author: Oole, J.

text:
    John E. Smith, Tutor, et al. v. Mrs. M. Nettles, Administratrix, et al.
    The knowledge of the existence of a mortgage communicated to .the purchaser in the act of sale, will bind him without proof of the mortgage being recorded.
    And when such mortgage contained the pact de non alienando, the purchaser and third possessor is not entitled to notice of the proceedings to enforce the mortgage.
    APPEAL from the District Court of St. Helena, Watterson, J.

      M. M. Smith and D. C. Hardy, for plaintiffs and appellants.

      Angus Bowie and S. E. Hunter, for defendants.
   Oole, J.

This appeal is taken by plaintiffs from a judgment rendered against thorn on the following state of facts.

William Travis bought at the succession sale of John Bates, on the 30th of November, 1842, a tract of land, for the purchase price of which he paid five per cent, cash, and gave his notes for the remainder, payable in one, two and three years.

To secure the payment of these notes, said Travis executed a mortgage before Henry Leonard, parish Judge, on the 30th of November, 1842, in accordance with the terms of sale, in which instrument of mortgage he bound himself “ not to sell or deteriorate said land to the prejudice of said succession”; this act of mortgage was recorded in the book of the register of mortgages of said Leonard, parish Judge of St. Helena, on the 30th November, 1842.

On the 8th of March, 1843, Travis executed an act by which he agreed to trasfer to Anderson Carle one-half of the tract of land, for the consideration that Carle should pay to the succession of John Bates, or to the legal holder of the notes given by Travis for the tract of land to said estate, one-half the amount of said notes as they became due, and “ to save harmless the said Travis from all the liabilities under which he may at this time rest on account of one-half of said purchase price due said estate.”

Zachariah Nettles became the owner and holder of one of the notes given by Travis for the tract of land, and sometime after maturity he brought suit on the same against Travis, praying1 for judgment recognizing the mortgage given to secure said note. Upon this demand, judgment was rendered against Travis as prayed for; execution issued and the land was seized, sold and bought by Nettles, who afterwards sold it to Hillery Edwards. Subsequently, Carle being dead, his heirs, the plaintiffs, instituted this suit to annul the Sheriff’s sale in the suit of Nettles v. Travis.

The reasons alleged in the petition why the sale should be annulled, are:

1. That the mortgage securing the notes given to Bates’ succession, was not of record at the time of the purchase of their deceased father, Anderson Carle from Travis.

2. That petitioners, minor children of said Carle, were never made parties in any way to the suit of Zacharie Nettles against Travis.

3. That to defraud petitioners of their right, Travis confessed judgment without notifying the plaintiffs that he was not the owner of one-half of said land, and subsequently issued an execution on the judgment, and at the sale bought the land.

We shall consider these objections in their order :

I. The act of sale from Travis to Carle shows that the latter was aware of the origin of the title of Travis, and of the existence of the notes given by Travis as the price of the property; Carle was aware that these notes were secured by the vendor’s mortgage; if then he were in existence, he could claim no advantage on the ground that the mortgage in favor of Bates’ estate was not of record at the time of his purchase from Travis; for the knowledge of the mortgage of said estate communicated to him in the sale to which he was a party was as binding on him as if it had been recorded. Petitioners, who are his children, can claim no greater rights than he possessed. It does appear, however, from the certificate of the parish Judge, that the mortgage in favor of the estate was recorded previous to the purchase by plaintiffs’ ancestor, although they have endeavored to show that it could not thus have been recorded.
II. There was no necessity to make the minor children-ot-GárZe, the present plaintiffs, parties to the suit of Zachariah Nettles against Travis; the mortgage from Travis to Bates’ succession contained the following clause: “ and does hereby bind himself not to sell or deteriorate said land to the prejudice of said succession.” This mortgage, therefore, contained the pact de non alienando; and the effect of it was, that although half of the land had been sold to Carle, nevertheless, in contemplation of law, the whole of the land remained in the possession of Travis, the original debtor; and Carle, the purchaser, is presumed to have known the titles and encumbrances under which he held. Vide 8 An. 58.

It is objected by appellants that the words on which the appellees claim, that the pact de non alienando rest, are not for the benefit of any but the succession of Bates or his heirs, and if third parties step in and pay the debt, they must show something clearly entitling them to make use of that reservation in the mortgage.” In answer to this objection, we would observe that the transfer of the mortgage notes by the estate of Bates, carried with it the accessory obligations and privileges to which they were subject by the act of mortgage, and any third party getting them, obtained also the same privileges that the succession enjoyed, for a party has the right to transfer to a third person any prerogatives he may possess, unless prohibited by law or by the manifest restrictions of the act conferring upon him such prerogatives. Vide Adam Betty, Syndic of Marchais, v. Rose Clement, Widow Tète, 12 An. 82.

The sale from Travis to Carle also expressly recognized the force of this pact; for Carle bound himself therein to pay one-half the notes as they fell due, and save Travis harmless therefrom.

Carle having purchased property subject to the pact de non alienando, the mortgage being duly recorded, or at least he being cognizant of the act and binding himself to save his vendor Travis harmless from the mortgage given by him to Bates’ estate, cannot claim to be in a better condition than his vendor, and he is not entitled to notice. 15 La. 267; 9 R. 69.

III. The evidence does not sustain the allegation of fraud.

The arrangement, alleged to have existed between Travis and Zacharie Nettles, by which the former was to' confess judgment, and the latter was to buy it in, and whenever Travis should pay Nettles the amount of the debt, interest and costs for which the land was sold, then Nettles was to retransfer the land to Travis, does not necessarily establish fraud and collusion, for Nettles may have agreed to this to benefit Travis and as a favor to him. If it was done with a fraudulent intent, it is hardly probable that Iravis should, subsequently to the death of Nettles, have instituted a suit against the estate of Nettles for this land, and have alleged this agreement as a cause why the land should be retransferred to him.

This suit was afterwards, on motion of plaintiffs’ counsel, dismissed at his costs.

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

Merrick, O. J., took no part in this case.


source: Caselaw Access Project

author: Merbick, 0. J.

license: Public Domain

text:
    State v. James Keogh.
    It is a general rule that in an information or indictment for a statutory offence, it is sufficient to follow the words of the statute. *
    The test whether the plea of autrefois acquit is a sufficient bar in any particular case, is whether the evidence necessary to support the second indictment, would have been sufficient to have procured a legal conviction upon the first.
    APPEAL from the First District Court of New Orleans, Hunt, J.

      M. A. Foute, District Attorney, for the State.

      A. P. Field, for the defendant and appellee.
   Merbick, 0. J.

The offence charged in the information is in these words, viz : “ That one James Keogh, late of the parish of Orleans, on the eighteenth day of December, in the year of our Lord one thousand eight hundred and fifty-five, with force and arms, in the parish of Orleans aforesaid, within the jurisdiction of the First District Court of New Orleans, with a certain dangerous weapon, to wit, a loaded cane, did inflict severe wounds upon one Michael O’ Conner, less than mayhem, contrary to the form of the statute of the State of Louisiana in such case made and provided, and against the peace and dignity of the same.”

The information was framed under the 11th section of the Act of 1855, the section being in these words,” viz :

Sec. 11. “ Whoever shall with a dangerous weapon, or with intent to kill, inflict a wound less than mayhem upon another person, shall on conviction be imprisoned not exceeding two years, nor less than six months, with or without hard labor, and fined not exceeding one thousand dollars.”

The accused having been convicted, prosecutes his appeal to this court, and relies for a reversal of the judgment on these grounds, viz:

That the information is defective in not describing the wound inflicted, so as to show on the record the character of the wound; and, that it charges the offence in general terms not warranted by the nature of the offence.

The information it will be observed, pursues the language of the statute, and it is a general rule, that in a statutory offence it is sufficient to follow the words of the statute.

It is, therefore, incumbent upon the defendant, to show some reason why the of-fence should be charged in a different manner under this statute.

It is said the wound should be described with greater particularity. If the wound be inflicted with a dangerous weapon, the penalty of the statute is incurred, whether the wound be severe or slight. The object of the law is to prevent the use of dangerous weapons. If the wound be inflicted with an instrument (not technically a dangerous weapon), but with an intent to kill, the criminal intent aggravates the character of the injury and the penalty of the statute is incurred without reference to the depth of the wound or the part of the body upon which it is inflicted. It is sufficient that it is a wound less than mayhem, and was inflicted with a dangerous weapon, or with an intent to kill. See 1 B. & P. 186.

But it is said if the offence is charged in this general manner, it will not be a bar to a subsequent indictment for an assault or an assault with a dangerous weapon upon the same facts.

The test whether the plea of autrefois acquit is a sufficient bar in any particular case, is whether the evidence necessary to support the second indictment, would have been sufficient to have procured a legal conviction upon the first. Archbold, fourth ed. p. 82. 1 Bishop C. Law, No. 681.

The testimony which supported this indictment would have been sufficient, had the indictment been for a simple assault or assault and battery generally, or an assault with a dangerous weapon, and according to the rule an acquittal on one could be pleaded in bar of the other, whether the 'second indictment was for the more or less aggravated offence. See Act, 1855, p. 113, sec. 9. State v. Munce, 12 An. 625. 6 An. 289.

It is not necessary in an indictment for murder to set out the manner in which, or the means by which the death of the deceased was caused, no more ought it to be required to describe the nature of the wound inflicted under a statute creating an offence so much inferior in its' grade. Acts 1855, p. 112, sec. 2.

