author: Buchanan, J. Merrick, O. J.,

text:
    Narcisse Beauvais v. Georgiana Wall and Husband.
    The name of the vendee in the body of the act of sale was omitted, the notary and one of the witnesses to the act were ottered to prove that H. T. 7F., whose name was subscribed together with that of the vendor to the act, was the purchaser — Held: that the omission could be supplied by such parol evidence.
    "Where it was proved that the original of an act of transfer and assignment had been deposited in the General Land Office — Held: that the registry of it in a book in the Recorder’s office, with the corti-cate of the Parish Judge appended, was competent evidence of the transfer and of its rogistry.
    Where it is impossible for a party to produce an original, which is on file in the Land Office as a part of the archives of the Government, a copy is admissible in evidence.
    Where the wife, as heir of the husband, applied for a patent which was issued to her as his assignee, a title in her, independent of her husband, cannot bo inferred, and the patent must enure to the benefit of the husband’s vendee.
    PPEAL from the District Court of the Parish of Pointe Ooupée, Ratliff, J.

      T. J. & W. II. Cooley, for plaintiff and appellant. A. Provosty, for defendants.
   Buchanan, J.

This is a petitory action for a tract of land. The plaintiff and defendant exhibit titles derived from the same source.

The plaintiff, who is appellant, relies upon several bills of exception taken by him to the admission of evidence.

The first is to the notary and one of the witnesses of a notarial act of sale, in the body of which the name of the vendee had been omitted, offered to prove that H. T. Williams, whose name was subscribed, together with that of the vendor, to the act, was the purchaser of the land sold thereby. There was no error in the admission of this testimony, under the facts of this case.

There was a manifest omission of a material part of the instrument, which omission made it unintelligible ; and which might, and could only be supplied by parol proof. A case in point is Union Bank v. Penn, 7th Robinson, p. 80, where the court allowed parol proof of the date which had beed omitted in a notarial certificate of protest.

Plaintiff also excepted to the admission of a book from the Recorder’s office, and therein the registry of a transfer and assignment by Pierre David to E. B. Williston, with the certificate of the Parish Judge thereto appended ; offered to prove the transfer and assignment and its registry. The objections are, that it is only a copy of the original; that the original should be produced or accounted for. The copy of the act recorded and the certificate of the Parish Judge were competent evidence. See Wood v. Harrell, lately decided. But the original of David’s assignment to E. B. Williston was sufficiently accounted for in other parts of the record. It is proved to have been deposited by plaintiff’s author in the General Land Office at Washington, as one of the documents upon which the patent was issued, which is plaintiff’s title to the land in controversy.

The next bill of exceptions is to the admission of a copy of Mrs. Almira Wil-liston’s affidavit, that she was owner of the land claimed, by device or legacy from E. B. Williston, on file in the General Land Office, and the certificate of the Commissioner of the Land Office. The objection is that the original should have been produced. But this is shown to be impossible, as the original is part of the archives of the Government.

Plaintiff also excepts to the admission of a nortarial act of sale of the property in dispute by E. B. Williston, signed by said Williston, by H. T. Williams, by two witnesses and by the notary.

The objection was that there was no vendee named in the said act of sale. This objection went only to the effect of the evidence. It was offered to show that the title had passed out of E. B. Williston previous to his death ; and the omission of the name of the vendee was, under the circumstances of the case, properly supplied by the testimony of the notary and witness, which was the subject of the first bill of exceptions above mentioned, and by other evidence in the record.

Upon the evidence, the case is clearly with defendant, who has shown a complete chain of title from E. B. Williston, assignee of Pierre David, the preéemptor, to herself. The patent issued to Elmira or Almira Williston, as assignee of David, and it has been attempted to infer from this expression of the patent a title in the grantee, independendent of her deceased husband, E. B. Williston. But the evidence establishes that the latter was the immediate assignee of David, and that Mrs. Williston applied for the patent as heir of her husband. But her husband having sold to another his right and interest, previous to his death, the patent inured to the benefit of his vendee and the assigns of that vendee in the same manner as if the vendor had been vested with the legal title at the date of the conveyance. Landes v. Brant, 10 Howard, 374; Pepper v. Dunlap, 9 An. 140.

Judgment affirmed, with costs.

Merrick, O. J.,

concurring. I concur in the decree of the court in this case, but am unwilling to assent to so much as has been said respecting the admissibility of parol proof to supply the name of the purchaser in the body of the act of sale from E. B. Williston to H. T. Williams.

Whatever ambiguity arises upon this instrument is patent. The most, therefore, that could be done would be to examine it “ by the light of surrounding circumstances.” But these could hardly supply the want of a party to the instrument itself. 1 Greenleaf, sec. 297 et seq.

If the name of the grantee could be supplied by parol, then that of the grantor, and the subject-matter of the contract itself could be supplied in the same way, and thus the instrument would be no longer in writing.

The case cited from 7 Rob. 80 is not at all in conflict with this view. In that case the proof of demand and notice of non-payment might have been made exclusively by parol, and the courts there say that they are not prepared to say that a party should not be permitted to prove such additional facts as may be deemed necessary to establish the notice of the protest.

So, too, where a contract has been entered into without date, as the date is not essential to it, the time of its delivery may be proven aliunde.

In this case, however, I do not see any great difficulty in arriving at the intention of the party from the instrument itself. It is true that the name of the grantee is not mentioned in the body of the act. But id certum est quod certum reddi potest. The instrument shows that Williston was the vendor; that he received the price which was paid him by the other party; that there were but two parties to the act, and that they signed the act with the witnesses whose names are given in the body of the act. The names of the witnesses, the notary and the vendor being given, it is demonstrated that the only other person signing the act is the vendee, and he is H. T. Williams.

The parol proof in fact proves nothing more than is shown by the act of sale.

The judgment of the lower court, I think with my colleagues, ought to be affirmed.


source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    R. Dugas et al. v. M. Truxillo.
    It is too late after the delay has expired for the return of an appeal, to file in the lower court a second appeal bond to supply omissions in the first.
    from tlie District Court of tlie Parish of xlscension, Duffel, J.

      A. Gentile, for plaintiffs and appellants. Mills & LeBlanc, for defendant-
   Buchanan, J.

This is a petitory action for land in possession of the defendant.

The widow and universal legatee of defendant answered, pleading title to the laud claimed ; and called in warranty various persons.

There was judgment in favor of defendant, and plaintiffs have appealed.

A motion to dismiss is made, on. account of the want of proper parties, the names of several warrantors having been omitted, as obligees, in the appeal bond, contained in the transcript which was filed in this court on the 27 th January, 1859, being the third judicial day after the return day of the appeal.

The appellant has endeavored to cure this defect, by filing in the Clerk’s office of the court of the first instance, on the 29th day of January, 1859, another appeal bond, containing the names, as obligees, of the warrantors, who were omitted in the first bond. A copy of the bond of the 29 th January, certified by the Clerk of the District Court, was filed in this court on the 31st January, 1859, without prejudice to the right of appellees to object to the same.

The appellee contends that the last named bond was too late. And we are of that opinion. The appellant had by law three judicial days after the return day to 'file his appeal in this court. That delay had expired before the second bond was tendered, and no order had been made for an extension of time for the return of the appeal. On the contrary, the transcript of appeal was already filed.

The appeal is, therefore, dismissed at the costs of appellants.


author: Buchanan, J. Meerick, 0. J., Merrick, C. J.

text:
    Love, Savage & Co. v. McComas & Cloon—On a Rule against the surety on the bond for the release of property attached.
    A judgment which decrees that a writ of attachment under which property has been seized bo quashed, and that the bond given for the release of property attached under the writ be cancelled and annulled, is ajudgment in favor of the surety upon the bond thus cancelled and annulled, and will become final and irrevocable by the lapse of two years from its date without any appeal being taken therefrom.
    A judgment afterwards rondored on. appeal, in subsequent proceedings in the same suit, by which the attachment is maintained, will not affect tho surety who was not a party to the appeal.
    from the Second District Court of New Orleans, Morgan, J.

      Duncan McConnell, for plaintiff on rule. Durant <& Hornor, for defendant in rule and appellant.
   Buchanan, J.

The facts and dates are recapitulated in the opinion heretofore delivered in this cause.

A re-hearing having been granted, we have come to the conclusion that the plea of res judicata, interposed.by the appellant in this court, was well taken. '

The judgment of the District Court, rendered on the 15th and signed on the 20th December, 1853, decreed, “that the second writ of attachment issued herein, and under which the steamboat Lewis Whiteman has been seized, which writ issued on the 29th May, 1852, be quashed and set aside, and that the bond given for the release of the property attached under said writ be cancelled and annulled.”

This was a judgment in favor of the appellant, who was the surety upon the bond which was thus cancelled and annulled. This judgment became final and irrevocable by the lapse of two years from its date, without an appeal taken therefrom. Indeed it has never been appealed from to this day.

The appellant was not a party to the subsequent proceedings in the suit of Love, Savage & Co. v. McComas & Cloon ; to the final judgment of the District Court on the merits in that case, rendered on the 7th February, 1856; to the appeal taken by plaintiffs from that judgment; and consequently not a party to the proceedings in the Supreme Court upon such appeal. As to this appellant, the judgment of this court of the June term of 1856, upon which the appellees rely, must be considered as res inter alias acta.

The omission of appellant to make a party who is interested in maintaining a judgment, party to the appeal, might have been the means of dismissing the appeal, if brought to the attention of the court, previous to judgment on the merits. But the neglect of the appellee to do so cannot have the effect of enabling the appellant to profit by his own omission, and to enforce a judgment of reversal against one who was not party to such judgment of reversal.

It is, therefore, adjudged and decreed, that our former judgment in this case, of the 23d November, 1857, be avoided and annulled, and that there be judgment reversing that which is appealed from, and in favor of the appellant, Bennett P. Voorhies, and against the appellees, Love, Savage & Co., with costs in both courts.

Vooehies, J., recused himself, on account of relationship to one of the parties.

