author:
IIowell, J.

      Mr. Justice Taliaferro

text:
    No. 64.
    State of Louisiana v. J. C. Gregor.
    Declarations or threats of the deceased towards the accused, in order to constitute a part of the res gestes, must be made at the time of the act done which they aro supposed to characterize, and so to harmonize with it as to constitute one transaction.
    Declarations by the deceased to a witness, towards the accused, made before the homicido and not communicated to the accused, do not form a part of the res gestes, and are thoreforo inadmissible on that ground.
    Declarations or threats made to third parties by the deceased towards the accused before the homicide, are not admissible without first showing that they were communicated to the accused bciore the hilling
    The order of the District Judge overruling a motion for a now trial in a criminal caso on the affidavit of newly discovered evidence, presents the question of diligence, and not an unmixed question of law, and cannot be reviewed on appeal. Constitution, art. 74; 11 A. 478,
    from the First District Court for tile parish of Orleans. Abell, J.

      S lieldcn, Attorney General, for the State, A. JP. Field, for defendant and appellant.
   IIowell, J.

The defendant was indicted for the murder of John Collins on the seventeenth day of February, 1869, was tried and convicted of manslaughter, and has appealed to this court.

The first question is presented by a bill of exceptions, which we transcribe at length, to wit:

“Be it remembered that on the trial of the above cause, to wit: on the thirtieth day of March, 1869, the Attorney General, on the part of the State, introduced George L. Eicliardson, who was sworn and testified in chief substantially as follows, to wit: witness knew the deceased and the accused. The deceased was first, and the accused second mate of the steamboat Governor Allen. Early in the morning of the homicide at the steamboat Governor Allen, the deceased walked up to the accused and remarked to him, ‘ I can or intend to run this machine myself, and I have no further use for your servicesto which the accused replied, ‘all right.’ About fifteen minutes before the homicide the witness conversed with the deceased a few moments. Deceased left witness and crossed the levee in the direction of the city. A few moments before he heard the shot fired, witness started aboard of the boat, met the accused coming off with a colored man behind him, with a carpet bag of the accused; He bid witness good bye and said, ‘I will see you to-morrow.’ At that time he saw the deceased about one hundred yards off, crossing the levee coming towards the boat and as witness reached the boiler deck of the boat he heard a shot fired, and he immediately went back on the wharf, saw the do-ceased lying down. I went to him, raised him up and found him in a dying condition •, and that a colored main handed me a dirk knife, Resembling the one in court, that was said was found by the side of the deceased.

“Upon cross examination the said witness testified that the deceased, in the conversation with witness, about fifteen minutes before the homicide, and just before he left witness and crossed the levee in the direction, of tlie city, asked the witness for a pistol; the witness informed him he had none; he then aslccd witness where he could get one; witness referred to a person from whom he thought he could obtain one. Deceased asked witness if he liad a knife, and remarked that he would sooner depend upon a, good knife than a pistol. The counsel then asked this witness what the deceased said he wanted the arms for, and whether the deceased did not say at that time that he intended to kill the accused before he left the boat. To the question and the answering the same the Attorney General objected,- for the reason that before such proof could be made by the defendant, it must be shown that the threat made and the use he intended to make of the weapons he called on witness to obtain, must first be shown had been communicated to the accused before the homicide took place. Which objection of the Attorney General the court sustained, and refused the question and answer. To this opinion of the court in refusing the question and answer the defendant by his counsel excepts, for the reason that the conversation with the witness by deceased was but a short time before the homicide was committed — fifteen minutes as witness stated, and was therefore admissible as a part of the res gestee, going to explain the motives and subsequent acts of the deceased, and upon the further ground that the testimony was important for the defense, if answered in the affirmative, to show the motives and intentions of the deceased towards the accused, and was a part of the circumstances of the case to explain the motives and intentions of the deceased towards the accused.’’

The evidence sought to be introduced is hearsay, and if admissible, must come within the exceptions to the general rule excluding hearsay evidence.

Tlie defendant contends — first, that it is a part of the res gestee, and therefore within the exceptions — and secondly, that it tends to establish the design and intention of the deceased to kill the defendant.

First — “To be a part of the res gestee, the declarations must have been made at the time of the act done which they are supposed to characterize, and well calculated to unfold the nature and quality of the facts they are intended to explain, and so to harmonize with them as obviously to constitute one transaction.” 3 Phil, on Ev. p. 585; N. 444.

The facts stated in the bill of exceptions do not bring the proposed evidence within this definition. The declarations of the deceased to the witness were not made at the time of the homicide, the res gestes of which they are supposed to characterize, and no facts are stated as occurring at. the time of the killing, the nature and quality of which they are intended to explain and with which they so harmonize as obviously to constitute one transaction. Nor is any connection shown between the interview, early in. the morning, when the defendant was .informed that his services were no'longer needed, and the subsequent killing, so as to make them (the interview and the killing) and the intervening incidents or the acts of the parties one continuous transaction. What occurred at said interview may be considered a business matter,.of which the defendant made no complaint, and no quarrel or grudge between them is shown, nothing to induce the defendant to anticipate or apprehend an attack from the deceased. What the latter may have said to the witness as to his intentions was therefore not a part of what occurred at the time of the killing, the res gestee, and not on that account admissible.

Second — If this be so, it is difficult to see how the excluded evidence is admissible to establish the design and intention of the deceased to kill the defendant, for it would seem that to be admissible for such a purpose, it must be a part of the res gestee. But counsel has cited authority to the effect that, “in the prosecution of a crime so essentially the creature of intent, as murder, everything pertinent should be submitted to the jury upon which they may infer the absence of malice” (19 Wendell, 591); and that “it is admissible for the defendant to show threats or other circumstances of a recent character, which would tend to make a man of his character believe that his life was in danger.” Wharton’s Homicide, 217.

But to be pertinent, or to make him believe that his life was in danger, the threats or felonious intent of the party killed, expressed only to third persons, 'must certainly have been communicated and known to the defendant. If not known to him they could have had no influence upon him in committing the homicide, and were therefore irrelevant.

It has been well said that the evidence to show the felonious intent of the party killed “must be gauged by the defendant’s opportunities at the time.” Wharton’s Homicide, p. 215.

In this case the defendant is not shown to have had an opportunity at the time of or prior to the killing, to know that the deceased had made threats to the witness to kill him. The objection was therefore well taken, and the evidence properly excluded.

The next question is that the District Court erred in overruling the motion for a new trial upon the affidavit of newly discovered evidence, as the affidavit and the facts set forth were not contradicted, but iu law were taken to be true. We are not referred to any authority, and we know of none to sustain this legal proposition, and as a question of diligence and not an unmixed question of law is involved, the action of the District Court on the motion for a new trial cannot be reviewed on appeal. 11 A. 478.

It is therefore ordered that the judgment appealed from be affirmed with costs. .

Mr. Justice Taliaferro

dissenting:

With some hesitancy I dissent from the opinion of the majority of the court. I do not think that to constitute the menacing languago alleged to have been used by the deceased a part'of the res gestee, it is necessary that it be shown that the accused knew of it before the commission of the homicide. In my view the evidence should be admitted, in order that the jury might, in connection with all the evidence, determine whether it be entitled to any consideration in making up their verdict.


source: Caselaw Access Project

author: Wyly, J.

license: Public Domain

text:
    No. 71.
    Samuel Boyd, Appellant v. Christopher Chaffe.
    A contract that cannot be enforced against the principal for want of a lawful cause, cannot be enforced against the vendee of the principal.
    Courts of justice will not lend their aid to settle disputes growing out of contracts reprobated by law.x
    The enforcement of contracts by the courts of this State, the consideration of which was Confederate notes, is prohibited. Constitution, art. 127.

      Ix. PPEAL from the Eleventh District Court, parish of Claiborne. Watlcins, J.

      L. B. Watlcins, for plaintiff and appellant, W. B. JEgan, for defendant and appellee.
   Wyly, J.

In 1802, William Lackey contracted to sell the plaintiff a lot of cotton on bis plantation in Claiborne parish, “to be delivered at Minden landing at any time having twenty days notice.” The cotton remained in Lackey’s gin house till 1805, when he sold it to the defendant Chaffe, who paid for it and obtained possession thereof.

The consideration of the sale in both instances was Confederate notes.

Plaintiff now sues the defendant for the cotton or its value, alleging that he had conspired with said Lackey to defraud and cheat him out of said cotton, knowing that said Lackey was not the owner thereof.

The evidence does not sustain the charge of fraud and collusion, nor does it establish the fact that Chaffe was aware that plaintiff had purchased the cotton from Lackey.

But even if he had been aware of the contract, that plaintiff had paid Lackey a sum of Confederate money in consideration of which the latter had obligated himself to deliver the cotton at Minden landing at any time, having twenty days notice, that would not have been a legal impediment to the sale.

Knowing that Lackey had received a sum in unlawful currency, in consideration of which he had contracted to deliver the cotton at Minden, did not incapacitate the defendant, from making a lawful purchase of the cottou from Lackey. The prior obligation of Lackey to the plaintiff was null. An obligation without a cause, or with a false or unlawful cause is null and void. C. C. 1887, 1889; 17 A. 262; 19 A. 432. 257, 469.

If Lackey liad retained possession of the cotton after contracting to sell it to the plaintiff and afterwards to the defendant, under the Constitution of 1868, and the well settled jurisprudence of this State, neither the plaintiff nor defendant could have enforced his contract with Lackey, because it had an unlawful purpose, being based on Confederate notes. '

If plaintiff could not have enforced his contract against Lackey for the cotton, we do not see how he can enforce it against the Tendee of Lackey.

We have often held that courts of justice cannot lend their aid to settle disputes founded on contracts reprobated by law. The policy of the law is to leave the parties where they have placed themselves.

