author: Existís, C. J.

text:
    Duke v. Routh et al.
    An order of seizure and sale cannot be issued on a judgment, rendered in another State against a defendant, who appeared, but did not plead. A judgment so rendered is a judgment by default.
    Slaves seized under an order of ¡Seizure and sale against an absentee; must bo sold at the seat of justice of the parish, or at some other public place in its vicinity. C, P. 664. Stat. 5 March, 1842, s. 1.
    APPEAL from the District Court of Tensas, Selby, J. This is an action of revendication, to recover certain slaves in the possession of the defendant Routh, and to set aside the order of seizure and sale under which they were sold, and purchased by him. The seizing creditor, the Bank of Alabama, was made a party. The judgment upon which the order of seizure issued, was rendered against the plaintiff, Duke, in the Circuit Court of Montgomery county, Alabama. '
    The judgment is as follows : “ And it appearing to the court that thirty days# notice of this motion has been given to the defendants, who also appearing by attorney, and saying nothing in bar or preclusion of the samé, it is therefore ordered, <fec.” There was judgment below against the plaintiff, who appealed.

      Montgomery, Stacy and Sparrow, for the appellant.
    This was a judgment by default, by nil dicit. 1 Tidd’s Practice, p. 505. 2 Lee’s Dictionary, p. 859, 860. It did not, under the article of our Code of Practice, authorise the order of seizure and sale, which, as well as all the proceedings and the sale tirade under it, are null and void. Canal Bank v. Copland, 12 La. 224.

      The sale was also void for the following reasons: The defendant, Dulce,■was an absentee, and a curator ad hoc was appointed to represent him. The slaves were found in the parish of Tensas, in the possession of South, having been hired to him by Duke, and without the consent of Duke, or of the curator ad hoc, were advertised to be sold, and were sold, on South’s plantation, and not at the seat of justice of the parish. C. P. arts. 664, 6G5, 666. Acts of 1824, p.210. Lawrence, Syndic, v. Bowman, 6 Rob. 21. 17 La. 82. In consequence of the property having been illegally advertised and sold on the plantation of South, it was sacrificed for half its value. The order of seizure and sale, and all the proceedings, should be annulled and set aside, and the defendant decreed to pay hire for the slaves, since the date of the sheriff’s sale, the 2d August, 1845.

      Prentiss and Finney, for the defendant, South.

    The judgment in Alabama was not a judgment by default, in the sense of article 747, and was sufficient to authorize executory process. The judgment recites, that the defendant appeared by attorney, and permitted the judgment to be entered against him. This is equivalent to a judgment by confession; the party was present by attorney, and allowed the judgment to be entered against him. It cannot be contended that a judgment by confession, is not sufficient to sustain executory process. The judgment by default, meant by art. 747, is one of which the party was ignorant at the time of its rendition, and where he did not appear either by himself or attorney. This is manifest from an observation of other articles in-regard to judgments by default. Article 310, C. P. says: “ If the defendant do not appear either in person or by his advocate, after the delay provided bylaw, the plaintiff may take a judgment by default against him.” Also, art. 311 requires that a judgment by default must show upon the record, that the defendant failed to appear. Art. 312 says : “ If the defendant neither appear nor file-his answer, a definitive judgment will be given.” Now defendant did appear in. the judgment, and, not opposing it, it is the same as a judgment by confession.
    As to the sale, the only defect that can be set up is, that it took place on, South’s plantation, instead of at the parish seat of justice.
    A defendant has the privilege of having slaves sold on the plantation where they are employed; these slaves were in South’s possession. It will be presumed that the sale on the plantation was at the instance of defendant’s agent or curator, there being no evidence to the contrary.

      South prays, that if the sale be not sustained, lie have judgment against the-Bank of Alabama and plaintiff, for the amount paid by him with interest, &c.

      Elmore and. W. W. King, for the Bank of Alabama, defendants.
   The judgment of the court was pronounced by

Existís, C. J.

