text:
    Benjamin R. Gantt v. Elbert Gantt.
    If any part of the stock of a particular partnership consists of real estate, the articles of co-partnership must be in writing’, and made according to'the rules prescribed for the conveyance of real estate. Consequently, in an alleged partnership for planting, parol proof is inadmissible to prove a partnership in the crops.
    The plaintiff claimed to be the partner of the defendant in planting, and sued for a settlement of the partnership, praying, that if the court should decide there was no partnership,’ that he might have judgment against the defendant for the hire of his negroes, during the time they worked on the plantation, and for money _expended by him for the defendant, and for the use of the plantation. Heidi That the plaintiff, not having been able to establish, by legal evidence, the existence of the partnership which was denied, might introduce evidence to recover, under the alternative prayer. '
    from the District Court of Opelousas, Overton, J.

      Linton and Dupré, for plaintiff.

      T. H. Lewis and James M. Porter, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff alleges, that in the year 1840, he entered into partnership with the defendant, and that all the property acquired, both real and personal, was to be considered, and was to be to the equal benefit of both ; that they took possession of public land, with a view to acquire it by preemption or otherwise, and did acquire it, with the joint funds of the partnership ; that great improvements were made upon the land, converting it from wild land into a sugar estate; that he paid the great expenses of stocking the plantation and putting it into operation, amounting to the sum'of five thousand dollars; that he received the two first crops of cotton, the proceeds of the sale of which were insufficient to reimburse his advances, and left a great balance in his favor. . He alleges, that the defendant kept the next six crops made before the year 1849 ; has not accounted for the proceeds; but has invested them in lands and negroes purchased in his own name.

The plaintiff further alleges, that at the commencement of their farming operations, he placed on the premises, and in the possession of the defendant, ten slaves belonging to him, individually, all of whom labored on the premises, from the year 1840 until the spring of 1849 ; that one of the slaves remains on the plantation to the present time, and one died during the partnership. He prayed, that the partnership might be dissolved; that the defendant might be ordered to render an account and settlement of the same; and that he might have judgment for one-half the land, improvements and fixtures, according to their valuation in the spring of 1849, together with the value of the services of the slave, Lind, up to the time of settlement';, that he might be decreed, to be the owner of an undivided half-interest in pertain slaves purchased with the partnership funds. He further prayed, in the alternative, that if the court should be of opinion that he could not recoVer half the real property and slaves, that he might recover the improvements made on the land, and the hire of his ten slaves brought into the partnership, from the year 1840 till 1849.

The defendant, by rule, called upon the plaintiff, to produce in court any book, paper, public or private act, or letter, by which he intended to prove, that a particular partnership existed between them, as stated in his petition, and filed an answer denying the allegations contained in his petition.

In a supplemental petition, the plaintiff claimed but a third of the value of the crops. He made a further claim of $750 for the price of a slave, belonging to him, sold in Alabama by the mother of the parties, to pay a debt due by the defendant to her; and $300 advanced, in 1842, to the defendant, to pay for the hire of four slaves from his mother, which he had brought to Louisiana. The defendant also denied these claims.

On the trial of the cause, the plaintiff offered parol evidence to prove the contract of partnership, as stated in his petiton. It was objected to by the defendant on the ground, that a partnership in real property, could not be proved by verbal testimony. The objection was sustained by the court, and the evidence rejected; to which the plaintiff excepted.

The petition alleged a partnership in lands and negroes. Now, our code provides, that “if any part of the stock of a particular partnership consist of real estate, it must be in writing, and made according to the rules prescribed for the conveyance of real estate.” The verbal testimony, to establish the existence of the partnership in lands and negroes for the purpose of planting, was inadmissible.

It is said, however, that the land, at the timé of the formation of the partnership, was public property, and not the joint property of the partners; that the slaves were the separate property of the partners, and that, therefore, the plaintiff might prove by parol, a partnership in the improvements and crops. But the settlement on the public lands, could only be with a view to their acquisition by title. They have been since acquired. The partnership as it is now, and as it was contemplated by the parties, at the time it is said to have been formed, is one, in which part of the stock consists, of real estate; it cannot, therefore, be proved by parol.

The crops grow out of the lands, negroes and improvements, and industry applied to them. Undoubtedly, a partnership may be formed in growing crops, and the contract may be proved by parol. But the proposition in this case is, that a partnership in the crops may grow out of a partnership in lands and slaves, which is not, and cannot be proved, for the reason that it existed, though not proved. It is not a partnership, in the crops by contract; but, by consequence of a supposed partnership in lands and negroes. But this partnership not being proved, is as though it did not exist, and, therefore, the consequential partnership does not exist. The district judge, therefore, properly rejected the testimony to prove a partnership in the crops, growing out of the supposed partnership in the real property; and we find nothing in the case of Theale v. Lacey. 5th Ann. 548; or Gardiner v. Bataille, 5th Ann. 597, adverse to his decision. Indeed, no bill of exceptions was taken in the first case; and what we said in the last case, corresponds with and confirms our present views.

The plaintiff further offered parol evidence, to prove the value of the hire of his negroes. The court rejected the evidence on the ground, that the matter was connected with and grew out of the partnership, and no evidence in relation thereto could be admitted, until the partnership was proved.

The plaintiff expressly alleged in his petition, that he placed on the premises and in the possession of the defendant, ten negroes of his own private property, all of whom labored on the premises, from the year 1840 until the spring of 1849; and prayed, that in case the court should be of opinion that he could not recover as a partner, he might recover the hire of the ten slaves brought into the partnership from 1840 to the spring of 1849.

The defendant having denied, a partnership, and the plaintiff being unable to prove it, we are bound to presume it did not exist. Then the above allegations show, that the defendant has enjoyed the services on his plantation, of ten slaves, belonging to the plaintiff, for eight years. Equity entitles him to a reasonable compensation for their hire, if there was a misunderstanding as to the objects for which their services were furnished by the plaintiff, and enjoyed by the defendant.

The fact, that they labored on the defendant’s plantation, can be proved by parol; the value also of their labor. Then, why may not the proof be given in this case, and a reasonable compensation be allowed 1 The reason given is, that the services were connected with an alleged partnership. But the partnership was denied by the defendant, and could not be proved by the plaintiff. Therefore, in law, it did not exist; and the only reason for excluding the testimony, not existing, it should have been admitted.

It is undoutedly true, that it would have prevented confusion and delay, and would have been better to have compelled the plaintiff, by exception, to elect his remedy, and not to have prayed for relief in the alternative. He has now been,compelled to pursue that course, by the decision, as to evidence, and has been greatly retarded in the progress of his suit. But, if he can establish his ownership of the ten slaves ; that they have been employed by the defendant eight years ; that their services were valuable; and that their value has been enjoyed by the defendant without making any compensation, or having any just defence, we think the plaintiff is entitled to relief, and that the parol evidence offered, should have been received to establish these facts.

As the case must be remanded for another trial, the allegations in the supplemental petition should be considered by the court. If the defendant has realized the proceeds of the sale of a slave belonging to the plaintiff, he is liable for them; unless he have a defence against the claim, and also, for any other money of the plaintiff which has been appropriated to his use.

It is desirable that all these claims, for the investigation of which the cause is remanded, should be set forth with more exactness by the plaintiff, as for example : by stating the precise services of his slaves and the value thereof, each year; also, the name of the slave sold in Alabama; the time and place of the sale; the vendee; and how and why the mother of the parties who sold the slave of the plaintiff, appropriated the proceeds to the defendant’s debt. A clear and distinct supplemental petition, setting forth the claims which can be investigated, unconnected with those which cannot, and are decided, would greatly aid the trial of the case.

The judgment of the district court is therefore reversed, at the cost of the appellees ; and the case is remanded for another trial, according to the principles contained in this opinion.


source: Caselaw Access Project

author: Ettstis, C. J.

license: Public Domain

text:
    John W. Bowles v. His Creditors.
    The appellants claimed a subrogation to a mortgage, to secure a note, which, they alleged, they had paid. The mortgagor made a cession of his property, before any act of subrogation had been passed. Held: That an agreement to subrogate was inoperative, and that the rights of creditors, having become fixod by the cession of property, could not be affected by a subrogation made subsequently.

      APPEAL from the District Court of St. Mary, Voorhies, J.

      T. H. Lewis and Thomas Maskell, for appellants.

      John Moore, for appellee.
   The judgment of the court was pronounced by

Ettstis, C. J.

This case comes before us, on an appeal taken by Dunlop, Moncure Co., Henry Moncure, of Richmond, and other creditors of the insolvent,fromajudgmentofthe Court of the Fourteenth Judicial District, sitting in the parish of St. Mary, rendered on a tableau of distribution filed by the syndic.

John Moore, a creditor of the insolvent, who was allowed a privilege on certain objects seized under execution, beside the benefit of the judicial mortgage resulting from his judgment, has appeared as appellee, and asked that the judgment of the court be affirmed. The case has been argued between the counsel for the appellants, and the appellee in person.

It is contended, by the appellant, that there is error in the judgment of the court below, in not allowing the house of the appellants, Dunlop, Moncure <$- Co., a claim for $2000, and interest on the proceeds of the sale of the insolvent’s plantation, being the amount of one of the notes given by the insolvent, for the purchase of the plantation which, it is alleged, Dunlop, Moncure Co. paid to G. Hydel, the vendor, and to the rights of which, the present holders of the note are said to have been subrogated.

There was no conventional subrogation, as to this note, completed before the failure. On the evidence, the case presented is one of an agreement to subrogate, which was not carried into effect until after the acceptance of the cession of the insolvent. It stands on the same footing -as an agreement to give a security, a mortgage, or to pay a debt. Nothing done after the acceptance of the cession of property, can change the rights of creditors as fixed thereby.