Article 127 of the Constitution of 1868, prohibits the courts of this State from enforcing contracts of the character presented in this suit.

It is therefore ordered that the judgment of the court below dismissing plaintiff’s demand, be affirmed with costs.


author: Howe, J.

text:
    No. 77.
    Edward Nalle & Co. v. Cleaton Higginbotham, Administrator, etc.
    The mandate to oxecute a promissory note for another, must be both express and special. C. 0. 296*\
    The power is not required.to.be in writing, but express and special, as distinguished from im plied and general.
    from the Twelfth Judicial District Court, parish of More-house. Crawford, J.

      Stubbs é Cobb, for plaintiffs and appellants. I). G. Morgan, for defendant and appellee.
   Howe, J.

This suit was instituted by plaintiffs against the administrator of the estate of Mrs. Elizabeth Higginbotham,, deceased, to recover the amount of a promissory note. The note was made by D. P. Higginbotham, a son of the decedent; but it is claimed by plaintiffs that he was acting as agent of his mother in executing the note — that it was given for supplies furnished for her plantation, and that they are therefore entitled to a judgment for its amount against her administrator.

There was judgment for defendant, and plaintiffs have appealed.

The textual provisions of the Civil Code plainly require that a mandate to execute for another a promissory note should be both express and special. C. C. 2966. It is not required that the power should bo in writing, as contended by the counsel of the appellee, but it must be “ express ” and “ special,” as distinguished from “ implied ” and “ general.” And, therefore, in Nugent v. Hickey, 2 Ann. 358, where the defendant was sued upon a note signed by “Walsh, agent for P. Hickey, for Parc Perdu plantation,” and it appeared that Walsh held a full power for tlie purchase of stock and of necessary articles for the use of the plantation, and for the settlement of accounts in relation to the same, that Walsh remained on the plantation for several years, and under the power contracted the debt with the plaintiffs, and closed the account with the note in suit; and the power further provided that Walsh should act for the defendant in all cases in which the latter’s interest might be concerned in relation to the plantation, it was held by the court that no liability attached to the defendant by reason of the note given in his name, for Walsh had no authority to hind him in that form.

The ease at bar is even stronger for the defendant than the one cited above, for not only was the account of plaintiffs kept with D. E. Higginbotham in his individual name, but the note was taken in settlement in his individual name. Mrs. Higginbotham does not appear in the account or in the note. There is no evidence that she ever gave any legal mandate for its execution or ever in any way acknowledged the liability now sought to be imposed on her succession.

The cases cited by the plaintiff do not seem to conflict with the views we have expressed. In Reynolds v. Rowley, 3 R. 201, and 2 Ann. 891, the plaintiffs sued on an account, and it was held that where the agent, who had a special power of attorney by which he was authorized to borrow money for the defendant’s plantation, received money from plaintiffs as a loan for the plantations; the defendants were liable, even though the agent had no authority to draw the bills from whose proceeds the loan was made. The question was not one of the authority to execute a note or bill. In Perrotier v. Cucullu, 6 La. 587, the bill was drawn by a supercargo in a foreign port; the act seemed to be one of necessity in carrying out the purpose of the agent’s appointment, and the court, without passing with directness upon the question of authority, came to the conclusion that the defendant’s subsequent agreement to pay the bill out of a particular fund, should that fund be available, amounted to a sanction and ratification of what had been done by his agent.

For the reasons given it is ordered and adjudged that the judgment appealedfrom be affirmed with costs. •


author: Ltjdeliug, C. J.

text:
    No. 76.
    Joseph T. Swan v. Ann L. Gayle, Administratrix.
    The Parish Court is -without jurisdiction rations materia in. a suit where a succession is either plaintiff or defendant, and the amount claimed is ahoye ñye hundred dollars. Constitu* tion, article 87.
    The act of the Legislature approved October 6, 1868, No. 141, entitled “ An act further defining the jurisdiction of parish courts in succession cases,’* is unconstitutional, null and void, hecause the objeot of the statute is not expressed in the title. Constitution, article 73.
    from the Parish Court of the parish of Ouachita. Ray, Parish Judge.

      Robert J. Caldwell, for plaintiff and appellee. 'Isaiah Garrett, for defendant and appellant.'
   Ltjdeliug, C. J.

The plaintiff sued the administratrix of tho succession of W. H. Gayle in tho Parish Court, and he prayed for judgment against the administratrix for upwards of five thousand dollars, and for the recognition of his mortgage on certain property situated in the parish of Ouachita. He also prayed for the sale of the mortgaged property to pay his debts, according to law. The appellant has insisted, in this court, that the Parish Court which tried this case was without jurisdiction ratione materia.

If this he true, the judgment rendered by that court is void. C. P., article 92. And we can not give vitality or validity to that judgment, because an appellate court never can give a judgment which the court a qua could not.” 5 N. S. 10.

It is our duty, therefore, to notice ex officio the want of jurisdiction ratione materia.

The question presented is, whether the Parish Court has jurisdiction in a suit wherein a succession is plaintiff or defendant, when the amount in controversy exceeds five hundred dollars ? Article eighty-seven of the constitution of 1868, fixing the jurisdiction of the parish courts, declares that they “ shall have concurrent jurisdiction with justices of the peace in all cases where the amount in controversy is more than twenty-five dollars and less than one hundred dollars, exclusive of interest. They shall have exclusive original jurisdiction in ordinary suits, in all cases where the amount in dispute exceeds one hundred dollars, and does not exceed five hundred dollars.

All successions shall be opened and settled in the parish courts; and all suits in which a succession is either'plaintiff or defendant may be brought either in the parish or district courts, according to the amount involved,” etc.

It appears from the journals of the convention that this article was changed after the convention had once adopted it in a different form. When originally reported by the judiciary committee, the article contained the following sentence: In prohate matters they shall have concurrent jurisdiction with the district courts in all cases where there exists a contestation or suit, and the amount in dispute exceeds five hundred dollars.” This was stricken out, and in lieu thereof the following was substituted: “ And all suits in which a succession is either plaintiff or defendant may bo brought either in the parish or district court, according to the amount involved.”

As the article originally stood, the plaintiff had the option to file his suit either in the parish or district court, Where he had a claim for money against a succession, and the amount exceeded five hundred dollars.

As the article was finally adopted, it confers the right on the plaintiffs to sue in the parish court whenever the amount claimed does not exceed five hundred dollars, and a succession is either the plaintiff or defendant. And where the sum demanded exceeds five hundred dollars, and a succession is a party to the suit, the plaintiff must bring the suits in the district pourt. Thus, it is the amount alone which determines whether the parish or the district court-have jurisdiction. That inconveniences and delays in the settlement of successions may result from this change in article eighty-seven of tho constitution may be true. But that will not justify us in torturing a meaning out of the words of the article which they cannot fairly be made to bear. The evil can only be remedied by amending the constitution.

It is contended that the General Assembly has given a legislative interpretation to this article of the constitution in act number one hundred and forty-one, adopted in 1863. It is not the province of the General Assembly to interpret tho provisions of the constitution for courts. If the object of the law was to explain or interpret the article of the constitution, as the title of the act would indicate — “ an act further defining the jurisdiction of the parish courts in succession cases ”— then the General Assembly transcended its powers and trenched upon the jurisdiction of tho courts, as only legislative powers are vested in the General Assembly. Article fifteen of the Constitution of 1868.

The judicial powers of the government are vested in the courts. Article seventy-three of tho constitution of 1863.

If, on the other hand, the object of the law was to confer other jurisdiction on the parish courts, the law is obnoxious to two constitutional objections: First, that tho object of the law is not expressed in its title. Article 114, constitution of 1868. Second, that the General Assembly had not the power to change the jurisdiction fixed or limited in the constitution — they could not amend the constitution. Article 147, constitution of 1868.

First — Defining the jurisdiction is a very different thing from extending or enlarging tho jurisdiction. As the term is used in the title of the act in question, it means explaining, interpreting. Hence the title does not express the object of the law.

Second — Tho clause in article eighty-seven, “ and such other jurisdiction as may be conferred on them by law,” permitted the General Assembly to grant to parish courts “other jurisdiction ”• in matters where the constitution had not defined, fixed or limited it; but it did not authorize the Legislature to change or amend the constitution itself. For example, it did not empower the General Assembly to give the r>arish courts original jurisdiction in ordinary civil suits, when the amount exceeded five hundred dollars, or to try capital cases, or to give them appellate jurisdiction from the district courts. We are constrained, therefore, to declare the act number 141 of the General Assembly of the State of Louisiana, adopted October 6, 1868, entitled “An act further defining the jurisdiction of the parish courts in succession cases,” unconstitutional, and therefore null and void.

•In this case the amount in controversy exceeds five hundred dollars, and the parish court was without jurisdiction to try it ratione materia.

It is therefore ordered, adjudged and decreed that the judgment of the Parish. Court be avoided and annulled. It is further ordered that the suit be dismissed, and that the plaintiff and appellee pay the costs of both courts.

Rehearing refused.


author: Taliaferro, J.

text:
    No. 67.
    Willis Wood, Administrator, v. L. C. Calloway.
    The appeal will be dismissed if the bond lias not boon filed within twelve months from the date of the orefer. Every act required by law to»perfect an appeal when taken, must be performed within the delay allowed by lav/ for taking the appeal. 17 An. 2S8 ; 20 An. Q3G.
    from tlie Eleventh Judicial District Court, parish of Union. Watkins, J.

      A. B. George, for plaintiff and appellee. John L. Barrett, Stubbs i& Gobb, for defendant and appellant.
   Taliaferro, J.

There is a motion to dismiss this appeal on the ground that the appeal bond ivas not filed within twelve months from the time of the rendition of the judgment appealed from. The judgment w'as rendered on the ninth of October, 1866, and no appeal bond was filed ’until the seventh July, 1869, more than two years and a half from the date of the judgment. The mbtion must prevail.

