admitting that during this period Sheriffs were not paid by the State their fees in criminal prosecutions, or received in their stead a small compensation fixed by law, not for any particular official acts, but for the whole of their services, still, this would not defeat the demand of plaintiff.

A reference to ancient statutes to illuminate a modern law is not so satisfactory when there is a manifest variation between them, and when the intention of the Legislature to depart from the former jurisprudence has been clearly exhibited, as we shall proceed to show has been done, in their legislation upon the payment of criminal expenses.

In 1852, an Act to change and regulate the expenses of criminal prosecutions throughout the State was passed, which is as follows :

Sec. 1. “ That all the expenses hereafter incurred in the different parishes by the attendance of physicians, and for maintenance and clothing of individuals condemned for the commission of any crime, and of such as are accused of any crime or misdemeanor cognizable by the District Courts of this State, shall be paid by the respective parishes in which the offence or offences charged may have been committed.”

Sec. 2. “ That the fees, salaries and expenses provided by this bill to be paid by the local authorities, shall be fixed and regulated by the said authorities; and until the same be done by the said authorities, the fees, salaries and expenses shall remain as now fixed by law and be paid by the local authorities.”

Sec. 3. “ That all laws, or parts of laws, upon the subjects treated of in this Act, be and the same are hereby repealed.” Sess. Acts, 1852, p. 180.

The point to be noticed in this statute is that “ expenses ” in the first section are made in the second section to include “ fees.”

It is not so clear that Sheriffs would he entitled to he paid, under this law, their fees in criminal prosecutions, but it was so interpreted by the city authorities, and Sheriff Marigny was paid under it for sundry prosecutions.

In 1855, under the title of “ expenses of criminal prosecution,” the Legislature enacted the following statutes :

Sec. 68. Be it further enacted, &c., “ That all the expenses incurred in the different parishes by the arrest, confinement and prosecution of persons accused of crime, their removal to prison, the pay of witnesses, jurors, &c., and all expenses whatever attending criminal prosecutions, shall he paid by the respective parishes in which the offence charged may have been committed.”

Sec. 69. “ That the fees, salaries and expenses to be paid by the local authorities, shall be fixed and regulated by them; and until the same be done, they shall remain as now fixed by law.”

Sec. '73 repeals all other laws contrary to the provisions of this Act. Sess. Acts, 1855, p. 161.

“ Pees ” in the 69th section are included in this statute in “ expenses ” in the 68th section, and these sections clearly provide for their payment; for not only are mentioned the pay of witnesses and jurors, but also the expenses for the arrest and prosecution of persons accused of crime.

Even if the ancient legislation made a distinction between fees and expenses, and expenses did not comprehend fees, yet this statute embraces fees in the word “ expenses ” and repeals all laws contrary to the provisions of this Act.

In 1857, an Act was passed “ relative to the payment of expenses incident to the prosecution of criminals,” which is as follows :

Section 1. Be it enacted, &e., “ That all the criminal expenses incurred in the different parishes of this State, by arrests, confinement and prosecution of persons accused of crime, their removal to prison, the pay of witnesses, and all other expenses attending criminal prosecutions, except the pay of jurors, shall be paid by the State upon the certificate of the Glerk and the presiding Judge of the several courts of this State.” Sess. Acts, 1857, p. 187.

This Act is almost identical with that of 1855, except that it excludes from the expenses to be paid by the State the pay of Jurors, makes the State, instead of the parishes, responsible for the criminal expenses, and ordains that the expenses shall be paid upon the certificate of the Clerk and the presiding Judge of the several courts of the State.

The Act of 1855 .in the use of the word “ expenses ” included therein fees, ” and if there were any doubt of the intention of the Legislature in the use of the word “ expenses ” in the Act of 1857, it would be reasonable to interpret expenses ” therein to include fees, because it is almost a reenactment of the Act of 1855. If the Act of 1857 were not to be so understood, then the word expenses ” would be defined as used, according to the Attorney General, by the ancient jurisprudence, and be considered as not embracing “ fees.” But the ancient legislation upon the subject was repealed by the Act of 1855. It seems more rational, then, to define expenses as used by the Act of 1855, particularly as the Act of 1857 does not contain any repealing clause. The Act of 1857 must be considered to be a substitute for that of11855, and to have used the word “ expenses ” in the same sense as it was understood in the latter Act.

