author: Ogden, J. Buchanan, J,

text:
    Denis Cronan v. Samuel J. Peters et al.
    Defendant, an officer of Government, by an erroneous construction of plaintiff's contract with the Government, prevented its performance, and thus deprived plaintiff of advantages resulting from it. The Government ratified the construction which defendant placed upon the contract. IIeld: That the contract was a public one, in which defendant had no personal interest, and which was not obligatory upon him, and that he could not be held liable for an erroneous interpretation of it which the Government ratified.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      ff. B. Duncan, for plaintiff and appellant:
    Good faith, saith Lord Mansfield, in the “Swartwoufc case,” 4 Bur. 1986, is not alone sufficient to protect the agent against personal liability. He puts the two cases as exceptions to the general rule.
    1st. Where the agent is under timely notice, 2d. Where the agent has acted mala fide. This limitation of the general rule was also approved by the Supreme Court of the United States, 10 Peters, 156,
    See, also, Hearsey v. Pruyn, 7 John., 182-3 ; Garyv. Webster, 4 Stra., 480 ; Adams v. Hopkins, 5 John., 255, N. 1; Riplay etal v. Gelston, 9 John ; Fryr. Lockwood, 4 Oowen, 456; Osborn v. the Bank, of the United Sicotes, 9 Wheaton, p. 368, et seq.

    The true, rational, and constitutional doctrine in such cases, is laid down by Justice McLean, as the organ of the undivided Court, in the case of Tracy & Balestier v. Swarbwout, 10 P., 93-9. The case was this : The plaintiffs were importing merchants, had imported, at New York, a quantity of syrup of sugar cane. The defendant was Collector of the port. It was admitted that the lawful duties on the article was 15 per cent, ad valorem. The Collector demanded a bond for said duty, or, should it be required, of throe cents per pound. This he did under positive instruction from the Secretary of the Treasury, The plaintiffs refuse; the goods remained in possession of the Government, and wore deteriorated. The plaintiff admitted that the defendant acted throughout in entire good faith, and under instructions from the Secretar}' of the Treasury.
    The case was tried in the Circuit Court, and the Court instructed the jury that the amount offered by plaintiffs was all the duty the Government was entitled to, yet the circumstances ought to subject the defendant to only nominal damages, that the Collector was pursuing what he believed the true construction of the law. The jury, under this instruction, found for plaintiffs six cents damages, to wit: nominal damages.

      The case came up before the Supreme Oourt, and on the foregoing instructions of the Circuit Oourt, they say,
    “ The Oollector of the Customs is a ministerial officer; ho acts under instructions of the Secretary of the Treasury. * * *
    “Do these instructions, when not given in accordance with law, afford a justification to the Collector, or exonerate him from the payment of adequate damages for an injury resulting from his illegal acts. The Circuit Court did not consider these instructions as a justification to the defendant; and in this they were unquestionably correct.”
    “The Secretary of the Treasury is bound b3r law” * * * Neither he nor those who act under him, can dispense with, or alter any of its provisions. It would be a most dangerous principle to establish, that the acts of a ministerial officer, when done in good faith, however injurious to private rights, and unsupported by law, should afford no ground for legal redress.”
    This, if the Court please, is doctrine and language worthy of an American Jurist, administering American law in a country where, thanks be to God, and the Continental Congress, none are so high as to be above the reach of the law, and none so low but that they may feel that they are safe under its protecting power. Such sentiments are not unworthy of a Denman, who as Lord Chief Justice of England, in the case of Stoehdale v. Mansard, 0 A. & E. 1, declared that the British House of Commons, “cannot alter the law, or by resolution place any one beyond its control. The proposition is wholly untenable, and abhorrent to the first principle of the Constitution of England.”
    It was a case where a printer, being sued for a libel, put forth the plea that he was the printer of the House of Commons — that he had printed only by its order. The House itself adopted the act, and instructed the Attorney General of England to appear — intervene in the case — take the whole defence and plead, as a peremptory exception, that the House having done the act was privileged from suit and irresponsible. The Judge says again, E. C. 80, p. 05., “When one of tny fellow subjects presents himself before me in this Court, demanding justice for an injury, it is not at my option to grant or withhold redress; I am bound to afford it, if the law declares him entitled to it.” That whole opinion may be road and studied by every friend of untrammeled law; of constitutional liberty; of freedom in courts of justice; of historical truth; of eloquent defence of the independence of the judiciary; of a noble assertion of that better rule which upholds the rights of private citizens against the power of the government.
    I revert once more to the case of Tracy. At page 95, the court says distinctly, “ Whore a ministerial officer acts in good faith, for an injury done he is not liable to exemplary damages ; but he can claim no further exemption, where his acts are clearly against the law.”
    I plant myself upon the great truths here vindicated. They cannot be overthrown; and until they arq, the caso at bar is with the plaintiff. When this Oourt shall cut itself loose from the law, and with something worse than judicial blindness echo back what was said of this case in the court below, as seen in the printed opinion, then indeed will the plaintiff lose his case on this question of law, but not until then, and I trust that day may never come.
    At page 97 the court again says that the “plaintiff having failed to give an illegal bond was not a circumstance which should have lessened the plaintiffs’ damages; nor in point of law, should the good faith in which the defendant seems to have acted, exempt him from compensatory damages.” “Some personal inconvenience may be experienced by an officer who shall be held responsible in damages for illegal acts done under instructions of a superior; but as the Government in such cases is bound to indemnify the officer there can be no eventual hardship” 10 P. 98-9, 13 Peters 176-7 (Thompson.)
    An officer entrusted by the Common or Statute Law, is liable to an action for negligence in the performance of his trust or duty, or for neglect in the execution of his office. Jenner v. Joliffe, 9 John., 381.
    It is a general principal of law that whenever an individual has sustained an injury, by the misfeasance or nonfeasance of an officer, who acts or omits to act, contrary to his duty, the law affords redress by an action on the case adapted to the injury. 15 John., 254.
    It is no objection to the action that it is new, if it bo not new in principle. 4 Burr., 2345 ; 5 Burr., 2709-23.

      In an action on the case for nonfeasance if the declaration avers <oi et armis, it is bad. And generally now in this action it is omitted. '1 Comyn., 277, c. 3.
    It is clear from the authorities that money may be recovered from a public officer, though paid to him in the official capacity — and though he may have been acting in the most perfect good faith, and under instructions from his official superiors, — if he received it against law and right Story on Agency, sec. 300, 307. There is no difference in principle between an officer exacting money from a citizen without law, and refusing to give him that which belongs to him, contrary to law.
    In the case of Walltter v. Swartwout, 12 John., 447, Chief Justice Thompson lays down the law to be, that an officer must not only make his official position known but ho must furnish the proper vouchers to the party to enable him to recover from Government, and if he fails to do so he is personally responsible. It is true that a majority of the Court was against the Ohief Justice, but not on this legal point, — only on the facts. See Ripley v.'Gelston, 9 John. 208-9.

      Hunton & Bradford, for defendant r
    For misfeasances and nonfeasances in office, certain officers have sometimes been held responsible personally for injuries resulting therefrom to individuals. The correctness of the principle of law upon which such responsibility was enforced is not questioned. But that principle is not at all applicable in a case like the present. In offices in which the incunlbent owes a duty and is under an obligation to the public at largo as well as to the government which appoints him, this personal responsibility for misfeasances and negligences is acknowledged.
    A postmaster, for example, is under an obligation, by virtue of his office to deliver the letters which come to his office, to the persons legally entitled to receive them, and should he wilfully refuse to deliver such letters, he would for such a misfeasance, be personally responsible to the party injured. So, too, a collector of the customs,by virtue of his office, is under an obligation to receive entries of merchandise, etc., and this duty he owes to the public, to every individual importer, and should he be guilty of any negligence of his prescribed duty, would render himself personally liable to any one injured thereby. But no case has been cited by plaintiff’s counsel, and no case can be found where this principle has been extended to contracts made with the government through its agents.
    “An agent contracting on behalf of the Government, is not personally bound by such a contract even though ho would be by the terms of the contract if it were an agency of’a private nature,” p. 382, lec. 302, et seq.

    This rule has often been recognized and enforced by the courts of England and the United States.
    In the case of Stakes v, Kendall^ 3 How., p. 88-9, Stokes sued Kendall — then P. M. General — alleging that plaintiffs had certain contracts with Barry, Kendall's predecessor, for carrying the mails; that by virtue of said contracts they became entitled to certain credits which Barry caused to be entered in their favor on the Books of the Department. That defendant, as Barry's successor, disallowed said credits, and charged plaintiffs on his books, the sum of $122,000. That subsequently, by a special law of Congress, the accounts between plaintiffs and the P. 0. Department were referred to an auditor, and by said law Kendall was directed to enter upon his book such credits as the auditor might award. This Kendall refused to do. On the trial, the jury, under instructions, found a verdict for plaintiffs for $11,000 damages, sustained as they said, in consequence of the illegal acts of the defendant.
    Now here was a case by which the public officer was, by a special law of Congress, directed to allow certain credits in fulfilment of a contract. He refused to do so, and by his refusal the plaintiffs sustained damages. But was the defendant personally liable? The Supreme Court held the contrary ; and C. J. Taney, in delivering the opinion of the court, used this language: “A public officer is not liable to an action if he falls into an error, in a case where the act to be done is not merely a ministerial one, but is one in relation to which it is his duty to exercise judgment and discretion, even though an individual may suffer by his mistake.”