Meerick, 0. J.,

dissenting. The original opinion of this court on the rule taken against the surety upon the bond for the release of the properly attached, appears to me to be sustained by abundant authority. I have not heard or seen any argument or authority advanced on the re-hearing, which creates any doubt upon my mind of the correctness of that decision, and hence I do not feel at liberty to assent to the opinion of my colleagues, in part overruling the same. Indeed I do not understand the opinion of my colleagues to controvert the doctrine that all interlocutory decrees, as between the parties to the appeal, are open to revision of this court, on an appeal from the final judgment, although such inter-locutary orders may have been rendered more than one year previous to the final trial. A contrary doctrine, it appears to me, would not only be in conflict with the Code of Practice, but with many decisions of this court. See C. P. 538, 544, 546 ; 12 La. 150, Vanwickle v. Flecheaux; Collerton v. McCleary, 7 La. 429 ; Kræulter v. Bank United States, 11 Rob. 163; McDonogh v. Calloway, 7 Rob. 444; Park v. Porter, 2 Rob. 344 ; Crane v. McGrew, 4 An. 307.

But if I understand correctly the opinion enunciated, it is that- the interlocutory judgment of the 20th of December, 1853, was a judgment in favor of the surety on the bond, as well as the party to the suit, and that as such he ought to have been made a party to the appeal, and not having "been made such party as to Mm the judgment is still unreversed. For it cannot, I think, be maintained for a moment, that the interlocutory order, as to the defendant, was not brought up by the appeal from the final judgment; for we reversed the judgment and reinstated the attachment.

It remains, then, only to consider whether the surety on the bond was a necessary party to the appeal, and whether the judgment could have the force of the thing adjudged as to him, notwithstanding the appeal. In the case of these plaintiffs against the defendant in the rule, it appears to me, this court has recently decided the contrary. See Love, Savage & Co. v. B. P. Voorhies.

The surety binds himself on the release of the property attached, that he will satisfy, to the extent of the value of such property, such judgment as may be rendered against the defendant in the suit pending. C. P. 259 ; Act 1852, p. 155. It is true, therefore, that he is interested in the interlocutory judgment, and he has the like interest in the final judgment, for if the final judgment be in favor of the defendant, the surety is not bound. »

But this interest, in the absence of an express statute, does not make the surety a party to the suit. He would not be heard to object to evidence, or permitted to file a motion to dissolve, or take any steps in the proceeding. He is no more a party to the suit than the surety on the appeal bond is a party to the appeal.!

The statute of 1839, p. 162, sec. 3, has provided the mode of rendering him liable. It requires a rule to be taken against him upon the bond after the return of nulla bona on an execution on the judgment against his principal to show cause why judgment should not be rendered against him upon the bond. On this* rule, the decree must ascertain the value of the property attached, and the judgment is not to be beyond such value. I think it is, therefore, quite clear, that the surety on the bond releasing the attachment, unlike the surety on the injunction bond, is not a party to the suit, although he may be interested in the interloeutary orders as well as final decree.

A contrary doctrine would lead to much unnecessary expense in all proceedings of this kind, and would increase greatly the docket of this court.

OVERRULED OPINION.

Merrick, C. J.

The present proceeding is a rule taken against a surety to a bond given for the release of property attached to render him liable after the return of nulla bona on the execution.

The suit in the Sixth District Court pleaded as lis pendens in bar of this proceeding appears to be founded upon another bond given by the same parties, for the release of other property attached in the above entitled cause. Although it has for its object the security of the same debt, and would, therefore, be discharged by the payment of the bond sought to be inforced on this rule, or by the payment of the original judgment, still it is not in fact the same cause of action, super idem corpus et eandem eausam petendi.

It is upon a different instrument, though collateral to the same principal debt. Had it been signed by different sureties there could be no question that the plea could not avail, and we do not conceive that it makes any difference that the two bonds are signed by the same surety. The exception of lis pendens was, therefore, properly overruled.

On a rule taken by the defendants upon the plaintiff, in the original action, to show cause why the writ of attachment issued 29th May, 1852, (under which the bond signed by the defendant in the rule was given,) should not be quashed and set aside, it was ordered that the rule be made absolute, and that the bond for the release of the property attached be cancelled and annulled. This order was signed by the Judge on the 20th December, 1853. Final judgment was not rendered in the case until Feb. 12th, 1856, and the appeal was taken the nineteenth day of the same month, it being more than two years after the interlocutory decree. On these facts the appellant contends by counsel, that the order of 20th of December, 1853, was one which worked irreparable injury to the plaintiffs, and that “ may” in Art. 566, O. P., is to be construed must, and inasmuch as plaintiffs did not appeal from said order in one year, that it has the force of the thing adjudged, which is now pleaded in bar of the present proceeding.

We have not supposed that the right of the Supreme Court to pronounce in their final decree upon all interlocutory matters and orders, entertained and decided at any time during the progress of the cause by the lower court, was at all doubtful, whether those orders did or did not produce some inconvenience to the parties which the final decree could not remedy. But this point is pressed upon the court with such earnestness by defendants’ counsel, that we will look into the authorities on the subject. The Code of Practice, after dividing judgments into interlocutory and final, declares that “ Interlocutory judgments do not decide on the merits; they are pronounced on preliminary matters in the course of the proceedings.” Art. 538.

Definitive or final judgments are such as decide all the points in controversy between the parties. Definitive judgments are such as have the force of res judi-cata.” C. P. 539. The maxim of the French law is ab interlocutorio potest discedere. Bousquet, verbo Appeal.

Savigny, in speaking of the effect of a final decree, says, that every decree which is subject to further proof or confirmation, must be looked upon as a preparatory decree, or one of the many steps in the course of a suit, which are designed to lead to a final and permanent judgment. 6 Sav. pp. 296, 297, sec. 285, Berlin edition.

Chief Justice Taney, in 16 Howard, p. 85, says The counsel for the appellants, however, objects to the decree of dismissal, because it was made at the argument upon the exceptions to the master’s report, and is contrary to the opinion on the merits, expressed by the court in its interlocutory order. But this objection cannot be maintained. The case was at final hearing at the argument upon the exceptions, and all of the previous interlocutory orders, in relation to the merits, were open for revision and under the control of the court. This court so" decided when the former appeal hereinbefore mentioned was dismissed for want of jurisdiction-. And if the court below, upon further reflection or examination, change its opinion after passing the order, or found it was in conflict with the opinion of this court, it was its duty to correct the error. The Circuit Court, on this occasion, has properly done so, and the decree of dismissal must be affirmed, with costs.”

In the case of Thompson v. Mylne it was held by this court, that an order of this court remanding a cause for further proceedings in the partition of property could not be considered as a final decree upon those rights of the parties not specifically adjudicated and closed by the decree itself. The court says, “ It is a preparatory decree prescribing the manner of proceeding deemed necessary by the court to arrive at a final decision, and necessarily under its control until that decision is made. 4 An. 211. The plea of res judicata, therefore, cannot avail the defendant.

The final decree in the original suit of Love, Savage & Co. v. McComas & Cloon, reversed the judgment of the lower court, and rendered one in favor of the plaintiffs, wherein the validity of the attachment of 29th May, 1852, was virtually recognized. That decree must have its effect, and the judgment of the lower court on the rule must be affirmed.

Judgment affirmed.


author: Merrick, C. J.

text:
    J. P. Walworth et al. v. J. Routh.
    The law of the forum governs in matters of prescription.
    The statutes of limitations of the other States are engrafted upon our law as to judgments only when two conditions concur : 1st, where the judgment has been rendered between persons who reside out of the State, and to be paid out of the State. 2dly, where the defendant removes to the State of Louisiana, after he has become entitled to the benefit of the statute of limitations of the place where the judgment was rendered.
    from the District Court of the Parish of Tensas, Farrar, J.

      H. B. Shaw, for plaintiff A. Snyder and T. P. Farrar, for defendant and appellant.
   Merrick, C. J.

In 1841 the Planters’ Bank of Mississippi, obtained two judgments in the Circuit Court of Adams county in that State, against the defendant and certain other parties; the one for $15,737 72, and the other for $7,707 58, and interest. In 1843, that bank made an assignment of its effects to the plaintiffs, in trust to pay its debts. In 1845, the charter of the bank was declared forfeited.

The judgments above referred to, having been rendered in favor of the bank, the charter of which had been declared forfeited, the plaintiffs, as Trustees, were driven to obtain the aid of a Court of Chancery to inforce the judgments rendered in the name of the bank against the defendants. A suit in chancery was accordingly commenced in 1849, against the defendants, before the Vice-Chancellor of the Southern District of Mississippi.

It resulted in a decree in favor of the plaintiffs against the defendants in the sum of $40,052 85, with eight per cent, interest, from 28th day of December, 1850. The decree was signed the 31st day of December, 1850. A writ of error was prosecuted in the name of all the defendants to the High Court of Errors and Appeals of Mississippi. The decree of the Vice-Chancellor was affirmed, with five per cent, damages in October, 1854. But the proof shows that the defendant, John Routh, did not authorize the prosecution of the writ of error on his behalf.

The present suit was instituted on the 10th day of May, 1858, to recover the sum and interest awarded by the decree of the Vice-Chancellor, with the damages, on the affirmance of the same, before the High Court of Errors and Appeals.

The pleas of prescription of seven years under the statutes of Mississippi, and ten under our own, were interposed by the defendant as a bar to plaintiffs’ action. They were unavailing in the lower court, and he prosecutes his appeal.

Those two pleas present the only questions now insisted upon before this court.

Since the commencement of the suit in the Vice-Chancellor’s Court in 1849. . 7 to the present time, the defendant, Routh, has been a resident of Louisiana.

The Mississippi statute of limitations supposed to be fully naturalized in Louisiana by the Act of March 15th, 1855, is in these words, viz :

“ All actions of debt founded on any judgment or decree rendered by any court of record in this State, shall be brought within seven years next after the rendition of such judgment or decree, and not after; and no execution shall issue on any such judgment or decree, after seven years from the date of the issuance of the last preceding execution on such judgment or decree.

