author: Buchanan, J.

text:
    Heirs of Stephen Henderson v. Rost & Montgomery, Executors.
    P.or former decisions as to Ihe construction of the same will, see 12 Rob. 549; 5 An. 441; 7 A. 692. In this case the court determined to abide by every thing decided in the above recited cases, as having settled the law for the parties to this suit.
    At the death of the testator the slaves, which he directed by his will to be emancipated, acquired instanter the condition of statu Uberi, and every child of a woman who had been his slave followed the condition of its mother, and became free when she became free. Such child would be free at the time fixed for the emancipation of its mother, even had she died before that time. 0. 0. Art. 196.
    Under the terms of the testator’s will, and the above recited decisions of the Supreme Court, these staini libeH would become free at the expiration of the time designated by the testator without any formal manumission, but upon the express condition that, upon their refusal to go to Liberia at the time fixed for their emancipation, or upon their return after having gone thither, they should forfeit to the heirs of the testator the disposition of his will, and become slaves again.
    APPEAL from the Fourth District Court of New Orleans, Strawlndge, 3.

      Briggs, for plaintiff and appellant. P. Soule, for defendant.
   Buchanan, J.

The will of Stephen Henderson has been the subject of several decisions of this court. See 12 Rob. 549; 5 An. 441; 7 An. 692.

The only matter which is supposed to still require adjudication in relation to this testament is the validity and effect of its 6tli, 7th and 8th articles.

The whole will is copied in a note to page 458 of the 5th volume of the Annual Reports, to which we refer for the details of the articles of the will in question. They treat of the management of the testator’s slaves after his death; his intention being evident, that his slaves should be kept together, and worked according to a sort of socialist scheme of his own upon one of his plantations, which was to remain, in perpetuity, a part of his succession. In the theory of the will, this socialist community of blacks, thus established in the midst of our slave population, was divided into two classes: one of which was composed of all the testator’s slaves in existence at the lime of his death, of certain other slaves in which he had an undivided half interest, (the other half being owned by Henry Boyal,) and of all children born of the testator’s slaves within five years after his death.

The second class was composed of the children and descendants of the testator’s slaves, to be born after the expiration of five years from the date of his death.

As to the first of these two classes, the will provided for its gradual conditional emancipation in the following manner: Five years after the testator’s death, ten slaves, five females and five males, were to be selected by lot, and furnished with a free passage to Liberia, and one hundred dollars in money, provided they were willing to go to that country. At the end of ten years, twenty others were to be drawn and sent off in like manner. At the end of twenty-five years from the testator’s death, all the survivors of the slaves born before his death, and all their descendants born within five years after his death, being the whole of the first class remaining in the hands of his representatives, were to be sent off to Liberia, provided they would consent to go.

As to the second class, they were to remain forever attached to the Destrehan plantation, or Dunblane, as a part of the socialist community of that projected industrial emporium.

We are spared, by the labors of our predecessors, the decision of some very important questions in relation to the emancipation of Henderson's slaves, which would have offered great difficulty in their solution, and upon which, we are free to confess that, we doubt whether we should have come to the the same conclusion as they have done had the points been of first impressions. But we have determined to abide by everything that has been said by our predecessors in this particular case, considering their decisions as having settled the law for these parties. Thus, Judge Martin, as the organ of the court, in 12 Rob. 451, says: “ The draft and transportation, as ordered by the testator, were legitimate objects of his last will and testament.”

Under this dictum, we consider the legality of the dispositions of the will in relation to the drawing of lots at the expiration of five and ten years, and the transportation to Liberia of the successful competitors, as no longer an open question.

Again, in 5th Annual, 468, we read: “And it is further decreed, that the provision in the said will contained, touching the liberation of the slaves attached to the Houmas plantation, if they should hereafter be decreed valid, can only operate upon such portions of said slaves as may, on a proceeding in the nature of a judicial partition in kind, fall to the succession of Stephen Henderson, the testator, and not upon the portion of said Doyai.” We take it to be here settled, that the projected emancipation of all the slaves in which the testator had an undivided half interest, is to be construed (upon the principle ut res magis valent quarn pereaf) into an emancipation of those slaves only, which, upon a partition with the other co-proprietor, should enure, in full and undivided ownership to Henderson's succession.

Considering these points as settled, which, as already observed, would have offered great difficulties to our minds had we felt ourself called upon to decide them, we now proceed to deal with the status of the slaves of Henderson under the very peculiar dispositions of his will. And at the threshhold we are met by the principle of law le mort saisii le vif. The moment the breath left Mr. Henderson's body, he ceased to be owner of everything which it had been the labor of his life to accumulate, his slaves included. By last will, he could enfranchise his slaves, either absolutely or sub modo. It was his pleasure to do so sub modo. At the moment of his death, therefore, the condition of his slaves were fixed. They were statu Uberi — the females were statu libera. Every child born after the death of Henderson, of a woman who had been his slave, and who, consequently, was an object of his testamentary dispositions, followed the condition of its mother. It became free when its mother became free. And by the humane dispositions of our law, such child would become free at the time fixed for the enfranchisement of the mother, even if the mother should die before that time. C. C., Art. 196.

We are next to examine what were the conditions annexed by Henderson to the enfranchisement of his slaves. • By the terms of his will, as construed by us and by our predecessors, the statu Uberi were all to be free at the expiration of twenty-~five years from the testator’s death. But they were only to be free on condition of going to Liberia with their own consent. Let them refuse to go to Liberia, and they remain slaves. And it is to be remarked that the testator has declared his will to be, that they return to slavery, if ever they return back to this country. Upon this clause Judge Martin seems to have based his conclusion (12 Rob. 552,) that the provisions.of the will render a formal manumission of these slaves unnecessary. In fact, a formal emancipation of the slaves would, perhaps, have rendered their subsequent reduction to slavery, in ease of their return from Liberia, impracticable, as the law stood at the date of the will. Whereas, the simple transportation of the slaves, with the express condition that they were not to return, while it would ensure to them the possession of their liberty in a country where slavery did not exist, would in no manner deprive the owner of the right of reclaiming their services, if they should violate the condition upon which alone he had consented to dispense with his legitimate claim to those services.

It is, therefore, adjudged and decreed, that all the slaves of which the late Stephen Henderson was the undivided proprietor at the time of his death, and all those of whom he was co-proprietor, by undivided halves, with Henry Boyal, and which, by partition in kind with said Boyal, have fallen or may fall, in an undivided ownership, to the succession of Henderson, shall be sent to Liberia by the executors of Henderson, at the expiration of twenty-five years from said Henderson’s death, and at the costs of his estate, provided they consent to go. But if any of said slaves should'refuse to go to Liberia, at the expiration of the term aforesaid, and upon the conditions in the will specified, then the slave so refusing shall be deemed as having forfeited all claim to this disposition of Stephen Henderson’s will; and it is further decreed, that the transportation of any of said slaves to Liberia, as aforesaid, shall not bar the heirs of Stephen Henderson from claiming the said slaves as their property, in case he or she shall thereafter be found within the limits of the State of Louisiana. It is further decreed, that the costs in both courts be paid by the succession.

C. Bufour applied for a re-hearing, which was refused.


source: Caselaw Access Project

author: Merrick. O. J.

license: Public Domain

text:
    Brown v. Union Bank.
    L,, a member of thofirmof S. P. & Co., pledged to B. 300 shares of Union Bank stock. PicTcersgill obtained judgement against S. P. & Co., and seized and sold the stock. B. bought it by his agent. The agent refused to comply with the terms of adjudication, and gave his written consent to let the Sheriff resell. S. G-. & Oo. purchased it at the second sale; but, as the bank refused to transfer the stock, the Sheriff returned the writ, “ nothing realized.” After the sale, B. filed his third opposition in the suit of Pickersgillv. S. P. & Oo., claiming the proceeds under his act of pledge. He obtained judgment, which was appealed and affirmed. S. G-.&Oo. tendered the price of their bid to the Sheriff, and demanded the transfer.
    B. sued the bank for the dividends, and to have the stock transferred to him. The bank called S. <3- & Oo. in warranty.

      Seld: 1st. That the letter of B.’s agent consenting to the resale of the stock was a waiver by him of all objections to the sale, and the adjudication to S. <3-. & Co. was legal.
    2d. The stock being so adjudicated, could not be divested from S. <3-. & Oo. without a neglect or refusal to comply with the terms of the sale. The fact that they held the money in their hands while the opposition was pending, could not be construed into such refusal. It was not their fault that the bank refused to transfer the stock to them, and the Sheriff’s return of the writ did not affect their title; th emere act of adjudication, invested the purchasers with title — and the writ having performed its office, its return was a matter of course.
    APPEAL from the Third District Court, of New Orleans, Kennedy, J.

      L. Pierce and Benjamin & Micou, for plaintiffs and appellants. JR. H. Benis, for defendants.
   Merrick. O. J.

James Brown, the plaintiff, being a creditor (to a very large amount) of Peter Lapice, among other things, to secure himself took a pledge of three hundred shares of the stock of the Union Bank. Pickersgill & Co. having obtained judgment against Sylvian Peyroux el al.; Lapice,beingoneof the firm, issued an execution on the same, and on the fifth day of March, 1850, seized upon the stock as the property of Lapice.

The bank stoek on the 22d day of March, 1850, was adjudicated to Levi Pierce, Esq., per account of James Brown, for thirteen dollars per share, hut, ho refusing to comply, it was, with the written consent of Levi Pierce, dated 27th day of March, 1850, as attorney for James Brown, re-offered for sale.

On the 23d day of March, four days previous to Mr. Pierce’s letter, James Brown filed his third opposition to the Sheriff sale, and claimed the proceeds of sale under his act of pledge.

