text:
    David Hamilton v. Henry H. Hurst, et al.
    Where the plaintiff resides in a different parish from the one in which he sues the defendant the latter may, under the act of 1839 amending art. 375 C. P., reconvene against the plaintiff for any cause of action.
    Where property seized on sequestration has been lost by the negligence of the sheriff, the plaintiff is liable if the sequestration was illegally issued; and it is not necessary to make the sheriff a party, when the defendant seeks to recover his damages of the plaintiff.
    APPEAL from the District Court of Point Coupée. Farrar, J.

      C. Ratliff, for plaintiff,
    contended: 1st. Plaintiff contends that his demand was fully made out. 2d. That plaintiff’s motion to strike out defendant’s plea in reconvention should have been sustained. 3d. That the court erred in permitting any testimony to go to the jury in relation to the loss of the boat while in the hands of the sheriff, and to prove the damage consequent upon her loss, as the sheriff had no opportunity of showing that he had discharged his duty in that respect. Plaintiff’s objections should have been sustained. 4th. The damages assessed, if the testimony was properly received, are excessive and unsupported by the evidence. See case of Sonable v. Souleny, Sheriff, 1 R. R. 292. 5th. The sequestration properly issued, and defendant has no cause of complaint in that respect .See C. P. art. 275, sec. 7. Also act of 20th March, 1839, sec. 6. 6th. The defence that the ferry charter was forfeited, is untenable, as no person has a right to complain. State alone can have the charter declared forfeited. In this ease Hamilton only sold his right to the ferry charter such as it was. See act of sale from Hamilton to Hurst. 7th. A party is not bound to repair the damage which he may cause to another in the exercise of his legal rights. Henry v. Dufilho, 14 L. R. 48. 8th. Plaintiff gave through his counsel written instructions to the sheriff how to proceed in the management of the boat while under sequestration. It is not pretended that the boat was lost in consequence of these instructions; nor does the testimony any where make it even probable, much less certain, that the boat was lost by negligence, carelessness, or mismanagement of the sheriff or plaintiff.
    For these reasons the verdict of the jury should be set aside; the judgment reversed; defendant’s demand in reconvention rejected, and plaintiff have judgment for the whole amount of his demand, with a vendor’s privilege on the boat, &c., as prayed for.”
    S. A. Lacoste and A. Provosty, for defendant,
    contended: The defendant’s motion to set aside the sequestration should have prevailed, not only on the third ground, which was the only one submitted to the jury, but also on the two first points : For the bond, the sum of which was not determined by the court as required by C. P. art. 276, was cleai’ly insufficient in amount; it should have been for an amount sufficient to compensate the defendant, not only for all damage which he could sustain, but also for the privation of the revenue during the pendency of the suit. C. P. art. 277. The bond was for only eighteen hundred dollars, just the price at which the boat was sold by plaintiff to defendant; but its value was greatly enhanced by the repairs, which cost defendant nine hundred dollars, and the revenue was from four to five hundred dollars per month; of all of which defendant was deprived. Besides, applicant should have made oath that he feared that defendant having possession of the property “ should remove it beyond the limits of the State during the pendency of the suit,” 5 N. S. 43 ; 5 L. R. 345; 11 R. R. 151; for plaintiff did not sue for the possession of the property. Act of 1839.
    There are some questions of law raised by plaintiff’s counsel in the lower court, which may be briefly noticed here. The first is a motion to strike out defendant’s plea in reconvention:
    1st. “ Because the matters set up are not connected with and incidental to the principal demand.”
    It is a sufficient answer to his ground to say that plaintiff resides in á different parish from the defendant, and that the latter had a right to reconvene against the former for any cause. Act of March 20, 1839, sec. 7, 4 R. R. 1.
    2d. Because the matters set up in the reconventional demand are basedon injuries resulting from the alleged illegal acts of the sheriff, for which plaintiff is not responsible; and 3d. Because the sheriff’s acts cannot be inquired into, as the case now stands.
    By a reference to defendant’s answer the court will perceive that the position assumed by plaintiff’s counsel is incorrect. The defendant claims damages for having been deprived of the use of the boat, and the privilege of crossing persons and things across the river between Bayou Sara and Pointe Coupée, as well as for the loss of the boat.
    It is proved beyond question that the sequestration was improperly sued out; and it is a settled principle that where a sequestration has been illegally sued out, the true standard of damages is the probable loss sustained by the defendant. “ He should be placed as nearly as possible in the situation he would have been in had the sequestration not been issued.” 6 L. R. 266. 11 R. R. 145. How then could the defendant have established the damages sustained by him, if he had been prevented from proving the loss of his property, after the unlawful sequestration; no matter by whose fault that loss occurred? How could the court and jury, in the absence of such proof, have placed him in the situation he was previous to the sequestration ?
    In the case of Rodriguez and Vzsmnt, 11 L. R. 167, the Supreme Court refused to allow to the defendant the value of his slave, who had died while detained in prison under a writ of sequestration. But the court said: “We think the testimony is vague, and does not show with sufficient certainty that the death of the slave was caused by any disease arising from his detention in jail.”
    In the case before this court, the testimony is dii'eet and positive, that the pi'operty sequestered would not have been lost if it had been suffered to remain in defendant’s possession.
    But we contend, that the plaintiff is responsible for all the consequences of his wrongful seizure ; even for the acts of the sheriff. Art. 2949 of the Civil Code says: “The appointment of a judicial guai'dian produces, between the person seizing and the guardian, i'eciprocal obligations. The guai'dian must use, for the preservation of the effects seized, the care of a prudent father of a family; he must produce them, either for the dischax-ge of the person who has seized them-for sale, or to the person against whom the execution was levied, in case the seizure be raised.”

      Troplong in commenting upon this article, C. N. art. 1962, says: “ Quoiqu’il en soit, c’est au nom du saisissant que la justice fait ce dépót; des lors le saisissant est censé avoir contracüé avec le gardien, et le gardien avec le saisissant. Le premier est tenu ci l’egard du sécond de toutes les obligations énoncées par les articles 1947 et 1948 : le second est tenu envers le premier des obligations dont les articles 1927 et suiv. donnent le détail.”......“C’est pourquoil’article 1962, aprés avoir mis le gardien en présence du saisissant, décide d’une maniere générale, qu’il est tenu, par la conservation des effets saisís, des soins du bon pére de famille.”......Le contrat de dépót n’est censé intervenir qu’entre le saisissant, représenté par l’huissier, et le dépositaire nommé par celuici: Le saisi n’y est pas partie; il est penitus extraneus. Troplong, Dépót et Séquestre, Nos. 278 et seq.
    But the point is no longer an open one since the case of Jones v. Doles, 3d Ann. p. 589.
    The damages assessed by the jury are far from being excessive. The steam boat alone was estimated by two witnesses to be worth two thousand dollar’s. The repairs put upon her after the sale, cost the defendant nine hundred dollars. It is ¡moved also, that his profits, during the business season, would have been from three to four hundred dollars per month. He had been deprived of the use of his property during seven months, when the case was finally decided.”
   The judgment of the court was pronounced by

Rost, J.

The plaintiff sold a steam ferry boat, a ferry flat boat and the right of keeping the ferry to defendant, who gave him three promissory notes, with his co-defendant as surety. When the first note became due this action was instituted upon it and the two others; and the plaintiff, alleging that he had just reason to fear that the defendant Hurst would conceal, part with or dispose of the boat pending the suit, and thus prevent him from recovering, any portion of his debt, obtained a writ of sequestration; under which the sheriff took possession of the boat.

Hurst moved to set aside the sequestration; and further answered, denying the allegations of the petition, except the signature of the notes, and alleging that the charter sold to him by the plaintiff had become forfeited before the sale, by various acts and omissions of the said plaintiff, by reason whereof the consideration of the notes had failed. The defendant, then assuming the position of plaintiff in reconvention, charges that the sequestration issued wrongfully, and without cause; that he was unjustly deprived of the use of his property, and that while out of his possession the steam feny boat was sunk, through the gross neglect and total want of experience of the plaintiff or of his agent; that the plaintiff neglected to take any steps to raise it; in consequence of which it is now a complete wreck. He claims five thousand dollars damages in reconvention. The other defendant adopted this defence.

The motion to set aside the sequestration failed; and the cause was tried before a jury, who returned the following verdict: “We, the jury, find for the defendant in the sum of twenty-three hundred dollars damages, to be offset by the notes of H. H. Hurst and J. S. Seibert for the sum of eighteen hundi’ed dollars given to plaintiff, and judgment for balance in favor of defendant.” Judgment was rendered accordingly, and the plaintiff appealed.

Before going to trial the plaintiff moved to strike out the plea in reconvention from the answer, which motion was overruled by the court, and he took a bill of exceptions; by his own showing he is not a resident of the parish in which he sues, and under the act of 1839 amending art. 375 C. P., the defendant may reconvene against him for any cause. It was optional with the defendant to resort to his remedy on the sequestration bond, or to proceed as he has done.

The plaintiff also took bills of exceptions to the opinions of the court admitting evidence offered by the defendant, to prove the damages he had sustained and the negligence of the sheriff, in consequence of which the boat Was lost.

If, as alleged in the answer, the sequestration was wrongfully sued out, the plaintiff was from the beginning a trespasser; under that allegation the defendant may prove any fact going- to show the damage sustained by reason of the trespass, or of the want of care of the property.

The plaintiff also excepted, on various grounds, to the introduction of the testimony of James Vance, taken on a former trial. The court admitted it, to show that the defendant was satisfied with his bargain, and likely to do a thriving business, and thus to negative the grounds on which the sequestration was taken out. There can be no doubt of the admissibility of the evidence offered for those purposes.