This suit is instituted to annul an order of seizure and sale- and the sale made under it, and to recover fi’om the defendant South certain slaves, purchased by him at him at the shei'iff !s sale.

The order of seizure was granted on a judgment rendered by the Circuit Court of Alabama, for Montgomery county. The defendant appeared, but did not plead; judgment was taken against him by nil dicit. This is a judgment by default. 1 Tidd’s Prac. 505. 3 Blackstone’s Com. 296. The order of seizure and sale could not legally be granted on a judgment rendered in anotheiv State by default.

The sale of the slaves was not made at the place required by law ; it was-made on the plantation of the defendant, South. The plaintiff was absent, and-only represented by a curator ad hoc, appointed for that purpose.- The sale ought to have been made at the court-house of the parish, or in some other-public place in its vicinity C. P. art. 664. Acts of 1842, p. 210.

There are circumstances which lead us to believe that the debtor was not permitted to have, for the sale of his property, that public competition which the law secured to him.

It is therefore ordered that the judgment appealed from be reversed, that the sheriff’s sale be annulled,’ and that the plaintiff recover from the- defendant, Routh, the slaves mentioned in the sheriff’s deed of sale annexed to the said plaintiff’s petition, together with the sum of five hundred dollars per annum, from tho 2d day of August, 1845, until said slaves be delivered to said plaintiff; it is further ordered that said defendant, Routh, pay the costs of both courts.


source: Caselaw Access Project

author: Slidell, J.

license: Public Domain

text:
    Isabella v. Pecot.
    An appeal will be dismissed only where the appellee shows himself-clearly entitled to that relief. In ease of doubt, the interpretation will bo liberal in favor of the appellant.
    Where an appeal is granted on motion, in open court, no-citation is necessary.
    An irregularity in the mode of bringing up an appeal, not mentioned among tho grounds set forth in a motion to dismiss, will not be noticed.
    It is a general principle of evidence that, the best evidence must be produced which'the nature of the case admits of.
    Where a witness is introduced by a party to prove the law of a foreign country, the opposite party may require that he shall be first asked, whether the law, as to which ho is about to testify, is written or unwritten. If he answers that the law is unwritten, his 'testimony will be admissible to prove what it is; if written, an authenticated copy of the law, or at least a copy proved to be a true copy by a witness who has examined and-compared it with the original, can alone be received.
    ;State courts have no jurisdiction of an action for freedom, instituted by ono held as a slave against a person by whom it is alleged that she was illegally brought into the State from a foreign country, or against those holding under such a person. The courts of the United .States have exclusive jurisdiction to ascertain and punish the offence of such an illegal importation ; and, if the offence be established, the person imported must remain in the custody of tho marshal, subject to the orders of the President of the United States. Acts of Con. gress of 20 April, 1818, and 3 March, 1819, s. 3. The laws of this State do not consider that the freedom of the slave can be acquired by such an illegal importation.
    APPEAL from. the District Court of St. Mary, Boyce, J. The petitioner alleges that she is a woman of color, and was brought into the State of Louisiana, about the first of March, 1836, by one Thomas Gates, from Mexico, where she was held as a slave by Gates; that, after she was brought into this State, she was held as a slave, and seized and sold to pay the debts of Gates, and was purchased by Milton Johnson, in 1840, and that at the sale of the estate ■of the latter she was purchased by William, C. Dwight, who not paying for her, she was seized and sold at public auction, in October, 1842, to Pecot; that Pecot, when he purchased her, was informed that she claimed her freedom, as she had been brought into Louisiana, from Texas; that since said sale, Pecot has held your petitioner in bondage, as a slave; that by the constitution and laws of Mexico, slavery is not tolerated, but is prohibited; and that she was brought into the United States in violation of the constitution and laws thereof, and that by the laws of the United States no one can hold her in slavery. Wherefore, she prays that she may be permitted to sue for her freedom; that she may be taken into the possession of the sheriff of St. Mary; and that she may be declared free.