Shortly after the filing of the third opposition, viz: on the sixth day of April, 1850, the stoek “was adjudicated to James Sager, for account of the firm of Sager, Gardner & Co., at the price and sum of twelve dollars per share, making the sum of three thousand six hundred dollars.”

To this part of the return, the Sheriff appends on the return of the writ on the 15th day of November, 1851, the following, which “amount (the price) the purchaser never paid: Mr. Frey, the cashier of the Union Bank, having positively refused to permit me to transfer the said shares on the books of the bank to the purchaser, I therefore say nothing was- realized by the adjudication made on the 6th day of April, 1851.” (1850).

The opposition of James Brown, in the case of Pickersgill & Co. v. Sylvain Peyroux & Co., was decided in June, 1851, and judgment signed on the 8th day of November of that year, maintaining his opposition and decree'ng that “ the Sheriff pay over to the opponent the nett proceeds of the three hundred shares of the Union Bank stock sold under execution herein, after the payment of the costs.”

Pickersgill S Co. appealed to the Supreme Court, and the judgment of the lower court was affirmed with costs.

On the third day of July, 1852, James Sager, through the agency of a Notary Public, tendered the amount of his bid to the new Sheriff, and demanded that he should make out a certificate of the adjudication in their favor, which the Sheriff declined to do, as he knew nothing personally of the affair.

It appears that Gardner, Sager c6 Go. were the agents of Pickersgill & Co.

On the 9th day of July, 1852, P. M. Lapice directed the Union Bank to pay to James Brown the dividends upon the stoek, and to transfer the stock upon the books of the hank to him, as pledgee and purchaser of the stock, and at the same time notifying the hank that the adjudication to Gardner, Sager & Co, on the 6th of April, 1851, (1850,) had become null by the abandonment of the purchase and the return of the writ.

The suit is against the bank to compel the payment of the dividends and the transfer of the stock. Gardner, Sager & Co. were cited by the barik’in warranty. Judgment was rendered in their favor, and Brown lias appealed.

The court is of the opinion:

1st. That the letter of Levi Pierce, Esq., as the attorney of James Brotan, the pledgee of the stoek, wherein he expressly authorized the Sheriff to proceed to the re-sale of the stoek under the execution, was a waiver of all objections to the sale, if any existed, and the adjudication of the stock to Gardner, Sager & Go. was legal.

2d. That the stock being so legally adjudicated to Gardner, Sager & Co., their interest could not be divested without a neglect or refusal to comply with the terms of sale on their part; that the holding the money in their own hands, they being the agents of Pickersgill & Co., during the pendency of the opposition, without objection of any of the parties, cannot be construed into a refusal to comply with the sale; that the refusal of Frey, the cashier of the Union Bank, to transfer the stork on the books of the bank was not a fault attributable to Gardner, Sager & Co., and that the Sheriff’s return of the writ was without influence on their rights, because the mere act of adjudication by 1he Sheriff had invested the purchasers with title; and the writ, to the extent of the seizure made under it, had performed its office by the sale, and its return afterwards was a matter of course. Perkins v. Dickson, 4 Rob., 418.

Judgment affirmed.


author: Mekkick, 0. J.

text:
    George D. Fields v. His Creditors.
    Articles 880 and 890 0. P. contemplate an amendment of the judgment in favor of the appellee, under an answer, only as against the appellant, and not as between one appellee and his co-appellees* If either of the appellees is dissatisfied with the judgment, he should appeal against his co-appellee. Legal charges and wages of the captain and crew of a vessel are superior in rank of privilege to the claim for repairs of the boat. C. 0., Art. 8204.
    A contractor with the owner of a boat tor its repairs, after repairing it, voluntarily delivered it to the Syndic of the owner who since the contract had gor.e into insolvency. JJeld, that this was an abandonment of the contractor’s right to detain the boat until the debt due for repairs should be paid, and that he must look to his privilege alone.
    O. O. 8204, O. P. 888, 890.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      T. Gilmore, for appellants. Cox & Bream, for the insolvent. Uennen, Ogden, Waggles & Waples, Iry and Collins & Wooldridge, for opponents.
   Mekkick, 0. J.

Shortly before the surrender of Geo. D. Field, be placed the steam towboat Fashion, then owned by himself, in the bands of Hyde & MeEie to be repaired. While the boat was in their bands, ho made a surrender of his property to his creditors, the only asset surrendered being the steamboat.

Hyde was appointed Syndic, and the boat was sold for cash. His partner, MeEie became the purchaser, the price of the boat ($2,000) being left in his hands by order of the Syndic.

By the judgment upon the tableau of distribution but $614 99 were decreed to Hyde & MeEie, although the repairs made by them upon the boat were estimated at $5,455 88, the Judge of the lower court having been of the opinion that certain other privileges enumerated in Article 3204 of the Civil Code were superior to that of Hyde & MeEie.

Since the case has been before this Court on appeal, the opponent, M. Gau-thier, has filed his answer to the appeal, claiming to be allowed $954 50 as a privilege for wood furnished the boat, and to be paid by preference over all other creditors.

We think that Articles 888 and 890 of the Code of Practice contemplate an amendment of the judgment in favor of the appellee, under an answer only in those cases where the parties are all in relation to each other appellants and appellees, and not where the answer prays for an amendment of the judgment in favor of one appellee against his co-appellees as well as the appellant. If M. GautMer was dissatisfied with the judgment, he ought to have appealed. It is. therefore useless to examine his pretensions to an amendment of the judgment in his favor.

Hyde & McKie contend that in addition to -their privilege they had a right to detain the boat in their possession, at 'the time of the surrender, against all persons, until the repairs made by them were paid for. They cite Article 2748 of the Civil Code and the case of Gayarré v. Tunard, 9 An. 254, Abbott on Shipping, &c., in support of this opinion.

It is not necessary to determine in this case whether the contractor, who repairs a steamboat, has the right to detain the boat or not under the law and authorities cited until he is paid, for we are of the opinion that when the boat was delivered to the Syndic, for sale, without objection, and sold by him, this right was abandoned and the parties relied upon their privilege alone.

The Judge of the District Court, we think, properly classed the appellants, under No. 8 of the Article 3204 of the Civil Code, and that legal charges, &c. and the wages of the captain and crew, &c'. were superior in rank to the privilege of the appellants. Scott v. His Creditors, 3 An. 41.

Captain Miller's testimony was inadmissible to reduce the claim of opponents, but as in other respects he was impartial, or at most testifying against his interest, we do not think that the rejection of the inadmissible portion of his evidence can change the result.

Judgment affirmed.


author: Merrick, C. J.

text:
    Robert McMaster v. R. A. Stewart.
    Iii an action of revendication for a'slave, the parol declarations of defendant in regard to plaintiff’s title, are inadmissible. The plaintiff cannot recover by the weakness of defendant’s title— it must be by the strength of his own.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Foul' house, for plaintiff. J. Henderson, Jr,, for defendant and appellant.
   Merrick, C. J.

This is an action of revendication brought to recover of the defendant a slave.

We think justice requires that this case should be remanded for a new trial. While the defendant complains that injustice has been done him by reason that he has been prevented from having a curator ad hoc appointed to represent thé defendant in his demand in warranty, we find that the plaintiff has not adduced that clear proof which will enable him to recover, although the testimony makes it highly probable that such proof exists.

In this action, the plaintiff must recover on the strength of 1ns own title. In the present case, the plaintiff has not shown title to the slave in controversy in Rutherford, nor that he has himself possessed said slave long enough under his title, to acquire said slave by prescription. This defect in his testimony the plaintiff may be able to supply on a new trial.

In regard to the bills of exception, this controversy is between one of the parties to the act of sale from James McMastei to R. A. Stewart and a third person. The act of sale being set up by the defendant in his answer, is open to every means of defence in the hands of the plaintiff, without pleading the same otherwise than orally on the trial. We see therefore no reason why the plaintiff could not call upon the notary to prove any fact (the same being in other respects legitimate testimony) which is not contradictory to any statement made by him in the act, and we do not consider the testimony given contradicts anything stated in the act. Had the testimony of the notary been objected to- on the ground that the parol declarations of James McMaster ceuld not be offered in evidence to prove title in the plaintiff, it would have presented the question which we have to consider in the second bill of exceptions.

This bill was taken to the admission in evidence of the parol declarations of the defendant in regard to the plaintiff’s title. We think this testimony should have been excluded. The plaintiff, as already observed, cannot recover by the weakness of his adversary’s title, it must be by the strength of his own. Nor can the plaintiff perfect his title by the verbal admissions of his adversary ; such proof being inadmissible. Adams v. Gaynard, 5 N. S., 250.

It is therefore ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that this cause bo remanded to the lower court for a new trial, with leave to the defendant to amend by filing his demand in warranty and praying for and requiring the appointment of a curator ad hoa to represent the absentee, and it is further ordered that the plaintiff pay the costs of the appeal.


author: Lea, J.

text:
    Mrs. Augustine Swain v. R. J. Barrow and William Elam—Swiney, Green & Co., Intervenors.
    E. constructed buildings for B. under a contract which was duly recorded. Afterwards, S., G. & Co. purchased the property and buildings at Sheriff’s sale; E. drew a draft in favor of Mrs. S., on B., which was accepted by B. in consideration of the amount due for the buildings. Mrs. S sued E. and B. on the draft and claimed a privilege on the buildings; S., G. & Oo. intervened. Tldd: E. had the right to claim from B. the amount due him for constructing the buildings, independent of the draft, and therefore no subrogation was necessary by payment of the draft or otherwise to enable E. to assert any rights which he might have asserted, had no such draft been given. There was no novation of the debt and no payment. E’s rights against B.’s vendee were those of a mortgage creditor against property in the hands of a third person. Mrs. S. was entitled to judgment against B. and E. on the draft, but without privilege; E. to judgment against S., G. & Co., and with privilege.
    XA. PPEAL from the District Court of West Feliciana, Merrieh, J.,

      U. B. & E. Phillips, for plaintiff. Brewer & Collins, for intervenors and appellants.
   Lea, J.

The plaintiff, the holder of a draft for the sum of $483, drawn by William Elam upon Robert J. Barrow, and accepted by the latter, claims from the drawer and acceptor the amount of the draft, with privilege for the payment thereof upon certain works or buildings constructed by Elam on the plantation of Bwrrow,

The privilege is claimed on the ground that the consideration for which said Bavroie accepted and promised payment of said draft, was a debt due by Barrow to Elam for the construction of the buildings hereinbefore referred to.