On the merits, the case turns exclusively upon questions of fact. The defendant has satisfactorily shown, that the grounds upon which the sequestration issued were unfounded in fact; and that the only serious law suits pending against him at the time of the trial, had been instituted after the sequestration, and probably in consequence of it. fíe has also shown, that the steam ferry boat was left without any person on board at the time it sank, and that the sinking might have been prevented by ordinary care. The judgment, so far as its effect is to dispense the defendant from paying, for the boats is therefore correct. Jones v. Doles, 3d Ann. 589.

But we are of opinion that the damages assessed are excessive ; it is proved, that the boat, after it sank, and the engine in it were worth from 450 to 500 dollars. The ferry flat boat must also have been Worth something; and as the defendant retained both, and still had the right of ferry, we are of opinion, that they are sufficient to indemnify him.

It is therefore ordered, that the judgment in this case bte reversed ; and that there be judgment in favor of the defendant and appellee, with the costs of the district court; those of this appeal to be paid by him.


source: Caselaw Access Project

author: Eustis, C. J.

license: Public Domain

text:
    George S. Sawyer v. Daniel Hoovey et al.
    Where the holder of a note receives it from the payee after its maturity, he is considered as standing in the place of the payee, and it is subject to any defence which might have been urged against the payee ; and if there was a failure of consideration, he cannot recover on it.
    APPEAL from the District Court of Concordia, Farrar, J.

      G. S. Sawyer, propria persona.

      É. Sparrow, for defendants.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action on a promissory note, drawn by Daniel Hoovey and George W. Christian, payable to James Ryan or bearer. The plaintiff obtained the note long after its maturity, and must be considered under the evidence, as standing in the place of the original payee, so far as relates to the origin of the note. The note formed part of the consideration of a contract for the sale of the title, interest, and claim of the vendors in a quarter section of land, of which the vendors bound themselves to make good the title.

The evidence prima facie discloses a want of title, which the defence sets up as a failure of the consideration of the note. The contract being entire, and the vendors having bound themselves to make good the title, and having taken no steps to perfect it, cannot recover on this note, which was for the unpaid portion of the purchase money. The plaintiff has no rights independent of the contract.

Judgment was rendered in the district court for the defendants, which is affirmed, with costs.


author: Rost, J.

text:
    William Robertson, Trustee, v. James Brown.
    The articles 3352, 3353, 3354, requiring separate books to be kept by the recorder of mortgages, are directory only.
    Where there are no other books kept by the recorders of mortgages in the country than a registry of conveyances, in which all mortgages are recorded, this recordation is sufficient. ' But if there be a separate registry of mortgages, all mortgages must be recorded in that book.
    APPEAL from the District Court of Concordia, Farrar, J.

      D. S. Stacey, for plaintiff.

      Thos. P. Farrar, for defendant.
   The opinion of the court was pronounced by

Rost, J.

The plaintiff, as trustee of the Commercial Bank of Natchez, seeks to subject certain properly in the possession of the defendant, to a judicial mortgage, duly recorded, in the parish of Concordia, where the property is situated, against Allen J. Bowen, the former owner of the property. There was judgment in his favor, and the defendant appealed.

This case presents a naked question of registry.

The mortgage under which the defendant acquired the property bears date the 26th day of June, 1837, and was recorded at t'he time of its date in the book of notarial acts. It is admitted, that from the 22d of May, 1837, to the 15th of May, 1845, there was kept by the parish judge of the parish of Concordia, one set of books distinct from the notarial record, which was called the mortgage record, and marked “mortgage record,” and that all conventional and judicial mortgages were recorded therein. The judgment under which the plaintiff claims, was recorded in the current book of mortgages, 24th of December, 1840. The mortgage under which the defendant claiins, was not recorded in it till the 24th of 'February, 1841.

The existence of a separate book for the recording of mortgages, in the parish of Concordia, after 1837, was first brought to our notice in the case of Ells v. Sims, 2d Ann. 253, and we then held, that after the opening of that book, the privilege claimed had not preserved its rank, by being recorded in the book of conveyances.

The same principle was reviewed and re-affirmed, in the case of Parrot v. Chambers, 2 Ann. 801; we hold it to be a necessary deduction from our registry laws. It is urged in behalf of the defendants, that all acts, whether containing mortgages or not, were recorded in the book of conveyances; that by universal consent, the book had become the registry book; and that as it is proved, that it was not closed till the 24th of August, 1837, the fact that a mortgage record had been opened thirty days previous to the registry relied on by the defendants, does not alter the case.

As long as there was but one set of books kept, the recording of mortgages in those books was valid; but it ceased to be so when a distinct mortgage record was established. After that time, the former record remained open for the registry of conveyances only, and no valid inscription of a mortgage could be made in it.

It is further urged, that the Civil Code expressly requires two separate sets of books: one for conventional, and the other for judicial mortgages; and that, as both classes of mortgages were at that time recorded in the same book, in the parish of Concordia, the registry of the plaintiff’s mortgage is defective, and gives him no priority. For the reasons which induced us to hold the registry in the book of conveyances to be valid, when no mortgage record had been kept, we must sustain the validity of a registry thus made. The articles of the code relied on, are directory to the recorders of mortgages, and should not receive a construction that would defeat the operation of the registry laws.

Judgment affirmed, with costs.


author: Slidell, J.

text:
    Z. H. Dorsey v. H. B. Vaughan et al.
    Where the sheriff advertises a sale of property between the hours of 10 A. M. and 4 B. M. it is not good cause for an injunction, under the act of 5th March, 1842, fixing the time of making sheriff’s sales, andrequiring them to commence their sales at 11 o’clock; especially when there is no allegation that the sheriff intended commencing the sale at a different hour Rom the one prescribedby the law.
    To make the public the victim, because the sheriff had omitted to be sworn according to the Constitution, by declaring his acts null, would be repugnant to justice and the well settled' doctrine of the law.
    The article 126 of the State Constitution applies to the holding of two offices under the State, and not where one of the offices is held under municipal authority.
    It is the duty of the courts to mulct in exemplary damages those who wantonly abuse the equitable remedy of injunction.
    APPEAL from the District Court of Carrol], Snyder, J.

      Wm. Bryan, for plaintiff.

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

Slidell, J.

The defendants are judgment creditors of the plaintiff. He has enjoined, the execution of the judgment.

The act of 1842 (p. 210) directs: “That hereafter all sheriff’s and coroner’s sales shall be advertised to take place, and shall take place, at the court house, or at some other public place in the vicinity of said courthouse, on the first Saturday in each month, commencing at eleven o’clock, after the expiration of the time required by the law for advertisement of such sales; and the said sheriff or coroner shall have the right to adjourn said sale to the Monday following, and then from day to day, only in case there shall not be time to conclude the same in one day.” In the present case, the sheriff having seized certain property, gave the defendant in execution, Dorsey, notice that he would proceed to advertise the property to be sold on a certain day at the court house door, between the hours of 10 A. M* and 4 P. M. The advertisement states in one portion of it, that the property will be sold at the court house door, on the day named, “within the usual hours of sale,” and in another portion “within the hours of 10 A. M. and 4 P. M.” Copies of the notice and advertisement were annexed to the petition of injunction, and the complaint in the petition is that the hour of commencing the sale is not designated, and that the hour of 11 A. M. should have been specifically designated. But there is no averment that the sheriff intended to sell before the hour of 11 A. M., nor did his advertisement announce an intention to do so. If, therefore, the appellant be right in his position, that the sale could not properly commence before 11 A. M., still there is no showing of an intention on the part of the sheriff to violate the law at the sale. In the abseoce of an allegation under oath to the contrary, the creditor is entitled to the benefit of .the presumption, thatthe sheriff would not on the day of sale violate what is said to be his legal duty. As the petition is framed, there is nothing to show a well founded apprehension of injury or violation of the defendants rights. There is, therefore, no equitable case to justify the remedy of injunction.

Another matter charged in the petition is, that the sheriff, after his election in November, 1847, had not taken the oath of office until June, 1849; and consequently is not now authorised to act, and his office has become vacant by the omission. It appears by the petitioner’s own showing that he was duly elected, and was acting as sheriff when the petition for injunction was filed, viz. August, 1849. To make the public the victim of the sheriff’s omission by declaring his acts null, would be repugnant to justice and the well settled doctrine. See Buckman v. Ruggles, 15 Mass. 183. Mason v. Dillingham, Ib. 271. McInstry v. Tanner, 9 John. 135. Citizens’ Bank v. Bry, 3d Ann. 633. Bacon’s Abridg. verbo Office E. The People v. Collins, 7 John. 549. Kirkman v. Wyer, 10 Mart. 156.

It was further alleged, as a reason why Travers was incompetent to proceed as sheriff in the execution of the fieri facias, that he has, since his election as . sheriff, accepted the office of parish tax collector, under an appointment of the Police Jury of the Parish of Carroll. This, it is said, is in violation of the 126th article of .the Constitution, which ordains, “that no person shall hold or exercise at the same time more than one civil office of emolument, except that of justice of the peace.” -The office of parish tax collector, if office it be, (upon which point we express no opinion,) is a municipal office. That of sheriff is a State office. The incompatibility contemplated by the Constitution is'the holding of two State offices. In expressing this opinion, however, we do not wish to be considered as recognising the right of the plaintiff to have the question of forfeiture of office determined in this mode of proceeding.