Our own statute authorizing the plea upon a foreign statute of limitations in certain cases, is as follows :

Be it enacted, &c., That whenever any contract or obligation has been entered into, or judgment rendered, between persons who reside out of the State of Louisiana, and to be paid and performed out of this State, and the said contract, obligation or judgment, is barred by prescription or the statute of limitations of the place where the contract or obligation is to be performed, or judgment executed, the same shall be considered and held as barred by prescription in Louisiana, upon the debtor, who is thus discharged, subsequently coming into the State.”

By Article 3508 O. 0., the Act of 14th of March, 1848, (Acts 1848, p. 60,) and the Act of 30th of April, 1853, (Acts 1853, p. 250,) the ordinary prescription of a judgment is ten years.

As the law of the forum governs in matters of prescription, it is evident that the statute of limitations of Mississippi above cited, can have no force proprio vigore. It can have effect only in virtue of and to the extent admitted by our law. It is engrafted upon our law as to judgments, only where the two following conditions concur:

1st. Where the judgment has been rendered between persons who reside out of the State of Louisiana, and there to be paid ; and,

2dly. Where the defendant removes to the State of Louisiana after he has become entitled to the benefit of the plea of the statute of limitations of the place where the judgment was rendered.

The language of the statute is quite clear, and presents no difficulty of construction.

It is evident that the defendant cannot bring himself within either of the above conditions. It is needless, therefore, to inquire whether he could have successfully pleaded the statute of limitations to an action of debt brought in Mississippi on the Vice-Chancellor’s decree.

The next question then is, can the law of Louisiana avail the defendant ?

The judgments rendered in 1841, in favor of the Planters’ Bank, were merged in the decree in favor of the plaintiffs in 1850. Those judgments, after the rendition of the decree, would not have formed the basis for an action of debt or siria facias.

This suit, therefore, was properly brought upon the decree, and not upon the original judgments ; and Routh must have a plea, which will be a bar to the action on the decree, or fail in his defence. He is a resident of Louisiana, and no foreign law can protect him. The period required by our law (ten years) has not elapsed, since the rendition of the decree.

The plaintiff, conceding the fact that the writ of error was prosecuted without authority from Routh, waived the damages given by the High Court of Errors and Appeals.

The decree of the Vice-Chancellor being in favor of plaintiffs as trustees, no question has been raised as to their capacity to bring this suit, and that decree is a bar to all defences which might have been pleaded to the suit in chancery.

The judgment of the lower court rests upon true principles and cannot be disturbed.

Judgment affirmed.


author: Land, J.

text:
    R. R. Barrow v. E. G. Robichaux
    Where it was alleged that the clerk retiring from office had forfeited his fees by failing to file an explicit fee bill within the term prescribed by the statute — Held: That the allegation, although of a negative character, must be proved.
    The law requiring that tbe clerks shall endorse upon or annex to all writs of fieri facias issued by them, specific bills of the taxed costs, is directory, and no penalty is incurred for the non-observancc of the requirement.
    When there has boon an error committed in issuing a writ of fieri facias for more than, the plaintiff is entitled to under the judgment, the right to enjoin is limited to the amount for which it lias erroneously issued.
    PPEAL from the District Court of the Parish of Lafourche, Roman, J.

      F. S. Goode, for plaintiff. Beatty <& Buell, for defendant and appellant.
   Land, J.

This is an injunction suit to restrain the sale of certain property seized by the Sheriff in virtue of a writ of fieri facias.

In 1855, after a protracted litigation, John McDonald obtained judgment on three promissory notes, in the parish of Terrebonne, against Robert R. Barrow, the plaintiff, for the sum of five thousand dollars, with five per cent, interest.

After an appeal to this court by Barrow, and the affirmance of the judgment, John McDonald, in 1858, caused a writ of fieri facias to issue oil his judgment, directed to the Sheriff of the parish of Lafourche, who proceeded to execute the same, by seizing and advertising for sale the plaintiff’s property situate in that parish.

R. R. Barrow filed his petition, and obtained an injunction inhibiting tbe Sheriff from selling the property seized under the writ.

Ho alleges in his petition six different grounds for injunction, as follows :

First. That the writ issued for a largo amount of costs, the greater part of which was due to a former clerk and two former Sheriffs, who had retired from office without filing or presenting specific fee bills, as required by law; and that the clerk in office had neglected to endorse on the writ specific bills of the taxed costs, and that said costs were therefore forfeited, and could not be collected.

Section 3 of the Act of 1855, p 162, provides, that whenever a Sheriff or Clerk shall retire from office, he shall cause to be filed with tbe proceeding in which he may be entitled to costs, within twenty days, specific bills of his fees ; and in default thereof, or if any item shall be overcharged, the same shall be forfeited, and such Sheriff or Clerk forever barred from collecting the same.

Under this section of the Act, the fees of the retired Clerk and Sheriffs have been forfeited if the fact be true, as alleged by the plaintiff, that they failed to file explicit fee bilis within the twenty days prescribed by the statute. But the plaintiff has failed to prove this fact, which was susceptible of proof by him, although of a negative character, and which was material to his case. It is a fact which tlie court cannot presume against tlie retired officers of the court, who are not parties to this suit. The fee bills are required to be filed in court, and it was not more difficult for plaintiff to prove they had not been filed, than to prove there is no act of sale or mortgage of record, which the law frequently requires.

The fifth section of the same act provides, that the Clerks of the District Courts shall endorse upon, or annex to all writs ofjfieri facias issued by them, specific bills of the taxed costs. No penalty however is declared for the nonobservance of this section of the Act.

This section, therefore, must be considered, directory, as this court has no power to declare rights forfeited, in the absence of express legal authority.

Secondly. That the writ was not made returnable, in not less than thirty, and more than seventy days. The writ was issued on the 15th day of April, 1858, and made returnable within seventy days. It was received on the 21st of April thereafter, by the Sheriff of Lafourche, who seized under it the property of plaintiff on the 28th of same month.

This objection was insufficient to arrest the execution of the judgment.

Thirdly. That the description of the property in the Sheriff’s advertisements was incorrect and uncertain. If there was any inaccuracy in the description of the property, it is not shown by the evidence. The certainty of the description is sufficient. The statement of every material circumstance of identity was made by the Sheriff.

Fourthly. That the property seized belonged to an ordinary partnership engaged in the cultivation of sugar, and that plaintiffs interest in the partnership property could not be legally sold.

This, as a proposition of law, is wholly untenable. O. 0. 2194.

Fifthly. That the advertisements did not mention correctly the title of the cause, or of the court, from which the writ issued. The title of the cause is fully stated in the margin, and the title of the court in the body of the advertisements. This was sufficient.

Sixthly. That the writ did not follow the judgment, in this, that the judgment gave only five per cent, interest, and the writ was issued for eight per cent, thereon. For this difference in the interest, the plaintiff was entitled to an injunction, but for nothing more.

Where the ground of injunction is compensation or subsequent payment, the right of injunction is expressly limited to the amount pleaded in compensation or payment, and reason and public policy require that the same rule should be extended to cases of error or mistake, committed by the officers of court, in issuing •writs of fieri facias, and the right to enjoin, be limited to the amount occasioned by the error of the officer, and not suffered to extend to the whole judgment. Acts 1855, sec. 4, p. 324.

It is, therefore, the opinion of the court, that the injunction issued in this case, restraining the execution of the whole judgment, was improperly obtained, and rvas an abuse of the equitable remedy of the writ.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be amended so far as it perpetuated the injunction, as to the costs endorsed upon the writ, and reserved the right of John McDonald to enforce and collect the same, and that said injunction, as to said costs, be dissolved, and that the Sheriff proceed to make the same according to law, and that said judgment, in all other respects, be affirmed, and that the plaintiff pay the costs of this appeal.


text:
    T. R. Sutton v. W. B. Calhoun—Heirs of Martin, Intervenors.
    The defendant relying on a tax sale is hound to show not only the existence of an assessment, hut also its legality.
    Where the title of the owner of the land is of record, his name is required hy statute, as descriptive of the land assessed, and an error in this respect is fatal to a title hy a tax sale.
    It is necessary that the land assessed should he designated hy its boundaries, and when the boundaries given are confused and erroneous, the assessment does not possess that particularity and certainty necessary for the validity of a tax sale.
    Parol evidence is admissible to show a misdescription in the act of sale of the land really sold, there being an error on the face of the act itself.
    PPEAL from the District Court of the Parish of Concordia, Ratliff, J., presiding.

      Thomas P. Farrar, for plaintiff and appellant. L. V. Reeves, for intervenors. A. Snyder, for defendant.
   Land, J.

This suit is brought for the recovery of a tract of land situated on Black River, in the parish of Concordia, and described as the south-west fractional quarter of section fourteen, containing one hundred and sixty-nine acres. The north fractional half of section twenty-three, containing two hundred and seventy-nine 90-100 acres, and the west half of the south-west quarter, and the west half of the south-east quarter of the same section, containing together one hundred and fifty-eight 80-100 acres, and containing altogether 60V 70-100 acres.

The plaintiff contends that Asa T. Martin, the patentee of the United States Government, sold the whole of these lands to W. A. Miller, by act of sale duly recorded in the parish of Concordia, on the 3d day of December, 1844. And that Miller sold the same lands to him, plaintiff, by act of sale, duly recorded in the same parish on the 22d day of August, 1849, and that there is a misdescription of a portion of the land in the acts of sale conveyed.

The defendant sets up title derived from Thomas Edwards, who purchased these lands at two different sales for taxes.

The intervenors claim title to the north half of section twenty-three, on the ground that their ancestor, Asa T. Martin, never parted with his title to the same.

The validity of the defendant’s title will be first considered.

The first sale for taxes was made on the 4th day of November, 1848, for the taxes assessed in the name of the patentee, Asa T. Martin, due on the land for the year 1847. And the second sale for taxes was made on the 1st of November, 1851, for the taxes assessed in the name of W. A. Miller, due on the land for the year 1850.