Por answer, Barrow pleads the general denial and avers that the property upon which the privilege is sought to be enforced, was passed into the hands of Swiney, Green & Co., of New Orleans, they having purchased the same at Sheriff’s sale, on the 26th November, 1853.

The defendant Elam pleads the want of a legal presentment for payment at maturity, and moreover avers that the consideration of the acceptance of the draft was for work and labor done on the plantation of Barrow, under a contract duly recorded on the 26th March, 1853, the contract itself being dated on the 5th of the same month, by reason whereof he avers that he has a lien and privilege upon the work, buildings and materials on said plantation, which he prays may bo enforced in case he should be held liable to pay the draft sued upon ; that the purchasers of the plantation acquired the same with full notice of his recorded claim, and are therefore liable to pay the same ; and in case he should be decreed to be liable upon the draft, he prays for judgment against Barrow for the amount of the draft, as also against Swiney, Green & Co., who are intervenors herein, with privilege upon the buildings erected under his contract with Barrow, on the plantation pm-chased by them.

Swiney, Green, & Co., by an intervention filed in the proceedings, contest the privilege of the plaintiff on the ground that Elam himself, under whom they claim, had no privilege, and if he had, that the same has boon extinguished by novation. For answer to the petition of intervention, the plaintiff alleges the simulation of the sale to the intervenors and the continued possession of the defendant Barrow as owner.

Upon these numerous issues, the Judge of the District Court rendered judgment in favor of the plaintiff and against Barrow and Elam in solido, for the amount of the draft sued upon, but rejecting her claim for privilege and a further judgment against Swiney, Green & Co., and in favor of Elam, for the like sum, with mortgage on the buildings situated on the property purchased by the said intervenors, with stay of execution until he shall have paid the debt sued upon or become otherwise subrogated to plaintiff’s rights therein.

Swiney, Green & Co. have appealed.

It is. unnecessary to enquire whether there is any error in the judgment rendered, except as far as it affects Swiney, Green & Go., the appellants, the parties having acquiesced in the judgment so far as they are concerned.

No exception having been taken to the form of the proceedings, though somewhat irregular, and the case having been tried upon the issues as presented upon evidence received without objection, the question to be determined, as presented to this court by the appellants, is, whether Elam has a claim upon Swiney, Green & Co. for the amount of the draft sued upon, with mortgage as allowed by the judgment.

There is no privity between the plaintiff and the appellants. The liability of Elam to the plaintiff cannot affect the rights of the former against the inter-venors. It is true that if Barrow had paid the draft, the claim of Elam under the building contract would to that extent have been extinguished. The fact, however, that this draft was not paid, taken in connection with other testimony, shows that there remains an unsatisfied balance of that amount yet due to Elam upon Bar-row's contract with him; but this liability is independent of the draft, and therefore no subrogation is necessary by payment of the draft or otherwise, to enable Elam to assert any right which he might have asserted had no such draft been drawn. Elam had the right to claim from Barrow the balance due him at the time the draft was drawn, or at least at the time it matured. There was no novation of the debt and no payment. Elam's rights against Barrow's vendee were those of a mortgage creditor against property in the hands of third persons purchasing with notice, the building contract having been recorded in the mortgage office, some months prior to the purchase, by the intervenors, who at the time of the purchase retained in their hands, out of the price, a sufficient amount to liquidate Elam's claim. No change in the judgment has been prayed for in favor of Elam Wo are therefore unable to place him in a better position than ho is placed by the judgment appealed from, and if the foregoing views are correct, the appellants have no ground of complaint.

Judgment affirmed.


author: Spojtord, J.

text:
    The State v. Dunn, Administrator, et al. Suit against Sheriff’s Surety, as Tax Collector for 1854.
    The obligations of the sureties on the Sheriff’s bond, held not to be affected by the erasure of the unmeaning phrase “ for a like sum,” nor by the interlineation of the names of the last two sureties.
    The date of such instrument not being of the essence of it, a change of the date, so as to correspond with the date of its acceptance by the parish officers, could not invalidate it.
    The sureties on such bond may recede before they have been accepted, and until they give notice of their wish to recede, they may be accepted. After acceptance the contract was perfect, nnd no party could retract.
    The addition of two other sureties separately bound, could not affect the liability of the first eighty who continued to be severally bound, each for the sum and upon the conditions he had specified, and no others.
    ■Where a Sheriff, by failure to give bond as Sheriff within the time prescribed by law, had thereby for feited his capacity as Tax Collector, and afterwards he executes a bond as Sheriff with sureties and is made Collector of Taxes by appointment of the Recorder of the parish — Held: flhat the sureties were bound to know that he had forfeited his right as Tax Collector at the time of Ihc execution of his bond, and that he could only be restored by the Recorder’s appointment, and were not therefore discharged.
    A defaulting Sheriff may be appointed Tax Collector after exhibiting a discharge from the proper officer of the State.
    Sureties on a Sheriff’s bond cannot be permitted to plead ignorance of a defalcation of the Sheriff at the time they signed the bond. The records of the Auditor’s and Tteasurer’s office are open to the public, and they might have inquired into the State of his account. It was not the duty of the Auditor and Treasurer, who were neither parties nor privies to the bond, to hunt up the sureties and serve them with a copy of the Sheriff’s account.
    In this contract with the sureties there was no warranty by the State that the Sheriff was not a defaulter ; and an Act of the Legislature extending to the Sheriff.time of payment, is no fraud on the sureties, who only guarranty his future fidelity.
    Code, 8006.
    APPEAL from the District Court of East Feliciana, Ratliff, J.

      Reman, for plaintiff. Muse & Hardee and Pond, for defendants and appellants.
   Spojtord, J.

The appellants, sureties on the bond of a late Sheriff of the parish of East Feliciana, seek to be relieved from liability for his defalcation as a State Tax Collector, under the assessment roll for the year 1854.

We do not find that there was any material alteration in the bond. The sum for which, and the conditions upon which, each of the sureties bound himself severally, were in no wise changed by the erasure of the unmeaning phrase, “ for a like sum,” and the interlineation of the names of the last two sureties. The date of the acceptance formed no part of the instrument, as at first signed ; that date, having been endorsed with reference to a subsequent acceptance to be made by the three parish officers to whom the approval of the bond had been confided by law, was properly changed, so as to show the true date of the acceptance.

The eight sureties who signed on the 14th of March, 1855, obviously signed with a view to the contingency that they might afterwards be accepted or refused by the officers, two of whom were absent when they signed. Until the officers accepted them, they were at liberty to recede; until the}' gave notice that they wished to recede, the officers might accept them; they gave no such notice, but left their proposition open until the officers finally and formally accepted it, on the 29th of March, 1855. Then the contract was complete and no party could retract.

The two other sureties came into a similar bargain, on the last named date, each binding himself separately for a like sum, could not affect the liability of the first eight who continued to be severally bound, each for the sum and upon the conditions he had specified, and no others.

But, it is contended by the sureties, that the bond is void as to them, because it recites, that “ whereas the said A. J. Laxo, Sheriff, and l>y law collector of State taxes in the parish of East Feliciana, will receive the assessment roll .for the parish, on the acceptance of this bond, and his producing to the parish Recorder his receipt from the proper officer, showing the full payment of the tax heretofore collected,” &c. The objection is, that he was held forth to them as Tax Collector, by virtue of his office of Sheriff, or by law, when in truth he only became collector by the appointment of the parish Recorder, having lost his right under the law, by failing to give a timely bond. The sureties were bound to know the law. Knowing it, they knew, when they signed the Sheriff’s bond, on the 14th and 29th of March, 1855, that his office as Tax Collector was already vacated, by his neglect to give bond and security on or before the first Monday of the preceding January. Act 21st March, 1850, sec. 40, p. 189.

They knew .also that he could only be restored to the place of Tax Collector by the appointment of the parish Recorder, and they bound themselves for his faithful conduct, when he should be so restored.

But they say it was not competent for the Recorder to appoint him, on account of his previous default, and that as he was never lawfully Tax Collector, they are not bound for him.

If they could be permitted to set up such a defence, the facts would not sustain them. No law has been cited, which rendered the Sheriff, although he had been a defaulter, incapable to receive the appointment after producing a receipt for the public money with which he had been previously entrusted. He was not appointed until he produced such a receipt. The only restriction laid upon the parish Recorder, by the 30th section of the above cited Act is, that he “ shall not issue the warrant for collection nor deliver the roll to any person who may have been previously charged with the collection of public money, until such person shall exhibit a discharge from the proper officer of the State.” Being a temporary defaulter, is not a perpetual bar to the right of holding office. The disability is purged by the production of a receipt, showing that the money has been paid. Constitution, Art. 28.

Again: the sureties contend that they entered into the contract through error, induced by the fraudulent conduct of the officers of the State, and that this should absolve them.

The substance of this branch of the defence, if analysed, amounts only to an assertion that when they signed the bond, they did not know that their principal was in default to the State for a portion of the taxes of the year 1853, but that certain officers of the State, knowing it, suppressed the fact.