      Pecot, the defendant, filled a general denial, but admitted that he bought the slave as alleged, and avers that he is her bona, fide owner, &c. He cited Carson, administrator of Johnson’s estate, and Dwight, in warranty. Dwight denied that Pecot had any claim against him in warranty, and answered that he purchased said slave from Sarah Johnson, wife of N. Dalsheimer, who he prays may be cited in warranty.

      Sarah Johnson and her husband filed a general denial, and specially denied any warranty, as Dwight placed himself in lieu and stead of the respondents, and was subrogated to the right of Sarah Johnson against Milton Johnson's estate, &c. They further alleged, that they purchased the slave from the estate of Milton Johnson, and that Carson, administrator of his estate, is bound in warranty, who they pray may be cited. John Carson filed a general denial, &c.
    Bofore the trial, the warrantors fded an exception to the jurisdiction of the court, on the ground that the Circuit or District Court of the United States had exclusively the right to pronounce upon the charge of illegally importing the slave, which was overruled by the court, and a bill of exceptions taken.
    On the trial a witness was offered to prove that slavery w.as prohibited by tho Jaws of Mexico in 1835 and 1836, who was objected to on the ground that plaintiff had not previously shown that there was ho statute or written law in Mexico on the subject, which he was bound to do, before being allowed to prove the laws of that country by parol. The objection was sustained. There was a judgment below for the defendant, and the plaintiff has appealed..

      Dwight, for the appellant.
    The laws of foreign States may be proved by pa-j'ol. unless it appear that they are statutory or written. 5 Mart. 673. 2 La. 154. 17 La. 514, 595. 5 Rob. 163. 'in suits for freedom every thing should be done in favorem libertatis, which can properiy be done, even to noticing facts dehors the record. 8 La. 47.9. 9 La. 373. The court should notice officially the well known fact that, slavery is not tolerated in Mexico. Would it be required of a party to prove the french or english governments to be monarchies, or that Paris is the capital of France, or London of Great Britain ? Why then not notice the equally well know fact, that slavery is is not tolerated in England, France, or Mexico 1 This court has twice, in favorem libertatis, noticed the fact of its not being tolerated in France. See 9 La. 373. Eugenie v. Preval, lately decided, ante p. 180. One who has been once free, cannot become a slave. 8 Mart. JST. S, 699. 9 La. 209, 476. A slave taken to a free conn» try becomes free, and cannot be again reduced to slavery. 16 La. 483. 13 La. 442. 9 La. 473. 11 La. 499. 2 Mart. N- £, 401, A negro purchased in a country where slavery is not tolerated, will be presumed to be free. 4 Mart. 385. A negro or colored person, brought here from a foreign country, cannot be held in bondage. Stat. 20 April, 1818, ss. 5. 6, 7, 8. 13 Story’s Laws U. S. 1699,1700. Stat. 3 March, 1819, s. 4. 3 Story’s Laws, U. S. 1753. 11 La. 602. 8 La. 479.

      Splane, for the defendant.

