text:
    Brander, Williams & Co. et als. v. Bobo, Sheriff et al.
    The defendant, whose property has been seized under an execution, and who has given a delivery bond under the Act of 1842, ( Rev. Stat., p. 528, Sec. 5,)' may make a valid sale of the propeity. The judgment creditor cannot seize the property in the hands of the vendee ,* his remedy is against the parties to the bond. And when the sheriff has declared the bond forfeited, subsequent seizing creditors cannot complain of informalities in the declaration of forfeiture. It is an answer to them to say that the bond was rightfully forfeited.
    APPEAL from the District Court of Morehouse, Biehardson, J.

      Mathews & MeFee, for plaintiffs.

      J. T. Budding, for defendants and appellants.
   Merrick, C. J.

We take the statement of facts in these consolidated, cases from the brief of appellants’ counsel, which we find sufficiently accurate.

On the 18th January, 1854, Palmer & Go. obtained judgment against Thomas BT. Ban-ham, for $1,140 OC, with eight per cent, interest from 16th of April, 1853.

On the 3d of February, 1854, execution was issued under the judgment On the 7th of February, Thomas ¥. Ban-ham pointed out “one town lot with the buildings thereon;” and afterwards gave a delivery bond for the property, with Bales B. Billingsly as his security. The property was offered for sale on the first Saturday of April, for cash, and there being no bid, the property was re-advertised for sale on twelve month’s credit. This sale was enjoined; and in January, following, the injunction was dissolved.

In the meantime (9th June, 1854,) Thomas Bf. Ban-ham, sold the property (pointed out by him to he seized, and released by delivery bond) to Miltenberger, for $2,500.

On the 27th of January, 1855, the property was re-advertised, and on the day appointed, the sheriff offered the property for sale, notwithstanding the goroperty had not been delivered to him,; and Thomas BT. Ban-ham and Mr. Todd, the agent of Miltenbergm-, prohibited the sheriff from selling it, as it was the property of Miltenberger.

The sheriff acting under instructions from the attorney of Palmier & Go., given before he had any knowledge of the sale to Miltenberger, bought the property for Palmer & Go., and at the same time declared the delivery bond forfeited for the residue.

On the 7th of March, 1855, execution wjis issued on the forfeited delivery bond; andón the 8th the sheriff levied oil two negroes, Thornton and Westle/y. B. B. Billingsly executed a delivery bond for the property. Before the day of sale, one Green Slvropshire, to whom these and other slaves and property of Billingsly had been transferred before the seizure, sued out an injunction on the grounds that the negroes seized were Ms property. This injunction was subsequently abandoned by Shn-opshire.

On the same day that the negroes above mentioned, were seized under Pal-men- de Go.’s execution, the sheriff levied on a hoy named Bob, about 14 or 15 years old, to satisfy the execution of Broader, Williams & Go., for §464 93, with 8 per cent, from 8 th July, 1854. This negro was sold to pay the said execution. The records do not show for how much.

On the 28th of June, 1855, the sheriff levied on a negro named Ohaides, in the cases of Smith & Heard, Executor, v. Billingsly, and John G. Williams v. Billingsly; and on the 27th of June, he levied on the negroes, Thornton, Westley and Bob, under an execution in the cases of B. B. Briscoe & E. Earris ; and on July 5th, he levied on Thornton and Westley, under the execution of Brandar, Williams S Go.

One of the houses or buildings on the lots seized, bonded for and transferred to Miltenberger, was burnt at the time of the sale, and notwithstanding the opposition of Barham and Miltenbm'ger, the property was sold and a credit of $382 was made upon the execution, and the bond was declared forfeited for the residue on the ground that the house was not delivered.

The principal question raised in this case, is the effect of the forfeiture of the forthcoming bond.

The Statute of 1842 reenacted in 1855. Rev. Stat, p. 528, Sec. 5, is in these words, viz: “Sec. 5. The defendant in execution whose property has been seized, shall have the right to retain the property in his own possession from the time of such seizure until the day of sale, on condition that said defendant shall execute his bond in favor of the plaintiff in execution, in solido, with one or more sufficient securities domicilliated in the Parish, for the amount one-half over and above the estimated value of the property seized, conditioned for the faithful delivery of the property at the time of the sale, which bond shall be filed in the office from which the writ issued within ten days after the date thereof; and upon forfeiture of said bond, which fact shall be made to appear by the certificate of the officer charged with the execution of the writ, the same shall have the same effect as a twelve months’ bond, and execution shall issue thereon, on application of the plaintiff or his attorney, against all the parties to said bond.”

The appellees contend, under this Statute, that the execution of the delivery bond does not release the seizure, though it permits the property to remain in the custody of the debtor, and that the debtor can no more legally sell or dispose of the property than if no such bond had been executed. The appellants contend that the sale to Miltenberger, after the execution of the bond, was a valid sale, and the sheriff was justified in declaring the bond forfeited.

The Statute evidently confers upon the debtor the option to continue the possession of the sheriff, (in which event he would be the agent of the sheriff, ) or to defeat the seizure and possession of the sheriff altogether. Eor it is obvious, that if the debtor refuses to produce the property, the sheriff has no power to seize it again, and that if the sheriff has no power over the property, and no control, the debtor, corrclatively, must have entire control, and can as easily defeat the possession of the sheriff by selling and delivering the movables and executing his written conveyence of the immovables to a third party the day after executing the forthcoming- bond, as on the day appointed for the sale.

The bond was violated when Barham put it out of his power to make a valid delivery of the property to the sheriff, and when he and his vendees, Miltenberger & Go., 'forbid the sale, having no legal possession, the sheriff could not sell. There was then, a just cause on the part of the sheriff, to declare the whole bond forfeited, and having declared it forfeited for all but §382, third persons cannot complain of informalities in the mere form in which the sheriff has made the declaration of forfeiture. Bao'ham or Billingsly may possibly complain, but not other subsequent seizing creditors. It is an answer to them to say that the bond was rightfully declared forfeited, and the form in' which it was done, in no manner prejudices them.

J. 3. Palmer & Go., are therefore entitled to the proceeds of the sale of the slaves sold upon their execution, unless the opponents have superior privileges and mortgages.

We concur with the District Judge that Brander, Williams & Go., as mortgage creditors, are entitled to be paid the balance of their judgment.

As to the other parties, they are entitled to bo paid only in the event a surplus is left, and according to the date of their seizures.

The deed to Shropshwe, as correctly observed by the District Judge, has no influence upon the decision of the case as between these parties.

We find, on examining the case to ascertain the costs and the rank of creditors, that there will only be sufficient to pay the costs, the judgment of Bramder, Williams & Go., and the execution of J. 3. Palmer & Go., disregarding’ the erroneous credit on the execution.

It is, therefore, ordered, adjudged and decreed, that so much of said judgment as decrees a preference to Brander, Williams & Go., out of the proceeds' of the slaves Thornton and Westley, for §267 45, be affirmed, and in other respects said judgment be avoided and reversed. And it is further ordered, that the residue of the price of said slaves, viz: $1,296 55, be paid to said J! 3-Parham & Go., to be credited upon their said execution for debt, interests and costs. And it is further ordered, that the oppositions of B. B. Briscoe and Eugene Parris, be dismissed, and that the costs of the appeal be equally bom by the said B. B. Briscoe, Eugene Parris and Joseph 3. Palmer & Go., and* that the costs of the lower court be also divided in the same manner-


source: Caselaw Access Project

author: Spoeford, J.

license: Public Domain

text:
    Barham v. Livingston.
    A Court of Justice wil not enforce an obligation where it appears to be nothing more than a bet inf disguise on a presidential election.
    APPEAL from the District Court of Morehouse. Bicha/i'dson, J.

      B. B. Todd & Oompton Brigham, for plaintiff.

      MeGuire & Bap, for defendant and appellant.
   Spoeford, J.

The defendant and appellant contests the correctness of the judgment appealed from, in respect of two items only.

The first, is a small sum of $16 22, with reference to which we do not think the testimony sufficiently clear to require an amendment of the judgment.

The other is an item of §1,250 and interest, evidenced by a promissary note executed by the plaintiff Ban'ham in favor of A. & B. B. Livingston on the 28th October, 1852, payable March 1st, 1853. B. B. Lwingston has assigned his interest in the note to the defendant A. Livingston.

The note was nominally given for a house and lot in Bastrop, pretended to have been sold by the Livingston's to Ba/rhmn. The person who drew up the note and deed, says that, after the sale was made, the parties wished him to draw up an instrument of writing, depositing the deed and note to abide the result of the presidential election; that he refused to have anything to do with that part of the tframaetion, but after some inducement, wrote an instrument in relation to their proposed agreement which was signed by the parties after the sale and note were executed. Another witness, present during the whole affair, states that a proposition was made by Bcurham to Livingston to make a bet upon the presidential election, and they entered into writings in relation to the proposed bet. They went into MeFee's office when the bet was reduced to writing. Another witness testifies that he had heard the defendant, Livingston, say that ho had a note of §1,200 or $1,250 from Ban'ham.

No deed from the Livingston's to Ba/rham of the house and lot has been produced or shown to have been in existence at the time of this trial in the court below. At the date of the pretended sale, he was a tenant of the house under the Livingston's, and he gave his note to them for rent up to Feb. 1853, several months after the alleged sale, which is also claimed and allowed to the defendant. The Livingston's have contrived to act as owners 'of the property since as before the sale, and Baa'ham has never set up any claim to it.