Dunlop, Moncure Co. were mortgage creditors of the insolvent, and had an undoubted right to pay this note to Hydel; and on payment to him, would have been subrogated of right to all its privileges and mortgages. The difficulty, in our minds, on this subject, is the want of proof that this note was paid by the appellants. We think the evidence decidedly preponderates in favor of its having been paid by the debtor himself, and not by the appellants. It is obvious, that when subrogation to a debt is claimed as resulting from payment, the fact of payment ought to be affirmatively established. The note having been once paid by the debtor, Bowles, nothing could revive it to the injury of other creditors. We think, therefore, there is no error in the jndgment of the district court in this respect.

It appears that the note was not given up by Hydel, until after the cession of property was accepted, and that the appellants then paid a balance of interest due, for which Hydel had retained the note. This interest ought to have been paid out of the proceeds of the mortgage property, and had the attention of the judge been called to the subject, the court would have allowed it in the judgment, or on an application afterwards. As the amount paid has not been proved, we do not feel ourselves authorized to change the judgment on the tableau, for this small sum, and thus throw the costs of the appeal on the syndic only.

The next matter complained of by the appellants, relates to the decision of the court on a mortgage debt of the appellants. Dunlop, Moncure <$• Co., paid for some slaves purchased by Bowles, and were subrogated to the vendor’s privilege, and took a mortgage on them, and on the plantation, for the amount of $3800. The judgment of the district court reduced this debt to some $450; the appellants claim, $2579, with interest, as still due under the mortgage.

This mortgage debt was to be paid by the proceeds of the crops of Bowles, to be shipped to the appellants house in Richmond, for the three years succeeding its date, February, 1846. One-third of said debt and interest was to be paid annually, from the proceeds of each crop, and the balance was to be subject to the order of Bowles. From the accounts rendered by the appellants, we think the district judge was justified in his conclusions as to the amount due under this mortgage. No question of law appears to be involved in them. The district judge has given his reasons, in detail, which we do not think it necessary to restate. It is sufficient to say, that after a full examination, we .concur in them.

"We find no error in the other matters on the judgment appealed from, which is affirmed with costs.


author: Rost, J.

text:
    John Fahey, Tutor v. R. J. Anderson et al.
    The plaintiff sued for land, on a Spanish grant, which had been confirmed by the United States commissioner, directing a location and survey to be made of the land. The survey was never made. The United States subsequently sold the land, and the defendant claimed under that title. Held; Under the circumstances, the defendant was entitled to the land in question. A sale by the United States of any portion of the public land, before the issuance of a patent certificate on a Spanish grant, is valid, unless the land he embraced within the stated boundaries of the grant which had been confirmed.
    from the Dislxict court of St. Laadxy. Cushman J.

      John E. King and E. Ii. Martin, for plaintiff.

      Linton and Dupre, for defendants.
   The judgment of the court was pronounced by

Rost, J.

This is a petitory action. The plaintiff’s title is a commissioner’s certificate, confirming the claim of their ancestor-, John McDaniel, to a tract of land containing two hundred superficial arpents, founded on settlement and occupancy prior to the year 1803, by one James M. Teal.

The defendants called in warranty the lxeirsof their vendor, who appeared, and after pleading the general issue, set up title by purchase from the United States, on the 30th of December, 1815. They- are in actual possession of the land, and have pleaded the prescriptions of ten, twenty and thirty years. There was judgment in their favoi', from which the plaintiff, in his capacity of tutor, appealed.

The commissioner’s certificate of the "plaintiff describes the land as situate in the county of Opelousas, on bayou Cliicot, said to be bounded on one side by Madame Christopher Teal, andtohave'suclx form and marks, natural and artificial, as shall be represented in a plat thereof, to be returned by the principal deputy surveyor.

The land being only said to be bounded by Madame Christopher Teal, and there being no actual possession to show on which side of Madame Teal's land it was situated, the description is too vagué to identify and set apart any definite portion of the public domain. The plaintiff’s claim was confirmed under an act of Congress, passed in 1809. By the provisions of that act, the claimant was bound to cause to be made at his expense, under the direction of the surveyor general, the survey mentioned in the certificate of the commissioners; and no patent certificate could issue, until a plat of the land was filed in the office of the register of the district in which the land is situated. This survey, alone, could have separated the plaintiff’s land from the public domain; and as it never was made, and neither the plaintiff nor their author appear to have taken any steps after the confirmation, to perfect their title, the defendants’ vendor could not, by the use of reasonable diligence, have ascertained the location of their claim; under that state of facts, it has been uniformly held, that before the issuing of the patent certificate, the sale, by the United States, of any portion of public land not necessarily embraced within the stated boundaries of the tract confirmed, is valid.

It is shown, that on a township map, made in 1816, and approved in 1829, the plaintiff’s claim received the location for which he now contends; but as the land had been sold in 1815, to the defendants’ vendor, who was then in actual possession of it, we are unable to pei'ceive how this location on the township map, would avail the plaintiff, even if it could supersede the patent certificate, an admission which we are not prepared to make.

This view of the case, renders it unnecessary to notice the plea of prescription.

The judgment is affirmed, with costs.


text:
    James H. Battaille v. Theodore C. Battaille.
    The fact of there having existed a partnership in comrncndam between the parties, does not prevent the plaintiff from recovering of the defendant sums of money paid for the use of the latter, and which were not taken from, or connected with, the partnership.
    from the District Court of St. Landry, Overion, J.

      Dupré and King, for plaintiff.

      Lewis and Porter, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff claims divers sums of money alleged by him to have been paid for the use of the defendant, and has fully made out his claim to the amount allowed by the district court. The defendant and appellant alleges the following grounds of error: 1st. That a partnership, in which the defendant was a partner in commendam, existed at the time those payments were made, and that the said plaintiff could not sue him for an individual debt, till after a final liquidation of the partnership concerns. 2d. That if the plaintiff is entitled to recover, the defendant should have been credited with $1500, the proceeds of a crop which the plaintiff is alleged to have received.

The sums paid by the plaintiff to the use of the defendant, were part of the price of a plantation purchased by the latter, on his private account, and are not shown to have been withdrawn from the partnership. Had the plaintiff himself sold the plantation, it cannot be seriously contended that he would have been compelled to wait till after the expiration and final liquidation of the partnership, before he could enforce payment; and no reason can be given why, after payment of the price, he should not have the right, which no one would contest to the vendor. The rule invoked by the appellant does not extend to a case like this.

The testimony adduced to show, that the plaintiff had received the proceeds of one of the crops, is not positive. The district judge did not consider it satisfactory, and we cannot say that he erred. This matter, besides, was not pleaded in the defendant’s answer.

The evidence offered, to show that the plaintiff had no visible means of making the payments alleged, is insufficient to falsify the evidence in the record, that he did make them.

We see no cause to interfere with the judgment. It is therefore affirmed, with costs.


author: Rost, J. Smi>ei.:l, J. and Preston, J.

text:
      Francois Duplessis et al. v. John F. Miller.
    Where wood-land lying between two tracts of land, the ownership of which is disputed, has not been possessed or enclosed by either, both having been in the habit of cutting wood from it, neither of the parties can claim by prescription.
    Where both parties claim under a confirmed Spanish grantj the first confirmation must take the land.
    from the District Court of St. Martin. Overton, J.

      W. B. Lewis and E. O. Brent, for plaintiffs.

      Morse and' -Nichols, for defendant.

      This case was decided at the Septemberterm, 1850, but was not furnished to the Reporter that year.
      Eustis, C. X, was not present during the term,

   The judgment of the, court was pronounced by

Rost, J.

We are of opinion that the bills of exception in this case were well taken. The copies of original titles and mesne conveyances found in the records of the land office, are nothing more than the evidence adduced before the special tribunal established by Congress for the adjustmentof land titles. The register can no more certify that evidence under the general powers vested in him, than the clerks of our courts have authority to certify the evidence adduced in the trial of cases, and taken down in writing.

If the originals are lost, their existence and contents may be proved by secondary evidence; but the certificate of the register is no evidence at all. He should have been examined as a witness, and made to testify to the verity of the record.

If we considered the original muniments of title of the plaintiffs as material to their cause, we would deem it our duty to remand the case; but as the opinion we have formed on the merits would be unaffected by their introduction in evidence, we will proceed to the final adjudication of this controversy.

This is a petitory action; both parties have obtained confirmations from the United States, and both claim title by prescription. After a thorough examination of the evidence, we are satisfied that the plea of prescription is equally untenable on both sides. The land in controversy is wood-land; it is claimed as forming a part of two tracts of land, one of which is occupied and owned by the plaintiffs, and the other by the defendant. . It has never been enclosed by either. The only evidence of acts of possession, is the testimony of a witness, who states that he has seen both the plaintiffs and the defendant cut wood upon the land, since they both took actual possession of the cultivated portion of their respective tracts. It is not even shown, satisfactorily, which of the two first went into possession, although the evidence preponderates in favor of the defendant.

Under that state of facts, the rights of the parties must be determined upon their titles.

The plaintiff does not pretend to have a title in form. He admits that he claims under an inchoate Spanish grant. His application to the land office for the confirmation of that grant, was reported upon favorably, on the first of May, 1815, and confirmed by an act of Congress, approved on the 29th of April, 1816.

The title of the defendant is a confirmation by the board of commissioners, bearing date the 13th of July, 1812.

Neither party having a title in form at the change of government, under the authority of the case of Chouteau v. Elchard, 2 Howard, 344, assented to by us in the case of Pontalba v. Copeland, 3d Ann. 88, and in subsequent cases, the confirmation first in date must take the land.

It is urged, that the party who obtained the confirmation set up by the defendant, had committed a fraud upon the plaintiffs. Even if he did, subsequent bond fide purchasers cannot be affected by that fraud.