But it is highly probable that the sureties knew it also; first, because their principal was so tardy in giving his bond, the law requiring it to be given on or before the first Monday of January; and, secondly, because .the bond intimated upon its face, that he would only be entitled to receive the assessment roll upon producing to the parish Recorder his receipt from the proper officer, showing the payment of taxes heretofore collected, an expression which implies that no such receipt bad yet been procured.

And if they did not know it, it was their own fault, and they cannot complain. If Law was not in arrears for the taxes of 1853, when they offered to go upon his bond, he must have had his tax receipt or quietus ; they could readily have satisfied themselves upon the point by demanding its exhibition as a condition upon which they would become his securities; moreover, the records of the Treasurer’s and Auditor’s offices are open to the public, and they might have inquired into the state of his accounts there. They volunteered to indemnify the State lor the future conduct of their principal; the Auditor and Treasurer, who knew them not, who were neither parties nor privies to the execution of the bond, were not bound to hunt them up and serve a copy of Law's accounts with the State upon them.

They complain that the Auditor of Public Accounts did not require the District Attorney to proceed by rule against the Sheriff for his former default, as prescribed by the 62d section of the Act of 21st of March, 1850, p. 144 If he had done so, non constat that they would have been the wiser; but'this law is directory, and, as a general principle, laches is not to be imputed to the government. United States v. Kirkpatrick, 9 Wheaton, 735; United States v. Van Zandt, 11 Wheaton, 134. In the contract with the sureties, there was no implied warranty that the State had exhausted all its remedies against Law for previous defaults, or that there were no previous defaults.

The State had a right to extend the time for him to pay his taxes previously due, and release him from the penalty, although the policy of such special legislation may well be doubted. The Legislature exercised that right, and on the 14th of March, 1855, (the day the first sureties signed the bond,) an Act was approved for his relief (Session Acts, p. 207), allowing him thirty days from that date to settle, upon the same terms as if the taxes of 1853 had been paid in the time prescribed by law. In accordance with this Act, he made his settlement. The indulgence of the Auditor was thus approved by the Legislature. But this action cannot be construed as a fraud upon the sureties, who undertook to guaranty his faithfulness in future.

The Recorder, Clerk and President of the Police Jury, who accepted and approved the bond, practised no deceit upon the sureties, and had nothing to disclose, more than the sureties knew themselves.

The views we have expressed upon this part of the case, are amply supported by the cases of the Police Jury of St. Landry v. Haw, 2 L. 42, and the State v. Hays, 7 Ann. 118.

Finally: it is urged that the bond is void as to the sureties, because they assumed a more onerous obligation than their principal, the aggregate amount of their liabilities being larger than the sum for which the Sheriff was bound.

“The suretyship which exceeds the debt, or which is contracted under more onerous conditions, shall not be void, but shall be reduced to the conditions of the principal obligation.” 0. 0. 3006. So this defence could not avail, if the allegation on which it is based were strictly true. But in reality, each of the sureties exercised the privilege of the law concerning official bonds of this class, and contracted a several obligation towards the State in a sum which he specified, and beyond which he could in no event be made liable. So that no surety has assumed an obligation more onerous than his principal; the sum specified by each being far less than that for which the Sheriff obligated himself.

It is unnecessary to notice the bills of exceptions.

Judgment affirmed.


author: Mebbicic, C. J.

text:
    Govey Hood v. John H. Martin.
    A part of the internal improvement lands granted to this State by Act of Congress of September-4, 1841, were located by agents of the State, and for the sale of the unlocked lands an office was created by Act of the Legislature of 1844, the Register and Receiver being authorized to issue warrants for such lands. Under this Act and that of 1847, purchasers of these land warrantsbe-come the agents of the State for the location of so much of the internal improvement lands as was indicated by the warrant.
    The patent issued, pursuant to the approval of such location, could only issue in favor of the person holding the warrant under which the location was made. It cannot be supposed that the Legislature intended to confer upon the Governor the power to grant a patent to any other person than him to whom the State had sold the warrant.
    APPEAL from the District Court of Carroll, Snyder, J.

      Selby, for plaintiff and appellant. J. B. & O. T. Bemiss, for defendant.
   Mebbicic, C. J.

Both plaintiff and defendant claim title to the tract of land in controversy in this case by patents issued by the Governor of Louisiana.

The plaintiff’s patents are the oldest in date, having issued on the 15th day of December, 1850. The defendant’s patents bear date 23rd of December, 1851.

It is contended in this court, that plaintiff’s patents were obtained by fraud and contrary to law and that therefore defendant’s title ought to prevail against the plaintiff.

The tract of land in controversy has been in cultivation since 1828. In May, 1839, it was sold at probate sale as property belonging to the succession of one Mankling, and bought by one Jones in partnership with J. W. P. Richardson. Gocey Hood appears to have attested the adjudication as a witness.

Jones remained in the possession of the place until his death. The defendant married the widow of Jones, and having put further improvements upon the property, has been in the possession of it ever since. By an Act of Congress approved September 4, 1841, 500,000 acres of land were granted to the State of Louisiana, to be sold at a price not less than one dollar and twenty-five cents per acre, and to be applied to objects of internal improvement, specified in the Act.

A part of these lands were located by agents of the State. In 1844, the Legislature created an office for the sale of the unlocatcd lands, under the direction of a Register and Receiver. It directed them to sell all of the internal improvement lands belonging to the State of Louisiana, under the same rules and in the same manner as the lands belonging to the United States are sold.

The Register and Receiver were authorized to issue their warrants for lands not yet located. The minimum price was fixed at three dollars per acre.

It was made the duty of the Governor to issue patents for all the lands located by warrants when contemplated to be sold by that Act, “ whenever he shall be satisfied that the same have been properly located. Acts 1844, p. 61.

In 1847, another Act of the Legislature was passed, providing for the purchase of the internal improvement lands by pre-emption in certain cases.

The price of the located lands was reduced to one dollar and a quarter per acre, and the price of warrants to locate upon the remaining portion of the land granted by the Act of Congress and which had not been located by the State, was fixed at the same rate.

The seventh section of the Act is in these words. “Be it further enacted, ete., That it shall be the duty of the Governor of the State to issue patents to purchasers on the payment of the purchase money in case of pre-emption or private entry of lands already located and on the approval of the location in the case of the purchase of a land warrant.” Acts 1847, p. 47. In 1855 certain sections of the Act of 1847 were re-enacted. Acts, p. 401. It will be seen from those Acts of the Legislature that the purchasers of this class of land warrants became the agents of the State for the location of so much of the lands granted by Congress to the State of Louisiana as was indicated by the warrant.

The course of proceeding seems to have been to locate the lands in the United States Land Office in the District where the same were situated. This location, the wai’rants being surrendered, was then communicated to theCom-missionner of the General Land Office at Washington and by him referred to the Secretary of the Interior for approval. If the Secretary of the Interior approved the location, the Governor was notified of the same and the patent was issued.

The proof in this case establishes clearly that in August, 1850, more than four months previous to the issuing of the patents to the plaintiff, the defendant located the lands in controversy under warrants Nos. 415 and 607. They were embraced in list No. 25.

The approval of the Secretary of the Interior of list No. 25 was communicated to the Governor by the Commissioner of the. General Land Office, but without the name of the defendant who had located the land.

By this means, the plaintiff was enabled to obtain a patent for the lands located by the defendant and designated as list No. 25.

This improper use of the location of the defendant’s land warrants led to a correspondence between the respective departments, and finally patents were issued in the name of the defendant, bearing date move than a year subsequent to the plaintiff’s patents.

The act of the Governor in issuing the patent was only ministerial. It was to be issued “on the approval of the location, in the case of a land warrant. This we think should be construed to mean that the patent shall issue in favor of the person who held the land warrant under which the location was made. It cannot be supposed that the Legislature intended to confer upon the Governor the power to grant a patent to any other person than him to whom the State had sold the warrant, and who acting on the faith thereof had located the land and procured the approval of such location.

We, therefore, conclude that the patents held by the plaintiff issued unadvisedly, and that they cannot prevail against those held by the defendant. Stoddard v. Chambers, 2 Howard, 318. Menard v. Massey, 8 Howard, 309. Kitridge v. Breaud, 4 Robinson R., 82.

In regard to the first bill of exception, taken by the defendant as to the admission of testimony, we are of the opinion that the allegation “ that the patents referred to by the plaintiff, upon which his suit is founded, are null and void and were issued and obtained in fraud and contrary to the laws of the United States and of the State of Louisiana, ” authorized the proof of what' was done by the officers of the United States and of Louisiana and by the parties in the matter of the issuing of the land warrants, the location of the land, the acts of the respective departments thereon, and the issuing of the patents. We do not discover any testimony in the record, admitted under the above allegation, except on this point. The ruling of the Judge of the lower court has not injured the defendant in this respect.

From the view we have taken of the case, the instructibns contained in the second bill of exceptions were immaterial and were they erroneous it would not be necessary to remand the case on that account.

Judgment affirmed.


text:
    B. Maggoffin v. Cowan, Dykers & Spalding.
    A planter shipped his cotton to defendants, merchants in New Orleans. He afterwards wrote to them to sell by the time his brother returned from Texas, a period fixed by a conversation had with him. Cotton was then worth 12^ cents. They did not sell for several months afterwards, when cotton fell to 7 cents. Meld, that the letter was a positive instruction to sell, and that they were liable for the difference in the price. C. 0. 2971, 2972.
    The fact that he shipped a subsequent crop to the defendants was no ratification of their acts in the premises.
    The prescription of one year to actions for quasi offences is not applicable. The case is one ex con-tractu and not &a delicto.