The first assessment or entry on the tax roll, by virtue of which the lands were sold on the 4th of November, 1848, is in these words and figures, to wit: A. T. Martin, 735 acres land, value $3685, tax $6 14j, tax $3 68 3-6 — total $9 82 4-6, parish tax $8 18.

The second assessment is in these words and figures, to wit: W. A. Miller, 606 acres, W. % and W. \ of S. E. J sec. 23, S. W. fractional J sec. 14, T. 6, R. 6, $2000 amount, tax $2 20, $2 00 — total $4 20, parish tax 73c., special parish tax §1 10.

The 26th section of the Revenue Act of 1847 provides, that if the land to be assessed, be a tract or lot which is known by a name, or if the owners name be known, they shall designate it hy those particulars, and by its boundaries. If it have no name, or the name be unknown, and if the owner be unknown they shall designate it by boundaries alone. The 23d section of the Revenue Act of 1850 contains the same provisions.

The defendant relying on a tax sale for his title, is bound to show not only the existence of an assessment but also its legality. He has shown an assessment of the lands, and the question to be determined is, whether that assessment was legal.

In forced sales for taxes, every formality of the law must be strictly complied with, under the pain of nullity. Nancarrow v. Weathersbee, 6 N. S. 348 ; Smith v. Corcoran, 7 L. 50 ; Reeves v. Towles, 10 L. 283; 13 L. 205, 4. A. 248 ; 6 A. 542 ; 8 A. 19 ; 10 A. 329.

The inadequacy of the price in sales of this description, and the absence or incapacity of the owners, arising from infancy, coverture and other causes, have had their influence in the establishment of this rigid rule of law. And its application in this case defeats the title of the defendant.

In the first assessment there is error in the name of the owner, and no boundaries of the land are given.

In the second assessment there is also an error in the name of the owner, and the boundaries given are confused and erroneous, and do not possess that particularity and certainty necessary to the validity of a tax sale. Carmichael v. Aiken, 13 L. 210.

When the lands were assessed in the name of Martin, W. A. Miller was the ■owner, and his title of record. When they were assessed in the name of Miller, Thomas R. Sutton was the owner, and his title was of record. The name of the owner was required by the statute as descriptive of the lands assessed, and an error in this particular is as fatal as an error in the boundaries themselves.

It is, therefore, the opinion of the court, that the defendant is without title to the lands in dispute.

The right of the intervenors, as heirs-at-law of Asa T. Martin, to the north half of section twenty-three will next be considered.

In the deed from Martin to Miller, he sells and conveys all that certain tract, piece or parcel of land, lying, situate, and being in the parish of Concordia, in said State, known and described as the west half of the south-east quarter of section number twenty-three, and the west half of the south-west quarter, and the west half of the south-west quarter of section number twenty-three, of township number six of range number six, and the south-west fractional quarter of section fourteen, same township and range, containing -in all six hundred and six acres, be the same more or less.

The evidence shows that the north half of section twenty-three was the property of Martin at the date of the sale to Miller, and was necessary to unite the parcels of land sold and conveyed into one tract, piece or body, and was necessary to make up the quantity of land mentioned in the act of sale, or to make up a quantity which would approximate thereto. The Receiver’s receipts of the purchase or entry of the north half of section twenty-three by Martin, were in the possession of his vendee, and .offered in evidence on the trial of this cause ; and it is not pretended that his possession was improperly obtained.

The north half of section twenty-three, was always claimed by the vendee after the sale, and was not inventoried after the death of Martin as the property of his ■succession. There is in the description of the land sold evidently an error on the face of the act itself, which gives to the circumstances stated a weight they would not otherwise possess.

The words in the act of sale, west half of the south-west quarter, and the west half of the south-west quarter of section number twenty-three, are either a careless repetition or a misdescription of a parcel of land in section twenty-three, which the vendor intended to sell and the vendee intended to buy. The facts established by the evidence are all consistent with the latter hypothesis, and are repugnant to any other rational conclusion.

In the case of Palanque v. Quesnon, 15 L. 311, the court held that parol evidence was admissible to show a misdescription in the act of sale of the land really sold ; and in this case there is positive parol testimony as to the fact of a misdescription of the north half of section twenty-three, and is fully corroborated by circumstances as well as the acts of the parties, and leaves no doubt on the mind of the truth of the fact. Broussard v. Ladrique, 4 L. 352.

It is, therefore, ordered, adjudged and decreed, that so far as the judgment of the lower court and the verdict of the jury rejected the plaintiff’s claim to the north half of section twenty-three, be reversed and set aside ; and it is further ordered and decreed, that the petition of intervention be dismissed and the claim of the intervenors rejected, and that the plaintiff recover of the defendant the north half of said section twenty-three, and that he be quieted in his title thereto ; and it is further ordered, adjudged and decreed, that so far as the judgment of the lower court is in favor of plaintiff, for the other parcels of land claimed in this suit, and described in said judgment, be affirmed ; and it is further ordered and decreed, that so far as the judgment of the lower court and the verdict of the jury condemn the plaintiff and intervenors to pay to the defendant the sum of two hundred and fifty dollars for improvements, be reversed and set aside, and that said defendant do have and recover of the plaintiff the said sum of two hundred and fifty dollars; and it is further decreed, that the defendant pay the costs of the principal action in the lower court and one-half of the costs of this appeal, and that the intervenors pay the cost of their intervention in the lower court, and the other half of the costs of this appeal.


author: Merrick, C. J. Meerick, 0. J.

text:
    A. Carrière v. Labiche et al.
    The assumption of a debt by a now firm succeeding to the business of one that has been dissolved, the transfer of the debt to the books of the new ñrm, and the assent of the creditor to the arrangement, will not novate the debt without an express agreement to discharge the original debtors.
    The prescription of one year is inapplicable to an action for the price of wines sold in casks and boxes by a wholesale dealer.
    from the Sixth District Court of New Orleans, Cotton, J.

      W. O. Denegre, for plaintiff. C. DeChoiseul, for defendants and appellants.
   Merrick, C. J.

This suit is brought by the plaintiff against certain of the partners of the late firm of Daran, Labiche & Co., to recover $377 for wine sold in casks and boxes. The defence to the action is, that the firm dissolved and transferred their business to the new firm of Daran & Jourdan, who assumed the ¿leUt and transferred the same to their boohs, and that the plaintiff assented to the arrangement.

There is also a plea of prescription of one year. The defendant, J. A. Carrie, denies having been a partner, and alleges that he only acted as agent of his wife, A. Carrie, who is separate in property.

The promise of Daran & Jourdan to pay this debt, and the entry of the same on their boohs to the credit of the plaintiff, together with the repeated demands of the plaintiff, through his clerk, upon both firms for payment, cannot have the effect of releasing the original debtors. The law requires an express agreement to discharge the original debtor. The delegation was not complete. C. C. 2188, 2185 ; Pothier on Obligations, 600 ; 11 Rob. 511, Muggah v. Rogers.

The matters offered to be proven by defendants, as stated in their second bill of exceptions, would not, therefore, have formed a defence to the action, and the ruling of the Judge has not prejudiced the defendants on this branch of the case. The first bill of exceptions is defective -in not stating the objection to the witness, nor by whom made, and does not enable us to revise the ruling of the Judge excepted to'.

Plaintiff’s debt is admitted to have been correct when originally made, and is also established by proof.

The bill of the wines does not show that the action is that of the retailer of provisions : on 'the contrary, it would seem that the plaintiff was a wholesale dealer. The item of December 5th is for 100 boxes of wine, and those of 17th and 27th of the same month was for barrels.

The prescription of one year is, therefore, inapplicable.

The proof does not show that the defendant A. Carrie, is separate in property from her husband. In the absence of such proof, her husband is bound in solido with her. C. 0.128.

Judgment affirmed.

Same Case — On a Re-hearing.

Meerick, 0. J.

A re-hearing was granted in this case to correct an error of fact into which the court was led from the manner in which an important admission was transcribed in the record, under the testimony of Jules Martin.

It is admitted that Mrs. Carrie was separate in property from her husband.

The judgment ought, therefore, to have been reversed as to the defendant, J.A. Carrie.

It is, therefore, ordered, adjudged and decreed by the court, that so much of our former decree as affirms the judgment against the said J. A. Came, be set aside ; and that the judgment of the lower court, as to him, be avoided and reversed ; and that there be judgment in favor of said defendant, J. A. Carrie, and that he recover his costs in the lower court; and it is further ordered, that so much of our former decree as affirms the judgment as to said Labiche and A. Carrie, wife of said J. A. Carrie, remain undisturbed; and that the plaintiff pay the one-half, and the defendants, A. Carrie and P. M. Labiche, pay the other half of the costs of the appeal.


text:
    Jackson & Van Pelt v. Samuel W. Moore.
    The cause which, hinders a testator from signing his name when he knows how to sign, must he a physical cause. The existence of such a mental cause as delirium, incapacitates the testator from completing the will.
    PPEAL from the District Court of the Parish of Carroll, Farrar, J.

      Goodrich & BeFrance, for plaintiff. Sparrow é Montgomery, for defendant and appellant.
   Land, J.

On the 29th of April, 1857, Robert A. Armstrong, of the parish of Carroll, in this State, made his olographic will, in which he instituted as his universal legatee his cousin Minerva Armstrong, and appointed as executor thereof the plaintiff, Edwin C. Jackson.

On the 14th of January, 1858, Robert A. Armstrong made a second will by private act in the nuncupative form, in which he bequeathed to his cousin, Minerva Armstrong, the greater part of his estate, and the remainder to the defendant and other legatees, and also appointed therein his friend, Edwin C. Jackson, his executor.

These wills were both probated in the District Court of the parish of Carroll. The executor refused to act, under the will of the 14th of January, 1858 ; and the defendant, a legatee under it, applied to be appointed dative testamentary executor.