It is apparent that the pretended sale was only a bet disguised., The plaintiff staked his note for $1,250, against the defendant’s house and lot, upon the dubious issue of a presidential election. ¥e cannot infer from the evidence, as the appellant’s counsel does, that the sale was a bone fide sale, untainted by any illicit condition, and that the bet was an afterthought, -wholly disconnected with the sale. Even if it were, the consideration of the note has wholly failed, for the alleged vendors still have their house and lot which is not shown to have been at any time conveyed and delivered to the plaintiff. There was no compliance on their part with the obligation which the law imposes upon a vendor.

The contract by virtue of which alone the defendant obtained possession of the plaintiff’s note, was reprobated by the laws in force at the time of its formation. Although a penal statute against betting- on elections then in force, has been since repealed, that repeal did not purge the contract of its original taint. Moreover, the article 2952 of the Civil Code, now furnishes, as it did then, an impassable barrier to the allowance of such claims as this in a court ,of justice.

“ The law grants no action for the payment of what has been won at gaming ¡or by a bet, except for games tending to promote skill in the use of arms, such .as the exercise of guns, foot, horse and chariot racing. And as to such games, .the judge may reject the demand when the sum appears to him excessive.”

Judgment affirmed.


author: Spofíord, J.

text:
    J. B. Hendricks v. A. J. Bobo et als., securities of Barham.
    The parish Treasurer is the depository of the School Fund due to his parish; he may demand payment from the collector, and on his defaulit sue him to recover it.
    APPEAL from the District Court of the parish of Morehouse, Richardson, J.

      Newton & Nall, for plaintiff and appellant.

      McGtwre & Ray, for defendant.
   Spofíord, J.

All that the defendants could require would be protection against a future demand for the same cause of action. If there is a plaintiff who is authorized to receive the money alleged to be due to the school fund by Bar-ham, and whose receipt would screen the sureties of Barham from any pursuit hereafter, they have no reason to complain.

Before any decision was had upon the exceptions, Robert B. Briscoe, as Parish Treasurer, made himself a party plaintiff to the suit, without any objection on the part of the defendants. They do not pretend that he was not Parish Treasurer de facto and de jure, or that he had not given bond as required by law.

The Parish Treasurer is the depository of the school fund apportioned and collected for the use of his pai'ish. Revised Statutes, p. 190, sec. 5. The sums due to each of the parishes in this State from the annual collection of the school tax, shall be paid quarterly to the Treasurer thereof, by the State Tax Collector, &c. Revised Statutes, p. 191, sec. 6. If the Tax Collector is bound to pay over the money to the Parish Treasurer, it would seem to follow that the Parish Treasurer may demand payment of the Collector, and, upon this default, sue for the money thus due to the school fund of his parish.

"Wo are, therefore, of opinion that there was no error in overruling the exceptions, which were ordered to stand as part of the answer.

A plea of prescription has been filed in this court, which is wholly untenable. Even if the prescription of two years could run against such a claim as this, it has been interrupted.

There was error in awarding damages at the rate of twenty per cent, per annum, from the 21st of August, 1853. These damages run only from the 3d of October, 1854, and are claimed from that date only in the petition.

It is, therefore, ordered, that the judgment of the District Court be so amended as to award damages at the rate of twenty per cent, upon the principal sum recovered, only from the 3d of October, 1854, instead of the 21st of August, 1853. And it is further ordered, that in all other respects, the judgment appealed from be affirmed; the cost of this appeal to be borne by the plaintiff and appellee.


author: Merrick, O. J.

text:
    J. M. Jones v. J. A. Adams.
    Where parties have entered into a contract for building a house and subsequently deviated from it, the contract price should, as far a? applicable, indicate the measure of the value of the work
    APPEAL from the District Court of Bossier. Drew, J.

      Watlcins & George and TP! J. Duncan, for plaintiff and appellant.
   Merrick, O. J.

The plaintiff has instituted the present action to recover of the defendant $3,084 44, for materials furnished and certain carpenters’ work dime for the defendant.

It appears that the plaintiff contracted to huild a dwelling house and certain other buildings for defendant. He agreed to huild a house with rooms 16 feet square, and furnish the materials for $1,000. After he had framed the same, the parties agreed to change the plan, by which the frame thus made was laid aside, and a new frame erected for rooms 18 feet square. This building was substantially completed, and is in the possession and occupancy of the defendant. The plaintiff contends that inasmuch as the first contract was not carried out, that he is entitled to recover as on a quantum merrit, and that he cannot be held to a contract which has been abandoned by the parties.

We think that where parties have entered into a contract for building a house, and subsequently deviated from it, that it should stand as a measure of the value of the work and materials as far as they correspond -with and are applicable to such contract.

In this case the witnesses show that the house built would cost over the house contracted for, only about $600 extra.

The plaintiff is therefore entitled to price of the house...........$ 1,600 00

To the old frame...................................$129 00

Less its value for the building....................... 50 00

- $ 79 00

Out houses................................................... 180 00

To building cribs, here introduced as in compensation............... 300 00

$2,159 00

The defendant has proven payments................................. 1,749 80

$ 410 20

The plaintiff is entitled to recover a judgment for $410 20.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of the plaintiff and against the defendant for four hundred and ten dollars and twenty cents, and legal interest thereon, from January 1st, 1857, until paid, and that there be judgment against the defendants reconventional demand, and that the defendant pay the cost in both courts.


author: Spoeeord, J.

text:
    John B. Stewart v. Daniel Newton, Administrator.
    The creditors of an insolvent succession have a right to require that their debts should be paid before property, the recorded title and possession of which was in their debtor at the time of his death, can be recovered by one claiming to be the real owner and producing a counter-letter to defeat the apparent title in the succession.
    APPEAL from the District Court of Morehouse, Richai’dson, J.

      8. G. Parsons, for plaintiff.

      McGuire & Ray, for defendant and appellant.
   Spoeeord, J.

The object of this suit is to recover from the administrator of the succession of Joshua H. Pool, certain lots in the town of Bastrop, parish of Morehouse. The plaintiff alleges that he was the original owner; that they were sold under execution against him; that they were bought in by one II. Faullo, for his benefit, the title in Faullo being a mere simulation as proved by a counter-letter to the plaintiff, and that afterwards, Faullo conveyed his title to Pool, who also kept up the simulation, and executed a counter-letter to the plaintiff. He also avrered, that he advanced the money for both these purchases to the apparent vendees. The plaintiff had a judgment and the administrator has appealed.

The Sheriff’s sale to Faullo was in May, 1854, for the price of $100, in the suit of Pearce v. Stewart. Famllo's sale to Pool was in September, 1854, for the nominal price of $499 70, the vendor giving only a quit claim title. This deed was duly registered in the proper conveyance office.

In December, 1855, Post being then in New Orleans, and in bad health, wrote a letter to the plaintiff, and a power of attorney to M. Todd, of Bastrop. The letter states, in the outset, “ Inclosed you will find a statement directed to Oolonel Todd, in relation to your real estate in Bastrop, which will act as your security in case of accident.”

The letter of attorney to Mr. Todd is as follows: “When John B. Stewart pays all of the notes which I left in yemr hands upon the said Steward, he then is entitled to a deed from myself to him of all the real estate lying in the town of Bastrop, consisting of town lots, which I purchased of Hannibal Faullo, and I hereby authorize you, after the aforementioned notes are paid, to make the said Stewaid a title,” &c.

Pool died in January, 1850, and this suit was brought in May following. The bill of exceptions taken to the evidence of the contents of a counter-letter from Faullo to the plaintiff, alleged to be lost, need not be noticed, as we consider that the written declaration of Pool acknowledged the simulation of his title, and bind Pool and his representatives to convey the apparent title upon a compliance on the part of Steward with certain specified conditions.

The District Judge decreed the reconveyance absolutely.

But it is pleaded and proved, that if the property be Taken out of the succession of Pool, in which it was inventoried, that estate will be insolvent. As the recorded title and possession of the lots were in Pool, from September, 1854, until his death in January, 1850, it is obvious that the latent claim of the plaintiff, based upon an avowed simulation, and we fear, indeed, by a do-sire to secure the property, cannot supersede the claims of creditors who have, since that date, trusted Pool on the faith of his being owner of this property. rl’he title set up by the plaintiff under this alleged counter-letter, is expressly subordinated by law to the rights of purchasers from, and creditors of, his simulated vendee. “ Counter-letters can have no effect against creditors, or Iona fide purchasers; they are valid as to all others.” C. C. 2236.

It is not surprising when we examine the reports of adjudged cases, that simulation should carry with it a suspicion of fraud. And while parties to a simulated contract may be compelled, inter se, to treat it as a nullity, upon the production of a counter-letter which binds one of them to do so, still the law is careful to guard the interest of third persons against any injury from such a dissolution of an apparent title. Had it failed to do so, public confidence would have been destroyed, and judicial credit paralysed. If a private counter-letter could, at any time and as to all the world, defeat the most formal title in the archives of the Recorder’s office, their authentic acts would be mockeries, and registry offices become pitfalls for the unwary. Creditors of Pool, since his apparent acquisition of the property sued for, who may have trusted him in consideration of it, are entitled to be paid out of it, if the balance of his estate is insufficient to pay them. It does not appear what their numbers and the amounts of their claims are.’ But it would seem that a reservation in their favor should have been made, which the District Judge omitted to make.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed. And it is now ordered, that the property sued for' be declared liable to satisfy the debts of John H: Pool, contracted since the-1st of September, 1854, after the other property of the succession is exhausted; and that the defendant, administrator of the succession of J H. Pool, be ordered to file immediately a settlement of such debts, and of the other assets of the succession, to be homologated contradictorily between the plaintiff and the administrator, or parties in interest. And it is further ordered, adjudged and decreed, that so much of the property sued for as may, upon the homologation of the statement and account aforesaid, be found necessary to satisfy the just claims of the creditors of J. 21. Pool thereupon, be sold for that purpose; and that the balance of said property, if any, be rcconveyed by the administrator of the said succession to the plaintiff. And it is ordered, that the cause be remanded for the purposes aforesaid; the costs of this appeal to be borne by the plaintiff and appellee, and the costs of the District Court to abide the issue of the investigation into the accounts and claims for which the property is-herein declared liable.


author: Cole, J.

text:
    W. A. Holland v. J. G. Miller.
    Although no sentence of interdiction may have been pronounced, yet it will be sufficient to vitiate a contract if it can be shown that insanity or imbecility of mind has been taken advantage of.
    APPEAL from the District Court of Morehouse. Mehardson, J.