    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      T. Hunton, for plaintiff. Dorsey, for defendant and appellant.
   Buchanan, J.

The plaintiff, a planter, sent to defendants, commission merchants, his crop of cotton, 153 bales, of the year 1850, to be sold for his account. At the time of sending this cotton, he wrote as follows to them, under date of September 10th, 1850, in regard to the sale of the same: “You can dispose of it when you think proper. I have held up for two years, but my impression is that the sooner sales are effected the better, but of this you will do as you think best, having determined to rely on your judgment in the matter.”

On December 10th, 1850, plaintiff wrote again to defendants, as follows: “I take pleasure in introducing to your acquaintance my brother, Samuel Magoffin, who is on a visit to San Antonio, and will remain a short time in your city. I have drawn a draft in his favor on you for three thousand dollars, which you will pay when presented, out of the proceeds of my cotton. He will inform you when he will need the money, and you can make a sale to meet it at that time. As to the balance of the cotton, I would like that you would sell it all by the time he returns to your city on his way home, and send me the proceeds by him in drafts,” &c. This letter was delivered to defendants by the person mentioned therein, on the 21st December, 1850, and in about one month after that time, Mr. Samuel Magoffin returned from Texas to New Orleans, and conversed with defendants, about the 24th January, 1851, just before leaving town on his return home, in relation to the sale of the plaintiff’s cotton.

Defendants told him that they had thought it best not to sell the cotton, but would hold on to it with a view of getting a better price. It is proved that, about that time the defendants might have got 12J- cents a pound for plaintiff’s cotton. They chose, however, to hold on until the month of October following, when they sold the cotton for 7 cents a pound. Plaintiff sues them for the difference between those two prices, say 5-J- cents a pound, for disobedience of his instructions. The defendants contend, in the first place, that the plaintiff had left it discretionary with themselves when to sell his cotton, and if we bad no evidence before us but the letter of September 10th, we would concur in that view. But we regard the letter of the 10th December as a distinct intimation from plaintiff to defendants that the latter must sell,at the latest, by the time that Mr. Samuel Magoffin would be on his return from Texas, a period about which there could be no uncertainty, since Samuel Magoffin had seen them on his way down to Texas, and delivered to the defendants his brother’s letter. We regard the declaration of defendants, made to Samuel Magoffin on his return from Texas, that they would hold on for higher prices, as a direct refusal to obey the orders of their principal, for which they are liable to all the loss whieh the latter is proved to have sustained by the subsequent fall .in the price of cotton in the market. C. C. 2971, 2972.

Defendants plead that the plaintiff has ratified the sales made by them of this cotton, and signified his satisfaction with their conduct as his factors, by consigning to them his two succeeding crops, of 1851 and 1852. It is proved that he sent them the crop of 1852. There is no proof in relation to that of 1851. We do not regard this fact as, of itself, a ratification of the defendant’s acts in the premises. On the contrary, it is proved that plaintiff notified defendants, in 1852, that he would hold them responsible for the loss suffered by him by the depreciation of cotton between the time of his instructions to sell and the actual sales. Defendants, lastiy, plead the prescription of one year, applicable to actions for quasi offences. The present action is one ex contractu, not ex delicto, and is not governed by the prescription in question. See 9th Rob. 296, Palmer v. Smith

Judgment affirmed, with costs.


author: Sfoitord, J.

text:
    F. Lacroix et al v. The City of New Orleans.
    The Common Council of New Orleans authorized the Mayor to appoint wa commissioner, expert or arbitrator ” to meet an arbitrator of the plaintiff, and value a piece of land which plaintiff proposed to sell to the city. The two commissioners assessed the value at $10,000, and reported accordingly, and the Mayor recommended payment of that sura, but the city never paid it.

      Held: there is a wide difference between an expert and an arbitrator, and between both and a commissioner. But in whatever capacity the referees acted, there was nothing in the record to show that they bound the city to pay anything.
    X3l PPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Train and Collins, for plaintiff. Livingston, for defendant and appellant.
   Sfoitord, J.

The petitioners allege that, in 3840, the city of New Orleans took possession of a tract of land belonging to them, and used R for opening, laying out and improving certain streets and public places; that on the 26th March, 1853, the Common Council of the city authorized the Hon. A. L>. Cross-man, then Mayor, to appoint a commissioner, expert or arbitrator, to meet an arbitrator or commissioner in behalf of plaintiffs, to view and examine said piece of land, and to value the same ; that the two commissioners, under oath, assessed the value of the land at $10,000, and made a notarial report thereof, which is annexed to the petition; that afterwards Mayor Crossman recommended the .payment of this sum, but the city never would pay it.

Wherefore, they pray that the city be cited to show eause why the report of these “experts, commissioners or arbitrators” should not be homologated according to law, and the defendant condemned to pay the plaintiffs $10,000, with legal interest from the 1st of January, 1840, and for the vendor’s privilege on the said piece of land, costs, &c.

The city excepted to the petition, as disclosing no cause of action.

This exception being overruled, there was judgment conformable in all respects to the prayer of the petition, and the defendants have appealed.

We find no authority for these anomalous proceedings, and no sufficient allegations in the petition to show a cause of action.

It is not averred that the city ever promised to pay, or even acknowledged this stale demand, nor that the land was taken from the plaintiffs without their acquiescence, or against the laws in force at the time.

The plaintiffs themselves do not appear to understand in what capacity the two gentlemen acted who made an extra judicial report, which they now seek to convert into a judicial decree. There is a wide difference between an expert and an arbitrator, and between both and a commissioner. But, in whatever capacity they acted, their report, under the only resolutions which have been offered in evidence, binds the city to nothing.

Sec. 4 of the Act of April 3d, 1832, (Bui. &. Cur., p. 113,) gives n® color to the plaintiffs'1 claim. It is not shown that any agreement was ever made to pay them a particular price.

If they had a claim, the value of the land now is no criterion of what it was worth in the semi-improved condition of the locality in 1840. The price they gave for it would rather lead us to infer that they willingly abandoned it for the sake of improving the neighborhood.

It is ordered, that the judgment of the District Court be reversed, and the plaintiffs’ petition dismissed, they paying costs in both courts.


author: Spoeobd, J.

text:
    J. Figuiere v. His Creditors.
    Article 0.3?. 228, relates to an arrest for debt simply, where there Í3 an apprehension that the debtor will leave the State or the jurisdiction of the court. The arrest of an applicant for the benefit of the insolvent laws, is provided for by the Act “relative to the voluntary surrender of property, and mode of proceeding,” approved March 15,1855.
    There is no authority in that Act which authorizes a change in the order of arrest, by requiring a bond to be given with other conditions than those imposed by the District Court.
    XX PPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      G. & O. B. Schmidt, for insolvent and appellant. Durand & Hornor for Lefebvre.

    The following affidavit was made for the arrest of plaintiff: [Rep.]
    Fourth District Court. — Personally came and appeared before me F. Le-febvre who, being duly sworn, deposes and says, that the commercial firm, of which he is a member, is a creditor- of the insolvent Joseph Figuiere in the sum of two thousand three hundred and forty dollars; that said Insolvent filed his petition for a cession, on or about the 14th February,' 1856, in this honorable court, but has failed to file his commercial books and papers, as affiant is informed and believes; and affiant further shews that he has strong reasons to believe and fear that the debtor Figuiere may avail himself of the stay of proceedings to keep his person from his creditors ; and that the said Figuiere has not surrendered all his property to his creditors, but has concealed a large amount of cash, and personal and real effects from his creditors. That he has converted his property into money, with a view to defraud his creditors, and has knowingly omitted to declare, in his schedule, some of his rights, claims and property. Thiit affiant’s information and belief is based upon what he has heard from others, of the acts and doings and sayings of the said Figuiere prior to liis making a cession herein, together with his own knowledge of the said Figuiere.

    F. LEFEBVRB.
    Sworn to and subscribed before me this 16th February, 1856.
    K. Loew, Dy. Clk.
    Counsel for Lefebvre prayed the court to amend the judgment of the District Court, on the following ground [Rep.]:
    Now, into this honorable court, by his attorneys, comes Joseph Lefebvre, appellee herein, and joins in this appeal and shows that there is error to his prejudice in these proceedings, from which Figuiere, the insolvent, has appealed, which this appearer now prays may be amended in conformity to law.
    That this error consists in an erroneous order of court, entered on appearer’s petition, commanding the Sheriff to arrest the insolvent and hold him in custody till lie shall give bond, &c. &c. &e., conditioned “that if the charge of fraud complained of be established, said securities shall be liable for the debt of the complainant, F. LeJebvre, in case the said insolvent shall have departed the State without the leave of our said court.” Whereas appearer show’s that under the law the order should have read: “conditioned that the said Figuiere shall not depart from the State until he has made a fair and full surrender of his property, and complied fully and fairly with the laws relative to voluntary surrenders,” as set forth in appearev’s petition; and that the bond taken by the Sheriff be made to conform thereto.
    Wherefore appearer prays that the judgment appealed from, be amended in his favor, as above set forth, with all general and equitable relief.
   Spoeobd, J.

The order of arrest in this case was granted upon an allegation of fraud, and the articles of the Code of Practice cited by the appellant, are irrelevant. They relate to an arrest for debt simply, where there is an apprehension that the debtor will leave the State or the jurisdiction of the court.

The proceeding in this case, by Lefebvre, was authorized under the 22d section of the Act of March 15, 1855, “ relative to the voluntary surrender of property, and mode of proceeding.” Acts 1855, p. 486.

An answer to the merits of the petition of Lefebvre has been filed, and it would be premature for us to express an opinion thereupon, before that issue has been tried in the court of the first instance.