Judgment affirmed.


author: 'Merrick, C. J.

text:
    Succession of William L. Swayze, deceased—Opposition to homologation of account of Executrix.
    The testator gave to his wife the “ absolute control over the” increase of his estate, with power to dispose of it as she pleased until his (the testator’s) son arrived at the age of majority. Held: That the word “ increase” was sufficiently comprehensive to embrace the revenues and income of the property, and that the intention of the testator was to give to his wife the usufruct for the period mentioned.
    Art. 1745 C. C. which provides that in the event of a second marriage, the husband or wife having children by the first marriage, can only give to the spouse of the second marriage the least child’s portion as a usufruct, and not to exceed a fifth part of the decease’s estate, remains unrepealed.
    APPEAL from the District Court of West Feliciana, Ratliff, J.

      U. B. if E. Phillips, for tlie Executrix.

      Brewer if Collins, for opponents.
   'Merrick, C. J.

The appeal in this case is taken by all parties: the executrix and heirs.

The principal questions arise under the will of the deceased, who died in Louisville, in August, 1855. The dispositions of the will are as follows, viz:

“I, William L. Swayze, of the State of Louisiana and parish of West Feliciana, but at present in the city of Louisville, in the State of Kentucky, do make this my last will and testament:
“ 1st. I appoint my wife, Maria Jefferson Swayze, sole executrix of my estate, and tutrix and guardian to my children, William, L., Julia Ann, Lottie and Charles L. Swayze.
2d. I wish my whole estate kept together undivided until my youngest child, Charles, arrives of age, to be managed and controlled in the mean time by my wife, and then to be equally divided between my said children and Stephen Court-land Swayze, and Jane Hoffman, wife of Charles Hoffman, who are also my children, share and share alike. ' ■ ",
“ 3d. I give to my wife absolute control over the increase of my estate, with power to dispose of it as she pleases, until my son Charles arrives of age.
4th. Should there not be enough community to pay my debts, I empower my executrix to sell such portions of my estate as she may deem proper, to pay all my debts.
“ 5th. I appoint Charles Hoffman under-tutor to my minor children.
In testimony whereof, I have hereunto signed my name and affixed my seal,” &c. ■ ■

The will was admitted to probate at Louisville, and afterwards in the parish of West Feliciana, where letters testamentary were granted to the widow. In the first account of her administration, she charged and was allowed $899 56 commissions as executrix.

The present controversy arises upon an opposition to her second account, which she was called upon to render at the instance of the heirs.

The judgment appealed from allowed Mrs. Swayze, upon giving security, one-third of the estate of W. L. Swayze, deceased, in usufruct, until the 15th of July, 1865, that being the time when Charles Swayze would obtain the age of majority.

The counsel for the executrix contends, that the forced heirs having alleged that the bequest to her exceeded the disposable portion they are bound under the provisions of Article 1486 of the Civil Code, either to execute the disposition, or to abandon to the donee the ownership of such portion of the estate as the donor had a right to dispose of.

On the other hand, the counsel for the opponent contends, that the disposition is not an usufruct, but must be regarded as a disposition for the purpose of managing and keeping together the property of the estate; that if an usufruct were intended, then it was remunerative in its character, and fails because the executrix cannot manage the estate or act as tutrix to the. children of a former marriage; and, moreover, the condition upon which the legacy was given, viz, the keeping together of the property in kind and undivided, has also failed by the acts of the executrix in provoking the sale of the property; and finally, that she has abandoned the legacy, by claiming her commissions.

We think with plaintiffs’ counsel, that the executrix could not be appointed tutrix to the children of the former marriage, being legally incapacitated by Art. 322 of the Civil Code. Neither could the property be kept in a state of indivisión longer than five years from the testator’s death. C. C. 1223.

If the executrix has acquired anything, it is in virtue of the third clause of the will, by which testator gives to his wife absolute control over the increase of .his estate, with power to dispose of it as she pleases, until his son Charles arrives of age. This provision of the will is not very clear; but we think the word “ increase” is sufficiently comprehensive to embrace the revenues and income of the property, and of this, he gives his wife the absolute control, with power to dispose of it as she pleases, until his son Charles arrives at the age of majority. We think the testator intended to bequeath something by the foregoing disposition. That something cannot, by the terms used, be less than the usufruct for the period mentioned; and we ought, if possible, to construe the will so as to give it some effect. It appears to be conceded by the counsel for the opponent, that if the bequest be an usufruct, it should be limited, as the District Judge has done, to an usufruct of one-third of the estate. Since this case has been under advisement, we have decided that Art. 1745 C. 0. is still unrepealed, and that in the event of a second marriage, the legacy from the husband to the second wife, cannot exceed the usufruct of the least child’s portion and, in no case, can it be more than the usufruct of one-fifth of the estate. There being' minors represented in this case, who cannot recover their rights except with the advice of a family meeting, we feel constrained to allow them the benefit of this interpretation which is within the allegation, although not expressly insisted upon to this extent, by their counsel in the argument.

The claiming of commissions by the executrix, which were subsequently relinquished, did not operate as a forfeiture of the legacy.

The court did not err in refusing to charge the executrix with the maintenance of her child by a previous marriage. The circumstances do not render it probable that any such charge was intended to be made by the deceased.

We do not think it is necessary to remand this case in order to call a family meeting' to deliberate, whether it would be most to the interest of the heirs to abandon to the legatee the usufruct of one-seventh of the property, during the lifetime of the legatee, or to allow her the usufruct of the entire estate until the 15th of July of the year 1865. It is manifestly the interest of the heirs to make such abandonment of the usufruct of one-seventh of the estate.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be so amended, as to give to the said Maria J. C. Swayze, upon her giving security according to law, the absolute usufruct of one-seventh of the estate of said testator, as shown by statement A, made part of the decree of the lower court, viz, the usufruct of $1,720 13 3-7 for life, instead of the usufruct of $4,013 65, until the 15th day of July, 1865 ; and that the residue of said sum of $12,040 94, viz, $10,380 81, be equally divided among said heirs, and that the judgment of the lower court, so amended, be affirmed; said Maria J. C. Swayze paying the costs of the appeal.


author: Vookhies, J.

text:
    Louisiana Mutual Insurance Co. v. New Orleans Insurance Co.
    In regard to re-insurance, the custom among underwriters, in the city of New Orleans, is to divide the risk and not to take the whole of it; and when the application is silent, this is always understood.
    APPEAL from the Fourth District Court of Now Orleans, Reynolds, J.

      C. Roselius and Race §* Foster, for plaintiffs.

      Benjamin, Bradford fy Finney, for defendants and appellants.
   Vookhies, J.

This is a suit on a contract of re-insurance. The petition alleges that on the 10th of January, 1855, the plaintiff took a fire risk for the term of three months, to the amount of $10,000, on the sugar and molasses on the plantation of Messrs. Keary fy Brothers, in the parish of Avoyelles ; that on the 19th of January, 1855, application was made to the defendant, who accepted the same, to re-insure, for the benefit of the plaintiff and to the same amount, said sugar and molasses, from the 17th of that month to the 10th of April following, on the payment of the usual premium of If per cent.; that on the 18th of January, 1855, said sugar and molasses, which were more valuable than the amount for which the same were insured, were consumed and entirely destroyed by fire; that the indemnity thus stipulated was paid by the plaintiff to J. Y. Be Egana, the insured; and that by reason of the contract of re-insurance, the defendant is bound to the plaintiff for the payment or reimbursement thereof.

The action is resisted on the ground of misrepresentation. The answer avers that it is stated in the application, that the plaintiff had the buildings, meaning that they had insured the same, when in fact no such insurance had been effected, except on the sugar and molasses, and not on the buildings, until after their destruction. That this statement, which was. material’ and essential, induced the defendant to enter into the contract, which they would not otherwise have done, as not being in accordance with the common understanding and the settled course of dealing among insurers in the city of New Orleans,'in which re-insurance is not asked, nor granted, except in cases where the first insurer has taken a larger risk than he considers it expedient to underwrite, alone, and therefore desires to effect a partial re-insurance, in order to divide the risk, a condition implied and well understood in all applications for re-insurance, that is, that the first insurer retains a part of the risk, to the extent of one half, or more.

The application for the re-insurance is as follows :

“ Endorsement on open Eire Policy.”
“ To the Louisiana Mutual Insurance Company :

Please enter §10,000 on open policy, No. 12,998, against fire, made for Louisiana Mutual Insurance Company, for the term of, say from January l7tk noon of April 10, on sugar and molasses on plantation of Keary Brothers, known as Catalpa Grove, Parish Avoyelles.

“No. 12,998. Re-insurance, (We have buildings.)
“ Prem. 1| per cent. (Signed) H. P. Janvier, Sec’y.
“ New Orleans, January 19th, 1855.”

The sugar and molasses,'as well as the buildings, thus mentioned, were totally destroyed by a fire which occurred on the night of the 18th of January, 1855.

In regard to re-insurance, the proof appears to us to be conclusive, that the custom among underwriters in the city of New Orleans is to divide the risk and not to take the whole of it; that even where the application is silent, this is always understood.

The question is then reduced to this: is the misrepresentation in this case sufficient to give rise to the avoidance of the policy ?