      Todd & Brigham, for plaintiff and appellant.

      Newton & Nall, for defendant.
   Cole, J.

Plaintiff is appellant from a judgment rendered against him to recover certain slaves described in his petition, in the defendant’s possession, with their hire ; or for the value of said slaves and hire; and to annul the judgment under it, by virtue of which, defendant claims title to the slaves.

The grounds alleged for annulling the judgment, are

1st. On account of the insanity of plaintiff at the time the confession of judgment was signed, and at the time the judgment was rendered thereon.

2d. That the judgment was fraudulently procured by taking advantage of plaintiff’s imbecility of mind; and

3d. That the judgment was without consideration, and the account on which it was based entirely fictitious, or that if the debts therein stated to have been paid, were really paid, it was done with plaintiff’s funds, as the defendant had previously thereto received a large amount of plaintiff's property and funds.

1. As plaintiff wishes to annul a judgment on the ground of insanity, it is incumbent on him to establish its existence at the time he confessed judgment. In this case there has been no judgment of interdiction, and the proof does not clearly establish the first point.

Art. 1781. C. C. declares, that the contract, entered into by a person of insane mind, is void as to him for the want of that assent, which none but persons, in possession of their mental faculties, can give.

It is not the judgment of interdiction therefore, that creates the incapacity, it is evidence only of its existence, but it is conclusive evidence. The fourth rule deduced from the principle of said article is, that, except in the case of death, no suit can be brought, nor any exception made to invalidate a contract on account of insanity, unless judgment of interdiction be pronounced before bringing the suit, or at least applied for before making the exception. This rule is modified by other principles in Art. 1781, but they do not affect the facts of this case.

Contracts would rest on a very weak foundation, if those of the most solemn character could be avoided on allegations of insanity when the proof thereof is contradictory.

It would be necessary for contracting parties, before the execution of the contract to inquire into their mutual mental soundness.

There is then much in favor of the rule that judgment of interdiction must be pronounced before instituting suit to annul a contract, except in the cases provided for by law, and this brings us to the second point of plaintiff) that the judgment was fraudulently procured by taking advantage of plaintiff’s imbecility of mind.

If plaintiff had established this position, he would have had a legal defence; for even where there is no interdiction, fraud will vitiate the contract, if it can be shown, that insanity or imbecility of mind has been fraudulently taken advantage of

Por, a person might be notoriously insane or imbecile, yet he might not have been interdicted, and advantage might be taken of it to induce him to transfer without consideration his rights. Plaintiff has not satifactorily established his second position.

We will also observe, that if the fraud should appear plainly on the face of the instrument, it w-ould be a sufficient cause to annul the contract, but such is not the case in the suit at bar.

The third point, that the judgment was without consideration is not proved.

This case was decided in favor of defendant by the judge a qtio. He was better acquainted.with the credibility of the witnesses than we are; and there does not appear to he sufficient grounds for reversing the judgment.

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


author: Merrick, C. J. Spoerokd, J.

text:
    State v. John Munco.
    'tlie indictment charged, that the accused, on the second day of Decembei-, 185b, at &c., “upbn the body of one Adam Zammert, a free white person, in the pfeace of the State, then and there being, with a certain dangerous weapon, called a shot gun, then and there loaded with gun powder and divers leaden shot, which the said John IZimco, then and there, in both his hands, had and held at and against the said Adam Zammert, feloneously, wilfully and of his malice, aforethought, did shoot and discharge with intent, thereby, wilfully and of his malice aforethought, the said Adam Zammert, to kill and murder, contrary, &c.” Held,: That, although ihe indictment does not follow the language of the Statute, yet it sufficiently charges the accused. Pirst, with an assault, by wilfully shooting at Zammert, &c., and Second, with an assault with an intent, ih that manner, to commit murder.
    Although the word “assault,” may not be used, yet when the indictment charges the accused with shooting a gun, at and against another, with intent to commit murder, it will sufficiently imply an assault.
    On the trial of the accused, the State offered to prove that L. was struck with shot; objection was made to the evidence, that “ there was no allegation in the indictment that L. was shot or wounded.” Held: That the testimony was admissible.
    ■Where the proof offered in evidence supports the indictment, although it proves a more heinous of-fence, it is within the discretion of the Judge to receive it.
    The District Judge charged the jury “ That although death did not ensue from the act, yet the malice aforethought, was equally implied from, the act, as though death did ensue.” Held: The charge is erroneous, because it implies an opinion upon the act proven,’which the Judge is now prohibited from giving.
    It is not necessary, on a prosecution for shooting, &c., &c., that it should be shown how the gun. was loaded. This may be presumed from all the circumstances.
    APPEAL from the District Court of Catahoula, Bary, J.

      Baity and W. IT. Houston, for the State.

      Mo Quin & May, for the prisoner.
   Merrick, C. J.

It is charged, in the indictment in this case, that the accused, on the second day of December, 1855, at &c., “ upon the body of one Adam Zammert, a free white person, in the peace of the State, then and there being, with a certain dangerous weapon called a shot gun, then and there1loaded with gun powder and divers leaden shot, which the said John Munco,. then and there, in both his hands, had and held at and against the said Adam Zammert, feloneously, wilfully and of his malice aforethought, did shoot and' discharge with intent, thereby wilfully and of his malice aforethought, the said' Adam Zammert, to kill and'murder, contrary, &c.”

The accused having been found guilty under the indictment, moved an arrest of judgment, on the ground' that the indictment does not charge the accused' with any crime or offence known to the law. The motion in arrest of judgment was overruled, and'the accused was sentenced to fouryeias imprisonment-int the penitentiary.

His counsel urge the ground assumed in the motion in arrest of judgment, as a cause of reversal of'the judgment here.

Although the indictment does not follow the language of the Statute, yet we1 think that it embraces, in tho act charged, two of the offences provided for by the ninth Section of the Act 14th March, 1855. (p..l31,) viz: It charges the-accused,

1st. With an assault by wilfully shooting at Zammert.

2d. With an assault with- an intent, in that manner, to commit murder.

It is true the word “ assault”’ is not used in the indictment, hut the shooting of a gun at and against another with intent to commit murder, is certainly an assault. The offence prohibited' by the Statute has, therefore, been substantially alleged.

The motion in arrest of judgment was, on the ground stated¡ properly’ overruled.

As we consider the lower court had a sufficient indictment before it, we will, consider the regularity of the proceedings on the trial, and notice the bills of.’ exception taken by the appellant.

I. The State offered witnesses on the trial to prove that A. Zammert wassWuelc with tho shot, and to prove tire number and extent of his wounds, the testimony was received, notwithstanding the defendant objected, that “there, was no allegation in the indictment that Zammert was shot or wounded.”

Doubtless before tho passage of the Act of 14th March, 1855, entitled an-Act to regulate the mode of procedure in criminal prosecutions, which has been borrowed from tho recent English laws, the testimony might have been admissible to show the manner in which the gun was loaded and the intent of. the accused.

However that may be, wo think it perfectly clear that the testimony was admissible under the ninth section of said Act. It is in these words:

“Be it enacted, &c., That if, upon tho trial of any person for any crime or' misdemeanor, it shall appear that the facts given in evidence amount in law to some other offence, ho shall not, by reason thereof, be entitled to be acquitted of the offence charged, and no person tried for such crime or misdemeanor shall bo liable to bo afterwards prosecuted for such other offence on the same facts, unless the court before which such trial may he had shall think fit, in its discretion, to discharge the jury from giving any verdict upon such trial, and to direct such person to be indicted for tho offence shown to have boon committed,, in which case such person may be dealt with, in all respects,, as if he had not been put upon his trial.”

Before considering this Section, wo will premise, by adverting to a distinct, ion between the common law (which was the same in both criminal and civil proceedings,) and our own in civil proceedings.

Under our law, in civil cases, if the testimony is once received, we pass upon it whether it supports the allegations of the party offering it or not. At common law, unless the testimony when received corresponds with the allegation in the declaration or indictment, there is a variance and the party fails, notwithstanding the jury has heard evidence proving a demand or a crime though different from that alleged.

The usual mode, therefore, is to suffer the testimony to go to the jury, relying upon' the instructions of the Judge to the jury, as to what constitutes a •variance. 1 Greanleaf, p. 65; 1 Ohitty’s Pleadings, pp. 308, 304; 3 Starkie Ev., 1526.

As, at common law, all misdemeanors merge in the felony, a quasi variance takes place, when under an indictment for a misdemeanor the facts establish the offence charged, but because they also show an aggravation of that offence which, by its aggravation, is made a felony, the misdemeanor is merged in the felony, and the offence charged is considered as not proved. 1 Bishop Orim. Law, No. 543.

Mr. Wheaton remarks, that “ It has been frequently held, in this country, that where, on an indictment for assault, an attempt or conspiracy with an intent to commit a felony, it appeared that the felony was actually consummated, ■it was the duty of the court to charge the jury chat the misdemeanor had merged and the accused must be acquitted.”

