author: Buchanan, J. Campbell, J. Slidell, C, J.

text:
    Susan Gilmore, Wife of C. Hubbs, v J. A. Gilmore et al.
    The petition concluded with the prayer, that the defendant and her husband be cited to answer the petition — itwas served on the husband in person, and a judgment by default rendered against both. Held: The suit was brought in the manner required by Article 118 0. P. Service of process was made as directed by Article 182 0. P. The feigned or tacit issue resulting from a judgment by default, was binding on the wife and dispensed with the authorization of the Judge, which is only necessery in the absence of an authorisation, express or implied, of the husband. 0. P. 118. C. C. 126, 129. Buchancm, J., Voorhies, J., Ogden, J,, and SUd¿Il, C. J., concurring.
    The husband having failed to appear to assist his wife, in the defence of her suit, itwas necessary that the plaintiff should have obtained from the court an order authorizing her to stand in judgment. Campbell, J., dissenting.
    In proceedings for partition, experts were appointed, who reported that the property could notbe con - veniently divided in kind, whereupon the court ordered a sale at public auction. The husband, who represented his wife in the partition, assisted in fixing the terms of sale, and also at the sale itself. The proceedings were held to be regular, and the conduct of the husband regarded asr an execution of the judgment on behalf of the wife, under Art. 612 C. P.

      The judgment of the court ordering a partition, did not direct in what manner the partition was to be made, nor did it appoint a notary to make the same. Held: The irregularities in the form of the judgment of partition of the nature of those charged, are the subject of appeal, rather than of the action of nullity. Buclumun, J , Ogdmy J., Yoorhies, and Campbell, J., concurring. S'Udell, 0. J., dissenting.
    The absolute p- ohibition to sell under the price of estimation only exists in the case of minors
    APPEAL from the District Court of the Parish of East Baton Rouge, Robertson, J.

      Lacey, Davidson and McEatton, for plaintiff:
    First. — The first point, upon which the plaintiffs rely, to sustain the illegality of the proceedings is, that the husband, Ghaodes Eubbs, not having appeared in the suit for partition, an order of court, authorizing his wife to appear was necessary before she acquired the right to stand in judgment; and that any decree of judgment rendered against her, until she obtained the authority “ legitiman standi in judieio persona/m,” Was illegal and void.
    The necessity of an order, where the husband fails to make an appearance, authorizing the wife to defend the suit, was fully declared in Adley v. Anty, 1st Ann. 200 ; and in that case, it was laid down as a rule, after a full investigation of the question by the court, that where a husband fails to appear and assist his wife by his actual presence, such wife cannot prosecute, if she bo plaintiff, nor defend if she bo defendant, until the court has authorized her to do so. Anty and his wife were both defaulted; the latter afterwards appeared and filed her answer; a judgment was rendered against her in the lower court; and jmt the Supreme Court reversed the judgment and remanded the cause, because Mrs. Anty was not authorized to appear and defend. The opinion of the Supreme Court is not technical in its nature, as the District Judge seemed to think, nor was it made up simply to suit the facts in Adíe v. Anty ; it was well considered; was intended to establish, or rather to confirm, an old established rule; and is in strict conformity to a long line of admitted authorities. Yide authorities referred to by Mrs, Anty's counsel in 1 Ann. 2G0, Ghaisson v. Duplantier, 10 L. R. 570. Keys and others v. Kettles, 12 L. R. 381.
    If the “ ends of justice” called upon the Supreme Court to remand Adíe v. Anty, do they not much lounder call upon it to grant the demand of Mrs. Eubbs, to be hoard relative to the partition ?

      We have already shown your honors, that Mrs. Eubbs could not appear and answer the petition for partition, until she had been authorized by the court, and the necessary, self-evident, and irresistible conclusion is, that a judgment by default, made final against her, when she was without the right, legitima/n standi in judieio personam, is illegal and void.
    Second. — The proceedings in partition, and the probate sale, are illegal, because the judgment rendered by the court, did not direct in what manner the partition was to be made, whether in kind, or by licitation, nor appoint a notary to make the same.
    The judgment was rendered, Nov. 8, 1852, and upon reference to the same, the court wjll, at once, perceive that notwithstanding the plaintiffs in partition protended to have defaulted Susan Eubbs, they, nevertheless, in the final judgment, rendered on that day, obtained a decree covering no other ground than the appointment of appraisers. No partition was decreed ; the manner of the partition was not fixed ; and the notary was not mentioned, except for the purpose of making an inventory and appraisement. Jr not the judgment, in the absence of a provision, directing the manner in which the partition should be made, and in not naming the notary to carry out the order of the court, illegal and void ? Most unquestionably it is. The Supreme Court of the State, in referring to a partition, not quite so careless and reckless in its compliance with the requirements of law, as the one under consideration, uses the following strong and judicious language: “The judgment not directing in what manner the partition is to be made, whether in kind or by licitation, and no notary being appointed to make the same, no further proceedings can legally take place thereon ; either party aggrieved by it may appeal; or be relieved by an appeal from the judgment homologating the partition, to be afterwards rendered. McGutlumv. Palmer, 1 Rob. 513.
    The force of this position cannot be denied, and so strong is it, that the defendants may attempt to evade its strength, and to relieve themselves from the difficulty into which it places them, by falling back upon another judgment, which they pretend has been rendered in the matter. I refer to the decree granted by the Judge at Chambers, upon the ex parte application of the plaintiffs in partition, bearing date December 6, 1852.
    This judgment, or rather order, can be of no avail to the defendants, for two good, substantial and legal reasons: first, because it was not preceded by a “ citation,” and, secondly, it was not rendered “in open court.” It will not be pretended that Susan Gilmore had any notice of the application made to the Judge for the sale of the common property, except through the service of the original citation ; and as such original citation ceased to have any effect, as soon as the judgment of November 8,1852, was entered up; and as Mrs. Hubbs was bound to know knothing after the judgment aforesaid, without another notice, we may safely assert that the pretended decree of December 6, 1852, was unaccompanied by a citation. In the absence of such citation, was not the order of sale of December 6, 1852, and upon which the defendants rely, ex parte and illegal? Vide Civil Code, 1252, for an answer. Should we, however, for the sake of argument admit, that Susan Gilmore was, through the original citation, legally cited in, as a party to the proceedings and decree of December 6, 1852, (an admission which the court will scarcely receive even in the way of argument,) yet we contend that such decree is illegal and of no avail, because “not rendered in open court.”
    Article 1252 Civil Code, provides, that the co-heirs or their representatives be cited in order that the form of the partition may be determined; and the preceding Article (1251) makes it the duty of the Judge, before whom the action of partition is brought to pronounce thereon, “ in preference to the ordinary suits pending before him-,” and as there is no such thing as citing a party to appear before the Judge, out of court, and no ordinary suits can be pending-before him, at Chambers, the conclusion is apparent, that the citation must be returnable in open court, and the judgment, ordering a sale, must be there rendered. The word “ cited” in Article 1252, and. the words, “ in preference to the ordinary suits pending before him” in 1251-, would be reduced to an absolute absurdity, if the Judge, before whom the action of partition is brought could determine the form of making the same at Chambers.
    Again: Article 1022, Code of Practice, provides, “ that all partitions of succession property shall bo made by the Court of Probates,” not by the Probate Judge. There is a well marked distinction laid down in the article of the Code of Practice, which throws all partitions into the court, and not before the Judge; and this distinction, which is in perfect harmony with the provisions of the Civil Code, as already shown, it is the duty of the judiciary to maintain.
    It has been intimated that had no proceedings been had in open court, relative to the partition, the defendants would not, under such circumstances, have regarded the judgment rendered at Chambers, as possessing- any validity; but that inasmuch as a petition disclosing all the facts relative to the contemplated partition, had been served upon Mrs. Hubbs, and inasmuch as she failed to make answer to such petition, and suffered an informal judgment to be rendered, the heirs were entitled to correct such informal and imperfect judgment (of November 8, 1852) by the ex parte proceedings of the 6th of December. The error of this position is clearly illustrated by referring to an analogous case. Suppose that the heirs of Gilmore had instituted proceedings against Mrs. Hubbs, upon two notes of hand, $500 each; that the petition had been served upon her, and that failing to answer, she had been regularly defaulted; that the plaintiffs had proceeded to make such default final, and instead of taking a judgment upon two notes, as they had the right to do, they through error, or some other unknown cause, obtained a decree for only five hundred dollars, the amount of one note, could they apply to the court, at chambers, and correct their errors, and perfect their imperfections, by obtaining an ex parte decree, for an additional sum of $500 ? Slost unquestionably they could not. How then can a similar proceeding be maintained, relative to a suit for partition? The principle is the same in both cases, and if the imperfect judgment for the money cannot be corrected by an order at chambers, how can an informal decree of partition be made perfect, by such informal proceedings ? To permit it, would be to sanction a marked difference, where there is no good reason, either at law or in equity, for the slightest distinction.
    It may not be amiss to notice the view, which we are led to believe, may bo taken relative to the Act of 1850, giving to the clerk, as the defendants maintain, the legal right to render judgments in partition. The wording of the statute of 1850, is very loose and general in its nature, and it is a matter of extreme doubt, whether under the grant conveyed by the words “ shall order sales of succession property,” a right to fix the mode and manner of partition and everything relating to such partition be granted to the clerk. Be that, however, as it may, it is clear that the clerk of the court is one thing, and the Judge another, and if judgments in partition can be rendered out of open court, they can be rendered only by the person, fixed by the Act of 1850, and in the manner, and upon the days, therein allowed. This statute gives no right to the Judge at Chambers to grant such judgment, and the defendant’s case is as good in the absence of the law of 1850 as with it. It is wholly inapplicable, and without the least bearing upon the point in controversy. The same remarks may be applied to the Act of 1853, with the additional remarks, that as such act was passed subsequent to the partition sale complained of by us, it cannot be noticed by the court. If the proceedings were illegal up to the passage of the Act of 1853, they have not acquired legal form and validity, by its adoption.
    We then respectfully submit to your honors, that neither the Act of 1850, nor the statute of 1853, can be considered as having any bearing upon the point under consideration, and that the judgment of December 6, 1852, derives not the slightest assistance from those acts ; that such judgment is illegal, both on account of not having been preceded by a citation, and because it was not rendered in open court; that your honors will consequently overlook that judgment, and will not permit it to enter into your consideration, in deciding upon the validity of the proceedings for partition; that you will alone look to the judgment rendered in open court, November 8th, 1852, and that your honors must declare the same illegal and void, and annul the proceedings in partition thereon, because it does not direct in what manner the partition should be made, whether in kind or by licitation, and fails to appoint a notary to make the same.
    Third.--The sale to effect a partition is illegal, because the property was adjudicated at less than its appraised value.
    The whole amount of the appraisement of the plantation and slaves was $34,413, and the amount of the sales $28,562, showing that the property and slaves were adjudicated at $5,851 less than the estimation. It is true that some of the slaves sold for more than their appraised value, but on the other hand, there were others who were adjudicated for less; for instance:
    To John A. Gilmore — Maria and Nat, appraised at $1,260, and sold for $1,000; Lemon, and Maria, his wife, appraised at $150, sold for $112 ; and John, and Eester and children, appraised at $2,950, sold at $2,550.
    To And/rew G. Mnly — Ben alias Bill, and his wife and children, appraised at $2,350, sold for $2,270.
    The foregoing figures establish the fact, that the property and slaves sold to affect a partition, or at least a portion of such slaves and the real estate, wore disposed of at a price less than the appraised value, and such being the case, we contend, that the sale is for that reason illegal.
    In illustrating this position, we shall endeavor to satisfy your honors, that where succession property is sold for the sole purpose or effecting a partition among the heirs, it cannot be adjudicated at less than its appraised value. We are aware of the fact, that your honorable court has decided that the sale of property belonging to an estate, “for the payment of debts,” is not subject to the rules and regulations that might otherwise apply, but this principle cannot bo invoked in the present instance, because the record contains no evidence of debts existing against Gilmore's estate; and to effect a partition, and not for the payment of debts, were the proceedings now complained of by us instituted. That the property of Gilmore's estate, sold as it was, simply for the purpose of a partition, could not be legally adjudicated at loss than the ap-praisement, is evident, because :
    Such was the intention of the Legislature, in adopting Articles 1247 and 124S Civil Code.
    Those articles require that an appraisement should be made in all cases— not alone in those cases in which minors are interested, but in all cases — in “ every” judicial partition; and furthermore provide, that if the public inventory: was made at a time exceeding one year, it shall not servo as the basis of the partition, but a new appraisement must be made.