Every act required by law to perfect an appeal when taken, must be performed within the delay allowed for taking the appeal. 7 Rob. 60; 3 La. 77 ; 2 La. 323; 17 An. 233; 20 An. 236.

It is therefore ordered that this appeal be dismissed at costs of appellant.


author: Howell, J.

text:
    No. 54.
    J. T. Swan v. H. M. Bry, Clerk.
    An order issued by the Parish Judge, directing the clerk of the District Court to transfer to the Parish Court the record of a suit, is in the nature of a proceeding by mandamus, and no áp-peal will lie from such order without showing an adverse interest above five hundred dollars. The Supreme Court will notice, of their own motion, their want of jurisdiction.
    * .A. PPEAL from the Parish Court of the parish of Ouachita. Bay, Parish Judge.

      Bobert J. Oaldwell, for plaintiff and appellee. Isaiah Garrett, for defendant and appellant.
   Howell, J.

This is a proceeding to compel the defendant, H. M. Bry, clerk of .the District Court and ex officio clerk of the Parish Court of the parish of Ouachita, to place on the docket of the said Parish Court the suit of Joseph T. Swan v. Ann L. Gayle, administratrix of William II. Gayle, number 771, on the docket of the said District Court for the said parish. After answer filed and trial upon the issue made, judgment was rendered making the rule absolute, and ordering the defendant, II. M. Bry, clerk of the District Court of the parish of Oua-chita, to place the said suit on the docket of the Parish Court, to be proceeded in and determined according to law. Prom this order or decree the defendant took a devolutive appeal, and Mrs. Gayle, admin-istratrix, the defendant in the .suit, transferred, upon alleging that the said order will cause irreparable injury to her, the succession and creditors thereof, obtained a suspensive appeal.

This proceeding is in the nature of a mandamus, and there is nothing to show that the interest of either’ party in the. matter in dispute exceeds five hundred dollars, and we are therefore without jurisdiction. The fact that the matter in dispute in the suit which is to he transferred exceeds that sum, does not fix the amount in this. There is no pretension that the defendant will he responsible for the amount of said suit, if he fails or refuses to transfer, and we have no intimation what damage may result to either party by the determination of this suit. The difficulty is not removed by the appeal taken by Mrs. Gayle, the administratrix, as the transfer being illegal cannot affect her rights.

We notice, of our own motion, our want of jurisdiction.

It is therefore ordered that the appeals herein be dismissed at tho costs of the appellant.


text:
    No. 56.
    State of Louisiana v. John J. Kreider.
    Tho pies of lis pendens will not be maintained where it is shown that a suit by mandamus has been brought in the name of the State on the relation of a claimant for office, and is still pending, and another suit has been brought in the name of the Shite by the District Attorney joining the same claimant for office as in the mandamus suit under the acts of the Legislature of 1868, numbered filty-eight and one hundred and ñíty-six, providing a remedy against usurpation and intrusion into office. In the mandamus suit the State is merely a nominal party, and m the suit brought under these acts of the Legislature tho State is the actual real party in interest wherein the right to hold the office is the principal subjoct of inquiry. Want of identity of parties and not having the same objects in view operates as a bar to the plea.
    The thirteenth section of tho act of September 14,1868, repealing the chartor of the city of Jefferson, approved Maroh 8, 1867, did not abolish the offices of the corporation. This clause only repealed the old charter in so far as its provisions were not incorporated in the new chartor.
    The failure to hold an elect*on for municipal officers of the city of Jcfforson on tho first Monday of January, I860, as provided in seption three of tho amended charter, adopted September 14, 1808, did not vacate tho offices which wore filled by election under the charter of 1867.
    The appointment to an office by the Governor is void if there was no vacancy at the time $ie appointment was made.
    from the Second Judicial District Court, parish of Jefferson. Pardeo, J.

      Z. McKay, District Attorney, Baccy <& Butler, J. Hawkins and L. A. Sheldon, for plaintiff and appellee. A. K. & H. N. Ogden, Fellowes & Mills and Oasabat <& Scott, for defendant and appellant.
   Taliaferro, J.

This suit is brought under the act of the Legislature approved October 15, A. D. 1868, for “providing a remedy against usurpation, intrusion into, or the unlawful holding or exercising a public office in this State.” Under the act of the Legislature of the eighth of March, 1867, entitled “an act incorporating the city of Jefferson,” the defendant was elected Mayor of the city and was discharging the duties of that office when the Legislature passed tho act approved by the Governor oh the fourteenth of September, 1868, entitled “ an act for revising and amending the charter of the city of Jefferson.” The third section of that act required an cleetion to bé held on the first Monday of January, 1869, and every two years thereafter for Mayor, Treasurer, Controller and Aldermen, the several officers aforesaid to enter upon tlie discharge of the duties of their respective offices on the third Monday following then- election. The fourth section of that act provides that the Governor shall, upon the passage of this act, remove the present hoard of aldermen and other officers of said city and appoint the Mayor, Treasurer, Controller and Aldermen until the aforesaid officers shall have been elected and qualified as in accordance with section three.” The Governor did not upon the passage of the act revising and amending the charter of the City of Jefferson remove and appoint as provided for according to section four, hut permitted matters to remain in statu quo until January, 1869, at which time, as provided by the amendatory act of 1868, an election was to be held. No election however was held at the time fixed nor has an election been held since. There being no election held the Governor proceeded to appoint and commission F. J. Leche Mayor of the city, as in case of a vacancy in the office. Kreider, the defendant, refusing to yield the office to Leche and to turn over to him the paraphernalia appertaining to the office, Leche applied to the District Judge of the district for a writ of mandamus requiring Kreider to recognize him as Mayor of the city of Jefferson and to deliver to him the books, records, personal property, etc., belonging to the office, or show cause to the contrary at the time and place fixed by order of the Judge.

On the trial the judge dismissed the demand of Leche to be recognized Mayor on the ground that upon the application for a writ of mandamus the right to an office could not be inquired into, but decided that the proceeding so far as it aimed to place Leche in possession of the appliances of the office was well taken and to that extent the rule was made absolute and a peremptory writ of mandamus was ordered to issue.

From the judgment thus rendered Kreider took a suspensive appeal which is now pending before this court. At this stage of the proceedings the present action was instituted by the plaintiff under the acts of the Legislature passed in the year 1863, numbered fifty-eight and one hundred and fifty-six, providing.a remedy against usurpation and intrusion into office. .

Kreider excepted upon the following grounds :

Mrst — Lis pendens relying upon the proceedings for a mandamus to sustain that plea.

Second — That the right to a municipal office cannot be tested under the usurpation and intrusion acts.

The judge a quo having overruled the exception and rendered judgment upon the merits, declaring Leche to be entitled to the office of Mayor, the defendant appealed.

We will first examine tlie plea of Us pendens. In the mandamus case tlie controversy is one simply between individuals, although nominally carried on iu the name of the State on the part of the complainant. In the other case under what is usually termed the intrusion act it is clear the Legislature intended to remedy an evil prevailing to no small extent, that of the frequent altercations arising from conflicting pretensions to the right of holding office. The grave maxim interest HepulUcae ut set finis litium seems to be at the foundation of this litigation. I-Ience the State itself takes the initiative, and in the name of the people of the State, the Attorney General is authorized, even upon his own information, to bring actions in the cases specified in the act. It is intended that the State shall be the proper party in interest, to the end that there shall be no interruption or suspension of the functions of the public officers, that delays in the administration of justice shall be prevented and that the duties of the public functionaries shall be regularly and without interruption performed. In all actions brought in contemplation of this act the name of the complaining party if there be one, is joined with that of the prominent plaintiff the people of the State, but the interests of such party in actions brought under this act are deemed of secondary importance. Hence from want of identity of parties in the two cases the jilea of lis pendens fails. The State in the one case is the actual real party ; in the other merely a nominal party.

The objects of the suits were not the same. In the mandamus suit we sustained the views of the defendants, who then contended that the question of office was not involved in that suit, and we refused to permit it to be tried by jireference. •

We think the excejition was properly overruled.

To ascertain whether the Governor had the right to appoint the relator to the office he claims, it is necessary to determine whether the several offices under the act of 1867' were vacant, and to decide this question we must examine the act of the General Assembly approved fourteenth September, 18GS, entitled an act revising and amending the charter of the City of Jefferson.” . This act, as its title imports, was intended to revise and amend the former charter. Sections one and two are the same in both acts. The only substantial change in section three is as to the time when the Mayor, Aldermen, Treasurer and Controller shall bo elected. There is nothing in this section which abolishes or changes tlie offices themselves. Section four in the new charter expressly recognizes tlie existence and continuance of the offices, for it provides that the Governor “ shall remove the present Board of Aldermen and other officers of said city and appoint the Mayor, Treasuer, Controller and Aldermen until the aforesaid officers shall have been elected and qualified in accordance with section three.” It is evident the Legislature did not contemplate abolishing the offices, but they simply provided for the removal of the present incumbents and the appointment of tlieir successors to tlie offices. In section three they changed the time for holding future elections of officers. Did the thirteenth section repealing the act approved March 8, 1867, entitled “ an act incorporating the City of Jefferson ” abolish the offices? We think it plain that this clause was only intended to repeal the old charter in so far as its provisions were not incorporated in the now charter. It cannot be supposed that the Legislature intended to declare offices abolished which they ,had in preceding sections of the same act recognized as existing and had provided for filling.