“ It used to be supposed from the casual remarks of old text writers, that the common law rule was, that whenever a lesser offence met a greater, the former sunk into the latter: and hence, in a large class of prosecutions, the defendant would succeed in altogether escaping conviction by a-subtle fiction Laving no origin either in common sense or necessity.”

“ Conceiving, however, (Mr. Wheaton proceeds,) the principle to be too ■deeply settled to be overruled, the courts of Maine, Massachusetts, New York ■and Pennsylvania, as has been seen, have held, that where a felony was proved, 'the defendant was to be acquitted of the constituent misdemeanor, and though the motion was sturdily resisted elsewhere, it has taken deep and general ■root.” . Wheaton Com. Law, 2d Ed., 107-8.

Now an examination of the statute of 1855, relative to the mode of criminal procedure, will show that it was intended to swoop from the criminal law, ■among others, this class of technicalities, and place the administration of criminal justice upon a more reasonable footing.

The first section of the Statute authorizes amendment of the indictment, in ■order to prevent acquittal from -certain crimes.

Sections 1, 2, 3, 4, 5 and 6, directs that the mode of framing certain indictments in a more general manner than heretofore, in order also to avoid fatal -variances which migLt otherwise arise from the proof.

Section seven, enables the jury, on an indictment charging the actual commission of an offence, to bring in a verdict charging- the accused with an attempt to commit the offence.

By the eighth section, on an indictment for robbery, the jury may find the accused guilty of an assault with intent to rob.

By the tenth section, a person indicted for embezzlement, as a clerk, &c., ¡may be found guilty of larceny, and vice versa.

By the eleventh section, on a trial of two or more persons indicted for jointly receiving any property, any of the parlies maybe found guilty who shall be proved to have received any part of said property.

It is now seen that the ninth section, in furtherance of the design and general scope of this act, provides that where the testimony shows that a person charged with one offence has committed another offence, by reason of tho proof containing aggravating or other circumstances, giving another name or complexion to the act, that he is not to be acquitted of the offence charged unless the court shall discharge the jury and direct the defendant to be indicted for that other offence. This section, therefore, remedies the evil complained of by Mr. Wheaton. It makes, in part, the converse of the rule recognized in Steadman's case, 6 Ann., 289, that “where the accusation of a crime'includes an offence of an inferior degree, the jury majr (under the proof,) 'discharge the defendant of the high crime and convict him of the less atrocious, ” and now the proof of the greater offence sustains the less.

Under the Statute in question, a person cannot now escape, because it turns out by the proof, that the offence which he has committed is more aggravated than that with which he is charged. If the proof sustains the indictment, the accused is not now to be acquitted, because the same proof would also sustain an indictment for another offence. The doctrine of variances still applies to indictments, and tho accused cannot be convicted unless the proof corresponds with the indictment, but where it does correspond, tho accused shall not escape, because the proof is in excess of the allegations, even by the aggravating circumstances, unless the Judge shall be of the opinion that the offence is so atrocious that the accused ought to be put upon his trial for the more aggravated offence.

It will therefore be seen, that if the proof offered in evidence supported the indictment, although it proved a more heinous offence, it was within the discretion of the Judge to receive it.

The proof did sustain the indictment on the well known principle that every battery includes an assault. 4 Mod. 405 ; Co. Litt., 258.

Muneo could not have shot Lammert with intent to commit murder without assaulting him with like intent.

Wo think the testimony was'properly received. The accused had no reason to complain, as a conviction upon the indictment, by the express provision of the Statute, would have been a bar to the pi’osecution for the more aggravated offence of shooting with an intent to commit murder.

• II. This brings us to-the last bill of exceptions which was taken to the charge of the Judge to the jury.

The bill of exception presents the charge of the Judge to the jury in a composed manner, but we think, notwithstanding the qualifications given by the Judge, that ho ought not to have charged “that although death did not ensue from the act, yet that the malice aforethought, was legally implied from the act as though death did ensue.” This charge is erroneous, because it implies an opinion upon the act proven, which the Judge is now prohibited from giving in criminal as well as civil cases. The jury are to judge of the intent from all of the surrounding ciroumstanses. As a general rule, men are supposed to intend the usual consequences of their acts. The man who wilfully discharges a loaded gun at another within striking distance, is presumed to intend to maim or kill. If his act of shooting is accompanied by deliberation, it is presumed that he intended to commit murder. If he happen to be armed with a gun, and lie is set upon by armed men and he shoots in self defence, it is no offence at all, but an excusable act.

It is not necessary that it should be actually shown how the gun was loaded. This may be presumed from all the circumstances. It ought to appear that Lwmmert was within the range of the kind of gun used at the time the shooting took place, and if he were not, the offence was not committed, although the shooting was malicious.

The law of the case, or so much of the indictment as charges an assault with an intent to commit murder, was correctly embodied in the last point which the Judge charged, viz:

“ That if the jury were of the opinion that had Lammert died of the wounds inflicted by the accused, that the accused would have been guilty of manslaughter and not of murder, then the accused should he acquitted.”

But we have already observed that the indictment charges the offence of assaulting, by wilfully shooting at Adam Lammert, and if this appear, the indictment will he sustained, although it may not be proven that the assault was made with the intent to murder. C Ann. 289.

The judgment must he reversed, and a new trial awarded.

We remark, that should the accused be convicted under this indictment, he cannot be sentenced to a longer period, at hard labor, than two years.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be reversed, and that this cause be remanded to the lower court for a new trial, with instructions to bo governed by the instructions herein contained, and otherwise proceed according to law ; and that the opinion and decree of the court record be transmitted to the clerk of the Supreme Court at Monroe, according to the agreement of the parties on file.

Spoerokd, J.

The best evidence that .the prisoner shot at Adam Lammert, would be that he hit him. The evidence of wounding might, therefore, have been admissible under the allegations of this extremely defective indictment.

The prisoner could not have been surprised by the testimony, for it was alleged that he “shot at Lammert with intent to murder him.”

The evidence touching the wounds may have been so interwoven with the evidence of the alleged facts, that it was impossible to separate it.

I, Therefore, concur in the view that the evidence was admissible.

But I do not understand the 9th Section of the Act of March 14th, 1855, as introducing any new rule as to the competency of evidence in criminal' trials. The ancient rule which has its foundation in one instinctive sense of justice, that what is not alleged, cannot be proved if the party accused object, is not, I think, in the slightest degree impaired by any thing contained in the Statute of March 14th, 1855.

. The 9th Section contemplates a single state of facts with a double complexion, one of which would constitute an offence of one grade, and the other of-fence of another grade; then the evidence is admissible, under an indictment charging one of these offences only,- and for, the reason that it corresponds to the allegata. But because the same facts also constitute an offence of another grade, it shall not be cause for acquittal of the offence charged.

■ I-think the change is made in the rule as .to .the admissibility of proof, anda party accused has still the right to object successfully to all evidence of matters not embraced or implied in the indictment as exhibited against him..

In other respects, I concur in the opinion, and' decree .prepared by Mr. Chief Justice Merrick.


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    Rawlings, Duncan & Co. v. T. N. Barham.
    Sureties on an appeal bonds ought to relieve themselves from liability, on the ground that proper diligence was not used to make the money out of the principal debtor. Held: That it does not appear that by any act or even neglect of the creditor, a subrogation to his rights, mortgages and privileges, can no longer be exercised in favor of the sureties, and they are therefore bound.
    APPEAL from the District Court of Morehouse, Bichan-dson, J.

      S. G. Parsons, for plaintiffs.

      Todd & Brigham, for defendant and appellant.
   Cole, J.

The facts of the case are as follows:

On the 20th of January, 1854, plaintiffs obtained judgment against Thomas F. Barham, for $2,348 48 ; from which ho took a suspensive appeal, and on the 21st of January, 1854, executed the appeal bond, with W. 3. Oompton, Wiley J. Tester, R. O. Fendriele, F. F. Lewis and, F B. Fill, as sureties.

The judgment appealed from was rendered by this court, and affirmed for $1,258 10.

On the 28th September, 1853, afi.fa. issued against the defendant, Barham, which, on the 6th of November following, was returned in no part satisfied.

Plaintiffs then took a rule against the sureties on the appeal bond, to fix their liability, under the Act approved March 20th, 1839.

A trial of the rule was had, and judgment of non-suit rendered against plaintiffs, on the ground that the writ of fi. fa. was returned too soon, and before the expiration of the ten days.

On the 3d of July, 1856, plaintiffs caused an alias pi. fa. to be issued against Baa-ham, which, on the 12th of September following, was also returned nulla hona.

On the 8th of November following, plaintiffs filed another rule against the sureties, out of which has grown the present controversy.

Two of the sureties, Oompton and Tester, answered the rule, alleging the nullity of the appeal bond, &c., and pleading division.

Upon those issues a trial was had, and judgment rendered against all the sureties in solido, from which the defendant, Tester, appeals.

1st. Appellant contends that the judgment is erroneous, because proper diligence was not used to make the money out of Ban-ham; that they did not exhaust his property, nor pursue their mortgage rights upon the same, and by their laches, they have deprived the sureties of rights, which they were hound to preserve for them in the event they had the debt to pay.

Plaintiff has done all which was necessary in order to proceed against the sureties : he has caused a fi. fa. to issue against Baa-ham, and the sheriff has returned nulla hona.

If defendants wished to exercise any rights against the property of Ban-ham, which the plaintiffs delayed to exercise, either because they did not know of such rights, or thought their pursuit would he fruitless. Defendants cannot then complain, because they might have paid the judgment, and been subrogated to the rights of their principal.