The statute of 1857, however, appears to be clear and comprehensive.

It provides that all the criminal expenses shall be paid by the State, except the pay of jurors, and explains the nature of the expenses, namely all those in-currod by arrests, confinement and prosecution of persons accused of crime, their removal to prison and the pay of 'witnesses. In order, however, to remove all doubt, it adds, that all other expenses attending criminal prosecutions, except the pay of jurors, shall be paid by the State.

Fees of Sheriffs are certainly a part of the expenses attending the arrest,.confinement, removal to prison and prosecution of persons accused of crime.

If such were not the intention of the Legislature, they could have excepted from the expenses the fees of Sheriffs, as they excluded the pay of jurors.

It is admitted that under the Act of 1857, John M. Bell, Sheriff of the parish of Orleans, was paid out of the State Treasury fees and costs of criminal prosecutions in the parish of Orleans, for a part of the year 1857.

It is, however, argued, that the 15th section of the Act of 1855 “ gives the Sheriff a salary of one hundred dollars per annum, for his services in matters of a a criminal nature pending in courts, and that this was intended to compensate him in full for his services in all cases where the accused was acquitted, and in all cases in which the person convicted was unable to pay the costs.”

Sec. 15 is as follows : “ Every Sheriff in this State shall be entitled to one hundred dollars per annum, and each and every Clerk of the several District Courts to fifty dollars per annum, as a compensation for their services in matters of a criminal nature pending in their respective courts.” Sess. Acts, 1855, p. 168.

This statute does not declare that Sheriffs shall not be entitled to more than one hundred dollars for their fees in matters of a criminal nature; and this samo Act, section 12, provides that Sheriffs shall be entitled to demand from the parish one dollar for whipping any person sentenced to that punishment, and twenty-five dollars for executing any person condemned to capital punishment, to be paid by the parish.

Besides, the Legislature have put their interpretation upon section 15, by declaring in the Act of 1857 that the fees of Sheriffs shall be paid by the State.

The Act of 1857 is subsequent to that of 1855, and if there be any portion of the latter Act upon the same subject-matter, which is opposed to the former, it must be considered to have been repealed.

But it is unnecessary in the case at bar to view them as adverse in their provisions, for there arc many services in criminal matters performed by Sheriffs, which are not provided for in the fee bill.

They arc obliged to be with juries when they retire to take their meals, to watch over them when the court takes a recess, to keep an eye over prisoners not upon bail when in court, and they render many other services not detailed in the fee bill.

A hundred dollars appears to be a moderate compensation for services performed by Sheriffs in criminal matters, for which fees are not provided in the fee bill.

It is also objected, that the Act of 1855 provides that the party convicted shall pay the costs of prosecution, and the question is asked, does the Act of 1857 repeal this provision of that Act. It does not, but according to our construction of these two Acts, the party convicted must be condemned to pay the costs, and after a return of nulla bona, or after the Clerk and Judge are satisfied by sufficient evidence that the person convicted has no property, then the State becomes responsible for the costs. See opinion of H. D. Gilpin, Attorney General II. S., July 20th, 1840.

Judgment affirmed, with costs.

Merrick, C. J.,

concurring'. I do not attach much importance to the fact, that the fees of officers in criminal prosecutions, were not paid t>y the State from 1814 to 1857, for the reason that the State is a sovereignty, and such payments could only be made by some special legislation. Salaries were paid to Sheriffs instead of detailed fees.

In 1852, a new system was inaugurated. The “ expenses” in criminal proceedings were thrown upon the parishes and city, by the first section of the Act of 1852, and the second section of the same Act defined what was meant by “ expenses,” in saying, “ that the fees, salaries and expenses provided by this bill, to be paid by the local authorities, shall be fixed and regulated by said authorities ; and until the same be. done by said authorities, the fees, salaries and expenses, Shall remain as now fixed by law, and be paid by the local authorities’’

There, then, was new legislation and a declaration by the sovereign, that fees, salaries and expenses, were to be paid by the local authorities.

To aid the parishes in meeting the new burden thus imposed, the Legislature, the following year, granted the parishes and the city of New Orleans, all fines and forfeitures collected in the same respectively. Acts 1853, p. 295.

In 1854, a law was passed declaring the moneys collected for fines and forfeited bonds in the parish of Orleans, a special fund out of which “ all costs and expenses accruing in criminal prosecutions, in the First District Court of New Orleans,” should be paid. Acts 1854, p. 58.