      Peters certainly stands in a more favorable attitude to escape personal liability than Kendall did, in the case cited. There, Kendall was directed by law to do a certain thing which he refused to do; here, the commissioners not only had no instructions as to the execution of the contract with Gronan, but all they did in reference to that contract — the very acts now complained of, have been sanctioned and approved by the commissioners of customs at Washington, and the commissioners have been instructed not to pay.
    In a very recent case in the Supreme Court, Justice’Grier says, “it is an established rule of law that an agent who contracts in the name of his principal is not liable to a suit on such contract, much less a public officer acting for his Government. As regards him, the rule is, that he is not responsible on any contract he may make in that capacity.” Parks v. Boss, 11 How., 374.
    To the same effect are the following authorities: 12 Johnson, 444-, 2 Wend., 375; Brown v. Austin, 1 Mass., 214; Batons v. Jackson, 9 Mass., 490; 4 Humph., 303.
    In the several cases referred to by the learned counsel for the plaintiff nothing can be found in conflict with these plain principles of law. The questions adjudicated in the case of Usborne v. the Bank of the United States, did not approximate the principles involved hero.
    The case of Elliot v. Swartioout was not a case for breach of contract, but was brought against a ministerial officer for demanding duties beyond what he was by law authorized to exact, and for his refusal to deliver goods until those illegal duties were paid. In that case the plaintiff paid the excessive duties in order to get possession of his goods, paid under protest, and sued to recover them back. Appellant’s counsel has fallen into an error in stating, that in that case the plaintiff voluntarily submitted to the views of the law entertained by the officer, and paid over the money.- On the contrary,- it was expressly held that even a collector, a ministerial officer, with prescribed duties, would not be responsible in an action to recover back duties illegally exacted, and paid by him into the treasury, unless these duties were paid under protest. And in his comment on that case the counsel errs again in saying that it cannot be insisted upon, here, that the officer has paid over the money to the government. This Peters has been compelled to do.
    In the case of Walker v. SwarPaout it was expressly decided that á public agent employing a man to work on account of government, in his known official capacity, is not responsible, personally, for the wages. It is true that Thompson, O. J., dissented, but only on the ground that the defendant had made himself liable by an express individual promise to pay, and by his refusal to give the laborer any certificate or voucher which would enable him to obtain his wages' from the government.
    After an attentive examination of the cases cited by plaintiff’s counsel we have failed to find a single one, in which an agent contracting on behalf of an avowed principal, has been hold personally responsible for the breach o'f such a! contract.
    The cases cited, of suits against officers for official misconduct,, for violating rights of parties fixed by law, are not analagous to the one before the court. In the language of the District Judge, “ the case at bar involves the construction of a contract with the government and the defendant cannot be made responsible for a breach of that in consequence of acts done in good faith, in the exercise of a sound discretion, and within the limits of his official function.”
    If the United States have failed to cause the contract entered into by them, to be faithfully executed, they are bound to indemnify Gronan for any damage he may have sustained by the inexecution of the contract. In the words of a distinguished jurist “ the presumption is that the government is ready to fulfill all its contracts, and discharge its obligations, not only with good faith but punctilious promptitude, and in a spirit of liberal courtesy.”
    If the principal contended for by the counsel for appellant should be recog-nised and established as law, the consequences would be most pernicious to the public interests. No public agent or officer will look to the interests of the government and undertake to have its contracts fairly executed, if from an error of judgment in construing the rights of the parties to such contracts, he is to be held personally responsible. No man, indeed, would accept an office or agency under the government, requiring his aid or services in receiving supplies, making disbursements, or aiding otherwise in the execution of government contracts, if he is to be held personally liable for any and every infringement of what may be adjudged to be the legal rights of the parties to such contract.

      This is not and never has been the rule of law.
    In making his contract the plaintiff gave credit to the government, as fully appears from the terms of the instrument He looked to the government, and not to its agents, the commissioners, for the fulfilment of the contract, and for the pay to which he might become entitled under it. If he has any claim for damages for breach of the contract, it must be preferred against the party with whom he contracted.
   Ogden, J.

The Government of the United States, on the 16th of November, necessary to the building of the customhouse in New Orleans. The contract was executed on the part of the Government by Denis Priew, Aide Labranahe and William if. Gioin, in the capacity of Commissioners on behalf of the United States, and was approved by the Secretary of the Treasury. These Commissioners were appointed by the Secretary of the Treasury under power vested in him by law. The following facts are material for the proper understanding of the respective rights and obligations of the parties: 1848, entered into a contract with the plaintiff for the hauling of the materials

“ That, whereas, in compliance with the acceptance on the part of said parties •of the second part, of the proposal made by said party, if the said party of the first part, of the 30th October, 1848, to do all the hauling of the materials necessary to the building of said customhouse, said party of the first part doth hereby covenant and bind himself to and with said party of the second part, to do all the hauling of the building materials which may be deemed necessary for the erection of said customhouse, at the same rates and agreeably with the tariff established by the general council of the city of New Orleans, on the 5th June, A. D., 1843, in such cases, said party of the first part binding himself to do and perform said hauling when thereto required, without prejudice to the progress ■of the work on said building, and at all times and at such places as may be designated by the superintendent of said building or by the architect thereof, to have and deliver said materials; and in case said party of the first part fail in any respect to do and perform said hauling when thereto required, and in the manner hereinafter stated, then said party of the second part shall have the right to go out and employ others to do said hauling, and said party of the first part by such failure or neglect shall forfeit to said party of the second part the difference, if any, in price, which said party of the second part may have paid by reason of such default; and said party of the first part, as well as his surety in the bond to be given by him, given for the faithful performance of the stipulations of this contract, shall forfeit and be responsible to said party of the second part for such damages as may have been incurred in the progress of the work on said building, by reason of the default of said party of the first part in furnishing and delivering the materials when required; and said party of the first part doth hereby covenant and bind himself to and with said party of the second part,

“1st. To haul all the building materials, including the granite, and to deliver the same when thereto required, at such points as may be designated by the superintendant or architect of said building, in good order and free from all injury from hauling or otherwise, the granite to be delivered free from breakage, or being soiled in its transmission from the Levee to the site of the building, and the said parties of the second part acting in their capacity aforesaid, do hereby covenant and bind themselves to and with said party of the first part, to pay unto said party of the first part, the same rate and amount per load for hauling said building materials as are established by the ordinance aforesaid, and now in force in this city upon such subjects; except, however, as to the granite, said party of the second part agree and bind themselves to pay unto said party of the first part, the same amount and rate per load as paid by the Second Municipality of the city of Now Orleans, for hauling the granite necessary for the new Municipal Hall, said rates, however, to be increased or diminished in proportion to the extra distance over which the granite shall or may be hauled for the customhouse, when compared with the distance over which the granite for the new Municipal Hall has been hauled. Said payment to be made by said parties of the second part on the delivery of said building materials in accordance with the stipulations of this contract, or at such times as the contracting parties may agree upon hereafter.

“Now, it is expressly understood by these presents, that the foregoing contract and all the stipulations therein contained are subject to the approval of the Secretary of the Treasury of the United States, and binding only in the event of his approval. And it is further understood, by and between the parties here contracting, that the payments to be made, said parties of the first part shall depend only upon the appropriations ipade by Congress, from time to time, for the completion of said customhouse.”

By the contract, the plaintiff bound himself in a penal sum, with security, to do all the hauling of the building materials, when thereto required, at the rates established by the tariff adopted by the City Council in 1848, and it was stipulated that on his default at any time, the Government might employ others to do the hauling, and hold him and his security liable for any difference in the price of hauling they should have to pay.

The Commissioners, by whom this contract was made, were succeeded in office by S. J. Peters, J. W. Groekett and W. Turnbull, against whom this action is brought to recover from them in solido $0050 as damages alleged to have been sustained by the plaintiff, up to the time of filing the petition, by reason of the wrongful act of defendants in depriving the petitioner of a profit of that amount, which he would have realized from his contract if the Commissioners had not contracted with other parties for the hauling of materials, in violation of the petitioner’s rights under said dbntract to do all the hauling of the materials necessary for the construction of the customhouse. It appears that some time before the contract was entered into with the plaintiff, the Government had made a contract, through the agency of the same Commissioners, with Kendall & Co. to furnish the Government a large quantity of bricks, and that on default of those contractors furnishing the bricks as required, it was stipulated the Government should have the right to purchase bricks from any other persons and hold the contractors responsible for any difference in price they might have to pay. These contractors having made default, the defendants, , acting as Commissioners, made contracts with other parties for the purchase of bricks, and included in the contracts that made the hauling of the bricks to the customhouse; whereas, by their contract with Kendall & Co. the bricks were deliverable at the levee, from which place the plaintiff, under his contract, was entitled to have the hauling. It is for the hauling of these materials, for which it appears by the evidence, the plaintiff would have been entitled, if he had done the hauling, to charge $6563 95, that a recovery is sought to be had from the defendants, in the shape of damages for their illegal act in making contracts with other parties for the delivery of bricks at the customhouse. The suit is prosecuted against defendant, Peters, alone, the other defendants not having been served with process, and it is averred that Peters especially, of his own illegal and personal acts, and without the sanction of- the Government, prevented the plaintiff from doing the hauling, by inducing certain persons to agree with the Commissioners to sell them bricks deliverable at the customhouse, including the hauling. It is averred in the petition that defendant became the disbursing agent of the Government in the matter of their contract with the petitioner, and that he had violated the rights of the plaintiff in the several particulars as before stated.

