author: Rost, L

text:
    Louisa Hanna v. D. M. Pritchard, Sheriff, et al.
    Property purchased in the name of the wife during the marriage, belongs to the community, and is subject to the payment of the community debts, unless tbe wife shows that it was purchased with funds belonging to her, of which she had the administration at the time, or that she was separated in property from her husband.
    Where property purchased in the name of the wife, has been seized on execution as community property, and the wife, in support of her claim to it, sets up a judgment of separation of property between herself and husband, the seizing creditor may show the nullity of the judgment by all kinds of legal evidence.
    A judgment of separation of property between husband and wife is null and void, where there was no basis forthe action, the husband not having been indebted to the wife.
    Where an act of donation from a third person to the wife, was a real contract, and intended by the parties to be binding, it cannot be disregarded by the creditors of the husband, and tho property donated seized on execution against him. They must resort to a direct action to annul such an act

      APPEAL from the District Court of Catahoula. Barry, •!.

      James G. Taliaferro, for plaintiff, contended :
    1st. That tho plaintiff having introduced her judgment in evidence, solely to sustain her allegation that she is separate in property from her husband, and not to show her right to any property that ever belonged to her husband, or which was acquired through or by an execution issued on her judgment, and not even naming the word judgment in her petition, as incorrectly stated in defendant’s answer, the defendant had no right, under such circumstances, to set up against her judgment the allegation that it was fictitious and fraudulent. I endeavor to sustain this position by the following argument: By reference to all the cases reported, touching controversies between married women and the creditors of the husband, it is found, with only one exception, the case of Bertie v. Walker, 1 R. R. 431, that in every case where the creditor was allowed to setup, incidentally and collaterally against the wife’s judgment, the allegation of fraud and collusion, the circumstances under which such allegation has been allowed, fall distinctly under one or more of the following heads, which were set forth in a motion to strike out, and which, for convenience, I beg leave to repeat here: Where the wife is endeavoring to enforce her judgment against the property of her husband to the detriment or injury of the creditors of her husband; or, where she alleges titlo to the property seized by the creditor, under and by virtue of her judgment and proceedings under it against her husband; or, where the wife is seeking to enforce her judgment against property in the hands of third persons, by virtue oí a tacit lien, or otherwise, arising from her judgment. None of these conditions occur in the present suit. The following lists comprise all the cases that I have been able to find in our reports, and I believe they embrace all: 1st. Turnbull v. Davis, 1 N. S. 568 ; 2d. Buisson v. Thompson, 7 N. S. 460; 3d. Beard v. Pejeau, 8 N. S. 459 ; 4th. Serapum v. Lacroix, 1 L. R. 373 ; 5th. Deblane v. Deblanc, 4 L.R. 419 ; 6th. Eastin v. Eastin, 10 L. R. 197 and 198 ; 7th. Tennessee v. Gonselm, 11 L. R. 419, Revocatory suit; 8th. Muse, Syndic v. Yarborough, 11 L. R. 521; 9th. Bostwick v. 'Gasquet et al. 11 L. R. 534; 10th. Dimitry v. Pollock, 12 L. R. 296; 11th. Adamsv.His Creditors, 14L. R. 415; 12th. Brassac v. Ducros, 4 R. R. 335; 13th. Dugas v. Her Husband, 6 R. R. 527; 14th. Oliver v. Oliver, 6 R. R. 36; 15th. Fulton v. Fulton, 7 R. R. 73; 16th. Gates et ais. v. Legendre, 10 R. R. 74.
    In all the above cases, the facts and circumstances fall under one or more of the above heads.
    The circumstances of the case at bar, are entirely different from all the foregoing. The following list includes all the cases that bear any analogy to the one before the court, viz, 1st. Hickey v. Dúplantier, 4 L. R. 315; 2d. Bertie v. Walker, 1 R. R. 431; 3d. Darock v. Darcy, 6 R. R. 342.
    The first of these cases fully sustains the ground I take in the present case, that the creditor can only attack the wife’s titles by a revocatory suit. That case, Hickey v. Duplantier, seems to have settled the doctrine, that where the wife holds property under deeds made to her. after a separation of property, such deeds can only be set aside, if they be simulated and fraudulent, by a suit for that purpose.
    The second case, Bertie v. Walker, seems to sanction the opposite opinion. But the doctrine in that case is, clearly, not sustained by the opinion of the court, in the third case, (Darock v. Darcy) decided about two years afterwards, where the court says, “admitting that the appellant can, in this way, (by direct seizure,) attack the validity of a judgment rendered by a competent court, which may well bo questioned, &e.” The principles laid down in this case, seem to accord with, and confirm those announced in Hickey and Duplantier. It is contended, on the part of the plaintiff, that under the circumstances in this case, she cannot be required to sustain, contradictorily with the creditors of her husband, the validity of her judgment of separation; and that the present caséis notone in which the creditors can setup, incidentally, against that judgment, fraud and collusion.
    2d. That the defendant, by admitting that Tidwell sold the three slaves, and contending that he conveyed them to Rob'erl H. Hanna, thereby asserts that deed to be a real, but fraudulent conveyance. If a real, but fraudulent act, it can be set aside only by a suit to annul. The same remarks apply to the donation under which the plaintiff holds the slave Venus.

    3d. That, under the circumstances of this case, the rule'strictly applies, that the nullity of a judgment cannot be set up by persons not parties to it. The plaintiff’s motion to strike out, was overruled by the lower court, and a bill of exceptions taken.
    j nQw briefly notice the objections urged against the validity of the wife’s judgment of separation of property, to the defence of which, the plaintiff was forced by the ruling of the court below. That no judgment by default was taken against the defendant, Robert H. Hanna. It is admitted that the minutes of the court do not show that a judgment by default was taken. But it is shown, both by the judge’s and clerk’s docket, for the June term, 1848, (the term at which the plaintiff obtained her judgment,) that a judgment by default was taken at the proper time. The omission of the clerk to enter the default on the minutes, cannot prejudice the party taking it. Further, thejudgment finally recites, that “the judgment by default not having been set aside, &c.” This corroborates the entry on the judge’s and clerk’s dockets, and makes it clear, that » judgment by default was taken. . These dockets were introduced to show, that the non-appearance on the minutes of the taking a default, was not the fault of.' the plaintiff, and were not intended to contradict the minutes. It was admissiblo surely, to make this showing, that the wife had no just rights or claims against her husband. The evidence shows that she had. That thejudgment became null through delay in executing it. Our laws do not prescribe any specific time within which the wife shall proceed to execute her judgment. See Fulton v. Fulton, 7 R. R. 73. In that case, sufficient diligence, the court said, had been used, where the execution issued about four months after the rendition of the judgment. In the present case, execution issued within less than four months from the date of the judgment. That the plaintiff’s judgment was not advertised according as required by law. The evidence shows that it was. By agreement of counsel, the clerk, in making up the transcript, was allowed to omit copying two of the advertisements and to certify the filing of the gazettes in evidence on trial. That the sheriff’s return upon the execution does not show that a demand was made of the defendant to show'property, and of the plaintiff to point out property, &e. The articles 726 and 727 of the Code of Practice, being introduced under the head of capias ad satisfaciendum., their provisions seem intended more particularly as preliminary steps to the issuing of the capias„ in order that it might clearly appear that the debtor, before his incarceration, had no property, out of which the judgment could be satisfied. But, givingthose articles the most general application that they are susceptible of, they can properly be only applied to cases where parties directly interested might be injured by the non-fulfillment of their provisions, as in the case of sureties on bonds, &c.;; or in the case of the judgment creditor, at whose instance the execution issued, and who might have pointed out property of his debtor, if he had been called) upon. The plaintiff, as the judgment creditor in the present case, is the only one to complain, and she could not complain, unless through the omission of the sheriff, to call upon her to point out property, she had been injured. The defendant himself, distinctly avers, that Robert H. Hanna “has no property or means. His own judgment remained dormant from June, 1848, to July or August, 1850, because “Robert H. Hanna, had no property or means” out of which his judgment could be satisfied; and he seeks now to make his debt out off the property of the plaintiff, because his debtor has nothing. But suppose the plaintiffs execution had been returned by the sheriff, strictly in conformity with those articles; in what better condition would it have placed her husband’s creditors. Such a return would not have precluded the plaintiff from afterwards issuing another execution and seizing her husband’s property, if any could be found. Such a return would not have satisfied her judgment, or left a cent the more for her husband’s creditors. By the return that was made upon the execution, it is seen, there was no property of Hanna out of which judgments could have been satisfied; a fact well known to the defendant, and by a knowledge of which, it is difficult to see how he could be benefitted, come in what way soever it might. Then where is the necessity of the sheriff’s return, showing that he called first upon the defendant, and then upon the plaintiff, to show property ? “Lex neminem cogit ad vana.”

    But it is respectfully urged, that the issuing of the execution, within a reasonable time, is a showing of sufficient diligence on the part of the wife, and that the manner of the sheriff’s retui'n upon that execution, is wholly indifferent, and does not create lacheson her part. And lastly: That the Code of Practice does not require sheriff’s returns upon executions, in all cases, to pursue strictly the provisions of articles 726 and 727, is clear, from the general tenor of those parts of the code which treat of the execution of judgments, adjudication, &c., and especially from articles 711 and 712, where we meet with those expressions: “return of execution, no property found,” and “return of the execution, no property found belonging to the debtor." I contend, that according to these articles, 711 and 712, returns, such as those just quoted, would amply fulfill the law in all cases, except where, by special laws founded upon particular reasons, greater formality is required ; and I respectfully'submit, that no special provision of law requires, in cases like the one under consideration, a more formal return, Ilian the one that is made on the execution issued by the plaintiff, on her judgment.

      T. Phelps, on the same side.
    O. Mayo, for defendants, contended:
    This suit originated in the seizure of a number of slaves, as the property of R. H. Hanna, to satisfy a writ oí fieri facias issued in a judgment rendered in the suit of Jacobs, use of Coply, against said Hanna.

