author: Buchanan, J.

text:
    Succession of Sarah Eubanks —E. A. Yarborough, Appellant.
    Testatrix commenced the dictation of her will to one of the subscribing witnesses, and in the presence of the others, from a paper which she had caused tobe written, and which she held in her hand; when being interrupted by a violent fit of coughing, and the testatrix being unable to proceed with the dictation, she handed the paper to the witness to whom she was dictating, requesting him to consider it as the expression of her testamentary disposition, and to finish the copying of it on the gallery of the house, adjoining to and communicating with the room where the testatrix was lying. While the witness was executing this request, by finishing the copy of the paper handed to him, the other witnesses were on the same gallery where he was writing, but not in communication with the writer. After the copy was made, it was examined by the testatrix, and presented by her to the witness, with the declaration made by her that it contained her last will. By the Court: Under the circumstances, we consider that this paper was written (in the words of the second paragraph of Article 1574) out of the presence of the witnesses, with the exception of that portion which (as provided by the first paragraph of the same article) was dictated by the testatrix in their presence.
    It is not proper to go into an inquiry, at the time of probating a will, whether the testator was of sound and disposing miad and memory at the time of making it.
    The testimony of witnesses, that the testator told them that the will was entirely written by him, is not sufficient proof of an olographic testament, to authorize its probate.

      The only proof admissible of olographic testaments, is the testimony of two witnesses, that they recognize the hand writing, as having often seen the testator write and sign, during his lifetime. C. C. 1648.
    Although under Article 1584 of the Civil Code, women cannot be subscribing witnesses to a will, yet an olographic will may be established upon their testimony, if in other respects they are credible and competent.
    APPEAL from the District Court of East Feliciana, Stirling, J.

      Bowman and Delee, and E. T. Merrick, for appellant. W. D. Winter, and Muse & Merrick, for appellees.
   Buchanan, J.

Mrs. Eubanks died in July, 1853, having made two wills, one in the nuncupative form under private signature, on the 4th of May, 1853, and the other, olographic, on the 28th of June, 1853.

In both, she constituted as universal legatee, her aunt by affinity, Mrs. Louisa Oreen, the appellee. In the nuncupative will, the testatrix made a legacy to her brother, Josiah, Yarborough, of a slave boy named Cornelius; which legacy she revoked by her olographic will. After her death, the universal legatee, assisted by her husband, presented the two wills to the District Court for probate. As the deceased had a brother living, and nephews and nieces, children of three other brothers who had died, the judge caused this brother, and the tutors of the nephews and nieces, to be notified of the day assigned for receiving proof of the wills. A gentleman of the bar, Mr. Merrick, was also notified, as attorney appointed to represent the absent heirs.

On the day named, after hearing witnesses, and in presence of all parties, the court rendered a judgment admitting the nuncupative will under private signature to probate and execution, but rejecting the olographic will for want of the proof required by law. From this judgment, Mrs. Emetine Yarborough, tutrix of the minor child of David, M. Yarborough, deceased, and Mr. Merrick, attorney of absent heirs, have appealed, and the universal legatee has joined in the appeal, so far as to pray for a reversal of the judgment in relation to the olographic will.

The appellants assign for error:

I. That it appears from the procos verbal of the testimony of the witnesses received by the court, that the pretended nuncupative will, by private act, was written by a witness in the presence of the testatrix, from a paper which he, said witness, had previously prepared, and said pretended will was not dictated by the testatrix, nor written from her dictation.

Nor was said pretended will written out of the presence of the witnesses, nor did the said testatrix declare to the witnesses, that said paper contained her last will and testament, as required by Article 1574 of the Civil Code.

Neither does it appear that said pretended nuncupative will has any of the formalities required by law.

II. It appears from said transcript, that at the time of receiving the testimony for the probating of said pretended will, the court refused appellant the right of showing by witnesses, that said Sarah A. Eubanks was not of a sound and disposing mind and memory, at the time of making said pretended will.

Upon the first ground of error, we find that there was a substantial compliance with the requirements of Article 1574 of the Code.

The evidence shows that the testatrix commenced the dictation of her will, to one of the subscribing witnesses, and in the presence of the others, from a paper which she had caused to be written, and which she held in her hand; when being interrupted by a violent fit of coughing, and unable to proceed with her dictation, she handed the paper to the witness, to whom she was dictating, requesting him to consider it as the expression of her testamentary dispositions, and to finish the copying of it on the gallery of the house, adjoining to and communicating with the room where the testatrix was lying. While the witness was executing this request by finishing the copy of the paper handed to him, the other witnesses are proved to have been on the same gallery where he was writing, but not in communication with the writer. Under the circumstances, we consider that this paper was written (in the words of the second paragraph of Article 1574,) out of the presence of the witnesses, with the exception of that portion which (as provided by the first paragraph of the same article) was dictated by the testatrix in their presence. After the copy was made, it was examined by the testatrix, and presented by her to the witnesses, with the declaration made by her, that it contained her last will. After which, the formalities required by Article 1575, were punctually fulfilled.

Upon the second error assigned, we think the court did not err in rejecting the evidence offered by the appellants at the time of probating the will, to show that the testatrix was not of sound and disposing mind and memory, at the time of making her will. The only business before the court was, the opening and proof of the formalities required for the probate and execution of the will. O. 0. 1041.

There was no appearance in court of any party contesting the will; no issue joined upon the capacity of the testatrix to make a will. To have admitted the evidence spoken of in the assignment of error, would have been a vain thing, because a judgment rendered upon such evidence, could not have been res judicata as to any body.

The District Judge properly referred the appellants to their action in nullity of the testament.

The appellee complains that there is error to her prejudice, in refusing probate to the olographic will. She contends that the testimony of witnesses, that Mrs. JMbanks had told them said will was entirely written by her, satisfies the law. We think otherwise. Article 1648 of the Code is express, that the only proof admissible of olographic testaments, is the testimony of two witnesses, that they recognize the handwriting, as having often seen the testator write and sign during his lifetime.

There is a bill of exceptions in the record, taken by appellee to the rejection of the evidence of Mrs. Goings, and other females who were offered to prove the handwriting of the olographic will. They were rejected upon the Article 1584 of the Code, which declares women to be incapable of being witnesses to testaments. We differ from the District Court in the application of that article to the present case. We understand that article to mean, that women cannot be subscribing witnesses to those testaments which, by law, require wit-nesses_that they cannot be counted in the number of subscribing witnesses requisite to give validity to a nuncupative or to a mystic will, and without which, by Article 1588, a will of either of those classes is a nullity.

But the olographic will requires no subscribing witnesses. The proof necessary to establish it, according to an article just cited (1648) is, “the declaration of two credible persons, who must attest that they recognize the testament as being entirely written, dated, and signed in the testator’s handwriting, as having often seen him write and sign during his lifetime.” The words used in this article, two credible witnesses, embrace all those who, by Articles 2260 and 2261, are competent and credible witnesses of any covenant oi*fact in civil matters. The construction which we give to the Article 1584, is favored and confirmed by the phraseology of the French text — “ Sont absolument incapa-bles d’étre témoins dans les testamens.”

- It is therefore adjudged and decreed, that the judgment of the District Court, so for as relates to the nuncupative will under private signature, of Sarah A. Eubanks, be affirmed; that as relates, to the olographic will of said Sarah A. Eubanks, the cause be remanded, with instructions to the court not to reject the evidence of Mrs. Goings, and other female witnesses, offered to prove the said will, as incompetent by reason of sex ; and that the appellants pay the costs of this appeal.


source: Caselaw Access Project

license: Public Domain

text:
    J. R. Bisland v. T. M. Griffin.
    Some of the heirs of M. brought suit against the others for a partition, and prayed that the court would allow certain charges and expenses which had been incurred in the administration; among other items, one of $2000 in favor of <3-. S. S. Judgment having been rendered for this sum, one of the heirs, T. M. G-., the present defendant, appealed. The Supreme Court reduced the judgment to $1000. Pending the appeal, the judgment was assigned to the present plaintiff, who sued T. M. G-. for $2000, to which he pleaded the judgment against him for $1000 as res judicata. The plaintiff responded that the judgment was rendered in a cause to which <3. S. S. was no party. Plea of res judicata sustained — and Held: The assignee of a litigious right, cannot claim to be a stranger to the suit pending. A defendant in whose favor such suit shall be decided, after the assignment, cannot be forced to litigate the matter over again with plaintiff’s assignee.
    APPEAL from the District Court of the Parish of Tensas, Perkins. J.
    In the suit for partition among the heirs, the plaintiffs pray — “ That in the judgment for a partition, the following expenses only be allowed, which have been necessarily incurred by the former curators and distributed equally among the said heirs according to their proper proportion of the estate : One thousand dollars to John Frost, as attorney fee; one thousand dollars to General Thomas, as paid; two thousand, to George S. Sawyer, by written contract, not paid.”

      George S. Sarnyer, for plaintiff and appellant. Stacy & Sparrow, for defendant.
   Buchanan, J.

This case comes up upon a plea of res judicata.

Plaintiff claims of defendant one thousand dollars, as a balance unpaid upon a certain conditional obligation in writing, for the payment of two thousand dollars, made by defendant in favor of George S. Sawyer, which obligation has been assigned to plaintiff.

Defendant pleads in bar of this action, a judgment of the Supreme Court, by which the obligation in question was reduced to one thousand dollars; and avers that said judgment was acquiesced in, and executed by the plaintiff’s assignor, Sawyer.

The District Court sustained the exception of res judicata, and plaintiff appeals.

His counsel urges that the judgment pleaded by defendant, was rendered in a cause to which George 8. Sawyer, was not a party.