On the 21st of June, 1851, a letter was written by the Commissioners to the Secretary of the Treasury, informing him that the plaintiff complained of these acts as being in violation of his rights, and claimed to be paid the contract prices for the hauling thus done by others, and requesting instructions on the subject. In this letter they state that when they were compelled to purchase bricks from others, they found they could only get them at a reasonable price by allowing the persons from whom they were purchased, the benefit of contracting to deliver them at the site of the building, and that it is the universal custom to buy such bricks delivered. They further state that, although the plaintiff insisted that by a proper construction of his contract, he was entitled to all the hauling, under all circumstances, they, the Commissioners, thought a reasonable construction of the contract was, that they should give the plaintiff all the hauling of materials required and purchased under ordinary circumstances. To this’ letter the Commissioner of Customs at Washington, to whose department the letter was referred, replies of date July 11th, 1851, approving the construction the Commissioners had placed on the contract, and instructing them not to pay the plaintiff. A subsequent letter from the Commissioners, which bears date the 30th June 1852, after this suit was brought, is also in evidence, in which they ask for more explicit instructions on the subject. In this letter they state that they conceive it to be their duty, in making purchases, to obtain all articles on the most favorable terms; yet, in so doing, their action is necessarily controlled by existing contracts, so that no wrong be done to a contractor. That in making their recent contract with Mr. Blana for press bricks, his proposition was for §18 50 per thousand, delivered at the Basin, and §20 per thousand, delivered at the customhouse; that as Gronan's price, according to the contract, for hauling was about $2 25 per thousand, it was obviously the interest of the Government to accept the latter price delivered at the building, and it was accepted, but that Cronan considered it to be an evasion of the contract with him, and with some apparent reason. They express in this letter the desire to avoid any act that may have the semblance of an attempt to evade the contract with the plaintiff, and say that if, in the opinion of the Secretary, Mr. Blanc's first proposition should have been accepted, there would be no difficulty in altering the contract with him. To this letter no answer from the Secretary is exhibited.

On this state of facts we will first enquire whether the contract with the plaintiff was violated. He had bound himself, under a stipulated penalty, to do all the hauling at certain fixed rates, and was consequently under the obligation of being always ready with the requisite teams and laborers. This obligation produced a co-relative right on his part to have the benefit to be derived from the employment of his teams in doing all the hauling, and as it is evident that the hauling, subject to the qualification in said article stated, which he complains was given to others, not from necessity but for the advantage of the Government in procuring the hauling to be done at cheaper rates than they would have had to pay him, we think it was a clear violation of the contract, for which the Government is responsible in damages to the plaintiff. As to what would be the measure of those damages, if the Government could be sued, and was a party to the record, the rule is furnished in Art. 1928 of the Civil Code. It would be the amount of the loss the plaintiff has sustained and the profit of which he has been deprived. It was one of those obligations, which, from its nature, resolves itself into a claim for damages on the inexecution of the contract by either party, and the prices which the plaintiff would have been entitled to charge, if he had done the hauling, would not be a standard by which those damages could be estimated without other proof in connection, showing either an actual loss or privation of gain. But the defendant is charged with a violation of his duty as a public officer, from which, loss, it is said, resulted to the plaintiff, and that he has therefore rendered himself liable for damages as for a tort, and that in such a case proof of the specific damages is not requisite.

The appellee’s counsel do not appear to have considered the case as an action for damages, arising ex eonPractu, which, it is clear, could not be maintained without any personal promise or undertaking on the part of the defendant, and the question to be decided is, whether an agent or officer of the Government can be held liable for damages ex delicto, by his failing to execute a contract which his principal had made, in accordance with the just rights of the party contracting with his principal, although the principal ratifies and adopts his acts.

If the plaintiff had actually done the hauling, and the defendant, as disbursing agent, had received the money to which the plaintiff was entitled under his contract, the refusal of the defendant to pay it over to him, might have been a violation of his duty as a public officer, rendering him personally liable; but as the hauling was not done, and the claim is one for damages, depending on the proper construction to be given to the contract, the true and proper character of the action would seem to be one for the breach of a covenant. The defendant, if personally liable, could only be condemned on proof of actual breach of the contract, according to its true legal interpretation, and of actual loss and damage sustained by the plaintiff; and those two questions could only be properly determined in an action to which the principal himself was a party. The difficulty that the Government cannot be sued, furnishes no ground for holding the defendant personally liable in such an action, which, from its nature, we can view in no other light than one involving a question of damages for an alleged breach of contract The contract was a public one; the defendant had no personal interest in it, and as the contract itself was not obligatory upon him, he could not be held liable for the consequences of a violation of it, by the erroneous interpretation of it, which the Government ratified. The ratification was equivalent to an original authority on the principle, “onmis rati hdbitio man-dato aquiparator.” Livermore on Agency, vol. 1, 44. The duty which the defendant had to perform in superintending the execution of contracts made by previous agents of the Government, and making such new contracts as might become necessary, was not merely ministerial but required the exercise of discretion and judgment, and in such a case an officer cannot be held person.'iHy liable. Stokes v. Kendall, 8 Howard R., 88.

The qase of Elliot v. Swartwout, 10 Peters, 136, has been relied on in support of this action. In that case the Collector of Customs was hold liable for damages for his wrongful act in seizing the goods of certain importing merchants for duties which by law he had no right to exact. The principle there settled was, that where money is illegally demanded and received by an agent, he cannot exonerate himself from personal responsibility by paying it over to his principal, when he has had notice not to pay it over. If the plaintiff had performed the services, for which, under his contract, he was entitled to be paid, the case cited would go far to sustain an action against the defendant; but the principle involved in the pi-esent action is altogether different.

We find nothing decided in the case of Osborne v. the Bank of the United States, 9 Wheat. 738, which can by analogy sustain the present action. In that case the Treasurer of the State of Ohio was held personally liable, not because the State was exempt from being sued, but on the ground that he was in possession of, and kept as a separate and distinct fund, money which had been taken from the vaults of the United States Bank, in levying a tax on the Bank under a law of the State of Ohio, which was held to be repugnant to the Constitution of the United States and therefore void.

We have not been referred to any authority which we think can support the plaintiff’s action, and agree with the conclusion of the court below that the case ought to be dismissed.

Judgment of the court below is therefore affirmed, with costs,

Buchanan, J,

I concur in the affirmation of this judgment, on the ground that plaintiff has failed to make out, by proof, the case- stated in his petition. Had his allegations been sustained by the proof, there was a case of personal liability,, under our law, C. C,, 2294. And the District Judge properly overruled the exception of no cause of action, pleaded in limine. But the proof adduced negatived, the allegations of the petition, which, to my view, gave a right of action against the defendant personally. Those allegations are, substantially,that Mr. Petersv of his own volition, and without the countenance or authority of Government, took, advantage of his situation as Commissioner for the erection of the customhouse in New Orleans,, to deprive plaintiff of the hauling of materials,, to which, under his contract with Government, he was entitled, and thereby caused great pecuniary loss to plaintiff.

The evidence was, on the contrary, that the contracts with other persons than the plaintiff for hauling of materials were made by another Commissioner than Mr. Peters, to with by the salaried and managing Commissioner,, Mr. Groeleett, and that the plaintiff declared that he would get along well enough if he had no more trouble with the other Commissioners than he had with Mr. Peters.

Under these circumstances,, the defendant was entitled to judgment upon the merits.


source: Caselaw Access Project

author: Buciianan, J.

license: Public Domain

text:
    George Coleman et al. v. John K. Marble.
    Under the facts of the case, the court refused to disturb a settlement between the parties four years sifUir it had been niacle.
    APPEAL from the District Court of the Parish of Madison, Perkins, J.

      Amonette, tor plaintiffs and appellants. Snyder, for defendant.
   Buciianan, J.

Defendant being sued upon his two promissory notes, made to the order of plaintiffs, pleads in defence to the action :

1st. That the consideration of the notes had failed; that the notes were given for the estimated value of plaintiff’s interest in a commercial partnership heretofore subsisting between plaintiff and defendant; that plaintiff kept the books of the concern; that no account of stock or assets was taken previously to giving said notes, the defendant trusting to the correctness of the entries in the books; but that he had been imposed upon and defrauded by-plaintiff, there being numerous errors in the balances of account against the customers upon the said books, which swelled the apparent value of the partnership assets above their real value and which should be deducted from the notes sued on.

2. That defendant has taken up and paid at plaintiff’s request, a large amount of claims against him, which, by agreement of parties, were to be credited on the notes now in suit; and which payments defendant pleads in compensation.

3d. That in settlement with /Seale & Sorrell, and also with Jaaob Mason, defendant found that many articles purchased by plaintiff and by his brother, for whose use this suit is brought, had been improperly and fraudulently charged, by their order, to the firm of Ooleman & Marble, which he claims to be deducted from these notes.

Upon these pleadings, the parties went to trial before a jury, and the following verdict was returned “We, the jury, allow the defendant credit for eight hundred and sixteen dollars sixty-three cents; and find judgment for the plaintiff for balance of the claim, fifty three dollars fifty-one cents.” After an unsuccessful attempt to obtain a new trial, the plaintiff has appealed.

The case comes up to us, upon a bill of exceptions, to the introduction of the most of the defendant’s evidence upon various grounds of objection stated.

The case of defendant is very unsatisfactorily presented. On the 17th of July, 1848, there is written proof of a dissolution of the partnership of Coleman & Marble, by the terms of which, the latter gave his partner his unconditional obligations for a fixed sum, for his share in the partnership effects, including the lot and house on and in which the business was conducted, and moreover assumed the payment of all liabilities; releasing formally the plaintiff “ from all obligations of the firm, and taking the responsibility of settling all the debts that the firm is bound for.” To open this settlement, the defendant has not given us any evidence of what took place when the partnership was dissolved; but has brought forward a list of balances copied from the books of Coleman & Marble, and has introduced a number of witnesses who have been sworn, in general terms, that there were errors in the amounts charged against them upon that list. Such evidence, given four years after the dissolution of the partnership, is not sufficient to disturb the formal and solemn settlement made between two partners, who are proved to have attended equally to the business of the concern, and must be presumed to have been equally cognizant of its affairs.