      The Legislature, in the Articles of the Code now under consideration, could not have intended that property sold to effect a partition, could bo disposed of at less than its estimated worth. Why require an appraisement, if such ap-praisement is to be disregarded ? Why, under certain circumstances, encounter the delay and increased expense of a new appraisement, if such new appraisement, when made, is to become no better than a blank sheet of paper ? What object, what meaning, do Articles 1247 and 1248 acquire or retain, under this view of the case? On the other hand, was it not clearly the intention of the Legislature, in adopting Articles 1247 and 1248 C. 0., thereby to declare, that property offered for sale, for the purpose of effecting a partition, could not be adjudicated at less than the ascertained value of such property ? Did it not thereby endeavor to prevent such property from being sacrificed by a sale, at less than its estimation, at least until the fact is brought to the attention of the court, for its review and decision in the premises? Is not such object a fair and reasonable deduction from the articles under construction ! We think we may safely assert, that it was the intention of the Legislature, that property sold to effect a partition, should bring the amount of its appraisement, and the lands and slaves in the Gilmore succession, having been adjudicated, at less than their appraised value, the sale is, for that reason in addition to others, illegal and void.
    Fourth. — The proceedings to effect the sale, and the sale itself, having been shown to be irregular and illegal, and notin accordance with the formalities of law in such cases made and provided, we proceed to establish, as a consequence of such informalities, that the title of the defendants is illegal, null and void.
    The court is not invested with the power of inquiring whether the plaintiff may have been benefited or injured, by the sale ; she is entitled to the ownership and possession of her property, until she be divested of the same by her own consent, or by a strict compliance, in cases of forced alienations, with all the formalities of law appertaining to forced sales.
    The sale of minors property, or that of a succession where the heirs are absent, must pursue the forms of law directed for its alienation, or the sale must be annulled. The conveyance derives its force and validity entirely from the law, and where that law is not followed, the authority, which stands in place of the owners consent, is wanting. Elliott v. Labarre, 2 La. 328. Replan v. Thompson, 14 La. 272.
    One claiming title under a forced sale of property must show that all the formalities have been complied with, otherwise the sale will be null. 8 N. S. 24G. Delogny v. Smith, 3 L. R. 421. Morris v. Croaker, 3 L. R. 150. Spiller v. Branegarcl, 4 L. R. 207. McBonogh v. Gravier, 9 L. R. 542.
    We are not ignorant that the authorities above referred to, have reference more particularly to Sheriffs and tax sales; but the principle upon which they were settled, is as fully applicable to partition sales, as to any other, while in Robinet v. Compton, 2d Ann. 847, it is laid down as a general rule, under all forced alienations of property, under the authority of a judicial proceeding, that the delays and formalities required by law, must be strictly fulfilled, under pain of nullity.

      J. Joor, for defendants :
    1st. Defects in judicial proceedings such as judgment by default, can be cured only by appeal. O. P. 565. 9 L. R. 79. 10 L. R. 573.
    2d. It has been repeatedly decided by the Supreme Court, that a party who has, by his own negligence and laches, suffered a judgment to be rendered against him, cannot be allowed to sustain an action of nullity. In the suit for partition, Susan Gilmore had every opportunity of defending her rights in that matter, but by her own fault made no showing whatever; and the court will not allow her to obtain that which she could have asked for, by using the merest ordinary diligence in the suit for partition. 1 R. R. 523. 3 Ann. 646.
    3d. The defendants purchased the property in contest, sold under a decree of the District Court, and such purchasers are not affected by any informalities in the rendition of the decree. Even if the decree should be set aside, the sale under it must remain good: and the purchaser is not bound to look beyond the decree. 8 L. R. 412-424. 5 Ann. 437. 10 R. R. 396.
    4th. Plaintiff complains that property did not bring its appraisement. It is proved by the testimony of Babin, that the property sold for its fair value ; and npon comparing the sale with the appraisement, it will be seen that the sale of the negroes amounted to their appraisement, although some few of them wont under their appraised value and others exceeded the same. It is, however, immaterial whether the property brought its value or not. Since there were no minors interested, and the sale was made at the suit of heirs to effect a partition. The law requiring property to bring its appraisement, has reference only to cases where minors alone are interested. The law is favorable to the partition of property, and requires no one to remain joint owner with another. The law grants the right to co-partners, at any time to force a division, and for this purpose courts will grant every facility in their power. C. C. 839 ; 2847, sec. 5 ; 2858, 2861, 1230 to 1244. 11 R. R. 508. 2 Ann. 966.
    5th. Plaintiff urges that she was a married woman, and for that reason, no judgment by default could be binding on her, without a previous order of court, authorizing her to stand in judgment. . The citation is an order of court, and it would be a very singular course of procedure for a court of justice to authorize a party to obey its mandate! C. P. 179, sec. 4. The citation served upon the husband is a service upon the wife. C. P. 182. It is true that in one solitary instance this court decided that the wife could not answer without the authorization of her husband or the court. But the case was very different from that now before the court. This action for partition was not an action to render her Hable for debt, but simply to cause a separation of interest which had been previously held in common. Throughout the whole of our legislative enactments and jurisprudence, very special care is taken to protect the rights of married women and minors. These two classes of persons have always attracted the special attention of our courts and legislatures; and if greater watchfulness has been manifested for the one than the other, it is in favor of the minor, throwing around him the shield of the court, the tutor, the under-tutor and the family meeting. Yet with this quadrupled vigilence to protect the interests of the minor, his tutor, in answering a suit for partition, needs not the authorization of Judge, under-tutor or family meeting. O. O. 1237, Act 1826, p. 172, sec. 12. If the tutor should fail to answer, could not a default be entered against him, binding the minor? It is presumed this position cannot bo controverted.
    If then the rights of the minor (which aro so strongly guarded by the law) can be affected by the action of his guardian, what principle of law will exempt the wife from similar liability ? Is she not personally more competent than the minor to attend to her own interests ? Why then should she be awarded an exemption which the law expressly denies to the minor ?
    The correct interpretation of the law appears to bo, that a wife cannot be a party plaintiff without the authorization of her husband or the court; but she may be a party defendant by citing her husband with her especially in matters relating to partition. 0; 0. 1249. As plaintiff she acts without any direction from the court; but as defendant she acts under the orders of the court.
    6th. Plaintiff complains that the whole proceedings were not conducted in open court. Up to the appointment of experts matters are not liable to this objection. But in regard to what was done after that time, no opposition could have been made, for nothing was done which was liable tovopposition, and matters were concluded by the court under as full proof as could have been made in open court.
    But the law does not contemplate that the same strictness should be observed in matters of partition, as in ordinary action ; for it only requires that parties in interest should have notice of the proceedings, and there is no indication of the manner in which this notice is to be given. Notice to Swan's husband would certainly be good as to her, and it is in evidence that he was fully aware of all the proceeding's.
    0. 0. 1258-59-61. C. P. 1027.
    As to jurisdiction of court. Dig. 1852, p. 339, s. 34.
    7th. But even if the court rendered the decree of partition improperly, the plaintiff is too late in seeking redress. A party residing in the parish, who suffers a decree to be rendered against him, without opposition, and allows that decree to be executed upon his property, cannot avail himself of the action of nullity, although he had not been qualified to appear in the suit, where judgment was rendered against him. 0 P. 612. 2 L. R. 265. 13 L. R. 481, 512.
    8th. The plaintiff cannot have the probate sale rescinded, unless the whole property can be placed in the position it was prior to the sale. But by joining in the sale of the land to John D. Baker, she has put it out of the power of herself or the court to do this. 2 R. R. 20. C. C. 178G.
    The probate sale is a contract in its nature requiring the consent, either judicial or otherwise of parties, and is susceptible of ratification, in the same manner as any other contract. This ratification may be effected either expressly or tacitly. This has been done in this case, by the act of the plaintiff in signing the deed of sale (with her husband) to Baker. The probate sale is one single contract and the ratification of a part thereof, precludes her from all rights of nullity which she might otherwise have had. C. 0. 1789, 2252. 6 L. R. 536. 2 R. R. 20. 5 R. R. 254. 2 Ann. 875, 912. 4 Ann. 148.