The judgment of the district courtis affirmed, with costs.

Smi>ei.:l, J. and Preston, J.

As at present advised, we are not prepared to assent to the rule of evidence laid down by Judge Rost, that copies of the record of documents in the land office, duly certified by the register of the land office, the original documents being lost, are not admissable in evidence-The adoption of the rule is not essential to the decision of this case, as without it, the judgment of the district court should be affirmed.


author: Preston, J.

text:
    William Smith v. Henry Gibbon.
    Where prescription had run. against the mother of certain minor heirs, before her death, for more than ten years, and for more than three years against the heirs after their majority, the claim will be bai-red by ten years’ prescription.
    A suit which was voluntarily abandoned, does not interrupt prescription. C. C. 3485.
    from the District Court of St. Mary, Overton, J.

      W. C. Dwight, for plaintiff.

      Henry Gibbon, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff brings suit for a tract of land situated and having thirty or thirty-five arpents on the east side of the river Teche, at its mouth, where it enters into Berwick’s bay, with the depth that belongs to it by the titles. There is no dispute between the parties as to the land claimed. The plaintiff’s title calls for but four hundred and fifty superficial acres, therefore, the claim in his brief, for a greater quantity, is inadmissible. Both hold under an order of survey in favor of Eleanor Berwick, made by the Baron Carrondelet, on the 3d of July, 1797, and confirmed by the board of commissioners for the adjustment of land titles, for the western district of the territory of Orleans.

He exhibits, in evidence, an authentic act of sale from her to John Shaw, dated the 21st of July, 1820, made before the parish judge of the parish of St. Mary, and recorded that year, though the date of the record is not shown. John Shaw and his children, his wife being dead, so Id the land to the plaintiff, by an authentic act daledhhe 18th of November, 1844. They warranted the vendee only against themselves and heirs, and he paid but a thousand dollars for the land, showing that he was aware of the adverse claim and possession, and that he would be compelled to sue for the land. Four months afterwards, he commenced suit for the land, but, at the trial, took a voluntary non-suit, and commenced this suit on the 25th of June, 1846.

The defendant traces his title to Henry Johnson, who is called in warranty. Johnson purchased the land from Christopher Adams, by an authentic act of sale passed before the parish judge of the parish of St. Landry, on the 12th, and duly recorded in the parish of St Mary, where the land was situated, on the 22d of May, 1812.

The defendants also gave, in evidence, an act of sale of the land, under private signature, from William Newman and his wife, Eleanor Newman, the grantee, dated the 5th of March, 1807, to Leonard Claiborne. It was acknowledged by William Newman, before the parish judge of the county of Altakapas, on the 14th of April, 1807, but was not recorded in the parish of St. Mary, until the year 1821. It does not appear- that it was recorded in the office of a notary public, as required by the Old Civil Code, 306, art. 228, to give it effect against bond fide purchasers, previously to the act of 1813. Supposing John Shawp bond fide purchaser-, and nothing appears to the contrary, the title of the plaintiff might perhaps prevail, unless barred by prescription.

It is important, therefore, for us to know, whether the mark of Eleanor Newman to this act, is genuine or not. For, if it is her genuine act, we should require proof, of more decided acts of apposition on her part, to the possession of the defendants, to interrupt their prescription; and if counterfeited, we would not be satisfied with doubtful proof of possession by the defendants.

Besides, if it be a genuine instrument, the inquiry might arise, if it became necessary, whether the children and their vendee were not obliged by the warranties of their grandmother, there being no evidence, that their mother renounced her succession.

We are of opinion, that the cross of Mrs Newman to the deed of herself and husband, to Leonard Claiborne, dated the 5th of March, 1807, is her genuine signature. The signatures of the two witnesses to the deed, are proved to be genuine. One of them is dead; the other went to Texas ; his residence is unknown, and death, probable. They are both proved to have been men of good character. One of them who wrote .the deed, F. L. Turner, was after-wards a distinguished judge of this State, and maintained a high character for integrity, until his death.

The teste to the instrument’s in these Words: “In witness whereof, they (that is, Mr. and Mrs. Newman, the vendors,) have hereunto set their hands and seals, the day and year above written.

Teste his William X Newman, [i. s.]

F. L. Turner, - mark.

Luke Bryan, . ' her

Eleanor X Newman, [l. s.] mark.

They thus witness, not that he, William Neioman, but that they, Mr. and Mrs. Neioman, haye set their hands and seals to the instrument. They attested that which was false, or the instrument is genuine. Witnesses always sign after the parties to the act, or mention the particular signature they witness. It is impossible to believe, that Turner left this instrument, which he had drawn and attested, go out into the hands of Claiborne, if, it was false, to become immediately the subject of litigation and investigation at a time when it could be successfully impeached by Christopher Bryan and others, and with it, his integrity as a man.

The testimony of Christopher, that Mrs. Newman refused to sign the instrument, would have little weight against the defendant’s testimony, which is equivalent to that of two witnesses that they saw her sign it. But he further states, that he saw the instrument with the signature of her husband and the two witnesses, and without her signature. This is not absolutely inconsistent with the genuineness of the instrument, as she might still have signed before it was delivered to Claiborne. It is so improbable, however, that we are bound to believe, that after the lapse of forty years, this witness may be mistaken. It is more reasonable than to believe, that her other brother-in-law and another honest citizen, would have conspired with her husband and Claiborne, to defraud her of a tract of land in her immediate neighborhood, and that of her father, brother, relations and friends, when the fraud would, probably, be discovered immediately, and the counterfeiter might be brought to justice. Newman, at least, did not fear such a result, for he immediately exhibited the instrument, and acknowledged it before the judge of Ms county, and Claiborne, soon after, made the land the subject of a partnership with C. Adams.

It is to be obsrved too, that the name of the husband and wife are written with the same ink. When Christopher Bryan saw the instrument, the names of the husband and witnesses were to it, but not the wife’s name. If not, it was signed afterwards, not by the husband, for he mado Ms mark, but by a fourth counterfeiter and conspirator, to defraud the wife. This is too improbable, and the defendant’s counsel has made many other suggestions, which, with the inspection of the original instrument, by consent of both parties, satisfies us, that it is genuine.

• We will now examine the pleas of prescription. Henry Johnson had purchased the fourth of the original concession from Joseph Berwick, the brother of Mrs. Newman, to whom it had been jointly conceded by Baron Carronclelet, on the 3d of October, 1811; and another fourth of the same concession, from Mr. Merryman, to whom Joseph Berwick had sold it. The grant had never been formally divided, and wishing to purchase the whole, Johnson would naturally inquire, who was the co-proprietor. Adams exhibited the title, which we have found to be genuine; and we have not the slightest proof from the brother Stephen Merryman, Bryan, or any relation of Mrs. Newman, that Johnson learned from any source, that it was suspected or that she made any claim to the land. On the 12th of May, 1812, he purchased the land in controversy, from Adams, by an authentic act, and had it duly recorded. He shortly after-wards had the land surveyed by Johnson, a surveyor of the United States, his agent pointing out the boundary of the land. It was known in the neighborhood, as the land of Johnson. Extracts of four assessment rolls, in 1818, 1823, 1837 and 1838, are exhibited, in which it is assessed as his land. It is rendered probable by the testimony of .Curtis and Murphy, that it was assessed in his name, for other years. He offered to sell the land in 1819 and 1821, visiting it with the intended buyer. Others proposed to buy parts of it of him. He appointed an agent near the premises, to protect, on his behalf, the cypress timber. He engaged an Indian named Portion, to plant date trees for him on the land. In the fall of 1819, he put Francois Duval on the land, to take care of it, who built a house and made small crops on it. Johnson promised to pay Mm for his improvements. Ho continued on it until the summer of 1828, when he left. But Durand and Truffer remained by the permission of Johnson. Being a nonresident, Johnson came to visit the'land, as his own, every year or two, and it was notoriously known in the neighborhood as his land. The possession of his vendee and his successors, from 1839 until the institution of this suit, in 1846, does not appear to be disputed.

Since the genuine sale to Claiborne, in 1807, neither Mrs. Newman, her heirs, or vendees, appear by the evidence, ever to have possessed an acre of the land for a day. Her husband died on another place, in 1810 or 1811. She then moved nearer to, but not on the land; she then moved down the bay, and further off; she then moved up near Franklin; then,'two miles further up on the Teche; then, to the Indian bend, and then, to the Vermillion bayou; but never to the home given to her by the Baron Carrondelet, in her infancy. She sold it indeed, a second time, to her son-in-law, John Shaw, in 1820, by a paper title; but he too went to the Vermillion, and never to the island in dispute. As far as appears by the record, neither of them ever sent an agent to the land, or took any steps with regard to it, until the plaintiff purchased from Shaw and his wife’s heirs, not a title, but their claim to the land.

This evidence satisfies us, that the civil possession of the land in dispute, was delivered by Adams to Johnson, in 1812, as expressed in the title, and that he held it as owner. Code, 2455. That he held it by the boundaries described in the title, and by the lines run by the surveyor in presence of his agent, in 1814. Code. 3464. That about that time, he took actual possession ; that in 1819, at least, he had a corporeal possession,' which continued ten years, and that, afterwards, his civil possession, at least, was continuous, uninterrupted, peaceable, public and unequivocal, until 1839 ;-from which time, until the commencement of this suit, the corporeal possession has been notorious, and is undisputed.