The suit in which that judgment was rendered, was entitled, “ John Crow, Guardian, et. al. v. The Representatives of Elizabeth Griffin." George S. Saw yer was attorney of plaintiffs in that suit, and signed the petition as such. Thomas M. Gi'iffin was one of the defendants. The objects of the suit, as expressed in the petition, were multifarious; but one of them was, very clearly, to establish the obligation of the defendant above mentioned, as a valid claim against the defendant and the other heirs of Samuel Miller, for its full amount. The plaintiffs in the suit were themselves, or pretended to be, as well as defendants, heirs of Samuel Miller, and therefore this portion of their demand was clearly intended for the benefit of Mr. Sawyer. The answer of Thomas M. Griffin in that suit, specially denied the claim of George 8. Sawyer to be paid $2000, as demanded, and concluded by a prayer that the demand of Sawyer be rejected, or reduced to five hundred dollars. The judgment of the District Court embraced all the various issues contained in the pleadings, and among them that concerning the claim of Mr. Sawyer, which it allowed in full as a valid claim against the estate of Miller. From that portion of the judgment, the defendant, Thomas M. Griffin, appealed, and filed his bond of appeal in favor of George S. Sawyer, and of no other person or party. The appeal came on for hearing between those parties, Gi'iffin, appellant, and Sawyer, appellee, in the Supreme Court, which rendered the judgment pleaded by defendant herein — reversing the judgment of the District Court; and decreeing “ that there be judgment in favor of the intervenor and appellee, George Sawyer, for the sum of one thousand dollars, with the costs of the District Court; those of the appeal to be paid by him.

We are of opinion that this judgment constitutes res judicata as to Sawyer, and as to his assignee Bi&land.

The argument of plaintiffs’ counsel, that Mr. Sawyer had no connection with the suit of Crow, Guardian, et al. v. The Representatives of Elizabeth Griffin, is certainly incorrect as regards at least the proceedings upon the appeal already spoken of. The Supreme Court was strictly correct in treating him as the party appellee ; and its judgment was final upon his claim.

As to the present plaintiff, his petition alleges that Mr. Sawyer's claim was assigned to him on the 1st March, 1850. This was after the judgment of the District Court in the case of Crow v. Griffin’s Representatives, (March 20, 1849,) and pending the appeal from that judgment — that of the Supreme Court being dated January 6th, 1851. But Sawyer could not transfer more right than he himself had. Leftwich v. Brown, 4th Ann. 104.

It is a corollary from this principle, that the assignee of a litigious right, cannot claim to be a stranger to the suit pending. A defendant, in whose favor such suit shall be decided, after the assignment, cannot be forced to litigate the matter over again with plaintiffs’ assignee. If he could, there would be no end of litigation.

There are other facts in the record, which amount to a voluntary execution of the judgment of the Supreme Court by Mr. Sawyer and by his assignee, the plaintiff.

The final decision of the case of Crow, Guardian, et al. v. Representatives of Griffin, was followed by a partition of the estate of Samuel Miller among his heirs, made on the 16th December, 1851, by the Recorder of Tensas parish, under the order of the District Court. George S. Sawyer, assisted at this partition, as representing several of the heirs. The proaes verbal of partition shows the active mass of the succession to.be composed of eight notes, amounting in principal and interest to $29,900. The first of these notes is credited with “ two payments of $1000 each, made by James R. Bisland, one being for the fee of Isaac Thomas, and the other being for the fee of George S. Sawyer, in the suit of Cole v. Lucas."

And again: — “ Deducted and to be retained by the curator to pay charges

and expenses yet unsettled, as per judgment of the District Court, $4733 33

Less $1000, paid by J. B. Bisland to G. S. Sawyer, - - 1000 00

$3733 33.”

Now one of the items of charges thus referred to as making up this total of $4783 33, is stated as follows in the account of the curator; “ Due George S. Sawyer for professional services rendered accountant in the suit of Oole v. Lucas, as per judgment of the Supreme Court, one thousand dollars.”

This partition was made, as already observed, on the 16 th December, 1851. Yet eight months afterwards, the litigation thus apparently closed by a solemn authentic act, is revived by the institution of the present action.

Judgment affirmed, with costs.


text:
    L. Pipes v. F. Hardesty et al.
    The presumption is against the validity of a deed which presents on its face a material interlineation; but this is not a presumption juris et de jure. It yields to contrary proof; and even to concurrent circumstances, which create a strong presumption that the interlineation was made before the execution and delivery of the deed.
    APPEAL from the District Court of the Parish of East Feliciana, Sterling, J.

      Muse & Merriek, for plaintiff. Winter & Marr, for defendants and appellants.
   Buchanan, J.

This case comes up upon a bill of exceptions to the admis- • sion of a deed in evidence, without a material interlineation on the face of the deed being accounted for.

In the bill of exceptions, it is stated, “ the court, however, being of a different opinion, permitted the document to go in evidence.”

From this, together with the certificate of the clerk, of the deed being offered in connection with certain depositions, we may infer that the court considered that the testimony offered with the deed, accounted for the interlineation; and we cannot say that the court erred. The deed in question bears date the 21st March, 1831. Appended to it, is the certificate of a Justice of the Peace of Adams County, Mississippi, (where the deed was made); that it was acknowledged before him on the 21st March, 1831, being the day of its date. Also the certificate of the keeper of the records (county clerk) of Adams county ; that the deed, as it now appears, was deposited with him for record on the same day, 21st March, 1831. The Justice of the Peace before whom the deed was acknowledged, James Ga/rson, has also been examined as a witness in this cause, and having examined the original document, declares that the same was executed in his presence on the 21st March, 1831. This witness was cross-examined by the defendant, but his attention was not called by the cross-interrogatories to the interlineation of the words “ and separate” in the deed; which is probably the reason that he-says nothing about that interlineation, although the original deed was before him, while giving his evidence. We understand this witness to testify to the execution of the deed as it now appears — with the interlineation. This conclusion is certainly rather a matter of inference; but an inference which is strongly favored by the internal evidence ol the document itself, which comes up with the record. The interlineation is manifestly in the same handwriting as the rest of the deed, and written with the same ink.

In the case of Morris' lessee v. Vandurn, 1 Dallas 67, it was held that the presumption is, that an interlineation in a deed was made after its execution, unless otherwise proved. And in Prevost v. Gratz, 1 Peters’ C. C. Reports, 869, Judge Washington said: “ I find upon the face of the account, a material alteration and interlineation, unexplained by any evidence whatever, tending to show at what time they were made. These, of themselves, -would be sufficient upon the plea of non est factum to a deed, to avoit it. The presumption in such case is, that the alteration was made after the execution of the deed.” See also Croghan v. Gratz, 5 Wheaton, 502. Heffelfinger v. Schultz, 16 Sergeant & Rawle, 46.

The rule of the civil law seems to be, that writings erased or interlined, are presumed to be false. See Eebriro, part 2, b. 3, c. 1, No. 341.

And this rule is declared by Judge Matthews in McMicken v. Beauchamp, 2 L. R. 292, in quoting the authority referred to by Eebriro, to be in conformity with the law merchant, and with the jurisprudence of the other States. The rule is stated by the learned judge to be subject to exceptions and limitations ; and in Flescher's Heirs v. Cavalier, 4th La. Rep. it is said by Judge Martin, that when the alteration or interlineation is in an important part of the instrument, evidence to support it should be given.

Erom these authorities it results, that the presumption is against the validity of a deed which presents on its face a material interlineation ; but that this is not a presumption juris et de jure. It yields to contrary proof; and even to concurrent circumstances, which create a strong presumption that the interli-neation was made before the execution and delivery of the deed. Now, it cannot be denied, that the interlineation in the case at bar, was a material one; but the deed was not presented without accompanying proof tending to do away with the presumption, that it had been altered after its execution; and we think that under the circumstances, the paper was properly allowed to go to the jury, and the fact of the time when the interlineation was made, submitted to their decision. That fact has been found for the plaintiff by the verdict : which seems to be warranted by the evidence before the jury.

On the subject of interest as between the defendant and warrantor, we do not think the defendant has any cause to complain of the judgment appealed from.

Judgment affirmed, with costs.


author: Voorhies, J. Campbell, J.

text:
    E. E. Kittridge and E. P. White v. E. Hebert et al.
    A confirmation by an Act of Congress amounts only to a relinquishment of all claim on the part of the United States, leaving the title as it would have been under the former government.
    Until a patent issues, the title of the United States is not divested, but is still under the control of the land department, which may cancel a sale or set aside an illegal entry, and its action cannot be revised by a State court.
    Defendants objected to the introduction of copies of certain notarial acts of sale, on the ground of the inadmissibility of the recitals therein contained, and for want of registry of said actsinthe proper recording office, accompanied with the signature of the recording officer. Held: The objection only went to the effect, and not to the admissibility of the evidence.
    Defendant objected to the validity of the plaintiffs’ derivative titles, on the ground that the transfers som sevng privé had not been duly acknowledged, by either parties or subscribing witnesses, previous to their registry, and could not therefore affect the rights of third persons. Held: The provisions of Articles 2250 and 2¿17 are parcels of our system of registry law, and are not applicable to this contest upon independent adverse titles. In such contests, the question is whether the act offered in evidence, is binding between the parties to it. Those articles are for the protection of creditors of the vendor, l?ona fide purchasers from him, and other persons claiming under or through him; they constitute no objection to such acts availing as links in the chain of conveyance in a contest between claimants of public land — one under a confirmed grant, the other under an entry.
    In order to acquire prescription by the possession of ten years, founded on a just title, it is necessary, among other requisites, that the natural possession, which must be acquired bythe actual and corporeal detention of the property, should have preceded that of the civil possession. "Where a person has once acquired the natural possession, the mere intention of possessing, suffices to preserve the civil possession in him, and this intention is always presumed.
    APPEAL from the District Court of the Parish of Assumption, Randall, J.

      JH. llsley, for plaintiffs and appellants. Jean Jacques Roman, for defendant.
   Voorhies, J.