The appellee has moved to amend the order of arrest, by requiring a bond to be given with other conditions than those imposed already. We find no authority in the Act of March 15, 1855, (already cited,) which would justify such a change as that prayed for ; and that Act purports to repeal anterior laws upon its subject matter.

The judgment is affirmed, with costs.

Counsel for plaintiff applied for a re-hearing :

The Act of 1855, while it repeals all other Acts in relation to voluntary surrenders, carefully maintains in full force the provisions of the C. C. and the C. P. But in the latter code, there is but one article, viz : the 223d in pari ma-teria, and it provides, that “a debtor, though he has called a meeting of his creditors, in order to make a surrender of his property, and has obtained a stay of proceedings against his person or property, may, nevertheless, be arrested, if one or more of his creditors declare on oath, before the court in which the failure took place, that such debtor intends departing from the jurisdiction of the court, to secrete his person from his creditors; provided they set forth specially the circumstances which have induced them to form such a belief.”

This law, as we have already shown, remains in full force, notwithstanding the Act of 1855, and it is applicable to the present case, in which the insolvent, had obtained a stay of proceedings against his person and property. But if it be the law of the land, and applicable to the case, we can perceive no good reasons why the insolvent should not be entitled to the protection it affords. It is a law in pa/t'i mateo’ia with the 22d section of the Act of 1855, relied on by the court, and should, therefore, be construed so as to give effect to both. (C. C. Art. 17, 7 L. 166, 17 L. 407, 9 R. 531, 1. A. 54, 2 A. 919.) _ Indeed we consider it no longer an open question, that laws in pari materia are to be construed so as to give effect to all their provisions. — See succession of Hebert, 5 A. 121.

But as it is obvious that the 22d section of the Act of 1855 does not specify how the complaint should be made, and the 228d Article O. P. does, the provisions of that article must be considered as supplemental to, and making part of the 22d section above quoted, and that unless a creditor has complied with the provisions of both, he is not entitled to the arrest of the insolvent.

We presume it will not be contended that the arrest of a debtor is not a harsh remedy, and that it should be resorted to without a sufficient motive. But if the insolvent did not intend to depart from the jurisdiction of the court, there is no cause whatever for his arrest, and the resorting to it without even alleging that he had an intention to depart, is a wanton aggression on his personal liberty, employed for no other assignable reason than to vex and harass him.

It appears to the undersigned that the only question that can possibly arise in this cause is this: has the 223d Art. O. P. been repealed ? for if it has not, its language is general and applies to all cases of arrest of insolvents who have surrendered their property and obtained a stay of proceedings.

We freely admit that we may have been remiss in not presenting the above considerations to the court, in arguing the cause, and we suppose that our citation of the 223d Art. O. P., in connection with the reserving clause of the Act of 15th of March, 1855, may have escaped the attention of the court; for we are persuaded the reasons we have assigned and the authorities we have quoted plainly justify our conclusions, and entitle us to a reversal of the order of arrest.

Re-hearing refused.


author: Buchanan, J. Mebbiok, C. J.

text:
    Spears v. Shropshire.
    See 10 A. R. for decision remanding this case.
    In Mississippi (as is admitted,) a settlement, "bona fide, made before and in contemplation of marriage, is good not only against the husband but against his creditors and subsequent purchasers.
    This rule is yet more indexible, where, in anticipation of marriage, the wife has secured her own property to her own use and that of her children.
    Even though, before the marriage settlement, the parties had been formally espoused, the husband having then a wife living (in Tennessee,) which espousals were by the law of Mississippi void; yet, a divorce having taken place between the husband and his first wife, and a second marriage, after such divorce, formally celebrated in Mississippi, between the husband and his second wife, in view of which this marriage contract was executed, the contract is as valid as if the first illegal marriage had never existed, as against subsequent' creditors.
    The contract must be governed by the law of Mississippi, where the parties resided at the time of the marriage. 0. 0. Art. 10.
    APPEAL from the District Court of East Feliciana, Ratliff, J.

      Smith and Smiley & Perin, for plaintiff. Muse and Sharlcey, for defendant and appellant.
   Buchanan, J.

(Merrick, C. J., recused himself.) This case was before us last year, and was remanded for the admission of a certain marriage settlement, which had been rejected by the District Court. See 10 Annual, p. 218.

The plaintiff had judgment in the court below, for the slaves mentioned in her marriage settlement and their increase. There was judgment against her on her money claim. Defendant appealed, and plaintiff has joined in the appeal, claiming that the judgment be amended, so as to conform to the .prayer of the petition.

We were of opinion, when the case was previously considered by us, that the proceedings and decrees in Mississippi, do not on their face show that the marriage settlement has ever been adjudged in Mississippi fraudulent and void. After the full argument that this point has received upon the present trial, we adhere to our opinion as then expressed.

The law of Mississippi is admitted to be, that a settlement, bona fide, made before and in contemplation of marriage, is good, not only against the husband, but against his creditors and subsequent purchasers, and that this rule which applies to cases where property is settled on the intended wife by the intended husband, is yet more inflexible in cases where the intended wife, with the knowledge of her intended husband, secures her own property to her own use and that of her children.

But it is contended that the plaintiff cannot claim the benefit of this rule of law, because, 1st. This was not a settlement, bona fide, in contemplation of marriage : inasmuch as the parties were man and wife at the time of the settlement, and for years before — and 2d. Because the property conveyed was not, in truth, the property of plaintiff, as alleged in the settlement, but was really the property of defendant, having been paid for by him.

The evidence shows that the first marriage of these parties (in 1829,) was null by the laws of Mississippi — Shropshire being, at the time of such marriage, already married to a woman who was still living in Tennessee, from whom he was not divorced. Hutchinson’s Miss. Code, 495, sect. 4. — 6 Sm. and Marsh. Rep. 308. But a divorce had taken place between Shropshire and his first wife, previous to the contract of marriage with plaintiff, of October 2, 1882. The second marriage was therefore binding.

It seems probable, from the evidence, that the greater part of the shares mentioned in the deed of trust, or marriage settlement, although charged to Mrs. Spear by previous deeds from Wren and_ from Gay sien and Wren, had been paid for in reality by Shropshire. If so, the settlement, instead of being made by the plaintiff, must be viewed as made by the defendant Shropshire, who was a party to the deed; and such a settlement appears to be valid, by the law of Mississippi, against subsequent creditors. See case of Wells v. Treadwell, decided by the High Court of Errors and Appeals of Mississippi, at the April term, 1855, referring to 24 Mi. Rep. 181 and 25 Mi. Rep. 66. — Armfield v. Armfield, 1 Ch. Rep. Miss. 316.

The contract in question was executed in Mississippi, where all the parties resided, and was intended to have effect there. Its effect must, therefore, be governed by the law of Mississippi. C. C. Art. 10.

We find no error in the judgment of the District Court, rejecting the claim of plaintiff on account of money received by her husband, for land sold in Mississippi.

Judgment affirmed, with costs.

Mebbiok, C. J.

I have recused myself in this case and take no part in the decision.


text:
    David Taylor & Co. v. Wm. Clark.—M. H. Laughter, Intervenor.
    I'he allegation “ that plaintiff is about to subject the said schooner or the bond substituted for the release thereof, to the payment of said judgment,” is vague, uncertain and in the alternative, and is insufficient to support a demand for an injunction.
    Matters available in defense of a suit, will not authorize an injunction, at least in the absence of any showing, that an irreparable injury is about to be inflicted.
    APPEAL from the Fourth District Court of New. Orleans, Reynolds, J.

      A. N. Ogden, and Stansbury, for plaintiff. Smiley and Perin, for inter-venor and appellant.
   Lea, J.

The intervenor in this case is appellant, from a judgment dissolving an injunction which appears to have been improperly issued.

The appellant was allowed to bond the schooner Seventy-Six, which was attached as the property of William Olarh, the defendant. Under the allegation that he is the owner of the schooner Seventy-Six he prays that the plaintiff, who has assumed a judgment against Olarh, be enjoined from proceeding “ to satisfy his execution against Olarh, out of the said vessel or the said bond, ” but there is no positive allegation that the plaintiff is about to seize the vessel, or that she is under seizure, or even within Hie State. His complaint is that the plaintiff is about to subject the said schooner or the bond substituted for the release thereof, to the payment of the said judgment. The matter of complaint is vague, uncertain, and in the alternative.

It is certainly no ground for an injunction, that the plaintiff is about to bring suit upon the bond. Matters available in defense of a suit will not authorize an injunction, at least in the absence of any showing that an irreparable injury is about to be inflicted.

Moreover the affidavit is insufficient There is no deposition to the truth of the allegation in the petition, and even admitting that the omission was a clerical error, it is not one which could be corrected or amended by the affidavit of the attorney of the intervenor, unless such affidavit was of itself a sufficient basis for the issuance of the writ, which it is not.

We think the injunction was properly dissolved, and that damages should be allowed.

It is ordered that the judgment appealed from, he amended, so as to read as follows: It is ordered that the rule taken herein, to dissolve the injunction, be made absolute, that said injunction be dissolved and set aside, and that the plaintiffs, David Taylor & Go., do have and recover of M. H. Laughter, the intervenor, thirty dollars damages, and that the appellant pay costs in both courts.


author: Merrick, J.

text:
    Adele Fowler, Tutrix, v. Thos. Duval, Jr.
    Where land, once public, has become private property, the possessory action will protect the possession of him who holds as owner against the intrusions of all persons, whether claiming the property in virtue of title or not.
    A perfect Spanish grant and survey made by order of the court, wherein the old lines are ascertained in conformity to the grant, and confirmed by the Act of Congress of Sd March, 1815, is valid and conclusive against a preemption certificate and patent from the United States, as respects the lands embraced in the grant, although the portion of said land embraced in the patent may have been returned as vacant by an officer of the United States. In such case a survey made by officers of the United States are not conclusive evidence of the boundaries of the tract described in the Spanish grant, and courts are at liberty to receive other testimony in relation thereto, and if superior, to decide in favor of such evidence. The rule is different as to imperfect, and other titles emanating from the government of the United States The approved surveys in such cases are generally, if not always, conclusive.
    APPEAL from the District Court of East Baton Rouge, Robertson, J.