Thus, Johnson and his vendees have held possession, about thirty years advei-sely to John Shaw and his vendor, under a duly recorded title. The claim of John Shaw is therefore clearly barred by prescription. The mother of his children died in 1827, and plaintiff claimed\inder them, as her heirs, of one-half the property. Many legal objections might be stated to their claim. One that is manifest, is sufficient. At least seven years had elapsed, from the corporeal possession, taken by F. Duval of the property for Johnson, in the fall of 1819, before the mother’s death. The youngest child became of age in April, 1842. More than three years elapsed from that date, before the institution of this suit in June, 1846, which, added to the seven, makes more than ten years’corporeal possession against majors residing in the State.. The minority of the children did not, as contended by the defendant, interrupt, but only suspended the course of prescription. Code, title Prescription, chap. 3, sec. 6.

It is to be observed, that the first suit does not interrupt the prescription, because it was voluntarily abandoned. Code, art. 3485.

The judgment of the district court is affirmed, with costs.


author: Preston, J".

text:
    Thomas Maskell v. Freeborn Sisson.
    Where the terms of an arbitration bond are ambiguous, and the arbitrators who gave the award were not sworn, the penalty for the forfeiture of the bond cannot be recovered. C. C. 3078.
    Where an attorney has collected money for his client, which is kept in his hands, prescription does not ran against that portion of his fee which is covered by the amount in his hands.
    APPEAL from the District Court of St. -Mary, Voorhies, J.
    The district judge, upon the subject of the arbitration bond, decided as follows: “Before considering the evidence on the account sued on, it is necessary to dispose of the question relative to the alleged forfeiture of the arbitration bond. This instrument is not free from ambiguity. It was evidently the intention of the parties to submit the correctness of the charges, amounting to seven hundred and six dollars and ninety-six cents, to arbitrators. Were it limited to this, it would be clear; but the expression which follows, ‘If the charges as allowed in the account are reduced, &c.,’ would seem to imply that their intention was to submit the whole matter. Be this as it may, it is clear that neither the parties, nor the persons named as arbitrators, concurred in opinion as to the construction of the instrument. Under such circumstances, it is clear the defendant cannot be held responsible. Besides, there is another ground equally fatal to the plaintiff’s right of recovery. The oath required by law was not taken by the arbitrators; this was essential, to give them the legal capacity to act. C. C. 3078.

      Thomas Maskell, in propria persona,

      W. C. Dwight, for defendant.
   The judgment of the court was pronounced by

Preston, J".

The plaintiff sues for the balance of an account for fees and costs paid by him for defendant, including a fee of five hundred dollars claimed by him as due by the defendant to the heirs of James Plaisted, an attorney, and by them transferred to him. He also claims five hundred dollars, the penalty for an alleged violation of an agreement to arbitrate their accounts. For the reasons given by the district judge, we think the claim for the penalty of the arbitration agreement cannot be allowed. The claim for Plaisted’s'tee would undoubtedly have been prescribed, as plead and decided by the district judge; but as Plaisted always had the means in his hands to pay himself, as a part of those means are now in the plaintiff’s hands, we do not think the defendant entitled to recover them; and are of opinion, that the judgment in his favor, on his demand in reconvention, is erroneous.

It is thereforo reversed; and it is decreed, that there be judgment for defendant ngainst plaintiff’s demand, and that they pay the costs of this appeal; the plaintiff to pay the costs of the district court.


text:
    Henry E. Lawrence v. James B. Birdsale et al.
    Where the sheriffhas seized and sold on execution, property which did not bring the amount of prior special mortgages, the sale is not an absolute nullity. It may be annulled at the suit of a prior mortgagee, or tho defendant in execution; but third persons cannot treat it as a nullity; and, until the sale be set aside by judgment, it cannot be treated collaterally as a nullity.
    APPEAL from the District Court of St. Mary, Voorhies, J.

      W. C. Dwight, for plaintiff.

      J. O. Olivier, for defendants.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff claims from the defendant, the rent of a house and lot in the town of Franklin, by virtue of a written lease from Walter Bra-shear to him, dated the 13th of April, 1843. The house and lot was seized on the 21st of August, 1843, at the suits of Field and others against Walter Bra-shear, and was sold and delivered by the sheriff to William, C. Dwight, on the 4th of November, 1843. He transferred the property and rents due to him to the plaintiff.

The house and lot, as well as the rents, had been seized on the 12th of April, 1843, by the sheriff, in the suit of Barrett v. Walker, on a twelve month’s bond of Allen and Brashear, and advertised for sale; which sale was enjoined. The injunction was dissolved, and the property sold under this execution on the 7th of December, 1844, to Henry G. Dwight, Who intervenes iu this suit, and claims the rents.

The district judge considered both sales nullities, because in neither was the property adjudicated for enough to pay the special mortgages existing upon it, and to the payment of which it was liable, before the claims of the seizing creditors, as required by article 684 of the Code of Practice.

The first sheriff’s sale was not absolutely.void ; the nullity was only relative. The defendant, or special mortgagees, might have caused it to be annulled for the reason assigned. Their rights are probably not affected by the sale. But third persons cannot treat it as a nullity; for the sheriff, by his deed, delivered possession, received the price, and the purchaser remained in possession more than a year. It is true, the property had already been seized, also the rents, before the seizure under which the plaintiff purchased it, and the first seizing creditor might have opposed the sale or claimed the proceeds. He did not do so; and, until the sale is set aside by judgment, it cannot be treated collaterally as a nullity.

The plaintiff is entitled to recover the rents from the 4th of November, 1843, until the 7th of December, 1844 ; say, two hundred and sixty-one dollars.

It is therefore ordered, that the judgment of the district court be reversed; and decreed, that the plaintiff recover from the defendant, two hundred and sixty-one dollars, with costs in both courts.

Same Case — On a Re-hearing.

ON the application for are-hearing, the judgment is amended and rendered for the plaintiff, against the defendant, for two hundred and seventy-two dollars and ninety-one cents; and that defendants pay costs in both courts, except those caused by the intervenors, which they, by the judgment of the district court, were condemned to pay.


author: Preston, J. Rost, J.

text:
      Diana Deshautels v. A. B. Fontenot, her Husband.
    Before the adoption of the Civil Code of 1808, under the Spanish law which then governed, the children of female slaves, which were the separate property of the wife, became community property. But, under the Code of 1808 and since, it has always been held, that such children were the separate property of the owner of the mother. The adoption of the code operated upon and regulated the rights to such property, even where the parties were married prior to its adoption. Parties are presumed, in contracting marriage, to consent that their rights, in the absence of a marriage contract, are to be governed by such laws as the legislative power of the country may adopt. It would he inconvenient, impolitic, and produce confusion, to have the property of different families governed by different general laws.
    from the District Court of St. Landry, Voorhies, J.

      Swayze and Taylor, for plaintiff.

      W. B. Lewis, for defendant.

      E. IT. Martin, for intervenor.

       This case was decided in September, 1850, but the decision of the court has not been given to the reporter. The decision now reported, was rendered on a re-bearing.

   The judgment of the court was pronounced by

Preston, J.

The slave Helen was the paraphernal property of the plaintiff. She married the defendant in 1806, before the adoption of .the Code of 1808, and when, under the Spanish jurisprudence, the-children of slaves became the property of the community of acquets. Under the Code of 1808, it has always been held, that the children of slaves were the separate property of the owner of their mother.

We have come to the conclusion, that the children of Helen, born after the adoption of that code, belong to the plaintiff. She made no marriage contract with her husband; they simply celebrated their marriage. In doing so, it is not probable that either spouse, in reality, referred to the laws on the subject of the community of acquets. In the absence of an agreement of the parties, the correct view to take of their contract, is, that they submitted the regulation of their marital rights to the existing laws, subject to such changes by general laws, as might be adopted by the legislative power of the government, for the interest of the country.

Under our representative form of government, the laws are considered the will of the people, expressed through their legislative representatives. In theory, therefore, the defendant is supposed to have consented to the change of the law of community by adopting, through his representatives, the Code of 1808.

Should the community of acquets be entirely abolished by law, the repealed law would not remain in force to govern the future, or even the past acquisitions of spouses, whose marriages had been celebrated before its repeal. It would be inconvenient, impolitic, and produce confusion, to have the property of different families governed by different general laws; and it would be much more conformable to reason, that all property and the rights of individuals should be governed by the existing general laws.

We have always held, that the act of 1844, materially changing the law of community, by giving the surviving spouse the usufruct, during life or while Unmarried, of the community property, took effect as to marriages celebrated and property acquired before its passage. There is no difference, in principle, between that case and the present. In this, the community of acquets is terminated by judgment; in that, by death. The well settled principle, that married persons removing from the place of their marriage to a country where the laws, governing their marital rights, are different, subject their acquisitions to the laws of the place to which they remove, by analogy, supports the views we have taken of this case.

We contract marriage with a view to progeny, and in the evening of life, at least, toil for our children alone; having married, on the supposition that they would take our places and inherit all our property. Should the Legislature enact, that the surviving spouse, or the first born, should inherit our whole estate, it would materially change the object of our marriage, and of our subsequent labor; and yet all would be subject to the new provisions of law.

The power to change our general laws is inherent in society, and a change in those laws, must necessarily produce a correspondent change in the rights and relations of individuals. Marriage is a civil contract, to be sure; but it is a contract, which the interest of society require should be regulated in its consequences, and especially in its effects upon property, by the general and existing laws of the State. Cases might possibly grow out of the contract of marriage, in which the hopes created by existing laws might be so strong and legitimate, that they could not be disappointed by subsequent legislation, without destroying our confidence in the laws; but we do not consider the present such a case.

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

Rost, J.

I adopt the conclusions of Justice Preston.


author: Eustis, C. J. Preston, J.

text:
    The State v. Lucky N. Price, et al.
    The admissions of the dying declarations of the deceased, in evidence, in prosecutions for homicide, is not inconsistent with the statute giving the accused the right of meeting the witnesses face to face. The rule of evidence by which such declarations are established under the common law, has not been changed by the statute.
    The right of the accused to receive a copy of the indictment, and a list of the persons who are to pass on his trial, is one created in his interest and for his benefit, and he is competent to waive it.
    from the District Court of Natchitoches. Jones, J.