It is also alleged that the sheriff had no rightto act intheservice of citation in the suit of Vaughan v. Dorsey ; in which case, however, the plaintiff admits that he appeared and defended. On this ground, it is urged, the judgment was void. Other matters are also alleged of a similar character, touching the validity of the judgment, which it would be an unnecessary waste of time to mention in detail. The objections .to the validity of the judgment are frivolous.

The course of justice had been so seriously impeded by the practice of taking out injunctions upon frivolous pretexts, that the Legislature found it necessary to enact the statute of 1831, authorising courts when an injunction of .an execution is dissolved, to condemn the plaintiff and surety in solido to pay the creditor interest at ,tlie rate of ten per cent per annum on the amount of the judgment, and twenty per cent damages.

This was a great and extraordinary power, and shows the legislative opinion as to the extent of the evil, and the importance of restraining it. It is the duty of courts to give effect to the legislative will and fhe declared policy of the State, and mulct in exemplary damages those who wantonly abuse the equitable remedy of injunction.

It is therefore decreed, that the judgment of the district .court be so amended as that the said H. B. Vaughan and Spn recover from the said Zachariah H. Dorsey and his surety Thomas V. Davis in solido, the further sum of $46, as damages, and the further sums of $3 64 as additional interest; and the costs of the appeal to be paid by the appellant.


text:
    H. Kendall, Carter & Co. v. Thomas H. Wade.
    An agent cannot take property in payment of a debt due to his principal, without a special authority; and a payment so made, is no bar to the principals right to recover the amount from the debtor.
    APPEAL from the District Court of Carroll, Snyder, J.

      Lewis Selby, for plaintiffs.

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

Eustis, C. J.

The plaintiffs sue the defendants for the price of two gin-stands, sold to him in November, 1847. The defence is payment. The case was submitted to a jury, who found a verdict for the defendant. From the judgment rendered on this verdict the plaintiffs have appealed. The sale appears to have been made by Craig, who was the plaintiffs agent. He gave an order on the defendant to settle the accounts with J. L. Farmer. Fanner directed the defendant to settle with M. Wood, whose receipts in the bills of parcels made out by the plaintiffs, are offered in evidence by the defendant.

It is, however, established by the evidence, that the defendant did not pay Wood money, but gave him a slave, of which no title is exhibited, and a note for §>37, payable to Farmer, or bearer; and for this consideration Wood receipted the bills.

There is no evidence adduced, on the part of the defendants, which authorised the plaintiff’s agents to receive slaves in payment of debts ; or that the plaintiffs have ever recognised the acts of the agents in this respect; or that the small note payable to bearer ever inured to their benefit.

It is therefore decreed, that the judgment of the district court be reversed ; and that the plaintiffs recover from the defendant the sum of four hundred and eighty dollars, with interest from January 1st, 1848, and costs in both courts.


text:
    Lawrence T. Wade v. Marshall and James.
    Where the vendee claims property under an act of private sale, which was not recorded until after a seizure by a creditor of the vendor, and the possession at the time of the trial is shown to have been in a third person, between whom and the vendee no privity or connection is shown, it will not be regarded as the possession of the vendee under the act of sale.
    APPEAL from the District Court of Carroll, Snyder, J.

      Wm. Bryan, for plaintiff.

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

Eustis, C. J.

On the 27th of June, 1847, Marshall and James, merchants of New Orleans, recovered judgment in the Fifth District Court against Green and McDougall, a firm of the city, for f 1102, with interest; and on the 19th June, 1849, the judgment was recorded in the parish of Carroll.

On an execution issued on this judgment, two slaves were seized, as the property of the defendants, which are claimed in the present suit, as the property of the plaintiff, Lawrence T. Wade. After a trial on the merits the district court gave judgment for the defendants ; and the plaintiff has appealed.

The slaves were the property of the partnership at the time the debt due to Marshall and James was contracted, and the plaintiff’s title to them, is a bill of sale, under private signature, executed on the 4th of June, 1847, in the parish of Carroll. This instrument was not recorded in New Orleans, the domicil of the vendors, and was only recorded in the parish of Can-oil on the 16th of April, 1849, after the slaves were levied upon by the execution of Marshall and James.

Although there is evidence of a delivery of the slaves to the plaintiff, at the date of his alleged purchase, there is nothing before the court which establishes his present possession of the slaves, which appears to have been in Thomas T. Bell, between whom and the plaintiff no connection or privity is proved.

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


text:
    E. O. Ross, Tutor, v. R. J. Chambliss.
    The defence by the surety on an administrator’s bond, that at the time of the filing of the petition against him, execution against the principal had not been returned, should have been pleaded as an exception in limine litis, and could nob be gone into after an answer on the merits; the execution having been returned, no property found, before the answer was filed.
    APPEAL from the District Court of Carroll, Snyder, J.

      R. Short and H. R. Bonner, for plaintiffs.

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

Rost, J.

The defendant is sued as surety on an administrator’s bond; there was judgment against him, and he appealed.

The defence is a general denial, and an allegation that the conditions of the bond have not been violated.

The plaintiff obtained a judgment against the administrator; but no execution had issued upon it when the petition in this case was filed. Before the filing of the answer, however, execution issued and was returned: no property found.

The defendant now contends, that as the breach of the bond was not ascertained in a legal manner, when the petition was filed, the action was premature and cannot be maintained.

We are of opinion, that this exception, if at all tenable, should have been pleaded in limine litis; and that by answering to the merits, after the execution had been returned, the defendant must be considered as having waived this ground of defence. The plaintiff has asked damages as for a frivolous appeal; we do not consider this a case in which they should-be allowed.

Judgment affirmed, with costs.


text:
    Sarah W. Dunbar, Widow, et al. v. Heirs of Robert Dunbar.
    In estimating the necessities of the wife so as to determine whether she be entitled to the marital portion, the condition of the deceased husband and the habits of life engendered by his fortune must be taken into consideration.

      The right to claim the marital portion exists as well in those cases where there was no marriage contract as in those in which no dowry is stipulated in the marriage contract. C. C. 2359.
    The wife is entitled to the mcmitalportion whether the matrimonial domicil was in the State or out of it. The right results from the marriage, no matter where contracted, and the wife takes by inheritance as other heirs.
    Real estate, upon the death of the owner, must be distributed according to the laws of the country where it is situated.
    APPEAL from the District Court of Madison.

      H. B. Shaw, for plaintiff.
    _E. Sparrow, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff claims the marital portion out of the estate of her husband, on the ground that he died rich, leaving her in necessitous circumstances.

The answer denies that the plaintiff is in necessitous circumstances ; and avers that she could not maintain her action if she was, never having resided in the State of Louisiana and not having been married under the régime dotal.

The case is before us on the appeal of the defendant from the judgment rendered agreeaby to the prayer of the petition. It is proved that the property left by the deceased in Louisiana, is worth over $150,000, and produces an income of from eight to ten thousand dollar's a year. He also left some real estate in Mississippi, which is shown to give an annual income of about $800 ; one third of which belongs to the plaintiff. Her share in the personal estate there, is less than $2000. These, and the right of habitation in a portion of the homestead are all she has, besides the commissions on the revenues of her minor children, which will terminate with the minority. In estimating her necessities, the law requires that we should take into consideration the condition of her husband and the habits of life which his ample fortune must have engendered in his family. The rule derived from the Roman and Spanish laws, in such cases, is, that the surviving wife is entitled to the marital portion, unless she has the means of “ bene and honeste vivere,” according to the condition of her husband. Part. 6, t. 13, 1. 7, and notes of Gregorio Lopez. The evidence in the record leaves no doubt in our minds, that the plaintiff in this case has not the means of living according to the condition of her husband.

The other grounds of defence were passed upon and overruled by our predecessors in the case of Abercrombe v. Caffray et als. 3 N. S. 1.

It is urged, that article 2359 .of the code limits the right of the widow to claim the marital portion to cases in which there has been a marriage contract. We can see no reason for such a limitation; nor is it fairly deducible from the article of the code. The dispositive portion of that article is general, and gives the right to the marital portion to the husband as well as to the wife, left in necessitous circumstances. The words, “when the wife has brought no dowry,” may well be considered as applying to cases in which there was no marriage contract,' as well as to those in which no dowry was stipulated in it. The fact that this article is found in the chapter of the code that treats of the dowry, would not by itself authorise a construction at variance with its plain import, and in conflict with the decision of our predecessors. It is well known that during the discussions on the code many articles were inserted, and amendments made, without regard to its classification.

We concur in the decision in the case of Abercrombe, that the wife whose husband has died rich, leaving her in necessitous circumstances, is entitled to the marital portion, whether the matrimonial domicil was in the State or out of h. That right results from the marriage, no matter where contracted; and the wjfe takes by inheritance. There is no reason why she should not be permitted to inherit as other foreign heirs. See Partidas, the law already cited.

As a general rule, real estate must on the death of the owner be distributed according to the laws of the country where it is situated.

The judgment is therefore affirmed, with costs.


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    Anna Ogden and her Husband v. W. F. Cain.
    A claim is to be considered as liquidated by an acknowledgment on the part of the debtor of its correctness and a promise to pay it. When a claim thus liquidated is offered in compensation of a promissory note, it is not required that the liquidation should be proved by evidence in writing. C. C. 2205.
    APPEAL from the District Court of Point Coupée, Farrar, J.

      Ratliff and Cowgill, for plaintiff.

      T. J. Cooley, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

Some of the proceedings in this case are loose and irregular; but we find, upon a consideration of them as a whole, nothing to satisfy us that the defendant has not had a full and fair opportunity to make his defence. We have therefore considered it our duty to determine the cause on the merits.