This is a petitory action, in which the plaintiffs claim the joint ownership of several tracts of land, by virtue of sundry mesne conveyances from the original grantee, Bernado de Bern. They allege that the defendants llave disturbed their possession and committed acts of waste upon said land, by cutting down and destroying timber, for which they claim $1600 as damages.

The defendants, in their answer, aver, that they hold the land in dispute under Qregorie Landry, who purchased the same from the United States, under an Act of Congress, approved the 21st of May, 1820, granting- to owners of lands fronting on water courses, the right of preemption to the double concession. They also plead the prescription of ten, twenty, and thirty years, as a bar to plaintiffs’ right of action.

The record shows, that on the 14th of March, 1798, the Baron de Owonde-let, then Governor of the Province of Louisiana, granted to Bernado de Beva, a certain tract of land, described to be situated behind a depth of forty arpents of the lands granted by the King of Spain to Carlos Gautreau, Lucie Breaux, and others, fronting on the lands of Hyacinto Bernado, and lying on a bayou distant about six leagues from the Mississippi, on the right side thereof, being in the whole a league square. It appears that the tracts thus designated as calls of the Be Bern grant, were surveyed and located under the Spanish Government, and for aught that appears to the contrary, their location has never been disturbed or questioned.

The Bernado de Beva claim was embraced in the report of Samuel H. Hwr-per, Register of the Land Office for the Eastern District of Louisiana, arid designated as No. 24, and was duly confirmed by an Act of Congress, approved the 28th of February, 1823. Under instructions from the Commissioner of the General Land Office, dated 18th of March, 1829, in relation to some of the claims reported by Harper, as having been founded on fraudulent papers, the Surveyor General of Louisiana was authorized to reserve the same as public lands, representing them on his plats by dotted lines. The De Dem claim, thus represented, was surveyed and located according to its calls, as appears from adiogram taken from the map of township 14 S., ranges 14 and 15 E., South Eastern District of Louisiana, approved 9th of April, 1830. This township was resurveyed under the instructions of the Commissioner, and the location of the De Dem claim was fully recognized and confirmed. Previous to this, on the 4th of December, 1845, the Commissioner addressed a letter to the Surveyor General, in which he says : “Application has been made to this office for a patent for the back concession of H. & F. Girod, being section 24, township 14, range 14 E., South Eastern District of Louisiana. On examining the plat of this township, it appears that the back concession interferes with a private claim, which your predecessor, on a diagram of part of this township, dated 28th May, 1844, states to be that of Bernado de Dem, No. 24 of Harper’s Reports. If the location of the De Dem claim is true, and in accordance with the original filing of that claim, the back concession cannot interfere with it, and in that event, you will please forward a diagram, showing the area of that back concession, exclusive of that claim.”

In a subsequent letter, dated 20th of July, 1846, he adds: “ As it is necessary or final action on the Girod case, that the extent of its interference with the De Dem claim should be known, you will please take the necessary measures to ascertain the precise location of this last mentioned claim, if possible, and report your action and the result to this office.” It appears this was done.

On the 18th of June, 1850, the Commissioner then addressed a letter to the Register and Receiver of the Land Office at New Orleans, in which he says: “A plat has been received at this office, dated 19th of December, 1848, representing the land embraced by the claim of Bernado de Dem, (Harper’s Reports, No. 24,) and other private claims situated in township 14 South, of range 14 East, South Eastern District of Louisiana. As several entries have been made of lands situate in said township, which are found to interfere with the De Dem claim, it is deemed proper to call your attention to them, in order that you may notify the parties interested of the facts, and enable them, should they desire it, to have the purchase money refunded.” After enumerating those claims, he thus adverts to that of Greqorie Landry : “ No. 325 in favor of Greqorie Landry, for the lot or section 23, township 14, range 14 East, entered under Act of 4th May, 1820, the greater part of which is embraced by this claim. This entry remains suspended in consequence of the interference.”

The confirmation of the De Deva claim by an Act of Congress, may be considered, in our opinion, as equivalent to a patent. Under our jurisprudence, it is well settled, that such a confirmation amounts only to a relinquishmont of all claim on the part of the United States, leaving the title as it would have been under the former government.' 12 R. 1. 5 R. 467. 4 L. 445. 11 L. 582.

As to the survey and location of the claim, made by competent authority, and approved by the Surveyer General and Commissioner of the General Land Office, we think it must ho considered as conclusive. 1 R. 546.

And here it may not be improper to add, that it does not appear that township 14 South, range 14 East, had been surveyed, and the survey approved by the surveying department, previous to the confirmation of the Be Beva claim; indeed, the first survey is shown to have been made as late as the year 1830. As to the entry of Gregorie Landry, so far as it interferes with the Be Beva claim, we think it is clear it must be considered as vacated. It is well settled, that until a patent issue, the title of the United States is not divested, and the whole matter is under the control of the land department; it may cancel a sale, or set aside an illegal entry, and its action cannot be revised by a State court. 4 A. 364. 9 R. 283. 2 A. 302.

On the trial of the cause below, the defendants objected to the introduction of copies of notarial acts of sale from Nicholas Ballot to Aimí Guillet, and from the latter to A. M. Foley, on the ground of the inadmissibility of the recitals therein contained, and for want of registry of said acts in the proper recording office, accompanied with the signature of the recording officer. We think the district judge did not err in ruling that the objection only went to the effects, and not to the admissibility of the evidence.

But it is urged by the defendants, that the plaintiffs’ derivative titles are defective. The chief objection to their validity seems to rest on the ground, that the transfers sous seing privé had not been duly acknowledged,' either by the parties or subscribing witness, previous to their registry, and could not consequently affect the rights of third persons. The same objection is made to the effect of the transfers, by authentic acts not recorded. The provisions of Articles 2250 and 2417, are parcels of our registry law', and are not applicable to this contest upon independent adverse titles. In such contests, the question is, whether the act offered in evidence is binding between the parties to it. Those articles are for the protection of creditors of the vendor, bona fide purchasers from him, and other persons claiming under or through him ; they constitute no objection to such acts availing as links in the chain of conveyance in a contest like the present.

The defendants also rely on the plea of prescription. We are of opinion that this plea cannot avail them. It docs not appear from the evidence that either they or their vendor, Gregorie Landry ever had the corporeal and actual detention of the property in dispute ; in other words, the natural possession ; the only possession shown, is that of the front tract, held under a different title, which surely cannot be considered as extending to attract purchased from the United States, and held subject to the reservation in favor of the Be Beva claim. It has been held, that digging a canal and felling trees, or the occasional cutting of wood on uncultivated land, does not constitute such a possession as can be the basis of the prescription of ten and twenty, or even thirty years. 12 M. 17. .5 An. 594. In order to acquire prescription by the possession of ten years, founded on a just title, it is necessary, among other requisites, that the natural possession, which must be acquired by the actual and corporeal detention of the property, should have preceded that of the civil possession. When a person has once acquired the natural possession, the mere intention of possessing, suffices to preserve the civil possession in him; and this intention is always presumed. 0. 0. 3453, 3405, 3406, 3407. 19 L. 251.

We are therefore of opinion, that the plaintiffs are entitled to recover the whole quantity of land claimed by them as constituting part of the Be Beva claim, according to the bounds and metes of their respective tracts, and the location of said Be Beva claim.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court he reversed; that the plaintiffs do recover, as absolute owners, the land described in their petition, and represented by the plat of survey made by Nathan Webster, Esq., surveyor, under the order of the court, showing the confliction of the adverse claims; that the injunction be reinstated and made perpetual against the defendant, and that the plaintiffs be forever quieted in their possession to the land in dispute; and that the defendants pay the costs of both courts.

Campbell, J.

I concur in the conclusion to which the court has arrived, but desire to place my concurrence on the following reasons, in addition to those given in the opinion just pronounced.

The claim of plaintiff, though filed December 19, 1820, and favorably reported on January 6, 1821, was not confirmed by Congress until 28th February, 1828, after the purchase of defendant, under the 7th section of the Act of 11th May, 1820, which purchase was made May 7, 1822. The date of this entry being anterior to the Act of February 28, 1823, confirming plaintiffs’ claim, defendants claim to have the oldest and therefore the best title act of government. If, at the time of the entry, the officers of the government were authorized to sell the land in question, such probably would be the result.

I am, however, of opinion that the confirmation of plaintiffs’ claim, with its descriptive calls, was equivalent to a location, and that it took effect, not from the date of the act of confirmation, but had relation back to the time of filing the claim with the Commissioners, to wit, December 19, 1820.

By the 2d section of that Act, the right was given to claimants to sell their claims at any time before December 31, 1820. Before the expiration of this time, plaintiff made his application, and thereby acquired the right to a confirmation, which could not, I think, be defeated by a subsequent sale of the government.

The description of the land granted, by reference to contiguous grants, which had been previously made and confirmed, and the' surveys of which were on file, was sufficiently explicit to indicate its proper location and enable the proper officers to represent it on the maps of their office, in order that it might be reserved from sale, as they were required by law to do. Their not having done so, cannot prejudice the claim of plaintiff, who, by giving timely notice of his claim, did all that the law required of him.

The location of the JDe Berna claim as made, seems correct, and in accordance with the claim as originally filed, and must therefore prevail over the back concession entry of defendant, in so far as there is a confliction.


author: Voobhies, J.

text:
    The State v. J. W. Pratt.
    Motion to dismiss an appeal on the ground that there was no judgment or sentence. Held : The appellate jurisdiction in criminal matters, under Article 62 of the Constitution, only extends to cases where the punishment has already been pronounced by sentence or judgment of a court; otherwise there is no foundation for an appeal.
    APPEAL from the District Court of the Parish of East Baton Rouge, Robertson, J.

      1. E. Morse, (Attorney General,) for the State. J. M. &J. E. Elam, for the accused and appellant.
   Voobhies, J.

The defendant was indicted for shooting, with the intent to commit the crime of murder, for which he was arraigned and pleaded not guilty.