Thedoctrine on this subject, as announced by Mr. Phillips, is, that “it is an implied condition of the contract of insurance, that it is free from misrepresentation or concealment, whether fraudulent or through mistake.” 1 Phillips’s Ins. 287. “ Every misrepresentation, says Mr. Arnould, is fatal to a contract which is made under such circumstances and in such a way as to gain the confidence of the other party and induce him to act, when otherwise he would not.” 1 Arnould on Ins. 515, \ 194. “ It is not necessary, says Mr. Buer, as the risk is sometimes expressed, that the facts represented should be material to the risks; that is, should affect or change the value of the risks in themselves considered. The materiality required is not absolute, but relative, and its test is the actual or probable influence of the facts represented on the mind of the insurer. Every fact is to be deemed material, which there is just reason to believe determined him to insure, or regulated his estimate of the premium.” 2 Duer on In. 680.

Prom the established custom, independently of any extrinsic evidence, the application in this case, it appears to us, must be construed as implying a joint risk, the one on the buildings by the plaintiff, and the other on the sugar and molasses by defendant, from the 17th of January, 1855, to the 10th April. There was no such risk on the part of the plaintiff. The representation that the plaintiff had the buildings, was certainly such as was intended to influence the mind of the defendant in taking the risk on the sugar and molasses ; and hence it was material, and therefore fatal to the contract. The slightest fraud, although it be only legal, is sufficient to defeat the insurance, inasmuch as it is a contract of a peculiar nature, entirely on speculation, requiring the utmost good faith in representations made by applicants.

It is, therefore, decreed, that the judgment of the court below be avoided and reversed, and that there be judgment in favor of the defendant, rejecting the plaintiff’s demand ; said plaintiff to pay the costs of both courts.


author: Spofford, J.

text:
    Delphine, f. w. c., v. Mrs. Guillet et als.
    Since the Act of the Legislature of March 6th, 1857, prohibiting the emancipation of slaves in this State, the right of a slave to be emancipate! by the will of hU master, can no longer be enforced.
    If the law should be changed, the remedy of the slave might be revived.
    APPEAL from the Second District Oourt of New Orleans, Morgan, J.

      L. Dmigneaud and T. W. Collens, for plaintiff.

      J. Bermudez and C. Guillot, for defendants and appellants.
   Spofford, J.

This case was formerly before us, and was remanded for a new trial. See 11 An. 424.

Upon the new trial there was again a verdict to the effect, that the plaintiff was “ entitled to her freedom as soon as practicable,” and a judgment was rendered upon the 18th February, 1857, decreeing that “ the defendants proceed without delay to emancipate the said plaintiff under the law of this State,” &c.

Thereupon a suspensive appeal was taken by the defendants.

The judgment was probably correct, at the date of its rendition. • But, at that time, there were lawful modes of enfranchising slaves, within this State. Since then the Act of March 6,1857, (p. 55,) entitled “ an Act to prohibit the emancipation of slaves,” has been passed, declaring that from and after the passage of that Act, no slave shall be emancipated in this State.”

. In our former opinion we declared that the plaintiff was not free, but had' acquired, under the will, a right to be emancipated so soon as she should show that it had become lawful to emancipate her. The laws respecting the manumission of slaves fluctuate with the legislative will. It is now impossible to affirm a decree ordering the-defendants to emancipate Delphine in this State, because the lawgiver has forbidden them to do so. If the law should be changed, her remedy might be revived.

It is, therefore, ordered and decreed, that the judgment of the District Oourt be avoided and reversed; and that the plaintiff’s petition be dismissed, as in case of nonsuit, she paying costs in the District Oourt, and the costs of this appeal.


author: Merrick O. J.

text:
    Albert G. Dickason v. John M. Bell, Syndic.
    A judgment obtained against the surety cannot be enforced if the principal has been released from the same debt by a judgment in his favor annulling the contract which gave rise to the obligation.
    APPEAL from the District Court of West Feliciana, Haralson, J., presiding.

      Brewer If Collins, for plaintiff.

      U. B. If E. Phillips, for defendant and appellant.
   Merrick O. J.

The defendant, John M. Bell, as syndic of his own creditors, on the eighteenth day of May, 1853, sold at public auction to Charles Richardson, a negro man for $1265 and a negro woman and child for $1325. The one-third of the price was paid in cash, and for the residue, Richardson gave his two promissory notes for $863 33$ each, payable in one and two years, with eight per cent, interest from date. The notes were subscribed by Richardson and the plaintiff as his surety, who bound himself in solido with him. On the 6th of April, 1854, Richardson brought an action of redhibition to rescind the sale of the negro man, to recover the instalment of the price paid in cash, and interest, and to obtain the cancellation of the notes. Whilst this action was pending against the syndic, the two notes matured, and on the 6th day of March, 1855, he instituted suit thereon against both Richardson and the plaintiff. Richardson filed an answer on the 24th day of March, wherein he set forth the pendency of the action of redhibition, and alleged the same facts contained in his petition in that suit. Diclcason not appearing, judgment by default was rendered against him, which at the June term following, was made final. The same day the attorneys for the syndic entered into the following agreement:

"John M. Bell, Syndicv. Charles Richardson et al.
793 Seventh District Court, West Feliciana.

I agree not to issue execution on the judgment rendered in the above styled suit until the decision of the suit of Charles Richardson v. John M. Bell, syndic, No. 644, by the Supreme Court, if a suspensive appeal is taken.

June 2,1855.
(Signed) U. B. & E. Phillips,
Cyrus Ratliff, for defendant.”

The defendant, Diclcason, obtained an order for a suspensive appeal in his case, but it does not appear that he gave bond. He did not file the appeal in the Supreme Court. In the mean time, all further action appears to have been suspended in the case, the parties apparently awaiting the decision in the case of Richardson against Bell in the redhibitory action. In this latter case a trial was had at the May term, 1856, which resulted in favor,of Richardson. The judgment awarded him a rescission of the sale, a return of $421 66$ and interest, the instalment paid in cash, and decreed that the two notes given by him for the credit portion of the purchase price be cancelled and annulled.

The syndic appealed and the judgment of the lower court was affirmed by us in April, 1857,12 An. 296. Richardson having paid the syndic $300 on the 18th of March, 1856, appears to have had a settlement with him, in which the judgment for the price of the negro man was deducted from the notes and the sum of $269 11 was received on the 18th day of May, 1857, as the balance.

The syndic by his counsel, and. the defendant, Richardson, then appear to have waived the recusation of the Judge as to the demand against Richardson, in the case against Richardson and Diclcason. The case was therefore taken up and a judgment therein rendered on the 23d day of May, 1857, wherein it was recited that “ a portion of the debt had been extinguished by a decree of the Supreme Court, and that the balance, with the exception of the costs, had been paid by defendant, Charles Richardson,” and it was therefore adjudged and decreed that there be judgment against the said defendant, Charles Richardson, for costs of suit and judgment in his favor upon the notes sued on.”

An execution having been issued against Diclcason on the 5th day of May, but which does not appear to have been immediately delivered to the sheriff, the attorneys of the syndic credit thereon the payment of the 18th of May, 1857, for $269 11 of that date, as the clerk had done that of 18th March, 1856, and an unavailing demand having been made on Diclcason on the 25th, a seizure of his property was made by the sheriff on the 30th of the same month.

Diclcason successfully enjoined the execution and the syndic has thought it his duty to prosecute this appeal.

The appellee contends that the two judgments in Richardson’s favor extinguishing the debt as to him, the principal creditor, has extinguished it as to the surety. The appellant replies, that the grounds of the judgment in favor of Richardson existed at the date of the institution of the action upon the notes, and they were available to Diclcason; that inasmuch as Diclcason did not see fit to plead the same in defence, that he is now precluded from setting them up, and the judgment against him being unappealed from has the force and effect of the thing adjudged.

The position taken by the counsel for the appellant, though generally true, is not of universal application, as will be apparent by a single example. A and B bind themselves in solido for a debt of the former to O. 0 obtains judgment against B for the debt. Subsequently he sues A, who was the holder of a debt equally liquidated against 0 and which he had acquired before the suit was instituted against B. He pleads this debt in compensation against O’s demand against him, and judgment is rendered in his favor. Here it is manifest that the plea in compensation and judgment in favor of A must avail B although the defence existed at the time the suit was instituted against B ; compensation contains in itself an exception and an action. C. P. 372, 373. 4 An. 140, Riddell v. Gormley.

When Richardson commenced the action of redhibition, he had the choice of two modes of proceeding. Either to wait until the maturity of the notes, and set up the redhibitory vices of the thing sold as a defence to the notes, or to assume, as he did do, the position of plaintiff. Had he chosen to stand on the defensive, his action would have been prescribed and he would have lost the payment which he had made in cash. He could have used only his exception as a shield. He therefore chose the position of actor, and demanded something which he could not have obtained by a mere exception, and which his surety could not, under any circumstances, have demanded by way of reconvention, viz: the money which he had paid and the rescission of the contract of sale. To this he also added a demand for something which might have been urged by way of exception, a discharge of the notes. It it therefore apparent that the action of Richardson embraced something more than a mere exception, and the decree which was pronounced in his favor was an entire thing by which he recovered his money, rescinded the sale, and obtained an absolute cancellation of the notes sued on.

Now, it appears to us that when Richardson came to use this judgment for the money and the notes as a defence to the action, it should bo considered as an entire thing, the result of an action producing, its effect from the date of its rendition and the time it was used in the defence of the other action against Richardson on the notes. It ought then to avail the co-debtor in solido as much as the compensation in the example given, or the payments which were made in this case by Richardson and which it is conceded must benefit the surety. Suppose the slave had been living when the decree-annulling the sale was rendered. Now, if the syndic were .permitted to divide the judgment against him and- say that inasmuch as a part of it might have been used as an exception, therefore, although it is subsequent to the judgment which he has obtained against the surety, it must be considered as anterior in date and therefore merged in the judgment, he would recover back the property from the principal debtor and the price from the surety.