    The plaintiff, wife of defendant in execution, enjoined the sale of this property, and sets up, in her petition for injunction, that she is legally separated in property from her husband, and that the slaves seized, are her own separate property; to establish which, on trial, she introduced a title, derived from Tidwell, to three of the slaves, and an act of donation, executed by Robert D. Percy, for the other.
    The defendant sets up in his answer, that the pretended judgment of separation between plaintiff and her husband, was, and is, an absolute nullity, even between the parties thereto, and is wholly without legal force or effect as to third persons; for the reasons, that the wife had, in fact, no rights against her husband. The judgment in separation suit, was rendered on illegal evidence, (that of her father taken ex parte,) that the pretended judgment was never executed or enforced in a legal manner; and further answering, defendant sets forth and alleges, that the transfers to Mrs. Hanna, were disguised and simulated transactions ; that Mrs. Hanna had no money or means with which she could have paid the price; that the price was, in fact, paid by the husband; that the apparent donation from Percy, was not, in truth, a donation, but a disguised sale, Percy having long since been paid the price by Hanna, and that the whole scheme, commencing with the suit for separation, was an artifice resorted to, to disguise the real title, and place the property out of the reach of Hanna’s creditors.
    The first inquiry then is, upon what evidence was the judgment of separation based. That on page 22, consists in what purports to be a receipt, signed by the husband, R. H. Hanna, by which he acknowledges to have received $600 of his wife’s money, from R. W. Thompson, her father. That on page 30, purports to be an ex parte affidavit of said Thompson, wherein he states, that he gave to his daughter, at the time of her marriage, in money and furniture, eight hundred dollars; five hundred dollars being in money, and three hundred dollars in articles of furniture; and that the money was appropriated to her use.
    On trial of this suit, the receipt above referred to, was offered and received by the court, and a bill of exception retained. James Thompson, plaintiff’s brother, was introduced to sustain the j udgment of separation. He states that Hanna went to St. Louis in 1848, in February; while there hada settlement with Mrs. Hanna’s' father; was in the room with them at the time, their backs were towards him; saw no money; “both had their pocket-books out as though they had money.” The court will notice that this occurred at the time the receipt is dated, 15th February, 1848. The suit for separation was filed the 9th March, 1848. But twenty-three days, therefore, intervened between this' parade of pocket-books and the filing her suit for separation. This fact, connected with the other evidence, raises the presumption, at least, that the scheme was devised with the express view of procuring evidence to sustain the suit for separation.
    The plaintiffs have totally failed to show, any conversion of the wife’s property to the husband’s use, except the surgical instruments, and that was done in Mississippi, where the common law prevails, and the personal property of the wife becomes the husband’s the moment he reduces it to possession. There is no evidence that the amount paid by Thompson for hire of the slaves, or rent of office, or the price of the tombstone, were ever charged to Mrs. Hanna; or that her money, to the amount of one cent, was ever, during their residence in this State, converted to the husband’s use. There was, therefore, no basis for the judgment of separation. The judgment was never legally enforced by such
      bona fide non-interrupted suit to obtain payment, as the law requires. No attempt was made by the sheriff to find property. No application was made by him to the plaintiff or defendant to point out the property. The law is not complied with by the mere formality of issuing and returning the writ; there must be a real attempt to execute it.
    On fhe merits, it is shown by the testimony of Williams, that the money paid for the slaves purchased from Tidwell, came out of Dr. Hanna's pocket. Mrs. Hanna was directly called upon by the pleadings, to show from what source she derived her means. She has totally foiled to show that she had any. On the contrary, her own allegations in the separation suit, show, that if she had any, they were used by her husband; and the evidence shows, that what she had, was reduced to the husband’s possession before they removed to this State. The return on her execution shows she made no part of the judgment.

      Percy, in answer to interrogatories, states that he made the donation of the slave, Venus, to Mrs. Hanna, to prevent her from ever being seized again for Hanna's debts; that he was paid her value by Dr. Hanna and Bradslreet; and it was shown that Bradslreet was the partner of Dr. Hanna in the practice of medicine.
    The facts in this case are very similar to the case of Dopon v. Ward, sheriff, decided at Monroe, October term, 1848, (not reported.)
   The judgment of the court was pronounced by

Rost, L

In the suit of Jacobs, for the use of George W. Copley, v. Robert H. Hanna, the sheriff seized four slaves, as the property of the defendant. His wife enjoined the seizure, on the ground that she was the owner of those slaves, having purchased three of them from D. F. Tidwell, after her separation of property from her husband, and holding the other, under a donation, from R. D. Percy, to her.

The seizing creditor, among other grounds of defence, alleges, that the judgment of separation of property, on which the plaintiff relies, was null on two grounds. 1st. That the plaintiff had no claim against her husband, which could be the basis of an action of separation of property. 2d. That if she had, the decree of separation had lapsed, for want of execution within the time required by law.

The decree and proceedings had in the suit for separation of property, were adduced on the trial, and the plaintiff further offered as evidence, to substantiate the claims upon which the judgment had been rendered. The defendant introduced rebutting evidence, and the court, after hearing, dissolved the injunction with damages, allowing the sheriff to proceed under the execution. The plaintiff has appealed.

The three slaves purchased from Tidwell, were acquired by the plaintiff during marriage; they, therefore, belong to the community, and are subject to the payment of the community debts, unless the plaintiff has shown either that the slaves were purchased with funds belonging to her, and of which she had the administration at the time, or that she was separated in property from her husband. She has adduced, as the foundation of her title, the proceedings and decree in the suit for a separation of property. The defendant has, therefore, the right to show the nullity of the judgment in that suit, by all kinds of legal evidence. Collins v. Batterson, 3 L. R. 245.

We are not prepared to admit, that the first ground of nullity is tenable. Execution issued upon the judgment of separation within a reasonable time, and was returned by the sheriff, “no property found.” It not appearing that the husband was possessed, at the time, of property subject to seizure, this return would probably be sufficient to prevent the lapsing of the judgment; but we are of opinion that the second ground is well taken. The claim for a separation of property is based exclusively upon the allegation, that the husband had received, during marriage, and converted to his use, large sums of money belonging to the petitioner, and that the disorder of his affairs induced her to believe that her rights were in danger. We are compelled to say, that she has failed to prove that allegation by legal evidence. The testimony of her father must be entirely disregarded: that of her brother is too vague and uncertain to be relied on, and the receipt given by her husband does not, by itself, make proof. There having been no indebtedness from her husband to her, the action of separation had nothing to rest upon, and the judgment rendered therein is null and void. The slaves sold by Tidwell are, therefore, community property, and subject, as such, to the defendant’s execution. It is otherwise with the slave given to the plaintiff by Percy. Although not separated in property, she was capable of receiving by donation, and the act under which she holds, a real contract, intended by the parties, and by Hanna, to be binding. Whether the true consideration of that contract was such a fraud upon the creditors of Hanna as entitles them to avoid it, is a question which could only have been inquired into in a direct action.

It is therefore ordered, that the judgment, so far as it dissolves the injunction arresting the sale of the slave, Venus, be reversed, and that the injunction to sell lhat slavo be reinstated and ihade perpetual. It is further ordered, that the judgment be otherwise affirmed, the plaintiff paying the costs of the district court; and those of this appeal, to be paid by George W. Copley.


source: Caselaw Access Project

author: Preston, J.

license: Public Domain

text:
    Sarah Cabrara v. W. H. Dinkgrave, et al.
    Where the real amountin dispute is less than three hundred dollars, and there is added to it a claim for five hundred dollars for damages, evidently fictitious, the appeal will be dismissed by the Supreme Court for want of jurisdiction.
    APPEAL from the District Court of Ouachita, Copley, J.

      McGuire and Ray, for plaintiff.

      Garrett and Ludeling, for defendants.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff enjoined an execution against her husband, for less than two hundred dollars. To obtain the injunction, she gave bond and security in the sum of two hundred dollars. She enjoined the execution on the ground, that the tract of land seized, and about to be sold, belonged to her. She alleged that it was given to her by her husband, in payment of her paraphernal rights, to the amount of two hundred and fifty, dollars, and we have no other evidence of the value of the land.

The appellees have moved to dismiss this appeal, on the ground that this court has no jurisdiction, the amount in controversy being less than three hundred dollars. The motion must prevail. 2d Ann. 793, 911. Code of Practice, art. 570. 9 R. R. 7. •

It is true the plaintiff, in the injunction, claimed five hundred dollars damages. The claim was evidently fictitious, and cannot give this court jurisdiction,

The appeal is dismissed at the cost of the appellant.


author: Rost, J.

text:
    William F. Mason v. J. M. Stewart.
    Where, from the circumstances, a party must he presumed to have had knowledge of d judicial proceeding against him, and for years made no objection to the authority of the attorneys at law who represented him, he will not be permitted to avoid the legal effects of that proceeding,upon his affidavit denying the authority of the attorneys who represented him.
    APPEAL from the District Court of Franklin, Barry, J.