      T. G. Morgan, for plaintiff. Mam & Elam, for defendant and appellant.
   Merrick, J.

The plaintiffs sue to recover possession of a tract of land situated in the parish of East Baton Rouge, and alleged to be bounded on the east by lands formerly granted to John G. Fledge, on the north by lands formerly granted to James and Benjamin Smith, on the west by lands formerly belonging to David, Ross and F. PousseU, and on the south by lands formerly vacant, containing about three hundred arpents.

Plaintiffs allege that they have possessed the tract of land for more than a year as owners.

They allege that the defendant has taken possession of about one hundred arpents of said land on the northern and western porlions of the same, and that he is continually committing waste. They pray also for an injunction.

Defendant filed exceptions, also an answer containing a general denial, and the plea of prescription. The exceptions will hereafter be specially noticed.

On the trial the plaintiffs offered in evidence, to show the extent of their possession, a perfect Spanish grant, and a shrvey made by the order of the court, wherein the old lines were ascertained in conformity to the grant. The grant was embraced in list A, No. 176, of J O. Crosby’s report, and confirmed by the first section of- lhe Act of Congress of the third of March, 1819, as a valid and complete title.

The defendant, on his part, shows a survey made by the United States Deputy Surveyor, and approved, as appears by the map, which, instead of bounding plaintiff’s tract on the north by the James and Benjamin Smith tract, and on the west by the Boss and Poussett tract, leaves a vacant space between the northern and western boundaries of the tract of land in controversy and the two tracts of land mentioned.

Pie further shows that he has settled upon the land so returned as vacant, and filed his claim for preemption, and obtained a preemption certificate from the Register of the Land Office at Greensburg.

The judgment of the lower court on the titles and parol evidence adduced was in favor of the plaintiffs, and the defendant appealed.

The points made by defendant in this court are the same as contained in his exceptions before referred to, and we give them in his own words, viz:

“First. The alleged right of ownership, on which the action is founded, if sustained by proof, disputes the dominion and sovereignty of the United. States to the vacant and unappropriated lands, puts at issue their superior title, and claims the ulterior prerogative to force the United States to an action of title against those not in actual possession, before the public domain can be adjusted.

“ Second. Adverse to the United States, there can be no possession or ownership, by a title dependent on a law of Congress for confirmation. And against those possessing and claiming as preémptors lands returned as vacant by competent authority, the possessory action cannot be maintained; and without proof of a possession by title not dependent for confirmation on Congress, the possession of the preemptor cannot be disturbed.

“ Third. Neither the possession of one year, nor any number of years, can be evidence of ownership against the United States.”

We will consider these grounds together.

The title offered in evidence by the plaintiff, to show the extent of his possession, was a perfect title from the Spanish government, and so recognized by the United States government, to the extent of the boundaries and limits designated in the grant. So far the title was as perfect as it would have been had the land been regularly surveyed and given to the original grantee by a special Act of Congress, and followed by a patent from the President of the United States. The land within the boundaries of the grant became private property, and subject to all the rules of law governing real estate in Louisiana. It became thenceforward a vested right, protected by the Constitution of the United States and the State of Louisiana.

It was no longer under the control of any department of the government of the United States, nor subject to be changed or altered in its location by the Surveyors or Deputy Surveyors of the United States, who are themselves only ministerial officers. It was not, therefore, in the power of the United States Surveyor to declare vacant any portion of the land conveyed by the original grant which had been recognized as valid by the United States government. The only question, therefore, presented to the lower court, was one of fact, and whilst the survey, made by the United States Surveyor, might be offered in evidence to show the boundaries of the grant, it was not conclusive, and the court was at liberty to consider other testimony tending to establish the original boundaries of the tract, and if superior, to decide in favor of such evidence. The rule is different in regard to imperfect and other titles eminating from the government of the United States. THe approved surveys in sueli cases are generally, if not always, conclusive.

We fail to perceive in what manner the view here taken disputes the dominion of the United States over the vacant and unappropriated lands. It leaves those lands exclusively under the control of the federal government, hut simply asserts that when that government never had any title to the land in controversy, or when she has parted with the title she once had, the mistakes of her officers cannot make public property that which belongs to private persons. 17 L. R. 230; 5 Rob. 466.

Nor do we see any danger to the public interest by allowing to the owners of such property that great shield to title: the possessory action. Having its origin in the interdicts of the praetors, it has accompanied the petitory action in all countries where the civil law has prevailed as an indispensible complement. Certain it is, that as means of protecting title, it is not less important in Louisiana than elsewhere.

We see no more reason why the pretence that the party is claiming under the preemption law of the United States should authorize the invasion of the annual possession of private property, than the pretence that such party holds under title from the real owner of the same.

Neither ought it to prevail in the possessory action, where the title to the tract of land in controversy is shown to be out of the government, and where title can be offered in evidence for the purpose of showing the extent of possession only.

It is unnecessary to determine whether the possession of one year of the lands of the United States can be set up against the government, or those claiming under it. That question does not arise in this case, and we only determine that where land has once become private, the possessory action will protect the possession of him who holds as owner against the intrusions of all persons, whether claiming the property in virtue of title or not.

On the merits, the judgment of the lower court seems to be sustained by the weight of evidence.

Judgment affirmed.


author:
Vookhies, J.
      Lea, J.,

text:
    W. S. Wright & Co. v. Hogan & Tureaud et al.
    A sale will not be set aside on the ground that it was made in fraud of creditors, by one in insolvent circumstances, where it was made openly, fora fair value, and with the knowledge of several o* the creditors, although the sale was of the vendors entire stock of goods.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Durant & Horner, for plaintiffs. Roselius, Dur,eTl, Qrivot and Breaux, for appellants.
   Vookhies, J.

(Lea, J., dissenting — Merrick, C. J., took no part in this decision). This is a revocatory action'. The plaintiffs allege that the commercial firm of Hogan & Tureaud, now in liquidation, are indebted to them on two promissory notes, one for the sum of $192 89, with 7 per cent, per annum interest from the 4th of March, 1853, and the other for the sum of $203 43, with like interest from the 4th of January, 1854; that sometime in January, 1852, the plaintiffs, with many other creditors, agreed to grant an extension of time to said Hogan & Tureaud, then embarrassed in their business, and received in payment of their claim the notes sued upon; that Jeremiah S. Iiogan, intrusted with all the assets, proceeded to liquidate the affairs of the partnership, and paid about fifty per cent, on account of their claim, which originally amounted to $608 91; that after the dissolution of the partnership, Hogan also carried on business in his own name, and had on hand at the time of his last payment to them, a large stock of hardware and other goods which had been left with him by the creditors and his retiring partner, that he might sell and convert the same into money and pay the creditors of Hogan & Tureaud their instalments as they matured; that prior to the maturity of the third instalment Hogan sold out all the stock in trade remaining in the store to Samuel Lode, into whose employ he shortly afterwards entered as clerk or salesman ; that said Hogan & Tureaud have neither voluntarily surrendered their property to their creditors nor have they been proceeded against for a surrender under the provisions of the Act of the 28th of March, 1840; that at the time of said sale Lock was a heavy creditor of said firm, then utterly insolvent; that in making said sale the intention of Iiogan was to withdraw and screen said goods from their pursuit and the pursuit of the other creditors of Hogan $ Tureaud; and that Lock, cognizant of all these facts, made the purchase with the fraudulent design of procuring an unjust preference over the other creditors and securing his own claim against Hogan & Tureaud. They, therefore, pray that the firm of Iiogan & Tureaud he condeined to pay them the amount of said promissory notes, interest and cost of protest; that the said sale from Hogan to Samuel Lock be decreed to be null and void; that the property thus sold be decreed to be subject to their execution, and the said Jeremiah S. Hogan he decreed guilty of fraud, and dealt with in manner and form as provided hy law, that defendants be condemned, in solido, for costs, and pray for all further general and equitable relief.

The answer of Samuel Lock contains a general denial, and an admission that he did, in the winter of 1853, purchase of J. S. Hogan, his co-defendant, a quantity of hardware, which said purchase he alleges to have been made legally and for a good and lawful consideration, and without any fraud or shadow of fraud, as falsely alleged.

In his answer, Hogan also pleaded a general denial, except the sale to Lock, which he admitted to have been made in good faith; that said plaintiffs were aware of the sale being made, and have acted through malice in making false and unfounded charges to their personal knowledge, and done for the purpose of injuring, if possible, his reputation in the community.

Upon the pleadings and evidence adduced the case was submitted to a jury, who returned a verdict in favor of the plaintiffs for the amount of their claim against the firm of Hogan Jc Tureaud, declaring the sale from Hogan to Lock to be null and void, and the property sold subject to their execution, and Jeremiah S. Hogan guilty of fraud, etc. From a judgment thereon rendered by the court below against the defendant, whereby Jeremiah S. Hogan was also condemned to two years imprisonment in the parish jail, said Hogan and Samuel Lock have taken the present appeal.

The alleged agreement between Hogan & Tureaud and their creditors is in the following words:

We, the undersigned creditors of Hogan & Tureaud, agree to grant them the following extension, viz: in all of the month of March, 1852, 25 per cent.; in all of the month of January, 1853, 25 per cent.; in all of the month of March, 1853, ' 25 per cent.; and finally, 25 per cent, in all of the month of January, 1854, with interest at the rate of 7 per cent, per annum; this not binding on any unless every creditor comes into the above arrangement.