Under the pica of compensation, also, the defendant has offered proof of his having paid a number of accounts held against the plaintiff by different persons. So far as he has shown that such payments were made at the request of the plaintiff, to be credited on the notes, according to the language of defendant’s plea, they must be allowed as offsets to plaintiff’s claim. It is evident, th.at as open accounts, they are not compensable with the notes sued upon; and only become so, when liquidated by the acknowledgment of the plaintiff of their correctness, and his consent that when paid, they should be credited upon defendant’s notes.

The following items of the account or exhibit A., annexed to defendant’s answer, appear to be entitled to be allowed in compensation :

Account paid J. P. & J. S. Goons, .... $81 92

Note paid Mrs. Susannah Mason, - ... 150 00

Account paid F. Kelsler,.17 18

Account paid Martha Payne,. 37 M

Note G. Goleman favor of Kinsman & Gower, - - 77 68

$863 94

It is therefore adjudged and decreed, that the judgment of the District Court be reversed, and that plaintiff recover of defendant five hundred and six dollars and six cents, with five per centum per annum interest, from the 10th of September, 1849, until paid, and costs in both courts,


author: Slidell, O. J.

text:
    Gray, Macmurdo & Co. v. Lowe & Pattison et al.—Fearn, Donegan & Co., Praying for a Prohibition.
    An appellant will not lose his right of appeal in consequence of the surety becoming insolvent after he had signed the bond. In such a case, it is the duty of the court to allow a sufficient surety to be substituted. And where the right was denied, and the District Judge dismissed the appeal and allowed an execution to issue, a writ of prohibition was granted to arrest proceedings under it.
    C. 0. 8012.
    APPLICATION for a Writ of Prohibition to the Judge of the Fourth Dis-
    trict Court of New Orleans, Reynolds, J. F. L. Goold, for the applicant.
   Slidell, O. J.

The plaintiffs having obtained a judgment against Fearn, Bonegan & Go,, the latter obtained, on the 1st of March, 1854, an order for a suspensive appeal, and filed within the legal delay, an appeal bond for the proper amount, with Kendall, Toe & Go. as sureties. On the 26th of April, 1854, after the transcript of appeal had been filed in this court, the plaintiffs took a rule in the court below on the defendants, to show cause why the appeal granted, should not be dismissed, and why execution should not issue against Fearn, Bonegan & Go, for the amount of the judgment and costs, on the following ground; “That the surety, Kendall, Tie & Go., on the appeal bond filed herein, is not good and solvent, as required by law.” At the hearing of the rule, Fearn, Bonegan & Go. offered a new surety of unquestionable and unquestioned solvency, who being examined as a witness, deposed, that he was worth many times over the amount of the required bonds. He also declared his willingness to sign a new bond, and that when Kendall, Toe & Go. signed the bond, they were considered solvent merchants, and in good credit. Another merchant, who had known Kendall, Toe & Go. for several years, testified that he had had extensive transactions with them ; that he considered them solvent, and they were so regarded in the commercial community. That they had failed only a few days previous to the date of his examination, and that only a few days previous, witness had such an opinion of their solvency, that * J ^ , , ’. , „ , , . , he had agreed to take their notes without an endorser, tor a lot oí merchandize he had on sale, hut the bargain was not consummated in consequence of a disagreement.with the purchaser about the price of the goods. This testimony was received without objection; it is unnecessary, therefore, to say whether it was the best evidence on the question of solvency, and as it stood before the District Judge without objection, was no doubt ample to satisfy his mind, that Kendall, Toe & Oo, were satisfactory sureties when they signed the bond, The evidence, however, was superfluous, and was probably offered by Team, Donegan & Go, out of abundant caution, for it will be observed, the rule taken by the plaintiffs questioned not the past, but the present solvency of Kendall, Toe & Go, The decision upon the rule was as follows: “The court considering that the surety on the appeal bond furnished by defendants has become insolvent, and that no new bond can be furnished after the expiration of the legal delay, it is ordered that the rule taken by plaintiffs on the 26th ultimo, be made absolute; that the suspensive appeal herein granted, be set aside and dismissed ; and that the plaintiffs have leave to issue execution for the amount of the judgment rendered in this case, with costs.” An application was then made to this court for a prohibition, the relators suggesting their continued willingness to give a new and solvent surety. A rule to show cause having been granted, the District Judge answered: “ That although he was satisfied of the solvency of W, Bogart, the new surety offered in the case mentioned by the relators, and of the failure of the former security subsequent to the allowance of the suspensive appeal, he did consider himself bound to refuse a new surety, after the lapse of ten days from signing the judgment. He further answers, that he refused an appeal from his judgment, ordering execution to issue and dismissing the appeal, because he considered that the law allows no such remedy; and further, that being strongly inclined to grant the relators relief in the premises, he suggested an application to the Supreme Court.”

We think the District Judge erred. The right of appeal is a constitutional right, and in the present case, the right of suspensive appeal was clearly conferred by the law, If a party in good- faith fulfils within the legal delay, the conditions upon which the right of suspensive appeal is granted, it would be an inequitable and harsh construction of a provision of law framed for the protection of defendants, to say that his right should be defeated by a subsequent contingency unforseen, and over which he had no control, the subsequent failure of his surety, Such a doctrine would also involve an inequality which could not be reconciled with equity. Por by Art. 3012, when the security received “ by the direction of law,” becomes insolvent, his place “ should be supplied by another,” il doit en étre donné une autre. The rule is derived from the Napoleon Code, and originally from the Roman law. Si la caution, says Pothier, avait les qualités lorsqu’elle a été repue, mais qu’elle ait cessé depuis de les avoir; pourtant, si de solvable qu’elle était, elle est devenue insolvable, le débiteur sera-t-il obligó d’en donner une autre ? II faut distinguen II y sera obligé si c’est une caution légale ou judiciaire. Si calamitas insignis fidejussoribus vel magna inopia accidit, ex integro satisdandum orit. L. 10, §1, quit satisd. cog. L. 4, ff. de stipul. praet. Pothier, Oblig. No. 392. If the creditor, in such case, can compel the debtor to furnish a new surety, it is jast the debtor should have the right to give one, and thus preserve his right of suspensive appeal. Equality is equity.

We do not concur in the obiter dictum in Stanton v. Parker, 2 Rob. 651, where it is intimated that if the surety has become insolvent after the appeal was brought up, it is the same as if no security had been given. We think tbe distinction between the two cases is manifest. In the one case, the requisition of the law has been disregarded; in the other, the party has in good faith complied at the time, and the subsequent failure of the surety is not the fault of the principals.

Considering that by the filing of an appeal bond sufficient at the time to the fulfilment of other formalities, the appellate jurisdiction of this court had attached; that the benefit of the right of suspensive appeal once lawfully acquired, should not be totally lost by reason of the subsequent failure of the surety; that the case under the answer of the District Judge and the antecedent proceedings of record, presents no contested question of fact, but a question of law merely; and that the intex'foronce of this court, under the circumstances, is necessary for the prompt maintenance of its appellate jurisdiction.

It is therefore ordered, that a writ of prohibition issue, commanding the District Judge not to allow, and the Sheriff not to take any further action upon the execution issued in said cause of Gray et al. v. Fearn, Donegan & Co., provided the said relators shall, within three days after the filing of the mandate of this court in the court below, furnish to the satisfaction of said District Judge, a new appeal bond, dated nunc pro tunc, with a good and solvent security conditioned according to law, and for the amount required in cases of sus-pensive appeal.

       Authorities referred to by the court: State v. Buchanan, 18 L. R. 575 ; State v. Judge of First District, 19 L. R. at page 178.


author: Slidell, C. J.

text:
    Mark Davis v. Marshall & James.
    The plaintiff sued the defendants as joint proprietors of an adjoining lot, for one-half the cost of a party wall. Held: Where the defendants purchased the lot after the wall had been reconstructed and paid for by plaintiffs, and their vendor testified that he made no arrangement either with his vendor, or with the defendants about the payment of the party wall, and there was no evidence before the court that the defendants had subsequently used the party wall thus reconstructed, there should be a judgment as of nonsuit. By the Court — It is unnecessary now to decide whether a privilege would arise upon the adjoining proprietors using a party wall reconstructed before he acquired the adjoining estate; or whether, if his vendor had used the reconstructed wall before selling, there would be a privilege following the property sold into the hands of such vendee.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Gedge & Hagan, for plaintiff. Le Gwdeur, for defendant and appellant.
   Slidell, C. J.

The plaintiff sues the defendants as joint proprietors of an adjoining lot for one-half of the cost of a party wall. It appears the original party wall was so damaged by fire in the spring of 1851, that it was necessary to demolish and rebuild it. There was judgment against the defendants in solido, for the amount claimed, and they have appealed.

The defendants purchased the lot from Montgomery on the 10th July, 1851, after the reconstruction of the wall was finished and paid for by plaintiff, Oorvrey, who sold the property to Montgomery, on the 8th July, 1851, testifies that he made no arrangement with Montgomery or with defendants about the payment of the party wall, and a hill of plaintiff for one-half the cost was made out against Gonrey, under date of July 2, 1851. The only evidence of a personal undertaking to pay this amount is the testimony of the plaintiff’s agent respecting a conversation with James. The District Judge considered this testimony as showing a promise by James to pay.

We are unable to concur in this conclusion, and think there should be judgment as in case of nonsuit.