      McGuire and Ray, for plaintiff, contended :
    The only questions raised by the defendants the court below, were : First, that the partnership of Stewart and Grayson was not a commercial one; or, if it was, that the note sued on was given for the use of it. Second, that the note is barred by the prescription of five years.
    1st. The testimony of Grayson, proves, that the commercial partnership of Stewart and Grayson, existed at the time the note was executed, and the partnership signature to the note is strong prima facie evidence that it was for a partnership transaction; besides, the mortgage executed in favor of Stokes, the payee, on the 12th March, 1840, to secure the payment of this note, recites the partnership and the existence of this note as a partnership debt. The general denial admits the signature to the note, as alleged in plaintiff’s petition; that allegation is, that the commercial partnership made the note by signing their partnership name, Stewart and Grayson; besides, this partnership is proved by all the witnesses to have been a commercial one; and there is no allegation of defendant, or pretence of proof to the contrary, to create a doubt on the subject. Story on Part, § 102, 107. Commercial partners are bound in solido. 12 L. R. 232. 4 L. R. 49, 50.
    2d. The note sued on fell due the 1st January, 1842, and the citation in this case was served on defendant on the 27th October, 1848. It was, therefore, barred by the prescription of five years, unless plaintiff shows an interruption of prescription, within five years from the service of citation in this case. In order to show an interruption of prescription, plaintiff introduced the record of a suit of William F. Mason v. Stewart and Grayson, instituted in Caldwell parish, on the 14th of November, 1843, on the note sued on in this case; in which case Stewart, defendant in the case now before the court, appeared by his counsel, Garrett and Sharp, and filed an answer on the 7th December, 1843. The record of this suit was offered and received in evidence, without objection.
    After plaintiff had closed his evidence on the trial of this case, defendant offered in evidence his own affidavit, denying that he ever authorized any attorney to appear for him in the case of William F. Mason v. Stewart and Grayson; and, particularly, that the answer filed by Isaiah Garrett, as attorney for him, on the 2d December, 1843, was authorized by him. Plaintiff objected to the reception of this affidavit in evidence, but the court received it, and the plaintiff reserved a bill of exceptions. Before noticing the points raised in the bill of exceptions, we would ask the attention of the court to the facts pertinent to this point, disclosed by the record. This suit is based on the original note of #1420, and not on the record of the suit in Caldwell parish. Before this case was put at issue, defendant filed a prayer of oyer on the 4th December, 1848, which plaintiff answered on the same day, by filing the entire record of the suit from. Caldwell parish, as will appear by a statement of the facts contained in the bill of exception; afterwards, at the next term of court, 31st May, 1849, defendant filed his answer. On the 28th November, 1849, more than a year after the answer to the prayer of oyer had been filed, including the Caldwell suit, defendant made the affidavit given in evidence, but it was not communicated to the opposite party, nor filed in the case, until the case was on trial on the 20th November, 1850, a year after it had been sworn to, and two years after defendant had been apprised of plaintiff’s intention of using the suit from Caldwell parish in evidence.
    The grounds of objection to defendant’s affidavit, as contained in plaintifif’s bill of exceptions, are : 1st. That a party to a suit could not be allowed to make evidence for himself, nor be a witness in his own cause on the trial. 2d, That no allegation was made in the answer that the counsel were not authorized to appear in the case from Caldwell parish, although there was full notice given in answer to the prayer of oyer, that this suit was to be used as evidence for plaintiff. 3d. That the law only authorizes defendant to deny, under oath, the authority of counsel who appears for him in a cáse, wherein the record containing such, is alleged on by plaintiff. 4th. That allowing the affidavit on the trial, was taking the plaintiff by surprise.
    These objections may properly be considered all together. It seems to be well settled by the uniform decisions of our court, that when a duly licensed attorney at law brings a suit, his authority to do so cannot be questioned by the opposite party, unless sufficient grounds be stated, under oath, to support the plea; and this objection is always made in the pleadings, and is in the character of a plea in abatement. 4 R. R. 25. 9 M. R. 88. 10 lb. 638. It also seems to be well settled, that an attorney’s -authority to acknowledge service of citations, petitions or rules, and his appearing to defend suits, will be presumed unless denied, under oath, by the person for whom he acts. This denial, in all tho cases reported in our books, is made in the pleadings, in some shape or other, before the trial. 8 N. S. 232 to 236. 2d Ann. 840. 4 lb. 247. C. P. 177. 10 L. R. 193. As to service of citation of appeal, see 1st Ann. 398. Ib. 258. 12 R. R. 97.
    When the record or judicial proceedings in which the attorney has appeared, is made the foundation of plaintiff’s suit, or referred to in his petition, there can be no doubt but that defendant, if he deny the authority of the attorney who appeared for him in such record, he must do so in his pleading, and make the necessary oath as part of his pleading, in order to put plaintiff on proof of the attorney’s authority. In the case before the court, we contend, that although the suit in Caldwell parish, in which the attorney appeared for Stewart, was not set forth in plaintiff’s petition, yet it was produced and filed in answer to defendant’s prayer of oyer, and was on file.in the case when defendant filed his answer; he was, therefore, bound to notice it, and was thereby notified that plaintiff would use it in evidence. This is a much stronger case than that of Thompson v. Milne, 4th Ann. 208. But defendant did not notify plaintiff at any time, either by the pleadings or otherwise, that he would deny the authority of the attorney until plaintiff had closed his evidence on the trial of this case. Under such circumstances, it was then too late to present the affidavit creating that issue. We look on the affidavit, not in the character of evidence to be produced on the trial, but as a part of the pleading, creating an issue and shifting the burthen of proof. To allow this affidavit as evidence on the trial, would be a violation of that rule of evidence that a party in interest in a suit, cannot be allowed to be a witness in the case, on the trial, or to make evidence in any way. We think the affidavit ought to have been rejected, and the legal presumption, that the attorney was authorized, ought to have been allowed its full force.
    In the case of Ductonv. Noyes, 6 Johnson’sN. Y. Reports, 300, the question was very fully discussed by Kent, C. J. in delivering the opinion : Whether, if an attorney of the court appears for the defendant, to a writ which had been sued out, but not served, and he, afterwards, confess judgment without having been employed or authorized by the defendant, it would be binding on the defendant; and the court held, Van-Ness dissenting, that it would, and that in such case, the defendant would have to look to the attorney for damages. The court, however, say that they would allow the judgment to be opened so far as to enable the defendant to show his defence, but not to let the judgment loose its privilege. This rule seems to be such as to do justice to all parties; and if the court recognizes it in this case, the defendant cannot complain, as he will not be deprived of any equitable defence he may have against the note; he would only be barred from his plea of prescription, which should not be entertained, unless he was clearly entitled to it.
    The interruption of prescription, up to the 17th day of December, 1843, is clear, if the court considers that Garrett and Sharp, attorneys, properly appeared for defendant, Stewart, in the case in Caldwell parish. C C. 3484, 3516, 3517. If the court should consider the affidavit as properly admitted in evidence, we then submit that the affidavit is not sufficient, for"the following reasons: The answer filed in the suit in Caldwell parishrfor Stewurt, defendant, is signed by Garrett and Sharp, attorneys, and not alone by Isaiah Garrett. By reference to defendant’s affidavit, it will be seen that he states, generally, that he never authorized any attorney to appear for him in said case; then he goes on to qualify by stating, “that the answer filed by Isaiah Garrett, for defendant, on the 2d December, 1843, (not the correct time,) was done by said Garrett without, the knowledge or authorization of the defendant.” A fair construction of defendant’s affidavit shows that he has reference only to Garrett. He does not pretend to deny that he employed Garrett and Sharp, or Sharp alone; the affidavit ought to have applied directly to the counsel who appeared; and as they appeared, and ought to have negatived the authorization to the attorneys who signed the answer, to put plaintiff on proof and to destroy the violent presumption created by the appearance of the attorneys, as to the certainty required in the affidavit. See Bonnefoy v. Landry, 4 R. R. 25. The plea of prescription cannot avail the defendant, even admitting that he did not authorize the appearance of the attorneys for him in the suit in Caldwell parish; as his co-defendant and debtor in solido, Grayson was legally represented in the suit in Caldwell parish, both by his attorney and by a curator ad hoe. All the legal points that bear upon the case before the court were fully discussed in the case of Millaudon v. Beazley, 2d Ann. 916. The interruption of prescription as to one debtor, in solido, interrupts prescription as to all the debtors in solido. C. C. 2092, 3517. Hite v. Vaught, 2d Ann. 970.
    The suit in Caldwell parish was not solely for a foreclosure of the mortgage, it asked for judgment personally against defendants, in solido, and for a sale of the mortgage property; and the judgment in that case was, that the mortgaged property be sold, reserving to plaintiff his personal rights against defendants, if the mortgaged property did not pay the debt; hence this suit. Even if the suit in Caldwell parish had been a mere executory proceeding, it would have interrupted prescription. Erwin v. Lowery, 2d Ann. 315. Millaudon v. Beazley, lb. 916. Stansborougk v. McCall, 4th lb. 327.

      O. Mayo and Rumage, for defendant, contended:
    This suit was instituted upon a promissory note, executed by Stewart and Grayson. The defendant pleads the prescription of five years in bar of the action, which plea was sustained in the court below, and plaintiff has appealed. An attempt is made to show an interruption of prescription by suit against the parties to the note and an order of seizure and sale rendered on the 2d December, 1843. The suit referred to, appears to have been instituted in the ordinary form, containing, however, a prayer for the seizure and sale of the property mortgaged, to secure the payment of the note. Neither of the parties were cited to answer to the suit; but it seems, when the case was called, Isaiah Garrett was appointed attorney ad hoc to represent Grayson, who was an absentee; and that Stewart being a connection of his, he took the responsibility of representing him also. Mr. Garrett therefore appeared for both parties, but for the purpose of contesting the hypothecary action only. It does not appear that any citation was served upon him or either of the parties; and Stewart has declared, on oath, that he never authorized Mr. Garrett, or any one else, to represent or appear for him in that suit. The question then presents itself, did this appearance for Grayson, and the waivers made by Mr. Garrett, interrupt prescription as to the parties to the note ? It is contended, on the part of Stewart, that it did not, for these reasons: 1st. Because, had Grayson been present, and had the executory proceedings been conducted against him, personally, prescription would not have been interrupted by such suit. See Iiarrod v. Voorhies, administrator, 16 L. R. 254. 2d. The appointment of attorney ad hoc, was irregular. A curator ad hoc, alone, can legally represent an absentee. C. P. 116. C. C. 57. 3d. The curator cannot, by pleading to the merits, waive citation, which can alone interrupt prescription; nor can he waive any legal right of the party for whom he acts. C. C. 3517. 4 N. S. 680, and the cases there cited.
   The judgment of the court was pronounced by

Rost, J.

This action was commenced on the 27th of October, 1848, on a promissory note which had matured on the 1st of January, 1842. The only serious defence is, the plea of prescription. In order to show an interruption of prescription, the plaintiff introduced, in evidence, the record of the suit of Wm. F. Mason v. Stewart and Grayson, the makers of the note, instituted in November, 1843, in which Stewart, the defendant in this case, appeared, by his counsel, Garrett and Sharp, and answered the petition on the 7th of December, 1843, The record was received without objection; and-after the plaintiff’s evidence was closed, the defendant offered his own affidavit, denying that he ever authorized any attorney to appear for him in that case; and particularly, that the answer filed by Isaiah Garrett, in the name of (Jarretó and Sharp, as attorneys for him, was not authorized by him. The plaintiff’s counsel objected to the reception of this affidavit in evidence in that stage oT the proceedings; but the court overruled the objection, and he took a bill of exceptions. The plea of prescription was sustained by the court, and the plaintiff has appealed.