The District Judged among other things, charged the jury, that if they believed the defendant had, with a dangerous weapon, or with intent to kill, inflicted a wound less than mayhem, they were bound to find a verdict accordingly.

The jury returned the following verdict: “We, the jury, find the accused guilty of an assault on the person of Barnett Willimns, with a dangerous weapon, and inflicting a wound less than mayhem, and we further recommend him to the mercy of the court.”

The defendant then moved the court to he discharged, and his bond canceled, on several grounds, among others, that as he was indicted for shooting with the intent to commit the crime of murder, and the verdict only found the offence of an assault with a dangerous weapon and inflicting a wound less than mayhem, it resulted as a consequence that he was legally acquitted and entitled to be discharged ; that the special verdict thus found was not responsive to any count in the indictment on which he was arraigned and tried; that the defect in the statement or verdict of the jury, not finding any complete offence punishable by statute, could not be supplied by intendment or implication. This motion being overruled for reasons assigned by the District Judge, he took a bill of exceptions, and thereupon appealed before judgment, or sentence was pronounced upon the verdict.

The Attorney General has moved this court for the dismissal of the appeal, on the ground that there is no judgment or sentence, from which alone the right of appeal lies under the Constitution.

Under the former Constitution, the same provision existed in relation to the right of appeal in criminal cases, as that which exists in the present Constitution. We do not think that the present cáse can be distinguished in principle from that of the State v. Thomas May, lately decided by us, in which we held, that our appellate jurisdiction in criminal matters, under Art. 62 of our Constitution, only extended to cases where the punishment had already been pronounced by sentence or judgment of a court: otherwise, there was no foundation for an appeal. 8 R. 690.

It is therefore ordered, that the appeal be dismissed, with costs.


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    J. Burton v. Sheriff of St. Helena and City Bank of New Orleans.
    The proper parties not being before the court, and the bond given not being in conformity to the order of the court — appeal dismissed.
    APPEAL from the District Court of the Parish of St. Helena, Bmjlies, J.

      E. T. Merrielc, for plaintiff. T. G. Davidson, for intervenor and appellant.
   Voobhies, J.

The City Bank of New .Orleans having obtained a judgment against the plaintiff, as endorser on a promissory note given by William Shar-bort, issued an execution on it.

The execution was enjoined by the plaintiff, on the ground that the judgment was extinguished, either by payment or novation, under a contract between the makers of the note and Thomas Green Da/oidson.

The latter, at whose instance the execution issued, intervened in the suit, alleging that the consideration of his assumpsit under that contract had failed, and prayed for the dissolution of the injunction.

The injunction having been made perpetual, Ivy F. Thompson, Esq., as attorney for the defendant, moved for and obtained an order for a suspensive appeal, on condition of giving bond and security in the sum of three hundred dollars.

The appellee has moved this court to dismiss the appeal on several grounds, one of which is, “ because the motion for an order of appeal was made on behalf of the defendants, viz., the City Bank and others, and not by the said T. ff. Davidson, who now brings up this record, and the proper parties are not before the court.”

The case comes up on the intervenor’s appeal bond for the sum of one hundred dollars, and it does not appear that any other order of appeal was ever granted.

We are of opinion that the objection is well taken. C. P. 574 Statute of 1843, p. 40.

It is therefore ordered that the appeal be dismissed.


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    J. F. Gamble v. T. R. McClintock.
    !£he rule “oontra non'oal&ntem agerij* cannot avail the plaintiff, when prescription has been acquired before the debtor absconds.
    A promise to pay a debt upon a condition, which has been fulfilled, amounts to a renunciation of prescription.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Elmore S King, for plaintiff. Hamner & Hays, for defendant and appellant.
   Buchanan, J.

This is a suit to recover balances due on two promissory notes given in South Carolina and payable, one for $3098 55, on the 1st of January, 1839, and one for $1000, on the 1st of January, 1840.

These notes had been reduced, at the time of the institution of the suit, by payments made on account at sundry times, to the sum (including interest calculated according to the law of South Carolina, at seven per cent, from maturity,) of $1270, for which sum plaintiff asks judgment, with interest against defendants.

The defendant pleads the prescription of five years; against which, the plaintiff urges that he has been prevented from suing by the act of the defendant in absconding from the place where the contract was made, and where both parties resided; and further, that the prescription has been renounced, by an acknowledgment of the debt.

We consider it proved, that the defendant moved clandestinely from South Carolina, to avoid the payment of his debts, in February or March, 1847. That is the date given to defendant’s last appearance in Winnsboro’, by the witness, MeDomell, whose evidence is much more circumstantial than that of any of the other witnesses examined on this point. Those witnesses vary between 1845, 1846 and 1847, none of them speaking with certainty.

It is evident that the prescription of five years had been acquired on both notes, before the departure or absconding of the defendant from South Carolina ; and, therefore, the rule laid down in the case of McMaster v. Mather, 4th Ann. 418, applies, and the doctrine contra non valentem ageri, cannot avail the plaintiff.

Upon the point of renunciation of prescription, we have, first, the evidence of A. W. Tonque, as to a conditional promise to pay the note of $1000, made by defendant when he wras in South Carolina last, “ which,” says the witness, “I think was some time previous to March, 1848.” As wo have seen above, defendants last appearance in South Carolina, being proved by plaintiff’s witnesses to have been in February or March, 1847, the testimony of Tongue, as to defendant’s acknowledgment must be referred to a period antecedent to that date, consequently more than five years before the institution of this suit.

Another witness of plaintiff, his brother, J. W. Gamble, proves that defendant made a conditional promise to pay both these notes, on the 22d February, 1850. The evidence of this witness is, as follows : “ Those notes were brought up in a settlement in which McGlintoak acknowleged and said he had left notes with John T. Hammond to pay those notes alluded to, and if he has not collected those notes, you shall never lose any thing by me.” The John T. Hammond mentioned in this deposition, who was the payee of one of the notes, has been examined under commission in this case, and his evidence corroborates to a certain extent that of Gamble. He proves that defendant did leave with him certain notes to be collected, and the proceeds to be applied to the payment of the notes now sued upon. He also proves that he attempted in vain to collect those notes, the makers of the same being insolvent.

We think this is sufficient proof of renunciation of prescription. The declarations of defendant, as proved by the witness Gamble, amount to a promise to pay upon a condition, which has been fulfilled — namely, the failure to make the money out of the notes left with Mr. Hammond. The declarations of defendant appear to amount, in the words of Article 8424 of the Code, to the relinquishment of a right acquired by prescription.

Judgment affirmed.


text:
    Same Case—On a Re-hearing.
    'íhe appellee Will not be mulcted m costs on account of small errors in calculation in the judgment appealed from, which could have been corrected, if brought to the notice of the court below.
   Buchanan, J.

A re-hearing has been granted for the purpose of rectifying an erroneous allowance of interest in the judgment of the court below. The appellant has demonstrated, by a laborious calculation of interest to the different dates of payments on account of the two notes sued upon, that the balance for which suit was brought, and for which judgment was rendered, ($1270,) is composed in part ($551) of arrears of interest. Interest was allowed from judicial demand by the judgment of the District Court, and of this court, on the whole amount claimed, from judicial- demand. This was erroneous, so far as it included interest upon interest. C. C. 1984. But the error was not pointed out to the court below, by an application for a new trial, or for an amendment of the judgment. C. P. 547. According to the settled practice of this court, the appellee will not be mulcted in costs, on account of small errors in calculation in the judgment appealed from, not brought to the notice of the court below, which would have unquestionably rectified them. Grailhie v. Haun, 1 Ann. 140. Kohn v. The Renaissance, 5 Ann. 25.

In the present case, the difference in amount, by overcharge of interest from judicial demand to the date of the judgment appealed from, is about twenty seven dollars — and from that judgment to the present time, about thirty-eight dollars more.

It is therefore adjudged and decreed, that our previous judgment herein rendered, remain undisturbed; hut that the defendant and appellant be cred-ed in execution, upon the interest allowed by the judgment, with the sum of sixty-five dollars.


author: Campbell, J.

text:
    James Nesom, Tutor, v. T. B. D’Armand.
    After argument of an exception, but before judgment thereon, plaintiff claimed the right of making proper parties by amendment, in case the exception should be sustained. Held: Plaintiff had not the legal right to qualify the submission of the exception to the decision of the court.
    APPEAL from the District Court of the Parish of East Feliciana, Sterling, J.

      Winter, for plaintiff and appellant. Muse S Merrick, for defendant.
   Campbell, J.

This suit was instituted by plaintiff, as tutor oí Pleasant Kirby, a minor. He also assumed to represent in the suit, the co-heirs of his pupil, by making them parties plaintiff, and claiming judgment in their behalf. The petition is “ for his own use in said capacity, and also for the use of Margaret Kirby, wife of Thomas G. Bast, and of the said Thomas G. Bast, in his capacity as administrator of the estate of Reuben Kirby, deceased.” Margaret and Reuben being co-heirs with Pleasant.

The petition was excepted to on the ground, among others, that Nesom had no authority to represent Margaret Kirby, wife of Thomas Bast.

This exception was properly sustained, and the suit dismissed. The plaintiff now complains, that after the argument of the exception, but before judgment thereon, he claimed the right of making proper parties by amendment, in case the exception should be sustained; and to the refusal of the court to reserve in his judgment the right to amend, this appeal has been taken.

As the plaintiff persisted in demanding a decision of the exceptions, we cannot say the court erred in disregarding the reservation with which he chose to accompany it. He had not the legal right to qualify the submission of the exception to the decision of the court; and although we might not have reversed the ruling of the District Judge, had he thought proper to allow such a reservation, we, on the other hand, cannot say that in his refusal to do so, under the circumstances stated, there was error, authorizing a reversal by this court, at the costs of the appellee, who rightfully resisted an action improperly brought.

Judgment affirmed.