      Maskell, Simon and Morphy, for the warrantors.
    The exception should be sustained. The forfeiture of a slave imported, or claimed, in violation of the laws of Congress in relation to the slave trade, must be the result of a suit op judical proceeding before the United States District Courts, which, under the 9th section of the judiciary actof the 24th of Se; tember, 1789, have exclusive jurisdiction of all suits for penalties and forfeitures incurred under the laws of 'the United States. See Ingersoll’s Dig. Vo. Courts, sec. 8. By the provisions of the act of the20th of April, 1818, the prohibitions of which have been held to extend to carrying slaves from one country to another (9 Cranch, 403, 404); and by those of the act of the 3d of March, 1819 (Tngersoll’s Dig. Vo. Slave Trade), tho importation of a slave into the United States, from any foreign conn, .try, is made an offence against the Jaws of the ge.neral government, subject to be punished by fine and imprisonment, and forfeiture, as the case may be, and in all cases, by the forfeiture of the slave so imported, who was, by the act of 1818, to remain subject to any regulations which the legislatures of the different States might at any time theretofore have made, or hereafter make, for dispos» jng of any such slave (sections 5 and 7), but who, by the act of 1819 (sections 2 and 4), is to remain subject to the order of the President of the United States, for tho purposes provided for in the second section of said act.
    The allegations of the petition are, that plaintiff was brought into the United .States in violation of the constitution and laws thereof, and that, under those laws, ao one can hold her in slavery; and the position taken by tne warrantors, under their exception, is, that a District Court of the United States has exclusive jurisdiction of this suit under the allegations, the object of which is to maintain and show that said plaintiff has been illegally imported, and that her owners have incurred, not only the penalties and forfeitures imposed by the laws of Congress, but also the forfeiture of their slave. The State courts have no jurisdiction to try such matters. There must be a conviction on the issue of the illegal importation, before pronouncing the forfeiture of the slave, and such conviction cannot be had but before a court of the United States, whose jurisdiction extends exclusively over all suits for penalties and forfeitures incurred under the laws of the United States.
    Plaintiff having offered a witness to prove that slavery was prohibited by the laws of Mexico in 1835 and 1836, defendant’s counsel objected, on the ground that plaintiff had not previously shown that there was no statute or written law prohibiting slavery in Mexico, which he wTas bound to do before he could prove the laws of that country by parol. It is well known that Mexico, formerly under the Spanish dominion, and governed by the laws of Spain, under which slavery was authorised and tolerated, continues to be governed by those laws, except so far as it was found necessary to change or abrogate them after the decla.tion of her independence. Mexico never was governed by common or unwritten laws, and having adopted the form of representative government, the former laws could not be changed or abrogated but by statute, or by the provisions of her constitution. This being premised, as belonging to the general history of that country, how could the plaintiff be allowed to prove by parol, a law, which, if it existed at all, must be written ? The proof of a law of Mexico by parol, would not be the best evidence. The testimony offered pre-supposes better testimony attainable, and the judge decided correctly in rejecting it. Story, .Conflict of Laws, nos. 638, 639, .&c. 2 Crunch, 237. 17 La. 513. 3 Rob. 8.
    The slave Isabella was not brought into the United States, in contravention of the law. Her owner was a citizen of Texas, which at that time (1836) had revolted from Mexico, and was invaded by an armed force from Mexico with a view to bring it again under the power of the Mexican government. During that invasion, the master fled with his slave into the United States for protection. Can it be .said that, in such a case, there was any attempt to violate the Jaws of the United States 1 The plaintiff, under the very laws which she invokes, has no right to sue for her freedom. Supposing that she was imported into this country in violation of those laws, the only consequence of such illegal importation, with regard to herself, after conviction before a court of competent jurisdiction, would be, that she would remain subject to being disposed of according to the laws or regulations adopted by the legislature of Louisiana, or to being taken possession of and kept in the custody of the marshal, subject to the order of the President.
    The law of Congress of the 20th April, 1818, gives the right to the legislatures .of the different States to adopt regulations for disposing of any slave illegally imported, and contemplates that such slave may be sold in virtue of such regulalations. Sections 5 and 7. It appears that the legislature of this State, by a Jaw passed on the 13th of April, 1818 (B. and C,’s Dig. p.789), had already provided for disposing of the slaves imported into the United Sta,te.s, in violation of the law of 1807, by a sale thereof. The preamble of that act shows .the object of the regulations, adopted on this subject by our legislature, in conformity with the law of Congress. The act does not contemplate that the slave shall .be free, but, on the contrary, the 2d section provides, that “the decree of the Circuit or District Court of the United States for the Louisiana District, properly certified and authenticated, condemning, &c., shall betaken and considered by the sheriff, for the time being, as a sufficient warrant, to sell or cause to be sold as a slave for life, any negro, &c.” The 1st section had provided that the sheriff' should be required to receive any negro, &c., and keep him until the Court of the United States pronounced a decree upon the charge of illegal importation. Another law was passed by Congress in 1819, providing that ■any slave illegally imported should remain subject to the order of the President .of the United States, for the purposes provided for in the 2d section of the act, which authorised him to make such regulations and arrangements as he might deem expedient, for the safe-keeping, support and removal beyond the limits of ¡She United States; and the previous laws on this subject were perhaps repealed by the law of 1819. But is there any thing in any of those laws which gives to the slave the right of suing for freedom, and of acquiring emancipation, from the fac(; 0f having been illegally imported ? There must be a decree of the Court of the United States; there must be a-eonviction, before the owner or purchaser of the slave can be deprived of his property; and even then the slave does not become freo; he is to be sold as a slave for life under the laws of our State, or to be taken possession of and kept by the marshal, to be removed beyond the limits of the United States, under the regulations and arrangements adopted by the President.
   The judgment of the court was pronounced by