An affidavit, such as the defendant has made, has at times satisfied the court when the authority of the attorney was denied, in a case yet pending, and was made in the nature of a plea in abatement before judgment had been rendered, and any rights had been acquired by the party making the affidavit on the action of the attorney whose authority was denied. Here, the case in which the authority of the attorney is for' the first tinj© denied, was finally decided in 1843; and the result of the decision on the issue made by the answer filed was, that some property mortgaged by the creditor in solido of the defendant, was seized and sold, and the debt extinguished to the amount of $600. That the defendant was so grossly negligent of his own affairs, as to have remained in ignorance of that fact ever since, or that the' counsel who appeared for him, were so regai’dless of their duty or their oath, as not to have informed him, at an early day, of what they had done for his benefit, if they were not originally authorized to act, are things which exceed the limits of rational belief. If, as we doubt not, the defendant was informed by his counsel of what they had done, and silently availed himself of the sale of the property of his creditor, in a case where no personal judgment had been rendered against him, the original want of authority is cured, and his appearance is sufficient to interrupt prescription. We have ’not failed to notice that the affidavit is artfully drawn up; and that while it is pressed upon us as covering the whole ground, it is silent as to the subsequent knowledge of the ratification by the defendant.

In the former suit $600 were made, and as it is not shown what the costs of that suit were, the whole amount must be deducted'from the note at the date of the 8th of April, 1844. The plaintiff is entitled to judgment l'or the balance.

It is therefore ordered, that the judgment in this case be reversed, and that the plaintiff recover from the defendant the sum of eleven hundred and forty-two dollars and fifty cents, with interest at the rate of ten per cent per annnm, from the 8th day of April, 1844, till paid; and’the costs-in both courts.


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    Norment Cooper & Co. v. William M. Burns.
    Tbc death of one of the part owners of a steamer, engaged in carrying property for hire, dissolves the partnership, but if the survivors continue running the vessel, they aro liable as commercial partners.
    APPEAL from the District Court of Bossier, Jones, J.

      TI. M. Sjioffm-d, for plaintiffs.

      A. Lawson, and S. W. Fuller, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs sue the defendant, as part owner of a steamer, on account of supplies furnished her, while she was employed in carrying personal property for hire, for the benefit of the owners.

The defence is, that the boat was owned by, and navigated on account of the defendant and several other persons; that before any of the supplies, for which the plaintiffs claim payment, were furnished, one of the part owners died ; that the partnership was dissolved by his death, and that Hiram Wilson and George K. Runner, two of the part owners of the boat, continued to run her, without the consent of the defendant and in opposition to his wishes, and that he is not personally liable to the plaintiffs.

The case is before us on the appeal of the defendant, from the judgment rendered against him, in conformity to the prayer of the petition.

We think, with the district judge, that the defence is not sustained by the evidence. Whatever may have been the wishes of the defendant, the boat continued to carry personal property, for hire, on his account, and he is liable to the plaintiffs as a commercial partner.'

Where a commercial partnership is created by contract, the death of one of the partners finally dissolves it, and the surviving partners, who do not give themselves out to the world as commercial partners, after the dissolution, are not bound in solido with those who do; but in cases like this, the partnership results from the destination of the vessel, and as long as that destination is unchanged, the part owners who have capacity to bind themselves, continue bound as commercial partners, notwithstanding the death of any of them.

The judgment is therefore affirmed, with costs.


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    J. I. and J. D. Bryan v. T. A. Glass.
    The sale of improvements on the public land of the United States, to one who might claim a preemption, is a good consideration for a promissory note.
    APPEAL from the District Court of Claiborne, Jones, J.

      Spofford and Ray, for defendants, contended:
    This case presents but one legal question, and there is no dispute as to the facts of the 'case.
    ■ Can a person who has resided on a piece of public land, until he has forfeited his right to all the preemption laws in favor of actual settlers on the public domain, sell the improvements made by him thereon, and enforce the payment of the price in our courts 1 The judgé of the court below, guided by what he deemed the true intent and meaning of the decisions of this court, thought not, and so we think.
    It has been repeatedly decided by this court, “Improvements made upon the public lands of the United States, where the party making them is not in a situation to avail himself of the preemption laws, cannot form the object of a contract.” Jenkins v. Gibson, 3d Ann. 203. Wood v. Lyell, 4th Ann. 145. Hollon v. Sapp, lb. 519. In all these cases, except the first, the plaintiffs had entered the lands from the United States, and was suing the defendants for possession, and the defendants now claiming pay for their improvements, and the first case is, in principle, the same.
    We have carefully examined the case of Price v. Curran, 5th Ann. 686, relied on by plaintiffs and appellants in the case before the court, and, we understand, the real question at issue and decided in that case was, that Cmran, defendant, and maker of the note sued oni failed to show that Gammon, to whom the note was given, was not entitled to a right of preemption to the lands on which the improvements wore made, at the time he sold the improvements, and that the court would presume that he was a settler in good faith, rather than a trespasser. This was all that was necessary for the 'court to decide in that case, and any other opinion expressed in the case, was mere ohitu dictum. It is true that it is intimated in the opinion of the court, in this case, that if Curran was placed in a condition to acquire a preemption to the land, it might be sufficient to bind him to pay the note. It is worthy of remark, that this is the only decision that has thrown out the intimation that, placing the purchaser of an improvement in the situation to acquire the right of preemption, would make the contract binding in favor of a trespasser who sold it; in fact, we do not consider this case as going that length, and when we recur to the fact that, at the same term of court and a few days afterwards, another case, Norman v. Ellis, 5th Ann. 694, was decided, turning as near as possible on the same point, and no such intimation is made; on the contrary, it is decided in this case, that the defendant failed to make out his case, by not proving that the vendor was not in a situation, at the time of the sale, to acquire the right of preemption, so we cannot believe that in the case of Price v. Curran, the court intended to go as far as plaintiff contended for.
    It is admitted, in this case, that Allen, the vendor of the improvement to defendant, Glass, had forfeited his right of preemption before the sale, and was, consequently, a trespasser, and sold that that did not belong to him; the sale of the property of another is void. C. C. 2427. •
    The argument of the appellant, which he seeks'to draw from the case of Price v. Curran, that not only the vendor of the -improvements on public lands must not be in a condition to acquire the right of preemption at the time of the sale, but that the vendee must also be in a condition that he cannot acquire the right of preemption, in order that the contract should be void, is not based on any good reason. What difference can it be, in principle, with the purchaser of an improvement, whether he can acquire the right of preemption on the improvement, or not? A man owning three hundred and twenty acres of land is not permitted to avail himself of a preemption right; yet, can it make any difference in his legal rights, when he purchases an improvement on public land from a trespasser, whether he is the owner of three hundred and twenty acres of land, or not ?
    If the improvements made by a trespasser, in violation of the laws of the United States, on the public land, cannot form the object of a contract, as is decided in the cases first cited in this brief, we cannot see how plaintiff is to recover in this case. The point raised by the appellant, that Allen, at the time of the sale of the improvement to Glass, had been in possession for more than a year, and could not be ejected from the land, except by a petitory action, is not tenable. Trespassers on the public lands are liable to fine and imprisonment, and to be expelled by military force. Gordon’s Digest of Laws U. S., Nos. 1508,1511. 1 Land Laws and Opinions, p. 114, sec. 14. The State laws do not extend over them, in regard to their right of settlement or pay for improvements, until after the United States is divested of title. Norman v. Ellis, 5th Ann. 694.

      Lawson and Fuller, for jdaintiffs, contended :
    This was an action brought by plaintiffs to recover of defendants five hundred dollars, due on a promissory note made by him in favor of Greene Allen, with eight per cent interest from the 1st day of January, 1849.
    The defendant answered, admitting the execution of the note, but avers that the same was given for an unlawful consideration — an improvement on public lands; and that Greene Allen, the payee, was not in a condition to acquire a preemption right in said land, at the time of sale.
    Upon these issues the cause was tried, and judgment rendered in favor of defendant, from which judgment the plaintiff has taken this appeal.
    The facts of the case are briefly these: The note sued on was given to Greene. Allen for the purchase of an improvement on public land, containing one hundred acres, or more, cleared land, with good log buildings on it. Greene Allen lived on it more than a year and thirty days, before he sold it to defendant. The land was subject to entry at the time defendant took possession of it, and lived on it upwards of a year, and then moved off; tried to sell it and rent it, after he left it. The rent of the land was worth $1 50 per acre.
    The plaintiffs contend that the judgment of the lower court is erroneous, and should be reversed, for the following reasons: That the case should have been decided upon the same principles as the case of Price v. Curran, decided in this court at this place last fall. In that case, held, that it was necessary to release a party from the payment of a note, given for the purchase of an improvement on public land. To show that neither the vendor nor vendee were in a situation to avail themselves of the benefit of the preemption laws of the United States, atthe time of the sale. In the present case, that was not shown. It was shown that Allen had resided on the place more than a year and thirty days, which, perhaps, would include the idea that he was entitled to a preemption on it. But, then, it is not shown that Glass could not have availed himself of the benefit of the preemption laws. If Glass gained any thing by the purchase, it seems to me, he ought to be liable for the price; he gained the possession of the place and its use, which was worth one dollar and fifty cents per acre, making one hundred and fifty dollars, and he occupied one year and left it. Allen was in possession of the place more than a year, and could not be dispossessed, except by a petitory action. The defendant gains that right, and was on the premises, in a situation by which he could have joined his premises to Allen’s, making more than a year’s possession in him. The fact of Allen selling him his improvements on said land, was an act of trespass, not in violation of the laws of the United States, because it will not be presumed that Allen was on the place for any other purpose than a lawful one, he having the right under the law, and settled on the place and improved it for thirty days before he declared his intention of claiming a preemption; and the law will also presume, that the defendant, Glass, purchased the right to enter on the land with a lawful intention, to wit, that of acquiring a preemption. For all which reasons, plaintiffs prayjudgment in their favor, and for cost and for general relief.
   The judgment of the court was pronounced by

Preston, J.