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    S. G. Lacock v. T. G. Davidson.
    Defendant owned a cotton plantation in the parish of Livingston, where he resided. In 1852, he re moved to Baton Rouge with his family *, purchased a dwelling, and continued to reside in that parish until the institution of the suit. He also opened a law office and practised his profession in Baton Kouge. jffdd: That an action could be brought against him in Baton Rouge, O. P. 106.
    APPEAL from the District Court of East Baton Rouge, Robertson, J.

      J. W. Seymour, for plaintiff and appellant. Q. S. Lacy, for defendant.
   Campbell, J.

The defendant being sued m the District Court of East Baton Rouge, declines the jurisdiction of the court, on the ground, that his legal domicil is in the parish of Livingston.

Prom the evidence adduced, it appears that, defendant still owns in the parish of Livingston, a large plantation and slaves, with a fine dwelling house on it, in which he, with his family, resided for many years anterior to his removal to Baton Rouge; that since his removal, he has voted in Livingston; that on the 4th of April, 1833, (since the institution of this suit,) he acted as Commissioner of Elections in, and is now a representative of that parish in the General Assembly of the State; that he has made no declaration of intention to change his domicil; and that he has made frequent visits to his plantation in Livingston. It likewise appears from the testimony of one witness, that his avowed object in removing to Baton Rouge, was the education of his children — two of whom are at school there — there being no suitable school near his residence in Livingston.

It further appears, that on the 20th March, 1852, defendant purchased a dwelling house and lot in Baton Rouge, and removed there with his family, where they continued to reside up to the time of the institution of this suit; that he at the same time opened a law office, and has constantly since that time, pursued his profession as a practising lawyer at Baton Rouge.

The Article 162 of the Code of Practice prescribes as a “general rule in civil matters, that one must be sued before his own Judge, that is to say, before the Judge having jurisdiction over the place where he has his domicil or residence.” One of the exceptions to this rule is contained in Art. 166, which is as follows: “ If a defendant resides alternately in different parishes, he must be cited in that in which he appears to have his principal establishment or his habitual residence. If his residence in each appears to be nearly of the same nature, in such a case he may be cited in either, at the choice of the plaintiff, unless he has declared, pursuant to the provision of law, in which of those parishes he intended to have his domiciland if he had made no such declaration, he may be cited in the parish where he lives, (O. P. 667,) though he has not resided one whole year in it, if he has done in that parish acts which manifest sufficiently that he intended to make it the place of his domicil.”

We are of opinion, under the facts disclosed, that the defendant was properly cited in the parish of East Baton Rouge. He may not have lost his political domicil in the parish of Livingston ; but, in our opinion, has acquired such a residence in East Baton Rouge, as subjects him to the jurisdiction of that court in a civil action. Judson v. Lathrop, 1 Ann. 78.

The chief object of the law in requiring that civil suits should be brought at the domicil of the defendant, is to protect him against the annoyance and inconvenience of repairing to a distant parish, to conduct his defence. Baton Rouge, having been nearly a year, and still being the actual home of defen" dant and his family, and the place in which he exercises his vocation as a lawyer, certainly does not bring him within the reason of the rule. It would seem that, being cited before the tribunal in which his professional engagements required his presence, may be regarded as a favor rather than a grievance.

This case differs from that of McGhee v. Brown, 4 A. 186, relied on by the defence. In that case, the sole object of defendant, in removing to Baton Rouge, as far as it appeared, was the education of his children. He occupied, with his family, a rented house and, pursuing no luñness there, continued to give his personal attention to his sugar estate in Iberville. His residence, under such circumstances, might well be regarded as temporary in its nature. In this case, however, it appears that defendant, upon his removal, established his family in a dwelling purchased for the purpose, and though he sometimes visits his plantation in Livingston, he has taken an office and pursues, in Baton Rouge, the professional vocation of an attorney at law. Although those facts are not absolutely inconsistent with the intention to return on the part, there is nothing in them from which such intention can be inferred.

It is, for these reasons, ordered, adjudged and decreed, that the judgment of the District Court, sustaining defendant’s plea to the jurisdiction, be annulled and reversed; and that the case be remanded for further proceedings.


author: Ogden, J.

text:
    W. M. Bean v. Evans & Stephenson.
    'Where one party to a suit introduces the conversation of the other party in evidence it is not competent for him to divide the conversation, using one part of it as evidence, and rejecting the other.
    EAL from the District Court of the Parish of Carroll, PerMns J.

      Goodrich, for plaintiff. DuBose, for defendant and appellant.
   Ogden, J.

The plaintiff sues the defendants for wages as their overseer during the years 1851 and ’52. The suit was filed on the 2d December, 1852, and was premature as regards the claim for the last year’s wages. We think the court below erred in not sustaining the exceptions of the defendants and dismissing that part of the action.

Our enquiry must therefore be confined to the correctness of the verdict and judgment against the defendants for the wages of 1851. The plaintiff claimed in his petition $650, for his wages during that year, without allowing any credit. The defendants set up in their answer a special contract for $350, and the evidence shows that a settlement was made between the parties, in which the plaintiff acknowledged that such was the agreement, with the qualification however, that for all the cotton made on the place over 200 bales he was to receive $2 per bale, the defendants at the same time resisted that pretension and asserted that by the agreement it was only $1 per bale over 200 that the plaintiff was to receive, it is shown by the testimony of a witness who was present, that with the exception of that difference which was not adjusted, the plaintiff acknowledged himself satisfied with the settlement, and it was proved that the $350 for the year 1851 was paid. The defendants on the trial excepted to the opinion of the court, sustaining tho objections made by the plaintiff to the declaration made by defendants at that settlement, that it was$l per bale instead of $2, which by the agreement plaintiff was to receive. As the conversation was offered in evidence by defendants for the purpose of establishing the existence of a contract by the plaintiff’s acknowledgement, we think that ac-knowledgement could not be divided, and that it was not competent for the defendants to make use of one part of it as evidence and destroy the other part by their own version of the agreement. The circumstance that on cross-examination of the witness by plaintiff’s counsel, the witness was called on to state what he had already stated when examined in chief as to the plaintiffs declarations, did not furnish any good reason to permit the defendants to make their own declarations evidence in the cause. We think the court did not err in rejecting the evidence.

Another exception was taken by the defendants, to the refusal of the Judge to charge the jury, that if they were satisfied that these were valid contracts between the parties, they must find for the defendants, as the plaintiff had sued on a quantum meruit.

We cannot say the Judge erred in refusing to give that charge, because it does not clearly appear from the pleadings that the action was based on a quantum meruit, and the existence of a contract between the parties, as the subject matter was not pleaded as an exception tending to the dismissal of the action.

The claim in reconvention set up by the defendants for damages sustained by reason of the plaintiff’s mismanagement of the plantation for the year 1852, cannot be considered in the present suit, as it grows out of that part of the plaintiff’s claims which we think ought to have been dismissed on the exception.

If the plaintiff had alleged in his petition that the defendants had discharged him without justifiable cause before the year expired, the action would not have been premature, and-we should have had to decide whether the conduct of the plaintiff justified the defendants in discharging him, and whether their claim in reconvention for damages was well founded, but those matters cannot be passed on at present without denying to the defendants their legal right to insist on that part of the action being dismissed under the exception.

The objections urged by the defendants against the sequestration which they moved to set aside are notin our opinion tenable.

It was proved that the crop of 1851, was between 250 and 210 bales, and the jury found a verdict in favor of plaintiff for $120 for the balance due to him for that year, and so far we think the verdict and judgment of the court below correct. It is therefore ordered, adjudged and decreed, that the judgment of the court below in favor of the plaintiff against the defendants for one hundred and twenty dollars, with five per cent interest from the 1st January, 1852, be affirmed, and that the judgment against the defendants for the sum of $360 and interest for the plaintiff’s claim for wages for the year 1852 be avoided andrever-sed, and the suit for that portion of the claim be dismissed as in case of nonsuit, the costs of this appeal to be paid by the plaintiff and appellee.


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    State of Louisiana v. The Widow and Heirs of Poydras.
    The law imposes a tax often per cent in favor of the State, not only on property falling to alien heirs who are non-residents; hut also on property failing to citizens of Louisiana, residing abroad. Successions falling to non-resident heirs, who are citizens of any other State or territory of the United States, than the State of Louisianna, are alone exempted from this tax.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      W. W. Zing, 3. 0. Miller and Attorney General Morse, for the State. Louis Janin, for defendant and appellant.
   Campbell, J.

This suit is based on so much of two Acts of the Assembly as imposes a tax of ten per cent on inheritances falling in whole or in part to persons residing out of this State, not being citizens of any other State or Territory of the United States, and as provides the mode of collecting such tax.

The 76th section of the Act entitled “An Act to provide for the assessment and collection of taxes in this State” approved 21st March, 1850, (Session Acts, p. 146,) is in the following words: “Every executor, curator, tutor, or administrator, having the charge or administration of succession property, belonging in whole or in part to a person residing out of this State and not being a citizen of ang other State or Territory of the United States, shall be bound to retain in his hands the amount of the tax imposed by law, and to pay over the same to the State Treasurer; in default whereof every such executor, tutor, or administrator and his securities, shall be liable for the amount thereof.” The rate of tax is not mentioned in this Act, but it is conceded by defendants’ counsel that for this, it refers to the Act of 1842.

The 4th section of that Act as published in the Sessions Acts, p. 434, on the English side, reads thus: “That each and every person, not leing domiciliated in this State, and not being a citizen of any State or Territory in the Union, who shall be entitled, whether as heir, legatee or donee, to the whole or any part of the succession of a person deceased, whether such person shall have died in this State or elsewhere, shall pay a tax of ten per cent on all sums, or on the value of all property which he may actually receive, or so much thereof as is situated in this State, etc.