Besides, it does not appear that by any act or even neglect of the creditor, a1 subrogation to his rights, mortgages and privileges, can no longer be operated' in favor of the sureties. Vide Co. Art. 596; Amendatory Act, 1833, p. 170; 4 L. 302; 1 Ann. 123; Alley v. Hawthorn; C. C., Art. 3030.

2d. The appellant in his answer, claimed the'benefit of division, in the' event judgment should be rendered against the sureties, which was not allowed,, but judgment was rendered against the defendants in soii'do. The claim to division was resisted upon the ground of the insolvency of the sureties.

We consider that the insolvency of all the sureties, except Tester, is established by the testimony, and the plea of division cannot prevail, when the co-sureties are insolvent. Vide 4 Ann. 273; McCausland v. Lyons, et al, 5 Ann. 523; Holmes & Swanwick v. Steamer Belle Aire and owners, C. C., Art. 3018.

In conclusion, we would remark, that the surety on. an appeal bond is liable,, if any part of the judgment is affirmed. 3 Ann. 37, Diamond v. Petit; Ib. p. 389, Reiner v. Pendergast; 5 A. 523.

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


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    Edward Cooper v. C. H. Harrison.
    the claim of an agent against his principal for services in the selling of lands;, is not embraced in' the words “open accounts,” which, by the Statute of 1852, are prescribed against in three years, íl’en years is the only prescription against such a demand.
    I'he Act of the Legislature of 9th March, 1852, giving legal interest from the maturity of debts, does not affect debts contracted anterior to the passage of the Act.
    APPEAL from the District Court of Union, JiicJicmhon, J.

      Ludeling, for plaintiff and appellant.

      G. H. MorrissonT for defendant and appellee.
   Cole, J.

This suit is instituted, to recover four- thousand four hundred and ninety-six dollars and forty-four cents, the price of certain lands, alleged to have been sold by W. W. Farmer, as agent of plaintiff, who avers, that Fan'm-er never accounted to him for any part thereof. This action is brought against the Administrator of said Farmer's estate.

The defendant admitted the agency of Farmer in selling the lands, and pleaded in compensation and re-converition, certain sums specified in his answer.

There was judgment in favor of the plaintiff, for the sum of §2,148 99, with five per cent, interest, from judicial demand, (12th August, 1855,) and plaintiff has appealed.

There is error in allowing a credit of §103 14, for taxes paid by Farmer on lands of the plaintiff: the correct amount is §79 46, as contained in the receipts from No. 1 to No. 8, inclusive.

There are three other receipts for taxes in the record, hut they are for taxes on A. Dupuyster's land.

There is also error in stating the amount of the sale to Geo. Migóse to be $220, whereas it is §270 76.

The notes of Jesse and Lewis Tubb, are $302 10, instead of $300' 10'. These notes were returned to Oooper by the administrator, but Fa/rmer had received $60 00 thereon on the 17th of August, 1853.

There is also an error in the amount alleged to have been received from Cab laway.. It is put in the judgment $401 69, whereas it is proved that Frn'mer receivéd $591 76, being the amount of principal and interest.

It is objected by plaintiff, that the court allowed ñve per cent, commissions for selling on the amount of the notes of Q-. &. L. Tubbs, which were returned.

The District Judge was correct. Farmeo' was entitled to be paid a commission for selling the land; he was authorized to sell it on a credit, and it is just that he should be paid for selling in accordance with instructions.

The commission of ten per cent, on the balance of the amount of sale, is also opposed by plaintiff.

Fm'mer was at one time a surveyor, and it appears that ho was selected as land agent of plaintiffj because it was supposed the peculiar kowledge derived from the pursuit of that profession would render him eminently useful in the sale of lands.

Oooper was a large land holder, and speculated in this region of country, but his residence was in the State of New York.

It may be that ten per cent, is a very liberal allowance for the sale of plaintiff’s lands; but we do not feel disposed to interfere with the opinion of the District Judge on this point, because the present suit is against an estate, and it is impossible for the administrator to show all the services rendered by Farmer as fully as if he were living.

Plaintiff also avers there was no agreement to pay Farmer for his services; •The letters of plaintiff to Farmer, which are in evidence, show that he was instructed by Oooper to retain his commissions, and it was left to him to retain what he considered a fair compensation.

There is an error in the judgment in allowing interest only from judicial demand; it is due from the death of Fa/rmer. ’ C. P., Art. 989.

Defendant has plead in this court, the prescription of one, three and five years, and avers, that this action falls within .the meaning of the Statute of 1852, relative to prescription. No. 118, p. 90.

Section 2, of said Act, declares “ That the prescription of all other open accounts, the prescription of which is ten years under existing laws, shall be prescribed by three years."

We are of opinion, that the amounts due by an agent for the selling of lands, cannot be considered as embraced, in the sense of the Statute, in the words “open accounts.” And as they are not enumerated in the Articles in the Civil Code on prescription of one, three and five years, they, are consequently subject to that of ten years.

Defendant has asked in this court to have the judgment amended by allowing him a further credit of one thousand dollars. We think he is entitled to the amendment.

The Judge a quo considered an admission on the second of February, 1850, by plaintiff, of the receipt of one thousand dollars, as alluding to an acknowledgement of the same sum on the 21st Sept., 1848.

The internal evidence of the record is entirely in favor of viewing them as two distinct payments.

In plaintiff’s letter to Farmer, dated Sept. 21st, 1848, ho says: “ I received

in May last, a remittance, from Messrs. Bogcart & Foley, of §847; they having deducted §153, for money advanced and commissions, &c., which I acknowledged at the time.”

This thousand dollars was perhaps the product of the sale of land to John M. Veale, for one thousand and seventy-eight dollars and eighteen cents cash, oii the 20th of April, 1848. Oooper acknowledges he received the thousand dollars, less commissions, in May, 184S; as the land was sold in April, of the same year; there was about a month between the time of sale and the receipt of the money from Farmer, which is a reasonable lapse of time between the sale by Former and the time when the money ought to have been received by Oooper<

In plaintiff's letter, to Farmer, of Feb. 2d, 1850, he says, “your favor of 24th May, informing me of a shipment Of cottotl on which about “eighteen hundred dollars would be realized,” I think I informed you, - that one thous- and dollars had been remitted to me by Messrs. Bog cart <& Foley-, of New Orleans, since then I have been looking for another remittance, but presumed there was some cause for its not coming. You will please inform me on receipt of this, what prospect there is of your making a further remittance, and how you settled the matter with the persons with whom you expected to have a lawsuit. Could you possibly make arrangements to forward the balance of $1,800, say, eight hundred, if no more, by the latter part of March next.”

About seventeen months elapsed between the first of three letters and the second, and it hardly seems reasonable to suppose, that he alludes, in the second letter, to an acknowledgment made so long ago.-

In the first letter, he does not say he received, from Bogart & Foley, a thous- and dollars, but only $847, they having deducted $153 for charges, &c., whereas, in the second letter, he declares that a thousand dollars had been remitted to him.

In his first letter, he declares that he received the remittance’ in May, 1848, Whereas in the second letter he says “your-favor of 24-th May, (1849,) informing me of a shipment of cotton.” Now, it is probable that Farmer informed Oooper, as soon as he made the shipment; it must then have been shipped about the 24th May, and there would not have been time for the cotton to arrive in New Orleans, and to be sold, so that a remittance for the price of the sale thereof, could have been received by Oooper in New York, in May. To accomplish this, it would have been necessary that in the short space of seven days, that is, from 24th May to the end of the month, the cotton should have arrived in the city, been sold and remittance sent from New Orleans and received in New York.

In the second letter, it is clear, that the thousand dollars remitted, Were a part of the $1,800, which Farmer expected to realize on the cotton.

This is evident from the context, and also from the latter part of the letter where plaintiff says, “could you possibly make arrangements to forward the’ balance of $1,800, say eight hundred, if no more, by the latter part of March next.” Oooper acknowledges in this letter that Farmer had written to him, that he expected to realize $1,800 on the cotton; that he had received a thous- and, and he asks for the balance to be sent to him. As then the $1,000 in the second letter, was a part of the money made out of the cotton, and it was shipped, probably, about the 24th May, it is not reasonable to suppose that the $847, received in May, could have been a part of the price of the cotton: if it was not, it was a payment entirely distinct from the thousand dollars acknowledged in the second letter.

Besides, we find there was sufficient money due before the date of the second letter, to have enabled Farmer to have remitted even more than two thousand dollars, for on the 20th April, 1848, he received $1,078 18 cash. On the 1st of January, 1848, $748 10, was due him by Geoi’ge Lowery, and a similar sum was due by him on the 1st Jan. 1849, both amounts hearing eight per cent. interest from the 3d October, 1846. On the 1st March, 1848, $270 76, with eight per cent, interest from 8d October, 1846, was due by G. A. Kilgore; so that more than $3,046, were due Farmer for Cooper, before the second letter was written.

There is nothing then, strange in the hypothesis, that Farmer had received enough funds to forward $1,847, to Cooper, by the 2d Feb. 1850.

It should also be remembered, that the suit is against a deceased person. That plaintiff has not admitted in his petition any credits, although some are clearly established by the testimony.

We are of opinion, that from the evidence and circumstances of this case, defendant is entitled to the credit of a thousand dollars more than was allowed by the District Court.

It is urged by plaintiff, that legal interest is due to him from the time the money was collected by Farmer.

The whole therefore, except a trifling sum, was due before the 9th of March, 1852, the date of the Act, which gives legal interest from the maturity of debts.

This Act does not affect debts created anterior to its passage, even if it could affect those due by an agent to his principal.