This suit is brought on a promissory note, given by the defendant to Gi-een Allen, l'or'an improvement on the public land. The improvement consisted of good log cabins and a hundred and fifty acres of cleared land. Allen had lived upon the land until he had lost the right of purchasing it from the United States by preemption. Still, the improvements were valuable to him. It was a home for his family, established by his labor. The quantity of cleared land was sufficient, also, to enable him to support a family, and no one could dispossess him except the United States, or their vendees. It is to be presumed, too, until the contrary appears, that he made the improvements, not as a trespasser, but with the laudable and lawful purpose of entering it, and may have-been prevented, by his poverty, from purchasing it from the government.

We have no reason to believe that the defendant purchased the improvement, with a view to trespass on the public land,but, on the contrary, are bound to presume that, being in a situation to enter the land, the defendant not only bought the improvements, but intended to purchase, and did purchase, the right of occupancy, with a view to acquire the land by preemption, upon his own possession. The improvement was, therefore, valuable also to the defendant, and he enjoyed that value for a year, and might have entered the land; but changing his mind, or being unable to enter it, he offered it for sale, to afford others the opportunity to enter government land, already improved, without appropriating to himself the result of another’s labor, which, in morals, belongs to him, although not protected by law.

The purchaser of the improvements, in this case, being, as we presume, entitled to enter the land, and having purchased them for that purpose, they afforded a valuable and legal consideration for the note sued upon. And in this respect, the case differs from those relied upon, in which the purchaser of the improvements could not have entered the land.

The judgment of the district court is reversed; and it is decreed, that the plaintiff recover from the defendant the- sum of five hundred dollars, with interest at the rate of eight per cent from the first day of January, 1849, until paid, and costs in both courts,


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    Emily A. Desha v. Elkin T. Jones.
    A ratification of an agent's acts may be presumed after three years acquiescence.
    Where an agent for the collection of money buys property at the sheriff’s sale in bis own name, giving the sheriff a receipt for the amount, and afterwards sells the slave, the purchaser will be protected, unless the principal proves that he had notice of the agents having failed to account for the price at the sheriff’s sale.
    APPEAL from the District Court of Claiborne", Jones, J.

      George W. Peets, for plaintiff.

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

Rost, J.

The district court has correctly decided that the plaintiff has no claim against the defendant for the slave Abram. That slave was seized early in 1848, under two executions, issued under judgments ; one of which belonged to the plaintiff, and the other to Robert J. Chambliss, executor, in his official capacity. It was adjudicated to James J. Thompson for the sum of $500, and by agreement between the two creditors, each of the executions was credited with the sum of $250. Thompson was, at the time, the plaintiffs’ agent in the collection ofthe debt; he paid Chambliss $250, and gave a receipt for a like sum to the defendant, who was then sheriff, in his capacity of agent oí the plaintiff; subsequently, Thompson sold the slave to the defendant at an enhanced price. In May, of the present year, three years after the sale of the slave, the. plaintiff instituted this action, asserting her right to the undivided half of said slave, on the ground, that her agent-has not accounted to her for the price received, but has converted her funds to his own use, in the purchase of the slave Abram ; and that the defendant had notice of the fact, and is not a purchaser in good faith. There was judgment for the defendant, and the plaintiff appealed.

The appellants counsel states in his brief, that the case was decided against his client, on the ground that her Iqng silence, after the sale to the defendant, raised a presumption of ratification on her part. This is a question of fact, upon which we would not slightly differ from the district judge, but it appears to us, besides, that the plaintiff has failed to show that the defendant was affected with notice at the time he purchased the slave. He may fairly have presumed, that his vendor had accounted to his principal, and, as it is not shown that he knew the contrary, he is entitled to the benefit of that presumption.

The judgment is affirmed, with costs.


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    Noah Cloud v. C. L. Whitlow, Administrator.
    The deceased had. sold atractofland to the plaintiff, for whichhehadno title, the samebeing public land of the United States. The land was subsequently entered by a third person. Action was brought against the administrator for the price paid by the plaintiff and for the value of improvements as damages. Held: The plaintiff could only recover the price he bad paid, with interest from judicial demand.

      APPEAL from the District Court of Bienville, Bullard, J.

      Collingsworth and Tanner, for plaintiff.

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

Preston, J.

The plaintiff claims one hundred dollars for the price of land sold to the deceased, John M. Fonts, and four hundred dollars damages. Fonts made with him the following agreement: “July 4th, 1844. State of Louisiana, Parish of Claiborne. Be it known to all men, that I, John M. Fonts, do this day bargain, sell, and promise to1 convey to Noah Cloud, forty acres of land, being on the east side of the Saline Bayou, section twenty, township twelve, range four, being called McCalley’s old place. The deed of conveyance to be made at the last payment to the said tract of land, by the said Fouls, or his heirs or assigns, to the said Cloud, or his heirs or assigns, for the consideration of one hundred dollars; one note on James Sims, for forty dollars, endorsed by the said Noah Cloud to the said J. M. Fout's, payable January 1st, 1845 ; one note on Noah Cloud, for sixty dollars, with eight per cent interest from this date until paid, payable the 1st January, 1846; the said parcel of land lying in the parish of Natchitoches. Signed, J. M. Fonts, Noah Cloud, David C. Fonts Mariah T. Whitton.”

Fonts possessed and delivered the' McCalley place to the plaintiff; but, it appears, had never obtained the title of the United States to the land, and failed to do so until his death. It was entered by one Lewis, who sold to Beaver, to whom the plaintiff gave it up on receiving one hundred dollars for his improvements on the place, or adjacent thereto. It appears, moreover, that the McCalley place was not in the range of land in which the agreement, between the parties, described the land to be sold as situated.

The improvements made by the plaintiff, with those existing at the time he purchased, were estimated at four hundred dollars. The estate of Fonts is not liable for the value of those improvements, but only for the price he received for the land, the title to which he sold, and did not make good. The plaintiff might have secured the improvements made by himself, and those purchased from Fonts, by entering the lands himself, at an expense of fifty dollars. On which account, there is the less reason for allowing damages beyond the price received by the deceased for his agreement to convey land.

The error in the location would, probably, have been corrected, and the title made good, if demanded in the lifetime of Fouts, and especially before the payment of the last note, as agreed between the parties. There appears to have been error and negligence on both sides, and the only rule we can apply, is the general one, that the vendor is liable, in case of eviction without bad faith, to refund the price received for the land and costs.

The judgment of the district court is therefore reversed; and it is decreed, that the plaintiff recover from the defendant, one hundred dollars, with interest from the judicial demand, and costs in the district court; the appellee to pay the costs of the appeal.


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    The State v. Samuel Clendennen et al.
    Where a party has been arrested for gambling the sheriff'has no authority to take bail lor his appearance, without an order of court fixing the amount of the bond, and directing him to take it; if lie does so, the sureties are not bound-

      APPEAL from the District Court of Caddo, Jones, J.

      J. B. Mathews, for the State.

      B. L. Hodge, for defendants.
   The judgment of the court was pronounced by

Preston, J.

The defendant having been indicted for violating the laws against gaming, a capias was issued against him. He was arrested by the sheriff who released him, on his giving bond and security for his appearance, from day to day and term to term of the court, to answer the charge, until discharged by due course of law. He failed to appear, though he and his sureties were duly called, the bond was declared forfeited and judgment rendered against him and the sureties, for its amount; and they have appealed. The sheriff had no power to bail the accused. There was no order of court fixing the amount of the bond, or directing the sheriff to take it. It was, therefore, executed without authority, and is not binding upon the sureties.

ft is ordered, that the judgmentof the district court be reversed.


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    Elizabeth Hall et al. v. Hill, McLean & Co.
    A mother, who resides in another State, where she is a competent witness for descendants, is not a competent witness for them in suits, in which'they are interested, pending in this State.
    A testator may so construct his will as to render it necessary to have recourse to some other document to explain it, and it is not essential that the document referred to should be probated ; bnt the document must be clearly identified as the one to which the will refers. Where the vendor remains in possession of the property sold, there is reason to presume the sale is simulated with respect to third persons.
    APPEAL from the District Court of Morehouse, Copley, J.

      McGuire and Bay, for plaintiffs, contended :
    That the judgment of the court below is correct, and should be affirmed. The defendants moved to dissolve the injunction, on the grounds that there was no legal injunction bond signed by the plaintiff a married woman; that the father and mother had no right', to appear for their minor children; that the trustee alone could prosecute the suit, and he had not authorized it.
    The injunction bond is signed by the agent and securities. The evidence of the authority of the agent, A. D. Peck, to sign the bond, is the power of attorney, and we think it is conclusive ; and even if the wife, the plaintiff was not bound thereby, the securities are. C. C..3005. And it is not pretended they are not good. The father and mother are authorized to appear for their minor children in all civil acts. C. C. 251, 267. The will, at common law, vested the estate in Mrs. Hall during her life. Graves v. Hémken, 12 R. R. 103. ■> And by that system of law, by naming a trustee, which is not required under our law, where the wife, as a person, has an existence. The fact that more persons were made plaintiffs in the suit than was necessary, cannot prejudice the rights of the proper plaintiff: and there is no legal showing that the trustee did not authorize the suit. Though this, we thinff is immaterial, and that the court properly overruled the motion to dissolve the injunction.
    On the merits, we think that full title is in Elizabeth Hall, the plaintiff wife of Dixon Hall, Jr., by the will of Dixon Hall, Sr., dated October 1st, 1839, and duly probated November 1st, 1839. By the 5th clause of that will, these slaves, and other property, were given to the plaintiffs. As to its containing a substitution, these parties have nothing to do with it; the court in Alabama has given effect to it, and our courts will respect their decisions. Should a case hereafter arise between the children and the mother, a different question might be presented, as in the case of Harper v. Stansbury,'2d Ann. 380. But as the slaves were not named in the will, only by reference to the deed by which the testator acquired them, defendants contend it is insufficient. We think the designation is sufficient. 1 Jarman on Wills, 83. Habergeamv. Vincent, 2Vesey, Jr., 208. Smart v. Prejean, 6 Yesey, Jr. 565. The signature is proven by evidence of McFee and Barham, and the existence of such a trade between Dixon Hall, Jr., and Dixon Hall, Sr., is fully proven by the evidence of defendants’ witness, D. Jumper, and that Dixon, Sr., would not engage in a fraud; and by the evidence of Hickman and Wallace, who say it was generally understood that after the death of old Mr. Hall, the slaves belonged to the plaintiff and her children.
    The defendants contend that these slaves never were delivered to Dixon Hall, Sr., but continued in possession of Dixon Hall, Jr. The deed was dated March 5th, 1839, and contained a reservation of possession until the crop of that year was made. Dixon Hall, Sr., died in October, 1839, before that time expired. The slaves are fully identified by the, above witness, and by the evidence of Barnes and Betsel. We contend, further, that the court improperly rejected the evidence of Amy Hall, by whom we establish the identity of the slaves and their delivery, and the deed from Dixon Hall, Jr., to Dixon Hall, Sr. If there is evidence that she is the grandmother of the children, she is then the mother-in-law of Elizabeth Hall,the plaintiff, and, for her, a competent witness. Hamblin v. Hook, 6 L. R. 74. Groves v Steele, 2d Ann, 482.
    The evidence of Jumper proves the sale from Dixon Hall, Jr., to Dixon Hall, Sr.; that it was in good faith, and #21,000 paid; and that D. Hall, Sr., was a gentleman of high standing, and would not engage in a fraud. Also, Powell proves the ability to buy, &c.