In 1855, as is well known, the Legislature undertook to reduce to one body the previous legislation on many subjects, and in pursuance of this object, the Act of 14th of March, 1855, l'elative to criminal proceedings was passed, which uses the word expenses” in the same comprehensive sense as the first section of the Act of 1852. The sixty-eighth section, p. 161, is in these words: “ That all the expenses incurred in the different parishes by arrest, confinement and prosecution of persons accused of crime, their removal to prison, the pay of witnesses, jurors, &c., and all expenses whatever attending criminal prosecutions, shall be paid by the respective parishes, in which the offence charged may have been committed.”

Here again the word “ expense” is used in its usual sense, and is expressly declared by the lawgiver to comprehend costs and fees.

And in the following section, he reiterates the same definition as contained in the second section of the Act of 1852, and confers on the local authorities the same powers. See Acts 1855,161, secs. 68, 69.

Up to this point, the case presents no difficulty. But in 1855, in an Act, to define and regulate costs and fees generally, the Legislature, notwithstanding it had conferred upon the local authorities the power to regulate fees, &o., and bound them to pay the fees and costs of criminal prosecutions, gave, it would seem, to the Clerk and Sheriffs, (at least whenever it was to their advantage,) a cumulative mode of obtaining compensation, (which in some parishes would doubtless more than equal their fees,) by awarding the Sheriff one hundred dollars, and the Clerk fifty dollars. Acts of 1855, p. 168.

But whatever may have been the object of the Legislature in reviving the former provisions of law, at the same time it compelled the local authorities to pay .the fees and costs of prosecution, and gave them power to regulate the same, it cannot annihilate the plain provisions of the special Act relative to criminal proceedings.

The last named Act professed to treat directly of the subject matter in hand, and it compelled the local authorities to pay, under the term “ expenses,” the Sheriff's fees, viz, all expenses incurred by arrest, confinement, and prosecution of persons accused of crime, their removal to prison, the pay of witnesses, jurors, &e., and all expenses whatever attending- criminal prosecutions, and is thus a special Act on the subject. See St. Martin v. The City, ante p. 113.

Under these laws, the Sheriffs of New Orleans were paid their fees in criminal cases, from 1852 to the year 1857, and it was never pretended or supposed that the cumulative compensation of the Act of 14th of March, 1855, could deprive the Sheriff of the compensation explicitly given him by the Act to regulate criminal proceedings. Indeed, what compensation would $100 be to the Sheriff of the parish of Orleans for his fees in the criminal prosecutions ?

It is well known that the people of some of the parishes complained of the ’burden imposed upon them by this legislation. In 1857, therefore, the Legislature, using a term which it had so repeatedly defined, took upon itself, by the same terms, and by nearly the same words, the burden which it had previously imposed upon the local authorities.- Its language is :

That all expenses incurred in the different parishes in this State by arrests, confinement and prosecution of persons accused of crime, their removal to prison, the pay of witnesses, and all other expenses attending criminal prosecutions, except the pay of jurors, shall be paid by the State, upon the certificate of the Clerk and the presiding Judge of the several courts of this State.”

And whilst the State relieved the local authorities in this manner, it attempted, by a subsequent section, (which has been declared unconstitutional,) to withdraw from them the fines and forfeitures which had been granted to meet the burden.

It appears to me, therefore, that the fees of the Sheriff in criminal prosecutions form a part of the subject-matter confided to the Clerk and Judge to audit.

And I concur with my colleagues, that on any matter confided to them, their action is conclusive upon the Auditor of Public Accounts, and when they have once directed the fees of the Sheriff in criminal prosecutions to be paid, the duty of the Auditor is only ministerial, and he must draw a warrant for the same.

Land, J.,

dissenting: The account in dispute is for the sum of $2801 60, is stated to be for “ fees incurred in the prosecutions of criminals, from the 1st day of April to the 30th of June, 1858, inclusive,” and is certified by the Judge and the Clerk of the First District Court of New Orleans to be correct.

That the Legislature has the right to declare what expenses, fees and salaries, in criminal prosecutions, shall be paid by the State, and to fix the amount thereof, and to prescribe the mode of payment, is not disputed. This right has at all times been exercised by the State, and from an examination and comparison of the laws now in force, upon the subject of Sheriff’s fees in criminal cases, with th & former laws upon the same subject-mattter, they are found to be uniform, consistent and identical.