Slidell, J.

There is a motion to dismiss this appeal, upon two grounds. One is, that the transcript has been returned directly to this court, though by the order of appeal, made in 1845, it was returnable to Opelousas. The appellant has manifested suitable diligence .tocomply with the order granting him time, made at the last Opelousas term, and the failure to do so is entirely attributable to the fault of the clerk of the court below. Under the peculiar circumstances of this case, we think, the direct filing at New Orleans was authorited by the statute of 1846; at least, under thatstatute, which, in some of its provisions upon a new and difficult subject is not free from obscurity, the point is not clearly against the appellant. We adopted, in the recent case of Gilmore v. Brenham, 1 An. R. 414, a rule which we believe a salutary one, that motions for dismissal will not be sustained, unless there be a clear case for dismissal. We stated then the reasons why the appellant would be considered as entitled to the benefit of any doubt, and it is not necessary to reiterate them.

Another ground of the appellee’s motion for dismissal is, that the warrantors have not been cited. The appeal was granted on motion made in open court, and no citation was necessary. Whether there be any defect in the appeal bond, is a question not necessary to be considered; for the objection is not made in the grounds of the motion, which present the mere question of citation. The warrantors have left this motion for dismissal on the grounds presented by the defendant. We shall therefore proceed to the consideration of the cause, on its merits.

The petitioner alleges that, in 1836, she resided in Mexico, in the province or State of Texas, where she had resided for some years previously; that she was held to service as a slave in said country, by a man named Thomas Gates: that, in 1836, she was brought by the said Gates across the Sabine river into the United States, and that the said Gates, with his family and the petitioner, soon after removed to the parish of St. Mary; that Gates, claiming her as a slave, held her to service in the parish where she was afterwards seized and sold to pay the debts of Gates. The mesne conveyances are then recited, by which she was eventually conveyed to the defendant Pecot, against whom she claims her freedom.

The plaintiff rests her claim to freedom on two grounds: that she was never lawfully held to slavery in Texas, because by the laws of Mexico slavery was not tolerated, but prohibited; and that, if lawfully held as a slave in Texas, her importation into the United States from Texas, a foreign country in 1836, was in violation of the laws of the United States, and that Gates thereby forfeited any right of ownership which he may have theretofore had. At the trial of the cause the plaintiff offered to prove by the testimony of a witness that, at the time when Gates held the plaintiff in slavery in Texas, slavery was prohibited by the laws of Mexico. The defendant objected to this testimony; “ Upon the ground that plaintiff had not first shown that there was no statute law prohibiting slavery in Mexico or no written law, which he was bound to do before he could prove the laws of Mexico by parol. And the said objection being sustained by the court, which refused to permit said parol proof by said witness and permit said question to be answered to this effect, unless it was first shown that there was no written law, the plaintiff excepts to said opinion of the court, &c.”