The application was opposed hy the executor, Edwin C. Jackson, and Henry Van Pelt, the attorney-in-fact of Minerva Armstrong; and the question presented for decision is, whether the will of the 14th of January, 1858, is valid.

The plaintiffs allege two principal causes for nullity.

First. That the formalities prescribed by law were not complied with, and particularly, the will was not signed by the testator.

Secondly. That the testator was not of a sound and disposing mind and memory, at the time the will was read to him, and signed by the witnesses.

The testimony shows, that the testator was in extremis, when the will was read to him for the purpose of being executed, and that he did not sign it.

The causes that hindered the testator from signing are stated by the witnesses to have been weakness and delirium. There is however a conflict in the testimony, as to the condition of the testator’s mind, when the will was read to him.

The testimony of Br. Gaddis, the attending physician, who wrote the will, and was one of the subscribing witnesses, shows that the mind of the testator -was wandering and delirious, at the time of the reading, and he deposes that the testator was prevented from signing by weakness and delirium.

The cause which hinders a testator from signing his name, when he knows how to sign, must be a physical cause, and not mental, such as delirium or insanity. The existence of such a mental cause, at the time of reading, incapacitates the testator from completing his will. O. 0.1461,1572,1575,1588.

The judgment of the lower court declares the will of the 14th of January, 1848, null and void, and we think it sufficiently sustained by the evidence.

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


text:
    City of New Orleans v. John M. Bell, Sheriff.
    The Judges of the courts in New Orleans are vested with full power to regulate the police of their courts, and to prevent a disturbance of the administration of justice.
    APPEAL from the Third District Court of New Orleans, Duvignaud, J.

      J. J. Michel, for plaintiff and appellant. Benjamin, Bradford <& Finney, for defendant.
   Land, J.

The opinion and decree of the District Judge are in these words : “ This is a rule taken against J. M. Bell, Sheriff of the parish of Orleans, to show cause why he should not be enjoined from placing a barricade on the north side of Condé Street and at the corner of Oondé and St. Anne Street.

. “ In answer to this rule, the Sheriff says: that he has been ordered by the Honorable 1. G. Hunt, Judge of the First District Court of New Orleans, to place the barriers or barricade complained of, during the sessions of the First District Court, and annexed to his answer the said order of court.

“ Considering that the Judges in the City of New Orleans are vested with full power to regulate the police of their courts, and to prevent such noise within the precincts of their courts, as might disturb the administration of justice; and considering further, that the continual passage of horses and vehicles at the corner of St. Anne and Condé streets, creates such a noise as to disturb the business of the First District Court of New Orleans.

“ It is, 'therefore, ordered, adjudged and decreed, that the ’ rule praying for an injunction be dismissed at plaintiff’s costs.”

For the reasons given by the District Judge, it is ordered, adjudged and decreed, that the judgment be affirmed, with costs in both courts.


author: Merrioic, C. J.

text:
    State v. Henry Rentiford.
    The State has no right of appeal from a judgment sustaining a motion in arrest of judgment in a case where the offence is punishable with line only.
    APPEAL from the District Court of the Parish of Iberville, Wilson, J.

      J- B. Stuart, District Attorney, for the State, appellant. Lea & Marr and A. Talbot, for appellee.
   Merrioic, C. J.

The defendant was found guilty by the verdict of the jury, of an offence punishable with fine only.

He moved in arrest of judgment, and his motion was sustained.

This appeal has been taken by the State.

The defendant now moves to dismiss the appeal for want of jurisdiction.

The Constitution confers appellate jurisdiction on this court in criminal cases, on questions of law only, in cases where the offence charged is punishable with death or imprisonment at hard labor, or when a fine exceeding three hundred dollars has been actually imposed.

As the offence is only punishable by a fine, and no fine has been actually imposed in this base, the Constitution confers no power upon this court to revise the judgment of the lower court, and the appeal must be dismissed.

It is, therefore, ordered, adjudged and decreed by the court, that the appeal in this case be dismissed.


text:
    E. Tircuit v. E. Pelanne et al.
    In an action of boundary the costs should bo equally divided between the parties, unless there is proof of a demand on one side, and refusal on the other to settle the boundary amicably.
    from the District Court of the Parish of Pointe Coupee, Harralson, 3.

      A. Provosty, for plaintiff. T. J. & W. H. Cooley, for defendants and appellants.
   Buchanan, J.

This is an action of boundary.

The line of division of the properties of plaintiff and defendants, being the north line of township 4 south, range 9 east, in the south-eastern district of the State of Louisiana, west of the Mississippi river, was run by a surveyor under an order of court, and with the consent of both parties.

The defendants opposed the report of said surveyor, principally on the ground, that it gave the preference to a later survey of the officers of the surveying department of the land office of the United States, over a more ancient survey of that department.

We do not find this objection sustained by the evidence.

The appellee, in an answer to the appeal, prays an amendment of the judgment of the court below, which divides the costs equally between the parties. He asks us to throw all the costs upon defendants; and relies upon the cases of Andrews v. Knox, 10th An. 604, and Lawes v. Watson, 12th An. 216.

In the cases cited, the defendants were condemned to pay the costs, because they had refused to settle their boundaries amicably, and had forced thereby their neighbors to institute suit. We find no proof in this record of a demand on one side and refusal on the other to settle the boundary amicably.

The authorities quoted are not applicable.

Judgment of the District Court affirmed; the costs of the lower court to be borne one half by plaintiff and one half by defendants, those of appeal to be paid by the appellants, Raymond Pelanne and Pierre Pelanne.


author: Land, J. Merrick, O. J.,

text:
    J. A. Fuqua, Administrator, v. Young & Knighton.
    Prescription against an action for the recovery of money collected by a Sheriff under a writ of fv. fa., will only commence to run from the date of the demand by the judgment creditor, and non-payment by the Sheriff.
    from the District Court of the Parish of East Feliciana, Ratliff, J.

      Fuqua & Kilbourne, for plaintiff. R. J. Bowman, for defendants and appellants.
   Land, J.

The plaintiff, administrator of a judgment creditor of one Peacoclc, sued the defendants as sureties of the late Sheriff of East Feliciana, to recover the amount of the judgment, in favor of his intestate, and obtained a decree in the lower court against them in solido, for the sum of five hundred and thirty-seven dollars and thirty-seven cents, with five per cent, interest.

The defendants appealed, and the only defence on which they rely in this court is the prescription of two years.

The 10th section ot the Act of 1855, provides, that the Sheriffs and their securities, shall be able to prescribe against their acts of misfeasance, nonfea-sance, costs, offences and quasi-offences, after the lapse of two years from the day of the omission or commission of the acts complained of.” Phillip’s Revised Statutes, p. 524.

There were concurrent seizures by the ^ Sheriff under other writs, with that of plaintiff’s intestate, and the Sheriff closes his return as follows, to wit, “ total amount in Sheriff’s hands, $1,419 61, in cash and bonds from sales of personal property, under the several writs before named, subject to distribution among the different claimants under the order of the court.”

Whether the prescription of two years, under the statute referred to, applies to actions for the recovery of money collected by Sheriffs under writs of fieri facias, it is unnecessary to decide, for the reason, that prescription would only commence to run in such cases from the date of the demand, by the judgment creditor, and non-payment by the Sheriff; and there is no proof in the record of any such demand, two years or more, prior to the institution of this suit. O. P. 766.

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

Merrick, O. J.,

having been of counsel in the original suit, declines sitting in this case.


text:
    Widow F. B. D’Aquin et als. v. J. S. Armant.
    A judical sale of a lease imposes upon the purchaser the obligation of paying the price of adjudication to the vendor, and also that of paying the rent accruing after the sale to the lessor, according to tho terms of the lease.
    Where a sale is made <i la folie enchere, and the property is adjudicated to the vendor himself, he can not recover from the purchaser at the first sale the deficiency in the price.
    from the District Court of the Parish of St. James, Duffel, J.

      A. <& A. Pitot, for plaintiff. Berault & Legendre, for defendant.
   Buchanan, J.

The plaintiffs sue defendant for the difference in price and expenses, caused by the failure of plaintiff to comply Avith his hid at an auction sale of property of plaintiffs, Avhich Avas adjudicated to defendant on March 15th, 1856, for the sum of forty-five thousand dollars: the same property having been, in consequence of defendant’s default, re-advertised and re-sold by auction at his risk, on the 1st of April, 1856, for the sum of forty-one thousand and forty-two dolla'rs.

The total amount claimed by the petition, from defendant, is ten thousand five hundred and thirty-eight dollars, for which the three plaintiffs ask judgments severally, in the folloAving proportions :

Widow D’Aquin, as tutrix of her minor children, OAvners of three-eighths of the property sold, for. $3,951 86

Edgar Montégut, owner of three-eighths of same, for. 3,951 86

L. Lambert Bown, OAvner of two-eighth's of same, for. 2,634 57

$ 10,538 29

The sum thus claimed appears to be the aggregate of the following particular items :

1. Difference between the amount bid for the property at the first sale ($45,000) and at the second sale ($41,042). $ 3,958 00

2. Amount of rent from date of first sale to the end of the lease sold, assumed by the purchaser at the first sale, but not assumed by the purchaser at the second sale. 5,934 12

3. Advertisement of second sale in various newspapers. 17 00

4. Funeral expenses of a slave adjudicated to defendant, Avhich slave died in the interval between the first and the second sale. 10 00

5. Cost of notarial act of sale and certificates of mortgage appended thereto (first adjudication). 33 00

6. Bill of Auctioneers for charges and commissions on second sale.. 586 17

$10,538 29

The defendant urges the following grounds in defence of this action :

1st. That two of the plaintiffs, Montégut and Bown, gave no written authorization to the Auctioneer to sell the property which was adjudicated to defendant.

2d. That the adjudication to defendant was not made on the terms and conditions fixed by the family meeting and the order of sale; but varied therefrom in an essential particular.

3d. That the plaintiffs, Montégut and Bown, illegally caused a large portion of the property which was the subject of the first sale, to be adjudicated to themselves at the second sale; by reason whereof, there was not a real sale of said property at the second crying'.