The counsel of the defendants insisting that the Act of 1850 was not amen-datory of the Act of 1842, but that it is Only referred to to ascertain the amount of the tax imposed, contends thatthe Act of 1842 must be construed according to its own terms; and that, thus interpreted, heirs who are citizens of the United States and heirs who are domiciliated in this state are exempt from the tax : that the latter Act contemplates the payment of the tax by heirs not domiciliated in this State, whereas the former imposes it upon heirs who reside out of the State, conditions very different, as he alleges.

Plaintiff on the contrary contends that the Act of 1850, being- the last upon the subject, must control in case any discrepancy exists between it and the prior enactment. That the Act is not only applicable to aliens residing abroad; but likewise to citizens of our own State, who reside abroad. That the apparent discrepancy in so far as the liability of the property of citizens of our own State is concerned, may be reconciled by reference to the Ereneh text of the act, which is in these words “Que tout individu, non domicilié dans cet Etat ou qui n’est pas citoyen d’un autre Etat ou Territoire de l’Union,” etc.; whereas in the English text the word “ other" is omitted, so as to make the law read “Each and every person not domiciliated in this State and not being a citizen of any State,” etc. ’

Not having the means of reference to the State gazette, we are nnable to say in what terms this clause of the Act was promulgated. But the Act itself furnishes conclusive evidence to our minds that the word “other” has been inadvertently omitted in the English text as published in the Session Acts. In the same section of the the Act, in prescribing the duties of the executor or other representative of the estate, the words used are “ a person residing out of this State and not being a citizen of any other State or Territory,” etc. And again in the clause of the same section, which directs that the Judges of the Courts of Probate shall furnish annually to the Treasurer a list of the successions referred to, the following language is used : “whereas persons who are neither residents of this State or citizens of any other State or Territory in the Union are heirs,” etc.

If any doubt had existed in our minds as to the correctness of this interpretation or the intention of the Legislature, it would be removed by an exemplification of the law, procured from the office of the Secretary of State, from which it appears that the word “other” is contained in this clause of the enrolled Act, thus establishing a perfect coincidence between the French and English texts.

From this view of the statute we conclude that the tax attaches not only to property falling to alien heirs, who are non-residents, but also to the property falling to citizens of our own State residing abroad. The successions falling to non-resident heirs who are citizens of any other State or Territory of the United States, than the State of Louisiana are alone exempted from it, and this exemption was probably intended to satisfy the requirements of the 2d Sec. of the 4th Article of the Constitution of the United States.

With regard to that part of the defence which is based on the assumption of the difference between domiciliation and residence, it may be said that though in strict legal sense a clear distinction does exist, the Legislature in the Act of 1842, has used these terms as synonymous.

It is an established rule in the exposition of statutes, that the intention of the law giver is to be deduced from a view of the whole and of every part of a statute taken and compared together. The real intention when ascertained will always prevail over the literal sense of the terms. Scire leges non hoc est verba oorum tenere, sed vim ac potestatem. The words used in one part of the Act (and used but once) are “a person not being domiciliated in this State.” In other parts of the Act the words used in reference to the same matter are “ a person residing out of this State,” “persons who are neither residents of this State or citizens,” &c. These terms seem clearly convertible, and if to the rule of interpretation which we have applied to it, we invoke the other rules that the intention may be presumed from the object of the law and that acts in pari materia and relating to the same subject, are to be taken together and compared in the construction of them, our opinion of the correctness of the interpretation which wo have given is strengthened.

The object of the law it maybe fairly inferred was not only “to increase the revenues of the State,” as is expressed in its title, but to discourage absenteeism, as has been suggested by the counsel for the plaintiff, an evil from which no State of the Union has probably suffered more than ours. The statute relating to the same subject with which we compare it, is that of 1850. In this the word domicil or domiciliated is not used, not being residents of and residing out of the State, being the only terms applied to the class of heirs whose property is affected by this tax.

But conceding that the father of defendants had become a citizen of the United States and had acquired a domicil or residence in Louisiana, we are of opinion that the residence has been lost, by his residence in France, notwithstanding his repeated declarations of his intention to return and the various causes, which it is alleged, prevented it. It is in evidence, that being a native of France, he came to this country in the year 1805 or 6, being then 26 or 7 years of age, that in the year 1822 he returned to France and purchased an estate in the department of which he was a native and where his parents resided. How long he remained is not stated, but it appears that he was in Louisiana after the death of his uncle in 1824, engaged as one of his legatees and as agent of the others in arranging the affairs of his estate. In 1835, he returned to France and there married a lady whom he took to his estate near Nantz, where she has resided over since, neither she, nor either of her children having ever been in this country. Whether he ever after his marriage visited Louisiana more than once is left in some uncertainty. One witness deposes that between the years 35 and 42, he made three visits, while several other witnesses examined by the defence, depose to only one visit made in 1841, after which he returned to France and there remained until his death in 1852. These facts tested by the principles established by this court in the case of Franklin and her minor children vs. Franklin et al. trustees, decided in June, 1852, but not yet reported, would seem to prove the domicil of deceased to have been in France at the time of his death. But even though he had acquired no domicil in France, he had forfeited his residence in Louisiana by a voluntary absence from the State of two years. On this point the provisions of the law are clear and explicit; the 3d Sec. of the Act of March, 1816, (B. & 0. Digest,) expressly declaring that “residence once acquired, shall not be forfeited by absence on the busines of the State, or of the United States; but a voluntary absence from this State for two years, or the acquisition of residence in any other State of this Union, shall forfeit a residence within this State.” It is not pretended the ancestor of defendants was absent either on the business of this State or of the United States. If then, the father had lost his residence, his children born abroad of an alien mother and who resided constantly abroad, neither of them having ever visited this State, can not be held to be residents of this State or domiciliated therein.

But it is next urged by defendants’ counsel that the Act of March, 1842, being contrary to the Article 127, of the Constitution of 1845, is thereby abrogated. The Article referred to, is in the following words: “ Taxation shall be equal and uniform throughout the State. After the year 1848, all property on which taxes may be levied in this State, shall be taxed in proportion to its value, to be ascertained as directed by law. No one species of property, shall be taxed higher than another species of property of equal value on which taxes shall be levied.”

The rule proclaimed in this article, is but the reiteration of a great fundamental principle, which lies at the foundation of all well organized governments, that taxation must be uniform and equal, and while we are disposed to give to it its fullest force and effect we are unable to discover in what it is repugnant either to the Act of 1842 or the Act of 1850. To be uniform, taxation need not be universal. Certain objects may be made its subject and others may be exempted from its operation, certain occupations may be taxed and others not; so some occupations may be taxed for a greater amount and others for a less, but as between the subjects of taxation in the same class, there must be an equality. The object subjected to taxation in the present case is a succession within the State falling to alien heirs who are non-residents. By the terms of the Act, the tax is equal and uniform, the rate of the tax and the description of property subject to it, being the same throughout the State. See 2d Municiipality v. Duncan, 2 A. 188. Lafayette v. Cummins, 3 A. 614.

It may be proper to add in this connection that the law imposing this tax has been several times passed upon by this Court since the adoption of the Constitution of 1843, and never before, so far as we are informed, were doubts of its constitutionality ever expressed. See Succession of Pehan, 5 A. 304. State v. Martin, 2 A. 667. Succession of George, A. 223.

It is admitted that by the inventories, the succession is valued at $452,088 00. Judgment was rendered in the District Court, in favor of the plaintiff for forty five thousand two hundred and eighty dollars and eighty cents: and considering that there is no error in said judgment, it is decreed that it be affirmed with costs.


author: Slidell, C. J.

text:
    E. L. Lebeau v. J. D. Jewell.
    ithe wife can not during the life of her husband retake her dowry without a judgment. 0. C., 2317, 2327, 2401, 2404.
    An order of seizure and sale in favor of the wife against her husband, on account of her dowry, will not be sustained against a third possessor of the property whose title was acquired previous to the recording of the wife’s judgment.
    APPEAL from the District Court, of the Parish of Point Coupee, Parras', J.
    £. Mahoudeau, for plaintiff. Prorosty, for defendant and appellant.
   Slidell, C. J.

The question upon the merits in this cause is whether the plaintiff’s claim against her husband for restitution of dower was real or fictitious. A question of fraud is involved, and it was solved by the jury in favor of the plaintiff. Another jury, in a suit between the wife and a creditor of the husband upon substantially the same evidence, found a verdict in favor of the wife and it was affirmed by the Supreme Court. We have come to the same conclusion as our predecessors did, and are not able to say that the conclusion of the jury was manifestly erroneous. Seethecase of Lebeau v. Mance, February, 1849.

While however we concur in the judgment recognizing the wife’s mortgage upon the property in the possession of the defendant, we think the proceeding by order of seizure and sale was irregular, it was a proceeding upon her judgment to collect the balance due thereon, and the judgment was not recorded until after the defendant became a third possessor by purchase under the fieri facias of another creditor against the husband.

It is obvious that the mere existence of the marriage contract constituting the dowry and exhibiting thelmshands acknowledgement of its receipt, and its registry before the third possessor acquired title to the land, would not have authorized the order of seizure and sale. The husband was still living, as acknowledged in the petition. During his life the wife could not retake her dowry without a judgment, Civil Code 2817, 2827, 2899, 2401, 2404, &c., the judgment therefore was an essential requisite in the wife’s application for an order of seizure and sale, and being not recorded until after the third possessor acquired title, according both to the evidence and the admission in the petition for the order of seizure and sale, that order should not have been granted. Executory proceedings being an exparte and extraordinary remedy should be strictly construed.

Whether in any case a writ of seizure and sale can issue upon a judicial mortgage against a third possessor, is a question we need not now decide.