The offices then not being abolished there were no vacancies. The term of office for which the Mayor, Aldermen, Treasurer and Controller were elected under the charter of 1867 had not expired at the time the apxmintments were made by the Governor in January, 1869, for the incumbents were entitled to hold their offices until the expiration of the term for which they were elected, and this term extended to a period beyond the time fixed by the now act for the election and induction into office of their successors. Therefore the failure to hold an election on the first Monday of January, 1869, did not vacate the offices and consequently there was no room for appointments. The section four contains the only authority found in the act authorizing the Governor to make appointments. It is nowhere provided in the act that the Governor shall make appointments in case of the failure of an election at any of the stated periods. The section four directs the Governor, unqualifiedly, to remove the Mayor, Aldermen and other officers of the city upon the passage of the act, and appoint others. This authority, of very questionable validity, to say the least of it, the Governor did not exercise, deeming, as we may suppose, that the Legislature had in this instance transcended its proper powers. He only made the appointments after' the failure to hold the election on the first Monday of January, 1869, on the ground, as we imagine, of there being vacancies. In our view of the two acts vacancies had not arisen, and we therefore conclude that the appointment of the relator to the office of Mayor of the City of Jefferson is null and without effect.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that this suit be dismissed at the costs of the relator,

Mr. Justice Howe took no part in this decision.


author: Ludeling, C. J.

text:
    No. 49.
    John H. Randolph v. The Widow and Heirs of John L. Chapman.
    The hold*» of promissory notes secured by mortgage on real estate, importing a confession of judgment may proceed in rem after the mortgagee has died, to foreclose the mortgage without provoking the appointment of an administrator to represent the succession.
    Where the act of mortgage imports a confession of judgment, and no partition of the estate has been made among the heirs, the mortgage creditor may seize and sell the hypothecated property, as if the original debtor were still alive.
    If the widow and heirs of the deceased husband whose property is specially mortgaged, be non residents, the mortgage creditor in a suit against the mortgaged property, may provoke the appointment of a curator ad hoc to represent them.
    from the Twelfth District Court, parish of Catahoula. Orawford, J.

      Mayo & Spencer for plaintiff and appellant, G. S. Mayo curator ad hoe for appellees.
   Ludeling, C. J.

This suit was instituted to enforce the payment of certain promissory notes, executed by John L. Chapman. The notes were secured by special mortgage on lands situated in the parish of Catahoula. The plaintiff alleging that John L. Chapman was dead, and that his widow and heirs were absentees, prayed that a curator ad hoe be appointed to represent them in the proceedings, and he prayed for the sale of the mortgaged property to satisfy his debt.

A curator ad hoe was appointed and he filed an exception alleging that the heirs, some of whom are minors, have not accepted the succession, without the benefit ot inventory; that the widow has the right to renounce the community; and that the curator ad hoe is without power to stand in judgment. He prays that an administrator bo appointed to represent the succession.

This exception was sustained by the District Judge, and the suit was dismissed.

We think there is error in the judgment. The plaintiff had the right to proceed in rem to foreclose his mortgage, without provoking the appointment of an administrator to administer the succession. If the act import a confession of judgment, and there have been no partition of the estate among the heirs, “the creditor shall be entitled to seize and sell the hypothecated property, as if the original debtor were stillalive.” C. P. art. 66;1 An. 204, Boguille, Administrator, v. Faille: 2 An. 916; 12 An. 551, 591. The case of the State v. Leckie, 14 An. 641 relied on by defendants, is not in point.' In that case the proceedings were not in rem.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be avoided and reversed, that the exception filed in the suit be overruled, and that this case be remanded to be proceeded with according to law, and that the appellees pay the costs of appeal.


text:
    No. 74.
    Succession of W. H. Gale, on Opposition to Provisional Account of Administratrix.
    "Where the creditors of a succession are litigating their rights contradictorily with. each other and the value of the succession exceeds flve hundred dollars, an appeal will lie to the Supreme Court, although the claim of each creditor may not amount to that sum.
    The holder of a claim against a succession approved "by the administratrix is not likened to the holder of a note payable to bearer, and he is not dispensed from proof of ownership when denied by other creditors.
    The privilege of the vendor who has delivered personal property is inferior to that of a lessor. 3to privilege exists on movables f«r the payment of State and parish taxes.
    Where the fund produced by the sale of the movables of a succession has been exhausted by the special' privileges, the immovables or such portion as may be necessary must be sold to pay the general privileges, to which time the seitlement of the rank of the genoral privilege creditors must be postponed.
    A PPEAL from the Parish Court of Ouachita. Iiay, Parish Judge. ±\.

      John Bay, for Mrs. Gayle, administratrix, appellee. B. W. Bich-ardson, for Schlessingcr and Kennedy, opponents. Garrett & Garrett, for W. T. Watkins, opponent. Biehardson & McHenry, for Daniel T. Head, opponent, appellants.
   Howe, J.

The funds which are sought to ho distributed by this account result from, the sale of crops raised "'upon plantations hired by the deceased, and working animals, implements and other property attached to such plantations.

The inventory of the property of the succession shows that there belongs to it immovable property of the estimated value of $5000. The record shows that the movables sold as above stated have not produced enough to pay the claims which are specially privileged thereon.

In filing this account, however, the administratrix proposes to pay the general privileges by preference from these proceeds of the movables. It is evident that such a course would be an injury to the creditors who have special privileges thereon, reducing their pro rata privileged shares, and increasing that portion of their claims which would thus become merely ordinary claims on the rest of the succession funds. At the same time it would he improper to pay over at this time all these proceeds to the creditors specially privileged thereon, and thus leave the general privileges to the chances of a sale in the future of the immovables, which might not produce enough to pay them in full. Article 3223 of Code provides that if the movables of the debtor by reason of the special privileges affecting them, or for any other cause, are not sufficient to discharge the debts having a privilege upon the whole movable property, the balance must be raised on the immovables. To such a case as the one before us we are of opinion that the principle of this article may he properly applied in such a manner as to fully secure the rights both of those who have special, and those who have general, privileges. For this purpose since the fund produced by the movables is exhausted by the special privileges, the immovables or such portion as may be necessary should be sold, and then, and not till then, can tbe legal rights of the parties be justly determined. For this purpose the cause must be remanded.

Before the case takes this course we may dispose of some questions raised by the record which ought to be determined.

The administratrix has moved to dismiss the appeals of the opponents, Head and Atkins, on the ground that the matter in dispute in each respectively does not exceed the sum of $500. The motion must be denied, it being well settled that where the creditors of a succession are litigating their rights contradictorily with each other and the value of the succession exceeds five hundred dollars, an appeal will lie to the Supreme Court, though the claim of each creditor may not amount to that sum. 3 Rob. p. 6.

The claim of Head, however, was properly dismissed by the court below, for he did not prove his ownership of the debt. He claimed a privilege for supplies furnished by the steamers Vicksburg and Grey Eagle, but did not show any interest in himself in either the boats or the supplies. The point urged by his counsel that the claim was approved by the administratrix, and is therefore payable to hearer, is not sound. The “bearer” of such a claim as mentioned in Code of Practice, article 984, cannot be likened to the holder of a note payable to “bearer.”

The claim of Atkins was, we think, correctly disposed of by the court below. As a vendor who had delivered the property sold, he must be postponed to the lessor, and we cannot perceive that the fact that one of the mules sold was removed from one plantation to another has changed the merits of the claims for privilege. The animal was at all times on a plantation hired by the decedent, and subject to a lessor’s privilege.

The court also properly rejected from the list of general privileges the items for State and parish taxes. Such a privilege is not established by law.

We aro of opinion that the court properly allowed the claims of S. H. Kennedy & Co. and F. S. & F. G. Schlessinger as a privilege for the full amount. The supplies they furnished appear to have been necessary under the new system of labor. They are not like the bills for “cigars, anisette, and ice in large quantities,” which were repudiated by the decision in C Ann. p. C68. Nor can we perceive that the fact that some of the supplies were paid out to the laborers on account of their wages can impair the privilege on the crop. The supplies are still furnished to the working of the place, they contribute directly to the making of the crop, and the lessors can hardly complain if, by the fact that the laborers have rfeceived them bn account of théir wages, the superior claims of the latter have been discharged.

But the supplies furnished by the Schlessingers seém to have a privilege on the crop of the Lamy place as well as thfe McGuire plantation, In remanding tile caso an opportunity sliould be given to fix tbe amounts bearing on oacb place respectively. Tho supplies were furnished to Gale, and if part of them were used on' the Lamy place, equity requires that the amount thus used should be privileged on the crop there produced, and the crop of the McGuire place relieved to this extent.

Tho court did not err in ordering that the lessors be first paid so far as possible from the proceeds of the movables other than the crops. They have a privilege on those movables, and the furnishers of supplies have none. The privileges on the crops are concurrent. The method theu adopted by the judgment is correct, for while it does not injure the right of the lessors it materially benefits the furnishers of supplies whom tho law designs so far as possible to protect.

For tho reasons given it is ordered and adjudged that the judgment appealed from be affirmed in the following particulars:

So far as it dismisses the oppositions of A. L. Swan and D. F. Head, but without prejudice to the right of tho said D. F. Head to establish his claim by further proceedings in the ease. So far as it disallows tho claim of Atkins to a vendor’s privilege. So far as it allows the claims of S. H. Kennedy & Co. as furnishers of supplies for $7261 31, with interest at eight per cent, per annum on $6000 from December 1, 1867, as a privilege on the crops of the Stevens place. So far as it allows the claims of F. S. & F. G. Schlessinger for $5416 21, with eight per cent, per annum interest from November 25, 1867, as a privileged claim for supplies furnished. So far as it rejects from the list of general privileges the claims for taxes; and so far as it requires the lessors to exhaust the proceeds of tho movables, on which they have a privilege before taking their pro rata share of the crops.

It is further ordered that in other respects the said judgment be avoided and reversed, and the cause remanded to be proceeded with according to law in conformity with tho views hereinbefore expressed. The costs of the appeal will be paid by the appellants, Stevens, Atkins and Head.