Again, the suit was a notification to Richardson that the money was demanded of his surety.- If the plaintiff can recover the money by execution against Dichason, it is by no means clear that under Article 3021 C. C. the latter may not have recourse over against Richardson, his principal. If so, then the judgment in Richardson’s favor in his action of redhibition must have the effect to protect the' surety and thus protect Richardson himself, otherwise it is not a full protection.This case has some points of resemblance to the case of the Stale against Hammill,7 An. 257. On the whole, we think the judgment ought to be affirmed.

Judgment affirmed.

Spoffoed, J., took no part in this case.


author: Cole, J. Merrick, 0. J.,

text:
    William S. Donnell v. W. H. Parrott and wife.
    As a general rule the execution of a judgment cannot be enjoined by any other court than that from which the writ issued.
    Unless a necessity exists for it and a manifest injury would otherwise be done, no court, other than that rendering the judgment, has jurisdiction over the execution.
    A party will not be permitted to arrest an execution by a defence of compensation, which he might have made, but omitted to make in the suit wherein the judgment was rendered, the execution of which he seeks to arrest.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      Semmes fy Labatt, for plaintiff.

      Durant Sf Horner, for defendants and appellants.
   Cole, J.

The plaintiff, Donnell, sued defendants, at their domicil in the parish of St. Landry, for a debt alleged to be due for plantation supplies.

Donnell was then, and now, a resident of New Orleans.

He claimed then $586 53, with interest.

Wm. H. Parrot answered by a general denial. His wife filed a separate answer, averring that she owed Donnell nothing, but that .he was indebted to her in a large amount, which she plead in reconvention.

When the cause came on for trial before the court in St.-Landry, the plaintiff, Donnell, moved to discontinue, and the court awarded judgment, dismissing the cause without noticing Mrs. Parrott’s reconventional demand.

She appealed, and this court affirmed the judgment of the lower court, so far as it dismissed the claim of the plaintiff, Donnell, but reversed' it so far as it dismissed the reconventional demand of Mrs. Parrott, (Donnell v. Parrott, 10 An. 703.)

The cause went back to the District Court in St. Landry for re-hearing on the reconventional demand of Mrs. Parrott, and was tried contradictorily with Donnell, and there was judgment in favor of Mrs. Parrott for $6,831 50.

Prom this judgment Donnell took a suspensive appeal and this court affirmed the same.

On the judgment thus affirmed the court in St. Landry issued ajft. fa. against Donnell, directed to the Sheriff of the Parish of Orleans, where he resided.

Donnell sued out an injunction against it on the 3d October, 1856, in the Fourth District Court of New Orleans.

The petition of injunction avers that plaintiff, as commission merchant, received and sold defendants’ crops, and afforded supplies for the plantation.

Plaintiff further alledges therein that the statement of accounts between them on the 15th April, 1854, showed a balance in his favor of $586 63; that he brought suit for this amount; that his suit was dismissed without his knowledge, and the reconventional demand was prosecuted against him without his knowledge ; that being ignorant of the reconventional demand, he did not set up that it had been extinguished by compensation by operation of law; that in consequence of Mrs. Parrott’s judgment against him, she is really indebted to him in the sum of $7,213; he prays for an injunction against Mrs. Parrott’s execution ; that Mr. and Mrs. Parrott be cited to appear before the Fourth District Court of New Orleans to answer his petition; that his claim of $7,213 67, against them, be declared to be due, liquidated and demandable ; that Mrs. Parrott’s judgment be declared to be extinguished by compensation; and that he have judgment against Mrs. Parrott for $586 53.

In accordance with the prayer of the petition, an injunction, staying her execution, from the District Court of St. Landry, was at once issued by the Fourth District Court of New Orleans.

Mr. and Mrs. Parrott excepted to the jurisdiction over them of the Fourth District Court of New Orleans, on the ground that their domicil was in the Parish of St. Landry.

This exception was dismissed, as to the amount pleaded in compensation, but sustained as to any excess over it.

There was judgment in the lower court in favor of Donnell and against Parrott and his wife in solido for seven thousand two hundred and sixty-seven dollars and fifty cents and interest, and that the judgment rendered by the Fifteenth Judicial District Court of the Parish of St. Landry in favor of Mrs. Parrott and against Donnell for $6,836 50, with interest, be decreed to be extinguished by compensation, and that the injunction herein issued be made perpetual, and that Parrott and his wife, and the Sheriff of the Parish of Orleans, be forever enjoined from proceeding any further under the execution issued from the aforesaid Fifteenth Judicial District Court, at the suit of said Donnell against Parrot and wife, No. 7315 of the docket of said court, and that defendant pay costs of suit.

From this statement of facts we deduce two reasons, either of which is sufficient to cause the judgment to be reversed.

Under the circumstances of this case, the Fourth District Court of New Orleans was without jurisdiction to enjoin a fi.fa. from the District Court of St. Landry.

It was in the power of Donnell to have set up, .in his suit in St. Landry, against the reconventional demand of Parrott and wife, all the defences and pleadings that he urges in his opposition to the execution issued in that case.

The amount, $586 63, originally sued for by Donnell, and the $7,267 50 claimed by him in the injunction suit, grew out of the relations of the parties as factor and planter, and had their origin in similar reciprocal transactions between them. These contestations could all have been liquidated and decided in the suit in St. Landry.

Donnell could have had his original claim for $586"63 adjudicated upon, and if his averments in the injunction suit are true, he could also have shown that the reconventional demand of Parrott and wife had' been compensated by advances made by him.

We are of opinion, that when claims have thus a cognate origin and one of the parties has failed to set up any sufficient defence, he cannot enjoin an execution on a judgment between the parties by application to any other court than that from which the writ issued, even if he can do it in any such case. Oyer v. Daunoy, 7 N. S. 658.

An adverse doctrine would unnecessarily protract the administration of justice, and put parties to useless expense. Cuvillier v. Turnbull’s Heirs, 8 M. 63. C. P. Art. 373.

We are of opinion that a party ought not to be permitted to arrest an execution by defences of compensation that he could have made in the original suit, to which he was a party.

The court of St. Landry, in its judgment, reserved the right of Donnell to set up his claims, if any he had, in a separate suit, and we think this is the proper course at present, in the event he has any legal demands against Parrott and his wife.

The judgment enjoined bears 5 per cent, interest. We allow 3 per cent, additional interest from the 3d October, 1856, the time of issuing the injunction, until the ,5th April, 1858, the period of dissolution of the injunction. We think that under the circumstances of this case, no other damages ought to be allowed.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed; that the injunction be dissolved with three per cent, additional interest, as damages, on the amount of the judgment enjoined, to wit: on six thousand eight hundred and thirty-six dollars and five cents, from the 3d October, 1856, until the 5th April, 1858. It is further ordered and decreed, that the Sheriff of the Parish of Orleans proceed, according to law, to execute the fi. fa. transmitted to him, and which was hitherto enjoined by this suit, and that plaintiff in injunction pay the costs of both courts ; and that the right of Donnell is reserved to prosecute his claims in a separate and. distinct suit, if any he has.

Spofford, J., took no part in this case.

Merrick, 0. J.,

concurring. The cases in which this court has sanctioned injunctions issuing in other parishes than those where the judgments were rendered, were those in which manifest injury would have been done had they not been allowed. In the language of the court, they were allowed ex necessitate rei. 4 N. S. 390. Lawes v. Chinn, 7 N. S. 659. Ogier v. Daunoy, 2 An. 323. Hobgood v. Brown, 4 An. 84. It was not the intention of the court to expunge from the Code of Practice Articles 617 and 629, giving the court, rendering the judgment, jurisdiction over its executions. Now, in the case before us, there does . not exist the necessity referred to, nor can the doctrine of those cases be reasonably applied. For the plaintiff, when lie instituted his suit in St. Landry on this identical demand, and was met by the defendants’ reconventional demand, stood towards her in the District Court of that parish precisely as he seeks to do in the Fourth District Court of New Orleans. The plaintiff then, instead of insisting upon his demand and opposing it to the defendants’ demand, unnecessarily withdrew it from the further cognizance of that court, and suffered a final judgment to be rendered against him, merely obtaining from the court a reservation of his demand against the defendant. This final judgment of the court, taking cognizance of his demand so far as to dismiss it, must be executed, and cannot again be delayed by the consideration of that question as a bar to the execution of the judgment. And this, it appears to me, is the obvious meaning of every reservation of this kind in a final judgment. ■ The matter reserved can no longer be opposed to the judgment, and the party is left to his action, at the domicil of the party, for redress. Thomas, adm’r, v. Bourgeat, 6 Bob. 438.

The penalty for neglecting to oppose compensation is prescribed by Article 373, C. P., which is in these words :

“ Art. 373. If the defendant suffer judgment in the original suit, without pleading such compensation as he may have to oppose, as provided above, he shall not on that account lose his right of action to recover whatever amount such plaintiff owes to him, but lie must bring his action before the court within whose jurisdiction the plaintiff has his domicil." See also 8 L. R. 104, 273; 9 Bob. 165; 1 An. 284; 5 An. 670.

If such be the penalty for not opposing compensation, it cannot be less where the party voluntarily withdraws the consideration of his demand from the court. For reasons which are obvious, he must be considered as having waived his right to oppose the judgment on those grounds.