We think the court did not err. The general principle is, that the best testimony or proof shall be required, which the nature of the case admits of. The requisition of the court, upon the objection of the opposite party,, in effect was, that the witness called to prove the laws of the foreign country, should be first asked whether the law as to which he was about to testify, was a written or an unwritten law. There was no hardship in this, and its tendency was to save the time of the court by preventing the introduction of illegal testimony. If the course of examination prescribed by the court had been adopted, and the witness had declared that the law he was called to prove was an unwritten law, we must suppose the examination would have been permitted by the judge to proceed, and that the proof would have been sufficient, for courts should only require proof of foreign laws by such species of testimony as the institutions and usages of the foreign country admit of. If the foreign law be unwritten, no other testimony than that of witnesses is attainable, and it would be unreasonable and vain to require any other. But if the foreignlaw be a written law,, then higher evidence should be produced, in the form of an authenticated copy, or at least of a copy proved to be a true copy by a witness who has examined and compared it with the original. See Church v. Hubbard, 2 Cranch, 237. Story’s Conflict of Laws, ss. 639, 640. Greenleaf on Evidence, ss. 487, 488.

The ruling of the court derives, if need be, additional force from the acts of the plaintiff. On a previous calling for trial, the plaintiff had applied for a continuance, on affidavit, for the purpose of “procuring from the city of Mexico a copy, duly authenticated, of the law of the Republic of Mexico forbidding and abolishing slavery in the Republic.” Besides, we know that, by the laws of Spain, of which Mexico, like Louisiana, was once a province, and which laws once governed our territory, slavery was recognized. If that law has been changed since Mexico passed from the dominion of Spain, it could scarcely have been otherwise than by written law.

The plaintiff has herself offered testimony very unfavorable to her case. Her principal witness declares that, before the plaintiff was brought from Texas, he had seen many persons held as slaves there, and that the cotton plantations there were cultivated by slave labor. It is also a matter of public history with regard to this member of our confederacy, that Texas formally announced her independence before the date at which the plaintiff proves that she was brought from Texas into Louisiana, and that the condition of slavery was recognized in that State before its admission into the Union.

Being of opinion that the plaintiff has failed to establish that she had been unlawfully held to slavery in Texas, it remains to consider the effect of her importation into the United States from Texas, then a foreign country.

In the year 1836, when a hostile army had entered the territory of Texas to renew the attempts, which had so often proveda bortive, to reduce the people of that country to subjection, a portion of the population fled for refuge to the Sabine, seeking safety for their lives and property within the confines of the United States. It may well be questioned, whether an importation of a slave, under such circumstances, could be deemed a violation of our laws concerning the slave trade. Our federal government, in its diplomatic discussions with foreign powers, has certainly asserted, on occasions not dissimilar, a very different doctrine, where the rights of her own citizens in slave property were jeoparded, when brought by uncontrollable misfortune within the foreign territory.

This consideration is not, however, indispensable to the present enquiry. If the laws of the United States would affect the rights of the owner of a slave imported under such circumstances, can the commission of the offence be enquired into by a State tribunal, at the suit of the slave against the party alleged to have committed the unlawful act, or those holding under him. We think not. The jurisdiction of the United States Court should be invoked to adjudge and punish the offence, and the person so imported, in case the vei’dict of a jury should ascertain the commission of the offence, would remain in the custody of the marshal for safe-keeping, subject to the oi’ders of the President of the United States. Under the former legislation, slaves unlawfully ixnported were to remain subject to such regulations as the State legislature might establish, and the statute of Louisiana provided that such slaves should be sold by the sheriff as slaves for life. In 1819, the power thus given to the State legislatures was taken away, and it was enacted that the slave should remain- in the custody of the marshal, as above stated. There is nothing in our State legislation which recognises the freedom of the slave as acquired by the illegal importation, and the legislation of Congress must be interpreted as a whole, and administered and executed as Congress has directed. See United States v. Preston, 3 Peters, 66. Acts of Congress, of April 20, 1818, and 3 March, 1819, sec. 3, &c. Statute of Louisiana, 13 April, 1818. Judgment affirmed.


author: Rost, J.

text:
    Hall v. Brashear.
    'To recover money, paid under a commutative contract to a- party thereto;- the latter must be' put in mora.

    Appeal from the District Court of St. Mary, Boyce, J.