      J. W. Seymour, for the purchasers :
    Innocent purchasers at a sale made under the authority of a court of justice, will be protected, even though it may subsequently appear that the proceedings were informal. "We are taught to respect the decrees of our courts. We are taught that they are the guardians of our rights. Must a party who is not learned in the law, go behind the decree of the Judge? We think not. A prima facie judgment is all that he need ask for. 8 L. R. 424. Ann. 437. 1 R. R. 378.
    This is an action for nullity. It is a suit to set aside a judicial decree and a judicial sale. The Oode of Practice prescribes the causes for which actions of nullity will lie. Is such a case as this included among them ? C. P. COG et seq. On the contrary it is expressly excluded.
    It is said that a judgment rendered against a party without having been cited, or against a defendant not competent to appear, may be set aside, unless the party wore present in the parish, and suffered the judgment to be executed. O. P. 612.
    This point is so conclusive as to need no comment.
    Defects in judgments, such as want of appearance or default, can only be remedied by appeal and not by action of nullity. 9 L. R. 79.
    The action to annul a judgment must be confined to the parties to that judgment. 12 L. R. 394. 9 R. R. 191.
   Buchanan, J.

This is a suit to annul a judgment of partition and a sale made under the same; also for a partition of the property thus sold, between the plaintiff and her brother and sisters, the defendants, as joint heirs of their father and mother.

The action of nullity has three grounds, as stated in the argument of plaintiff in this court:

1st. That in the suit in which the judgment was rendered, that is sought to be annulled, there was no order of court authorizing the present plaintiff, defendant in that suit, a married woman, to appear and defend the action.

2d. The proceedings in partition, and the probate sale, are illegal, because the judgment rendered by the court did not direct in what manner the partition was to be made, nor appoint a notary to make the same.

3d. The property was adjudicated at less than its appraised value in the inventory.

I. The petition in the suit of John A. Gilmore and others v. Susan Gilmore, wife of Charles Eubbs, states that the petitioners, four in number, and the defendant, their sister, were the children and sole heirs of John Gibnore, deceased, in 1834; that all the parties were of full age, and that the petitioners required a judicial partition of the estate of their ancestor, the defendant having refused to give her consent to an amicable partition. The petition (filed in October, 1852) concludes, “ that the said Susan Gilmore, and her husband, Charles Hubbs be cited to answer this petition, arid for general relief.” A citation was issued by the clerk in that form, which wns served upon Charles Hulls in person, and judgment by default entered against him and his wife, they failing to appear and answer.

This case differs from that of Adíe v. Anty and husband, 1st Ann. 260, relied upon by the plaintiff inasmuch as the judgment by default against the husband and wife, In the case of John A. Gilmore v. Susan Gilmore, wife of Hulls,, was never set aside by the filing of an answer; neither Mrs. Hulls nor her husband made any appearance. Whereas in the case of Adle v. Anty and husband, the judgment by default taken against husband and wife, was set aside, upon the wife alone appearing and filing an answer. “-Upon that issue,1' says the court, “ the plaintiff went to trial, without taking the necessary steps to have the wife authorized to contest the suit, and judgment was rendered in his favor.” So, in the case of Keys v. Nettles, 12 L. R. 381, the married woman filed a petition in her own name and without the assistance of her husband. In both instances, the cause was remanded to be proceeded in according to law. But here, the suit was brought in the mode required by Article 118 of the Code of Practice, which provides, “ when one intends to sue a married woman, for a cause of action relative to her own separate interest, the suit must be brought both against her and her husband.” Further, the service of process was made as required by Article 182 C. P., which says, “-if the defendants are husband and wife — it will be sufficient to deliver one single citation and one single copy of the petition, to the person representing the defendants.” The following was the language of the court In Chiasson v. Duplantier, 10 L. R. 674: “ In the case of Laws v. Chinn, 4 Martin N. S. 388, this court held, that the husband and wife, being co-plaintiffs, his authorization to her clearly resulted from his joining in the suit, in which he had no other interest than to assist her in asserting her right. In the present case, she was co-defendant with her husband, and it is difficult to perceive any difference in principle between the cases. In the first, she became a party by petition ; in the last, by citation and answer.” This decision appears to be a case in point; the only difference in the facts being, that instead of an answer filed by the husband and wife, as in Chiasson v. Duplantier, there was in the case at bar, a tacit joinder of issue by the judgment by default taken against husband and wife. C. P. 361. This tacit or feigned issue was binding upon the wife, and dispensed with an authorization of the Judge, which only becomes necessary in the absence of an authorization, express or implied, of the husband. C. P. 118. C. C. 126, 129.

II. Upon the second point, we have considered that irregularities in the form of the judgment of partition of the nature of those charged, are the subject of appeal, rather than of the action of nullity. The judgment of the 6th of December, 1862, seems, however, to be regular. It follows the prayer of the petition ; recites that experts have been appointed, who have reported that the property could not be conveniently divided in kind ; and orders a sale at public auction in conformity to article 1261 of Ihe Civil Code.

An equitable consideration against disturbing that judgment arises, also, from the conduct of the plaintiff’s husband, who represented her, in relation thereto. It is proved that he assisted her in fixing the terms of the sale, and also at the sale itself. This was not merely a passive, but an active execution of the judgment, and would seem to be within the the purview of Article 612 of the Code of Practice.

III. It is objected, that some portions of the property were sold at prices below the estimation in the inventory. But all the parties to the partition were of full age. The absolute prohibition to sell under the price of estimation, only exists in the case of minors. 0. 0. 337. See also on this point, 11 Rob. 608. 2d Ann. 966.

Besides, the principal item of property thus sold, the Gilmore plantation, was afterwards re-sold at private sale by consent of all the parties, plaintiff joining in the same as vendor, for a largely increased price. 0. 0. 1268.

There is a bill of exceptions in the record, to the exclusion of testimony offered by plaintiff to prove that slaves had risen in value since the sale under the judgment of partition. Had this fact been proved, it would not have changed our conclusion in this case, and the exclusion of the evidence is .therefore unimportant.

Judgment affirmed.

Campbell, J.

As to whether, under the circumstances, the wife had capacity to stand in judgment.

The husband having failed to appear to assist his wife in the defence of her suit, I think it was necessary that the plaintiff should have obtained from the court an order authorizing her to stand in judgment.

Slidell, C, J.

I concur with Judge Buchanan on the first point discussed in his opinion.

My impressions are against his views on the second point. The proceedings might have been held irregular on appeal. But I do not think the irregularities such as to authorize an action of nullity and set aside the sale. Moreover, there was laches on part of plaintiff, and no equitable reason is shown to disturb the sale, and the concurrence of the husband increases the equity in favor of the purchasers. 9 L. R. 79. 10 L. R. 573. 1 R. R. 523. 3 Ann. 646. 13 L. R. 431. 5 Ann. 255. 3 Ann. 664.


source: Caselaw Access Project

author: Ogden, J.

license: Public Domain

text:
    Succession of Gaulden.—Opposition of Reynolds, Byrne & Co.
    R. B. & Co. obtained judgment against <3-. issued an execution under which the Sheriff seized a tract of land an X advertised it for sale on a day stated. By consent of the parties the day of sale was postponed; <3-. died, and his administrators sold the land which had been seized. Held: that as there was nothing to show that the property continued to be under the operation of the seizure until the opening of the succession the seizing creditor had no lien on the proceeds of sale.
    APPEAL from the District Court of the parish of East Feliciana, Sterling, J.

      E. T. Merrick, for opponent and appellant. Bowman, for appellee.
   Ogden, J.

This is an opposition to a tableau of distribution. Reynolds, Byrne dc Go. obtained a judgment against Wade 3. Gaulden, which was partially executed by taking a twelve months’ bond on the 5th of November, 1842. On the 19th of April, 1847, an execution having been sued out on the twelve months’ bond, two tracts of land were seized by the'Sheriff to satisfy the same. On the 4th of June, 1847, the day fixed for the sale, the parties in execution agreed to its postponement to the first Saturday of the ensuing month. Gaul-den consented to a further postponement to the first Saturday of September, and waived the usual advertisements. There appears to be no evidence of any other agreement between the parties in relation to the sale of the property under seizure. There is a credit of $106 endorsed on the execution by the plaintiffs’ attorney on the 22d of October, 1847. According to the Sheriff’s certificate, the execution was returned on the 6th of September, 1850, on account of the defendants’ death, as ordered by the plaintiffs’ attorney. There is an admission in the record, that the land thus seized, was sold at the probate sale of the succession on the 2d of February, 1850, for the price of $800, on a credit of one and two years, and that $458 thereof had been realized by the administrators.