The following is the basis of our judgment:

Farmer, as agent of Cooper, sold lands to the following persons, for the prices stated, to wit:

To John, M. Teale,.....................for $1,078 12J cash ... .$1,078
Jessee & Lewis Tubb........ 302 10 credit.. 302 10
George Kilgore............ 270 76 270 76
Jessee Tubb................. 274 23 374 33
George Lowry............. 1,496 20 1,496 20
John Sholers.................... 975 43 975 43
L. C. Galloway............. 591 76 591 76
Making the aggregate of land sold, say $4,988 60-J..............$4,988 60-J-
Ceedits.
1.He is entitled to a credit of the Tubb notes which were returned by the Administrator to Ooopeo'................ $ 576 33
2. Commission of 5 per cent, for selling on $576 33.......... 28 80
3. “ “ 10 “ “ “ “ “ $4,412 27, which is
the real amount of sales, after deducting from $3,988 60-J,
the Tubb notes, $576 33, which were returned............. 441 20
4. Amount of taxes paid by Farmer on lands of Cooper...... 79 46
5. Remitted through Bogart & Foley...................... 2,460 68
Three remittances, two of $1,000, each, and one of $468 68.
Total amount of credits, say, $3,594 47 $3,594 47

Balance due $1,394 13&, with 5 per cent, interest from the death of Fa/rmm', to-wit: the 1st November, 1854.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed. And it is further ordered, adjudged and decreed, that plaintiff recover of defendants ($1,394 13,) with five per cent, interest thereon, from the 1st November, 1854.

It is further ordered and decreed, that defendant pay the cost of the lower court, and plaintiff and appellant those of appeal, and that the judgment be paid in due course of administration.


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    J. D. Christian v. J. Monette.
    When the consideration of the assignment of a judgment by A, to B. was, that B. might avail himself of thejudgment to compensate certain unmatured’ notes due by him to (7., the judgment debtor, and B. promised and undertook to pay the amount of said notes when they become due to A. B"eld: That the contract might be enforced by A although the notes were not in his possession.
    Where a party is aware of the injury that may result to him from a compliance with his part of the contract, and yet voluntarily enters into it, he cannot afterwards require an indemnifying bond, and if a bond was given at the time of the contract, he can require no other, even if its amount is insufficient'to protect him against loss.
    APPEAL from the District Court of Morehouse, Richardson, J.

      McGuire & Rap, for plaintiff and appellant.

      Newton & Ball, for defendant.
   Cole, J.

The points in this case will be more easily comprehended by an examination of the facts.

Ja/mes Monette, defendant, owed Charles J. Gee two notes, each for $375, one due 1st March, 1854, the other 1st of March, 1855, with eight per cent, interest per annum after maturity.

Joseph,B. Christian, plaintiff, was the owner of a judgment against the said Gee, for $1,696 30, with eight per cent, per annum interest, from the 27th of May, 1847.

Christian proposed to Monette to transfer to him the judgment, if Monette would pay him the amount of the two notes he owed Gee. This proposition was accepted.

Christian then transferred to Monette thejudgment, and in the act of transfer Monette agreed to pay to Christian the several notes which he had executed in favor of Gee, as the same respectively fell due, &c. It was further stipulated in the act of transfer, it was the intention of the parties, that Ghristiam, by this assignment, shall enable Monette to compensate the said notes against Gee, and Monette was to pay the two notes herein mentioned to Christian, at their maturity, in consideration thereof.

In document A, which was' the written contract between the parties, there is nothing said about a bond to be executed by Christian to Monette, to guarantee his part of the contract.

It appears that on the same day of the execution of contract A, Christian, with W. B. Gallaspy, as his security, executed a bond in favor of Monette for §500, which, after reciting and referring- to the contract A, stipulates that: “ If the said Joseph Christian shall well and truly defend and save harmless the said James Monette against any suits, or actions at law, which the said CluM'les J. Gee, or any one else pretending to be his assignee of the said notes, may institute against said Monette, on account thereof, as arising thereout or therefrom, and shall assume and pay all the costs, damages and expenses of litigation of whatever nature and kind having relation thereto, then this obligation to be null and void, otherwise to be and remain in full force and virtue as a penal obligation.”

Monette having failed to pay according to said contract, this suit was instituted against him by Christian, on the contract A, for §750; the amount of the two notes given by Monette to Gee for §375 each, with eight per cent, interest from maturity.

It was tried before a jury, who rendered a verdict for the amount due, but affixed a condition that plaintiff should secure the defendant “ with an indemnifying bond for doublo the amount at issue, with good and sufficient security in this State and parish to indemnify the defendant against those Gee notes, if ever presented; the date and amount of each note to be specified in the bond; that the bond to be executed in five days after the adjournment of court, or the contract be null and void and of no effect.”

Plaintiff has appealed from the judgment on account of this condition, and we are of opinion, that the jury had no right to annex it to their verdict.

The rights and obligations of contracting parties must be determined by their contracts, and the law applicable thereto.

An examination of the contract A, shows that plaintiff did not have or expect to have the Gee notes in his possession at their maturity; but notwithstanding that, defendant was to pay plaintiff the amount of them, so no deception was practised by plaintiff or his counsel, on defendant. Besides, the question of off-set or compensation is one of law, and defendant cannot plead ignorance of the law. Besides, there is no stipulation in the contract A, that plaintiff was to give security to the defendant to insure the performance of his part of the contract; yet, as the bond B, was executed at the same time with the contract A, for the purposes therein stipulated, and left with said document A, in the possession of Robertson, by consent of both parties, it is justly to he presumed that plaintiff did give the bond B to defendant, and that it was accepted by him as satisfactory at the time.

Robertson testifies : “ The documents A and B were written by me, and I saw the parties sign them; they were executed at the same time in my office; Monette was present when the documents were left by consent of both parties in my possession; they were obtained from me by the counsel of the plaintiff in this case.”

The security on the bond resided in Arkansas at the time the bond was signed; defendant cannot then now object that he is a non-resident.

We would also observe, that defendant, by signing the obligation A, has acknowledged the transfer to him of the judgment therein spoken of, and agreed to pay the pripe stipulated.

A mere allegation of his, that the consideration has failed, unsupported by any evidence whatever, does not throw on plaintiff the onus of proving the consideration, or of showing it was what it purported to be on the face of the contract.

There is nothing to establish that “ Gee” is not still the holder of the notes ; on the contrary, it would appear that he is ; at any rate, the evidence is such that Monette might defeat any action that Gee or any holder of these notes might bring against Monette on them, by having them compensated by the judgment transferred to Monette.

Bobo, a witness, shows that “ Gee” sent him copies of the notes to have them collected after they were due.

It should also be observed, that the last of the “ Gee notes” matured the last of March, 1855, and no suit has yet been instituted against Monette on either of them; so the contingency has not yet happened when defendant could call on plaintiff to defend him against said notes, as he obligated himself in the bond to do.

It is also objected, that after the agreement of transfer, defendant became dissatisfied with the arrangement; and plaintiff then brought suit in his own name upon the judgment against Gee, and made defendant, Monette, party as garnishee.

This suit was intended to reach the notes in the hands of Gee, or to effect a legal seizure of them, and to free Monettee from any liability on them, upon paying the amount to plaintiff.

It was also instituted at the request and for the benefit and protection of defendant, as appears from the testimony of ¡Robertson, who declares:

“When the defendant’s first note mentioned in the agreement fell due, I applied to Monette for Christian for payment. Monette expi'essed an unwillingness to pay, because he did not consider himself safe in making that payment, because the note was not in my possession, and was understood to have been sent by Mr. Gee to Mr. AroJnbald MeJner. Monette suggested to me the propriety of instituting such an action as I afterwards did bring against Gee, for his protection. I then filed the papers in that suit, which is the suit of attachment against Gee, making Monette the garnishee for the amount of the note, propounding interrogatories to him as garnishee.”
“Mr. Monette did not express any dissatisfaction with the first arrangements, but thought they were not safe enough for his protection, for the notes which he had given to Gee, referred to in the agreement.”

This evidence shows that defendant cannot avail himself of this suit as a defence in the action at bar. It was instituted at his suggestion, and can only be regarded as a desire on the part of plaintiff to do any thing that defendant might propose for his protection.

We are of opinion, that when a party is aware of the injury that may result to him from a compliance with his part of the contract, and yet voluntarily enters into it, he cannot afterwards require an indemnifying bond; and if a bond was given at the time of the contract, he can require no other, even if its amount is insufficient to protect him against loss.

Plaintiff is then entitled to have the judgment amended as prayed for.

It is, therefore, ordered, adjudged and decreed, that the part of the judgment which requires plaintiff to furnish an indemnifying bond, be avoided and reversed ; and that the judgment be in all other respects affirmed, with costs.


author: Merrick, C. J.

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    Vicksburg, Shreveport & Texas Railroad v. A. C. McKean.
    Parol declarations made by officers of a company on public occasions, if admissible at all to invalidate a subscription for stock, cannot avail a subscriber who does not show that such declarations amounted to fraud on the part of the company, inducing error on his own part when lie subscribed*
    The Act incorporating the Vicksburg, Shreveport and Texas Railroad Company, required the company to commence the work in sections as nearly simultaneously as may be, and pointed out where the sections should begin, and in what direction the work should be carried on. It contained a proviso that the stock subscribers in each parish or corporation, or a majority in amount should have the right to designate on what section of the road they desired their stock subscriptions to be used. Defendant, when sued for his stock subscription, offered to prove that the company had abandoned the idea of working on one section, and had determined to appropriate the funds of the company to work on another section. Held: That the evidence was properly rejected for the defence set up, could not avail defendant

    A stock subscriber who had not paid his five per cent, at the time of subscribing, could not avail himself of the plea that the charter required it to be paid at the time of subscribing, and in default thereof, declared his subscription forfeited — for it was his duty to make the payment, and to sustain such a defence, would be to permit a party to avail himself of his own wrong.
    APPEAL from the District Court of Ouachita. 1lichao'dson, J.