I, therefore, concur in the conclusions of Mr. Justice Cole, deeming it unnecessary to express any opinion upon the merits of this controversy.


author: Cole, J.

text:
    Elijah Peale, Trustee, v. John Routh et al.
    The plaintiff, as trustee of the Agricultural Bank of Mississippi, under an appointment made by the court in Mississippi which declared the forfeiture of the charter of the bank, obtained judgments, first in Mississippi against the defendant, JRouth, on which judgmonts were afterwards rendered against him in Louisiana, in favor of the trustee. Held: That on the trial of the issue as to the right of property sought to be subjected to the payment of such judgments, neither the defendant nor those claiming to have derived title under him, could contest the capacity of the trustee, that being res judicata as to the original defendant, and the other parties having no interest therein.
    APPEAL from the District Court of tbe Parisk of Tensas, Farrar, J.
    /. B. § C. T. Bemiss, for plaintiff and appellant.

      A. Snyder and T. P. Farrar, for defendants.
   Cole, J.

The sole question is the validity of the following exception to plaintiff’s petition;

1. “ That plaintiff has no such capacity as trustee of the Agricultural Bank of Mississippi.
2. “ That even if he be trustee of said bank, as alleged, he has no authority as such to sue or stand in judgment in the courts of this State, and that this court is without jurisdiction.
3. “ That plaintiff, in his petition, shows no right of action in himself personally, or as trustee.”

This exception was sustained except as to John Routh.

We are of opinion that the exception was inoperative and ought to have been overruled as to all the defendants.

In 1842, the Agricultural Bank of Mississippi instituted suits in the Circuit Court of Adams county, Mississippi, against William, Ferriday, Henry L. Bennet, John Routh, and others. During the pendancy of these suits, proceedings were instituted against the plaintiff, the Agricultural Bank;'to have its charter declared forfeited under the Act of the Legislature of Mississippi, passed 26th July, 1843. Hutchinson’s Digest, p. 330,1848 edition.

These proceedings resulted, May, 1845, in declaring and adjudging the bank to have forfeited its charter, and appointing Elijah Beale, trustee, who, having qualified according to law, then took the place of the bank as plaintiff, and at the November term o.f the Circuit Court for Adams county, obtained a judgment against John'Routh etal. for $20,587 77, besides interest and costs; afterwards, at the May term of the same court, Peale obtained another judgment against John Routh et al., for $189,209 44, besides interest and costs. In 1855, Elijah Peale, trustee, instituted suits against John Routh, in the District Court of the parish of Tensas. On these suits, judgments were rendered on the 23d of March, 1855, and were recorded on the 5th April, 1855, in the mortgage book of the parish of Tensas. Executions were afterwards issued on these judgments, and property was pointed out to the Sheriff as that of John Routh, to seize and sell in'satisfaction of the said executions.

The Sheriff having refused to levy on the property pointed out as that of defendant, Routh, and returned said executions, “ no property found” ; this suit was brought against John Routh, and Mrs. Matilda Bowie, Allen T. Bowie, John K. Routh, and the minor children of Calvin 8. Routh, to wit, Ann 8., Matilda J. and John Routh, Jr., who pretended to hold title to the property pointed out to the Sheriff as that of John Routh, on which he had been directed to seize.

From the statement of facts, it appears clear that the exception ought not to have been sustained as to any of the defendants.

The sole issue in this last suit was, whether the property pointed out to the Sheriff was that of John Routh or of the other parties-to the suit: judgments had been obtained by Peale, in his capacity of trustee, against John Routh,- therefore, as to him, in all the subsequent proceedings to have these judgments satisfied, the capacity of Peale, as trustee, was res judicata ; the other defendants cannot contest the validity of these judgments, for they have no interest therein.

The position of plaintiff is this; he has, in the capacity of trustee, obtained judgments against John Routh, and now seeks to execute them upon certain property claimed by some of the defendants; they cannot deny and demand proof of the capacity of Peale in the suits wherein those judgments have been rendered, for the sole person that could have contested it, was John Routh, and it is now for him res judicata; the only question in the present suit is, whether John Routh or the other defendants are the rightful owners of the property pointed out to the Sheriff as that of John Routh, and whether it can be sold to satisfy the judgments aforesaid. Plaintiff has, by a decree of competent jurisdiction for this State, been judicially recognized to have, in the capacity of trustee, a claim against the property of John Routh, and he has the right to enforce that claim whenever he can find in the State property of his judgment debtor ; those in possesssion of his property can no more dispute his capacity, than they could the validity of the judgments and a sufficient cause to justify them.

The principal issue in the case is, whether plaintiff obtained the judgments, and by whom the property in contestation belongs.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed ; that the exceptions of defendants are overruled, and that this cause be remanded to the lower court, to be proceeded with according to law, and that appellees pay the costsof appeal.


text:
    Ann Riley v. W. Christie.
    The endorsement of fclie Judge’s fiat on tlie back of a petition for an order of seizure and “sale, to which an authentic act importing a confession of judgment is attached as a part thereof, is sufficient to constitute a valid order of seizure and sale.
    Such order, though it may be appealed from, is not a judgment in the true and legal sense of the term.
    APPEAL from the Third District Court of New Orleans, Duvigneaud, J.

      Whitaker fy Fellows, for plaintiff.
    'Lacy fy Upton, for defendant and appellant.
   Spofford, J.

When the Judge endorses his flat upon a petition for an order of seizure and sale to which an authentic act importing a confession of judgment by the defendant, is attached as a part thereof, it is sufficient for him to say, “ let an order of seizure, &c., issue as within prayed for.”

No further or better reasons could be adduced for issuing the order, than the annexed documents upon their face exhibit, and it is unnecessary for the Judge to repeat their contents in his order.

Although orders of seizure and sale may be appealed from, they are not “judgments” in the sense of the Constitution, for which reasons must be specially adduced in the order itself.

In Harrod v. Voorhies, 16 La. 256, it was said that “ such a decree is not a judgment in the true and legal sense of the term, and possesses none of its features. It issues without citation to the absent party; it decides on no issue made up between the parties, nor does it adjudicate to the party pbtaining it, any right in addition to those secured by his notarial contract.”

Judgment affirmed.


text:
    Succession of James Hunter.
    The husband cannot by testamentary disposition defeat the effect of the Act of 1852, “ to provide a homestead for the widow and children, of deceased persons. ”

    The claim of the widow is a privileged debt.
    When there are no descendants of the husband, the amount due to the widow is received by her in full property, and she is not bound to give security.
    APPEAL from the Second District Oourt of New Orleans, Morgan, J.
    /. E. Bermudez, for executors.

      E. -Filleul, for appellant.
   Oole, J.

James Hunter died, leaving no descendants; many years previous to liis marriage, lie executed a will, which constituted Peter Conrey, Jr., his testamentary executor and universal legatee. The surviving widow of Hunter has appealed from the judgment, and Conrey has joined her in the appeal.

We are of opinion that the husband cannot, by testamentary dispositions, defeat the effect of the Act of 1852, “ to provide a homestead for the widow and children of deceased persons.” Session Acts, 1852, p. 171. This law entitles the widow or the legal representatives of the children, to demand and receive from the succession of their deceased father or husband, a sum, which added to the amount of property owned by them, or either of them, in their own right, will make up the sum of one thousand dollars, and which said amount shall be paid, in preference to all other debts, except those for the vendor’s privilege and expenses incurred in selling the property.

The claim of the widow is then a privileged debt, and the testamentary heir can only demand the balance of the estate, after all debts are paid.

As there are no descendants of the husband, the widow is not obliged to give any security, and the amount due her under the Homestead Act, belongs to her in full property. The first section of the Act authorizes the widow or legal representatives of the children to receive from the succession of their deceased father or husband, a certain sum; the second section limits the first section so far as the widow is concerned, and gives her the usufruct of said sum during her widowhood, afterwards to vest in and belong to the children or other descendants of said deceased; when, then, there are'no children or other descendants, the cause of the limitation does not exist, and the said sum must vest in her in full property by virtue of the first section.

It was settled in the case of Succession of Antoine Numa Tassin, 12 An. 885, that the widow as usufructuary, is bound to give security, but in that case there were children of the deceased husband in existence, and the question did not arise, whether when there were no children, the widow was obliged to give security.

She is entitled to a decree in her favor for $193 V3f, one-half of the community ; and also for $540 40i, balance of the succession, less costs that may be due by the estate, by virtue of the Homestead Act, in full property and without giving any security. C. C. Arts. 552, 551, 532, 553 and 17.

It is, therefore, ordered, adjudged and decreed, that the judgment be so amended as to give to Eliza Allen, widow of James Hunter, deceased, in her own right and full property, one hundred and ninety-three dollars and seventy-three and two-thirds cents, being one-half of the community; and also in her own right and full property, five hundred and forty dollars and forty and one-third cents less the costs t0 which the estate may be liable, without giving any security; and that any part of the judgment which is opposed to this amendment, be avoided and reversed, and that in all other respects the judgment be affirmed; and that the costs of this appeal be paid by the estate.


author: Buchanan, J.

text:
    Bythel Haynes, Liquidator, v. Isaac Wall and wife.
    The obligation of a stockholder for contribution upon his subscription to the capital stock being intended by its terms to secure the payment of any loans of money effected by the company, it was held the pica of prescription could not be maintained where the suit against the stockholder was brought in less than ten years after the maturity of the first series of the bonds of the company.
    PPEAL from the District Court of East Feliciana, Haralson, J., presiding.

      D. C. Hardee and W. Fergus ICernan, for defendants.

      Mcñse W. M. Randolph and John McVea, for plaintiffs and appellants.
   Buchanan, J.

Defendants ’are sued for a contribution of eighteen hundred dollars, or sixty per cent, upon their subscription of thirty shares of the capital stock of the Clinton & Port Hudson Railroad Company.