The plaintiffs claimed a privilege to be paid in preference to the other creditors out of the proceeds of this sale by virtue of the alleged seizure, and prayed to be accordingly ranked on the tableau. They are appellants from the judgment of the District Court rejecting their demands. We think that the Judge a quo did not err. Nothing shows that the property continued to be under the operation of the alleged seizure until the opening of the succession. It is unnecessary for us to express any opinion, whether the privilege accorded under Article 722 of the Code of Practice to the seizing creditor, may be kept alive by the mere postponement of a Sheriffs’ sale from time to time to an unusual period, by consent of parties, so as to affect the rights of other creditors of the seized debtor.

It is threfore ordered, adjudged and decred that the judgment of the District Court be affirmed with costs in both courts.


author: Buchanan, J.

text:
    Mayor and Council of the town of Bayou Sara v. C. E. Tooraen.
    The 7th Section of the Act of the Legislature of the 13th Maxell, 1850, incorporating the town of Bayou Sara, authorizes the imposition of one tax upon a store in which goods are retailed, and not as many distinct taxes as there are distinct kinds of goods retailed in the store*
    APPEAL from the District Court of the parish of West Feliciana, Sterling, J.

      U. B. & B. Phillips, for plaintiffs. Brewer & Oollins, for defendant and appellant.
   Buchanan, J.

This is an appeal from a judgment for sixty-nine dollars, involving a question of the constitutionality and legality of taxes imposed by a municipal corporation.

The town of Bayou Sara was incorporated by Act of the Legislature of the 13th March, 1850. (Session Acts, page 76.)

By the '7th Section of that Act, the Mayor and Council of the town of Bayou Sara are authorized and empowered to lay and collect a yearly tax on all property, slaves, professions, capital and buildings, also upon all taverns, grog-shops, retailing stores, commission merchants, public houses, and also upon all public drays, carts, and wagons-, and also to lay and collect such other taxes within the limits of said town, the imposition and collection of which may not be inconsistant with the Constitution and laws of this State, for such amounts as the Mayor and Council may deem necessary, observing, however, equality in the assessment and collection thereof.” The defendant keeps one retailing store in Bayou Sara, in which a general assortment of goods is sold, as usual in country places: and he has been assessed in sis distinct retail store for the year 1852, as follows: taxes upon said

Por selling liquors, . $14 00

“ dry-goods, . 20 00

“ . groceries,. 14 00

“ hardware, ..... 7 00

“ jewelry,. 7 00

“ saddlery,. 7 00

Total, .... $69 00

and he prosecutes this appeal from a judgment condemning said taxes, on the ground that the same are illegal. him to pay the

The Statute quoted above authorizes the corporation of Bayou Sara to lay and_ collect a yearlj- tax on retail stores. This only authorizes the imposition of one tax upon a store in which goods are retailed, and not as many distinct taxes as there are distinct kinds of goods retailed in the store. Such taxation is manifestly oppressive. The subdivision of the object taxed might be carried to any conceivable extent, if this system were once recognized as correct under the law — thus instead of selling liquors, the party might be taxed for selling brandy, wine, gine, whiskey, &c., and instead of dry-goods, for selling linens, cottons, woollens, silks, &c., ad infinitum. Certainly, this did not enter into the contemplation of the legislator.

The municipal ordinance in virtue of which these taxes have been claimed is before us, and appears to have provided for the taxation of every possible kind of store — rating dry-goods stores at so much, groceries at so much, &c. We do not understand this ordinance as sanctioning a cumulation of all these different assessments upon one store, contrary to the charter above quoted. The assessor would have been simply justifiable in imposing the highest rate of taxation applicable to the store, supposing its stock of goods to have been entirely composed of either one of the numerous articles comprised in its assortment. He has not made a selection, and we cannot do so. Our duty is confined by the Constitution to pronouncing upon the legality of the tax as assessed.

It is therefore decreed, that the judgment appealed from be reversed; that there be judgment for defendant, as in case of nonsuit, and that all costs be paid by plaintiffs and appellees.


author: Vooehies, J.

text:
    Succession of Justin Petit.
    In contestations concerning the administration of successions, the Code gives the prefenence to creditors over those who are not. Art. 1089,1114.
    A special agent or attorney in fact of a creditor is not entitled to a preference over strangers.
    APPEAL from the District Court of East Baton Rouge, Robertson, J.
    Burk, for Lafon, appellant. Sherborne, for Guzman.

   Vooehies, J.

This is a contest between two applicants for the administrator-ship of the succession of JustinPetit, deceased. On the 28th of September, 1853, Ra/ymond Lafon filed his petition praying for the appointment. The usual order for public notice thereof, was granted by the Clerk of the Court. On the 3d of October following, a similar application was also filed by Gabriel Guarnan. Neither of the applicants alleged himself to be a creditor of the succession. On the 7th of the same month Guarnan filed an application in which he claimed the preference over his competitor on the ground of his being a creditor of the succession. On the same day, Lafon filed a supplemental petition, setting forth the nature of his demand as a creditor, founded on J. Petits written acknowl-edgement of indebtedness to Poussau in the sum of $800, and by the latter transferred to him on the 6th of October, 1853. Six days after, Gusman filed two notes signed by the deceased, payable to the order of _P. Langlumé and endorsed as follows, to wit: “ Par procuration de P. Langlumé, G. Gusman.” Thus it is obvious that Gusman held the notes as agent, and not as endorsee. On this state of facts Guzman was appointed administrator of the succession, and Lafon has appealed.

We think the District Court erred. It is shown that Lafon was a creditor under the alleged transfer from Poussau, the verity of which does not appear to have been impugned. In contestations concerning the administration of successions, our Code, Arts.A039, 1114, gives the preference to creditors over those who are not. A special agent, or attorney in fact, of one or more creditors, is not entitled to a preference over strangers. Even on the hypothesis that La-fon's claim as a creditor was unfounded, still, as the first applicant, he was clearly entitled to the appointment; the opposition of the other could only be sustained on the ground of his having a better right.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and that this case be remanded for further proceedings according to law, with instructions to the Judge aguo to proceed to the appointment of Sagmond Lafon as administrator of the succession of Justin Petit, deceased, as the law directs; and it is further decreed that the appellee, Gabriel Gusman, pay the costs of his opposition in both courts.


author: "Ogden, J.

text:
    Charles McMicken v. Thomas G. Morgan, Executor, et al.
    A judgment dissolving an injunction which restrains an execution, relieves the execution of the restriction, and the property being already under seizure, no further notice of seizure is necessary. An error in the advertisement not calculated to mislead, affords no ground for an injunction.
    A judgment rendered between the parties, dissolving a prior injunction, is a bar to any enquiry into the grounds for injunction existing anterior to that judgment, and of which the party might then have availed himself.
    APPEAL from the District Court of the Parish of East Baton Rouge, Pay-lies J., holding a special term to try the cases in which Robertson, J., had been recused.

      Prunot, for plaintiff and appellant. T. G. Morgan, for defendant.
   "Ogden, J.

The injunction obtained by the plaintiff in this case is the sequel of the judgment rendered in the lower Court in the suit of McMicken v. Maxent, executor, which was before this court on appeal, and is reported in 8 An. R. p. — . The plaintiff having taken only a devolutive appeal from the judgment dissolving the first injunction, the defendant, as executor of Gavallier, proceeded under the seizure which had been previously made, to cause the property to be sold, when this second injunction was obtained on the same grounds alleged in the petition for the first, with the following additional grounds based on the subsequent proceedings:

1st. That no executor could be prosecuted, if at all, except in the suit and under the judgment rendered in the case where the petitioner was plaintiff.

2d. That no legal or sufficient notice of the seizure had been given.

3d. That the Sheriff had not given a legal notice for the appointment of appraisers.

4th. That the property was not correctly advertised for sale.

The first and second of these grounds may be disposed of by remarking that the only judgment rendered in the suit to which the plaintiff was a party, was one dissolving his injunction, by the effect of which the execution enjoined was let loose, and the property being already under seizure, no further notice was necessary. The third ground of illegality is disproved by the evidence, which shows that the notice to appoint appraisers was served on an agent of the plaintiff, and was also posted up in the Clerk’s office.

The fourth and last objection made on the ground that there was no legal and sufficient advertisement and description of the property for sale, does not present any sufficient ground for enjoining the sale. The error was not calculated to mislead any one, as the property was described by its boundaries and the error was only in one and the first advertisement of the sale for cash, having been corrrectcd in the subsequent advertisements. The description of the property was correctly made in conformity with the partition which had been effected subsequent to the seizure and during the pendency of the injunction.

The peremptory exception pleaded by the defendant against all the matters embraced in the first suit, and again set up in the present one, was properly sustained. The judgment rendered between the parties, dissolving the first injunction, was a bar to any enquiry into the grounds for injunction existing anterior to that judgment, of which the party might then have availed himself.

It appears to us the injunction was obtained on insufficient grounds, and that it was resorted to, improperly, for the purposeof securing the advantage of a suspensive appeal from the judgment on the first suit, without giving the security required for such an appeal.

The Court below did not err in dissolving the injunction.

In consequence of the judgment rendered in the case of McMicken v. Maxent, executor, reducing the amount for which the execution could issue, which, however is not in evidence, the plaintiff may be equitably entitled to a reduction of the damages and interest awarded by the judgment.

It is therefore ordered, adjudged and decreed, that the judgment of the Court below be affirmed with costs and without prejudice.

      The case referred to in the text involved the question of good faith of the plaintiff; and as this depended exclusively on facts, it iras not reported. — Rep.


author: Campbell, J.

text:
    The State v. McClanahan.
    A party applying for a new trial cannot prove by witnesses the charge of the Judge to the jury. Objections to the charge of the Judge should be made before the jury retire.
    It is sufficient if the indictment, in charging the offence, states all the facts and circumstances comprised in the definition of the offence as given in the statute, so as to bring the defendant clearly within its provisions.
    APPEAL from the District Court, of the Parish of Caddo, Spofford, J.