Bebearing refused.

On Opposition.

' In this case the court of its own motion will amend tho decree heretofore rendered in respect to the claim of the opponent Atkins, and the costs of the appeal.

It is therefore ordered:

First_That the right of the opponent Atkins, to establish in this cause as remanded any privilege he may have as vendor be reversed; and,

Second — That the costs of the .appeal be borne by the succession.


author: Wyr/r, J.

text:
    No. 79.
    The State of Louisiana ex rel. R. C. Downes v. E. B. Towne.
    Section seven of act number thirty-nine of 1868, ontitled “an act to ascertain tho eligibility of persons elected or appointed to office and to declare offices vacant,” etc., is unconstitutional and void.
    A judge of a court or other constitutional officor of the State may be removed from office bjr impeachment, by address of the Legislature, or by proceedings under the intrusion act, if it be judicialljr ascertained that he is disqualified by the constitution of this State or the United States. He cannot be removed froffi office by an act of the Legislature, nor has the Legislature the power to pass an act authorizing or instructing the Governor to declare an office vacant which is created by the constitution.
    Tho appointment and commissioning by the Governor of a party to an office which has been legally filled, without the vacancy being first declared according to law, is an absolute nullity.
    from tho Thirteenth Judicial District Court, parish of Madison. Hough, J.

      Gray & Egan, for relator, appellee. Stubbs & Gobb, for defendant and appellant.
   Wyr/r, J.

At the April elections of 1868, the relator, Richard Charles Downes, ivas elected parish judge of tho parish of Madison, and received his certificate of election, on first July, 1868, from R. C. Buchanan, then commanding the Fifth Military District. On fourteenth July, 1868, he received his commission from tho Governor of this State, and on the same day took the oath of office prescribed by the Constitution of 1868, and entered on the duties of his office.

On twenty-fourth April, 1869, the defendant, E. B. Towne. was appointed by the Governor and commissioned to tho samo office, then administered by the relator, Downes, taking the oath required by the constitution and laws. lie also attempted to discharge the duties of the office of parish judge, when the relator, R. C. Downes, and the district attorney instituted this proceeding against him under ttio act of eighth September, 1868, amended by act fifteenth October, of tho same year, providing a remedy against usurpation, intrusion into, or the unlawful holding or exercising a public office or franchise in the State. (Acts of 1863, p. 71 and 199.,)

The defendant, E. B. Towne, denied that he had usurped, intruded into or unlawfully held the office of parish judge, hat claimed to exercise the functions of said office by virtue of his appointment and commission from tho Governor, under tho seal of the State. He charged that the relator, Richard Charles Downes, is himself a usurper, intruder, and unlawfully holds the office of parish judge because he failed to comply with the provisions of act number thirty-nine, commonly known as the Eligibility Act,” passed in September, 1868, which prescribes an oath to test the eligibility of those elected or appointed to office or already in office. The seventh section of said act provides that in case commissions have been issued to any person or persons elected or appointed to office before the passage of this act, or if any person has been sworn in, or entered on the discharge of the duties of any office which does not require a commission, all such persons shall take the oath required by section three of this act, and file tlie same in tlie office of tlie Secretary of State within thirty days after tlie promulgation of this act, and in the event of their failing, to do so, the Governor shall declare such persons ineligible to office and their offices vacant, and the offices shall he filled as prescribed by the constitution and laws of this State.” Act 1868 p. 46. The defendant alleged that the relator, Downes, failed to take the oath and file it in the office of the Secretary of State, as required by sections three and and seven, and that the office became .thereby vacant and he was duly appointed thereto.

He also alleged that Downes is precluded from holding said office by the fourteenth cm indinent to the constitution of the United States, he having been parish judge and member of the State Legislature prior to the rebellion and afterwards aided and assisted therein.

The court below gave judgment in favor of the relator, quieting him in the exercise and possession of the office of parish judge of the parish of Madison, and decreeing the appointment of the defendant, E. B. Towne, to be void, and excluding him from said office.

The defendant has appealed.

The relator contends that he took the oath of eligibility within the thirty days, but did not file it in the office of the Secretary of State — that the provisions of said act requiring him to do so is unconstitutional. He also contends that he is not disqualified from holding office by the fourteenth amendment of the constitution of the United States, never having aided in the rebellion.

T^e. validity of the appointment of Towne depends on the fact whether there was a vacancy in the office of parish judge of the parish of Madison. If there was no vacancy there could be no .valid appointment.

Downes was duly elected, commissioned and qualified, and was performing the duties of the office at the time and before the passage of the Eligibility Act, and also when the defendant, Towne, was appointed by the Governor.

Holding a constitutional office he could be removed by impeachment or address of the Legislature, or by proceedings under the act commonly known as the “Intrusion Act,” if it should be judicially ascertained that he is disqualified by the constitution of this State or of the United States.

Until it be determined by a judicial proceeding contradictorily with him that he is disqualified under the fourteenth amendment of the constitution there is no vacancy. If he be not disqualified under the paramount law of the land to hold the office he cannot be removed in. any other manner than that indicated in the constitution. His disqualification under the fourteenth amendment can only be determined judi- • cially. The Legislature cannot authorize the Chief Magistrate of the State to decide the question.

T<y decide whether tlie relator, Downes, is disqualified or not to bold office finder tlie' fourteentli amendment of the constitution of the United States, is purely a judicial question. The seventy-third article of the' constitution provides that “ the judicial power shall he vested in a Supreme Court, in District Courts, in Parish Courts'and in Justices' of the Peace.” We are of the opinion that the Governor could not legally and constitutionally appoint the defendant, E. B. Towne, to the office of parish judge until the incumbent, Richard Charles Downes, was removed by impeachment or address of the Legislature, or until his disqualification was determined' by the court.

The evidence in this Case fails to establish conclusively that Downes is' disqualified finder the fourteenth amendment of the constitution of the United States. Failure to take the oath testing hi's eligibility and to filé it’ in the office of- the Secretary of State in the time limited in act number thirty-nine did not ipso facto destitute him of office. It whs not in- the power of the ^Legislature to legislate him out of office or to diminish or increase his term of office as fixed in the constitution. They could not authorize the Governor to deem his office vacant on failing to file the test oath, and appoint and commission the defendant, E. B. Towne. We regard the seventh section of the act number thirty-nine, commonly known as the Eligibility Act,” as unconstitutional and void.

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


text:
    No. 25.
    John E. Burch v. Americanus Willis.
    The character which plaintiff gives to his action by his pleadings must govern in determining the prescription applicable to it.
    An' action for damages founded on a tort is prescribed by one year.
    from the District Court, parish of Claiborne. WatMm, J.

      J. 0. Egan, for plaintiff and appellant, Garrett <& Garrett, for defendant and appellee.
   Howell, J.

In October, 1866, the plaintiff instituted this suit to recover the sum of nine thousand nine hundred and seventy-five dollars, witli legal interest from the first of September, 1865, as the value of fifty bales of cotton, which he alleges the defendant “took and appropriated to his own use and benefit, without any right, title or legal claim whatever, in the summer or fall of 1865.”

In the answer the defendant admits taking twenty-five hales of’ cotton, but avers that it was with the approbation and consent of the plaintiff, and by virtue of a purchase of fifty-four hales in 1863, from Mrs. Sarah A. Willis, wife of the plaintiff Burch, who subsequently ratified and approved said sale, which sale included the cotton taken by defendant.

After filing the- answer defendant filed tlie plea of prescription of one year, applicable to' offenses and quasi offenses, wMolx is pressed upon our consideration as disposing* of the case.

Plaintiff’s counsel contends that, even if the charge in’the petition amounts to a tort, the defendant has given another character to the action and thus taken it out of the-application of the plea filed.

Prescription may be pleaded a*t any stage of the cause, and even in the Supreme Court, and if applicable to- the demand to which it is opposed must bo sustained.

The character which the plaintiff gives to his action by his pleadings must govern in determining the prescription applicable to it. 12 A. 358, 359; 13 A. 609.

That the charge in the petition in this case constitutes a tort there can be little doubt. The defendant is charged with having taken and appropriated to his own use the property of plaintiff without right, title or legal claim whatever. It was therefore a wrong, an offense. It was the taking and appropriating plaintiff’s property without his consent, which caused him damage to the amount of the value of the property, and this amount as fixed by him is claimed in this suit; and as the evidence shows that the act complained of was committed more than one year prior to the institution of this suit, the prescription pleaded is applicable and must be sustained.

It is therefore ordered that the judgment appealed from be affirmed with costs.


author: IIoweee, J.

text:
    No. 68.
    Littlebury Overby v. Hezekiah Overby, Administrator Mary E. Overby, Tutrix, Intervenor.
    Contracts ente» cd into between belligerent enemies are absolutely null.
    In the late civil war between the’ United" States and'the (so called) Confederate States, every individual within the military lines of the' one, was a belligerent with reference to the other, and every contract between two parties, the one residing within the military lines of the Uuifci'd SUteS and the other residing within the Confederate lines is absolutely null and void. 20 An. 211. < .
    The contract of agency is included in the prohibitions established by acts of Congress and the proclamation of the President of the United States interdicting trade and intercourse between citizens of the United States and the insurgents, and is therefore void. 12 U. S. Statute» at large, page 1202. Proclamation of the President of August 16,1861.
    ITEAL from the Parish Court, parish of Morehouse. JBussey, Parish Judge.

      8. (I. Parsons, for plaintiff and appellant, James II. Poalner, for defendant and appellee.
   IIoweee, J.

This is an action by a principal against the legal representative of an agent for the delivery of certain cotton or the value thereof, alleged to have been purchased by the agent with the funds of, and for the principal. The tutrix of the minor children of the deceased agent intervened and joined in the defense, which presents first, by peremptory exception, the legality of the agency, alleging that the contracting parties lived or resided at the time npon opposite sides of hostile military lines, were enemies and incapable of contracting.