The petition charges that the contribution of sixty per cent, now demanded of the stockholders upon the capital stock by them severally subscribed, is necessary in order to pay certain bonds of the Clinton & Port Hudson Railroad Company, with the arrears of interest thereon, which bonds are past due and are held by the New Orleans Gas Light Company; and which bonds and interest, the petitioner has been ordered by a final judgment of the District Court, rendered the 12th February, 1852, and affirmed on appeal by the Supreme Court, to collect by a pro rata contribution among the stockholders.

Defendants except to this action,—

1st. That the Clinton and Port Hudson Railroad Company never accepted the Act of 10th March, 1834, amending the Act of 7th February, 1833, incorporating the Clinton & Port Hudson Railroad Company, in the form and within the delay prescribed by the 28th section of said amendatory Act; and that the Railroad Company was consequently without power to contract the obligations which it is the object of the present suit to meet.
2d. Defendants plead the prescription of ten years as a peremptory exception to this action.

On the first exception, it appears in evidence, that the amended charter of the Clinton & Port Hudson Rail Road Company was accepted by a majority in amount of the stockholders, by a declaration made to that effect in writing before the Parish Judge of the parish of East Feliciana, which declaration bears no date; and we are asked to infer that this acceptance, thus destitute of a date, was in fact made at a later period than that contemplated in the 28th section of the Act, (which was the 14th April, 1834, at the latest), because it was recorded in the office of the Parish Judge on the 22d April, 1834. But this inference appears to us unreasonable, and justified neither by the terms of the statute nor by the subsequent acts of the railroad company and of these defendants.

By the terms of the statute, the declaration of acceptance is one thing, and the recording of that declaration is another. The declaration is to be made within a limited time ; the recording of that declaration is not limited as to time.

The subsequent acts of the parties are, 1st, the issuing by the railroad company of their bonds, under the Act of 1834, p. 116, in the form prescribed by section 5th thereof, dated 1st February, 1836, and payable $75,000 eight years after date, $75,000 fifteen years after date, and $100,000 twenty years after date ; 2d, the execution by the defendants, on the 5th December, 1837, of the mortgage upon which they are now sued in payment of their- assumption of the subscription of David Thomas to the increased capital stock of the company, under the Act of 1834. To this act of mortgage were parties, of the one part, the defendants ; and of the other part, the president of the railroad company; who declared “ that said company was incorporated and its privileges and obligations generally defined, by tivo Acts of the Legislature of the State- of Louisiana, the one approved on the 7th February, 1833, and the other (the statute referred to in the exception) approved the 10th March, 1834.”

The binding effect of this Act of 1834; has however been settled by the judgment of the Seventh District Court in the suit of the New Orleans Gas Light and Banking Company v. Bythell Haynes, liquidator, given in evidence by plaintiff. By that judgment, the validity of the bonds issued by the railroad company under the Act of 1834, was recognized, and the liquidator (plaintiff herein) was ordered to institute suits against the several mortgage stockholders for a pro rata contribution to the payment of said bonds. The defendants, as corporators, are bound by that decree.

The second exception is the prescription of ten years. This exception was erroneously sustained by the District Court.

The obligation of defendants which is sued upon, was intended by its terms, to secure the payment of any loans of money effected by the railroad company by the negotiation of bonds under the 4th and 5th sections of the amendatory charter of 1834, above mentioned. The object of the present suit is to provide for the payment of such bonds, held by the New Orleans' Gas Light Company. The first series of those bonds, as.mentioned above, fell due on the 1st February, 1844; the second series on the 1st February, 1851; the third series on the 1st February, 1856. The present suit was filed and service of petition accepted on the 4th January, 1854, less than ten years after the maturity of the first series of bonds. It is therefore unnecessary to consider the question of the suspension of prescription, which has been argued at much length by the counsel of defendants.

The judgment of the District Court is reversed; the exceptions filed by defendants are overruled; and the cause remanded to be proceeded in according to law ; defendants and appellees to pay costs of appeal."

Meeeick, C. J., recused himself in this case, having been of counsel.


author: Meeeick, O. J.

text:
    John Lewis v. Duncan N. Hennen et al.
    The neglect of the Clerk to issue or the Sheriff to serve the citation of appeal, is not an irregularity imputable to the appellant, who, in such case, will be allowed further time to cite the appellee.
    APPEAL from the Sixth District Court.of New Orleans, Cotton, J.

      W. S. Upton, for plaintiff and appellant.

      W. D. Hennen, for appellee.
   Meeeick, O. J.

In this case there is a motion to dismiss the appeal. We think this a proper case for the application of section 19 of the Act of 1839.

The appeal was regularly taken and the bond was given in due form. The first citation of appeal was returned not served, on account of the absence of D. H. Hennen from the city. The second citation, which was addressed to Egerton, appears to have been served upon the defendant Ilennen. It is true that the petition of appeal does not contain an express prayer for a citation, but the clerk undertook to issue and did issue one, and the appellant is not responsible for the irregular manner in which the Clerk and Sheriff have performed their respective duties. In the language of the statute, it does “ not appear that such defect, error or irregularity is imputed to the appellant.”

It is no objection to the service of a new citation that more than twelve months have elapsed since the judgment of the lower court was rendered. The order of appeal was obtained, the appeal bond was given, and the transcript was filed, all in due time. The rest is cured by the statute passed since the decision in the case of Barremore v. Bradford, 10 L. R. 150 was rendered.

It is, therefore, ordered, that this cause be continued until the first Monday of May next, in order that the appellees be cited to answer the appeal taken in this case.


text:
    Same Case Continued.
   Buchanan, J.

By our judgment, rendered on the first motion to dismiss this appeal, it was ordered that the cause be continued until the first Monday of May instant, in order that the appellees be cited to answer the appeal.

No citation appears to have been issued, or returned, under this order.

Appeal dismissed, with costs.


text:
    Harrison & Co. v. W. W. Mitchell et als.
    When directly after a seizure under execution of property not liable to be seized, the plaintiff in the soizure disavows the act of the officer, no action will lie against him for damages; but when no disapprobation of the conduct of the officer is manifested, and the plaintiff permits the property seized to remain under seizure for his benefit, ho is to be considered a co-trespasser with the officer by whom the illegal seizure was made.
    The implements by which the business of a commercial firm is canned on are not legally subject to seizure.
    APPEAL from the Fifth District Court of New Orleans, Augustin, 3.

      J. A. Rozier, for plaintiff.

      T. § A. McDonald, for defendants and appellants.
   Cole, J.

Howard Hall obtained a judgment against Mr. and Mrs. W. H. Harrison for $25 75 ; an execution issued and the deputy constable J. T. Hurst seized a desk and iron safe as the property of said W. H. Harrison to satisfy the judgment.

They were not sold, but are now in the constable’s warehouse.

Moses B. Harrison, a brother of W. H. Harrison, institutes this suit and claims two hundred dollars, the value of the safe and desk, and one thousand dollars damages for injury done to his credit and the inconvenience he was subjected to in being deprived of their use and being obliged to purchase others.

Defendant alleges that Moses B. Harrison is a fictitious personage created for the purposes of this action. The cause was tried before a jury, who rendered a verdict for §365 insólido against the defendants, and they have appealed from the judgment thereon. The Judge of the lower court overruled the application for a new trial, because he thought the defendants should be left to their legal remedy of appeal, but he states that he disapproved of the verdict of the jury and thought there was sufficient evidence to show simulation and. .collusion between the two Harrisons, and that the office furniture was liable for the debt, because W. H. Harrison was, as the court believed, no longer in business.

A question has been raised as to the right of plaintiff to hold Howard fy Hall responsible for the acts of the constable. We are of opinion that if Howard Hall, directly after the seizure, had disavowed the act of the officer, then no action could lie .against them in the event the constable had committed any illegal act, for they had the right to presume that the constable would have done his duty and have only executed they?./a. on property designated by law; but as they did not by their actions manifest any disapprobation of the conduct of the constable, and as they permitted him to hold the furniture for their benefit, they must be considered to have endorsed the action of the officer and to have thus rendered themselves co-trespassers with him in the event the action of the constable is decided to have been illegal.

We think, the evidence establishes the existence of plaintiff; we are satisfied, however, that the sale of the safe and other office furniture to plaintiff is simulated and that it is the property of W. H. Harrison and Carter Harrison, constituting the firm of Harrison § Brother, now in liquidation, and that the sale was made to protect them against a supposed liability for the debts of W. H. Harrison ; they were not, however, legally subject to seizure, if they were the implements by which the firm carried on its business.

An examination of the record renders the simulation transparent. Howard Hall obtained their judgment on the last day of February, 1856 ; the citation had been served the 24th January previous ; notice of judgment was given March 1st, 1856, and the seizure was made on the 8th of the same month.

The furniture was in the office No. 37, Natchez street, where plaintiff pretends to carry on business, and on the 27th February, 1856, two days before the rendition of the judgment, Harrison tj- Brother, by authentic act before A. Abat, Notary, sell to plaintiff, their brother, for §229 cash, all the furniture in said office, and delivery was acknowledged since the 1st November, 1855.

Hurst, a witness, testifies, that at the moment of seizure of the safe and desk, W. H. Harrison told him, that they did not belong to him, as he had made a sale of them to his brother, “ in consequence of having been greatly troubled by his creditors.”