      I. B. Morse, Attorney General, for the State. Land & Simper and Helm, for defendant a,nd appellant.
   Campbell, J.

The defendant was indicted under the 23d Sec. of the Act of May 4, 1805, for unlawfully, on purpose and of his malice aforethought, disabling the hand of Andrew Hart, with the intent in so doing, of disabling the said Hart.

The defendant was found guilty and sentenced to imprisonment at hard labor for two years.

From this sentence, after ineffectual attempts to obtain a new trial and to arrest the judgment, this appeal has been taken.

The application for a new trial is based on what is alleged to have been an improper charge of the Judge to the jury. On the trial of the motion, the accused offered witnesses to prove the charge of the Judge. Their testimony was rejected ; and to this defendant excepted. This testimony was properly excluded. No instructions appear to have been asked, nor objections urged, nor reservations made, nor bill of exceptions taken or tendered to the charge of the Judge, before the jury retired.

If not satisfied with the charge, objections should have been urged before the jury retired, to enable the Court to correct any erroneous instructions which it may have given. This not having been done, the alleged error cannot be examined.

Buel v. Steamer New York, 17, La. 541. To trust the charge of the Court to the doubtful and fallible memory of the by-standers, would be improper and a dangerous innovation.

It is urged in arrest of judgment, that the indictment is defective, it not containing a certain description of the offence, the instrument or means used in disabling the hand not being stated, nor the injury done, set forth with sufficient particularity. In other words, that there is no statement of the weapon used or description of the wound inflicted.

It is contended by the counsel of the prisoner that the offence charged is the common law offence, of mayhem, and that, in obedience to the general rule of criminal law, which requires that the special manner of the whole fact should be set forth with certainty, the indictment would have contained a certain statement of the instrument or moans used and the nature of the injury, and this, not as a matter of mere form, but of strict law.

If the indictment were for mayhem, as known to the common law, the principle invoked would be applicable, and require the arrest of judgment. This, however, is not the case. The statute on which the indictment is formed is in the following words : “If any person or persons, on purpose and of malice aforethought, shall unlawfully cut or bite off the ear or cars, or cht but hr disable the tongue, put out an eye, while fighting or otherwise, slit the nose or ja, lip out or bite off the nose or lip, or cut off or disable any limb or member of any person, with intention in so doing, to maim, disable or disfigure,” &c. This statute creates distinct offences which it defines, most of them differing materially from the common law offence of mayhem. To disfigure, is made as penal as to disable; and against the injury to a part of the body not necessary to one’s defence, is denounced the same penalties as are inflicted for disabling a member necessary for his defence in fighting.

If the statute had adopted the common law offence, by affixing a penalty to mayhem, withoutotherwise defining the crime, all the common law requirements should be followed in the indictment. State v. Abrence, 4 Port., 397 ; State v. Slidman, 7 Port., 495. Thus the statute of 1805 affixes the punishment of death to wilful murder, without attempting to define the crime, and here, no doubt, a description of the manner in which the party came to his death, the means, the weapon used, if any, the description of the wound would be essential; but in an indictment under a statute, it is sufficient if the indictment, in charging the offence, follows the statute; that is, that it states all the facts and circustances comprised in the definition of the effence as given in the statute, so as to bring the defendant clearly within its provisions.

The general rule is, (and this, whether the indictment be under the common law, or for an offence created by statute,) that the special manner of the whole fact ought to be set forth, with such certainty and so specifically, that it may judicially appear to the Court that the indictors have gone on sufficient premises, to enable the Court to know what judgment is to be pronounced on conviction ; that the defendant may clearly understand the charge he is called upon to answer, and that posterity may know what law is to be derived from the record. 2 Hale, 183, 184; Hawk. b. 2, c. 25, s, 87; Lambert v. The People, 9 Cow., 578.

If the circumstances are constituent parts of the offence, they must be set out; but where the crime exists without them, this is not necessary ; though from the precedents, it would seem to be the usual practice of the pleaders. Camp., 688. For example : It was held in the case of the State v. Dent, 3 Grill & John., 8, that in an indictment for an assault with intent to murder, it is not necessary to state the instrument or means made use of by the assailant to effect the murderous intent; that the means of effecting the criminal intent, or the circumstances indicating the design with which the act was done, are matters of evidence to the jury to demonstrate the intent, and not necessary to be incorporated in the indictment.

In the case of the State v. Briley, 8 Port., 473, which was an indictment under the Alabama statute for an assault and disabling the arm of the party injured; Goldthwarte, J., says: “ The statement of the assault and battery with the stick and breaking the arm” (the weapon and means used and the character of the injury) “are but a history of the violence, which could have been omitted." It would, says the same Judge, at all times, be exceedingly difficult to frame an indictment with a view to a specific description of the exact injury sustained. This precision of description is as unnecessary as it is dangerous in the indictments on statutes; and ah that the law requires is a description of the offence in the words of the statute creating it. Arch. O. L., 52.

Under our statute, the offence is complete if a person on purpose and of malice aforethought, unlawfully disables any member of another person, with intent to disable him. It is immaterial by what means, or with what instrument, the injury is effected, or the nature of the wound. If it in effect disables, it is sufficient. The weapon used, etc., may aid at arriving at the intent, but, as has been seen, this need not be alleged. People v. Bush. 4 Hill’s (N. Y.) 133.

The essentials of the offence, as defined in the statute, are set forth in the indictment fully and with precision. ¥e therefore concur in the order of the District Judge, refusing a new trial and overruling the motion in arrest, and decree that the judgment appealed from be affirmed, with costs.


text:
    Mary Ann Gilmore v. Menard & Vigneaud.
    A mortgage granted by one of the heirs on his individual share of the property belonging to the succession, cannot effect the right of the other heirs to demand a sale of the property to affect a partition.
    APPEAL from the District Court of the Parish of Bast Baton Rouge, Robertson, J.

      J. W. Seymour and J. Jones, for plaintiff. G. S. Lacey, for defendant and appellant.
   Ogden, J.

The defendants obtained an order of seizure and sale, which the plaintiff enjoined as purchaser and third possessor of the property seized. The plaintiff derived her title from a judicial sale of the succession of John Gilmore, made to effect a partition among their heirs, and the defendants had a special mortgage on the undivided interest of one of the heirs, which they sought to enforce, notwithstanding the judicial sale, which they assumed the right to treat as a nullity, on the ground of certain defects and irregularities in the proceedings, by virtue of which the sale took place.

The alleged nullities are the same which were made the ground of an action on the part of one of the heirs to set aside the sale in the case of Susan Gilmore et al. v. John A. Gilmore, ante p. 197, in which, by the final judgment of this court, the validity of the sale has been maintained. We are of opinion that the mortgage granted by one of the heirs on his undivided share of the property belonging to the succession, could not affect the right of the other heirs to demand a sale of the property to effect a partition.

The debt for which the order of seizure and sale issued, was paid to the de - fendants by their debtor, after the injunction was obtained, and by consent of parties, an order entered perpetuating the injunction, with a reservation to both parties to claim damages and costs upon the issues made in the suit.

The court below did not err in the judgment finally rendered, perpetuating the injunction at the costs of the defendants.

The judgment is therefore affirmed, with costs.


author: Slidell, C. J.

text:
    Eliza Scott et als. v. R. S. Key.
    Where the administrator received letters of administration, inventoried the property, and entered upon his administration in good faith,believing the property to belong to the succession of tho deceased, he should be sued by a party setting up title to the property, as administrator, and not personally.
    APPEÁL from the District Coui't of the Parish of Carrol!, Perldns, J.

      Short & Parham, and F. M. Goodrich, for plaintiffs. Louis Selby, for defendant and appellant.
   Slidell, C. J.

The plaintiffs allege they are heirs of Samuel Fstill and, as such, claim from the defendant the delivery of certain slaves left by the deceased in the parish of Carroll, at his death, compensation for the reasonable value of their services while in the possession of defendant until their delivery, and the value of certain movables of said deceased, which it is alledged the defendant has sold. The petition suggests that the defendant pretends to hold as administrator of William Fstill, deceased, but says the latter was incapable of inheriting from his natural father Samuel, and treats the defendant as a mere wrong doer, liable in his personal capacity.

The defendant pleaded as an exception to the action, that he could not be sued personally, but only as administrator, in which capacity alone he had received possession of the property.

This exception was, we think, improperly overruled by the District Judge; but for its better understanding, a statement of the facts is necessary.

Samuel Fstill was formerly a citizen of Arkansas, and was living there in 1835 with William, his natural child, when a statute was passed by the State of Arkansas in these words: “ Be it enacted, &c., That William, the infant son of Samuel Fstill, be, and he is hereby made the legal heir and representative of the said Samuel Fstill, in as full and ample manner as though ho had been such from his birth; and he shall be capable of inheriting the estate of the said Samuel Fstill, in as full and ample a manner as though the said Samuel Fstill had been married to his mother at the time of his birth, and the said William shall hereafter be called and known by the name of William Fstill. This act shall be in force from and after its passage.”

Some years after this, Samuel came to Louisiana, acquired a domicil in the parish of Carroll, and thero died in 1849, leaving in said parish an estate consisting of lands, slaves, cattle, furniture, &c., which were inventoried in that parish, and are the subject of the present controversy. In the same year, letters of administration were granted to William Fstill, who, in that capacity, took possession and administered the estate. He filed soon after an account of his administration, suggesting in his petition that he was the sole heir of the deceased, and praying that his account be approved and his official bond discharged. A judgment approving his account, and discharging him as administrator, was rendered and signed by the clerk of the court. However informal this may have been, it is manifest from the evidence that William subsequently believed himself to be and acted as owner, and remained in possession of the whole estate until his death, in the same parish, in 1850; when B. S. Key was appointed his administrator, and the property thus found in possession of Wil liam at the time of his decease was inventoried, as the property of William's succession. The evidence authorizes the conviction, that Key received his letters of administration, inventoried the property, and entered upon his administration, in good faith, believing the property to belong to the succession of William EstiTl, It is proper to add, that in this capacity, he has paid debts of William's succession, and incurred liabilities as administrator.