The suit was upon promissory notes of the defendant, and he pleaded various claims in compensation. These were allowed by the court. It was objected by the plaintiff in the court below, and is now urged here, that the claims set up by the defendant were unliquidated. We think the court did not- err iu sustaining them. It is true they were originally unliquidated ; but they became liquidated by the plaintiff’s acknowledgment of their correctness, and his express promise to pay. Nor is it a valid objection to the compensation that the plaintiff’s demand is evidenced by a written instrument, and the claims pleaded by the defendant rest upon parol evidence of an acknowledgment and promise to pay. C. C. 2205. Reynaud v. His Creditors, 4 R. R. 514. Pothier on Obligations, No. 592.

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

       The Hon. Isaac T. Preston having taken Ms seat as successor to Hon. George R. King, resigned, the court thereafter was composed of four judges.


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    Levi Beard et al. v. W. A. Gresham et al.
    Where a party takes out an injunction against a sale under execution, for a clerical error in the publication of the advertisement, and the sheriff re-advertises the sale properly for a more distant day, and the party comes forward and bonds the property, it will be considered as an abandonment of the injunction.
    The right of a sheriff de facto to perform the duties of his office, cannot be litigated collaterally in a suit between two other persons. Dorsey v. Vaughan, ante p. 155, affirmed.

      from the District Court of Carroll, Snyder, J.

      Wm. Bryan, for plaintiffs.

      John A. Collins and Andrew R. Hynes, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

We have noticed, in case No. 1652, the circumstances under which the same plaintiffs obtained an injunction against Gresham and the sheriff. We also stated that the order of injunction was obtained on the 24th July, 1849. It was not served upon the sheriff until the 27th of July. On the 24th July, the sheriff, having learned that he would probably be enjoined, gave the plaintiffs notice that he had discovered a clerical error in his advertisement, the use of the word “ Carroll,” instead of “ Madison,” in designating the court from which the writ issued ; that he had accordingly withdrawn the former advertisement, and re-advertised the sale for the 1st September, 1849. The new advertisement was made on the 24th July ; and, on the same day we find the plaintiff’s executing a forthcoming bond for the property seized, conditioned for its production on the 1st September, and reciting the fact that it was advertised for that day. It is obvious, that by this course of action, the plaintiffs authorized the sheriff to believe that this injunction was abandoned; to attribute to their conduct any other legal effect would be to sanction mere trifling with the public officer, and an injustice to the creditor. Matters thus stood until the day of sale had nearly arrived, when on the 31st August, the plaintiffs obtained a new injunction. The grounds stated in the petition will be noticed seriatim.

1st. That the coming sale was in violation of the previous injunction. We consider that injunction as virtually abandoned; and the plaintiffs can take no benefit from it. 2d. That Travis, the acting sheriff, was not sheriff when the writ came into his hands, nor since, because he had not qualified after his election, in 1847, by taking his oath before a competent officer. That in fact this oath was not taken until about the middle of June, 1849.

The facts, as admitted at the trial, are as follows: Travis, after his election as sheriff of Carroll, in 1847, took the oath of office on or about the 3d February, 1848. It was administered to him by Hillman, who then acted as justice of the peace for said parish. Hillman did not take his own oath of office after his election, in November, 1847. His oath, after his first election under the new Constitution, in 1846, was administered to him by the clerk of the District Court for Carroll, out of term time, and not in open court. An oath of office was administered to Travis by the district judge, on the 19th June, 1849. Travis, under his first election, in 1846, was legally qualified, and did then legally take his official oath. It is not pretended that any one else, since 1846, has acted as sheriff.

We do not consider it necessary to enlarge upon this point. The subject was considered in Dorsey v. Vaughan, ante p. 155. Travis' past acts cannot be invalidated ; and since June, 1849, he has been acting under the solemnity of an oath which supplies for the future, the previous omission, if legal omission there was. Whether the State in a proper proceeding could disturb his commission, is a question upon which we express no opinion, and which the plaintiff in the present action has not the right to litigate. 3d and 4th. That Travis had accepted the office of collector of parish taxes. That the time of sale was not properly designated. Upon these points we refer to Dorsey v. Vaughan, ante p. 155.

It is therefore decreed, that the judgment of the district court be so amended that the said Walter A. Gresham recover of Levi Beard and Zachariah Hor "*sey, in solido, the sum of $24'Ó, as damages, and the sum of $10 75, as additional interest,-from 31st August, 18’49, to 17th December; 1849, and lhat so ¿amended the' judgment of the district court be affirmed, with costs.


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    E. O. Ross, Tutor, v. W. M. Savoy et al.
    A party on a negotiable draft originally given to the defendant, cannot be held liable on a garnishment, when it appears the defendant no longer holds the draff.
    APPEAL from the District Court of Carroll, Snyder, J. In this case J. B. Wiggins was garnisheed on a fieri facias. On the trial of the garnishment there was judgment in favor of garnishee, and the plaintiff appealed.

      Wm. Bryan, for the plaintiff,
    contended: Wiggins had twice answered petitions of garnishment, prior to answering under the fi. fa. of 2d August, but as no fi. fa. was in the hands of the sheriff when the petition for garnishment was filed in those first attempts, he, plaintiff, caused the third writ, the present, to issue, although, under the first, he, Wiggins, answered clearly and unequivocally, that he did owe Savoy $708.

    His second answers were a little equivocal, but stated the amount of the debt,, and that Savoy had told him that he had transferred it. And his answer under the third attempt at garnishment, the present, was still more equivocal in answering the 1st interrogatory, which says: “that he is not indebted to Savoy in any manner, as he believesand then gives the reason that Savoy told him it was transferred.
    Plaintiff contends that the answers to the two last attempts under the garnishment were evasive. He acknowledged he had not paid the draft; but he does not state to whom the draft was transferred.
    The articles 2612 and 2613 of L. C. contemplate a transferree as well as a transferror, and as the answer of Wiggins does not disclose the name of the transferree, there is strong presumption of fraud between the transferror and garnishee. Establish the principle, that a third person under garnishment can evade the payment he owes to his debtor by secreting the name of the transferree, soon there will be no use for the writ, as it will be entirely inoperative. It is therefore evident, that the answers under the garnishment, are evasive, and ought to be construed against him. Whiting v. Ivey, 3d Ann. 650.
    The transferree should have made himself known, if not to plaintiff, to Wiggins. But as the transferree has not made himself known to Wiggins, he, Wiggins, would be protected by the levy under the writ; and the statement by Savoy, that he had transferred the debt, is of no more importance than if the officer had levied on any other property of his, and he had told the possessor that it had been previously disposed of, without saying to whom.

      Short and Parham, for the garnishee,
    contended: “ We think, upon the answer of the garnishee, which stands uncontradicted, and without even an attempt to contradict it, ón the part of the plaintiff, the judgment is too obviously correct to be disturbed. The only grounds on which a judgment can be rendered against a garnishee, are: 1st. When he refuses to answer: he- is then presumed to be indebted to the amount alleged. 2d. Where he acknowledges the indebtedness. 3d. Where the indebtedness appears on the facts stated in the answer. 4th. Where the indebtedness is established by such evidence as will overrule the answer. In the present case, the plaintiff took a judgment by default, as in all cases where the party is cited to appear. The garnishee then files his answer. The plaintiff calls the case up for trial; reads the answer of the garnishee in evidence; which clearly show, that he is not indebted to Savoy, but only to such person as may be the holder of the draft. Suppose the holder of the draft presents himself, will he be bound by a judgment against Wiggins, upon such a state of fact?”
   The judgment of the court was pronounced by

Slidell, J.

A judgment having been obtained against the defendant, Wiggins was garnisheed under fieri facias.

By his answers, it appears that he had given Savoy a bill of exchange upon Drew Sf Co., which was protested in June, 1847; that in 1848 he called on Savoy to settle the bill, and was informed by him that the draft had been transferred, and that he owed him, Savoy, nothing. As the case stands, the garnishee cannot be compelled to pay the plaintiff. His liability is upon a negotiable instrument. Non constat: that Savoy is the holder of it. If he is not, Wiggins owes him nothing. If Wiggins is compelled to-day to pay its amount to Ross, to-morrow he might be compelled to pay the same sum to a third person, as the holder of the bill.

Judgment affirmed, with costs.


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    Thomas J. Cooley v. P. Doherty et al.
    Where a note is given for future services to he rendered, the non-payment of the note justifies the withholding of those services ; and where the services rendered before the maturity of the note were worth the amount of the note, the party rendering them is entitled to recover that sum in an action on the note.
    APPEAL from the District Court of West Feliciana,' Stirling, J.

      Brewer and J. H. Collins, for plaintiff.

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

Eustis, C. J.

The plaintiff, who is an attorney and counsellor at law, residing and practising in the parish of Point Coupée, brought his action against Morris and Tloherty to recover the amount of an obligation contracted by them, together with &eo. W. O'Blenis, to this effect: “We, O’Blenis as principal, and Morris and Doherty as securities, promise to pay, jointly and severally, five hundred dollars to Thomas J. Cooley or order, for value received, payable at the office of the Canal Bank at Bayou Sara on the first of January next.” It bears date the 32th of June, 1845.

The answer alleges the obligation to be void for want of consideration; it charges that the note was given by O’Blenis to the plaintiff to secure the payment of a fee which O’Blenis agreed to give him, as assistant counsel in his defence, under an indictment for murder then pending against him in the district court; that the plaintiff, instead of rendering to O’Blenis his professional services throughout the prosecution, abandoned the case before its termination; by reason of which O’Blenis was compelled to employ other counsel at great expense, &c.

In the court of the first instance, after a trial on the merits, the plaintiff was non-suited. From that judgment he has appealed.