It also appears that plaintiff carried on business under the name and style of Harrison fy Co., although he pretends to have been the sole partner; and J. S. Barton testifies, that “ W. H. Harrison appeared ostensibly to be a member of the firm, and was so looked upon in the community,” and Samuel Henderson declares, that he always presumed that “ W. H. Harrison fy Brother was the same as Harrison Co., as W. H. Harrison spoke to me in the same way whenever I went there, as he used to do when it was Harrison fy Brother; Chapman swears, that “he has seen W. H. Harrison at No. 37 Natchez street, conducting business there. The only man he knew there was W. H. Harrison; ” J. S. Brown testifies, that on the 12th July, 1856, W. H. Harrison asked him to loan him §50 00 ; witness asked him to whose order he should draw the check; he replied to the order of Harrison Co.

If plaintiff, under the style of Harrison fy Co. constituted a different firm from W. H. Harrison § Brother, it would have been easy to have established it; but plaintiff has failed to show it by satisfactory evidence. We think, that the old firm of W. H. Harrison fy Brother never ceased to exist, but only changed its name, that the furniture seized belongs to it, and that plaintiff has no interest in the property, and therefore, cannot stand in judgment in this suit.

It is, therefore, ordered, adjudged and decreed, that the verdict of the jury and the judgment of the court be avoided and reversed, and that the petition and demand of plaintiff be dismissed, and that plaintiff pay the costs of both courts.


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    Philip Huff v. Sarah A. Freeman et al.
    In a suit to render a married woman personally liable on a note signed by lier, with her husband, on the ground that the consideration inured to her seperate benefit, the plaintiff has a right to propound interrogatories to the wife on that point, although the amount of property coming to her children ultimately may be affected by lier indebtedness or discharge.
    APPEAL from the District Court of East Feliciana, Bailiff, J.
    J. 0. Fuqua, D. C. Hardee and John McVea, for plaintiff and appellant.

      J. H. Muse and Bowman fy Delee, for defendants.
   Spofford, J.

The plaintiff has brought a two-fold action; first for a personal judgment against Sarah A. Freeman, Z. Freeman and M. G. Gaulden, upon certain promissory notes; and, secondly, to annul a judgment and partition, and thus subject certain property claimed by the three defendants, children of Mrs. Freeman to the payment of the debt.

The last branch of the case has been suspended by agreement, and is as it were, another and an independent action.

The only suit now on trial is as to the personal liability of Mrs. Sarah A. Freeman upon a note which she admits she sigued.

The plaintiff avers that the consideration thereof enured to her separate benefit, and that she, though a married woman at the time, is, therefore, liable.

She specially denies that the consideration did enure to her benefit, and on that issue she had a verdict and judgment in her favor.

From this particular decree the plaintiff has appealed, and he contends that he is entitled to a personal judgment against Mrs. Freeman, which he was prevented from getting, by the refusal of the District Judge to allow him to interrogate her on that point alone.

We think the court erred. She was not called as a witness for or against her children, and the Article 2260 of the Civil Code, and the cases cited by appellee, do not apply. She is interrogated as a party, and solely for the purpose of fixing a personal liability upon herself; it is quite well settled that the answers of a party to interrogatories bind him alone, and do not affect the rights of his co-defendants. As to herself, Mrs. Freeman’s answers would be competent even upon this branch of the case in which her children are interested, to wit the validity of the judgment ■ gnd partition; but she is not interrogated as to that part of the case; she is only asked as to tlie consideration of a note she admits she signed, and the only direct effect of her answer would be to release or bind herself.- That the amount of property coming to her children may ultimately be affected by her indebtedness or discharge, cannot deprive her creditors of the right to probe her conscience; otherwise no person who has ascendants or descendants could be interrogated on facts and articles to fix a pecuniary liability upon him.

The case of Rachel v. Rachel, 5 An. 500, recognises the right of a plaintiff, who has made a mother and her son co-defendants in a suit to set aside a disguised donation, to put interrogatories to the mother upon the whole case with the qualification that her answers can only affect herself. .....

It is, therefore, ordered that the judgment of the District Court be avoided and reversed; and it is further ordered that the cause be remanded to procure the answers of Mrs. Freeman to the interrogatories propounded to her by the plaintiff, and to be otherwise proceeded in according to law, the costs of this appeal to be borne by the defendants and appellees.

Merrick, C. J., recused himself, having been of counsel.


author: Merrick. 0. J.

text:
    Succession of Charles Thompson.
    The attorney for absent heirs has a right to claim, for the benefit of the heirs the twenty per cent, interest as a penalty incurred by the curator for the improper withdrawal of the funds of the estate from the Bank.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      W. O. Denegre, for plaintiff in rule.

      T. Hunten, for defendant and appellant.
   Merrick. 0. J.

The duties of the attorney for absent heirs do not entirely cease on the rendition of the account, and we know no good reason why he may not claim for the benefit of the heirs which he represents, the twenty per cent, interest ; incured by the improper withdrawal of the funds of the estate from the bank where deposited at the time of the judgment homologating the account. C. C. 11.93.

But he cannot recover the penalty or damages (for not making the deposit) which accrued prior to the rendition of the account and judgment thereon. The judgment is erroneous to this extent. See case of Succession of Mann, 4 An. 28.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and it is now ordered, adjudged and decreed, that said curator of J. B. Ritchie do pay for the use of said succession twenty per cent, interest per annum on the sum of two thousand two hundred and seventy-seven dollars and eighty-seven cents, from the sixth day of November, A. D. 1857, until he shall pay said principal sum and interest into the State treasury, according to the decree of the said Second District Court of said sixth day of November, 1857, and it is further ordered that said succession pay the costs of this appeal.


author: Merrick, C. J.

text:
    Jules Levois v. H. C. Thibodaux, Tutrix.
    Tho surety on an appeal bond cannot be made liable where the Sheriff’s return to the writ of jft. fa. does not show that a demand was made on both plaintiff and defendant to point out property, tho parties being present or represented in the parish.
    ÁPPEAL from the District Court of the Parish of Terrebonne, Roman, J.

      Beatty Bush, for plaintiff.

      R. B. Jordan and E. W. Blake, for defendant and appellant.
   Merrick, C. J.

This is a suit to make the defendants, as the representatives of Henry C. Thibodaux, deceased, liable as sureties upon an appeal bond signed by him as surety for E. B. Burguires.

It is only necessary to consider one of the grounds of defence to the action. It is objected by the defendant that the Sheriff’s return does not show that a demand was made of the parties as required by Articles 596, 726 and 727 oí the Code of Practice, and the sec. 20 of the Act of 1839, p. 170. Two writs of jñerifacias issued on the judgment affirmed by this court. To the first, the Sheriff returned that he was unable to find any property of the defendant after dilligent search and inquiry : To the second he returned that he made demand of the defendant and was by him answered that he had no property wherewith to satisfy this writ and being unable after diligent search and inquiry to find any property belonging to the defendant, that he returned the writ. «

The return spoken of in Article 596, C. P. and in the Act of 1839, sec. 20, is the legal return of the execution contemplated by Articles 726, 727, C. P. It is not sufficient where the parties are present or represented in the parish, to call upon one of them to point out property; the demand must be made upon both, if practicable. This was held in the case of Gayoso v. Hickey, 4 L. R. 301, and has since been confirmed and approved in the cases of Conway v. Jones, 17 L. R. 416, and Lynch v. Burr, 10 Rob. 138; and Alley v. Hawthorn, 1 An. 123. We are not aware of any decisions overruling these cases. The returns of the sheriff are therefore insufficient in not showing that the sheriff applied to the judgment creditor, his agent or counsel, to point out property. 10 Rob. 138.

In the case of Guay v. Andrews, 8 An. 141, the want of a demand on the defendant in execution was excused on account of the removal of the defendant from the parish.

It is, therefore, ordered adjudged, and decreed by the court, that the judgment of lower court be avoided and reversed, and that there be judgment in favor of the defendant as in case of nonsuit, the plaintiff and appellee paying the costs of both courts.

Spoffobd, J., took no part in this ease.


text:
    Succession of Duncan and Mary A. Shaw, deceased—Daniel N. Shaw, appellant.
    The judge alone, or other authority exercising his functions, at tlie domicil of the minor, has the right to make the appointment of tutor or guardian.
    And it is the tutor or guardian of the domicil alone who can, in virtue of the personal statute, under which he is appointed, act as such in other countries.
    ÁPPEAL from the Second District Court of New Orleans, Morgan, J.

      Whittaker ij- Fellows, for D. N. Shaw, appellant.

      Hunt fy Denegre, attorneys for Shelby Seymour, appellee.
   Merrick, C. J.

Duncan and Mary A. Shaw had their domicil in New Orleans. They left the city during the prevalence of the yellow fever iu 1853, and retired to the city of Baton Rouge. They both died in the latter part of October of that year at Baton Rouge, leaving an infant daughter, four months of age. Shelby Seymour having received the infant minor into his family, was, with the advice of a family meeting and in the absence of all relations, appointed her tutor by the Judge of the Second District .Court of this city, he having jurisdiction over the domicil of the minor. On the 3d day of October. 1855, Daniel M. Shaw, the only brother of the deceased Duncan Shaw, caused himself to be appointed guardian to said minor by the courts of the county of Bladon, in the State of North Carolina, where he qualified and gave bond in the sum of $30,000, the minor, her property, and her domicil, all the while remaining in Louisiana.

On the 16th day of April, 1856, Daniel M. Shaw filed his petition in said Second District Court, wherein he stated that he had arrived in the city for the purpose of taking charge of the said minor, and alleged that Seymour could not be legally appointed tutor, because he was not related to the minor ; because he was a creditor of the succession, and because there wás a partnership between Shaw é)• Seymour unsettled at the time of the death of the former.