It is proper to observe that we have not distinct evidence before us that James and Marshall subsequently used the party wall thus reconstructed; and that it is unnecessary now to decide whether a pi ivilege would arise upon the adjoining proprietors using a party wall reconstructed before he acquired the adjoining estate, or whether if his vendor had used the reconstructed wall before selling, there would be a privilege following the property sold into the hands of such vendee.

Judgment reversed and judgment as in case of nonsuit; plaintiff to pay costs in both courts.


author: Buchanan, J.

text:
    Isaiah A. Paschal v. Union Bank of Louisiana.
    A judgment was obtained on an accommodation note made by plaintiff, and discounted for his benefit by defendant. In the petition the name of the second endorser was stated as that of the payee. An amended petition was filed correcting this error. Another amended petition was filed making the third endorser a party This suit was brought to annul the judgment, on the ground that neither of the amended petitions had been served on the plaintiff, who had in the meantime permanently left the State. By the Court — The misdescription of the payee in the original petition was immaterial under the circumstances — as between Paschal and the Bank. The Bank was the real payee of the note, and all the names on the back of it, were but securities for the return of the money lent by the Bank directly to Paschal.

    Under the circumstances a judgment by default might have been confirmed against Paschal, by producing the note, even had no amendments been filed.
    APPEAL from the District Court of the parish of Rapides, Cushman, J.

      W. B. Hyman, for plaintiff.

      H. & 8. L. Taylor, for appellant:
    1st. The amendments made to the original petition were as to the form, and not the substance of the action, and did not require either answer or a judgment by default to be taken. The contestatin litis was therefore formed and the judgment rendered regular and binding — vide 2 L. R. 392, 3 M. R. 398, 12 R. R. 138, and cases cited. 6 Ann. 250.
    2d. The plea in reconvention should have been received — C. P. 375, Act 1839, sec. 7, p. 164; 5 Ann. 3, 150 ; 4 ibid. 136; 12 R. R. 423.
    3d. There was no merger of the original debt in the judgment — vide Bnu-vier Law Dictionary verbum “merger” — 4 Kent, page 99 to 103 ; Pothier on Ob., No. 606 ; 4 Toullier, New Brus. edition, sec. 421, 423, 424 ; 3 L. R. 552; C. O. 2214, 2215, 801 to 808.
    4th. The service of citation on Brewer arrested prescription, and the original debt still subsists and is demandable — C. C, 8484, 8486, 8510, 8517; 12 L. R. 630 ; 17 ibid, 218; 6 E. R; 142.
   Buchanan, J.

The plaintiff asks to have a judgment against him annulled, on the ground that he had not been served with copies,of two supplemental or amended petitions, filed in the suit in which that judgment was rendered.

The original suit was one upon a promissory note, of which the present plaintiff (under a different name,) was maker, and throe other persons were endorsers. The note was in the negotiable form, payable to the order of the first endorser, and by the other two endorsed in blank. It was, however, in reality an accommodation note, as appeared by the words “ credit the drawer,” written at the bottom of it, and signed with the initials of the two last endorsers. This note became the property of the present defendants in the course of their business, and there is no more doubt in our minds than there was with our predecessors, (see Union Bank v. Brewer, 2 Ann. 835,) that the present plaintiff and maker of the note, presented the note- to the bank for discount and received its proceeds.

The note being unpaid at maturity, was put in suit by the holder, the bank, against the maker, who was duly served with citation. • But an error was made in the petition in describing the note — the name of the second endorser being given as payee. In the opinion of the counsel of the bank, this error required rectification, and he filed, with leave of court, an amended petition, declaring the name of the first endorser as payee. He still filed a second amendment of his pleadings, making the third endorser a party. Neither of these amendments were served upon the present plaintiff, who had in the mean time permanently left the State.

In our opinion, there was no necessity for service of these amendments. The misdescription of the payee in the original petition was immaterial, under the circumstances, as between Brewer {Paschal) and the bank. The bank was the real payee of the note, and all the names on the back of it, were mere securities for the return of the money lent by the bank directly to Brewer {Paschal.) Courts of Justice are constantly in the habit of looking into the origin of promissory notes, for the purpose of ascertaining the true relations of the parties to each other, notwithstanding the instrument having assumed a form, which would imply entirely different relations. The District Court would, under the circumstances, have been right in receiving in evidence the note of Brewer {Paschal) to confirm the default of the Union Bank, even had no amendments been filed. The present plaintiff is without any shadow of right to complain.

It is therefore decreed, that the judgment of the District Court be reversed, and that there be judgment for defendant, with costs in both courts.


text:
    Emile Chevalier v. Samuel M. Hyams, Executor, &c.
    The verbal acknowledgment of the debtor which, in general, would be sufficient to interrupt prescription as to other debts, does not suffice to do so in relation to overseer’s wages and hire of
    slaves. The formal written recognition of the claim in a com/pte arrUé is indispensable Oode 8503.
    APPEAL from the District Court of the parish of Natchitoches, Ohaplin, J.

      John B. Smith, for plaintiff. A. 3. Pierson and ffl. J. 3a/milton, for
    defendant and appellant.
   Buchanan, J.

This is a claim for five years wages as overseer, and for the hire of slaves during four years of that time.

The defence is the general denial, prescription, and a reconventional demand for forty-four bales of cotton of the crop of 1852, sold by plaintiff, and the proceeds appropriated to his own use.

The plaintiff rebuts the prescription pleaded, by testimony of acknowledgments made by the deceased of the correctness of his account; and as to the forty-four bales of cotton sold, he has proved by the same witnesses, that this cotton was his property by virtue of an agreement to that effect with the deceased.

The principal efforts of the appellant’s counsel have been directed to impugning the credibility of plaintiff’s witnesses. Upon this point, we need only say that the Judge of the District Court, who saw and heard these witnesses, has believed them; and we deem it the safest rule to be guided by the conclusions of the inferior court in a matter of this sort, when our opportunities are so much inferior of deciding satisfactorily.

It is also contended that the nature of the proof offered of a renunciation of prescription, is not that required by law.

The Article 3503 of the Civil Code, reads as follows :

“ The salaries oí overseers and the hire of movables and immovables are prescribed by three years, unless there be an account acknowledged, a note or bond given, or action commenced before that time.”

The words “ account acknowledged,” in this Article are “ compte arrété” in the French test. A compte arrété, is an account stated in writing, and acknowledged to be correct on its face by the party against whom it is stated. See 3d N. S. 717. The verbal acknowledgment of the debtor which, in general, would be sufficient to interrupt prescription as to other debts, does not, it would seem, suffice to do so in relation to overseer’s wages. The formal written recognition of the claim in a compte arrété is indespensable. With this provision of the law in view, we think the plea of prescription should have been maintained as to the services of plaintiff and the hire of his slaves for the years 1848 and 1849.

It is therefore ordered, adjudged and decreed, that the judgment of the District Dourt be reversed, and that plaintiff have judgment against defendant, to be paid in course of administration, for the sum of one thousand six hundred and fifty dollars; that the demand in reconvention be dismissed; and that the costs of the District Court be paid by the estate of Louis Chevalier, and those of appeal by plaintiff and appellee.


author: Osoen, J.

text:
    T. J. Hickman v. L. Bailey et al.
    The warrantors, on whom the loss is to fall, must be parties to the appeal, or the appeal will be dismissed.
    APPEAL from the District Court of the Parish of Rapides, Cushman, J.

      Ogden and T. S. Lewis, for plaintiff and appellant. Elgee & Syams, for defendants.
   Osoen, J.

This is a petitory action. The plaintiff claims the ownership of several tracts of land, described in his petition as being situated on the “ Rigo-let olu Bon Dieu,” in the parish of Natchitoches, under titles derived from the government of the United States. He alleges that the defendants have entered upon and taken possession of this land, and claim to be the owners of the same, by virtue of a certain pretended title derived from Juan de Leon, which title they represent to bo fraudulent, and as never having been located by the proper authority under the government of the United States.

The defendants, Bailey v. Hughes, in answer, aver, that they hold by good and valid titles derived, as to the defendant Hughes írom¿Littleton Bailey, who derived the same from Juan de Leon, the grantor, under the Spanish government ; that said grant was confirmed by the government of the United States and was located by the officers thereof. They aver that they purchased from their respective vendors in good faith, and for a valuable consideration, and in case of eviction are, therefore, entitled to recover the useful improvements made by them on the land of the value of ten thousand dollars. That the heirs of the late James Bowie are bound in warranty to them, and pray that they may be accordingly cited, and in case of eviction, that such judgment be rendered against said heirs in their favor, as may be legal and just. The other defendants, Thomas & Wells, claim also under said Bailey.

The heirs of Bowie being cited, also joined issue and denied any liability as warrantors.

The case was submitted to a jury in the court below, and from the judgment rendered on their verdict in favor of the defendant, the plaintiff has appealed.

The appellees have filed a motion to dismiss the appeal, on the ground that the warrantors have not been made parties. We think the motion must prevail. The appeal, it appears, was granted on motion in open court, but the bond given does not contain the names of the warrantors. The case of Charlotte Williams and Husband v. Micajah Courtney et al., 8 A. 63, is directly in point. In that case, t le rule is well settled, that the warrantors, on whom the loss is to fall in the event of the reversal of the judgment, must be made parties. See the reasons and authorities therein quoted. It appears that on the 1st of December, 1832, James Bowie conveyed to L. Bailey, a tract of land, a part of which constitutes the subject matter in litigation, for the price of $2000. The deed of conveyance contains the usual clause of warranty. But it is urged by the appellant, that the heirs of Bowie have no real interest in the matter, and are not bound in warranty, and ought not to have been cited as such, inasmuch as the title relied on by the defendant does not emanate from Bowie, but porports to come from Juan de Leon, the pretended grantor, directly to Bailey. In May, 1834, it appears that Bowie wrote to Juan deLeon, his vendor, that there existed some defect in the conveyance made to him in December, 1818, whicli he would discover from a cop3r which he sent, and requested him to renew the deed in favor of Mr. Bailey, the bearer of the letter, in such manner as should bo satisfactory to both of them, which was done, De Leon stipulating the same price as that contained in his deed to Bowie. It is on this, that tho appellant relies to sustain his position. But it is far from being clear to our minds, that this circumstance is entitled to produce the effect contended for, the extinguishment of the obligation of warranty of James Bowie, as vendor of L. Bailey. Instead of lessening or impairing, it would seem to increase the warranty, or be an additional security to the purchaser. That being the case, the effect of the reversal of the judgment by this court, would operate as a perpetual bar to the defendants’ right against their war-rantors, who are not parties to this appeal.