It appears that O’Blenis was committed to prison on a charge of murder, and fhat the plaintiff was employed as one of his counsel. He refused to appear for the accused, unless security was given him for his fees; and O’Blenis gave him the obligation sued on, which was cpnsidered as satisfactory; the plaintiff undertalcing to defend him to the termination of the prosecution.

The first trial of O’Blenis took place in June, 1845, at Point Coupée ; the plaintiff appeared for the prisoner and acted as his counsel throughout the proeeedings which, lasted two days. It had no final result, as the jury was discharged, not being able to agree on a verdict.

A second trial took place in September, 1846, which was attended with the same result as the first. A third attempt was made to bring this prosecution to a close, when, after part of the jury was sworn, it was abandoned, a nolle prosequi having been, by leave of court, entered by the district attorney. The note or obligation given by O’Blenis to the plaintiff fell due in January, 1846, and was protested for non-payment. Previous to the second trial O’Blenis made a formal request on the plaintiff to appear as his counsel, apprehending that his non-appearance for him in court would injuriously affect his cause before the jury. The plaintiff refused to have any thing more to do with the cause : the only reason assigned by him, to the person sent by O’Blenis to make the request, was that he had not received his fee, and never expected to receive it. Accordingly he ceased to appear for O’Blenis, or to act for him as counsel on the second trial, or in the proceedings which resulted in his final discharge.

These facts present two questions: First, was the plaintiff justified in terminating his professional relations on the non-payment of the note? And second, can the plaintiff recover on the note against the defendants, who bound themselves as the securities of O’Blenis only ?

The plaintiff bound himself to give and continue his professional services to the accused, in consideration of his fee secured to be paid at a certain time by the signatures of the defendants. O’Blenis was bound to pay at a certain day, and they were bound that O’Blenis should pay as he was bound. The obligation was payable in bank; was made negotiable; and it is not easy to find ground on which O’Blenis could exact from the plaintiff the continuance of the performance of his part of the contract, when he himself and his sureties were at the time in total default as to the performance of theirs. O'Blenis, in June, 1846, was at large on bail, and in the full enjoyment of his property, and no excuse or reason is given for the non-payment of the notes; there was no offer to pay it. Under these circumstances, it seems clear that O’Blenis had no right under his contract to exact any further professional services .from the plaintiff.

The services of the plaintiff commenced with the arrest of O’Blenis on the charge of murder, in December, 1844. Being the only one of the counsel engaged for his defence who resided in the parish, it was with him principally that O’Blenis consulted during his confinement in prison. After the first trial, the plaintiff, with another of his counsel, obtained a writ of habeas corpus, which was returnable before the judge who resided in Iberville, and accompanied the prisoner to Iberville, where the argument was had on the application for a discharge on bail. It was attended with great difficulty, but was successful; and O’Blenis was released on bail in September, 1845, before the note fell due.

It appears that the services of the plaintiff were of the most efficient kind; that he was zealous and untiring in his efforts ; and that the sum of five hundred dollars is less than the compensation he would justly be entitled to for his professional labors, of which the accused had the benefit.

We perceive nothing in this case which absolves O’Blenis from the responsibility of paying the plaintiff as for time and labor in any ordinary contract. The charge that is made in the answer, that by the withdrawal of the plaintiff on the second trial, O’Blenis was obliged to employ other counsel, is not sustained by evidence. On the first trial, five gentleman, including the plaintiff, appeared as counsel for the prisoner. Subsequently, the prisoner was defended by three counsel. The plaintiff was in court attending to his ordinary business during the last trials, in which he did not appear; but that the prisoner was injured thereby, rests purely in conjecture.

The value of the services rendered by the plaintiff in restoring O’Blenis to his liberty and saving his life, do not appear to have been contested. And they were all rendered before the note on which the defendants are securities fell due. The counsel in prison, his professional exertions on the first trial, and, subsequently, on thehabeas corpus at Iberville, were all before that period. The note then was justly due, and was short of the equivalent which the plaintiff could rightfully claim for his labor. There was nothing like a failure of the consideration before and at that time; and we have seen that there has been nothing since in the conduct of the plaintiff which impairs it. On the contrary, by the default of O’Blenis and the defendants, the plaintiff was released from all obligation of continuing his professional services; while there was a continued refusal on the part of O’Blenis and his securities to comply with their contract.

The judgment of the district court is therefore reversed; and it is ordered, that the plaintiff recover from the defendants in solido, the sum of five hundred dollars, with four dollars costs of protest, together with interest on said sum of five hundred dollars from the 4th January, 1846, and costs in both courts.


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    J. Monget, Tutor, v. Charles Tessier.
    As a general rule under-tutors are without authority to receive and control the assets of minors; but they have the right to employ counsel, and stipulate the necessary fee ; to institute proceedings against tutors to deprive them of their tutorship and to protect the property of minors from waste.
    An attorney at law who retains a reasonable amount out of his collections for his fee, can" not be compelled to refund the amount retained.
    APPEAL from the District Court of East Baton Rouge, Burle, J.

      G. S. Lacey, for plaintiff.

      J. M. Elam, for defendant.
   The judgment of the court was pronounced by

Rost, J.

Moses Tyler, the under-tutor of the minors whom the plaintiff now represents, instituted an action against P. A. Walker, the former tutor of said minors, to deprive him of the tutorship, and to compel him to render an account of his administration. Thomas Green Davidson signed the petition as his counsel, and attended to the suit as such.

Walker subsequently resigned the tutorship, and before another tutor was appointed he deposited in the hands of the defendant, who was then parish judge, certain promissory notes belonging to the minors. The defendant gave those notes to Davidson for collection, and took the two receipts upon which this action is brought. The plaintiff asks that the notes be returned, or the defendant adjudged to pay the amount thereof with interest. There was judgment in his favor, and the defendant appealed.

The receipts, upon which the action is based, show that a note of D. D. Avery for three hundred dollars, and -Twnard’s note for seventy-five dollars were collected by Davidson, and applied by him to the payment of his fee in the case of Moses Tyler v. Walker, by order of the under-tutor Tyler. The plaintiff objects to this appropriation of the funds on two grounds': 1st. That the under-tutor was without authority to receive and control the assets of the minors ; and that the defendant, as depositary, is liable for an illegal disposition of the property deposited. 2d. That Davidson was absent when the case of Tyler v. Walker was tried, and is entitled to no compensation.

As a general rule under-tutors are without authority to receive and control the assets of the minors. But in the cases provided by law, they have power to employ counsel to institute the proceedings necessary to deprive the tutor of the tutorship, and to protect the property of the minors from dilapidation and waste. That power necessarily implies the further power of stipulating with the counsel employed a proper compensation. In this case it is proved, that five hundred dollars would have been a reasonable compensation for attending to the suit of Tyler v. Walker; and the under-tutor has only allowed $375. The amount being reasonable, if Davidson was entitled to compensation, he could not be compelled to refund it on account of the informal manner in which it came to his hands. The payment, on that hypothesis, is valid, and operates a discharge of the defendant pro tanto.

But it is said that the debt was not due, by reason of Davidson’s neglect to attend the trial. The party who employed him did not raise that objection; nor was it raised by the present plaintiff in the action which he brought to annul the judgment rendered in that case. His petition on the contrary goes far to exonerate Davidson from the negligence now alleged, and expressly admits that the cause was improperly-tried in his absence, and when he had no right to expect that it would be tried. It may be remarked that Davidson represented the plaintiff in the action, and that, if he failed to appear, the only judgmeut which could be legally rendered was one dismissing the petition.

The allowance appears to have been made in good faith by the under-tutor, and the defendant is entitled to the benefit of it. The amount of it deducted from the judgment appealed from leaves a balance of $24 40, -for which the defendant has not accounted.

It is therefore ordered, that the judgment in this case be reversed; and that there be judgment in favor of the plaintiff for $24 40, with the costs of the district court; those of this appeal to be paid by the plaintiff and appellee.


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    L. Bonnecaze v. M. Grannery.
    The purchaser who is apprised of the danger of eviction before the sale, cannot suspend the payment of the price on account of that danger. He has no action until he is evicted. C. O. 3535.
    APPEAL from the District Court of East Baton Rouge, Burk, J.

      J. N, Brunot, for plaintiff.

      A. M. Dunn, for defendant.
   The judgment of the court was pronounced by

Rost, J.

L. Bonnecaze sued M. Grannery upon anote, the payment of which was secured by a mortgage on a house and lot in the town of Baton Rouge. Before obtaining judgment, the heirs of Grannery’s deceased wife intervened, and set up a claim in right of their mother, to the mortgaged property, &c. Exceptions were filed by Bonnecaze to their petition of intervention. Judgment was rendered in favor of Bonnecaze, on his note against Grannery, and no action was at that time taken on the intervention. Execution issued, and the property was seized. About the same time, Mrs. Hernandez, in her own right, and as tutrix of her minor children, obtained a writ of seizure and sale against Grannery to sell the same property, under another mortgage. The sheriff seized the mortgaged property, under both writs ; advertised and sold under both on the 6th of February, 1847, when Bonnecaze became the purchaser for the price of $2000; satisfied his own judgment, and paid the balance to the sheriff. On the 11th of February, 1847, he sued out a writ or injunction, restraining the sheriff from paying the money to Hernandez, on the allegation that he was in danger of eviction, “ on account of the suit of intervention aforesaid, which was pending against him.” He made the heirs parties, and asked that his suit of injunction be cumulated with said suit of intervention, which he also prayed might be rejected, &c. Hernandez answered, 1st. That if there was any danger of eviction, it was apparent the purchaser was informed of it before the sale. 2d. That, having paid the price to the sheriff, he could not demand its restitution, or any security until evicted from the property purchased.