The Act approved March 28th, 1813, to “ establish explicit fee bills,” provides that the several Sheriffs throughout the State shall be entitled to demand and receive certain fees for their services in civil and criminal cases, and the 14th section thereof provides, “ that the Sheriff' of the First District shall be allowed for his services in criminal prosecutions and all ex-officio services not otherwise provided for, a sum not to exceed two hundred dollars; and all other' Sheriffs for like services, a sum not to exceed forty dollars, which allowance shall annually be paid by the District Judge, and shall be paid out of the public treasury on the warrant of the Judge.”

Tho ^,c(, 0f 1855 “ to regulate and define costs and fees generally,” approved March 14th, which is the law now in force, provides that the Sheriffs throughout the State shall be entitled to demand for their services in civil and criminal cases certain fees, and no more, and the 15.th section thereof provides, “ that every Sheriff in this State shall be entitled to one hundred dollars per annum, and each and every Clerk of tho several District Courts to fifty dollars per annum, as a compensation for their services in matters of a criminal nature pending in the respective courts.”

This provision in the Act of 1855, granting to Sheriffs a fixed compensation or salary for their services in criminal cases pending in the courts, has been the settled policy of the State, so far as I can learn from the statutes, since the year 1813.

This policy was not changed by the Act of 1852, which imposed upon the parishes respectively, the obligation of paying all expenses in criminal prosecutions, nor by the Act of 1855, which continued that obligation in force, until the passage of the Act of 1857, by which the payment of these expenses was resumed by the State.

It is admitted that at the date of the passage of the Act of 1852, the State did not pay to Sheriffs, fees for their services in criminal cases pending in court, and as the Act of 1852 expressly declares that the fees, salaries and expenses in criminal prosecutions shall remain as then (now) fixed by law, until changed by the local authorities, it necessarily follows, that the parishes were not bound to. pay any greater or other fees, salaries or expenses than the State had paid prior to the passage of that Act, and that whether the parishes paid the salaries formerly paid by the State, or paid specific fees in place thereof, was a matter left by the Act to the discretion of the local authorities. The Act of 1855 contained the same provision, that the fees, salaries and expenses shall remain as then fixed by law, until changed by the local authorities. It is also admitted that at the date of the passage of this Act the State did not pay to Sheriffs, fees for their services in criminal cases pending in court.

It appears from these various Acts, and the admissions in the record, that the public policy of the State to allow Sheriffs, a fixed compensation or salary for their services in criminal cases pending in the courts, instead of specific fees, has remained unchanged from the year 1813 to 1857, and the question presented to this court is, whether the Act of 1857 has changed that policy, or repealed the laws establishing it.

The Act of 1852, page 188, -is as follows :

Section 1. That all the expenses hereafter incurred in the different parishes, by the attendance of physicians and for maintenance and clothing of individuals condemned for the commission of any crime, and of such as are accused of any crime or misdemeanor cognizable by the District Courts of this State, shall be paid by the respective parishes in which the offence or offences charged may have been committed.

Section 2. That the fees, salaries and expenses provided by this bill, to be paid by the local authorities, shall be fixed and regulated by the said authoritiés ; and until the same ba done by the said authorities, the fees, salaries and expenses shall remain as now fixed by law, and be paid by the local authorities.

The Act of 1855 is in these words :

Section 69. All the expenses incurred in the different parishes, by the arrest, confinement and prosecution of persons accused of crime, their removal to prison, the pay of witnesses, jurors, &c., and all expenses whatever attending criminal prosecutions, shall be paid by the respective parishes in which the offence charged may have been committed.

Section 70. The fees, salaries and expenses to be paid by the local authorities, as above provided, shall be fixed and regulated by them, except for the maintenance of prisoners ; and until the same be done, they shall remain as now fixed by law.

The Act of 1857 is as follows:

Section 1. That all the criminal expenses incurred in the different parishes of this State, by arrests, confinement and prosecution of persons accused of crime, their removal to prison, the pay of witnesses and all other expenses attending. criminal prosecutions, except the pay of jurors, shall be paid by the State, upon the certificate of the Clerk and the presiding Judge of the several courts of this State.

It is evident that the only intention of the Acts of 1852 and 1855, was to impose upon the parishes the payment of all expenses in criminal prosecutions ; and it is equally evident that the only intention of the Act of 1857 was to resume the payment thereof on the part of the State.