It is therefore ordered, adjudged and decreed, that the appeal be dismissed at the appellant’s costs.


author: Ogden, J.

text:
    Executors of B. Shields v. Mary Matheison.
    Motion to dismiss appeal. No answer had been filed, but an order allowing defendant an appeal appeared of record, as having been made on motion in open court; but the name of the counsel making the motion did not appear. By the Court: Where there is counsel of record, an order of court, purporting to be granted on motion of the counsel of the party, is legal and binding, because it is presumed to refer to the counsel of record, and it is unnecessary to name him. But when a party has no counsel of record, and applies by counsel for an order which could only be granted on petition, or motion, it must appear by the record who is the counsel undertaking to represent the party, in order that there may be some responsibility growing out of the act of the court in granting the order.
    Appeal dismissed.
    APPEAL from the District Court of the Parish of Rapides, Cushman, J.

      M. Ryan, for plaintiff. • W. B. Hyman, for defendant and appellant.
   Ogden, J.

The appellee has moved to dismiss this appeal, on the ground that no legal order for an appeal was granted by the court below. The order of appeal was granted on motion, under the Act of the Legislature of 1 st3, which provides that the party intending to appeal, may do so either by petition or motion in open court, at the same term at which the judgment was rendered, and that when an appeal has been granted on motion in open court, no citation of appeal or other notice to appear, shall be necessary. It appears that no answer was filed by the defendant, and that she had no counsel of record, and the name of the counsel undertaking to represent her in moving for the appeal, is not mentioned in the record. The defendant could certainly have repudiated this act, if she had thought proper. Not having applied in person, nor by any attorney named on the record, it would be impossible to fix upon her any liability or any obligation to prosecute the appeal. It is true she afterwards filed an appeal bond, but although a married woman, it does not appear she was authorized by her husband to sign the bond; and if she was under no obligation to prosecute the appeal, because she had neither applied for it herself, nor employed any counsel to obtain it, the order of appeal cannot be considered legal and binding on the other party. Where there is counsel of record, an order of court, purporting to be granted on motion of the counsel of the party, is legal and binding, because it is presumed to refer to the counsel of record and it is unnecessary to name him, but when a party has no counsel of record, and applies by counsel for an order which could only be granted on petition or motion, it must appear by the record, who is the counsel undertaking to represent the party, in order that there may be some responsibility growing out of the act of the court in granting the order. A different practice would be extremely irregular and orders of court might be frequently granted, involving serious consequences without the means of rendering any one responsible for them.

The order of appeal was irregularly granted.

It is therefore ordered, that the appeal be dismissed.


text:
    Albert G. Phelps v. John S. Preston.
    The principle is settled beyond controversy, that an attorney has no authority ’to release his client’s debtor without payment; and that an agreement by an attorney at law to receive payment of a judgment in any thing but the legal currency of the United States, will not be binding on his client without the consent of the latter.
    APPEAL from the District Court of the Parish of Rapides, Cushman, J.

      Elgee & Hymns, for plaintiff. O. N. Ogden, for defendant.
   Buchanan, J.

This is an injunction against the execution of a judgment obtained by defendant against the plaintiff.

The judgment enjoined was rendered at the May term, 1844, of the District Court of the parish of Rapides, for the sum of three thousand four hundred and two dollars, with ten per cent, interest from the 1st of January, 1842, until paid, conditioned, that execution should be suspended for one-third of the debt until the 1st of May, 1845, when if one-third was paid, then execution to be suspended until the 1st of May, 1846, when upon payment of another third, execution was not to issue until the 1st of May, 1847.

The petitioner for injunction alleges, that the said judgment was fully paid and satisfied by him, on the 11th day of July, 1845. The execution which was enjoined, was issued on the 8th day of December, 1846.

The evidence shows that the attorney of the defendant in the suit of John 8. Preston v. Albert G. Phelps, entered satisfaction of the same on the judgment .docket on the 11th July, 1845; and that he also released the judicial mortgage by writing a certificate of satisfaction across the inscription of the same <on the mortgage record of the parish.

If this evidence stood by itself, it would make out a sufficient case for the ¡plaintiff, for the court would presume, until the contrary was proved, that the attorney at law, who had entered satisfaction of the judgment, had done so ¡upon receiving payment of the amount of the judgment, in money, from the judgment debtor. But in this case, it is proved, by the evidence of that attorney himself, examined as a witness for plaintiff in injunction, that no part of the judgment was paid in money ; that Phelps transferred to witness a note of Isaac Baldwin, secured by mortgage and payable to the order of Mr. Smith, and by him endorsed; this was in satisfaction of some three thousand dollars or more of the claim — the balance of said claim was arranged by the transfer of parish paper, and two notes of Mr. John Compton. As to these two notes of Mr. Compton, we may remark, that it was admitted on trial, they were returned to plaintiff in injunction.

The principle is settled, beyond controversy, that an attorney has no authority to release his client’s debtor without payment; and that an agreement by an attorney at law, to receive payment of a judgment in any thing but the legal currency of the United States, will not be binding on his client without the consent of the latter. 3 Rob. 278. 1 N. S. 133. 12 Mart. 688. 4 N. S. 145. 7 N S. 36. 7 L. R. 63. . 2 An. 328.

The plaintiff in injunction has endeavored, indeed, to prove an authorization to the attorney to receive something besides cash in„satisfaction of the judgment in question. His witness on that point is the attorney himself, who in answer to the following interrogatory — Did you or not receive authority from 1. T. Preston, to settle and arrange the said debt as you deemed best ? — says, “ Ool. Preston, of New Orleans, authorized me to arrange the debt in any manner I thought best calculated to secure it.”

In opposition to this testimony, we have in the record that of Isaac T. Preston, who declared, “ that he placed in the hand of F. W. Brewer, a practicing attorney at Alexandria, the note described in the first interrogatory, and took his receipt, of which the following is a copy, the original being now in witness’ possession:

“ Received, New Orleans, March 26th, 1840, of John S. Preston, through the hands of Isaac T. Preston, for collection, a note for three thousand four hundred and two dollars, drawn by Albert &. Phelps in favor of William P. Hickman, and by him endorsed, dated March 5th, 1840, and payable on the 1st day of January, 1842, with ten per cent, after maturity.

(Signed,) E. W. Bjiewek, Attorney.”

In answer to the third interrogatory,, he says that he gave Mr. Brewer no other power or authority than what is contained in the receipt.

On another point,, we find those witnesses' contradicting each other in a manner equally direct.

Brewer says: ‘‘After arranging the debt as before stated,. I informed Colonel Preston, who replied that it was satisfactory. This reply was by letter, though I have not the letter, having been left with many others when I left Louisiana’, and which I have never received, and therefore cannot annex it.”

On the same subject, this is/. T. Prestónos statement." “He ha-d no knowledge of Mr. Brewer's taking notes for the debt,, until he heard of the frauds with which he was charged at Alexandria, and among other things that he had taken and negotiated a note for part of this debt.”

Between these' two conflicting witnesses, we have not the slightest hesitation in attaching the most credence to Isaac T. Preston;' and therefore conclude that the attorney, Brewer, never had any authority from I. T, Preston — evem supposing the latter had any right to confer such an authority — to receive any thing but money in satisfaction of John S- Preston's judgment against Phelps.Also, that Brewer's receipt of notes for said judgment was never ratified by, or communicated to I. T. Preston.

Under this proof, the right of the defendant is clear, to dissolve the injunction and to prosecute the execution of his judgment, notwithstanding the pretended satisfaction entered. It is a hard case upon the plaintiff in injunction to be obliged to pay the judgment twice, but he will have his recourse for reimbursement against the party who has unlawfully obtained and appropriated his property.

It is therefore decreed that the judgment of the District Court be reversed; that the injunction herein granted be dissolved, and that the defendant and appellant, John B. Preston, recover of the legal representatives of the plaintiff and appellee, Albert G-. Phelps, and of Dennis A. Smith, security on the injunction bond, in solido, two hundred and fifty dollars damages, with costs in both courts.


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    Melite Anty wife of Auguste Metoyer v. Baptiste Adle.
    The illegal seizure and sale of another’s property, is a quasi offence — and an action for damages for such seizure and sale is prescribed by one year.
    Code 2294, 2295.
    APPEAL from the District Court of the parish of Natchitoches, Bullard, J.

      John B. Smith and A. H. Pierson, for plaintiffs and appellants. H. Saf-ford and W. J. Hamilton, for defendants.
   Buchanan, J.

The plaintiff claims of the defendant the sum of nineteen thousand four hundred and forty dollars, amount of damages resulting from “ an illegal seizure and sale of plaintiff’s property, and from an unauthorized attempt to make plaintiff’s separate estate liable for the debts of her husband.” This large amount is made up of the following items:

1.Hire of thirteen slaves at $15 per month, each.

2.Hire of one slave at $30 per month.

3.Value of a slave who died.