On the application of the plaintiff, the case was tried before a jury, who returned a verdict in favor of the defendant. He has appealed from the judgment rendered thereon.

It is manifest, that before the sale the plaintiff was apprized of the danger of eviction, which he now alleges ; he cannot, therefore, under the textual provivisions of article 2535 of the code, suspend the payment of the price. He has no action until he is evicted.

The judgment is therefore affirmed, with costs.


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    Justin A. Edwards v. McFall et al.
    A dormant partner may retire from-a firm, and not be liable for subsequent contracts of his former partners, without giving notice of his withdrawal; provided that the persons affected by bis withdrawal were without knowledge of his having been once in the partnership.
    Where business is transacted by A and B., under the firm of A. & Co., B. cannot be considered as a dormant partner; and if he retires from the firm is bound to give notice of his retiring, or he will remain liable for the contracts subsequently made in the name of the firm.
    APPEAL from the District Court of Corroí!, Snyder, 3.

      Stacey and Sparrow, for plaintiff.

      H. Short and Collins, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff seeks to make .the defendant MeFall liable as a partner, upon a note of Belknap Sf Co. to their own order, and by them endorsed, dated New Orleans, May 22d, 1847, and there payable. There was a judgment as in case of non-suit in the court below, and the plaintiff appealed.

The material facts are as follows : About the 1st December, 1845, a commercial house was established in the State of Arkansas uuder the style of Belknap Sf Co. It was composed of M. L. Belknap, C. W. Belknap, and MeFall, the defendant. It thus existed, with the consent of the parties, until December-, 1846, at or shortly after which time McFall retired. But no notice of retirement was published until after the date of the note. During the existence of the partnership, they purchased their dry goods, hardware, and drugs, in Louisville, and their groceries in New Orleans. Their business seems to have been that of “ country merchants.” At the same time, there existed at Providence, in Louisiana, a firm styled Belknap and McFall, composed of M. L. Belknap and the defendant. Mygalt Edwards were a New Orleans house, of which the plaintiff Edwards, was a partner. The consideration of the note was goods sold at its date by Mygalt 8f Edwards to the house of Belknap Sf Co., personated by C. W. Belknap. This was the first transaction Belknap £f Co. had with Mygalt and Edwards. A clerk of Mygalt and Edwards, who made the sale, states that at the time the'goods were purchased, he asked Belknap “ if Belknap McFall, of Lake Providence, were interested in his house;” to which Belknap answered “ that they were all connected together, but that Belknap &f McFall lived at Lake Providence, and that he attended to the business of Belknap Co., somewhere in Arkansas.” The clerk further deposed, that he had the conversation above related at the request of Edwards, and took a memorandum of it, which has been mislaid.

The fair and reasonable inference from the whole evidence is, that Mygalt Sf Edwards when they made the sale to Belknap 8f Co., had heal'd of the connection of McFall with that house, who, as we have seen, during the previous year, had business transactions in New Orleans; and they must be considered as selling the goods, under the belief that the partnership still existed. And this brings us to the enquiry, whether McFall, who had retired from the firm, before the note was given, can be held liable to the plaintiff.

As McFall was once a partner of the house of Belknap Sf Co., it was his duty when he retired from it, to publish a notice to that effect. It is argued, that he is to be treated as a dormant partner, because his name did not figure expressly in the style of the house/|We are not prepared to say, that a person can he styled a dormant partner, who enters into a partnership with A., under the style of A. & Co. The words “ & Co.,” hold out to the world that some one .else is concerned besides A. .The term dormant seems more properly applicable to the case of a party associating himself in business with A., who transacts the business in his A.’s sole name. See Mitchell v. Dall, 2 Harr & Gill, 171. But, even if McFall could enjoy the advantage of being considei;ed a dormant partner, the law of the case is still against him. It is true, the Fase of a dormant partner is treated as an exception to the general rule, that the liability of partners quoad third persons, cannot be avoided without public notice. But this must be received with the qualification, that the person to be affected by the retirement of the dormant partner, was without knowledge of the fact of his being once in the partnership. If, at the time of contracting, he is aware of that fact, he must be considered as believing its continuance; and therefore trusting the partner who has secretly retired. The case of Farran v. Deflinne, 1 Carrington and Kirwan, was one of a dormant partner. The law, says Cresswell, L, stands thus : “If there had been a notorious partnership, but no notice had been given of the dissolution thereof, the defendant would have been liable. If there had been a general notice, that would have been sufficient for all but actual customers ; these, however, must have had some kind of actual notice. If the partnership had remained profoundly secret, the defendant could not have been affected by transactions which took place after he had retired ; but if the partnership had become known to any person or persons, he would be in the same situation, as to all such persons, as if the existence of the partnership had been notorious.”

In Carter v. Whally and others, 1 Barnewall and Adolphus, 11, the defendant Saunders had been a partner in a company, doing business under the title of Pías Madoc Colliery Company near Ruabon, North Wales,” but had retired before the bill of exchange upon which he was sued was accepted by the secretary of the company. Lord Tenderden was of opinion, that the action was not sustained, Saunders having withdrawn from the firm before the acceptance was given ; and that the plaintiff, who discounted the bill at Birmingham, could not avail himself of the want of notice, as it did not appear that he had ever dealt with the company while Saunders was a member, or that the partnership, during that time, had been so known at Birmingham, where. the plaintiff carried on business, that he must be supposed to have looked upon Saunders as a partner, in default of notice to .the contrary. The plaintiff was, therefore, non-suited. The opinions of the judges upon the refusal of a new trial are pregnant with the inference that if Carter had known, when he took the bill, that Saunders was once a partner, the case would have been with the plaintiff. The opinions of Lord Tenderden and of Parke, J., also show that would not have been necessary to prove expressly Carter's knowledge, but that such knowledge might be presumed, if it were proved that Saunders' connection with the company had been generally known in Birmingham. See also Evans v. Drummond, 4 Esp. 88. Kelly v. Hurlburt, 5 Cowan, 535. Smith’s Mercantile Law, 47. Collier on Part. 3,62,313.

It is therefore decreed, that the judgment of the district court be reversed; and it is further decreed, that the plaintiff recover from the said defendant, James H. McFall, in solido, the sum of $874, With interest from 28th May, 1849, until paid, and costs in both courts.


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    Levi Beard et al., v. W. A. Gresham et al.
    Where the petition for an injunction alleges no injury to the petitioner, nor any apprehension of injury, there is no equitable ground for the injunction, and it should be dissolved.
    Case between same parties ante p. 160 affirmed.
    APPEAL from the District Court of Carroll, Snycler, J.

      Wm. Bryan, for plaintiffs.

      J. A. Collins, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

Gresham obtained a judgment in the parish of Madison against Beard and Bush. A fi. fa. issued, addressed to the sheriff of Carroll parish, and upon application to Beard forpayment,he, on the 14th July, 1849, addressed a written notice to the sheriff, in which he recognises the fi. fa. as issuing from the parish of Madison, and points out certain moveables, which he directs him to seize. This the sheriff did, and advertised the property to be sold on the 4th August, at Beard's residence, within the usual hours of sale. On the 24th July, 1849, Beard presented to the district judge a petition for injunction upon two grounds: 1st. That in his advertisement the sheriff erroneously stated the fi. fa. as issuing from the District Court for the parish of Can'oll, when in point of fact it issued from the District Court for the parish of Madison. 2d. That the advertisement does not show within what time said property would be sold; the expression “ within the usual hours of sale,” being too indefinite. These objections are made nakedly, without any assertion of an apprehension that any injury would result to the petitioner, or even that he believed that on the day of sale the sheriff intended to commence his sale before the hour of 11 o’clock, designated by the statute of 1842. We think the petition showed no equitable ground for an injunction, and should have been dissolved. It is proper to add, that this cause was tried upon the- same evidence as the injunction suit between the same parties, (No. 1609,) and the facts which will be noticed in the consideration of that case furnish additional evidence that the debtor was actuated by no other motive than a desire to delay his creditor.

As the creditor thought proper to recognise his first advertisement as erroneous, in consequence of the clerical error as to the parish, and to abandon it, we will merely dissolve the injunction in this case, without damages.

It is therefore decreed, that the judgment of the district court be reversed, and that the suit be dismissedthe costs in both courts to be paid by the plaintiffs.


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    Elizabeth M. Bemiss et al. v. Dwight and Hartman.
    A. purchaser of property at sheriff’s sale under a valid judgment will acquire a good title, although in a subsequent litigation between the same parties for the same cause of action, the plaintiff obtains a second judgment for a less amount than tbe first.
    APPEAL from the District Court of Madison, Farrar, J,

      Isaac Thomas, for plaintiff.

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

Eustis, C. J.

Dwight and Hartman instituted a revocatory action against John B. Bemiss, Judson Harman, John F. Carson and Thomas Johnson and others, the object of which was to subject certain property, alleged to have been transferred by Bemiss, on the eve of insolvency, to the co-defendants in fraud of his creditors to the payment of their debt. There was judgment against Bemiss on the plaintiff’s debt, and against the three named co-defendants. The latter appealed from this judgment; and the Supreme Court gave judgment in favor of Harman, and remanded the cause for a new trial as to Carson and Johnson. 16 L. R. 150. Bemiss not having appealed from the judgment, and having been no party to the proceedings in the Supreme Court, it stands against him unaffected by the judgment on the appeal. The decretal part of that judgment has no relation to the judgment against Bemiss, but only determines on the rights of the parties to the appeal, to wit, the creditors Dwight and Hartman, and the appellants. The court was of opinion, that Bemiss might be entitled to a certain credit of a note received from him by Dwight and Hartman ; and on remanding the cause expressed their opinion, that this was an open question to be determined on the new trial. But this well might be, and still the judgment against Bemiss remain entire: the point only being open between the parties before the court. Such is the legal interpretation of the judgment of the Supreme Court.