      McGuire & Pap, for plaintiff.

      ludeling, for defendant and appellant.
   Merrick, C. J.

The defendant subscribed to forty shares of stock in the Vicksburg, Shreveport and Texas Railroad Company. At the time of subscription, the defendant did not pay the five per cent, upon the subscription as contemplated by the third section of the original Act, recited in the preamble of the Act of 28th April, 1853, incorporating said company. Acts 1853. p. 183.

The defendant being inarrearages on the instalments called in, to the amount of $550 00, the present action was instituted to enforce the collection of the same.

The defendant resists the present action in this court, on three grounds, viz:

1st. That he never subscribed for the stock on the terms stated in the charter of the company, or in the petition of the plaintiffs.

2d. That the plaintiff has altered the contract (if there be a contract) without defendant’s consent.

3d. That the defendant did not pay the five per centum which he afterwards learned was necessary to render his subscription valid.

I. On the first part, the defendant produces the testimony of Patrick, who says, “ I was present at the Railroad meeting at Eorksvillo, referred to in defendant’s answer. The defendant made a speech against the Railroad tax. I have no distinct recollection what Ool. Coleman, (the president) did say, as it has been a long time since, but it is my opinion he said that if the taw was carried, the taw would be deducted from their subscriptions, and if it was not carried they would not have their subscriptions to pay. He said so, as well as I recollect, a considerable time after waiting for persons to subscribe. It was after Oolemam said this that A. C. McKean subscribed

This testimony was excepted to by the counsel for the plaintiff, on the ground that what was said at the time or before the defendant subscribed, the charter could not be received to vary the written contract, and that the president or the company could not, nor could any stockholder, or any other persons, alter the conditions for the subscription of stock.

If admissible, the testimony on this branch of the defendant’s case, is very unsatisfactory. It is only a matter of opinion with his witness, while other intelligent witnesses heard nothing of the kind in the speech referred to.

If parol declarations as understood by witnesses to have been made by officers of a company on public occasions, can be given in evidence to invalidate the subscription of stock, there will be very little security to those who loan money or render assistance to institutions of this kind. The defendant has not shown that fraud on the part of the company, inducing error on his own part which after this lapse of time will entitle him to relief.

II. The twenty-first section of the original Act, required the company to commence the work in sections as nearly simultaneously as may be; one section to commence on the Mississippi River and run west, one section to commence on the Ouachita River and run either cast or west, or both, as may be thought best, and one section to commence on Red River, and to run east or west, or both, as may be thought best; provided the stock subscribers in each parish or corporation, or majority in amount, shall have the right to designate on what section of said road they desire their stock subscription to be used. On the trial the defendant offered to prove by a resolution of the company, that the board of directors “had abandoned the idea of working on the section of the road on the Ouachita River, and determined to appropriate the funds of the company to work the section of the road commencing on the Mississippi River,” but on the objection of plaintiff’s counsel, the testimony was excluded. The Judge of the District Court did not err, non constat, but the directors were instructed where to commence the work by the stockholders under the proviso above recited. If that were not the case, and the 1st section of the Act should be considered as imperative, instead of being- simply direetory, it would not benefit the defendant’s case. It might possibly give rise to a proceeding on the part of the government to cause the charter of the company to be forfeited, but it could not relieve a stockholder from his subscription of stock. 2 Rob. 213.

III. We do not understand the charter of this company to declare the subscription of stock to be absolutely void for the non-payment of the five per cent., directed to be paid at the time of subscribing each share.

It was the duty of the defendant to have paid it, and it is a rule of law that no man should be permitted to take advantage of his own wrong. Canal Bank v. Holand. 5 Ann. 365. Red River Railroad Company v. Young. 6 Rob. 40.

The testimony of Morrison a stockholder, was under the statute admissible, and on the whole we think the case is clearly with the plaintiff, and that the judgment of the lower court should be affirmed.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be affirmed with cost..


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    Scott, Carhart & Co. v. Sarah E. Jackson, et al.
    The party who relies on an exception dilatory in its nature, although arising from the force of th« proceeding, must specially plead his exception and point out the particular defect upon which he relies.
    ■When a wife had obtained a judgment for separation of property against the husband, and under her execution had purchased a tract of land, but omitted to record the sheriff’s déed to the saime, until after a creditor of the husband had obtained and recorded a judgment against him. JZeld : That the sale to the wife, as to the judgment creditor of the husband was null and void, because not recorded according to law, and that the wife had the option to pay the creditor or suffer the property to be sold and essert her mortgage (and the Valid mortgages to Which she was legally subrogated,) upon the proceeds of the sale.
    The court takes judicial cognizance of the signatures of recorders, and when no objection, has been made to the introduction of the certificate, it must be held as proving whatever can be reasonably and fairly implied from it.
    APPEAL from the District Court of Jackson. Richardson, J.

      J. W. Steel, for plaintiff.

      McGuire S Ray, for defendant and appellant.
   Merrick, O. J.

This is an hypothecary action against the defendant as third possessor. The exception that “ the allegations in plaintiff’s petition do not entitle them to any judgment against the defendants ” is not sufficiently special to enable the defendant to raise the question whether the previous demand's were formally alleged or not. The party who relies upon an exception dilatory in its nature, although arising from the form of the proceeding, must specially plead his exception, aud point out the particular defect upon which he relies. The exception filed merely raises the question whether tlie plaintiff has a substantial demand against the defendant.

The defendant obtained apparently a valid judgment against her husband for separation of property in March 1851. In execution of her judgment, she seized the tract of land and slave on which the plaintiff’s are now attempting to enforce their mortgage, and on the 1st day of May, 1851, she became the purchaser of the same. She did not cause her deed from the sheriff to be recorded until the 20th February, 1852. In the mean time the plaintiffs having-obtained judgment against Moore, the husband of the defendant, caused the same to he recorded as a judicial mortgage on the 20th November, 1851, and the present suit is against the wife to subject the property purchased by her, to the plaintiff’s judgment by reason of the recording- of their judgment previous to the registry of the sheriff’s deed to the defendant. The plaintiffs contend that under the Act 1813, re-enacted in the statutes of 1855, p. 335 (revised statutes 453,) the defendant’s deed from the sheriff could have no effect against them as third persons. The defendant relies on the case of Wolf & Clark v. Lowry, 10 Ann. 272, and alleges that the sale extinguished any mortgage younger than her own. In the case cited, a junior judicial mortgage which existed at the time of sale and figured on the certificate of mortgages, was held to have been extinguished by the sale upon the superior mortgage of the wife, and that her subsequent neglect to record her sheriff’s deed did not revive to her prejudice the mortgages which the sheriff was bound under Art. 708. O. O. to release. In the case before us, as in that case, the wife had caused her deed to be recorded before the seizure of her property was attempted. The only difference between the two cases is,, that in the case cited, the judgment was recorded at the time of the seizure and sale of the property, in this, the judgment was recovered and recorded afterwards. It is probable that if the plaintiff’s judicial mortgage had been in existence at the time of the sale, it would have been extinguished by it, and that the plaintiffs were not injured by the neglect to record the sheriff’s deed to the defendant, for the property did not bring enough to pay the prior mortgages resting upon it including the defendant’s, in full. Still it is possible they might, had they been, in the situation of junior mortgage creditors, have themselves bid more for the property and thus secured a part of their debt. The argument therefore that the plaintiffs have no reason to complain that defendant’s deed was not recorded because they have not been injured by the neglect, is not entirely conclusive. The case must therefore be decided upon the statute and the articles of the Code of Practice. At the sheriff's sale it was not in the power of the sheriff to release the plaintiff’s mortgage because it was not in existence. Plaintiffs were not bound to attend the sale to protect themselves against the superior mortgage of the defendant, for they had none themselves. They were third persons. As to them by the very words of the statute, the sale made by the sheriff of the land and slave “was utterly null arid void,” because not recorded as required by law. In the eye of the law, as to them, the property was still the property of Moore, and the registry of their judgment was valid as a judicial mortgag'e against him. The plaintiffs who might have seized the prop, erty at once as that of Moore under an execution, until the deed was recorded, now very properly treat the defendant as a third possessor. Their mortgage is junior to that of the wife, and to those prior mortgages which she has assumed or paid, and she has the option to pay the plaintiff ,s demand, or suffer the property to be sold and assert her mortgage (and the valid mortgages to which she is legally subrogated,) upon the proceeds.

As to the objection made in this court to the certificate of the recorder of mortgages, it is proper to observe in conclusion, that we take judicial notice of the signature of the-recorder of the parish of Jackson, and as the defendant did not object to the introduction of the certificate when offered, it must be held as proving whatever can be reasonably and fairly implied from it. Had defendant made the objection at the time the testimony ’was offered, it would doubtless have been obviated by a formal certificate under seal.

As it regards the cost, the defendant had the right to require the production of a bill detailing the items of the same. Sho waived this right by allowing the receipts for the costs to be offered in evidence without reference to the cost bills. The court did not err in enforcing the mortgage for the costs also. 2 Ann. 610.

Judgment affirmed.


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    E. M. Jenkins, tutor v. Grigsby, et al.
    TVhere plaintiff prays that defendant “ be notified of his demand by service of citation and a copy of the petition,” and defendant is cited in the usual way it will be regarded as an ordinary action.
    If plaintiff who has a right to an executory proceeding selects the ordinary process,, the defendant has a right to answer, and after issue joined, the plaintiff is precluded from discontinuing tlie ordinary, and resorting to executory action.
    APPEAL from the District Court of Caddo. Oreswell, J.