      Belsell, a witness, proves the slaves were brought to this State as the property of Mrs Hall, the plaintiff; that she furnished the funds for that purpose.
    The- evidence of the several witnesses clearly shows the slaves to have been in the possession of the plaintiffs before they came to this State, and until their seizure in this case, and that they never were in possession of A. G. Hall, only to bring to this State, and manage as agent of plaintiff.
    The defendants attempt to show title in A. G. Hall, by a deed to him from D. Hall, Jr., dated March 28th, 1848, and recorded October 28th, 1848. But D. Hall, Jr., then, only held possession for his wife, and could give no title ; and, in fact, only intended to give A. G. Hall the right to govern the slaves in Louisiana, where he was bringing them in advance of the owner, and Mrs. Hall never knew of the existence of such a deed. But if A. G. Hall could claim anything under that deed, he returned all right thereto, by deed to D. Hall, Jr., duly recorded April 28th, 1849..
    We think the evidence clearly shows that the sheriff did not seize the slaves in the possession of A. G. Hall, but in that of Mrs. Hall, the plaintiff, and in his return of May 30th, 1849, lie does not say in whose possession they were, but that they were pointed out by counsel. The sheriff could not legally treat the recorded deed from A. G. Hall to Dixon Hall, Jr., as a nullity, and seize the property, and no evidence has been adduced to show that this was a case in which he could do so.
    The defendants, we suppose, for the purpose of trying to show they had a judicial mortgage on the slaves, as the property of A. G. Hall, introduced a certificate, to show the judgment of Hill, McLean Sf Co. v. A. G. Hall and M. Walker, was recorded April 26 th, 1849. It is admitted that the April term of that court, 1849, did not terminate until April 29th, 1848. Judgments at that term had no effect until after the day of adjournment for the term. C. P. 555. The deed from A. G. Hall to Dixon Hall, Jr., was recorded, and had effect that day.
    The defendants offered witnesses to prove the signature to the deed from D. Hall, Jr., to A. G. Hall, which plaintiffs objected to, on the ground that the defendants had taken the evidence of the subscribing witnesses to the deed, and theirs was the best evidence, which was overruled, and the evidence recorded, to which plaintiffs retained a bill of exception. That evidence, we think, is illegal, and should be rejected, and consequently that deed.

      Daniel Newton, also, for plaintiffs.