      James Welsh, district attorney, for the State.

      John B. Smith, for appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

We have, on consideration, come to the conclusion, that the questions of law presented by the counsel for the prisoners, were correctly decided by the district court.

We do not understand that .the admission of the dying declarations of the deceased in evidence, conflicts with the provision of the Constitution, which gives the accused the right of meeting his witnesses face to face. The rule of evidence, under which the declarations were received, has been established under the common law, in cases of homicide, and has been adopted in our courts ever since their organization.

Nor do we think that the court erred in granting a speedy trial to the prisoners, which they had a right to claim, under the 107th article of the Constitution, unless sufficient legal grounds were presented to authorize a postponement of the trial. We think the right of the prisoner to receive a copy of the indictment, and of the list of persons who are to pass on his trial, is one created in his interest and for his benefit, and that it was competent for him to waive it.

The other grounds for setting aside the verdict are, perhaps, determined by the decision of the court, as to the right of the prisoners to be tried as asked by them. At all events, they are not before us in a form in which we can notice them.

The judgment of the district court is therefore affirmed, with costs.

Preston, J.

The prisoners were indicted, tried and convicted, in the parish of Natchitoches, of the murder of Eli Kay. Being sentenced to imprisonment for life, they have appealed to this court.

The indictment was found by the grand jury, on the 9th of June, 1851. The prisoners claimed an immediate trial, probably in consequence of the court being about to adjourn, and their unwillingness that the cause should be continued until the ensuing term, the offence charged not being bailable. Whereupon, the following proceedings took place, on the 10th of June, 1851, and are made a matter of record:

“And now, on this day, came the district attorney, who still prosecutes in the name of the State of Louisiana, and Lucky N. Price, the prisoner, in proper-person, who claimed to be now put upon his trial, before the court here, for the matters charged in the indictment exhibited against him, when the district attorney gave the court to understand and be informed, that two entire days had not yet elapsed since a copy of tile indictment, and list of the jury which are to pass on his trial, had been delivered to him. Whereupon the court stated to said prisoner, that the law accords to him the privilege and the right to have,- before his trial, a copy of the indictment and list of the jury which are to pass on his trial, delivered to him at least two entire days before he shall be tried, and that until such delivery shall be regularly made, the court will not direct him to be put upon his trial. Whereupon, the prisoner, after conference with his counsel learned in the law, declared to the court that he was fully advised of the rights and privileges accorded by law, in this behalf, but that it was his wish and intention to renounce, and that he. does hereby renounce, every and all such rights and privileges, and he now here puts himself on his trial. The court then declared, and admonished the prisoner, that if such rights and privileges were renounced, he would not again be heard in this behalf, either on motion for a new trial in arrest of judgment or otherwise. Whereupon, the prisoner declared that he was well content, and that he persisted in being put forthwith upon his trial: and the district attorney consenting thereto, there came a jury, and he was tried. The same proceedings took place with regard to the other prisoner, Morris Johnson.

The prisoners urge, as a ground for reversing the judgment against them, that in a trial for a capital offence, they could not renounce their legal right to be served with a copy of the indictment and list of the jury that were to pass upon their trial, two entire days before their trial, and that then- consent to waive the privilege was not binding upon them.

In the case of the State against Hornsby, it was held by the late court of errors and appeals, in criminal cases, that, in a trial for a capital offence, the consent of the accused to the separation of the jury, after being sworn, was invalid. 8 R. R. 558. In the case of the State against Desmond et al., we yielded with reluctance to this decision, and cannot, therefore, extend the principle to cases which it does not necessarily embrace. 5th Ann. 398.

In the progress of a criminal trial, there are forms of law prescribed purely for the benefit of the accused. He has the right to plead not guilty, but may waive it, and plead guilty. Of this class, is the right and privilege to a copy of his indictment and list of his jury, for two entire days before his trial.

These are entirely different from forms which -are prescribed for the public good. The prisoner must be prosecuted by indictment, in a capital case, and not otherwise. He must be arraigned publicly, and cannot waive it by pleading privately. He must appear in person on the trial, even if bailed, and not by attorney. For the certainty which should attend criminal prosecutions, for the public example, and the happy effects of an open acquittal or conviction, these forms cannot be dispensed with. They are unlike those in which the public have no interest, which are purely personal to the prisoner, and which, therefore, in our opinion, can be waived^with his consent.

The accused were, moreover, entitled to a speedy trial by a jury of the vicinage. If circumstances might delay this trialfor a term, they might well waive part of the time allowed by law for the examination of the qualifications of the juiy, for the immediate enjoymentof the greater constitutional right to a speedy trial. They did so, after being properly counselled and wisely admonished by the judge, of the consequences in case of their conviction, and we think, therefore, have no legal cause of complaint.

It is further urged, as a ground for granting a new trial, that some of the jurymen who tried the prisoners, were not members of the original panel, as appears by the record. This may have resulted from the necessity of summoning talisxnen, in consequence of exhausting the panel. From whatever cause it occurred, it is not a ground for reversing the judgment; The jurors were not challenged as they came to the book, and were, therefore formally accepted by the prisoners, as good and lawful jurors. The point now raised, was argued elaborately, and with great ability, in the case of the StaTe v. Dubord, and decided against the accused. "We adhere to the decision. 2d Ann. 732.

On the trial of the case, the district attorney offered many witnesses to prove the dying declarations of the deceased, Eli Kay, to the introduction of which testimony, the counsel of the prisoners objected, on the ground, that under article 107 of the Constitution of the State of Louisiana, they had a right to be confronted with the witnesses, and that the declarations of Kay, made in their absence, and without cross-examination could not be received in evidence. The testimony to prove the declarations was admitted in evidence, the declarations having been made in extremis, Kay knowing the fact that he could not survive, and expressing himself to that effect at the time he made them.

Declarations made when the party is at.the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced, by the most powerful considerations, to speak the truth, have ever been admitted in evidence, in England and the United States. A situation so awful, is considered by the law, as creating an obligation equal to that which is imposed by a solemn oath in a court of justice.

When the dying victim ceases to exist, he is no longer a witness, and cannot be confronted with the accused; but his dying declarations remain as evidence, and the accused is only entitled to be confronted with the witnesses to those declarations. The right of the accused to meet the witnesses against him, face to face, existed in England, but this was the reasonable view taken of it as to dying declarations. So, in many of the States of the Union, the principle has been expressly engrafted into their Constitutions as to criminal trials. And yet dying declarations have always been admitted in evidence in those States. So, in our own State, the Constitution of 1812 contained the same constitutional right, expressed in the same words found in the present Constitution. And yet, it was never considered as having abolished this important species of evidence. On the contrary, it has always been regarded as a Constitutional declaration of a great common law right, and to have the full effects of the common law principle, but no more.

Acquiescence in the opinion, for forty years, that the constitutional right does not exclude the proof of dying declarations, renders it impossible to reverse the opinion at this late period.


author: Pheston, J.

text:
    The State v. Jonas and Sam, Slaves.
    The act of June 1st, 1846, for the trial of slaves, is not unconstitutional. The 81st article of the Constitution provides for the vesting of criminal jurisdiction in justices of the peace by the Legislature. There is no conflict between that arricio and the 78th article of the Constitution.
    The true ground upon which confessions of persons accused of crime, which have been extorted by violence, or induced by promises, are excluded from evidence, is, that the violence and hope destroy all confidence in the 'confessions. Upon true principle, the objections should go rather to the credit of the confessions, than to their admissibility as evidence. If they he obtained, under such circumstances, as to force the belief they are true, they ought to he received as evidence.
    theCourtof Justicesof the Peace in the Parish of Caddo.
    J. C. Beall and John Woods, Justices.

      John S. Gilbert, district attorney, for the State.

      B. L¡ Hodge and Thomas T Land, for prisoners.
   The judgment of the court was pronounced by

Pheston, J.

The prisoners were accused of the murder of William Boseman, in the parish of Caddo, on the 7th of December-, 1850. They were tried by a tribunal, composed of two justices of the peace and ten slave owners, residents of the parish where the crime -was committed, were found guilty and sentenced to death. They have appealed.

It is first urged, that the act of the 1st of June, 1846, organizing the tribunal for their trial, is unconstitutional. If so, a serious question would arise, whether an appeal would lie from the decisions of the tribunal to this court.

We have no doubt, however, of the constitutionality of the law and of the tribunal organized by it. The 81st article of the Constitution provides, that justices of the peace shall have such criminal jurisdiction as shall be provided by law.

By the act of 1846, the Legislature has charged the first district court of New Orleans, assisted by slave owners, with the trial of slaves accused of capital crimes perpetrated in the parish of Orleans. In other parishes, it confides that jurisdiction to two justices of the peace of the parish, assisted by the slave-owners. There is no conflict between articles 78 and 81 of the Constitution, as contended.

That the Legislature have the power, under the article of the Constitution cited, to confer the jurisdiction upon the justices of the peace, can no more be doubted than the constitutionality of the exercise of it by the district court. Now, in both cases, the humanity of the law has provided, that slave-owners shall assist these judicial tribunals in the trials, just as juries are provided by the Constitution and laws to assist the courts in the trial of free persons accused of crimes.

So, under the Old Constitution, the judiciary power of the State was vested in a Supreme Court and inferior courts. The judges were all to be commissioned by the governor; and, yet, tribunals organized, as the present tribunal, were always charged with the trial of slaves. This acquiescence in the constitutionality of legislation for forty years is conclusive, communis error fadt jus.