4th. That if said re-sale á la folie enchére be held valid, then the purchase at said sale by Bown, of the leases for @4000, involved the assumption by the purchaser, of the payment of the rent for the unexpired term of the leases.

1. Upon the first ground, we think the consent of Montégut and Bown to the sale of the property of which they were joint owners, by auction, is evidenced in a sufficiently authentic form, namely, by the record from the Court of Probates, in which it is set forth that the sale at auction upon the terms fixed by the family meeting of the minors D’Aquin, is consented to by the joint owners with said minors, the said Montégut and Bown.

2. Secondly, the terms and conditions of sale prescribed by the family meeting, were as follows : “ That said bakery, together with the slaves thereto attached, horses, carts, and all other implements and utensils, together with the leases of the premises, shall be offered for sale in lump, on the following terms : one-fourth cash, and the balance at one, two, and three years credit, without interest, in notes endorsed to the satisfaction of the administrator; that the stock of flour and biscuit be sold for cash, and in case said sale should not reach the valuation made of said property in the inventory, then the slaves, horses, carts, implements, stock of flour and biscuit, and lease, to be sold at public auction, on the following terms, viz : the slaves, one-third cash, and the balance at one year, payable in notes endorsed to the satisfaction of the administrator; the carts, horses, implements and stock of flour and biscuit, for cash, and the lease payable monthly; all notes to bear eight per cent, interest from maturity.”

The District Court homologated the proceedings of the family meeting, and ordered the sale of the property to be made on the terms and conditions above detailed.

The material variation suggested by defendant, consists in the insertion of the following paragraph in the advertisement of the first sale, after the announcement of the terms of sale as above set forth :

II est bien entendu que l’acquéreur du dit établissement devra payer, en sus du montant de Fadjudication du dit établissement, les loyers á bail des terrains et édifices servant a l’exploitation de la boulangerie, conformémont aux conditions des baux ci-aprés détaillés, et que les dits loyers ne doivent pas étre déduits du prix de Fadjudication de la boulangerie et des esclaves.”

We do not find, in this announcement, any variation from the terms of sale, as fixed by the family meeting. It was held by this court, in the case of Bartels v. Creditors, 11 An. 434, that the public sale of a lease for account of the lessees’ creditors, imposed upon the purchaser the obligation of paying the price of adjudication to the vendor, and also that of paying the rent accruing after the sale, to the lessor, according to the terms of the lease. We considered the bid for the lease in such a case, as a premium which the bidder was willing to give for the transfer of the lease to himself, with all the obligations, as well as all the rights thereto attached, from the moment of the adjudication. And indeed it is difficult to perceive how we can arrive at any other conclusion. The lessee, unless prohibited by the terms of the lease, may transfer all his rights under the lease to another person. C. C. 2696. But the transférree takes those rights cum onera of the obligations of the transferror, under the commutative contract thus transferred. That contract is an entirety, and the transferee is put in the place and stead of the transferror.

It is out of the power of the lessee, if he should even desire to do so, to sever his rights from his obligations, and to transfer the one without the other. No man can transfer to another more right than he himself possesses. If, indeed, it were the lessor who sold the lease, the transferee would, of course, be vested with the right to collect and keep the rent accruing thereafter; because that is the right of the lessor under the contract.

The announcement by the auctioneer, therefore, in his advertisement of the sale of the leases of the D’Aquin Bakery,, that the purchaser would be bound, over and above the price of adjudication, for the payment of the rent to the lessors, to accrue after the sale, according to the terms and conditions of the several leases, was merely a notice, out of abundant caution, to bidders who might be ignorant of the law ; but which notice added nothing to the conditions of sale, as fixed by the order of court. On the contrary, the legal effect of the adjudication would have been the same, had this announcement been omitted from the advertisement.

3. Upon the third ground of defence to this action, the proof is, that at the sale made upon defendant’s folie enchére, two of the plaintiffs, Montégut and Bown, were bidders, and that portions of the property sold were adjudicated to the former, for the price of nineteen hundred and twenty-five dollars; and to the latter, for the price of fourteen thousand and fifteen dollars.

It was held, in the cases of Baham, v. Bach, 13 La. 287, and Banks v. Hyde, 15 La. 391, that it is illegal for the owner to bid at an auction sale of his property, and that he cannot enforce a sale made under such circumstances.

Also, in the case of Municipality v. Hennen, 14 La. 586, it was held, that the vendor could not recover from the adjudieatee at an auction sale, the deficiency in the price of the same property, when resold a la folie enchére, if the vendor purchased at the second crying.

Upon the authority of these decisions, which have established the law on this point for twenty years past, we must consider the defendant as released from his bid of the 15th of March, by the act of the two plaintiffs, Montégut and Bown, to the extent of the interest of those parties, being five-eighths, in the property sold.

4. The next ground of defence set up by defendant is, that Bown and Rodriguez, the purchasers at the sale, á la folie enchére of the leases of the premises occupied by the D’Aquin Bakery, assumed to pay the rents from the day of sale, as they should fall due.

We have already expressed our opinion of the legal effect of the sale, for account of the lessee, of an unexpired lease. And in this connection we have declared, that the express announcement at the first sale, that the rents would be payable by the purchaser, over and above the amount of his bid, was nothing more than what would have been the legal effect of the bid, without such announcement. Now, it is a fundamental principle of the sale a la folie enchére, that the second crying must be on the same terms and conditions as the first— as if the first adjudication had never been made,” is the expression of Article 2589 of the Code. But the plaintiffs pretend that the defendant voluntarily submitted to have the second crying made on different conditions, in this respect, from the first.

This inference is drawn from a passage in a document signed by defendant, three days after the adjudication ; in which document defendant renounces the adjudication, from inability to comply with its terms; waives the notice, (mise en demeur,) required bylaw for sales a la folie endúre, consents that the property be re-sold at his risk, after ten days advertisement; and obliges himself to make good whatever deficit there might be at thé second crying. Then follows the passage upon which the plaintiffs base their pretention to change the terms of the sale of the leases; and which we transcribe at full length.

Le présent consentement est donné a la condition expresse, demandée par moi a mes risques et périls, que les esclaves seront vendus séparément, aux mernes conditions et termes que celles de ^adjudication qui m’a été faite, les effets mobiliers pour du comptant, el les bawx des edifices aux conditions accordées á F. B. D’Aquin <& Co., le preneur des baux devra donner cautions satisfai-santes.”

We cannot agree to the construction put by the counsel of plaintiffs upon this written consent of defendant. It will be borne in mind that defendant bought the slaves, stock in trade and all the appurtenances of the D’Aquin Bakery, including several unexpired leases of the buildings and premises occupied by said bakery, in one lot, for a price payable one-fourth cash, and the balance at one, two and three years credit. But in renouncing the adjudication, and consenting to a re-sale at his risk, the defendant seems to have considered that it would be more to his advantage to have the property sold in separate lots, and some of it upon different terms from the first sale. He, therefore, required that the slaves should be sold separately, partly for cash and partly upon a credit: that the movable effects should be sold for cash ; and that the leases should be sold upon the conditions granted, (by the terms of the contracts of lease,) to F. B. D’Aquin & Co.

We can attach no other signification to these last words, than that the price bid for the leases should be made payable at terms corresponding to the falling due of the rent by D’Aquin & Co. under their leases.

The defendant cannot have forgotten that he was bound himself, under his own bid, to pay the rent, in the place and stead of D’Aquin & Co. to their lessor, over and above the price of adjudication of the lease. And we will not presume, in the absence of an express declaration by him to that effect, that his intention was to remain bound himself for the accruing rent, until the end of the lease, notwithstanding the sale and transfer of the lease to another ; in one word, to remain burdened with the obligations, although divested of the rights of lessee.

If, therefore, the plaintiffs have re-sold these leases, at the second crying, without imposing upon the purchaser the obligation of paying the rent to the lessor, (supposing such a thing possible, without the formal consent of the lessor,) they- cannot be allowed to hold defendant bound for such rent, but must pay it out of of their own pockets. We will add, that the expressions of the advertisement of the second sale and of the proces verbal of the second adjudication, relative to the terms of sale of the leases, are obscure, and do not appear to us necessarily to imply the very material variation from the terms of the adjudication to defendant which the argument of plaintiff’s counsel suggests.

In accordance with the above conclusions, we deduct from the claim of plaintiff, 1st, the item of $5934 12, rent of the premises, less $179 58, being the amount diie by defendant for half-a-month, from March 15th to April 1st, 1856, which intervened between the first and second adjudications ; and 2d, five-eighths of the deficit at the second crying of the property, with five-eighths of the charges of the second sale, being the proportion claimed by Montégut and Bourn in the first, third, and sixth items of plaintiffs’ account of damages, as detailed in the commencement of this opinion.

We state the account between the plaintiffs severally and the defendant, as follows:

John S. Armant, Dr., to Widow D’Aquin, tutrix, &c—

For 1 of @3958 difference between the two adjudications.... @1484 25 “ f of lialf-a-month’s rent of premises occupied as D’Aquin

Bakery, at @359 16 per month. 67 33

“ J of items No. 3, 4, 5 & 6 in bill of particulars at page 2

of this opinion. 242 31

Total.@1793 89

John S. Armant, Dr., to Edgar Montégut—

For 2 of half-a-month’s rent of premises leased, (March 15th

to April 1st,).@67 33

“ |- of items 4 & 5 in bill of particulars above. 16 12

Total.@83 45

John S. Armant, Dr., to L. Lambert Bown—

For 2-8 of half-a-month’s rent as above.@44 89

“ 2-8 of item 4 and 5 of bill of particulars. 10 75

Total.@55 64

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed ; that the Widow D’Aquin, tutrix of the minor'children of F. B. D’Aquin, recover of defendant, John 8. Armant, seventeen hundred and - ninety-three dollars and eighty-nine cents, with interest from judicial demand ; that Edgar Montégut recover of John S. Armant eighty-three dollars and forty-five cents with interest from judicial demand; that L. Lambert Bown recover of John S. Armant fifty-five dollars and sixty-four cents, with interest from judicial demand ; that the defendant, John S. Armant pay the costs of the District Court; those of appeal to be borne in equal proportions by the plaintiffs and appellees.


text:
    H. Tenny v. A. Provosty, Syndic.
    The creditor of an insolvent cannot litigate his demand for a privilege in a separate suit against the syndic. The privilege must he settled contradictorily with all the creditors upon a tableau of distribution filed by the syndic.
    from the District Court of the Parish of Pointe Coupée, Ratliff, «L, presiding.