Petitioner prayed to be recognized as guardian of said Mary Ellen Shaw, the minor, that she might be placed in his custody for the purpose of receiving her property among his family, etc., and that it de decreed that said Shelby Seymour is no longer tutor, but that said Mary Ellen Shaw is properly under the guardianship of petitioner.

The defendant, after answering, excepted to the petition on the ground that the plaintiff was absolutely without any right, of action, and if any existed, it could only be exercised by the under-tutor.

The exceptions were sustained and plaintiff appealed.

It is hardly necessary, in this stage of our jurisprudence, to show that it is only the judge, or other authority exercising his functions at the domicil of the minor, who has the right to make the appointment of the tutor or guardian, and that it is only the tutor or guardian of the domicil who can, in virtue of the personal statute under which he is appointed, act as such in other countries.

With all the respect which we entertain for 'the acts of the authorities in our sister States, we can never admit the least validity in the appointment of a guardian by the courts of another State to a minor whose domicil is here. As a consequence, in virtue of such foreign appointment, such supposed guardian cannot stand in judgment nor exercise any rights in our courts in reference to the minor, which any other stranger could not exercise. C. C. 289; C. P. 944, 945; Brown v. McNeil, 8 An. 30; Succession of Bronson, 11 An. 24; C. P. 1015, 1016. He certainly cannot, in this form, deprive the legally appointed tutor of his office and his power over the person and property of the minor.

The judgment of the lower court cannot, therefore, be disturbed.

Judgment affirmed.


author: Spofford, J,

text:
    The State v. Frank Brown et al.
    The surety upon an appearance bond in a criminal case is not entitled to citation or service of a rule before the bond can be forfeited.
    The judgment of forfeiture may be set aside upon the appearance, trial and acquittal, or upon the appearance, trial, conviction and punishment of the accused, at any time during the same term of the court for all the parishes, except the parish of Orleans, and for the parish of Orleans at any time ■within ton judicial days after the notice of the judgment to the parties.
    APPEAL from the District Court of the Parish of Jefferson, Burthe, J.

      W. T, Scott, District Attorney for the State.

      C. Roselius and Alfred Philips, for appellant.
   Spofford, J,

The defendants, appellants from a judgment of forfeiture upon an appearance bond in a criminal case, have assigned two errors in the proceedings below.

I. They contend that the surety was entitled to a personal notice, citation, or service of a rule, before the bond could be forfeited as to him. The proceedings are statutory, and the remedy is most summary. The law declares that “ it shall be the duty of the Attorney General and the several District Attorneys, in their respective districts, on the second or any other day thereafter, of each regular jury term of the District Court, leave of the court being first had and obtained, which leave shall always be presumed, to call any or all persons who may have entered into any bond, recognizance or obligation whatsoever, for their appearance or attendance at court, and also to call on the securities to produce instanter, in open court, the person of such defendant or party accused; and upon failure to comply therewith, on motion of the attorney representing the State, the court shall, forthwith, enter up judgment against principal and securities in solido for the full amount of the bond, recognizance, or obligation.

The judgment so rendered may, at any time during the same term of the court for all the parishes of the State, except the parish of Orleans, and for the parish of Orleans at any time within ten judicial days after notice of judgment to the parties, be set aside upon the appearance, trial and acquittal, or upon the appearance, trial, conviction and punishment of the defendant or party accused.” Rev. Stat. pp. 169, 170, sec. 59.

The practice is to call the accused at the court-house door, and upon his failure to answer, to call, in like manner, upon the security or securities to produce his body. We think this is all the preliminary notice required by the statute, which is modelled after the English practice in such matters. When the surety signs the bond, he is presumed to take the prisoner into his friendly custody, and to undertake to produce him at the time and place designated by law, of which he is bound to take notice.

II. It is assigned as error also that the district judge refused to set aside the judgment of forfeiture at a subsequent term of the court when the prisoner was arrested anew, or appeared to stand his trial. *

The district judge did not err. The proceedings -took place in the parish of Jefferson, and the judgment, nisi could only be set aside at the same term, of the court. This was not a rule, as in Hamill’s case, 6 An. 260, to show cause why satisfaction of the judgment should not be entered because the prisoner had been tried, convicted, sentenced and punished by a submission to the sentence ; but the only allegation was that he had been surrendered and was within reach of the law.

He had been merely arrested or surrendered anew, at a term subsequent to the term when the judgment of forfeiture was rendered.

Such a surrender merely was insufficient to justify the court in entering satisfaction of the judgment of forfeiture.

Judgment affirmed.


author: Spoffoed, J.

text:
    The State v. Julius Schmidt.
    When after the forfeiture of an appearance bond and an appeal from the judgment of forfeiture, it appeared by a supplemental record that the accused had been tried, convicted and sentenced under the charge for -which he gave the bond to appear—Held: that the appellate court was without original jurisdiction to try the question whether satisfaction of the bond should be ontered on account of such new facts.
    A mere surrender, or a new arrest of the prisoner at a time subsequent to that when the bond was forfeited, does not satisfy the judgment.
    APPEAL from the District Court of the Parish of Jefferson, Burthe, J.

      W. T. Scott, District Attorney for the State.
    C. Roselius and Alfred Philips, for appellant.
   Spoffoed, J.

This case differs from that of the State v. Franh Brown et al, just decided, in one particular.

A supplemental record has been filed by consent, which shows that, since the appeal was filed, the defendant, Julius Schmidt, has been tried, convicted and sentenced under the charge for which he gave bond to appear. It is not proved by the record that he has complied with the sentence.

Whether he has or not, this court is without original jurisdiction to try the question whether satisfaction of the bond should be entered on account of these new facts.

The only question is : “Was the judgment appealed from right upon the facts in evidence at the time of its rendition ? Por the reasons already given in the case of Brown, we think it was.

A mere surrender, or a new arrest of the prisoner, at a term subsequent to that when the bond was forfeited, does not satisfy the judgment.

Judgment affirmed.


text:
    City of New Orleans v. Cordeviolle & Lacroix.
    The principle laid down in tlie case of Municipality No. 1 v. Wheeler é BlaJce, 10 An. 745, that anea; post facto law, which has no relation to crimes and penalties, and does not impair the obligations of contracts nor tend to divest vested rights, is not unconstitutional, reaffirmed
    APPEAL from tlie Fourth District Court of New Orleans, Price, J.

      Hunt & Denegre and Parker & Denis, for plaintiff.

      Collens & Wooldridge, for defendants and appellants.
   Cole, J.

This suit is to recover of defendants 1120 for taxes on the capital employed in trade by them for the year 1848, imposed under an ordinance of Municipality No. 1, approved March 19,1850.

This case is identical with that of Municipality No. 1 v. Wheeler & Blake, reported in 10 An. p. 145.

The constitutionality and legality of the law and ordinance imposing the tax, were fully discussed and determined in that case.

We cannot notice the other matters of defence urged by the appellants, as the amount in dispute is less than three hundred dollars.

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

Buchanan, J., took no part in this decision.


text:
    Converse, Kennett & Co. v. Steamer Sydonia et al.
    Where tlie Sheriff had made a second adjudication of property, tho first purchaser having failed to comply with tho terms of tho sale—Held: That the first purchaser could not take a rulo on the second purchaser to show cause why the second adjudication should not he set aside j he could only proceed by petition aud citation.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      Clark Sf Bayne, for appellants.

      C. A. Taylor and Budd Sf Lambert, for appellees.
   Cole, J.

Certain property was seized to satisfy an execution in this case; it did not bring on the day of sale two-thirds of its appraisement, and was re-advertised for sale on twelve months bond. At the second offering L. U. Gaiennie, for account of /. J. Burras, became the purchaser ; but failing to give the name of the surety on the bond, the Sheriff, in a few moments, re-offered the property, whereupon William Harris and Hugh Murphy became the purchasers for a less price than that bid by Gaiennie. The first purchaser and Z. Angomar, one of the defendants in execution, have taken this rule on Sheriff Bell and the second purchasers, to show cause why the second adjudication on the twelve months bond should not be annulled, and a deed made to the first purchaser in accordance with the terms of the first adjudication.

The lower court properly sustained the exception of the second purchasers to being brought into court by rule to contest their title. As tho object of the rule was to divest them of real property, appellants ought to have proceeded by petition and citation.

The evidence does not establish that the first purchaser offered the proper security to the Sheriff. Art. 689 C. P. declares : “ If the person to whom the property has been adjudged, shall refuse to pay to the Sheriff the price of the adjudication or to offer the proper securities, when the sale has been made on credit, the Sheriff shall expose to sale anew the thing seized and adjudge it to another person.”

The title of property does not become perfect by 'a Sheriff’s sale, unless the purchaser complies with the terms; it is the official duty of the Sheriff to adjudicate the property to the highest bidder; he does it On: the supposition that the purchaser will execute his part of the contract of sale. When, then, a sale is made on credit, and the purchaser does not at once, when demanded by the Sheriff, communicate to him the name of his security, the- Sheriff is not obliged to wait, but may proceed to offer it at once again. Walker v. Allen, 19 La. 310. If the contrary rule were adopted, sales might be postponed ¡ilmost indefinitely.

The Sheriff has the right to know at once the name of the security, and is not obliged to wait until the concourse of people is dispersed, and then be obliged to re-advertise the property. It appears from the testimony of the Deputy Sheriff, that he demanded the name of the security of the first purchaser and received no answer. Appellants aver that he left to get his security; there is no error in the judgment.

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