The following bill of exceptions was taken on the trial: “ Be it remembered, that upon the trial of the above named slaves, the district attorney of the Seventeenth Judicial District of this State, in behalf of the State, introduced and offered Samuel Hollingsworth as a witness for the prosecution, who, after being sworn, testified as follows, to wit: That, on the 8th day of December, A. D. 1850, William Boseman, a citizen of this parish, was found dead near a path in the woods, not far from his residence, having been shot with the contents of a gun, viz, four or five leaden slugs ; and that the friends of the deceased, on the next day after the body of Boseman was found, started in pursuit of the murderers with dogs; and, on the second day of the pursuit, after following the trail of the supposed murderers “from the spot where the body was found,” several miles in the direction of Shreveport, they heard that two runaway slaves had, on the second day after the murder, been apprehended near Shreveport, and committed to jail in that place; that some of the company, viz., witness, Foster, Turner and Barton, immediately proceeded to Shreveport, with a view of ascertaining whether the slaves, or either of them, knew any thing relative to, or were guilty of, the murder of Boseman; and, upon their arrival there, was informed that said slaves were at the jailor’s house about a mile distant. They, then, with several citizens of Shreveport, went to the jailor’s house, Joseph Howell's, to see the slaves above referred to, and upon their arrival there, informed the jailor, Joseph Howell, of their business and suspicions. Howell informed them, that the slaves were in a field at work, about 400 yards distant from the house, when they, viz., Joseph Howell, H. S. Howell and witness, went to the field where the slaves were at work: one driving a cart, the other chopping, being a few paces from each other. Howell, the jailor, at the request and suggestion of witness, orderéd them to the house; they, the slaves, went on to the house together, followed, a short distance behind, by witness and the two Howell’s. As they started off and walked on, witness observed to Howell, that he thought it was a plain case, meaning those, he believed, were the slaves that had murdered Boseman, judging from the peculiar manner in which one of .them walked with one of his feet turned out, saying, that the track made by that foot, corresponded with the one which they had been pursuing with dogs. When they had returned to the house and joined the company they had left there, the slaves were separated some forty or fifty steps from each other, in view of each other but not in hearing. Part of the company left with Jonas, and a part, viz., witness, Foster, Turner and Barton, went up on.the hill with Sam. After they were thus separated, witness then questioned Sam as to where he came from, who he belonged to, what kind of country he had traveled through, and many other questions of similar import were asked him. In answer, he said he was from Arkansas, but could not tell much about the country he came through. In which conversation, nothing was said about the murder of Boseman. Sam, while being questioned, was somewhat sullen, and talked rather impudently. Witness notbeing able to get any thing out of Sam, went back to Jonas, and said to him: “This boy up here,” meaning Sam, “says you are therascal that goes ahead and does all the mischief that is doneto which, Jonas said, is it possible that he has told that. Witness replied, yes, that is what he says. Jonas then seemed to become restless, and said, I know what yo.u want. I -knew what you wanted when I saw you coming, and if two or three of you, gentlemen, will go out here with me, I will tell you all about it. Dr. Turner then spoke and said to him, yes, Jonas, you had better tell all about it. Jonas.said he would, and asked Turner to see justice done him; and upon Turner replying that he would, Jonas then picked out Turner, Mr. Bryce, and witness, who went out and sat with him on a log, a few steps off, when he made the following confession, to wit: That on Saturday, being the 7th of December, 1850, he and Sam had stopt about sunset on the side of a path, leading through the woods, to camp for the night, and had kindled up a fire, and were preparing to beat up some corn to eat, when they saw a white man riding towards them but a short distance off. As soon as they saw him, Sam told him, Jonas, to get the guns, which they had set up against a tree; he got them, .and handed one to Sam ancl kept the other, and stood by the fire with the gun in his hand. When the man approached them, he stopped and commenced talking with and questioning them, as to who they were, where they were from, what they were doing here, where they were going, &c. They told him, they were preparing to beat up some corn to eat. The man asked them why they did not go to some house and grind their com, saying, there were several handmills in the neighborhood, .and that he had one at his house, about a quarter or half a mile from there, and told them that they might grind their corn on his mill, if they would go along with him ; they refused to go with him, and said they did not want to go to any persons house. The man then accused them of being runaways, and said they must go with him, and that there was a company of men not far behind, who would come up if he hallooed, and make them go ; at the same time, placing his gun, which he had across the horn of his saddle before him, and primed her afresh; and as soon as he primed his gun, he hallooed, when, ■ almost simultaneously with the hallooing, Sam raised his gun and shot him. His horse instantaneously jumped to one side and ran off with the man, who fell from him about fifty or sixty yards from the spot where he was shot. Just as the horse jumped, Sam, who was standing close to his side, caught the man’s gun as it was falling, and brought it with him to the Bayou Pierre River, and threw it in the water. As soon as the man fell, they picked up their things and left, and made'-their way towards Red River, and were, on the Monday following apprehended, a few miles below Shreveport, on Bayou Pierre River, by a Mr. Cook, as runaways, and brought to Shreveport, and committed as runaways. Jonas further said, that Sam had, a night or two “previous to the time of his making the confession,” gone down to the place where Cook apprehended them, and got their guns and other things where they had concealed them, and brought and hid them in the woods near Howell's residence, but that he did not know where they were. Witness further testified, that Sam was then brought to where Jonas was, and told what Jonas had said, and then asked about it; but he became more sullen, and refused to answer some of the questions asked him, when Barton took out his pocket knife, caught hold of Sam, and said, I can make him talk. Witness immediately checked Barton, and told him not to do so, that it was not right, &c. Barton then put up his knife, and stood aside. Sam did not appear to be alarmed, and was given to understand that he was not in any danger by what was said ; he, however, continued sullen, and still refused to answer questions, or to tell where the guns wore. Upon his refusing to tell where he had hid the guns, Joseph Howell, the jailor, spoke of using a handsaw and sending for a rope, and something was said by some one of the company about their ability to pay for him; nothing could be got out of Sam at that time. The slaves were then brought into town, where they were arrested as felons, and committed to jail for trial. On the next day, they were taken to the place on Bayou Pierre River where, they said, they had thrown the man’s gun away; the slaves walking, and the person who went with them riding; Barton kept behind with Sam. When they all got to the place designated by the slaves, where they said they had thrown the gun in the water, Barton said to Sam, now sit down and tell those gentlemen all about it, which you have told me. Sam said, let Jonas tell it now; see if he don’t tell you just as I have. Jonas then told the same story over, which he had told the day before. When Jonas got through telling the story, Sam said to Jonas, and you snapt your gun at the man. Jonas denied it, and said he had nothing to do with it, more than to'get the guns and hand one of them to Sam. Sam said to Jonas, you know you snapt your gun at him. Sam was under no fear nor threat whatever at the time, and said what he did voluntarily. Nothing had been said to either of the slaves about the murder up to the time of tho confessions of Jonas.

To the introduction of which testimony, the counsel for the accused objected, on the grounds, that said confession was obtained by undue influences and misrepresentations, and were not shown to have been voluntary, but obtained, as aforesaid, by the exercise of improper influences; which objections were overruled by said tribunal, and said confessions permitted to be given in evidence against the accused, for the following reasons, to wit:

Because it was considered by the court, that it was clearly proved by the testimony of said Hollingsworth^ that the confessions made, by bothsaid slaves, were entirely voluntary; that when Jonas confessed, no mention had been made to him of the murder, or that any offence was charged to him; that however improper may have been the conduct of Barton to Sam on that day, he was immediately reproved by the company present, and desisted; that Sam was in no fear; that Sam’s confessions were made on the next day, and were then entirely voluntary, as was shown by the testimony of said witness. Wherefore, the confessions of each prisoner were considered competent testimony against himself.

To which ruling of said tribunal, the counsel for the accused excepted, and tendered this bill of exceptions, and prayed that it be signed, and made a part of the record in this case; and it was so done, and signed by J. C. Beau, J. P.

The true ground upon which confessions, extorted by violence or induced by promises, are excluded as evidence, is, that the violence and hope destroy all confidence in the confessions. In favorem rñtce, too much strictness has been observed on this subject as to free persons. Upon true principles, the objections should go rather to the credit of the confessions than to their admission as evidence. We are not prepared to say the same strictness should be observed, so as to exclude the confessions of slaves as evidence; humanity and charity ought to be extended to them; but if their confessions are obtained without a violation of either, and under such circumstances as to force the belief that the confessions are true, they should be received as evidence. The bill of exceptions does not satisfy us, that these principles were not observed on the trial of the prisoners, and for these reasons and those given by the tribunal, we cannot say that the confessions should not have been received in evidence.

The judgment of the special tribunal for the trial of the slaves, is therefore affirmed. And the two magistrates, or either of them, if in commission, or the sheriff, if they are not, is ordered to fix another day for the execution, the day already fixed having passed.

But we would recommend, that the day fói-the execution of Jonas, be fixed at'a period sufficiently remote, to enable his owner or friends, if he has any, to lay his case before the Executive and Senate, as possibly, under all the circumstances, it might be deemed advisable to commute his punishment.


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    Reuben W. Patrick, Administrator., v. Ann Bryan, Adm’x.
    Where the heirs of an estate had purchased so large a portion of it at an administrator’s sale, that there was not enough due from other persons to pay the debts, they can be forced by the administrator to pay such portions as are over their estimated share of the succession.
    from the District Court of Bossier, Jones, J.

      Terrell and Hodge, for plaintiff.

      Lawson and Fuller, and E. J. Looney, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The party whose succession the defendant represents, was one of the heirs of James and Grace Yarborough, deceased, whose successions are administered by the plaintiff, and purchased, at $ie probate sale of those successions, certain slaves, for which he gave the notes sued upon.