      Brewer, Collins & Leake, for plaintiff. Clark & Bayne and A. Provosly, for appellants.
   Buchanan, J.

This suit was brought after the surrender, and against the syndic, for the purpose of establishing a privilege upon property surrendered by McRae to his creditors, and in the hands of the syndic. The objection made to the introdnction of evidence in support of plaintiff’s claim, urged in this form, should have been sustained.

Privileges must be settled contradictorily with all the creditors, upon a tableau of distribution filed. The creditors cannot litigate their demands separately against the syndic. Hennen’s Digest, 740, section 10, and cases there cited. See also case of Fabre v. McRae and Provosty, lately decided.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; and that this suit be dismissed, without prejudice, at plaintiff’s costs, in both courts.


author: Merrick, 0. J.

text:
    A. Robinson v. J. S. Miller.
    Tho appeal will be dismissed by tbe court ex officio, when it appears tliat the judgment appealed from was rendered in a suit by attachment, and the record does not show that any property or credits of tho defendant wore attached.
    from the District Court of the Parish of East Feliciana, Haralson, J.,

      J. B. Smith, for plaintiff and appellant. R. J. Bowman, curator ad hoc, defendant.
   Merrick, 0. J.

We are constrained to dismiss the appeal in this case ex officio.

The suit was commenced by attachment and garnishment, and a verdict and judgment was rendered in favor of defendant.

The note of the evidence shows that some of the garnishees answered ; and as to one, Mrs. Law, the interrogatories were taken as confessed. After a careful examination of the record, we are unable to find the answers of the garnishees, or the evidence that Mrs. Law has been served with a copy of the interrogatories or cited to answer them.

■ As it does not appear that there are funds in the hands of the garnishees, or any particular credits attached, it is quite evident that if we should (on an examination of the case on the merits) be of the opinion that the plaintiff had a cause of action against the absentee, we could not render judgment in his favor, for want of property attached to sustain the jurisdiction.

We observe further that the garnishees, who are to be affected by the judgment, have not been made parties to the appeal. See Condon v. Samory, 12 An. 801.

It is, therefore, ordered, adjudged and decreed by tho court, that the appeal in this case be dismissed at the costs of tho appellant.


text:
    D. Rowland, use, &c., v. Jules Levy.
    Where a negotiable note was made payable at the office of a mercantile firm in New Orloans, and a remittance made by the maker to such firm on account of the note — Held : That the remittance was not a valid payment of the note, the firm at whose office the note was payable, not being the agents of the holder,
    from the District Court of the Parish of Pointe Coupee, Ratliff, J., presiding.

      T. J. & W. II. Cooley, for plaintiff and appellant. F. H. Far-rar, for defendant.
   Land, J.

The defendant made his promissory note as follows:

“ $322 25. New Orleans, March 5, 1857.

Six months after date, I promise to pay to the order of David Rowland, three hundred and twenty-two dollars and twenty-five cents, at the office of Messrs. C. W. Pollard & Co., New Orleans, value received.”

The note is endorsed “ David Rowland — pay to the order of J. L. Wibray, Esq., cash, N. Y.”

At maturity the note was presented for payment by the Southern Bank, the holder, at the office of Pollard & Co.; payment was refused, and the note protested.

The defendant remitted the sum of $250, on the 7th of September, 1857, to Pollard & Co., to be applied in part payment of the note. The receipt of the remittance was acknowledged on the 10th of the same month.

C. W. Pollard & Co. failed to pay the $250 received from the defendant on the note. The question presented, under the pleadings is, was this a valid payment of the note pro tanto 1

The defendant contends, that as the note was made payable at the office of C. W. Pollard <& Co., the plaintiff, David Rowland, thereby constituted them his special agents to receive payment of this note, and that the payment of the $250 to them was valid.

The note was negotiable, and had been endorsed by Rowland before maturity, and the obligation of the defendant was to pay the holder, and not Rowland.

The holder was the Southern Bank, and it is not pretended that C. W. Pollard Co. were the agents of the bank, with authority to receive payment of the note.

A payment is not valid unless made to the creditor or his authorized agent. C. 0. 2136.

McLaren & Brown are now the holders of this note, and sue in the name of Rowland. The $250 were not paid to the creditor, the holder of the note, or his authorized agent, and did not, therefore, constitute a valid payment, pro tanto, of the note.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed, and that plaintiff, for the use of McLaren & Brown, recover of the defendant, the sum of three hundred and twenty-two dollars and twenty-five cents, with five per cent, per annum interest thereon, from the 5th day of September, 1857, and costs in both courts.


text:
    Daniel Edwards v. Steamer Cahawba et al.
    A bill of lading of gas pipes contained this clause, u not accountable for leakage, rust or breakage, if properly stowed5’ — Held: That the burden of proof in such a case is upon the carrier to show proper stowage.
    PPEAL from the Fifth District Court of New Orleans, Eggleston, J.
    X1. Durant & Hornoi", for plaintiff. Singleton <& Clack, for defendants and appellants.
   Merrick, C. J.

“ In October, 1857, there where shipped from New York, to plaintiff, as consignee here, on board of the steamship Cahawba, a certain quantity of gas pipes in bundles. Plaintiff claims that the pipes were rusted and that the defendants are responsible. Defendants urge that the exception in the in the bill of lading, (introduced in evidence by plaintiff,) ‘ not accountable for leakage, rust, or breakage, if properly stowed ’; throws the burden of proof of the damage having been caused by the negligence or fault of defendants on the plaintiff.”

It appears to us, that this defence to the action cannot avail the defendants. The proof is clear, that the iron pipes were injured by salt water, so much so, that at a sale at public auction, ordered by the Port "Wardens, they did not bring one-tenth part of their value in a sound condition.

The bill of lading and the duty of the common carrier, obliged him to deliver the merchandize in a sound condition, and were it not for the clause relied upon by defendant, no one would doubt his liability. Under the commerciallaw, therefore, the facts present a prima facie case of responsibility on the part of the common carrier. But it is said that the clause, not accountable for rust if properly stowed,” relieves the carrier from such otherwise apparent liability.

A consideration of the clause, however, shows, that the exception is not absolute, but conditional, viz, if the goods be properly stowed, and as the District J udge correctly remarks, the party invoking the protection of a condition, is obliged to establish it by competent testimony.” The burden of proof was, therefore, upon the defendant to show proper stowage.

But there is in the record the testimony of a witness who says, the iron pipes were well stowed. The Judge of the court a quo, who heard the witness, seems to have disregarded his testimony, either because it is somewhat in conflict with the testimony of the other witnesses, or because of the supposed interest of the witness.

The record does not enable us to say, that the District J udge erred in his appreciation of the testimony of the witness.

Judgment affirmed.


author: Cole, J.

text:
    Peter Hommerich v. R. A. Hunter, State Treasurer.—Same v. same.
    The Treasurer of the State is not vested with the same powers as the Auditor to audit, adjust and settle claims against the State. He cannot refuse to pay a warrant drawn upon him in a legal form by the Auditor, if there are funds in the treasury appropriated by law for the purpose specified in the warrant.
    The writ of mandamus is the proper remedy to bo exercised by the holder of a warrant drawn by the Auditor on the Treasurer, to enforce the performance of the duty imposed by law on the latter officer.
    from the District Court of the Parish of East Baton Rouge,

      Wilson, J., presiding. A. M. Bunn and A. S. Herron, for the relator. J. G. Morgan, for defendant and appellant.
   Cole, J.

These consolidated" cases represent that plaintiff obtained from E. W. Robertson, Auditor of Public Accounts for the State of Louisiana, warrants directing the Treasurer of the State of Louisiana to pay to him certain sums of money out of the funds appropriated for that purpose, being for work actually performed and authorized under the Act of the Legislature No. 143 of the year 1858, “ to appropriate five thousand dollars out of the funds belonging to the First Swamp Land District to drain and reclaim lands in the parish of West Feliciana.” i

It appears that the State Treasurer refused to pay these warrants, on this ground among others, that from his construction of Act No. 143, the money claimed by these warrants was not due plaintiff, whereupon the latter instituted these actions to compel the State Treasurer by mandamus to pay the warrants.

Rules were taken upon the Treasurer to show cause why the writ should not be granted, and after trial thereof, were made absolute.

Defendant has appealed.

No objection is made to the form of the warrants given by the Auditor .in these cases.

The duties of the Auditor are defined by the Act of 13th March, 1855, to regulate the office of Auditor of Public Accounts. Sess. Acts, 1855, p. 125.

It is his duty, § 5, “ to audit, adjust and settle all claims against the State payable out of the treasury, except such claims as may be expressly required by law to be audited and settled by some other officer or person.”

“ To draw all warrants upon the treasury for money, except only in cases otherwise expressly provided for by law.”

By section 8 it is provided, That all persons having claims against the State shall exhibit the same, with the evidence in support thereof, to the Auditor of Public Accounts, to be audited, settled and allowed, within two years after such claim shall have accrued; and no claim or debt shall be allowed against the State but such as shall have been exhibited to the Auditor, except only when it shall be proved that the claimant or creditor has vouchers which he could not produce to the Auditor on account of sickness, unavoidable accident, or absence from the State.”

By section 10, whenever the Auditor may think it necessary for the proper settlement of any account, he may examine the parties and others on oath, touching any fact material to be known in the settlement of sueli account, and for that purpose may issue subpoenas or commissions, or compel witnesses to attend before him, and give evidence in such manner, and by such means as are allowed by courts of law.