      J. C. C. Sharp, for defendants, contended:
    On the 26th April, 1849, Hill McLean Sf Co. obtained judgment in said court against A. G. Hall and M. T. Walker,. in solido, for #1490. On the 28th May, following, execution issued and seven slaves were levied on as the property of A. G. Hall. On the 3d July, of the same year, Elizabeth Hall and her minor children, then residents of Mississippi, enjoined the execution on the ground that the slaves belonged to them, and not to 4. Or. Hall. The simple question for the solution of the court, then, is, whether or not Mrs. Elizabeth Hall and her children are the owners of the slaves in controversy. By reference to the petition for injunction, it will be found that the suit is petitory in its nature, not possessory.
    I. The title of A. G. Hall, our debtor, to the slaves, is good. The history of all the slaves in controversy except one, is this: We first find them in possession of Dixon Hall, Jr., (the husband of Mrs. Elizabeth Hall) in 1839, in Lownds county, Alabama. In 1842 or 1843, Dixon Hall, Jr., brought them to Madison county, Mississippi, where he continued to possess and act as owner of them until the 28th March, 1848. On the 28th March, 1848, Dixon Hall, Jr., sold the slaves in controversy, together with several others, to his brother, A. G. Hall, our debtor. The deed was duly proven and recorded in Madison county. Mississippi, where it was executed, on the 13th April, 1848; and on the 28th October, of the same year, it was also recorded in the parish of Morehouse, the residence of A. G. Hall. ,
    In conformity to the terms of this deed, the slaves were delivered to the vendee, A. G Hall, our debtor, who brought them to the parish of Morehouse; hired them out to various persons there, and, to all appearances, acted as the owner of said slaves up to the time of our seizure. From this statement it would appear that there could be no doubt about the title of our debtor, A. G. Hall. We show, 1st, a regular deed, recorded both in Mississippi and Louisiana; 2d, undisputed possession in him and his vendor, Dixon Hall, Jr., as far back as we have any history of the slaves, to wit, 1839. This, then, is the evidence on which we rely to sustain our seizure.
    Before asking the attention of the court to plaintiffs’ title, we premise : that on the trial of the case, it was made to appear, that about the 29th March, 1849, Dixon Hall, Jr., then a resident of Mississippi, was present in Morehouse, and that the slaves were reconveyed to him [not Elizabeth Hall] by A. G. Hall; and there also appears to have been a kind of secret delivery to Peck, as the agent of Mrs. Hall, not to the vendee, D. Hall, Jr., named in this deed.
    To the introduction of this deed, defendants objected. We think the exception should have been sustained for the reasons there stated. The deed is irrelevant to the issue, for plaintiffs have declared on their own title, and not upon the title of D. Hall. It was calculated to take us by surprise, for'it was not declared upon under the allegation, that the slaves were theirs; we could not foresee that they were D. Hall’s. But, if admitted, we think it cannot benefit plaintiffs. ' ' ,
    Now, we think it manifest that this pretended sale was a mere sham, a trick. 1st. Because the deed, even if genuine, was never recorded until the 28th of April, 1849, two days subsequent to the date on which our judgment was obtained and recorded. 2d. It was a mere simulation. It is doubtful if D. Hall was present when the deed was made, and it is certain that no money was paid. Peck, the other subscribing witness, thinks D. Hall was probably present, but he saw no money paid. It is certain there was no real delivery. Peck, the agent for Mrs. Hall, says: “When Colonel Hall came here in the spring of 1849, they were all delivered -to me, by him, as the agent of plaintiffs, to hire out or to make such disposition as I saw fit.” This was in March, 1849; he never was agent of Mrs. Hall until the 25th of .Tune, 1849; and he says: “I never received any power of attorney from Elizabeth Hall until after the seizure, and this, is the only one, and it is of record.” Now, how could the slaves have been delivered to him, as agent of Mrs. Hall, in March, 1849, when he never was agent until June? Again, when cross-questioned in regard to the delivery of which he speaks, he says : “ The negroes, some of them may have remained in my possession, when they were delivered, some longer and some shorter — spme a few hours and some two or three days.” If his statement be true, is' this a delivery? If Dixon Hall was the owner of the slaves, as is pretended by the reconveyance from A. G. Hall, why are the negroes delivered to Peck, as the agent of Mrs. Hall ? And again, if Peck was the agent of Mrs. Hail, why does he take so much pains in having the deed from A. G. Hall to Dixon Hail recorded, &c. ? The fact is, that this witness, Peck, was appointed agent for Mrs. Hall on the 25th of June, 1849, for the purpose of getting out this injunction, and his agency for her did not commence until then. We think this pretended delivery entirely fabulous, 'and certainly ought not to effect third persons. 3d. If this deed proves anything, it shows title in Dixon Hall and not in Elizabeth Hall, the plaintiff in this case. But Dixon Hall joins his wife in this suit for the purpose of assisting her in enforcing, her right, but does not set up any title whatever in himself, either under this pretended deed from A. G. Hall, or otherwise. How, then, can Mrs. Hall expect to derive any benefit from this deed, when the vendee himself, though a party to the suit, does not set it up? By joining his wife, as he has done, this title, if any, is tacitly abandoned. 4th. But suppose this title were all it purports to be, it could not benefit the plaintiffs in this case, because they are plaintiffs in a petitory action. We show that we came in possession of the slaves in good faith, and we had every reason to believe the slaves were A. G. Hall’s, both from the records and his notorious possession. Plaintiffs must recover on the strength of their own title. Previous to issuing the execution, the records were examined to see if there had been any reconveyance from A. G. Hall, and none was found. We have been thus particular in the examination of this pretended conveyance to D. Hall, because much stress was laid on it in the lower court.
    II. Wecome now to the examination ofthe title set up by plaintiffs. They claim the slaves by virtue of the 5th clause ofthe last will and testament of Dixon Hall, Sr., who died in Autauga county, Alabama, in the fall of1839. It is in these words: “5th. I give, devise and bequeath unto my son, William T. Hall, in trust for Elizabeth Hall, the wife of Dixon Hall, Jr., and their children, now born, and those that may hereafter be born, during their lives, all the negroes embraced by name in a bill of sale made by Dixon Hall, Jr.,to me, some time in the month of March, 1839, &c. And the said property, as described in the bill of sale and the deed from Dixon Hall, Jr., to me, for the land, is to be the property of the wife and children of the said Dixon Hall ,Jr., to their sole and separate use; and if the said Dixon Hall, Jr., shall die, and his wife marry again, then the whole of the property, both real and personal, shall be absolutely vested in the trustee aforesaid, for the children of the said Dixon Hall, Jr., &c. &c.”
    It is manifest that it becomes important to ascertain, first, whether there ever was any real sale from D. Hall, Jr., to the testator. The plaintiffs offered in evidence the document marked “B,” and attempted, by the-testimony of Amy G. Hall, — the mother of D. Hall, Jr., and grandmother to some of the other plaintiffs, — to show that this is the identical document referred to by the testator. This testimony, however, was very properly excluded by the court, on our objection. There is, then, no evidence in the record to show that this is the deed and bill of sale referred to by the testator; there are circumstances which induce us to believe it is not, for the testator refers to an instrument in which land, negroes, provisions, &c., are conveyed, while the document “B” is a simple receipt for $20,000, as the consideration for some fifty slaves. But waiving this objection for the present, the document “B” is, of itself, no evidence of a sale, and the plaintiffs have furnished us with none other; while, on our part, we have shown that the testator never was, at any time, in the possession of the property ; that D. Hall, Jr., possessed and acted as owner of the slaves during the year 1839, and continued so to do, without interruption, until 1848, when he sold and delivered them to A. G. Hall. We solicit the attention of the court to the testimony ofthe following named witnesses, who resided in the neighborhood of the Halls in 1839 : Dr. Wm. Burt, David Jumper, and Jesse Hickman’s answer to first cross-question; Ephraim Wallace’s answer to twelfth interrogatory; C. Powell’s answer to seventh interrogatory.
    Now, if there is any credence whatever to be given to these numerous and respectable witnesses, it is positively certain that there never was any delivery whatever of the property. That it had continued for the space of ten years in the possession of the vendor, D. Hall, Jr., just as it had done before 1839. The sale is, therefore, presumed to be fraudulent and simulated, and it devolved on those claiming under it to prove its reality. C. C. 1915, 2456. 3 L. R. 163. 3 N. S. 185. 17 L. R. 356. 2d Ann. 912.
    Again: it appears that the parties, themselves, and all who have had any cognizance of the sale, have regarded it as a mere nullity; else, how are we to account for the conduct of D. Hall, Jr. ? We find that he sold ten of the slaves to Dr. Burt, in Mississippi, and that he sold a large number to his brother, A. G. Hall, and warrants the title in the fullest manner. Are we to suppose him wilfully guilty of a fraud ? How are we to account for the conduct of Mrs. Hall ? It is pretty certain she was aware of the sale to A.' G. Hall, and it is equally certain she was present when he started with the slaves to this State. Are we also to suppose her a participant in this fraud? and, if so, .who should be the sufferer ? Story on Equity, sec. 385. 3 R. R. 332. 5 R, R. 518. Why was not this document “B” produced at the probate of the will ? Why were not the slaves inventoried as a portion of the succession of the testator ?• and why were they not administered on by his executors ? Why has Win. T. Hall, who is named as trustee for Elizabeth Hall and her children, never accepted the trust? We do not find that he has ever had anything to do with the property in any way, and now we may infer that his name is used in this suit without his knowledge.
    Where has this document' “B,” deemed so important to the plaintiffs, been since the 5th March, 1839 ? We do not find that it was ever recorded, or that it, in any manner, ever made its appearance, either in Alabama, Mississippi, or in Louisiana, until it was produced in this suit.
    Again: we think the slaves in controversy have not been identified with those alluded to in Alabama. Several of the witnesses state, that H. Hall, Jr., brought slaves from Alabama to Mississippi, and that,M. G. Hall brought them to Louisiana ; but there is only one who had seen the slaves both in Alabama and Louisiana, and he says, in substance, that he knew them in Alabama, and saw them there last, in 1836 or 1837; that he had not seen them since, until he met with them here in October last; it had then been thirteen or fourteen years since he saw them. Now, by reference to the description given of the slaves by the plaintiffs themselves, and, also, by the sheriff who levied on them, it will be found that there are only two, except Lewis, whom he doe,s not pretend to identify, over twelve years old, to wit, Miles twenty, and Ann, thirty. Miles, then, was six or seven years old when he saw him last,-and Ann, seventeen or eighteen. Now, is it probable he would recollect Miles ? And how is it possible he should recollect those who were not born ? How could he know that any of them were the children of Ann ?
    III. The 5th clause of the will, above quoted, is a substitution, and is, therefore, null, and can confer no title. On this point, we need only refer the court to the terms of the instrument, and the following authority. 4 L. R. 502. 2d Ann. 377. 4th Ann. 544. 1 R. R. 115. '
    "We think, then, under no circumstances should the plaintiffs recover any of the slaves in controversy, and that the judgment of the lower court should be reversed, and one rendered in our favor, as prayed for in the answer.
    In regard to one of the slaves, there can be no doubt the judgment of the lower court should baA-eversed. The plaintiffs have not even shown so much as paper title to him. we allude to the boy Lewis, who is described in plaintiffs’ petition as fourteen years old, and, also, in the sheriff’s return. He was four-years old when plaintiffs pretend they acquired title to the other slaves; he is not named in document “B,” nor the will; it is not pretended that he is the son of Ann, nor is he, in any manner, named by any of the witnesses, or identified with the Alabama slaves.
    IV. — 1. The will itself can confer no title.- In- order to make it effective, resort must be had to the “ bill of sale” referred to by the testator. This would, in effect, make the bill of sale a part of the will;, which is not allowed by law. 1 Jarman on Wills, 82, and cases cited. Uterton, et al. v. Roberts, el al. 28 Com. Law Rep. 379 Chambers v. McDowel, -6 Indale, 226. 7 U. S. Dig. 2 Vesey, Jr. 204. 6 Vesey, Jr., 565. Our bill of exceptions ought to have been sustained.
    2d. The document B. of plaintiffs ought, at all events, to have been identified as the “bill of sale” of the testator. This was not done ; it was attempted by the testimony of Amy G. Hall, which was excluded in the lower court.
    3d. If the evidence of this witness is admitted, it cannotbe credited; it is contradicted, in some instances,»by the circumstances of the case, and in others, by several other witnesses.
    4th. If document “B.” is the identical “bill of sale”, referred to by the testator, it ought to have been probated with the balance of the will. This was not done, and until it is, it can confer no title, on plaintiffs. 7 L. R. 45 10 L. R. 533.
   The judgment of the court was pronounced by

Rost, J.

Elizabeth Hall, and her husband, Dixon Hall Jr., in right of the said Elizabeth, and of their common children, and William T. Hall, as trustee for their benefit, have enjoined the sale of certain slaves, taken under execution, as the property of Alfred G. Hall, at" the suit of the defendants against him, on the ground that those slaves formerly belonged to Dixon Hall, Sr., a citizen of the State of Alabama, who bequeathed.them by his last will to Wm. T. Hall, in trust for the parties now claiming them. They allege, that the testator died in 1839, that the will was duly probated and the slaves delivered in execution of the devise, and that they never have parted with the title.

The defendants have pleaded the general issue, and denied that Dixon Hall, Sr. ever was the owner of the slaves; they aver that,vat the time of the seizure, Alfred G. Hall, held the slaves, under a title from Dixon Hall, Jr., to whom they originally belonged, which title was duly recorded in the parish of the domicil of the said Alfred G. Hall. They deny any transfer from Dixon Hall, Jr. to his father; aver that Dixon Hall, Sr. never was in possession of the slaves, and that if atitle exists from his son to him, it is fraudulent and simulated. They pray for the dissolution of the injunction, with damages, and for general relief.

After hearing, the district court perpetuated the injunction, and the defendants appealed.

On the trial the plaintiff offered in evidence the testimony of Amy Hall, taken under commission, to prove the genuineness of the deed from Dixon Hall, Jr. to Dixon Hall, Sr., and to identify the slaves named therein with those mentioned in the will of Dixon Hall, Sr. and that they were delivered to Elizabeth Hall, which evidence was objected to by the defendants, on the ground that the witness was the mother of Dixon Hall, Jr., and the grandmother of his children, and incomptent, as such, to testify in a suit id which they were parties. This abjection was sustained by the court, and the plaintiffs took a bill of exceptions.

The ruling of the court is based upon an express provision of the code (C. C. 2260); it is no argument to say that the witness would be competent to testify for Elizabeth Hall, if she was alone in court, and that the evidence should therefore have been received, so far as she is concerned. Elizabeth Hall has no distinct interest in the property ; she claims jointly with her children, and if they have any title, the title of both is the same, and as she has joined her children in the prosecution of the suit, the testimony which is inadmissable as to them, is equally so as to her. See Guerin el al. v. Bagneries, 13 L. R. 15. Jedediah "Leeds etal. v. John Caldwell et al. 1R. R. 256. The disposition of the will under' which plaintiff claims title is as follows; “T give, devise and bequeath unto my son, Win. T. Hall, in trust for Elizabeth Hall. the wife of Dixon Hall, Jr. and their children now born, and those that may hereafter be born during their lives, all the negroes embraced by name in a bill of sale made by Dixon Hall, Jr. to me, sometime in the month of March, 1839, and the said property, as described in the bill of sale from Dixon Hall, Jr. to me, is to bo the property of the wife and children of the said Dixon Hall, Jr. to their sole and separate use; and if the said Dixon Hall, Jr. shall die, and his wife marry again, then the whole of the property shall be absolutely vested in the trustee, for the children of the said Dixon Hall, Jr.”

It is in evidence, that after the death of Dixon Hall, Sr., the will was duly probated and recorded, but no acceptance of the trust by the trustee, or actual delivery of the slaves has been shown. Without inquiring how far such a testamentary disposition would be recognized by our courts, in relation to the slaves mentioned in it, after their removal to Louisiana, we will assume that the parties, collectively, have alleged a legal title.

It has been urged, in behalf of the defendant^, that the slaves bequeathed, should have been named in the will; that the reference to the bill of sale is vague and indefinite; and that the bequest is void for want of certainty; that if it is not, the sale referred to should have been annexed to the will, and probated as a part of it.