The defence is, that as heir-at-law, he had a right to purchase at the probate sale to an amount equal to his share; and that the plaintiff has no claim against him until that share is ascertained. The answer contains interrogatories to the plaintiff, the object of which is to ascertain what that share will be. It is in evidence, that the principal object in selling the property was, the payment of the debts of the successions; but the heirs having purchased a large portion of it, the proceeds of that portion which was purchased by other persons, was insufficient to meet the claims of the creditors; and after exhausting that fund, the administrator applied to the court for and obtained an authorization to claim from the heirs who had purchased, such a portion of-their indebtedness as was necessary to liquidate the successions. The present action was brought under that authorization. In answer to the interrogatories propounded by the defendant, the plaintiff stated, that so far as he could ascertain, the defendant’s share in the succession as heir, would be about seven hundred and sixty-four dollars. The district judge deducted that amount from the sum claimed, and gave judgment against the defendant for the balance, with mortgage on the slave sold. The plaintiff does not complain of this judgment; and it is manifestly correct, so far as the defendant is concerned. His share is ascertained as well as it can be, until the debts of the successions are paid; and they cannot be paid unless he and the other heirs provide the means.

The judgment is therefore affirmed, with costs.


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    John Lawson, Curator v. James A. Mosely.
    Letters of curatorship cannot be issued without a previous order of court to that effect.
    APPEAL from the District Court of Bienville. Lawson, for plaintiff.

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

Preston, J.

The plaintiff has instituted this suit, as curator of the estate of John M. Bell.

The defendant excepted to the suit, on the ground, that at the time of instituting it, there had been made no order of court, appointing the plaintiff curator of BelVs succession.

The plaintiff'produced a copy of letters of curatorship granted to him. The defendant offered the clerk and former clerk of the district court, as witnesses, who proved, that no order had been made in the succession of Bell, appointing the plaintiff curator. The curatorship of the estate, could only be granted by an order of court. Code, 1113, 1114. When the existence of the order was denied, it was incumbent on the plaintiff to have shown it. In default of his doing so, the defendant has shown, by the best evidence of which the matter is susceptible, that no such order exists. He was entitled to offer the evidence. It does not contradict the letters of curatorship; but shows, that they were issued without authority, and in error.

The judgment of the district court is affirmed, with costs.


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    The State v. William Lougineau.
    Bail for the appearance of a person charged with crime, cannot be taken by the sheriff without an order of court therefor.
    An order of the judge, fixing the amount of bail, which the clerk had omitted to enter on the minutes, cannot be supplied by parol proof. The order must be in wilting.
    APPEAL from the District Court of Bienville, Bullard, L

      L. P. Crain, for the State.

      Andrew Lawson and O. D. Stillman, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The defendant was indicted in the parish of Bienville, for assaulting, with a dangerous weapon, with intent to kill. He surrendered himself to the sheriff, who, with the clerk of the court, took a bond, with several sureties, in the sum of one thousand dollars, for his appearance at the next term of the district court, to answer to the charge, and submit to the judgment of the court. He appeared, was tried and convicted, but never appeared to receive the sentence of the court.

The district attorney moved for the forfeiture of his bond and judgment against him and his sureties, under the act of 1837. The sureties opposed the motion on the ground, among other things, that there was no order of court bailing him, or fixing the amount of the bond. The clerk was offered to prove, that the court had made such an order, but that he had omitted to enter it on the minutes. The accused couM hot be bailed without an order of the judge. It might have been given in open court, and entered on the minutes, or made and signed at Chambers, or elsewhere within the jurisdiction of the judge. But the order could only be in writing; and parol evidence that it was made, is entirely inadmissible. If made in open court, to be entered on the minutes of the court, it would be most dangerous to alter or supply the record by parol proof, after they were made up, read and approved. The order could be made at Chambers, or elsewhere, by the signature of the judge. Parol evidence of such an order, without suggestion of its loss or destruction, is entirely opposed to the rules of evidence. The bond in controversy was therefore clearly taken by the sheriff and clerk without authority, and is not binding upon the sureties.

The judgment of the district court is affirmed, without costs.


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    The State v. R. A. Wyatt and G. M. Nichols.
    A magistrate who commits a prisoner, for a bailable offence, until he shall give bond for his appearance, may, afterwards, take the bond. _But, perhaps, if he has finally committed him, his jurisdiction has ceased, and the prisoner will have to apply to some tribunal having the right to issue writs of habeas corpus.
    A sheriff' has no power to bail a prisoner, but may perform the ministerial duty of taking the bond when the magistrate requires it.
    A magistrate, in permitting a prisoner to be released on bail, should give a written order to the sheriff, naming and approving the security. But if he approves the bond after it is taken, it is sufficient to bind the surety.
    The prohibition against the issuance of process on Sunday, does not extend to criminal cases and a prisoner may be bailed on Sunday.
    A judgment which was not signed at the term of the court at which it was rendered, from some oversight, may be signed at the next term of the court, nunc pro tunc.

    from the District Court of Caddo. Jones, L

      J. B. Mathews, district attorney, for the State.

      Thomas T. Land, for the defendants.
   The judgment of the court was pronounced by

Preston, J.

R. A. Wyatt was accused of larceny, and committed by a magistrate of the parish of Caddo, for the offence. It was a bailable offence, and the magistrate was bound to take sufficient surety for his appearance to answer to the charge, before the district court. Bui. and Cur. Dig. 529. He fixed the amount of the bond at five hundred dollars, which the accused failing to give, with security, he committed him to prison until he should enter into the required bond, or until he was discharged, therefrom by due course of law. George M. Nichols offered, some days afterwards, to become his security. The magistrate sent word to the sheriff to take the security, which was done, and the prisoner discharged.

The prisoner was prosecuted, by indictment, for the offence; failed to appear and answer the charge; his bond was forfeited,- under the act of 1837, and judgment rendered in favor of the State, against him and his security, for the amount of the bond and costs.

It was on Sunday that the magistrate sent word to the sheriff to take the bond; he was not in his office, but on horseback, at the time, and did not approve the bond and security until some days afterwards.

YVe think that the magistrate, having committed the prisoner only until he should give the bond and security, might afterwards take and approve the bond. It was a bailable offence, and the prisoner was not finally committed. Perhaps, if the magistrate had finally committed him, his jurisdiction would have ceased, an|I be could only have been released by a judge having power to issue a writ of habeas corpus. It is unnecessary to decide that question.

It is true, that civil process cannot be issued on Sunday. The principle, or prohibition, does not extend to criminal process. A man in jail should not be kept in prison all day on Sunday, for a bailable offence, if his friends can induce a magistrate, competent to take security, to do so, and discharge him.

The sheriff had no power to bail the prisoner, but might perform the ministerial duty of taking the bond, when requested by the magistrate.

The magistrate should have named and approved the security, and given a written order to the sheriff, to discharge the prisoner on his executing the bond, but he proves that he sent the message to the sheriff, and it is not for the security to dispute his own sufficiency, which the magistrate subsequently approved.

The proceedings of the magistrate were extremely irregular, in such an important matter, but the bond is most formal, was executed for a legal consideration, and has been forfeited, and judgment rendered upon it in strict conformity to law.

The judgment not having been signed at the term at which it was rendered, from some oversight, was properly signed at the next term of the court. There is no law forbidding this. The district court was fully satisfied by the record, that it should be signed nunc pro tunc.

It is ordered that the judgment of the district court be affirmed, with costs.


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    Collins and Gilmer v. James Walling.
    A service of citation, by leaving it in the hands of a free' white person who is named, over fourteen years of age, residing at the last place of domicil of the defendant, he being absent, is a good service.
    APPEAL from the District Court of Caddo, Bullard, J.

      L. M. Nutt, for plaintiff.

      Roysdon and Spofford, for defendant.
   The judgment of the court was pronounced by

Rost, J.

This is an action upon a promissory note. The defendant having failed to appear, judgment was entered against him, by default, and after the legal delays and satisfactory evidence of the debt, it was made final. The defendant has appealed, and alleges in this court, that he had not been properly cited. The return of the sheriff is as follows: “ Received, July 31st, 1850, and on the same day served a copy hereof, together with a copy of petition, on James Walling, at his last place of residence in the parish of Caddo, by handing them to a free white person, over the age of fourteen years, who was known to' me by the name of J. W. Gamble, who was residing at the said last place of domicil of the said James Walling, in the town of Shreveport, parish of Caddo, the said Watting being absent at the time of service.”

This return does not show that the defendant had left the parish permanently, but merely states, that he was absent at the time of the service; he may have been temporarily absent, and as he was present when judgment was rendered against him, the presumption is, that such was the fact.

In the case of Whiting v. Haggerty, we held, that the omission to state in the return, that the service had been made at the usual place of domicil or residence of the defendant was not fatal, and that a return, stating, that it had been made at the usual place of abode of the defendant, satisfied the requisition of the code. A service at the last place of residence of the defendant, during his temporary absence, satisfies them equally well. It is proper that sheriffs should, on all occasions, follow the words of the Code of Practice in their returns; but whenever the returns made, comply substantially with the law, the refusal to give them effect, on purely technical grounds, would amount to a denial of justice.

The defendant has no defence whatever on the merits.

The judgment is therefore affirmed, with costs.


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    Martha Ann Arnold v. M. A. McBride.
    A married woman in the State of Mississippi, received money which, by the laws of that State, was protected as her separate property, and the husband converted the money to his own use; subsequently, they removed to Louisiana, where the husband died. Held: That the wife had no mortgage or prvilege upon the property of her husband’s estate, but that she was to be regarded merely as an ordinary creditor.
    APPEAL from the District Court of Caddo, Jones, J..

      Thomas T. Land, for plaintiff.