4.Rent of a tract of land.

5.Value of a mansion house taken off the land by defendant.

6.Loss of cotton crop on another tract not seized by defendant, but of which the plaintiff could not pick out the crop, for want of the hands who were seized.

7.Loss of corn crop from the same cause.

8.Loss in timber collected for building, but which rotted on the ground, because the plaintiff was deprived of her working hands by defendant’s seizure.

The defendant pleaded the prescription of one year to this action. He relies upon Article 3501 of the Civil Code, which declares that actions resulting from offences and quasi offences are prescribed by one year.

The District Court having maintained the plea of prescription, the plaintiff has appealed; and the only question which we have to decide is, whether the petition presents a case of a quasi offence. We are of opinion that it does. It is the illegal seizure and sale of plaintiff’s land and slaves, which are charged as the source from which flow all the numerous resulting damages enumerated in the items of her claim as above set forth. Now the Articles 2294 and 2295, define the quasi offence to be any faulty, negligent, imprudent, or unskilful act of a man, which causes damage to another. This definition fits precisely the plantiflf’s pleadings. Her cause of action is the faulty or tortious proceedings or acts of the defendant. To conclude, the former Supreme Court repeatedly decided that the seizure of A.’s property, in execution of a judgment againtB., is a quasi offence. Delisle v. Morgan, 2 N. S. 24. Edwards v. Turner, 6 Rob. 382.

The counsel of appellant has attempted to draw a distinction of this kind. He urges that his claim is for the fruits of plaintiff’s property, received by defendant, more properly than for damages. But this we view as a distinction without a difference. The reception of the fruits of the estate, was a resulting consequence of the quasi offence, (the illegal seizure and sale,) by which the defendant acquired the apparent title as well as possession of the estate.

The judgment which pronounced that title to be illegal and restored plaintiff to the possession reserved to the plaintiff the right to claim, in another action, damages for unlawful seizure and detention of her property. The present action is based upon that reservation. Bat it was not brought, that is to say, citation was not served upon Adié until more than eighteen months .after that judgment.

Judgment affirmed, with costs.


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    Boyer, Under Tutor, v. Mathilde Tassin and Husband.
    A mother who contracts another marriage without causing a family meeting to be convoked pre*-vious to its celebration, to deliberate upon continuing her in the tutorship of children by a former marriage, may be deprived of the tutorship.
    An oath is required to be taken by every tutor of minors. C. 0. 828.
    A grandfather applied for the tutorship of his grandchildren, on the grounds that their mother had contracted a second marriage, without having convoked a family meeting to deliberate on continuing her in the tutorship, and because she had not taken the oath required by law. The wife insisted that she was not bound to the observance of these rules, because she was a white woman and her first marriage had been to a colored man. Held: That the marriage for this cause could only have been impeached under Art. 115, C. C., by direct action; that having failed to impeach it during marriage, it was too late for her to institute such an action, and that she could not be allowed to plead it as a defence to the proceedings for tutorship. On a réhearvng— Held: That the court could not appoint the grandfather to the tutorship, the mother being alive, without the recommendation of a family meeting.
    0. 0. 115, 2S1, S28.
    APPEAL from the District Court of the parish of Avoyelles, Cushman, J.

      Waddill, for plaintiff:
    1. At the death of the husband, it is necessary for the widow to take an oath as tutrix previous to her being vested with legal authority to represent their minor children. C. C. 328. C. P. 950. 12 R. 637. 11 R. 504
    2. The mother is ipso facto deprived of the natural tutrixship of her minor
    children if she enters into a second marriage without first calling a family meeting to retain her in the trust. 0. 0. 272. 10 L. 459. 9 R. 138.
    3. The grandfather,, as the nearest ascendant, the father being dead and the mother having forfeited the tutorship, has a right to the tutorship without the recommendation of a family meeting. O. C. 281. 6 N. S. 455.
    4. When the minor is without a tutor, it is the duty of the under tutor to have one appointed. C. C. 303. 2 A. 242.

      H. & 8. L. Trnjlor, for defendant and appellant:
    I. Tile depositions marked D should have been ruled out. 0. P. 436, and amendments 1826, 1828 and 1839.
    2. No authority is shown to institute this suit. C. P. 1015, 1016. 9 R. R. 113. 10 L. R. 84 12 ibid 577.
    3. The marriage being null, no necessity existed for calling a family meeting to be retained in the tutorship. C. C. 95, 115, 133, No. 3, ibid 12. 4 Toullier p. 223, sections 493, 495, 496, 516, 517. Story Conflict of Laws 2d edition, see. 113. Note I, p. 108, under sec. 116. 2 Kent, p. 91, 92. C. P. 20. 2 L. R. 139, ibid 385. L. C. 115, 1885, 1886.
    4 The tutrix does not forfeit her functions as such by failing to call the family meeting as provided by L. 0. 172, 0. P. 950, 951, if her first marriage be a nullity, and she has a right to use this as a defence without first instituting a direct action of nullity. 0. P. Art. 20. 2d L. R. 139, 385. C. C. 95. 12 R. R. 472.
    5. If her first marriage had been legal and she had forfeited her tutorship by failing to call the family meeting provided by Articles C. C. 172 and 250, 950, C. P., she still ha 1 the preference in the appointment by calling the family meeting, 3 R. R. 390, 4 Ann. 523, 5 Ann. 696, and complying with the other requisites of law. V. C. C. 288.
    6. No appointment of a legal tutor to the minors can be made while the father or mother be living, and they are willing to accept it. 3 R. R. 390 and cases cited.
    7. If the father or mother refuse to accept, the court must appoint with the consent of a family meeting a dative tutor, and in such case the grandfather has no preference. O. C. 288, 281, 282, 283, 284. 4 Ann. 523. 3 R. R. 390.
    8. The court therefore erred in appointing the grandfather as tutor without the intervention of a family meeting. This formality must be observed, or the appointment is a nullity.
    9. The natural tutrix cannot be deprived of her tutorship if she fails to take the oath. The only cases where such forfeiture takes place, are unfaithfulness and notoriously bad conduct. C. C. 326. 2 Ann. 751. 5 N. S. 29. 6 R. R. 488. 6 L. R. 354.
    10. The failure of the natural tutrix to take the oath only prevents her doing any act which can bind the minor. It suspends, but does not operate a removal. The distinction is manifest. C. C. 328. 3 Ann. 562. 11 R. R. 503. C. P. 949. She might at any time take the oath.
   Buchanan, J.

This suit is instituted by an under tutor against the mother of certain minors, to have the maternal grandfather and nearest relation in the direct ascending line of the minors, appointed their tutor in the place of said mother, whom he declares to have forfeited the tutorship in two several ways. First — By neglecting to take the oath required by law. Second — By marrying a second time, without being continued in the tutorship by the advice of a family meeting.

The defendant, aided by her second husband, comes into court, and defends her case upon the special ground, that she was not legally married to the father of her minor children, he being a man of color, and she being a white woman, which marriage was prohibited by the law of Louisiana, and produced no civil effect.

The District Judge decided that the minors were not parties to this proceeding, and that he would not consent to decide so grave and delicate a question as their status in this collateral way. The facts of the petition he considered proved, and the law clear, which upon the state of facts deprives the mother of the guardianship of her children.

We coincide entirely in these conclusions of the Judge of the District Court.

An oath is required to be taken by every tutor of minors. Civil Code, 328.

Again, the law requires, for the protection of minors against the undue influence of a stepfather, that previous to the celebration of another marriage by their mother, she shall cause a family meeting to be convoked, to deliberate upon continuing her in the tutorship, on pain of being deprived of the tutorship.

There is no proof that either of these important formalities were complied with in the present case. Nay, more, the answer admits by implication that they have not been.

The special defence set up, of the invalidity of defendant’s first marriage, presents the revolting spectacle of a mother attempting to deprive her children of their status or position in society.

We agree with the Judge of the District Court, that this is a question which cannot be enquired into in the absence of the parties principally interested.

But there is still another reason why this defence cannot be entertained. The Article '115 of the Civil Code, requires a direct action of impeachment on the part of a married person who desires to be released from a marriage affected with a nullity or illegality such as that charged by this defendant.

The"defendant contracted that marriage in 1840. She cohabited for many years with her husband — had three children by him, who are now living. She never availed herself of the faculty given her by the Article 115, of impeaching her marriage, as long as her husband was living, supposing that her marriage was, as she alleges, illegal. It is now too late for her to institute such action, and she cannot he allowed to put it in the form of a defence to this proceeding.

Upon a matter of such great importance in a general point of view, we are diffident of saying anything not absolutely required for the decision of the case. We think it proper to observe, however, that the law of Mississippi, where defendant’s first marriage was celebrated, does not seem to agree with that of Louisiana, on the subject of mixed marriages, as would appear from the testimony of lawyers in that State, taken under a commission. A bill of exceptions was taken to the depositions of the witnesses by whom this proof was made, on the technical ground of the want of an affidavit for a commission as required by Article 436 of the Code of Practice. The want of such an affidavit is cured by the propounding of cross interrogatories on the part of defendant. This point has been repeatedly decided. Lee v. Lee, 1st Ann. Bradford v. Cooper, 1st Ann. Rife v. Hensan, 2d La.

Judgment affirmed, with costs.


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    Same Case on a Rehearing.
   Buchanan, J.

A rehearing has been granted in this case, for the purpose of correcting an oversight which was committed, in affirming the judgment of the District Court generally.

That judgment consisted of two branches. It removed the mother of the minors from the tutorship: and it appointed Mare Tassin, their maternal grandfather, as their tutor.