We are of opinion that a testator may so construct his disposition, as to render it necessary to have recourse to some document, in order to elucidate or explain hisántention, and that the document referred to, may be consulted for that purpose, and need not be probated as forming a' part of the will. Jarman on Wills. 82. 13 L. R. 17. But whatever be the nature of the document referred to, it must be clearly identified as the instrument to which the will points. The instrument adduced in evidence as being the one to which the testator had reference, is a receipt from Dixon Hall, Jr. to him, for twenty thousand dollars, in full for the slaves therein named, bearing date the 5th day of March, 1839; at the foot of the receipt is the following memorandum: “I am to deliver the above named negroes to Dixon Hall, Jr., as soon as I save my crop.” The defendants have expressly denied the identity ofthis document, With the one to which the testator had reference, and have alleged that if the identity should be shown, the instrument is fraudulent and simulated. This document is a simple receipt, and not properly speaking, a deed of sale; there are no witnesses to it; its existence, at the time it bears date, is nowhere shown, and we are not informed in whose hands it has remained ever since ; for aught that appears to the contrary, it may have been fabricated on the day it was produced in court, for the purposes of this suit. To establish the identity, which it is incumbent upon the plaintiffs to show affirmatively, they rely on the testimony of McFee, Barnham, Wallace, Hickman and Jumper. The two first proved the signature of Dixon Hall, Jr. to the receipt. The testimony of Wallace is immaterial. Hickman states that the negroes in question were originally in possession of Dixon Hall, Jr., in the State of Alabama, and that he claimed them as owner; that in March, 1839, the witness thinks on the 9th of that month, Dixon Hall, Jr. conveyed all his slaves and all his property of every kind, to his father, by a bill of sale, and that Dixon Hall, Sr., subsequently made his will and devised the property mentioned in said bill of sale, to the wife and children of Dixon Hall, Jr. Jumper states, that sometime in March, 1839, he saw Dixon Hall, Sr., on his way to his son’s, Dixon Hall, Jr.-, he told the witness that his object in going to his son was to buy his property; that his son had become involved, and that he had loaned and paid out $16,000 for him, and that he was going to purchase his property, to make himself safe. A few days after this conversation, the witness saw him on his return from his son Dixon, and he then told witness, that he had purchased out Dixon, in toto; that he gave him, for his possessions, $21,000, including his negroes, mules, horses and stock of'all descriptions, his land and household and kitchen furniture. He further informed the witness, that his object was, not only to secure himself, but also to prevent his son’s property from being sold to pay his security debts; that all of Dixon’s own debts should be paid, but his property should not be sold to pay his security debts.

The instrument to which these witnesses refer, is one in which lands, stock, horses, mules, household and kitchen furniture, were included with slaves, and which must have been clothed with the formalities required for the alienation of real estate. The consideration of it was twenty-one thousand dollars, not twenty thousand dollars, as the receipt states, and it bore date the 9th of March, while the receipt purports to have been executed on the 5th of that month. It is sufficient to say, that this testimony does notprove, beyond allreasonable doubt, the identity of the receipt offered, With the bill of sale to which the will has reference. Had the identity been proven, we aré of opinion that the plea of simulation set up by the defendants, is fully sustained by'the evidence.

It is shown that Dixon Hall, Jr., was in possession of these slaves in the State of Alabama, as owner; and that he remained ifi possession, and acted as owner ever afterwards, until he sold them to Alfred G. Hall, on the 28th day of March 1848. That he removed with them from Alabama to Mississippi, with all the slaves, which, it is pretended, his father bequeathed to his wife and children; that he sold ten of them to Hr. Burt, without any objection being made by the trustee, or Elizabeth Hall; and that, subsequently, he sold those, now in controversy, and others, to Alfred G. Hall, who removed them to the parish of Morehouse, in this State, to the knowledge of the plaintiffs, and without objection or hindrance from them.

One of the witnesses, who had the best opportunity of knowing, swore, that the transfer from Dixon Hall, Jr., to his father, was unreal, and made for the purpose of defrauding the creditors of the vendor. Another witness states, that it was notorious in the neighborhood, that the sale was a sham. The character of those witnesses, for truth and veracity, is unimpeached. Jumper, the very witness upon whom the plaintiffs mainly rely, answers, as follows, one of the interrogatories put to him: “I was well acquainted with Dixon Hall, Sr., and he was a man of high character and standing, and, I think, deservedly so; he. was'proud of property, and loved his children; and Ido not believe that he thought this arrangement with his son, such a fraud as a father might not practice for his son; I do not think that Dixon Hall, Sr., under ordinary circumstances, would be guilty of a fraud.”

The impression produced upon our minds by this evidence, is directly the reverse of that which counsel intended to produce in offering it. We understand this witness to say, that Dixon Hall, Sr., would not have been guilty of fraud, without a sufficient motive; but that he loved his children more than his good name, and thought it but right to assist them in defrauding their creditors, which the witness clearly intimates he had done in this instance.

It has been urged, that by the memorandum appended to the receipt offered in evidence, the slaves were not to be delivered till after the vendor had gathered his crop; and that, as his father died before that time, the want of actual delivery is not a badge of fraud. This reservation forms no exception to the disposition of article 2156 of the code. In all cases, when the thing sold remains in the possession of the seller, and he retains possession by a precarious title, as is the case here, there is reason to presume that the sale is simulated; and with respect to third persons, the parties must produce proof of their good faith, and establish the reality of the sale. This has not been done. The declarations of Dixon Hall, Sr., made to Jumper, and offered in evidence by the plaintiffs, so far from proving the consideration of the sale, go far to show that it was unreal and simulated.

Had the witnesses in this case been examined in open court, the conclusions of the district judge would have had great weight with us, but as the testimony relating to the identity and simulation of the deed offered, was all taken under commission, we have had the same means which he had of passing upon its credibility, and more time to give to the examination of the case.

There is nothing before us to show that Dixon Hall, Jr., ever parted with his title to the slaves, until he sold them to Alfred G. Hall, on the 28th of March, 1848. This sale was duly recorded in the State of Mississippi, and also in the parish of Morehouse, where Alfred G. Hall removed with the slaves. He was the owner of the slaves on the public records of the country, and in actual possession of them, when the defendants obtained and recorded them judgment.

The execution on this judgment issued on the 28th of May, 1849, and the slaves were seized on the 30th. It is in evidence, that on the' 25th of March, 1849, Alfred G. Hall reconveyed the slaves to Dixon Hall, by a private act, which was recorded on the 28th of April, following; and the plaintiffs urged that this recording was notice to the defendants, and that after its date, they could not seize the slaves as the property of A. G. Hall. There is no evidence in the record, of the delivery of the slaves to Dixon Hall, under this sale; and the possession still continued in Alfred G. Hall, at the time of the seizure, under article 2156 of the code already cited, the legal presumption is, that the retransfer, without delivery of possession, was simulated; and it was incumbent upon the parties to it, to show its reality. This has not been attempted; so far from it, the evidence introduced by the plaintiffs, to show that the slaves had been all the time, and were at the time of the seizure, in the possession of Elizabeth Hall, and her property, is inconsistent with that hypothesis. We are, therefore, of opinion, that the seizure was properly made, and that the injunction must be dissolved.

It is therefore ordered, that the judgment in this case be reversed, the injunction dissolved, and the slaves seized subjected to .the defendants execution. It is further ordered, that the plaintiffs, as principals, and Alexander D. Peek, Bowles Billingsby, and Thomas N. Barnham, as securities upon the injunction bond, be adjudged to pay the defendants, in solido, one hundred dollars damages. It is further ordered, that plaintiffs pay costs in both courts.


text:
    Lewis J. Miles v. John Craig.
    Where a line is imposed by an ordinance of a police jury for the commission of certain acts, any one injured by a person violating the ordinance, has a right of action for the damages, independent of the fine imposed; and a judgment previously rendered against the offender is no bar to such an action.
    APPEAL from the District Court of Bossier, Bullard, 3.

      Andrew Lawson, for plaintiff,

      H. M. Spofford, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff was the lessee of the police jury of the parish of Bossier, of a ferry across Benoist’s Bayou, on the road from Shreveport to Arkansas. The ordinance of the police jury prohibited any person from keeping a ferry within a mile of the established ferry, under a penalty of fifty dollars per day, for the benefit of the lessee.

The plaintiff alleged and proved, that the defendant kept a free ferry for a length of time before the institution of his suit, within less than a mile of the ferry leasedtohim. Pie claims a large amount of damages, but a verdict and judgment was rendered in his favor only for $13 75, and costs, from which he has appealed.

He took, in the course of the trial, two bills pf exception, which we do not think were tenable, and which his counsel seems to have waived in this court. He moved for a new trial, on account of the modicity of the damages allowed by the jury, and, it appears to us, he had reason- to do so. But the district court having refused a new trial on matters of fact alone, which were so peculiarly proper for the decision of a jury; and the evidence being indefinite and conflicting, and of a character that did not satisfy the jury, we are unable to afford relief to the plaintiff.

The defendant contends that the judgment is erroneous, because the suit should have been brought by the police jury of the parish, ■ for the penalties imposed for the benefit of the plaintiff. Relief might, perhaps, have been obtained jn ^at mamjer. then) the acts of the defendant caused direct damages to the plaintiff, and he had a right to seek redress in his own name. C. C. 2294.

The plea of rei judicata is equally untenable. In the former suit, the plaintiff prayed judgment for the amount of the penalties, imposed by the police juiy and incurred by the defendant, for violating the ferry privileges conferred by his lease. This court held, that the police jury, alone, could enforce those penalties; but expressly referred the plaintiff to his civil remedy for damages. 3d Ann. C36.

The testimony of Cross was objected to, on the ground that he was an interested witness. Oliver proved “that Cross had told him there was not much probability of his getting any thing from Miles, the plaintiff, as Miles had promised to pay him out of money he should get from Craig, for keeping the ferry; that Miles was gone, and his chance was only out of the judgment.” Being the creditor of an insolvent plaintiff, may impeach the credit of his witness, but does not render him incompetent. The whole tendency of modern decisions is in favor of impeaching the credit, and not the competency of witnesses.

The judgment of the district court is affirmed, and the appellant is condemned to pay the costs of the appeal.