Section 12 prescribes the form of the warrant to bo drawn by the Auditor upon the Treasurer.

Section 15 makes it his duty, at the request of any person interested, who may be dissatisfied with his decision on any claim exhibited to him to bo audited, to refer the same, with his reasons, to the General Assembly without delay.

Section 25 provides for the punishment of the Auditor if he should knowingly issue any warrant upon the Treasurer, not authorized by law.

It is clear from these provisions of the law, that the Auditor has the power to determine what claims shall be paid, except such as are required by law to be settled by some other officer or person.

Section 5 of the Act relative to the State Treasurer declares, that it shall be the duty of the Treasurer to disburse the public money upon warrants drawn upon him according to law, and not otherwise. Sess. Acts, 1855, p. 448.

The meaning of this section is, that when the warrant is drawn as provided by law, and signed by the one authorized to do so, that then he is to pay it.

It cannot be interpreted to signify that the Treasurer is vested with the same powers as the Auditor, to audit, adjust and settle all claims against the State. If such had been the intention of the Legislature, they would have specified his duty to be, not only to pay, but also to audit and settle all claims against the State, and for this purpose, to be vested with powers similar to those of the Auditor.

If the Treasurer can refuse to pay a warrant drawn upon him in legal form by the Auditor, then his power is superior to that of the Auditor, and the office of the latter becomes almost unnecessary; for, after the accounts had been audited by the Auditor, the-Treasurer could require the claimant to prove again his demand before Mm, and the creditors of the State would be harrassed by long delays and expenditure of money at the seat of government, before their just demands would be paid.

The object of the law was to create two officers with distinct authority : the one was to audit and settle claims against the State, and to draw warrants for the same upon the Treasurer; and the duty of the latter was to pay the same.

The form of the warrant, as prescribed by the Legislature, manifests the intention of the law. It is as follows :

“State of Louisiana, 1 No.-. Auditor’s Office. $

I certify that the sum of-dollars and — cents is due by the State of Louisiana to-for-, and I do hereby direct that the Treasurer of the State of Louisiana pay to the said-, or order, the sum of ———■ dollars and — cents, out of the funds appropriated for that purpose.

——--, Auditor.”

The law in this form authorizes the Auditor to direct the Treasurer to pay the warrant; the supremacy of the Auditor, as t0 the power of settling the claim, is thus recognized by the Legislature.

Section 20 of the Act relative to the State Treasurer provides that, " If the Treasurer shall wilfully and illegally refuse to pay any warrant lawfully drawn upon the treasury, having the funds in hand to pay the same, he shall be deemed guilty of a misdemeanor in office, and upon conviction thereof, shall be fined in a sum of not less than five hundred dollars for the use of the State, and shall forfeit and pay to the holder of such warrant fourfold the amount thereof, to be recovered against him and his security on his official bond.

This section provides for the criminal prosecution of the Auditor, and does not exclude the holder of the warrant from his civil remedy to obtain payment of the same.

It is not a valid argument against our construction of the law, that the Auditor might draw warrants unauthorized by law.

Such an argument, if legitimate, would justify the interference of public officers with the peculiar functions appropriate to each, and would produce such collisions in the administration of public affairs, as to materially impede the proper and necessary operations of government.

Besides, the law has not clothed the Auditor with such great powers, without also seeking to protect the treasury; not, however, by authorizing the Treasurer to again audit and to contravene the opinion of the Auditor, but by providing a punishment for the Auditor, if he violates the law.

Section 25 of the Act relative to the Auditor declares, “ That should the Auditor knowingly issue any warrant upon the Treasurer not authorized by law, or should he wilfully neglect or refuse to perform any duty enjoined by law, or be guilty of any oppression or extortion, or receive any fee or reward for the performance of any duty not allowed by law, or should he, by color of his office, knowingly do any act not authorized, or in any other manner than is required by law, or illegally use or misapply any money belonging to the State, he shall be deemed guilty of a misdemeanor in office, and upon conviction, be fined not more than one thousand dollars, and imprisoned not more than five years, and be dismissed from office.”

Our opinion is, that when a warrant is drawn, to be paid out of money previously appropriated for the same, the Treasurer cannot refuse to pay it, on the ground, that according to his construction of the law, it is not due, but that he is bound to pay the same, if there are funds in the treasury appropriated for a purpose specified in the warrant.

If upon the face of the warrant, it appears that it is drawn for a consideration for which the law has appropriated funds for its payment, the Treasurer caunot refuse to pay it on the ground that the amount is not really due, or that the Auditor has misconstrued the law.

If, however, it should appear upon the face of the warrant, that it is for a consideration for which the law has made no appropriation, then he must refuse to pay it. This is in accordance with section 13th of the Act relative to the Auditor, which provides :

“ That no warrant shall be drawn by the Auditor, nor paid by the Treasurer, unless the money to pay the same has been previously appropriated by law ; nor shall the whole amount drawn for or "paid under any one head, ever exceed the amount appropriated by law for that purpose.”

The Authority given by this Article to the Treasurer to refuse to pay, is merely when no money has been appropriated to pay the consideration of the warrant.

Section 13 also explains in part the meaning of section 5th of the Act relative to the duties of the Treasurer, which provides : That the Treasurer shall disburse the public money upon warrants drawn upon him according to law, and not otherwise.”

If, for example, no appropriation had been made for the payment o’f the consideration of the warrant, then it would not be drawn according to law, and the Treasurer must refuse to pay it; he must refuse, also, if the amount drawn for or paid under any one head, exceeds the amount appropriated for that purpose, or if the warrant does not, as provided by section 12th of the Act relative to the Auditor, certify for what cause the warrant is due, and out of what funds it is to be paid, for if the warrant did not thus specify these particulars, it would not be drawn according to law.

The Auditor is obliged by section 24th of the Act relative to his duties, to submit at each regular session of the Legislature, and as often as the General Assembly may think proper, all his books, accounts, vouchers, &c., to a joint committee of the Legislature. Besides, he is obliged to give a bond for the faithful performance of his obligations.

This supervision of the Legislature, the bond and the punishment for breach of duties, appear to guard the State sufficiently from wrongful action on the part of the Auditor, particularly when it is considered that the Treasurer is empowered to refuse payment of warrants when, upon their face, they show that they are drawn to pay something for which the Legislature has not provided payment.

As the warrants in these consolidated cases are drawn according to law, and upon their face appear to be so drawn, the Treasurer is obliged to pay the same. It is not necessary for us to decide, in these cases, whether the Auditor had the right to issue the warrants.

We are also of opinion that the writ of mandamus was the proper remedy for plaintiff in these cases.

The payment of these warrants was a ministerial duty imposed upon the Treasurer, and if creditors of the State could not resort to this writ, but must depend upon an ordinary action, the greatest injustice might be suffered, all public works might be stopped, and the action of the government arrested.

Articles 829 to 832 of the Code of Practice declare, that the writ of mandamus is an order issued in the name of the State, by a tribunal of competent jurisdiction, and addressed to an individual, or corporation, or court of inferior jurisdiction, directing the performance of some certain act, appertaining to their duties ; that the object of this order is to prevent a denial of justice ; and that this order may be issued at the discretion of the Judge, even when a party has other means of relief, if the slowness of ordinary legal forms is likely to produce such a delay that the public good and the administration of justice will suffer from it.

Judgment upon the rules in these consolidated cases affirmed, with costs.


text:
    R. W. McRae v. His Creditors.
    A creditor wlio has a privilege on property surrendered by an insolvent to his creditors, has a right to obtain an order for the sale of the property for cash, to satisfy his debt, but the proceeds of the sale are to be distributed upon a tableau filed and homologated.
    PPEAL from the District Court of the Parish of Pointe Coupeé, Ratliff, J., presiding.

      A. Prevosty and Ciarle <& Bayne, for appellant. Brewer, Collins <6 Leach, and E. Phillips, for appellees.
   Buchanan, J.

Thompson, Hieronymus <£• Co., creditors upon the schedule of the insolvent, voted at the meeting of creditors for the sale, for cash, of certain mules surrenderd by the insolvent, and upon which said Thompson, Hieronymus & Co. claimed the vendor’s privilege.

This meeting of creditors was held on the 17th of April, 1858. On the 8th of June, 1858, a rule was taken, by Thompson, Hieronymus cB Co., on the syndic to sell the mules for cash. The syndic answered this rule by declaring that he did not know whether the mules sold by the movers to the insolvent were in his, the syndic’s, possession; and that he had been informed that the insolvent had disposed of many, if not all of them, before his surrender of property. There are other matters pleaded in the answer to the rule, which do not require notice.

Upon the issue thus joined, it was proved that the movers had sold to the insolvent, before his failure, fifteen mules, of which the price is unpaid ; and that twelve of the said mules are now on the plantation surrendered by the insolvent, and in the possession of the syndic.

The District Court made the rule absolute, and the syndic appealed.

There was no error in the judgment of the District Court, ordering the twelve mules to be sold; and the rights of the other creditors are sufficiently protected by that decree, which, while it recognizes the vendor’s privilege, directs that the debt be paid by the syndic, in due course of administration. This can have no other meaning than that the proceeds of sale are to be distributed, upon a tableau filed and homologated.

There can be no question of the obligation of a syndic to sell, with all practicable expedition, according to the terms fixed by the meeting of creditors, the property surrendered by the insolvent.

The appellees have filed an answer to tlie appeal, asking for damages for a frivolous appeal.

As the judgment appealed from was not a money judgment against the appellant, the Article 907 of the Code of Practice cannot be well applied. Long v. Robinson, 13th An. 467. Besides, to mulct the syndic, appellant,.in his representative capacity for a frivolous appeal, would either inflict a penalty upon innocent parties, (the mass of the creditors represented by the syndic,) or would be making a new party to the appeal, namely, Auguste Provosty, personally, which we do not feel at liberty to do.

Judgment affirmed, with costs.