This appointment of the grandfather as tutor, was premature. The Civil Code, Article 281 and following, makes it the duty of the Judge to appoint the grandfather as tutor in default of a father and mother. But this tutorship by the effect of the law, takes place only in case of the death of both father and mother. The legal effect of the deprivation of the mother’s tutorship on account of her not having complied with the legal formalities, is, that a family meeting must be convened for the purpose of recommending for appointment a suitable person as dative tutor. Such family meeting might possibly recommend the mother herself, or it might recommend the grandfather, or some other person. The action of the Judge in the appointment should legally follow that of the family meeting. 3 Rob. 390. 4 Ann. 523. 5 Ann. 596.

It is therefore decreed, that our former judgment stand undisturbed, so far as it affirms the judgment of the District Court removing the defendant from the tutorship of her minor children ; but that so far as the judgment of the court below appoints the plaintiff as tutor, the same be reversed, and the causo remanded, with instructions to the Judge below to proced therein according to law and the principles of this decision; and that the appellee pay costs of the appeal! áftd appellant those Of the court of the first instance.


author: Yookhies, J.

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    E. Tuttle v. Succession of James Burroughes.
    Plaintiff brought suit on a lost instrument and was nonsuited, because there was a variance in the description of it in the advertisement and that given in the petition.
    Admissions or confessions of a party, are evidence of the weakest character.
    0. 0. 2233, 2259, 8505.
    APPEAL from the District Court of the parish of Avoyelles, Cushman, J.

      John P. Waddell, for plaintiff and appellant,
    cited C. 0. 2258. 2 R. 212, 328. 1 La. 206. 12 La. 166. 13 L. 216.

      S. L. Taylor, for defendant:
    To prove the lost instruments, the affidavit of plaintiff is annexed to the petition, and three consecutive advertisements in the newspaper published at Marksville, 13th January, 1853, were offered in evidence.
    The mode pursued by plaintiff to establish the existence of the lost instruments and the fact of their loss, falls far short of the requirements called for in the Articles 2258 and 2259 of the Louisiana Code, so as to let in evidence of their contents, vide, also 2d Ann. 754, ib. 829.
    The first recited article provides that “ when an instrument in writing containing obligations which the party wishes to enforce, has been lost or destroyed by accident or force, evidence may be given of its contents, provided, the party show the loss either by direct testimony, or by such circumstances supported by the oath of the party as render the loss probable, ■ and in this case the Judge may, if required, order reasonable security to indemnify the party against the appearance of the instruments, in case circumstances render it necessary.” And the Article 2259 provides, that “ in every case where a lost instrument is made the foundation of a suit, or defence, it must appear that the loss has been advertised within a reasonable time in a public paper, and proper means taken to recover the possession of the instruments.”
    But the articles cited require not only proof, or strong circumstances, to establish the loss, but further proof that the loss was advertised within a reasonable time. Taking the affidavit as true, was this requisite complied with ? certainly not. If the note and draft were executed in 1846 and 1847, as stated in the account sworn to, and not the affidavit, (for this makes no mention of the matter,) and these instruments were lost in 1849, and not advertised until 1853, they were not advertised within a reasonable time, for four years had elapsed before the loss was made known either to the public or to the representatives of Burroughei estate. This cannot be considered as a compliance with the rule laid down in the Article 2259 of the Code.
    But in the absence of any satisfactory evidence either as to the existence, or the loss of the instruments in question, let us suppose that the plaintiff has brought himself within the requisites of the Articles 2258 and 2259, the plaintiff cannot recover, because (on the second question raised) his right of action was extinguised prior to the date of the institution of this suit by the effect of prescription alone ; unless he has shown, by legal and proper evidence, a recognition and promise to pay on the part of Burroughes subsequent to the time when prescription had actually run.
    The prescription as applicable to the lost instruments was five years, 0. 0. 3505, and it took effect by the mere silence of the creditor, ibid 3494, unless interrupted in one of two modes provided by Article 3482.
    Here no legal interruption intervened, 0. 0. 3484, nor was it interrupted by the act or consent of the debtor, ibid 3486.
    It is upon the ground of an acknowledgment made on the part of Burroughes, that the plaintiff places his case, and to which point the whole evidence was directed.
    There can be no question, that a debt legally prescribed, may be renewed and its payment enforced by the acknowledgment of the debtor, but this acknowledgment in order to give vitality to what the law considers as dead and hold the debtor still bound, must he made of a pre-existing debt, specific, fixed, and certain. 10 L. R. 568. 9 R. R. 511. 12 R. R. 243. ib. 231. 7 Ann. 537.
    These authorities lay down the rule clearly, that the acknowledgment to be binding must be of a debt certain in its nature, and fixed as to amount.
    Nor will a conditional acknowledgment revive the debt, 15 L. R. 145, and so strict and well settled is the rule, that an endorsement on the back of a note in the handwriting of the drawer of a payment will not operate as a revival. 4 Ann. 419. 11 L. R. 449.
   Yookhies, J.

The plaintiff’s action is- founded on a promissory note and draft, alleged to have been lost in the year 1849; he also claims the sum of $400, as one-half of the price of a tract of land sold by William Lazarus, for the joint benefit of himself and Burroughes, alleging that the latter received the whole amount thereof.

The note' is described as drawn for the sum of $600, and dated in the year 1846, and the draft for the sum of $>160; both endorsed by William Lazarus.

In the advertisement of the loss,, published in January, 1853, the amount of the note is not specified; it is merely described as drawn in favor of the plaintiff, dated sometime in the year 1846, and bearing' eight per cent, interest. The draft is described as drawn to the plaintiff’s order, without mentioning the drawer’s name.. If is evident that the description of the lost instruments in the advertisement is, in some respects,, at variance with that contained in the petition. The affidavit of the plaintiff at the foot of his account, verifying its correctness, is the only evidence in the record in relation to the loss of the instruments; declared upon,, and, in our opinion,, is clearly insufficient. Under the provisions of our Code, Article 2258, it is essential for the plaintiff to show, in order to entitle him- to recover, either by direct testimony, or by circumstances supported- by his oath, the fact of the probable loss of the instruments sued upon. It is also essential for him- to show that the notice required'by Article 2259, has been seasonably given.. We are not '-prepared to say" that such notice has been given, a period of nearly four years having elapsed from the time of the alleged loss to the date of its advertisement. 2 Ann. 754, ibid 829.

The admissions or confessions of a party have repeatedly been considered by this court as evidence of the weakest character;, particularly when made to the witness alone, unsupported by corroborating circumstances. The acknowledgment made by Burroughes to some of the witnesses in 1850, is entirely too loose and indefinite as to the nature and extent of his indebtedness, to autho-rise us to arrive at a different conclusion from that of our learned brother of the District Court.

In relation to the plaintiff’s claim of $400, alleged to be a part of the price of the sale of a tract of land, there is no evidence.

It is however urged by the appellant, that the Judge á quo erred in giving a final judgment against him, as his claim was not prescribed. We think the judgment should have been one of nonsuit. There is no allegation, nor is it in proof that the note sued upon was made payable to bearer or order, so as to be prescribed under Article 3505 of the Civil Code. 3 Ann. 220. 4 Ann. 171, 126. 5 A. 147.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be reversed, and that there be -judgment against the plaintiff as in case of nonsuit, the appellee to pay the costs of appeal, and those of the District Court to be borne by the appellant.


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    Susan E. Compton v. M. R. Airial.
    A mwidamus will not lie to compel a clerk to issue an execution for arrears of alimony, where it does not appear that an application and a proper showing has first been made to the Judge who rendered the decree for alimony.
    O. P. 629, 641, 884.
    APPEAL from the District Court of the Parish of Rapides, Cushman, J.

      IT. B. Kelly, for applicant, cited :

      Borgstede v. Clark, 5 An. 295; Kelly v. Cilly, 5 An. 534: City of Lafayette v. Parish Judge of Jefferson, 8 R. 5 ; Prieur et al. v. Commercial Bank, 7 L. 510.
    As to effect and mode of execution of judgment of Supreme Court in a case of this kind, see 6 R. 92.
    Defendant pro. per.

   Buchanan, J.

Plaintiff appeals from the refusal of the District Judge to grant a peremptory mandamus upon the Clerk of the District Court, commanding him to issue a fieri facias for arrears of alimony exceeding three hundred dollars, due under an interlocutory decree in a suit pending in said court, between the plaintiff and her husband.

It is for the court which has rendered the judgment, to regulate the manner of its execution (O. P. 629); and we are indisposed to interfere with this legal prerogative of the court of the first instance, unless the record presents a clear case of denial of justice or oppression.

We do not think that the petition shows a case for mandamus. Of the right of the party to enforce the decree for alimony rendered in her favor, there can be no question. But we consider the correct practice to be, that the party should address himself to the court which made the decree, and make some showing, by affidavit or otherwise, that the defendant has refused to obey the same. Thereupon the court may, in its discretion, properly render an execution for the arrears of alimony unpaid. That order would be a guide to the clerk in issuing a fieri facias, which writ must necessarily express some definite sum. 0. P. 641. In the present case, there is no allegation of any demand and refusal to comply with the decree for alimony; nor of any application to the court for an order for a fieri facias; none of any default of the clerk, to fulfil a duty attached to his office, and which might legally be required of him. 0. P. 834.

The clerk is a ministerial, not a judicial officer. The application made to him by the plaintiff, was for a fieri facias for the sum of three hundred and sixty dollars, in execution of a decree for the payment of alimony at the rate of twenty dollars a month. It was not competent for the clerk to assume, proprio motu, or to decide that there was an accumulation of arrears of alimony unpaid,.although due under this decree, to the extent of three hundred and sixty dollars. This was a matter for the cognizance of the Judge.

Judgment affirmed.