, It is shown that the plaintiff then resided and still resides in the State of Kentucky, a State within the Federal military lines and not one of the insurgent States, and the deceased in Morehouse parish, State of Louisiana, declared by proper authority to be insurgent territory and actually in the occupation of the insurgent military forces; that plaintiff passed through the respective military lines in February, 1862, came to Morehouse parish, constituted his brother, the deceased, his agent to buy cotton on their joint account and furnished the funds for the purpose.

They were consequently in a technical legal sense enemies, and upon general principals of international law, relating to civil war as well as by the terms of the act of Congress of thirteenth of July, 1861, and the proclamations of the President thereunder, incapable of contracting together or establishing any business relations between themselves. The plaintiff was in Morehouse parish in violation and defiance of the rules and regulations of war, the laws of nations and the special laws of this country, and the specific commerce in which he proposed to engage was specially prohibited. 12 IT. S. Statutes at large 1262; Proclamation of President, August 16, 1861; 1 Kent 66, 74, 77; 19 An. 491; 20 A. 241; 1811. 114.

As said in 20 A. 241, “contracts entered into between belligerent enemies are absolutely null, because they affect eminently the public order; each individual becomes by the very existence of the war the enemy of every other person domiciled within the enemy’s territory; they are respectively belligerents, and subject in that respect, to all the consequences and to the operations of the laws of war.

“The theory of the law of nations on this subject is, that there cannot be a war for arms, and peace for commerce and trading, at one and the same time. It would be dangerous for any nation in a state of civil war to permit that degree of intercourse to be carried on which must necessarily result from trading and commerce. It would certainly interfere with the secrecy, certainty and dispatch of military operations, without which any war could not be successfully carried on. 1 Kent’s Com. p. 66.

“ Tire proclamation of the President of the United States prohibiting intercourse between parties domiciled within the lines of the belligerents was in pursuance of those well settled principles of law.

“Contracts thus entered into are null and void in their inception and original concoction, and no subsequent events can render them valid. See Howard’s U. S. S. C. Rep. 50; Rennet’s case, 18 How. p. 114.”

The contract of agency is as much within the operation of these principles as any other contract. It requires the concurrence of two minds, an agreement between two parties in a position to contract; its object must be lawful, and the power conferred must be one which the principal himself lias a right to exercise. C. C. 2956.

In this case the plaintiff liad no right to exercise the power he attempted to confer — to buy cotton in Morehouse parish, or any of the insurgent States, for it was prohibited; and he could not authorize his brother to do so. The courts cannot interfere in such cases to force settlements. The judgment sustaining the exception is correct.

It is therefore ordered that the judgment appealed from be affirmed with costs. '


text:
    No. 65.
    W. W. Howe v. Whited & Gibbs. Smith, Newman & Co. and others, Third Opponents and Intervenors.
    A purchaser of property under an order of seizure, who claims the fruits of the sale, is precluded from questioning the validity of the decree ordering tho immovables by destination to be sold with the mortgaged property.
    A factor or merchant has no privilege on the mules, cattle and implements attached to tho plantation, or on the proceeds of tho sale thereof, for advances made or supplies furnished to make the crop, nor has the factor any privilege for money advanced to the planter who afterwards applied it to the payment of the laborers for working the crop. By giving the • fund this direction by the planter and applying it to the settlement of privilege accounts, the factor does not become subrogated to the privilege. The privilege of the factor does not rc8ultfrom subrogation, but springs directly from the law which gives it.
    The factor has a privilege on the crop lor advances made, and supplies furnished in aid of its production. Acts of 1867, pago 351.
    Whore the land, immovables by destination, and the growing crop have been sold in block, tho value of the crop may be ascertained by proof after the sale has been made, and the privilege of the factor attaches to the proocods.
    A factor having a privilege on a crop of cotton for supplies furnished, does not lose it by becoming the purchaser thereof at sheriff's sale. In such a case the privilege passes from the thing and attaches to tho proceeds.
    from the Twelfth District Court, palish of Ouachita. Crawford, J.

      J. & 8. D. McJEnery,.for plaintiff W. W. Howe and intervenor S. D. Gridley, appellants. W. J. Q. JBalcer, for Smith, Newman & Co., third opponents, appellees. John Bay, for Blanchin & Giraud, intervenors, appellees.
   Wyly, J.

In July, 1867, plaintiff sued out an order of seizure and sale against the lands of the defendants in the parish of Ouachita, together with the standing crop and the immovables thereon by destination, to wit: The mules, cattle and implements.

On the second November, 1867, the property was sold in block to Blanchin & Giraud for $8225, who paid over to the sheriff $1370 thereof, retaining the balance in their hands to discharge the outstanding notes secured concurrently by the same act of mortgage.

The day before the sale Smith, Newman & Co. filed a third opposition, claiming q privilege on standing crop of cotton and the mules, cattle and implements seized, and asking to be paid by preference out of tbe proceeds of tlie sale thereof, the indebtedness due by the defendants for money and supplies advanced by McCombie & Child, through their' agents, Loo Crandall & Co., to them, and which indebtedness they allege to have acquired.

II. A. Parker also on the same day filed an opposition, claiming a preference out of the proceeds for the sum due him for labor as a mechanic.

On the twenty-sixth November, 1867, Blanchin & Giraud filed their petition of intervention, claiming an amount due them for advances and supplies, to be paid by preference out of the proceeds of the sale of the crop, mules, cattle and farming implements.

A. G. Gridley subsequently intervened, claiming the pro rata due him as mortgage creditor out of the proceeds of the sale, filing with his petition a certified copy of the judgment of the Fourth District Court of New Orleans, ascertaining and fixing the amount due him as holder of the outstanding notes secured by the same mortgage under which the property was sold.

In answer to the third opponents and intervenors, the defendants, Whited & Gibbs, pleaded the general issue.

On the trial the District Judge dismissed the opposition of Parker, decreed that Smith, Newman & Co., and Blanchin & Giraud be paid by preference out of the cotton and personal property for the amount of cash advanced by them to pay the laborers, and that W. W. Ho wo and A. G. Gridley, mortgage creditors, be paid pro rata out of the proceeds of the sale of the lands, and out of the balance of the proceeds of the sale of the immovables by destination, after paying the opposers, Smith, Newman & Co. and Blanchin & Giraud, for the cash advanced to pay laborers as aforesaid.

From that judgment the mortgage creditors, Howe and Gridley, have appealed. The opposers, Smith, Newman & Co. and Blanchin & Giraud, have also appealed. II. A. Parker, whose demand was dismissed, has not appealed.

The contest is now between Howe and Gridley, the mortgage creditors on the one side, and the privilege creditors, Smith Newman & Co. and Blanchin & Giraud on the other, there being no conflict of interest between the mortgage creditors. There is a conflict of interest, however, between the privilege creditors. The issues, as presented in the pleadings, are over the proceeds of the sale. The validity of the decree and the legality of the sale arc not at issue.

Smith, Newman & Co. only claimed a preference on the proceeds of the movables and cotton attached to the plantation, and asked for an order requiring the sheriff to hold the same subject to the action of the court. Blanchin & Giraud being the purchasers, and claiming the fruits of the sale, can not question the legality of the decree ordering the immovables by destination to be-sold with the mortgaged premises. Tho defendants, Whited & Gibbs, took no appeal from the order, made no resistance to the sale, although present and although duly made parties thereto.

During the year 1807 the defendants obtained cash and supplies from McCombie & Child, through their agents, Leo Crandlc Co., giving them their mortgage note for $15,000, to cover a prospective indebtedness for supplies and cash to bo furnished from month to month, and also agreeing in the act of mortgage to ship them their crops.

After making considerable advances of money and supplies to the defendants, McCombie & Child failed. Smith, Newman & Co. instituted a suit of attachment against them, seizing their claims against tho defendants, and finally became the purchasers thereof.

After tho failure of McCombie & Child, Blanchin & Giraud made advances in cash and supplies necessary to complete tho crops of tho defendants.

The first question to determine is, have the opposers, Smith, Newman & Co. anil Blanchin & Giraud, ai privilege on the mules, cattle and implements attached to the plantations, or in tho proceeds of tho sale thereof ?

As furnishers of cash supplies they undoubtedly had a privilege on the crops. (Act of 1867, page 351.) Under the act of 1867 amending article 3184 of the Civil Code, tho laborers had a privilege on the crops and the movables attached to the plantations of defendants. The op-posers then have no privilege upon the personal property for their advances. They claim, however, to be subrogated to the privilege of the laborers, that tho money advanced to the defendants was applied by thern to the payment of the laborers, and therefore they are legally subrogated to the lien of the latter on tire stock and other movables attached to tho premises. . ■

To this proposition we can not assent. It matters not what may have been the destination of the funds advanced to the defendants, Whited & Gibbs, no legal subrogation accrued in favor of their factors. The moment the cash was drawn there arose between them and the latter the relation of debtor and creditor. The items and amounts drawn were charged up to the defendants instantly, as appears by the accounts filed in this case. If the money advanced by these factors had been applied by the defendants to the payment of an account for supplies for their plantation, the factors would not have been subrogated to the privilege of those who had furnished the supplies. (Hen. Digest 1250, No. 5.) Even though they advanced money for that express purpose no subrogation would accrue-. The factors’ lien on the crop does not result from subrogation because the planter has applied the funds to the settlement of privilege accounts; it springs directly from the law giving the privilege for cash advanced in aid of the crop, (Act 1867, page 351.) Hen. Digest 1250, No. 5; 12 A. 41; 13 A. 52. The principle is the same when the planter applies the funds to the payment of the privilege claim of the laborers. The factor advancing the funds is not subrogated to tho laborer’s privilege.