Under these circumstances the action of revendication and for account, should, in our opinion, have boon brought against Key in his capacity of administrator, and against the heirs of William Estill, if any there be (O. P. 123) ; and the plaintiffs have no right to treat Key as a mere trespasser, even supposing that William Estill was not the lawful heir of Samuel, upon which point we express no opinion.

It is therefore decreed, that the judgment of the District Court be reversed, and that there be judgment as in case of nonsuit; plaintiff paying costs in both courts.


text:
    W. Whitehead, Receiver, v. T. R. Wiley.
    The nullity resulting from a judicial sale on which the price bid does not exceed the prior conventional mortgages is relative only.
    Article 684 of the Code of Practice declares that if the price bid at the Sheriff’s sale does not exceed the amount of mortgages having a preference over the seizing creditor, “ the adjudication shall be null.” This is a prohibitory law, and whatever is done in contravention of a prohibitory law is void, although the nullity be not formally pronounced by the law itself. Buc7icmcm, J., dissenting.
    A purchaser in good faith, to whom property has been adjudicated, for a price less than the mortgages, having a preference over the seizing creditor, can not be compelled to give up the property without being refunded the price which he has really paid. Buchmim,, J., dissenting.
    APPEAL from the District Court of the parish of Madison, Perkins, J.

      Stockton & Steele, for plaintiff. Stacy & Spa/rrow, for defendant. J. B. Bemiss, curator ad hoe, for Latham.

   Slidell, C. J.

The plaintiff obtained in May, 1845, a judgment against Nicholson Barnes, which was recorded in the parish of Madison in June, 1845. In 1850, he brought this action, in which he claims a judicial mortgage upon a tract of land in the parish of Madison, in possession of Wiley.

Wiley bought the land of Harney Latham in 1849 ; and Latham bought in February, 1845, at a sale made by the Marshal of the United States upon a judgment and fi. fa. in the suit of Putnam v. Barnes. Latham paid the amount of his bid, took possession, and received a deed from the Marshal, which was recorded in February, 1845.

It is said the Marshal’s sale was a nullity, because the price bid did not exceed a prior conventional mortgage. It was not an absolute nullity, and neither the defendant in execution nor the mortgage creditor have over objected. On the contrary it appears from the evidence that both consented, and a few days after the Marshal’s sale the holder of the mortage, in pursuance of a previous understanding, executed a release of the mortgage so far as it bore on the land bought by Latham.

Tinder these circumstances we think there was a divestiture of Bernes' tito, accompanied by registry and possession, before the plaintiff recorded his judgment, and therefore his claim of judicial mortgage upon the land in question was properly refused. See Whitehead v. Gaines.

It is proper to observe that the petition contains no charge of fraud, and does not present a case of the revocatory action.

Judgment affirmed, plaintiff to pay cost of appeal.

Buchahan, J. dissenting. The Article 684 of the Code of Practice declares that if the price bid at the Sheriff’s sale does not exceed the amount of mortgages having a preference over the seizing creditor, “there shall be no adjudication.” This is a prohibitory law. And whatever is done in contravention of a prohibitory law is void, although the nullity be not formally pronounced by the law itself. 0. 0. Art. 12.

A series of decisions upon the construction of this Article has settled that in the contingency spoken of, there is in contemplation of law, no sale of the property.

Thus in Perry, syndic, v. Holloway, 10 Rob. 110, the court said, “According to Articles 683 and 684 of the Oode of Practice, privileges and special mortgages on property offered for sale by the Sheriffs in favor of other persons than the seizing creditor and which are preferred to him, form essentially a part of the price for which it may be sold, and it cannot be sold, unless something was offered over and above their amount.”

Again, in the same case, “ There having been no sale, the property remained that of Powell." This was a case where the syndic of Powell's creditors was seeking to reduce to possession and succeeded in doing so, the property sold, for the benefit of all the creditors; and as in the present case the judgment debtor was fully consenting and combining with the purchaser; and as to the previous mortgage, the case is stronger than the present one, for it turned out to have been simulated and unreal.

In Fernandez v. Bein, 1 Ann. 32, and Trudeau v. McVicar, 1 Ann. 426, the purchaser at Sheriff’s sale for a price below the amount of previous montgages was allowed to repudiate the purchase, on the ground that there was no valid sale; although in the latter case, he had actually given a twelve months’ bond for the price, which had run to maturity.

And in the cases of Landreaux v. Hazleton, 1 Martin N. S. 600. De Armas v. Morgan, 3 N. S. 604, and Balfour v. Chew, 4 N. S. 162. The same construction was put up on the Statute of 1817, which is substantially the same as Article 684 of the Code of Practice.

Equity, however, requires that in annulling the sale, in cases where there has been no fraud, the purchaser should be restored to his position at the time of the sale. Thus the purchaser should not be compelled to give up the property without being refunded the price which he has really and truly paid. And as, in the present case, fraud is not proved, nor even alleged, restitution of the price or at least good security for its restitution, ought to have been tendered to defendant at or before the institution of the suit, by a creditor who seeks to hold the property as still liable for the payment of his claim, notwithstanding the adjudication by the Sheriff. 6 Ann. 255. For want of such tender, I think the judgment should be one of nonsuit.


text:
    Whitehead, Receiver, &c., v. Ambrose Cramer.
    Whatever right or title a person, may have to property which he sells as the agent of another, passes by the conveyance as completely as if it were sold in his own name.
    Property sold under a twelvemonths’bond maybe adjudicated for whatever it will bring, but if there are anterior special mortgages, such mortgages form an essential part of the price and there can be no adjudication unless the amount bid is sufficient to discharge such anterior mortgages; but an adjudication for less than the prior special mortgages is a relative nullity and one who was neither the owner of the property nor had any real right in it, must show fraud, and injury to him resulting from such fraud to entitle him to annul it.
    APPEAL from the District Court of the parish of Madison, Perlcim, J.

      Stockton & Steele, for plaintiff. Short & Pcurham, for defendant.
   Ogden, J.

This suit was brought against defendant Oramer, as the party in possession of certain property which the plaintiff seeks to subject to a judicial mortgage resulting from a judgment in his favor against Nieholson Barnes, recorded in the parish of Madison where the land is situated, on the 4th of June, 1845, at which date the plaintiff alleges the property belonged to Nieholson Barnes — Gramer being in possession only as overseer of the plantation, entered a disclaimer and the suit is defended by the tutor of the minor heirs of Wm. G. and Mary G. Demoss for whom he held possession. The answer sets up title to the property in Mary G. Demoss at and before the date of the registry of the plaintiff’s judgment, first under an act of sale from Nieholson Barnes as agent of Benjamin Lee, bearing date the 17th of October, 1844, to the said Mary G. Demoss and secured under a deed from the Marshal of the United States for the Eastern District of Louisiana, by which he conveyed the same property to Man'y G. Demoss as the purchaser at an adjudication made by him in the execution of a writ of fieri faeias, which issued from the Circuit Court of the United States in said district at the suit of A. W Putnam v. Nicholson Barnes and Lessee Stansbourgh. The transfer which Barnes as agent of Lee made to Mrs. Demoss, being an act under private signature and not having been duly recorded as required by Article 2417 of the Civil Code to give it effect against creditors and third persons, the effect of a judicial mortgage on the property is claimed in favor of the plaintiff’s judgment against Barnes, notwithstanding he had ceased to be the actual owner, when the judgment was obtained against him, and although the Marshal’s deed to Mrs. Demoss, which is prior in date to plaintiff’s judgment, was put on record in the parish of Madi son previous to either the rendition or the registory of the plaintiff’s judgment against Barnes; it is contended that no effect can be given to it, in consequesce of what is alledged to be, a radical and absolute nullity in the Marshal’s sale. Before proceeding to consider whether the adjudication of the. property by the Marshal to Mrs. Demoss can be treated as entirely null and void, we will settle the question as to the actual ownership of the property, at the time of the registry of the plaintiff’s judgment. Nieholson Barnes as the agent of Benjamin Lee, had entered into an agreement with William G. Demoss as the agent of his wife, Mary G. Demoss, by which, this with other property mentioned in the agreement was sold to Mrs. Demoss, and by which Barnes bound himself in the penal sum of $20,000 to perfect the title to the property, and to deliver possession on the 1st of January, 1845, and in consideration thereof, Demoss obligated himself to pay the sum of ten thousand dollars, at stipulated periods, and to convey to Barms a tract of land containing four hundred and fifty acres, known as the Levy Place, situated in the parish of Madison. It was farther stipulated between the parties, that Demoss should retain a lien on the land thus to be conveyed to Barnes, until he, Barnes, should perfect the title to the property conveyed by him in said agreement to Mrs. Demoss. Under this agreement, Demoss took possession of the land in controversary, on or about the first day of January, 1845, a few days before the United States Marshal’s sale. The agreement by Demoss to convey to Ban'nes the tract of four hundred and fifty acres was equivalent to a sale and having obligated himself to pay $10,000, and by the consent of Barnes, taken possession of the property conveyed to his wife — there remained nothing to be done, to complete the sale as between Mrs. Demoss and her vendor- — but as encumbrances existed on the property, it was in the contemplation of the parties and so agreed, that Barnes should perfect the title. Although the sale was made by Barnes as the agent of Lee, it cannot be doubted that whatever right or title, either in law or equity, he might himself have had to the property, and which his creditors could have claimed to subject to the payment of their debts, passed by the conveyance to Mrs. Demoss in as full and complete a manner, as if the sale had been made in his own name and not as agent of Lee. It is not charged, that there was any design to defraud any creditors of either Lee or Ban'nes and the transaction being untainted with fraud, must be viewed in the light of a complete divestiture of title so far as regards either Lee or Barnes, in favor of Mrs-Demoss.