The language of the Acts imposing upon the parishes the payment of all expenses in criminal matters, is more general and comprehensive than the language of the Act of 1857, resuming the payment thereof.

It has already been shown, that it was only the intention of the Legislature, by the use of the general terms, fees, salaries and expenses, in the Acts of 1852 and 1855, to impose upon the parishes the payment of such fees, salaries and expenses as were then established by law, and which the State itself was bound to pay — for those Acts declare, that the fees, salaries and expenses thus imposed, shall remain as then fixed by law, until changed by the local authorities. It has also been shown by the statutes, that the State at the respective dates of the Acts of 1852 and 1855 was only bound to pay Sheri® for their services in criminal cases pending in the courts, the salaries provided by law, and not specific fees.

It is also shown by an admission in the record, that no liability on the part of the State to pay Sheriff’s fees in criminal cases was acknowledged at the treasury from the year 1814 to 1857.

The Act of 1855, “ to define and regulate fees and costs generally,” is the law now in force, and which determines the fees which Sheriffs are entitled to demand and receive in civil and criminal cases. The only fees allowed by this Act, which Sheriffs are entitled to demand and receive in criminal cases from the State, in addition to the salary of one hundred dollars granted by the 15th section, are the fees for keeping and maintaining prisoners in jail, and for transporting prisoners to the penitentiary, or from one parish to another.

The Act of 1857 does not expressly repeal the last mentioned Act of 1855, or any part thereof, nor does it contain any provision inconsistent with or repugnant thereto.

The fees claimed by plaintiff are the fees to which Sheriffs are entitled in civil cases. There is no law providing that Sheriffs shall be entitled to demand lilce fees from the State in criminal cases.

The Act of 1855, establishing explicit fee bills, is similar to the former Acts on the same subject-matter, and the interpretation given to those Acts, and acquiesced in from 1814 to 1857, was, that Sheriffs were not entitled to demand of the State fees in criminal cases. This interpretation of the former laws, identical with the present, must have been known to the Legislature when the Act of 1857 was passed ; and the failure of the lawgiver to declare specially in the Act of 1857, that Sheriffs should be entitled to demand for their services in matters of a criminal nature pending in the respective courts, other and greater fees than allowed by the Act of 1855, is conclusive to my mind that such was not his intention.

In my opinion, the Act of 1855, “ to define and regulate costs and fees generally,” is in full force, and is decisive against plaintiff’s right to demand the payment of fees from the State in matters of a criminal nature, and that as the fees claimed by him are not allowed by that Act, that he is not entitled to demand and receive them from the State.

Debts against the State can only be created by express and unequivocal legislation, and not by implication or the interpretation of general and indefinite words in a statute, such as are used in the Act of 1857.

Article 94 of the Constitution provides, that no money shall be drawn from the treasury but in pursuance of a specific appropriation made by law, and this provision presupposes the existence of a debt specially created and acknowledged to be due from the State, anterior to the appropriation itself.

The appropriation of one hundred thousand dollars made to pay the expenses in criminal prosecutions under the Act of 1857 was nearly exhausted at the date of the Treasurer’s report to the Legislature, and was wholly insufficient to pay the acknowledged claims for expenses in criminal matters, together with claims of the character of the one in dispute ; and the assumption that the appropriation was made to pay the fees claimed by plaintiff, as part of the expenses in criminal prosecutions, for which the State is liable, is entirely unsupported.

The fact that a part of the fees claimed by Sheriff Bell and his successor the plaintiff, was paid at the treasury under the Act of 1857, cannot affect the question as to the meaning of the Act itself This suit shows that these payments are considered at the treasury to have been made in error.

The argument that the compensation of one hundred dollars, allowed to Sheriffs for services in criminal prosecutions, is insufficient, unjust or impolitic, can with more propriety be considered by the Legislature than this court.

The office of Sheriff is no where vacant. The State compels no citizen to hold the office. It is filled throughout the State by able and efficient incumbents who voluntarily assume the burden of service in criminal prosecutions for the inadequate compensation provided by law, in consideration of the fees to which they are entitled in~>civil proceedings, and, therefore, have no legal right to complain.

In my opinion, the judgment of the lower court is erroneous, and should be reversed. '

Yoortiies, J., absent.