The judgment against Bemiss et al. in the court of the first instance, was rendered as far back as 1837, and that of the Supreme Court on the appeal In September 1840. On the trial, and after the cause was remanded, the suit was dismissed as to Carson and Johnson, and the plaintiffs took judgment a second time against Bemiss for their debt, subject to the credit of the note received by them. This judgment was rendered in January, 1847. B.ut in the mean time, to wit, in March, 1845, the plaintiffs in that suit took out execution on the first judgment, under which certain property of Bemiss was sold, which the plaintiff in the present suit, who is the wife of Bemiss, purchased on a credit of twelve months; for which she gave her twelve months’ bond, with the authority of her husband. The present suit has for its object the arrest of proceedings under an execution issued against Mrs. Bemiss on the twelve months’ bond. The claim of the plaintiff for relief is based upon the ground, that from the time the first judgment of the Supreme Court was rendered until the second judgment against Bemiss was rendered against him in 1847, there was no judgment against him, and that she consequently has no title whatever to the property she bought at sheriff’s sale. The statement of the case shows the fact to be otherwise. There was a valid judgment against Bemiss when the execution was issued, and when the plaintiff purchased under it. What effect the second judgment had upon the first, as it was rendered long after the plaintiff’s purchase, it is not necessary to enquire. It can have no effect on the proceedings under the first had previous to its rendition. The court below erred in making the plaintiff’s injunction perpetual.

The judgment of the district court is therefore reversed, and judgment rendered for the defendants, with costs in both courts.


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    J. A. Patterson v. R. Spaulding et al.
    Where property is seized hy the sheriff under one writ, if the sheriff receive a second writ, the first levy is sufficient for both, and the receipt of the second is a constructive levy. If the party suing out the second writ be sued for damages for a wrongful seizure, only such damages can he recovered as were sustained from the detention of the property under the second writ, after it was released from the first seizure.
    APPEAL from the District Court of West Feliciana, Stirling. J.

      J. A, Patterson, in propria persona.

      U. B. Phillips, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action for damages resulting from the wrongful issuing of a writ of sequestration, on the part of Spaulding against a crop of cotton belonging to the plaintiff. Phillips was the surety on the bond, by the amount of which his responsibility to the plaintiff is of course limited. The demand against the principal in the present suit exceeds that amount. The judgment of the district court was against the defendants in solido for $370 32 with interest; the latter have appealed.

The appellee, in his answer on the appeal, has asked that the judgment be changed so that he recover the whole amount of the sequestration bond against both defendants, with an additional sum against Spaulding.

On the 19th of November. 1846, Spaulding instituted a suit against Doherty for the sum of $299 90, in which he claimed a privilege on the crop of Doherty’s plantation; the debt being for supplies furnished. Patterson, the plaintiff, had bought the plantation at sheriff’s sale on the 6th of June previous, and was in possession of it. Under the writ of sequestration in Spaulding’s suit, the cotton made on the plantation was seized by the sheriff, who retained possession of it until the suit was divided in July, 1848. By the judgment, Spaulding recovered his debt against Doherty ■; but the suit was dismissed as to Patterson, the present plaintiff, he having been made a party defendant, and contesting the privilege claimed by Doherty on the crop.

The condition of the bond is, that if the said Spaulding shall prosecute the said sequestration with effect, or shall pay and satisfy all such damages and costs as the said Doherty and the said Patterson shall sustain, by the wrongful suing out of the same, then the obligation to be void; otherwise to remain in full force, &c.

The crop of cotton, forthe seizure and detention of which damages are claimed in this suit, had been previously seized under a writ of sequestration issued at the instance of J. B. Byrne- Sf Co., but had been bonded by the present plaintiff, Patterson. It was accordingly restored to the possession of Patterson, he giving bond to deliver it to the sheriff when, called upon so to do. This took place on the 19th of October, 1846. In December following, the plaintiffs in that suit, Byrne Sf Co., refusing to try their case, Patterson applied to the court for leave to surrender the cotton in discharge of his bond, which was granted, and the cotton was delivered to the sheriff and the bond of Patterson ordered to be can-celled. It was retained by the sheriff until it was again bonded by Patterson, on the 24th of August, 1848, after the judgment was rendered in that suit. That judgment gave the plaintiffs Byrne Sf Co., a privilege on the crop for $85 44 with interest, and was rendered on the 5th July, 1848; the same day on which the judgment was rendered in Spaulding’s case.

Thus, by the act of the plaintiff, the cotton was placed in the custody of the sheriff under the original seizure in Byrne Sf Co.’s suit, and was so retained by the sheriff until after the termination of that suit.

The writ of sequestration in Spaulding’s case, for the issuing of which damages are claimed, was levied on the 19th of November, 1846, after the cotton was bonded by Patterson, .and before its return under the order of the court to the sheriff. We infer, from the control Patterson had of the cotton, that it was not removed from the plantation, but was in his possession under the seizure made by the sheriff as the bailee of that officer.

The damages claimed by the plaintiff in this action, and which he has recovered in the district court, result from the depreciation in the price or value of cotton from the time of the seizure in November, 1846, until July, 1848, when the seizure of Spaulding was removed by the decision of the court against him. Conceding that he would be entitled to recover them had the cotton been retained by the sheriff under Spaulding’s writ alone, the present case is materially different. The cotton was, by the act of the plaintiff himself, delivered up to the sheriff to be held by him under process, which took precedence of that of which he now complains. In Spaulding’s case, the present plaintiff urged as one of the grounds on which the writ of sequestration ought to be set aside, that the cotton was then held by a writ of sequestration at the suit of Byrne Sf Co. This appeal's in a motion made by him to that effect in June, 1847. The seizure under Spaulding’s process alone, only lasted about a month or two, until the delivei'y of the cotton to the sheriff by the plaintiff on the cancelling of his bond ; and there is no evidence of fall in the price of cotton during that time, for which it appeal's to us the defendants would be responsible to the plaintiffs. As to the time during which the cotton was held under the surrender of the cotton by the plaintiff on the previous seizure of Byrne Sf Co., and the writ of sequestration by Spaulding, the question of their responsibility rests upon principles entirely different.

We hnderstand the law to be, that when property is seized under one writ, if the sheriff receive a second, the first levy is sufficient for both writs, and that the receipt of the second is a constructive levy. If the first writ is superseded, the property may be held under the second. Cresson v. Stout, 17 John. R. 116. Van Winkle v. Udull, 1 Hill R. 559. Gwinne on Sheriffs, 213.

What Patterson 's right to claim damages from the defendants would have been had the cotton remained under the first sequestration, and been levied upon after-wards under Spaulding’s writ, is not before us. The voluntary surrender of the cotton by the plaintiff to .the sheriff, to be held by him under the previous seizure under Byrne Co.’s writ, rendered the second seizure merely constructive, and the writ merely authorised the retention of the property which was held by the seizure which the plaintiff himself revived, in the event of the latter being superseded.

The plaintiff himself has created a state of things which prevents his recovery of any thing but nominal damages from the defendants for the acts of the sheriff under the writ of sequestration. As these damages would be less thau the constitutional amount for which civil actions can be maintained in the district court, and as the plaintiff had no reasonable ground to believe that any thing but nominal damages could be recovered, we do not think he is entitled to a decree in his favor in this court.

The judgment of the district court is therefore reversed; and the plaintiff’s petition dismissed, with costs in both courts.


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    Eliza J. Erwin v. James McCalop et al.
    Where a married woman is sought to be mad; liable for a debt which she alleges was the debt of her husband, to render her liable, it must be shown affirmatively that the debt was for her benefit. Her being separated of property does not throw the burthen of proof on her, nor is she estopped from setting up the defence by her acknowledgment of the indebtedness in an act of mortgage.
    APPEAL from the District Court of East Baton Rouge, Burle, J.

      J. M. Brunot, for plaintiff.

      George S. Lacey, for defendants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff has enjoined an order of seizure and sale, sued out by the defendant, McCalop, upon a mortgage given by her to secure the payment of her promissory note in his favor, on the ground that the debt was originally her husband’s, and thbt she is not responsible for it.

The answer is, that the debt inured to the benefit of the plaintiff, and that if it was a debt of her husband, it was contracted under circumstances which render her liable for it. The district court perpetuated the injunction; and the defendant appealed.

It is not necessary to notice the bill of exceptions taken by the defendant’s counsel; for, if all the facts which he offered to prove were admitted, they would not show that this particular debt inured to the benefit of the plaintiff. This fact must be shown affirmatively by the defendant, in order to make the debt binding upon her; her being separated of property does not throw the burthen of proof on her; nor is she estopped from setting up this defence by her acknowledgment of indebtedness, in the act of mortgage. Drangent v. Prudhomme, 3 L. R. 74. Pascal v. Sovinet, 1 Ann. 48, and cases there cited.

The judgment is affirmed, with costs.


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    Madeline Lobelle, Tutrix, v. Adam Lobelle et al.
    Unless all tbe parties interested be cited or appear in the appellate court, the appeal will be dismissed.
    APPEAL from the District Court of Livingston, Stirling, J.

      J. W. Halsey, for appellant.

      Watterston, for appellees.
   The judgment of the court was pronounced by

Eustis, C. J.