The privilege of the opposers, however, attach to tho cotton for the respective amounts advanced by them in aid of the crop. (Acts 18G7, page 351.)

The parties having a privilege on the cotton could have caused a separate appraisement before the sale, in order to furnish data upon which to ascertain the amount of tho proceeds of tho sale thereof. But as proof of the value of the cotton has been made (without objection) since the sale, we think the privilege creditors should receive tho amount the cotton was proved to be worth.

The value of the cotton was estimated differently by the witnesses. The defendant, Whited, who raised the crop, testified its value to be from $1000 to $1200. Wo think this witness had probably the more correct idea of the value of the cotton standing in tho field, and we will fix tho value at Ms highest estimate, $1200.

As there is no contest between the mortgage creditors, Howe and Gridley, wo are of opinion, after paying the costs of the sale, all tho proceeds in tho hands of the sheriff and purchasers (except the $1200, the value of tho cotton), should be paid over pro rata to Howe and Gridley in settlement of their prior mortgage on tho property sold.

As between the opposers, Smith, Newman & Co. and Blanchin & Giraud, we cannot perceive that either has precedence over tho other. From the evidence wo are satisfied that they each have a valid claim and privilege on the cotton for the amount demanded — that each having-made advances in cash and supplies necessary to make the crop, have a furnisher of supplies’ lion thereon; and as the proceeds of the cotton is not sufficient to satisfy both claims, they should be paid pro rata out of that fund.

Blanchin & Giraud have not relinquished or waived their privilege by becoming the purchasers, nor wore their claims and privilege extinguished by confusion. When the thing was sold the privilege attached to the proceeds. They acquired by the purchase the thing, not the proceeds. So far as the proceeds are concerned, the relation of debtor and creditor docs not unite in tho purchasers. The waiver ox-concession of precedence on the crops of the defendants made (by notarial act) by Loo Crandall & Co. in behalf of McCombie & Child in favor of Blanchin & Giraud, on the twenty-second June, 1867, can not give the latter any preference on the cotton over Smith Newman. & Co. It was not in the power of Loo Crandall & Co., as agents for McCombie & Child, to make such a covenant at the time, in relation of their principals’ claim against the defendants, Whited & Gibbs. Tho attachment of Smith, Newman & Co. had been previously levied, the parties garnisheed had already answered, and the claim had passed from the control of Lee Crandall & Co., as agents of McCombie & Child.

When Smith, Newman & Co. obtained their judgment, contradictorily with the curator ad hoc, their rights to ihe claim reverted back to the date the attachment was levied. Their purchase of the claim under their judgment has invested them with complete ownership. No waiver, relinquishment, or transfer- of claims by a party after the attachment is levied is valid, if the attachment be followed up with a judgment and sale.

The failure to notify the defendants, Whited & Gibbs, that the claims of McCombie & Child had been attached, did not in validate the attachment. Notice thereof to Whited & Gibbs would have prevented any settlement or equities from arising between them and McCombie & Child; but they have made no settlement.

Failure to notify the defendants did not authorize Lee Crandall & Co., as agents of McCombie & Child, to enter into the agreement with Blanchin & Giraud to relinquish or waive to the latter the privilege belonging to the claim attached.

The record shows that the purchasers paid into the hands of the sheriff $1370. Of this $134 55 was paid for costs of seizure and sale in the District Court, and one thousand dollars was paid to plaintiff by consent. The balance, $235 45, is now .ordered to be paid over to the plaintiff.

The purchase price was $8225. Deducting from this the costs of seizure and sale and the value of the cotton, $1200, there remains $0800 to be divided pro rata between the mortgagees, as follows : To the plaintiff $2250 80, and to the intervenor, Gridley, $4630 65. Deducting from plaintiff’s pro rata the sum of $1000 paid him by consent, and the sum of $235 45 to come to him from the balance in the sheriff’s hands, the purchasers, Blanchin & Giraud, still owe the plaintiff $1015 35, and to the intervenor, Gridley, $4630 65. On these sums they owe interest at eight per cent, per annum from the second November, 1867, the day of sale, having had the use of these amounts and the use of the property, on which they were'secured by first mortgage. 14 A. 149.

The proceeds of the crop, $1200, will-bo divided between Smith, Newman & Co. and Blanchin & Giraud ratably, as follows: To the former $595; to the latter $605, which they will retain.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed. It is further ordered and decreed that the sum of $235 45, remaining in the hands of the sheriff in this case, be paid over to the plaintiff. That the intervenors and purchasers, Blanchin & Giraud, of the city of New Orleans, pay to the intervenors, Smith, Newman & Co., the sum of $595, and retain in their own hands $605.. That the said Blanchin & Giraud pay to the plaintiff, William W. Howe, the sum of $1015 35, balance due him as mortgagee, with eight per cent, interest per annum thereon, from November 2,3867, till paid, and to Albert G. Gridley, intervenor herein, the sum of $4639 65, with eight per cent, per annum interest thereon, from second November, 1807, until paid, with mortgage to secure said sums on the property, purchased, as per act passed before William Shannon, notary, eighteenth April, 1866, and if said sums be not paid that execution issue therefor. (20 A. 159.) And that Smith, Newman & Co. and Blanchin & Giraud pay the costs of the appeal, and. that the costs of the District Court after the sale and prior to the appeal be paid by the plaintiff and the intervenors, one-fourth by each. (11 A. 260.)

Rehearing refused.

(Mr. Chief Justice Ludeling and Mr. Justice I-Iowe were recused in this case.)


text:
    No. 29.
    Tarleton, Whiting & Tullis v. James A. Kennedy. Rule on Mrs. M. E. Thompson et al.
    A party cannot claim the nullity oí a judicial sale and tlio fruits of the sale in one and the same action. 2 An. 681; 8 An. 454.
    A peremptory exception may be pleaded as well after default as before.
    from Eleventh District Court, parish of Jackson. Watldns, J.

      Kidd <& Smith, for plaintiffs and appellants. B. W. & B. Bich-ardson, II. Gray and Ilamlett & Stevens, for defendant and appellee.
   Wyly, J.

An execution in favor of plaintiffs, issued on the twelve months’ bond of the defendant, Kennedy, and D. R. Thompson, his surety, and the land of the latter was seized and sold by the sheriff on sixth October, 1866, to Mrs. M. E. Thompson for the price cf fifty dollars over and above all the mortgages mentioned in the mortgage certificate made out by the Recorder of the parish of Jackson. Tho property was adjudicated to tho purchaser, who paid over the fifty dollars, and retained the balance of the price hid to satisfy said mortgages. The plaintiffs now sue the sheriff and Mrs. Thompson to compel the former to correct his return, and the latter to pay over in full the amount of her hid or enough thereof to satisfy their judgment, or in default thereof to recover judgment against her for the balance due on their execution, alleging that the mortgages on the certificate were for the most part paid or prescribed, or wore not all conventional mortgages j that if it be found that said conventional mortgages be not out of date or prescribed, hut properly, on the mortgage certificate, then the judicial motgages at least did not authorize the purchaser to retain a part of the price to satisfy them.

The defendant, M. E. Thompson filed a peremptory exception, on the ground that the petition discloses no cause of action against her, and because the plaintiffs do not show that they have sufficient inter-cst in the sale to authorize the court to ^vant the judgment they aslc. Plaintiffs thereupon moved that the exception of the defendant he taken for an answer because made after default had been entered. The court overruling the motion maintained the exception of the defendant. From th,e judgment dismissing their demand the plaintiffs have appealed. .

The question raised by the pleadings, is, have the plaintiffs shown a sufficient, cause of actjo.n against the. defendant, Mrs.. Thompson? They claim the fruits of the sale,, and yet s_gt¡ up such illegalities as would vitiate the sale. If- Mig. Thompson has not complied with her hid, unlawfully detaining the price to satisfy mortgages that have no actual existence, the sale might he annulled-, If the mortgages have been paid or prescribed, such should be pleaded specially, and with certainty in an action contradictorily with the mortgage creditors.

Without testing the rights of the mortgage creditors by a direct action, they cannot., proceed agaipsfc MTib Thompson. She hid fifty dollars over and abipye the. mortgages existing on thq property as shown by the mortgage certificate. Tq require, her to pay over the full- amount of the price would pat release, her from the privilege and conventional, mortgage, qredijlprs., and would, in effect, he requiring her to do what was. fio,t .embraced in her.bid. She only agreed to pay fifty dollars and. the. mortgages. If this, was- an illegal- bid because there were, judicial mortgages, for- the payment of which the price could not he detained, the sale might he annulled; hut having claimed its fruits th.e plaintiffs are bound, by its terms. 2 A. 634; 3 A- 454.

Plaintiffs urge in their hill of exception that the peremptory exception filed after the default mu.st he taken as an answer, citing- as authority Stilley v. Stilley, and Lea v. Terry, 20 A. 428. They are not in point. A peremptory exception can. be. pleaded as well after default as before. But whether tfii} peremptory exception be.regarded as an answer or exception, canqof change thp result,

It is therefere. ordered tha$ the, judgment appealod from he affirmed with costs.


author: Howeix, J.

text:
    No. 43.
    N. McStea v. Boyd & Blanks.
    The burden of proof is on the plaintiff to show an interruption where the note sued on is ' prescribed-on its tace, and ii-none, is shown the xilea, will be maintained.
    from the District Court., paijsh of Cafdvell. Cv(iflVfov$, J.
    IFrtde II. Hough, for plaintiff and appellee. J. & J?, Ray, fqr defendant and appellant.
   Howeix, J.