We do not think the appellant is entitled to have the proceeding entirely dismissed. It is true it commenced by an order of seizure and sale, and that after the injunction was obtained upon the ground, among others, that Mrs. Lebeau, was not entitled to executory process, she in her answer to the petition of injunction still persisted in her right to a writ of seizure and sale and asked damages under the statute. But on the other hand an issue was also made upon the merits; the question of fraud was fully investigated before a jury, and there was a verdict in favor of Mrs. Lebewu. It would be unreasonable under the circumstances, upon a mere question of form to render the litigation and verdict fruitless. The District Judge, therefore erred in authorizing the plaintiff to proceed in the execution of her writ of seizure and sale, but he would have been authorized under all the circumstances in decreeing that Mrs. Lebeau had •a judicial mortgage upon the land, to be enforced by fieri facias as in ordinary eases, but that she should pay costs theretofore accrued by reason of her per-■sistance in her claim of the right of executory process to collect the balance due on her judgment.

It is therefore decreed that the judgment of the District Court be revei’sed, and it is decreed that the said Mrs. Elizabeth Leeene Débeau, wife of Sonare Mane, has a judicial mortgage upon the property described in the petition for injunction in the possesion of the said Joseph Duncan Jewell, for the sum of three thousand four hundred and two dollars, and that the same be sold to satisfy said judgment and costs of executing this decree, the costs heretofore incurred in both courts to be paid by the said Mrs. E. L. Lebeau Mane.


author: Voorhies, J.

text:
    A. Ferriber v. M. Latting.
    Where in answer to a rule to show cause why depositions should not "be read in evidence, objections are urged and no disposition Is made of the rule, the party objecting has a right on the trial of the case to urge his objections to the introduction of the deposition in evidence.
    The caption of the deposition or answers to the interrogatories propounded to the witness showed that he was previously sworn; it appeared also where, when and by what authority the deposition was taken; Held: That this was a sufficientproces verbal showing the manner m which the commission had been executed and that the witness had >been sworn.
    By the i ct of 1850 clerks of the several District Courts were vested with authority to issue commissions to take the testimony of witnesses in and out of the.State.
    APPEAL from tbe District Court of the Parish of Carroll, Perleins, J.

      L. Selby & L. E. Simontls, for plaintiff and appellant. Drew & Bonner, for defendant.
   Voorhies, J.

The plaintiff is appellant from a judgment rendered against him by the District Court in favor of the defendant. He alleges that the defendant under false pretences received of Anthony H. Davis, of Arkansas, the following sums of money belonging to him, to-wit: in January 1849, $400, in March, 1849, $104 83, and in November 1849, $349 18, making an aggregate of $854 00. He prayed for and obtained an attachment on the ground that the defendant was about to remove permanently from the State.

The defendant in his answer owns, that the alleged indebtedness is for money supposed to have been received by him on a certain promissory note given by Anthony H Demis, to John Preston, Jr., as plaintiff’s guardian ; that said note was transferred to him by the plaintiff in the year 1846, or 1847; and that he has fully accounted to, and obtained from the plaintiff an acquittance therefor. He also pleads compensation, alleging that the plaintiff is indebted to him for board, washing and money lent, goods and property sold, &c., amounting to the sum of $1149 as specified in an account annexed to and made a part of his answer. The prescription of one year is opposed as a bar to this demand.

The plaintiff’s counsel has called our attention to a bill of exceptions in the record, on which he relies to exclude the depositions of two witnesses,. Andrew Lotting and James W. Hale, taken under commission. There was a rule taken by the defendant on the plaintiff to show cause, under the statute of 1839, why these depositions should not be read. The plaintiff urged the following objections: — Because said depositions were not annexed to any commission, or taken by authority of the court; because there was no sufficient proces verbal of the taking of said depositions and because no legal commission had been issued to take the same. There was no action taken on this rule. On the trial of the cause on the merits, the same objections were urged by the plaintiff’s counsel and were overruled by the District Judge on the ground that he considered them as waived.

“We think the judge erred. Under the statute of 1839, on a rule to show cause, objections founded on irregularity in the execution of a commission, must be urged before the trial of the cause on themerits, otherwise such objections shall be considered as waived. As the plaintiff’s objections were seasonably urged, it is clear that they cannot be considered as having been waived by going into the trial of the cause on the merits. Had the other party required it, as he doubtless had the right, he certainly could have had the question raised by the objections previously determined on the rule and thereby protected himself from any surprise, the only relief designed by that statute.

We are of opinion that the plaintiff’s objections are untenable. The record shows that on the 29th January, 1851, a commission was issued under the seal of the court, directed to Alexis Sappington or Edward Shaw, Justices of the Peace, to take the the depositions of Hale, Latting and Shillings, and that it was made returnable on the 2d Monday of May, 1851. The deposition of the witness Hale, was taken under this commission on' the 21st February, 1861. The caption under his deposition or answers to the interrogatories propounded to him, shows that lie was previously sworn; it also shows where, when, and by what authority it was taken. Under the statute of 1850, the clerks of the several District Courts were vested with authority to issue commissions to take testimony in and out of the State. We think the deposition was taken substantially in accordance with the requirements of law. In the case of the succession of Fufe Connolly, (6 A. 479,) on which the plaintiff’s counsel relies, the objection to the evidence was placed on the ground that there was no^ro-ces verbal showing the manner in which the commission had been executed, or that the witness had been sworn before the deposition was taken. The court said: “ It is nothing more than answers to interrogatories, at the close of which these words are found: ‘ Sworn to and subscribed before me, L. F. Robertson, Commissioner.’ ” The deposition of the other witness was taken before Ed-toard 8ha/io, Esq., Justice of the Peace, under the same commission on the 25th February, 1851, and appears to have been regularly taken.

On the merits, we think the District Judge erred. The defendant in his own answer admitted the receipt of David's note, which the evidence shows amounted to the sum of $700, dated the 11th of May, 1846, payable one year after date and bearing 8 per cent interest per annum until paid; and that he was accountable to the plaintiif therefor. It is true he averred that he had afterwards accounted to and obtained from the plaintiif an acquittance for the same, but there is no proof of it in the record. When he received the note for collection in 1847, it is not shown, or pretended that there were any credits involved on the same, or claimed by the maker. One of his witnesses testified that the plaintiif requested him “ to collect the note and do the best he could with it — even to shave it if he did not get more than five hundred dollars.” Nothing shows that the defendant has ever accounted to the plaintiff for the note or any part thereof.

In relation to the demand in compensation, it is shown that the plaintiif boarded at the defendant’s about two years, during a part of which time he occasionally worked, but was in bad health. One of the defendant’s witnesses testified, that he considered his board to be worth ten dollars per month, and another witness $20. We think twelve dollars and fifty cents, the medium of the estimate fixed by the witnesses may be considered as fair and equitable. We are satisfied from the evidence in the record of the correctness of the items for clothing, cash, gray mare, rifle and gold watch, charged in the defendant’s account. In relation to the plea of prescription, it is enough to say, that “ compensation takes place of course by the mere operation of law, even unknown to the debtors; the two debts are uniformly extinguished as soon as they exist simultaneously, to the amount of their respective sums.” O. 0. 2204. The plaintiff’s claim is therefore reduced by compensation to the sum of $193 00, for which he is entitled to judgment against the defendant.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and that the plaintiff do recover of the defendant the sum of one hundred and ninety three dollars, with legal interest from judicial demand and the costs of this suit to be taxed; and to secure the payment of the same, it is further ordered that the attachment be reinstated.


text:
    E. Steel et al. v. E. Smith et al.
    Property seized in execution shall not be adjudged at the first crying, if the price offered does not reach two-thirds of the appraisement. 0. P. 680.

      X bona fide possessor is liable for rents, only from the institution of the suit. 0. C. 495.
    Plaintiff in a petitory action cannot recover rents from a warrantor whom the defendant has called in to defend the suit.
    APPEAL from the District Court of the Parish of Madison, Perkins, J.
    IF. Perkins, and J. B. Bemiss, for plaintiff.

      Stacy & Sparrow, for defendants and appellants:
    Defendants contend that the estate of Groves acquired a good title to the land in controversy, by the adjudication at the Sheriff’s sale. The notices of seizure, advertisements, sheriff’s deed and return, are all correct as to the description of the land. But the sheriff committed a clerical error in his description of the number of acres in the tract, and led the purchaser into the same error. It is not disputed, that all the parties acted in. the most perfect good. faith. The sheriff intended to sell, and the purchaser intended to buy the whole tract at two-thirds of its appraised value. This is undisputed. Every thing' concurred to constitute a perfect contract of sale — the parties — the thing— the price and the consent. C. 0. Art. 2414. But a slight error occurring in the description of the thing, the price bid was not legally sufficient. Oan that error or aught it to affect the title of the purchaser buying in good faith, who is now ready and willing, and always has been, to correct that error-, and to pay the amount he in intention bid, and would actually have bid, had he not been deceived ? We think not. No person is injured by permitting him to ■ correct that error. If the bid had been $100 more, and there had been the same erroneous description of the land, no one would contend that the title would not have been good, as the price was sufficient. As he really bid that amount in intention, we claim that the estate of Gloves is only liable to pay an amount sufficient to make up what he would have bid in fact, to have a perfect title to the land, and that this is not such an error as would vitiate the sale. 0. Code, Arts. 1817, 1835, 1836, 1837, 1838 and 1839. 15 La. Rep. p. 312, and cases there cited.
   Ogden, J.