A motion has been made to dismiss this appeal on several grounds; one of which is, that one of the parties, defendant, who is a parly in interest, has not been cited, or appeared in the appeal. Without this party before us, no judgment can be rendered by this court. The motion must therefore prevail.

The appeal is therefore dismissed, with costs.


author: Preston, J.

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    Micajah Courtney v. Caroline M. Hunt.
    The surety on a bond for the release of property provisionally seized, is a good witness for the defendant after the substitution of another surety who had been accepted.
    In a suit for rent, where no express contract is alleged, the defendant may, under the general issue, introduce evidence to show that the premises were to be occupied without the payment of rent.
    Where the sheriff makes a seizure of a house, under an order of seizure and sale or fieri facias, he may lease the premises, and collect the rent. C. P. 658.
    APPEAL from the District Court of East Feliciana. Stirling, J.

      T. Q. and P. H. Morgan, for plaintiff,
    contended: The attention of tire court is first called to a bill of exceptions taken by plaintiff, to the reception of testimony-offered on behalf of the defendants For the reasons in said bill stated, the testimony should have been rejected.
    It will be perceived, by referring to the pleadings, that the authority of the wife to contract is not denied by the husband. From the tenor of the parol evidence, it may fairly be asserted that the husband did not provide necessaries for his wife and family; and the authorisation of the husband is presumed to contracts made by the wife for necessaries for herself and family when he does not himself provide them. L. C. 1779. The burthen of proof is on him to show that he did provide.
    The testimony also shows that the husband did not reside in Louisiana, and that the wife acted in fact, as is alleged, as a feme sole, managing and conducting her business without the intervention of the husband. Notwithstanding the stringent provisions of our laws in reference to the capacity of a wife to contract, equity and justice would seem to require, that when a man suffers his wife to depart from the matrimonial domicil and reside in another State, without making any attempt for years to compel her to return to that domicil, suffers her, without warning the public, to act as a feme sole; keep an inn; contract debts; acquire property and provide for her family; that she, or at least the property she so acquires, should be responsible for the rent of houses, absolutely necessary for her support as well as that of her children. But if it is considered that the husband must be viewed as the lessee, then the moveables on the premises were liable for the rent, if any was due.

      Muse and Merrick, for defendant,
    contended: 1. That by the probate sale of the property said Micajah Courtney acquired the naked property as it then stood; that the previous rents and revenues, if any, belonged to the previous proprietor. They could not be considered as sold unless they had been expressly mentioned and decreed to be sold, and were advertised. 2. That the sheriff’s sale did not convey title to said pretended rents, because they had never been seized or sold; and because, if they had been seized, said seizure being illegal, and upon an act under private signature, could not prejudice third parties or convey any rights as against them. 3. That said Andrews, as a creditor in virtue of his seizure, if he acquired any right to the rents and revenues under the general description of the sheriff, waived the same by his agreement with Mrs. Hunt, by which she was to take charge of the place, and keep it in repair, without rent; that if he acquired no such right, then, nothing being owned by him, he sold nothing to Micajah Courtney, in the so called act of subrogation, under which plaintiff claims, not only rent, but a privilege. See Fisk v. Moore, 11 R. R. 279. 4. That Mrs. Hunt, being a married woman, could not, without the authorisation of her husband, or the judge, bind herself for this rent. Broughton v. King, 2d Ann. 569; Zacharice Droit Civil, 2 vol. p. 134, sec. 472. Nos. 1, 86. 5. That the suit could not be prosecuted against her husband by the appointment of a curator adhoc, nor against her without the authorisation of the judge. C.P.118.
    For the foregoing reasons it is contended, that the judgment of the court below, which had been executed before the divolutive appeal was taken, by their delivery of the sequestered effects, ought to be affirmed.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff alleges, that the defendant, Caroline M. Hunt, occupied a house and outbuildings on three lots of ground in the town of Clinton, as a tenant, for the purpose of keeping a house of entertainment, from the 1st of January, 1843, until the commencement of this suit on the 12th of June, 1845; that the rent was well worth the sum of thirty dollars a month; that the property was during the time in the possession of the sheriff, by virtue of an order of seizure and sale in the suit of T. L. Andrews against Ezra Courtney and others; that he became the purchaser of the property on the 1st of June, 1845; and that he was subrogated to all the rights, liens and revenues of the property from the first seizure of the same by an agreement with Thomas L. Andrews, dated the 30th of May, 1845.

The defendant filed a general denial, and put the plaintiff on the strict proof of his claim for rent.

By a public act of sale, dated the 13th of January, 1840, Thomas L. Andrews sold the property, for the occupancy of which rent is claimed, to Ezra Courtney and John B. Taylor, and the latter afterwards sold all his interest in the same to Ezra Courtney, who thus became the sole owner of the property.

In September, 1842, Andrews caused an order of seizure and sale to be issued against the property for the price which Ezra Courtney had failed to pay. The sheriff seized the property, and also “ all the rights and credits in the hands of Mrs. C. M. Hunt, of whatsoever name or nature they may consist.”

Ezra Courtney enjoined the sale. The injunction was dissolved, with damages against him and his security in the injunction bond. They appealed to the Supreme Court. The security on the injunction bond prosecuted the appeal; and the judgment of the district court was reversed at the March term of the Supreme Court in 1845, on the ground, that the order of seizure and sale was not authorised by law.

In the meantime, on the 6th of February, 1845, Courtney agreed with Andrews to abandon his appeal; and that the order of seizure and sale should be executed. The consideration was, that Andrews should remit more than half his claim ; and for the balance Courtney agreed to give' him the three notes of himself and son, Micajah Courtney, for $1000 éach, payable respectively in 1846, 1847 and 1848.

During the transactions between them, the wife of Ezra Courtney had died. He had administered upon her estate ; and it was agreed, that her interest in the property should be sold by the court of probates at the same time that Ezra Courtney’s interest was sold by the sheriff. In pursuance of these agreements between the plaintiff and defendant, the sheriff sold the property on the 7th of June, 1845, to Micajah Courtney for ten dollars, on twelve month’s credit. On the same day the probate judge sold the interest of Mrs. Courtney in the property to the plaintiff for the like sum of ten dollars.

If rents were due by Mrs. Hunt, were they transferred to the plaintiff by these sales? We do not think so. They are not described, or mentioned in the sheriff’s return. None of the rent now sued for was due when the seizure, under which the sale was made, took place. Indeed the sale was made on twelve month’s credit, in pursuance of an offer for cash, with benefit of appraisement made on the 8th of November, 1342, before any of the rent now claimed had accrued.

The probate judge described in his adjudication the real property alone, and not the' rent due by Mrs. Hunt. So that the plaintiff-did not acquire title to the rent for which he sues by these judicial sales. But in pursuance of the agreement of the 6th of February, 1845, already mentioned, Micajah and Ezra Courtney on the 30th of May, 1845, gave to the agent of Andrews their three notes, each for $1000, payable respectively on the 1st of March, 1846, 1847 and 1848 ; and he, in consideration thereof, sold to Micajah Courtney all his right to the proceeds or advantages arising from his order of seizure and sale; and his claim for any rents or revenues arising from the property described in the “order of seizure and sale.” If the plaintiff is entitled to sue for the rent, his right arises from this transfer alone. But the rent sued for did not belong to Andrews, who makes the transfer. It belonged to Ezra Courtney, who was the sole owner of the premises during the time the rent' accrued.

We have thus stated what is clearly the legal effeet of the agreement. But as Ezra Courtney joined in the consideration for which Andrews transferred to Micajah Courtney rents not due to himself, but to Ezra Courtney, we might conclude that in equity he was entitled to Ezra Courtney’s rights. If we did so conclude, the evidence leaves it so doubtful for what amount of rent Mrs. Hunt was liable, or whether she was liable for any, that we should not feel authorised to reverse the judgment of the district court.

It was objected on the trial of the cause, that W. H. Oreen could not be examined as a witness for the defendant, because he was her surety on a bond given to release the provisional seizure of her furniture and effects on the premises. He was properly admitted as a witness, because, long before he was examined, he was exonerated as security, by the substitution of other security, that was accepted in his place.

It was also objected, that the defendant could not offer, under the general issue, evidence, that she occupied the premises without liability to pay rent. The plaintiff did not allege an express agreement to pay rent, but an implied obligation, arising from the occupancy of valuable premises. The defendant offered the evidence to rebut the presumption of such an obligation; for which purpose it was certainly admissible.

On the merits we think the evidence preponderates in favor of the defendant. Ezra Courtney offered her as a witness, in 1844, on the trial of his injunction suit, to prove that the rent of the premises was worth very little, and even that he told her, that if she repaired them it must be at her own expense. He did not therefore expect the payment of rent.

The testimony of Mr. Winter Turner and Green induces us to think that Andrews did not expeet to recover rent from Mrs. Hunt during the time the property was under seizure. They, with others, satisfy us that the repairs she put on the premises were nearly worth the rent, and that .the property while under seizure was better with than without an occupant.

The sheriff might have leased the premises and collected the rent, in pursuance of article 658 of the Code of Practice, as in case of a writ of fieri facias. As neither party required him to do so, and as he did not attempt it during the two years and a half that the property was in his possession under seizure, the district judge might fairly conclude, that both parties were willing, and the sheriff also, that Mrs. Hunt should be keeper of the seized premises, during the long litigation respecting them, without paying rent for their occupancy; and that the defendant believed she was occupying them for the care she bestowed upon them, and the repairs she made.

We are therefore of opinion, that the judgment of the district court should be affirmed, with costs.