      Landrum & Williamson, for plaintiff'

      Hodge & Austin, for defendant and appellant.
   Merrick, O. J.

The plaintiff being the holder, in her capacity of tutrix* of paper secured by mortgage on property in possession of the defendant as third possessor, filed her petition in the District Court for the parish of Caddo» setting forth her cause of action and concluding with the following prayer:

“Wherefore petitioners pray, the premises being considered, that the said John V. Grigsby who is now present, and in the parish of Caddo, be notified of this demand by service of citation, and a copy of this petition, and that on his default to return the property above described, or to pay the sum horetore set forth and claimed, that an order of seizure and sale issue to the sheriff of the parish of Caddo, commanding him. to seize and sell the said parcel of land,and to-pay out of the proceeds, thereof, to petitioner, $4,725 &c., and for all necessary orders and decrees, and for general relief.”

Citation in the usual form issued and was served with the petition upon th© defendant in January, 1857.

On the 30th of May, the cause was by order of the court set for trial on the; 5th of June. On the 5th of June, an order was entered on the-minutes granting a delay until June 8th, for defendant to answer and fixing the cause for trial on the 9th of same month. On the 9th day of June, the defendant offered to file his answer, which was objected to, on the grounds that action was-ride exeeuiira, and therefore defendant had no right to file an answer, and that he has no right to call Lewis K- Grigsby in warranty. The court refused to allow the defendant to file his answer on the first of those grounds, and defendant excepted.

The case was afterwards reassigned for trial and judgment rendered in favor of plaintiff, ordering the land to be seized and sold to satisfy the plaintiff’s demand.

The first question presented by the defendant and appellant is, did the court err in refusing to allow defendant to file his answer ?

In the answer, the defendant joined by his vendor and warrantor, sets up various defences to the plaintiff’s action. If, therefore, he had a right to file the same in the lower court, the cause must be remanded, to allow him to prove his allegations.

The Code of Practice divides actions into three kinds, ordinary, executory and summary. Art. 97. The ordinany action is where citation takes place and all the delays and forms of law are observed. They are executory when the seizure is obtained against the property ©f the debtor, without previous citation in virtue of an Act or title imparting confession of judgment, or in other cases provided by law. They are summary when carried on with rapidity and without the observance of the formalities required in ordinary cases. Art. 98. According to the foregoing definition the action instituted in this case was an ordinary action. It was, at the prayer of the plaintiff, preceded by a citation calling upon the defendant under the mandate of the court to answer the plaintiff’s demand within the delays allowed by law in ordinary cases. The plaintiff had the option to resort to this mode, or to obtain an order of seizure and s^ll without previous citation as allowed by Art. 734 of the Code of Practice. Having made his selection, the question arises is he so bound by it that he cannot recur to the executory process. Possibly so long as the contestatu titis had not been formed in this suit, he had the right to discontinue, pay costs, and commence de novo in the other form of the action. However, this may be, it is clear that so long as this suit was pending, the plaintiff could not resort to the executory process, as so soon as an issue had been tendered by the answer, the plaintiff’s citation had become absolute and he was forever precluded from resorting to that proceeding. 3 N. S. 501, 504 Gurtée v. Cognet. 2 L. R. 547. De Gruy Syndic v. Hennen. 2 Ann. 489.

The defendant had, therefore the right to file his answer and to be hoard upon his allegations therein as in other cases.

It is ordered, adjudged and decreed, by the court, that the judgment of the lower court be avoided and reversed, and that the case, be remanded to the lower court with instructions to the same to receive and cause the answer of the defendant annexed to his bill of exceptions to be filed, and otherwise proceed according to law, the plaintiff paying the costs of the appeal.


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    State v. Winfree’s Securities.
    The Act of 1857 which gave to the auditor of public aocouuts the remedy of a writ of distress against delinquent tax collectors and their sureties, merely provided a remedy of which the auditor could have availed himself while it was in. force. But the failure of the auditor to exercise the remedy and enforce the demands cf the State against tax collectors, cannot deprive the State of its right to collect the unpaid dues by another remedy provided subsequent to the delinquency; for when an obligation is due, a change in the mode of procedure does not affect it.
    Where the obligation of the sureties on a tax collector’s bond is solidary, the State may proceed against them before obtaining judgment against the principle obligator.
    The caso as presented by this action, is not inconsistent with the Code of Practice, it is not affected therefore by any repealing clause in the law of 1855, for there is a saving clause in the Act excluding from repeal the provisions of the Code of Practice on the subject.
    Parties who sign a bond impliedly waive defects in its form.
    Actions against tax collectors or their sureties, are not prescribed by 1, 2, 8, 4 or 5 years.
    APPEAL from the District Court of Morehouse. Richardson, J.

      JP. B. Stubbs, District Attorney for the State.

      McGuire & Ray, for defendants.
   Cole, J.

This suit was instituted at the order of the Auditor of Public Accounts on the 15th September, 1852, against a number of persons, as securities in solido for A. B. O. Winfrey, State Tax Collector for the parish of Morehouse in the year 1848, for the taxes of 1847.

The amount of State tax for said parish for 1847, was $5,428 40, of which amount the collector paid to the accounting officer, $3,555 03, leaving a balance due the State of $1,873 37, for which amount, with two per cent, per month interest, since the 1st January, 1849, this suit is brought.

There was judgment against the State as in case of non-suit in the lower court, and the State appeals from this judgment.

The answer of defendant admits the genuineness of their signatures to the bond sued on, but sets up several objections to this proceeding, and denies their liability. We will now consider the objections of defendants:

1st. That the Acts of 1847 and 1848, relative to tax collectors, provided that the failure of the collector to account and make payment within the time prescribed causes the balance standing against him on the Auditor’s books, with a forfeiture of his commission and two per cent, per month interest on the sum withheld from the time it should have been paid, to operate a judgment against the delinquent and his securities, and that the 63d Sec. Art. 1847 p. 175, provided as follows: “And the Auditor of Public Accounts shall charge such delinquent accordingly, and immediately after such delinquency shall occur, issue a writ of distress, which shall have the force and effect of a writ of fieri facias against the delinquent and his securities.

Defendant argues, that the effect of this law is to give to the balance standng on the Auditor’s books, after the time for payment has expired, with two per cent, interest from that time, the force and effect of a judgment, and to close the matter between the parties, and that the State cannot by a subsequent act open it, nor commence and carry on this suit for a debt already liquidated by a judgment. We are of opinion that this objection is without force.

The section alluded to merely provided a remedy for the collection of taxes, which the Auditor could have availed himself of at the time it was in existence.

He did not exercise it, and his inaction cannot deprive the State of its rights to collect the amount due by a remedy now in force.

Besides this law did not give the balance on the Auditor’s books the effect of a judgment in such a way, that the amount, for which a writ of distress issued,' must be considered as finally settled, as if by an ordinary suit and judgment. The sole object of the law in giving to the writ of distress the force and effect of a fi fa., was to provide a speedy remedy for the collection of amounts due the State. And the existence of this remedy did not so merge the bond in the judgment, as to prevent this suit on the bond.

When an obligation is due, a change of the mode of procedure for the collection of debts, affects the remedy but not the obligation, and plaintiff was entitled to use the remedy, which was in force at the time of instituting this suit and which continues still in existence.

2d. That the 71st Sec. of the Art. of 1855, “to provide a revenue and the manner of collecting the same,” R. S. p. 475, requires that the Auditor of Public Accounts “may require the District Attorney of the District, wherein such tax collector may perform his functions, to proceed against such tax collector and his securities by rule, before any competent court, after three days notice, for the recovery of the amount due by the tax collector.

Defendants urge, that the plaintiff was bound to have first obtained and executed judgment against the principal before proceeding against the securities.

This statute is merely directory, and does not deprive the State of the right of proceeding against the sureties, when they have, as in the present case, obligated themselves in solido.

Vide. C. C. 3014. Ballew v. Andrews Executor, 10 L. 219.

3d. That the repealing clause in the Act of 1855, must cause this suit to abate, because the modes of procedure previous to”its enactment for the collection of bonds of Sheriffs’ are repealed by this Act. This objection is not valid; the mode of instituting this suit is not inconsistent with, or antagonistical to the provisions of the Code of Practice, and as the repealing clause excepted the Code of Practice, plaintiff has then the right to carry on this cause, and his action is not abated by said Act.

4th. That the forms of law have not been observed to give effect to the bond sued on.

The objections under this branch of defendant’s argument cannot be maintained, for in signing the bond, they impliedly waived them.

Vide. State v. Hays, et al. 7 A. 118. State v. Securities of A. J. Law 11 A. p.—; Police Jury v. Haw; 2 L. 47; 3 M. N. S. 594. Whitehurst v. Hickey; Villere v. Armstrong; 4 N. S. 35.

"We do not consider the other objections as tenable.

As to the plea of prescription, we would observe, that claims of the kind now sued for, are not subject to the prescription of two, three, four and five years.

Plaintiff has established the amount to be due, as alleged in his petition.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed.

It is further ordered, adjudged and decreed, that plaintiff recover in solido of the defendants, Joseph W. Westmoreland, Thomas M. Jones, Thomas F. JDenncvt'A, Thomas O. Mathews, Aaron Livingston, Helson Delemar, J. W. Johnston and William Barnett, one thousand eight hundred and seventy three dollars and thirty-seven cents, with two per cent, per month interest thereon since the first day of January, 1849, and the costs of both courts.