It rqffiains then to be considered, whether the failure to record this private agreement until after the registry of the plaintiff’s judgment, was remedied by the subsequent title acquired under the Marshal’s sale, which was duly recorded before the plaintiff’s judgment. The alleged defect in the Marshal’s sale, is, that the property was sold for an amount less than a previous special mortgage existing on the property, and having priority over the seizing creditor, as shown by the certificate of mortgages. There existed at the time of sale a special mortgage, having precedence over the plaintiff of $23,440 68, in favor of Asher Moses Nathan, the Marshal’s return show's that the property was adjudicated to Mrs. Demoss as the highest bidder for $1500; the Sheriff’s deed of sale recites, that the property was adjudicated for that price, subject only to one mortgage, to wit: the mortgage of Asher Moses Nathan, for the sum of $23,440 68. As the sale was not made subject to the payment of this prior special mortgage, which the price at which the property W'as adjudicated was insufficient to discharge, according to the well settled jurisprudence on this subject, the sale was irregular and might be set aside, by a party who could show such an interest existing at the time of the sale, as would entitle him to set up this defect against it. The sale was made under a twelve months’ bond and therefore without the benefit of appraisement. The property at such a sale may be adjudicated, for whatever it will bring, but if there -are anterior special mortgages, such mortgages according to the doctrine held by our courts, form an essential part of the price, and there can be no adjudication unless the amount bid is sufficient to discharge such anterior mortgages. In the case of DeArmas v. Wagner, 3 Mart. N. S. 606, where the amount bid was less than the anterior special mortgage — the court held there was no sale, and Judge Martin who delivered the opinion of the court, states with clearness and pre-cisión the true and only foundation of the rule, which has been uniformly adhered to on this subject. He says that if the Sheriff sell property subject to a special mortgage and there is no surplus after paying the mortgage, there is then no price, which is the essence of every sale and such a sale would be useless to the plaintiff and oppressive to the defendant, and when the price bid is less than the amount of the special mortgage, the sale would be destructive of the right of the mortgage. This view taken by the court, at that early period of our Jurisprudence, has been adhered to in all its subsequent decisions, and shows that the provisions of law on this subject were designed exclusively for the interest and protection of the defendant in execution and of mortgage creditors, except in the intent and for the protection of the owner of the property and those having real rights on it growing out of mortgages, no reason exists for a law prescribing that property seized in execution shall be sold under certain formalities and for a certain price. The pain of nullity which has been denounced when such requisites have not been complied with, has always been decreed in the interest of parties in that relation and as there exists no motive of public policy, nor any reason of public utility for the prohibition to adjudicate the property at Sheriff’s sale for less than the amount of the prior special mortgages, the nullity is only relative and cannot be provoked by any other persons than those in whose interest the prohibiton was made.

Toullier treating on the subject of absolute and relative nullities, says: “Mais, d’un autre cóté, ce raisonnement trop subtil et fondé sur une théorie purement abstraite, est détruit dans la pratique par l’expérience et l’observation qui démontront que l’intention du législateur n’a pas toujours été d’an-nuler les actes défendus par la loi, ou dans lesquels on á omis quelques forma-lités qu’elle prescrit; que ce serait méme souvent aller contre son voeu et com-mettre des injustices. Le législateur, en défendant ou en commandant un acte, peut n’avoir voulu que donner l’ordre ou le droit de s’y opposer, ou bien de soumettre celui qui l’aurait fait ou omis aux dommages et intéréts des person-nes qui blessent son action ou son omission; il peut aussi avoir voulu que ces actes soient nuls et sans effet. C’est done a lui de manifester sa volonté sur ces différens points, et surtout de la manifester claíroment; car, plus vigou-reusement encore qu’un simple citoyen, le législateur est tenu de manifester sa volonté, de maniere que les sujets ne puisse se méprendre sur le sens de la loi. Autrement, ses dispositions devendraient des piéges tendus á la simplicité.”

Toullier on Obligations, 2 vol. No. 481.

In the cases of Loucks v. The Union Bank of Tennessee, and Robinett v. Compton, 2 Ann. R. 617 and 861, when the property had been sold at Sheriff’s sale for less than the amount of previous special mortgages, it was held by the court, in conformity with this view of the law, that as those mortgage creditors were not injured and did not complain, the sale could not be set aside on the ground of the insufficiency of the price. It results from this exposition of the law, that a party who seeks to annul a judicial sale on the ground of noncompliance with the requisites prescribed by law for the validity of such sales and who neither was the owner of the property nor had any real right in it, must show fraud and injury to him resulting from such fraud, to entitle him to succeed. In the present case, fraud is neither alleged nor proved, and without fraud, there could not have been any injury of which the plaintiff would have had a right to complain. It is shown by the evidence that the special mortgage in favor of Nathan has been satisfied and no complaint is made by any of the persons having judicial mortgages on the property. The defendant in the execution could not be heard to complain of the insufficiency of the price, as the property was sold for $1500 in cash, which was paid to the seizing creditor and he had previously received from Mrs. Demoss a full consideration for the value of the property, and was bound by his agreement to discharge all the mortgages resting on it.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be affirmed with costs.

Buchanan, J., dissenting. Eor the reasons given by me in the case of Whitehead v. Wiley I think the judgment instead of being a final judgment for defendant, ought to he one of nonsuit.

       See the preceding case. — Hep.


text:
    N. S. Hall v. J. A. S. Acklen.
    TÍe Magistrate, by whom a commitment was signed, had removed from the parish; the constable and jailor proved that the original commitment was no longer in their possession. Held: A copy from the original, taken while in the hands of the officer to whom it was addressed, was, under these circumstances, admissible in evidence to show that the plaintiff was arrested and imprisoned by virtue of a warrant which purported to have been issued on the affidavit of defendant. Held., also: The commitment alone was not evidence sufficient to establish the fact that the defendant was the prosecutor, or that he had made such an affidavit as is recited in it. The affidavit itself, or prool by an examined copy, was the proper evidence, and the only admissible documentary evidence to establish,per <$e, that the defendant was the prosecutor.
    In an action for false imprisonment, facts which furnish evidence that the defendant was the prosecutor, and that the arrest and imprisonment were made on the charge as stated in the commitment, are admissible, unless it can be shown that it is in the power of the plaintiff to produce the affidavit itself, on which the commitment issued.
    The rule, which requires that the best evidence must be given of which the case is susceptible, only applies to exclude secondary evidence, where better evidence is in the possession or power of the party offering it.
    Plaintiff’s counsel was to receive 25 per cent, on the amount recovered. JECdd: That the interest he had in the result rendered him incompetent to testify.
    The defendant, who answers a rule taken on him to show cause why depositions should not he read in evidence, and states his objections, does not lose his right to urge his objections by failing to have the rule disposed of before the trial.
    I?o order of the Court is necessary, where the commission issues within the State; nor is it necessary that the defendant be notified of the time and place of taking the depositions.
    If the plaintiff had been indicted for the offence and tried, and, upon all the evidence, the jury had deliberated as to his guilt, that fact would be admissible as evidence of a probable cause. But doubts which the Judge may have entertained and expressed on a preliminary investigation, not Involving all the evidence, as to the guilt or innocence of the accused, ought not to be received as want of probable cause in an action for malicious prosecution.
    In an action for malicious prosecution, the plaintiff is bound to prove both malice and want of probable cause. But malice may be inferred from the want of probable cause. It is an inference which the jury may or may not draw from the want of a probable cause.
    APPEAL from the District Court of the parish of West Feliciana. This cause was tried by a jury before Sterling, J.

      Gyrus Satliff, for plaintiff,
    on the point of malice, cited 2 Starkie on evidence, 912, 913, 915, 916, 918, 921, marginal page; Grant v. Deuel, 3 R. R., 17; S A. R., 713 ; 12 R. R., 162; C. C., 2294; 4 A. R., 377.
    The question of damages for false imprisonment, and in fact, all questions sounding in damages, are the exclusive province of a jury to determine. They are selected from the vicinage. They see and hear the witnesses testify, weigh their credibility, their intelligence, and their opportunity of knowing and understanding the facts they are called upon to determine. Great weight should be given to their determinations on questions of damages. Much that the jury sees and hears from the mouths of witnesses, can never be transferred to the record. Therefore, great deference is always paid to their decisions on questions of damages, by courts of justice. 11 M. R., 189. 8 L. R.,. 26. 9 L. R., 162, Petyvan v. Winter, 6 L. R., 660. 8 L. R., 64,
    Defendant objected to the evidence of Oapt. Andrew Worley and others, taken under a commission, on the ground that said interrogatories were filed before the service of the petition and citation,, and reserves the right of being notified of the time and place of taking said testimony, but declines propounding cross-interrogatories. Petition and citation was served 26th May, 1862. The interrogatories were filed the same day the petition was filed. When the testimony was returned, plaintiff took a rule upon defendant, to show cause why the testimony should not be used as evidence on the trial. Defendant answered the rule, and showed for cause, that no order of court had' preceded the commission, and no notice of the time and place had been given of the taking of the testimony. This answer was not urged before going into the trial,' and -when the evidence was offered, objection was then urged for the first time. Court overruled the objection, upon the ground that they had gone to trial without requiring a decision on their objections. In this there is no error. 6 N. S., 213. 11 R. R., 203, 3 R. R., 13. By the Act of 20th March, 1839, commissions to take testimony can be taken out at any time after the seiwice of petition and citation. Shows clearty that the interrogatories can be served before the commission issues. This was done 4 R. R., 1 C. P. 426, 428. See Act of 1839, p, 168, sec. 17.