On a judgment rendered against the plaintiff in this suit, in favor of the succession of Moses Groves, pending a devolutive appeal from the judgment, execution was issued, and a tract of land containing 126 acres, was seized and sold as the property of the plaintiff to satisfy the judgment, and bought by the administrator of Groves' estate, for the sum of $800, which was credited on the execution. Subsequently, the same property was adjudicated to the defendant in this suit, at a probate sale of the succession of Moses Groves. The judgment obtained against the plaintiff, was reversed on the appeal, and the case remanded for a new trial; and on the second trial, a judgment was rendered in favor of the plaintiff discharging her from liability for the claim of Gi'oves' estate, and the judmgent confirmed on appeal to this court. The present action is brought by the plaintiff to recover back the property which had been sold to satisfy the judgment firstrendered. Two grounds of irregularity in the Sheriff’s sale to ff. S. Groves, the administrator of Moses Groves' estate, are alleged as sufficient to have it declared null and void, and entitle the plaintiff to restitution of the property. The first is, that the sale was made for less than two-thirds of the appraisement at the first crying of the property for cash ; and the second, that the appraisers were not sworn. The land sold was appraised at $10 per acre, but erroneously described in the appraisement, as containing only one hundred and twenty acres ; the quantity which was actually levied upon, advertised for sale and adjudicated by the Sheriff, was one hundred and twenty-six acres, and the price of $800, for which it was adjudicated, was less than two-thirds of the appraisement at $10 per acre. The law is express, that the property seized in execution, shall not be adjudged at the first crying, if the price offered does not reach two-thirds of the appraisement. O. P. Art. 680.

The Sheriff’s sale, therefore, to Gi'oves, did not confer a title conclusive per se, on the defendant, but one liable to be attacked, within five years, by the defendant in execution, by reason of this non-compliance with the requisites prescribed by law for Sheriff’s sales. On the trial, the plaintiff offered in evidence a deed to the property, which was objected to by the defendant, and a bill of exceptions taken to its admission. We consider it unnecessary to notice the grounds of the objection, as we are of opinion that the evidence was unnecessary to support the plaintiff’s action, for the reason that the defendant sets up title under his purchase from Groves’ estate, and the administrator of Groves’ estate, being called in warranty, sets up title under the Sheriff's sale, and therefore neither of them are at liberty to question the title of their common author. Bedford v. Urquhart, 8 L. R. 234. For the same reason, the objection taken on the trial, to the introduction, by the plaintiff, in evidence of the sheriff’s deed and other proceedings in the suit of Groves, Administrator, v. Mrs. Steel, was properly overruled. The question next presented is, to what extent the defendant is liable for the fruits and revenues of the property. The court below rendered judgment for rents from the time that the defendant wont into possession under the sale to him from Gi'oves’ estate. In this, we think the court erred, there was no defect on the face of the title derived by defendant from the probate sale of Groves’ estate, which would prevent him from being considered a bona fide possessor, and he continued to be so until the institution of the suit. 0. 0. Article 495. The plaintiff is therefore only entitled to rents from that time, and in regard to the amendment of the judgment asked for by the plaintiff against the warrantor, to render him liable for rents for the time during which the property was in possession of Groves' estate. We are not aware of any principle of law which would authorize the plaintiffs iir a petitory action, to recover rents from the warrantor called in by the defendant. The warrantor is a party defendant in the suit, as regards the plaintiffs, only in the sense of entitling him to resist, by all legal means of defence, a judgment against the defendant, which by reason of the recourse over in warranty against him, would affect his interest, but no judgment can be rendered against him except one in favor of the defendant for such amount as he may be liable for on his warranty. The judgment of the court below is correct, except in regard to the rents.

The case not being- presented in such a shape as to enable us to estimate with accuracy the rents which have accrued since the suit, it will be remanded to settle the question as to the amount of rents the plaintiff is entitled to recover from the date of judicial demand.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be affirmed, except that part of the decree for rent, which it is further ordered, be avoided and reversed, and the case remanded to settle the amount of rents accrued since the institution of the suit, and that the costs of this appeal be paid by the plaintiff; those of the court below, by the defendants and warrantors.


author: Smdell, 0. J.

text:
    M. & B. Mullen & Co. v. T. B. Scott et al.
    A sheriff sold property under a fi. ; H* purchased it, and* alleging that he was owner of the judgment, the sheriff credited the writ with the amount of it, and made him a deed. The assignment of the judgment had not been made of record, and no order of subrogation had been entered, and eventually it was adjudged to be invalid. jffiaintiflV attorney, before the sale, warned the sheriff if H. should bid off the property, not to enter a credit on the writ, but to exact the money.

      Held: That the conduct of the Sheriff in the premises, was a breach of his official duty, for which both himself and sureties were liable.

      A Sheriff, who illegally credits the writ with the amount bid, when in fact no money was paid to him; is liable to the plaintiff in execution; but where there is a special mortgage on the property, outstanding at the time, he will only be liable for the amount bid, less the amount of the special mortgage.
    A judgment against a Sheriff is not res judicata against his sureties, nor does it conclude them as to the amount of the Sheriff’s liability for which they are to respond.
    Judicial pursuit of the principal, interrupts prescription as to the sureties. O. C. 8518.
    PPEAL from the District Court of the Parish of Madison, PerMns, J.

      J. J. Amonet, for plaintiffs. Stacy & Sparrow, and A. Snyder, for defendants and appellants.
   Smdell, 0. J.

A judgment having been obtained in December, 1846, in the name of M. & B. Mullen & Go. against Amos & Roe, a writ of fieri facias was issued by their attorney on the 29th of December, 1840. In March, 1847, a seizure was made by the Sheriff of Madison parish, of certain lands, slaves, horses, cattle, corn, and farming utensils, which, in May following, were struck off in block to Hynes, for a sum of $3830, as appears by the Sheriff’s return, which concludes with the following statement: “The said Hynes has authorized me to credit this writ the same.” A Sheriff’s deed for the property was executed in favor of Hynes, which recites, that it had been struck off to him for a price of $3,830 33, and that he had “complied with the terms and conditions of said sale, by having said amount endorsed on said execution.”

In October, 1848, a rule was taken by the plaintiffs on the Sheriff, to show cause why he should not be adjudged to pay the plaintiffs the amount of Hynes' bid. The Sheriff dying, the rule was prosecuted against his administrator, and resulted in November, 1850, in a judgment against the Sheriff’s succession for the amount claimed. After fieri facias and return of nulla T>ona, the present suit was brought for the same amount against Scott and others, the sureties of the Sheriff on his official bond, and from a judgment against them for $3,339 05 and interest, and the sureties have appealed.

It appears that at the date of this Sheriff’s sale, Hynes held a notarial assignment of the judgment from one Derereaux, who had purchased the claim against Amos & Roe, with other assets, at an auction sale made under the direction of B. Mullen, syndic of Kirvan, one of the partners of M. & B. Mullen & Go., who had made an insolvent surrender in the District Court at New Orleans. Whether this assignment was exhibited by Hynes to the Sheriff does not appear, but if we assume that it was, we do not think it authorized the Sheriff to treat Hynes as the owner of the judgment, when warned by the plaintiffs’ attorney before the sale, if Hynes should bid off the property, not to enter any credit on the writ, but to exact the money. The assignment had not been made of record in the cause, and no order of subrogation had been entered. Under such circumstances, the Sheriff acted at his own peril in entering a credit on the writ by order of Hynes, and giving him a deed for the property seized and sold, and delivering him possession. This was clearly a breach of his official duty, committed in the exercise of an official function, under a -writ taken out by the plaintiffs; he is officially answerable, and consequently his sureties. The Sheriff could have protected himself by invoking the decision of the court upon the conflicting pretensions of the plaintiffs and Hynes, but he chose to decide for himself, notwithstanding the warning given; and the subsequent litigation between them, established the invalidity of Hynes' title. See Annual, p. —.

It is said, however, the District Judge erred in considering the Sheriff responsible for the whole amount of the sale, because, at the time of the adjudication, there was a recorded special mortgage on the land for its price, due by Roe, the defendant in execution, to his vendor.

In this view we concur. Where there is a special mortgage outstanding on property sold by the Sheriff, the purchaser has a right to retain its amount in his hands, paying only the residue of the price to the Sheriff; and if the plaintiffs repudiate the credit endorsed by Hynes' order, they can only hold the Sheriff for the non-performance of what would have been his legal duty, if he had dealt with Hynes as a mere stranger to the judgment, instead of improperly treating him as its owner.

The fact, that Hynes was secretly buying for the joint account of Roe and himself, does not affect the question ; for it is not shown the Sheriff was cognizant of that fact, when he made the sale.

The counsel for the defendants have alluded to an acknowledgment made by the plaintiffs’ attorney in his testimony in this cause, that he to\A Hynes, “if he would settle his counsel fees, he would not trouble himself further about the matter,” meaning the invalidity of Hynes' purchase from JDevereaux, which was eventually adjudicated upon two grounds, its being the purchase by an attorney of a litigious right, and being obtained by misrepresentation to the vendor as to the value of the judgment. However improper such conduct with regard to the client, it cannot be invoked to defeat the client’s right. It is proper to add, that the assertion of this witness, respecting the warning to the Sheriff, is corroborated by the testimony of the Sheriff’s deputy, that no objection was made to his testimony on the score of interest, and that the District Judge has given him credence.

The next question is, whether the judgment against the Sheriff forms res judicata against the sureties, and concludes the defendant as to the amount of the Sheriff’s liability, for which they are to respond.

We find this question decided in the negative in two cases, of bonds given with sureties for the performance of official duty. Thus in Whitehead v. Conner, which was a bond for the faithful discharge of Conner's duty as receiver, it was held, that a judgment ascertaining a balance against him as receiver, was not conclusive against the sureties. 3 Ann. 43. So in Canal Bank v. Brown, it Was held, that a judgment against the principal in an action upon an administrator’s bond, was not conclusive against the sureties, who were not parties to this suit.

The credit of $600, allowed by the District Judge is not disputed.

The judicial pursuit of the principal, interrupted prescription as to the sureties. 0. 0. 3618.

It is therefore decreed, that the judgment of the District Court be reversed; and it is further decreed, that the plaintiffs recover from the defendants in so-lido, to wit, Mary Jane Seott, administratrix of the succession of Thomas B. Seott, Robert M. Seott, Gipson C. Bettes and Alonzo Snyder, the sum of $2039 78, with interest thereon, at the rate of five per centum per annum from the 14th day of November, 1860, and costs of suit in the court below; the cost of appeal to be paid by the plaintiffs.