      R. T. Buckner, for defendant.
   The judgment of the court was pronounced by

Rost, J.

Under an act of the Legislature of the State of Mississippi, approved on the 15th of February, 1839, married women may become seized or possessed of any property, real or personal, by direct bequest, demise, gift, purchase or distribution, in her own name, and as of her own property, provided the same does not come from her husband after coverture.

The plaintiff was married in the State of Mississippi, in 1843; and after her marriage, received, by distribution from her father’s estate and by gift from one of her uncles, property and money, admitted to amount together to the sum of five hundred and twenty-five dollars, which money and property her husband took and converted to his use, in the State of Mississippi. They subsequently removed to Shreveport, in this State, where the husband acquired a town lot. He has since died, and the plaintiff claims from the administration of his succession, five hundred and twenty-five dollars, with privilege and mortgage on the property acquired in Louisiana. The judgment recognizes her as a creditor of her husband’s succession for the sum claimed; and orders her to be paid in the course of administration, but objects her claim for a mortgage and privilege. She has appealed.

The mere statement of the case shows the correctness of the judgment. The appellant did not bring her money and property with her to Louisiana. It had been previously converted by her husband-to his own use; and he washer debtor in the State of Mississippi, without mortgage or privilege. The nature of the debt could not, upon any principle, be changed by the removal of the parties to Louisiana. The laws made for the protection of married women, only took effect upon the property which the plaintiff brought with her in kind, or upon that which she or the community acquired after tho removal.

The judgment is affirmed, with costs.


author: Eustis, C. J. and Rost, J.

text:
    A. M. Alexander et al. v. Thomas L. Burns.
    Where authority is given to an attorney at law, to take out an attachment, he is authorized to sign an attachment bond for plaintiffs.
    from the District Court of Caddo, Jones J.

      L. P. Crain, for plaintiffs.

      Thomas T. Land, for defendant.
   The judgment of the court was pronounced by

Peeston, J. An order of attachment was granted in this case, on the affidavit and bond of the plaintiffs’ attorney. It was rescinded, and the attachment dissolved on the ground, that the attorney had no special authority to execute the attachment bond. For the reasons given in the case of Dwight and Trow-bridge v. Wier, the order for the attachment and the writ is reinstated.

The defendant further moved to dissolve the attachment, on the ground, that the property attached was the property of Thomas L. Burns Sf Co., for the individual debt of Thomas L. Burns, and that said property was taken out of the possession of said partnership, and constituted a part of the property of the partnership; and on the further ground, that the interest of Thomas L. Burns in said property, was only subject to the attachment for his individual debts subject to a final liquidation and settlement of the partnership affairs, and not the properly itself.

It is not clear that the district court dissolved the attachment on this ground, and the evidence is not satisfactory, that the property attached belongs to a partnership. If the evidence was clear on this subject, and presented by proper pleadings, we should adhere to the principles settled by this court in the case of Smith v. McMichen, after much deliberation. 3d Ann, 319.

We think the article 2794 of the Civil Code, justly interpreted in that case as to executions; that attachments can have no greater effect than executions, and that any other interpretation would be ruinous to commerce and to the rights of persons who have no interest in the attachments and executions.

The judgment of the district court is reversed, and the cause remanded for further proceedings according to law ; the appellees to pay the costs of appeal.

Eustis, C. J. and Rost, J.

We think, that Cyrus Ritchie having been appointed by the plaintiffs, to take out proces of attachment against the property attached, was thereby empowered to sign the attachment bond.

The property attached is not proved to have been partnership property, and is subject to the plaintiffs’ attachment.

The case must be remanded for further proceedings.


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    Jacob Smith v. Peter Nicholson et al.
    An administrator or testamentary executor niay be sued for the injury caused by the crime's or misdemeanors of the deceased, although no action has been instituted against the deceased in his life, and although neither he nor his heirs have been benefited by the offence. C. P. 123 1146.

      from the District Court of Caddoj Olcott, J.

      B. L. Hodge, for plaintiff.

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

Preston, J.

This suit was instituted against Peter Nicholson and others, for damages for a violent trespass upon the plaintiff’s premises, and the taking and carrying away a slave belonging to him. A verdict and judgment was rendered against ail the defendants, except Nicholson.

It does not appear, that Nicholson was served with process on the institution of the suit; but sometime afterwards, the plaintiff, in a supplemental petition, suggested his death, and prayed that Roderick Nicholson, the administrator of his succession, might be cited, and j udgment rendered against him for the plaintiff’s demand.

The administrator answered by a general denial; but subsequently filed his peremptory exceptions founded in law, that the plaintiff cannot maintain his action against him, because the cause of action was destroyed and extinguished by the death of Peter Nicholson, which took place before he had filed any answer in the cause; and further, that he, as administrator, could not stand in judgment, in a suit sounding in damages, for a misdemeanor alleged to have been committed by his deceased intestate.

The district court sustained the exception, and'rendered a final judgment in favor of the administrator, from which the plaintiff has appealed.

The 25th article of the Code of Practice, renders heirs liable to civil reparation for the injury caused by the crimes or misdemeanors of the deceased, whose succession they have accepted, although no action has been instituted against the deceased during his life, and although neither he nor his heirs have been benefited by the offence; thus repudiating the Spanish and adopting the French law on the subject. The principle, in effect, is that-the succession of the deceased offender may be sued.

Now, testamentary executors must appear, and defend all personal actions brought against the succession they administer. Code of Practice, art. 123. The curator of a vacant estate, or of absent heirs, has the same powers. Code, 1146. The administrator of an estate accepted with the benefit of inventory, is liable to be sued by the creditors of the deceased. Code, 1042, 1046. And the bearer of a claim not liquidated and objected to by the curator, or executor or administrator of a succession, may bi'ing his action against the curator or administrator in the ordinary manner, and obtain judgment. Code of Practice, 986.

The administrator is put into possession of the effects of the succession for the very purpose of paying its debts, and is bound to defend it against claims which he deems unfounded. And there is nothing in the articles 25, 120, 122, 123 and 361 cited to the contrary, which conflicts with-the principle. The heix-s of the deceased can be sued when put into possession of the succession, and undoubtedly might intervene, on account of their interest, in a personal action against the administrator. But this is not at all inconsistent with the right of the claimant, to sue and obtain judgment against-the administx'ator.

It is contended, that under the 21st article of the Code of Practice, the suit abated by the death of the defendant. Even if so, it was revived by the supplemental petition against his legal representative.

We ai'e of opinion, that the exception should have been overruled.

The judgment of the district court is reversed, and the cause remanded for further proceedings according to law; the appellee to pay the costs of appeal.


author: Preston, J. Eustis, C. J.

text:
    Trowbridge Dwight & Co. v. Andrew Weir.
    An authority to an attorney at law to take out an attachment, authorizes him to sign an attachment bond for the plaintiff'.
    from the District Court of Caddo. Olcott, J.

      L. P Crain, for plaintiff.

      Thomas T. Land, for defendant.
   The judgment ofthe court was pronounced by

Preston, J.

This suit was commenced by attachment. The attorney at law of the plaintiffs, made the affidavit and signed their names to the attachment bond. The only question presented for decision is, whether the attachment bond could be signed by the attorney, and is binding upon the plaintiffs without their special authority.

The counsel for the defendant relies, for the dissolution of the attachment, on the 2996th article of the Civil Code, which prescribes that a power must be express and special to acknowledge a debt.

The attorney, by signing an attachment bond, does not strictly acknowledge a debt. He signs a conditional obligation, without which his client cannot obtain the judicial process which he demands. The demand of the process is the assurance, on his behalf, that he is entitled to it, and that the obligation will never become absolute, by a breach of the condition, so as to become a debt. The signing the bond is an act of administration alone, indispensable to secure the rights of the client, and is fully conferred by the mandate in general terms. The mandate is to collect his debt by process of law. If no agent or attorney in fact is constituted, the attorney at law is the mandatary for this purpose. The signing of the attachment bond is a necessary incident to the collection of the debt, and is embraced in the general power to make the collection.

In 1828, in an act amending the Code of Practice, the Legislature gave a manifest legislative interpretation of the articles of the code relative to attachment and sequestration bonds, by declaring, “ that in all cases where attachments, arrests and sequestrations, are demandable, the plaintiff, his agent or attorney, having made affidavit and given bond in conformity to law, and having filed the same in court, the attachment or sequestration shall issue. B. and C. 19.

The term attorney, in this law, being distinguished from agent by the disjunctive conjunction, means the attorney at law. We know this, from the circumstances under which the act was passed, and the evils it was intended to remedy. Indeed, it has been judicially decided, that the term, when not qualified, does mean an attorney at law.

I cannot distinguish the cases of attachment and sequestration bonds, from that of an appeal bond, which, it has always been held, may be executed for the appellant by his attorney at law; because the law binds him, independently of the bond which is formally executed, principally for the purpose of formally binding the surety on the appeal bond. See 9 M. R. 74. 10 L. R. 411. 6 L. R. 324. 12 R. R. 220.

There is nothing in the case of Grove v. Harvey, 12 R. R. 221, adverse to this opinion; and the reasoning of this court, in the case of Wetmore v. Daffin, supports rather than conflicts with it.

The judgment of the district court is reversed at the cost of the appellee; the order of attachment reinstated, and the cause remanded for further proceedings according to law.

Eustis, C. J.

The impression of a majority of the court is, that the plaintiffs made Mr. Crane their attorney in fact for the collection of their debt, and that they are bound by his act of taking out the attachment, and, consequently, of signing the attachment bond. It is a question, whether the subsequent ratification of his acts, by his principals, was not tantamount to an original authority.

We concur in the conclusions of Judge Preston, but prefer placing it on this ground alone. >