      Brewer & Oollins and Phillips, for defendant and appellant;
    “ There must he some positive evidence to show that the prosecution was groundless. It is not every verdict of not guilty, nor even subsequent proof of complete innocence, that shows a want of probable cause in the incipient stages of the prosecution.” Grant v. Deuel, 3 Rob., 18. 2 Starkie on Slander, 66.
   Ogden, J.

This is an action of damages for false imprisonment. The defendant pleaded the general denial, and the jury have fround a verdict against him for twelve hundred and fifty dollars. -A motion for a new trial was made, which having been overruled, the defendant has appealed from the judgment rendered in accordance with the verdict.

The first question is whether the defendant was the prosecutor and made the affidavit on which the plaintiff was arrested and imprisoned. A cópy of the commitment was received in evidence which recites that the plaintiff, S. 8. Sail, had been arrested on the information of Joseph A. 8,1 Achlen, made on oath before the magistrate, charging the said Hall with having, on or about the 12th of March, 1862, taken possession of a certain tract of land, leased by Aelelen from A. D. Woold/ridge, Chief Engineer of the State. The copy is certified by the constable to whom it was addressed, to be a true copy of the original commitment in his hands, and is shown to be the same copy which was appended to a petition for a writ of habeas corpus, presented by the plaintiff, while in imprisonment, and it is also sworn to be a true copy, by the constable, who was introduced on the trial as a witness. The defendant objected to its reception, on the ground that it was not the best evidence ; that the original should have been produced or accounted for, and1 also that it was not the best evidence to show that defendant was the prosecutor. The court below received it, .with the restriction that it was not proof, per se, of the defendant being the prosecutor or that the plaintiff was imprisoned at his instance, and to.this ruling the defendant excepted.

The rule which requires that the best evidence must be given of which the case is suceptible, only applies to reject secondary evidence where better.evidence is in the possession or power of the party offering it, and where there is a well grounded belief that the original of a document of a public nature is kept back by a design, even a sworn copy would be inadmissible.

The copy offered in evidence was taken from the original commitment while in the hands of the officer to whom it wiasaddresed. The magistrate by whom it was signed, had removed from the parish, and the constable and jailer were both interrogated as witnesses, and proved that the original was no longer in their possession. The copy of the commitment was, under these-circumstances, admissible in evidence to show that the plaintiff was arrested and imprisoned by virtue of a warrant which purported to have been issued on the affidavit of the defendant

The commitment alone, however, was not evidence sufficient to establish the fact that the defendant was the prosecutor, or that he had made such an affidavit as is recited in it, and the Court imposed the necessary restriction in receiving it. The affidavit itself, or proof by an examined copy, was the proper evidence and the only admissble documentary evidence to establish, per se, that the defendant was the prosecutor, 2 Starkie on Evidence, p. 918. If there had been no other evidence of that fact but the commitment, the action could not be maintained, but evidence was received on the trial without objection, to prove facts which show, in connexion with the commitment, that the plaintiff was arrested at the instance of the defendant. The presence of the defendant at the office of the committing magistrate, and his employing counsel to oppose the application of the plaintiff for his discharge on a writ of habeas corpus, when the same copy of the commitment, used as evidence in this case, -was used in suing out the writ, are facts which furnish conclusive evidence of the defendant’s being the prosecutor, and of the arrest and imprisonment having been made on the charge as stated in the commitment. Unleess it could have been shown that it was in the power of the plaintiff to produce the affidavit itself, this species of evidence was free from objection. The fact is also shown by other evidence, to which no objection was taken, on the ground that the affidavit itself should have been produced.

There are three other bills of exceptions on the part of defendant to the reception of evidence.

1st. The exception, we think was well taken, to the competency of Cyrus Bailiff, the plaintiff’s counsel, as a witness, on the gound that by his agreement with the plaintiff, he was to receive 25 per cent, on the amount recovered in the suit. The interest he had in the result rendered the witness incompetent, but he has deposed to no material fact which is not proved by other testimony,

2d. The testimony of Andrew Worley, Beter Hearn and John Hoplcins, taken under commission, was objected to on the following grounds: 1st, that the commission issued without any order of court; 2d, that no notice of the time and place mf taking this testimony was given to defendant or his counsel, although they had declined filing cross-interrogatories, and reserved the right of being notified of the time and place of taking the depositions. The court below overruled the objections on the ground that the defendant had answered to a rule taken on him, to show cause why the depositions should not be used, by stating these objections, and had lost his right to urge them by failing to call up the rule and have it disposed of before the trial. ¥e think his honor erred in overruling the objections on that ground, but the objections in themselves were untenable; the commission was issued within the State, and no order of court was necessary, nor was it necessary that the defendant should be notified of the time and place of taking the depositions. The evidence was therefore properly received.

8d. The defendant offered to prove by the Jndge himself and by witnesses who were present on the. trial of the habeas corpus, that the Judge, in pronouncing his opinion, discharging the plaintiff, expressed a doubt as to his guilt. The testimony, we think, was properly rejected. The facts proven on the trial of the writ of habeas corpus were not taken down in writing, and it could not appear on what state of facts the Judge then formed an opinion. He might have entertained doubt from the absence of facts which were not shown on that trial, but which are shown on this. The trial of a writ of habeas corpus does not involve a decision on all the facts tending to establish the guilt or innocence of the accused. If the plaintiff had been indicted for the offence and tried, and upon all the evidence, the jury had deliberated as to his guilt, that fact, it appears, by the authorities cited, would be admissible as evidence of a probable cause. Starkie on Evidence, 2d vol., 916. But doubts which the Judge may have entertained and expressed on a preliminary investigation, not involving all the evidence as to the guilt or innocence of the accused, ought not to be received as evidence of probable cause, in an action for malicious prosecution. And when, as in the present case, it is the same Judge presiding over the trial before the jury, it would be manifestly improper to permit his opinion to exercise any influence over the jury, except by the expression of it while in the proper discharge of his duties as Judge.

On the merits, it appears, by the evidence, that the plaintiff was arrested, taken to a considerable distance before a magistrate and committed to prison, where he remained for the space of five days, on the charge of having taken possession of a tract of land on the Mississippi river, which the State recently purchased for the purposes of internal improvement, and which the defendant claimed to have leased from A. D. Wooldridge, Chief Engineer of the State. The document offered in evidence to establish the lease, is an act under private signature, in the following words: “Ihereby authorize Joseph A. 8. Achlen to take possession and have entire control of a certain piece of land belonging to the State of Louisiana, on the east bank of the Mississippi river, near the Raccourci cut-off, and to continue in possession of the same till it is disposed of by the State of Louisiana.” signed A. D. Wooldridge, State Engineer, dated 28th Eeb., 1852, and appears to have been placed on record in the office of the Recorder of West Feliciana on the 30th March, 1852, the day after the plaintiff was arrested. This act, as appears on the face of it, was not a lease of the land. %

The arrest was made under the 4th sec. of an Act of the Legislature, of the 6th April, 1843, Session Acts, p. 79, which provides “That any person who shall, after the passage of this Act, take possession of any tract of land, or any part thereof, or of any house or tenement, being the property of another person, without any legal right to do so, shall be guilty of a misdemeanor, and on conviction thereof, shall be punished by fine or imprisonment, or both.” The first section of this Act makes it a misdemeanor, punishable by fine or imprisonment, to cut or carry away timber growing or lying on the land of another. By an Act of the Legislature, passed the 17th March, 1852, but which had not the effect of a law at the date of the plaintiff’s arrest, it is made a penal offence to cut down or destroy timber on any land belonging to the State, for the purpose of trading or selling the same. These are the only laws having any bearing self justified in causing him to be arrested and imprisoned, on the charge of taking possession of the land. whatever on the offence the plaintiff was? charged with having committed, and the only evidence offered to show that he had violated any of them, was that he had charge and possession of a steamboat hull, loaded with cord-wood, which was moored and fastened to the river bank in front of the land belonging to the State. The plaintiff was employed as a hand by Capt. Worley, to whom the boat belonged, and in the absence of his employer, on being notified by the defendant’s agent to remove the boat, he promised to do so on the return of Capt. Worley, or sooner, if he could charter a boat to remove her. Having failed to do so, after Capt. Worley had returned, the defendant thought him-

The plaintiff had committed no offence under any of these statutes, and when arrested on the boat of his employer, moored at the river bank, he was as much under the protection of the law, as if he had been in his own house. It has not been seriously contended before us that the plaintiff was guilty of any offence against the law, but it is contended that in an action like this the plaintiff is bound to prove both malice and want of probable cause, and that he has failed to do so. Both of these ingredients, it is conceded, are by clear authority indispensable to entitle a plaintiff to recover in an action for malicious prosecution.

It is, however, equally well settled that malice may be inferred from the want of probable cause. It is an inference of fact which the jury may or may not draw from the want of a probable cause. We have no reason to believe the jury was not properly instructed in the charge given to them by the Judge, and by their verdict it appears they did infer malice from the total want of any legal ground for the imprisonment. See Johnson v. Chambers, Iredel’s N. C. Reports, 10th vol., p. 287.

The defendant does not appear to have acted on the advice of counsel before causing the arrest and imprisonment of the plaintiff, although it is shown he employed counsel to oppose the plaintiff’s discharge on the habeas corpus. The question, therefore, how far a party who causes another to be illegally arrested may be protected, or how far he may have the right to claim a mitigation of damages, by showing that he acted on legal advice, does not arise in this case.

The verdict met the sanction of the Judge who tried the cause and carries with it a moral weight which commands our approval.

The judgment of the court below is therefore affirmed with costs.