This instrument appears to have been executed in January, 1852. Shortly afterwards Tureaud retired from the firm and Hogan continued to carry on the business in his own name and on his own account, purchasing goods from time to time to beep up his assortment, and to liquidate the business of the partnership. In June following, an inventory of the goods of the firm was taken, and amounted to the sum of $14,434 11, at cost price, exclusive of $4963 15 for ploughs held on consignment for sale. When Hogan & Tureaud established their firm they owned no capital. Hr. Thibaut aided them by endorsing their notes — so didJfr. Tureaud, of St. James. The notes thus endorsed by Thibaut, and discounted by the banks, at the time of their suspension amounted to between $5000 and $7000, and were to be paid in full, according to the understanding of the parties. Independently of these notes, the liabilities of the firm amounted to about $30,912 70. The loss sustained by bad debts was about $10,000. It does not appear that any other assets belonged to the firm than those set forth in the above inventory at that date.

As evidence of fraud on the part of both Hogan and Lock, it is argued by the plaintiff’s counsel that Look was a creditor of Hogan & TureaufL at the time of the respite for $2554 68 ; and, from the 1st of January, 1852, was familiar with their whole business relations; that he was compelled, under an execution, to pay Twibill & Edwards, as endorser, the note of Hogan & Tureaud for $775 93; that he was continually dealing with Hogan, selling him goods and taking his notes; that he finally took Hogan into his employ; that under his influence and advice, his notes, given in part payment of the sale to him, were given in payment to Busby & Little for a debt due by Hogan individually; and that some time after the suit of Twibill & Edwards had been brought against him, he consummated his bargain with Hogan by paying McNeely two of these notes.

We are of opinion that the charge of fraud is unsupported by the evidence. Finding himself unable to continue business any longer with a reduced stock, an impaired credit and a heavy annual expense for rent, salaries of clerks, &c., Hogan made known his condition to several of the creditors of Hogan & Tureaud, and his intention to sell out. Some of them advised, hut none of them appear to have disapproved of his determination. His negotiation with Lock for the sale of the goods was openly spoken of previous to the date of the sale: Lock appears to have communicated his intention to make the purchase to some of the creditors, and his inducement for doing so. After Hie contract was concluded between the parties, it took four or five weeks to make the inventory of the stock, and this to the knowledge of several of the creditors who occasionally visited the store during that time. The inventory of the goods, at cost price, amounted to $7965 85, which appears to have been paid as follows, to wit: ten notes, each for $517 57, dated the 10th of March, 1853, drawn by Lock to his own order, and endorsed by him and payable at 12,18,24, 30 and 36 months; three notes given by Hogan for goods sold to him by Lock after the dissolution of the firm, amounting to $1295 90. And here it may be observed, as we infer from the evidence, that Lock, in common with the other creditors, Yredenburg, Folger,David, Wright and. Slurtevant, sold goods to Hogan for the purpose of enabling him to carry on his business successfully; and, as all the others have been paid in full, we see no good reason why he should not also be paid. The other items completing the price, are satisfactorily accounted for. Tureaud, sworn on behalf of the plaintiffs, says, “I suppose Hogan sold out at cost’ hardware is an article always worth first cost. 1 have bought at two and a half years credit; it is the usual way when parties sell out at cost.” Bacchus, one of the creditors, testifies that “ Hogan’s stock was much broken; that a discount on the cost prices would be a fair price for it.” Loch, it appears, intimated to some of the creditors, that he was induced to buy out Hogan in order to employ him as a salesman in his store to extend his business with the planters, with whom Hogan had a large acquaintance, and would draw him a good deal of custom, but did not want the goods if Hogan could make some other disposition of them. But it is said that Loch was a heavy creditor of Hogan & Tureaud, and made the purchase with the fraudulent design of procuring an unjust preference over the other creditors in the payment of his claim. This allegation appears to be unsupported by the evidence. It is true that Loch, as one sf the parties to the agreement with Hogan & Tureaud, was put down for three different sums, namely: $775 93, $685 10 and $1093 45, evidenced by three promissory notes; but it appears that the two last mentioned notes were held hy the Mechanics’ & Traders’ Bank. Leonard Sturtevant, one of the creditors, testifies “ that one of the amounts due Loch, which he thinks was the second one, was paid in the Mechanics’ Bank, thinks he assisted Hogan in taking it up, by lending him $129, or thereabouts. The note was taken up because Vreden-burg, one of the directors of the bank, and one of the plaintiffs against the same defendants, said it was impossible for Hogan & Tureaud to resume till it was taken up, &c.” The certificate of O. Cruzal, commissioner, shows that the following notes were paid in the Mechanics’ & Traders’ Bank on the 28th of January, 1852: “ Hogan & Tureaud’s note, order of Loch, due 19th January, 1852, $1093 65; Hogan & Tureaud’s note, order of Samuel Lock, due 28th of January, 1852, $685.” We think it is not unreasonable to infer that both these notes were taken up by Hogan-, at all events, it does not appear that Loch ever took up either of them. In relation to the note of $775 93, it is shown that Loch had transferred the same to Twibill & Edwards, who have received from Hogan the two first instalments on account thereof. On the 15th of July, 1863, Twibill & Edwards recovered a judgment against Loch, as endorser, for the remaining instalments due' on this note. Thus it is evident that Loch was not a creditor of the firm of Hogan & Tureaud at the date of the sale, as alleged by the plaintiffs. Whether the notes given as the consideration of the sale were misapplied by Hogan or not is a matter in our opinion which cannot affect in any manner the validity of the sale. " But was there any such misapplication ? We think we are fully authorized, by the evidence, to answer this question in the negative. Although no inventory was taken when the respite was granted, yet we think there is sufficient evidence in the record to enable us to arrive at an approximate invoice value of the goods then on hand. The inventory at the time of the sale, as we have seen, amounted to $7965 85. Deducting therefrom $781 69, the amount paid Bobb hy Loch for goods on account of Joshua Schole-field& Son, then lying in the Customhouse and included in the purchase, there remained then in the store $7184 16. The stock had then been reduced by sales from June, 1852, to February, 1853, to $7184 16. Supposing Hogan to have made corresponding sales during five months, from the date of the respite to that of the inventory of June, 1852, he would have sold goods invoiced approximating to the sum of $5191 85. Adding this to the inventory of June, 1852, would amount to $19,625 96, as the invoice value of Hogan S Tureaud's stock at the date of the respite.

Under the agreement it is evident that the creditors acquired no other privilege or lien on the stock of Hogan & Tureaud, their debtors, than that which the law had already conferred upon them. After the dissolution of the partnership, we think it may be fairly inferred from the testimony of Tureaud, that his partner Hogan was fully invested, if not with the ownership, at least with the authority to sell the stock under the circumstances disclosed by the record; at all events, he carried on the business in his own name and for his own account. It was not only known but approved by the creditors, who continued to deal with him on terms of credit. It is shown that during the time he thus continued in business, he purchased goods, to keep up his assortment, to the amount of $11,000 and paid for them; that he received consignments of ploughs, carts, wagons, &c., for sale on commission; and that the money arising from this sale of his goods and such consignments was applied indiscriminately to the payment of all his liabilities. It is shown that he has paid on account of the debts due by the firm $16,345 72, exclusive of $1778 65, the amount paid the Mechanics’ & Traders’ Bank, and the indorsement of Thibaut and Tureaud, amounting to upwards of $10,000. We think the evidence shows conclusively that he has faivly accounted for his liability to the creditors resulting from the management of the assets of the firm of Hogan & Tureaud. But it is said that he has misapplied the notes of Lock given as the price of the goods sold. It is in proof that he was largely indebted to Busby, Little & Co. for consignments, and gaVe in part payment thereof six of the Lock notes; he also gave two others in payment of the claim of B. E. Exly, a wheelwright and wagon-maker, and the remaining two appear to have been transferred to Julia D. Bean. Upon the whole, after a careful perusal of all the evidence which is voluminous but not contradictory, we are of opinion it is insufficient to sustain the charge of fraud against Hogan under the statute of 1840. Lock, wasclearly not a creditor of the firm of Hogan & Tureaud at the date of the sale, as charged in the plaintiffs’ petition; he had ceased to be so for more than a year before in relation to the two notes which he had endorsed to the Mechanics’ & Traders’ Bank; and as to the third, endorsed to Twibill & Edwards, which he was compelled to pay since the date of the sale, it appears that the two last instalments thereon are still due him. The allowance ofhis claim in part payment of the price, as it placed him upon the same footing with the other individual creditors of Hogan, should not, in our opinion, affect the validity of the sale.

It is therefore ordered, adjudged and decreed, that the judgment of the court below, so far as it decrees the defendants Jeremiah S. Hogan, Joseph P. Tureaud and Lion Séré to pay, in solido, to the plaintiffs, three hundred and ninety-six dollars and thirty-two cents., with interest on one hundred and ninety-two dollars and eighty cents., from the 4th of March, 1853, at the rate of seven per cent, per annum, and like interest on two hundred and three dollars and forty-three cents., from the 4th of January, 1854, till paid, he affirmed with, costs; and that in every other respect said judgment be avoided and reversed, the said plaintiffs to pay the costs of appeal, and so far as relate to said Samuel Lock also those of the court below.

Lea, J.,

dissenting I think a sale made by an insolvent debtor of his entire stock in trade, on terms of credit, to a creditor who is fully aware of his insolvency, ought not to be protected, especially where the creditor takes the goods in part payment of his own claim. Í am not satisfied, from the evidence, that the plaintiffs are estopped by having consented to the sale.