One of the defendant^, Frederic]* A. Blanks, has appealed from a judgment against h.iiij. and Iris, codefendant on three promissory notes, due respectively on thirteenth December, I860, first January and thirteenth. April, 1861, and against which they pleaded the prescription of five years. Citation was served on the appellant on the twenty-second September, 1866, more than five years after the maturity of each note and according to the settled jurisprudence and the law of this State, the plea is well taken. See act fifth March, 1852, p. 90, § 3; Smith v. Stewart, 21 A. 75; Rabel v. Pourcieau, 20 A. 131.

It is therefore ordered that the judgment herein against Frederick A. Blanks be reversed, that there be judgment in his favor on plaintiff’s demand, with costs in both courts.


author: Lude ling, C. J.

text:
    No. 50.
    Succession of Richard King.
    The Supreme Court has appellate jurisdiction only, and cannot try questions of fact until they have been passed upon by the court below. Constitution, article 74.
    from the Twelfth District Court of the parish of Caldwell. Crawford, J.

      John Bay, for executor, appellee. B. W. di B. Bidhardson, for the heirs, appellants.
   Lude ling, C. J.

This is an appeal from a judgment probating the last will and testament of Richard King, deceased, and confirming the appointment of W. H. Hough as executor of the will.

The appellants were not parties to. the proceedings in the District Court until after the rendition of the judgment. They allege that they are the heirs at law of the deceased, that the judgment of the District Court is prejudicial to them, and they prayed for an appeal, which was granted.

The appellee has denied in this court that the appellants are the heirs of Richard King. This court has only appellate jurisdiction and cannot try the issue thus presented. Article seventy-four of the Constitution of 1863. The case must be remanded.

It is therefore ordered, adjudged and decreed that the case be remanded to the parish court of the parish of Caldwell with direction to the judge to inquire into the right of the appellants to appeal.


text:
    No. 48.
    E. W. Elton, Executor, v. John R. Temple.
    Questions of fact not raised on trial in the District Court cannot be examined on appeal. Sue. cession of King, reported above; Constitution, article 74.
    from the Twelfth District Court of the parish of Morehouse. Crawford, J.

      Newton & Nall, for plaintiff and appellee. Ban-sons & Morgan, for defendant and appellant.
   Ludeling, C. J.

This appeal was taken by petition from a judgment by default made final on the sixteenth of June, 1866. More than a year having elapsed before the application for the appeal, the defend-¡uit alleged under oath that when the judgment was rendered he resided in the State of Pennsylvania, and that ho has continuously resided there since that period.

The appellee has filed a motion to dismiss the appeal, in which it is denied that Temple was a nonresident. This presents a question of fact not raised in the District Court. This court has not original jurisdiction. Article seventy-four of the Constitution of 1868; succession of King, 21 An. 502.

It is therefore ordered that the case he remanded to the court a qua with directions to try that issue.


author: IIowell, J.

text:
    No. 57.
    Eleanor A. Woods et al. v. Hilliard H. Lee et. als.
    Whore a court has jurisdiction its decree will protect the purchaser at probate'sale from all informalities which may have preceded it, in’the absence of any charge dr proof, of fraud.
    The indorsement on the bade of an order of sale by'the administrator who makes tho sale is admissible in. evidence on the trial of a suit to annul the sale, Tho objection tlíát its genuineness is not proved goes to the effect.
    Tivo years possession of property purchased at probate sale will protect the purchaser against all irregularities and informalities which have been committed by the administrator alter tho date of the order of sale. Revised Statutes, page 22, § 4.
    from the District Court, parish of DcSoto. Crcsswell, J.

      J. Jj. Hodge, for plaintiffs and appellants. J. B. Flam, for defendants and appellees.
   IIowell, J.

This is an action by the heirs of Ezer E. Woods to annul the probate sale of a tract of land in the parish of Be Soto made on the twenty-eighth February, 18'51, to,one Joseph D. Lee, from wiiom the defendants acquired, on the following grounds :

First — The order of sale is insufficient and void because the clerk hád'no authority'to make it, and because petitioners, who are the forced heirs of the deceased, were not notified of the application for said order. It is insufficient and void because the day fixed for the sale did not admit of the legal delay required for advertising and was not notified to petitioners.

Second — The said sale was made without any previous notice or citation to petitioners of the application or order therefor.

Third — Said sale was made without the advertisements or notices required by law.

Fourth — The said sale was made on a day different from that mentioned in the order.

Fifth — None of the requirements of law were complied with and said sale was intended to defraud petitioners of their just rights.

Sixth — Said sale was made on a different day from that appointed in tiie commission to sell.

Seventh — Said sale was made by a person not authorized by the commission or law to sell said property.

Fighth — The terms and conditions of said sale were not in accordance with law.

Ninth — There was no necessity for the sale of said property.

In a supplemental petition the following additional grounds are sot out:

Tenth — That the pretended sale was made on a day different from that on which it had been advertised to be made.

Ficventh — That, the said land was not bid off by, or adjudicated to tiie said Josei>h D. Lee, a-; was falsely represented by tiie act of sale made to him by F. A. Woods, administrator, and.by which petitioners were deceived ; but Joseph 11. Elam, who was then and there acting as the attorney at law and agent in fact of the administrator, bid off said land and afterwards liad the title made by said Woods to said Joseph D. Lee; that said Joseph D. Lee paid several hundred dollars to the said Elam, as aforesaid, in order to have the title so made — the said Leo well knowing that said sale was illegal, had declined to bid for said land, although ho was present at the said pretended sale.

Twelfth — That said land was sold or pretended to be sold for greatly less than its value, and that by said sale petitioners have sustained damage to the amount of §25,000; that it was sold for less than its value, as it was sold on long terms of credit without interest on the price.

The defendants, after pleading the general issue, averred that they acquired title at the probate sale of their ancestor, Joseph D. Lee, who acquired at the succession sale of Ezer E. Woods, deceased, made by F. A. Woods, Ms administrator, on tiie twenty-eighth of February, 1851 ; that the sale was made in pursuance of a decree of the District Court of the parish of DeSoto, and a commission issued thereon, and that they are protected by said decree against all antecedent nullities and illegalities set up in tlie petition; that as to the, informalities and irregularities alleged to liave been committed by the administrator subsequent to the decree they are prohibited by the prescription of five years, which they specially plead; that if the sale was made on a day other than that mentioned in tlie order or commission, it was because it was necessary, as the sale could not be completed in one day, but was commenced on the day mentioned in the advertisement and continued from day to day until all the property could be sold; they deny that J. B. Elam was the agent of- the administrator and aver that if the land -was adjudicated to him and lie; permitted the title to be made to J. D. Lee, there was nothing illegal in it, and plaintiffs were not and could not be injured by it.

On those issues the parties went to trial, and judgment having been rendered sustaining'the defense, the plaintiffs appealed.

We find in the record two bills of exceptions taken by the plaintiffs. The first was to the rejection of evidence offered to establish the alleged informalities and irregularities anterior to the decree ordering the sale.

This ruling is fully sustained by that in the succession of John Gurney, 14 A. G22, where it was hold that whore the court has jurisdiction, its decree protects the purchaser, in the absence of any charge or proof of fraud, and the bill of exceptions does not disclose- any -purpose of establishing fraud by the evidence offered and rejected. See also 13 L. 431; 11 L. 15G.

The order of sale in this case was made by the clerk who was specially authorized thereto by the act of 1830, page 100, and it had the same effect as if made by the judge. See 12 A. 612 and constitution of 1845, article 79.

The second bill was taken to the admission, as evidence, of the indorsement upon the back of the commission to sell, to which the plaintiffs objected because there was no proof of its genuineness or of the correctness of its contents, but it is merely a statement made by a party not under oath; and because it cannot be true if the advertisement was made under the commission, as it states that’the commission ■ was received on the twenty-sixth February, which was the day for the sale according to the advertisement. The ruling of tlie judge was correct that these objections go to the effect rather than the admissi-• bility of the evidence, and that tlie writing was contemporaneous, at a time unsuspicious, and was tlie act of an officer of the court.

This return states that the sale was commenced, on .the, twenty-sixth day of February, the day named in the advertisement, .and the only evidence to the contrary is tlie testimony of Womack, who was employed by the administrator to cry the bids and who is too vague and uncertain in his recollection and statements on tlie tidal, in December, 1839, to overcome the written return of the administrator made at the time of the sale, in February, 1851 — a period of over eight years. The advertisements were made during the time required, an4 tlie statement in tlie return of tlie date on which, the commission was received, is fully explained.

There is no evidence to establish fraud in the parties as charged, or to implicate the administrator in an effort to control the adjudication through the instrumentality of an agent. J. B. Elam was the counsel hut not attorney in fact of tlie administrator, and we can see nothing illegal or impropcr.in his conduct on the occasion, and nothing that has caused or tended .to cause any injury to the plaintiffs. The adjudication to Elam, as made, divested the title of the succession (C. C. 2586 ; 13 L. 280: 10 L. 237; 8 II. 454), and .his consent is presumed to ¿ho substitution of another purchaser. It is not shown that the property was sold greatly below its value. The prescription of five years must protect the purchaser from all other irregularities and informalities alleged to have been committed by the administrator after the date of the order of sdlp. Sec act of 1834, re-enacted in 1855 (Revised Statutes, p. 22, § 4). .lie had in the order of the court legal authority to make the sale. The property was sold at the sale so ordered and advertised, and to a party legally capable of purchasing. All mere irregularities and informalities in the execution of the decree or order of sale are cured by the above statute. 14 A. 598;. 10 R. 396; 4 R. 26, 201.

A careful examination of the record satisfies us that the defendants are within the equitable rule of our jurisprudence, that '•'•bona fide purchasers, who have paid their money upon the faith of judicial proceedings, and have remained in possession for years, are not to be turned out on account of mere informalities at the instance of a party who shows no injury.” 3 A. 564 ; 6 A. 61, 581; 8 A. 503; 12 A. 271; Í4 A. 622.

It is therefore ordered that the judgment of the District Court be affirmed with .costs.