      Maslcell, for the' plaintiff. Dwight, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

This suit originated in' the same cause of action as that of Preston, Executor, v. Brashear, 9 Robinson, p. 52, in which the court gave judgment against the plaintiff as in case of non-suit. The facts of the case are fully stated' in the opinion of the court, to which inference is ha'd.

In the present case, John Hail gave his note unconditionally to the defendant, for the sum of $1,250, in consideration of a certificate to the following effect “This is to certify that John Hall is entitled to one quarter of a share in the town of Far W est, to be laid off on Berwick’s Bay, on the plantation called Golden Farm, now occupied by Walter Brashear, the value of said quarter of a' share being $1,250, payable the 1st of January, 1838, as per subscription list. (Signed) Waller Brashear.” The note was transferred by the defendant before maturity, duly paid by the maker, and subsequently transferred by him to the plaintiff, with all his rights against the defendant.

The plaintiff avers that he notified the defendant of the transfer, and that, on the 2d April, 1844, he demanded of him to be and appear at the office of the parish judge of the parish of St. Mary, on the 12th day of the same month, to make to him, the said plaintiff, a title and transfer of a quarter of a share in the town of Far West, which demand the defendant neglected to comply with, whereby he has suffered damages to the amount of $1,250 and interest, for which he prays judgment.

The defendant answered, in substance, that he had never been called upon by the.trustees of the' shareholders to convey the' land, and that he is ready and anxious to do so when called upon according to agreement, and to fulfil ail the obligations imposed upon him by his contract; that should the court be of opinion that he is authorised to make a title to the plaintiff, he is ready to do so’, and prays that a reasonable time be allowed him for that purpose'. The court beloW gave judgment in favor of the plaintiff,- and the defendant appealed.

We concur with the late court in the case cited,- that the party giving his note received what he bargained for, to wit, the certificate of stock. The ultimate establishment of the town was little thought of by either party. This was one of the reckless speculations, so common at the time it took place. The certificate was artfully drawn up, Without either mortgage or privilege on th’e land, or any ultimate warranty whatever to the holder; for the plain reason that, if it had been otherwise, the transfer of it would have subjected the transferor to the Warranties stipulated. The certificate was a mere delusion-^a thing to speculate' with. John Hall played a losing game with it, and courts of justice would be iff employed in assisting him, or those standing in his place, to retrieve the loss.

The defendant is notin default, and the plaintiff cannot claim a transfer of his share to himself, by virtue of the contract under which he claims. One-tenth part of the stock only has been subscribed, and no one has ever been authorised to receive the title to the land.

It is said that, since the institution of this suit, the land has been sold by the sheriff, and that it is no longer in the power of the defendant to comply with- his Contract. We apprehend that, if the subscription list was now filled, as' it seems it was intended to be before the land was to be conveyed, it would be an easy matter for the defendant to get back the land; and he cannot be considered in default, as long as that opportunity remains.

John Hall intended for others the loss which the sudden revulsion of 1837 brought upon himself. He bought the cast of the net, and he cannot complain that no fish was caught. It is within the range of possibility, that the defendant may hereafter properly be put in default. We will, therefore, as in the former ease, give a judgment of non-suit.

It is ordered, that the judgment in this case be reversed; and that there be judgment against the plaintiff, and in favor of the defendant, as incases of non-suit, with costs- in both courts.


text:
    Sanders v. Carson, Administratrix.
    The correctness of a judgment adjudicating community property to a surviving spouse, rendered by a court of competent jurisdiction, in the absence of any proof oflraud or spoliation, cannot be enquired into collaterally.

      Where community property has been adjudicated to a surviving spouse, and a mortgage retained to secure the price, the administratrix of the deceased spouse cannot seize and sell the property so adjudicated, until the portion ofthe survivor has been ascertained by a par. titionand settlement of the community, but upon proof of the existence of debts, and other having exhausted, by a proper application of'them, the funds placed at her disposal for their payment.
    APPEAL from the District Court of St. Mary, Voorhies, J.MasJcell,

      Simon, and Morphy, for the plaintiff,
    cited Civ. Code, arts. 1265, 1304, 2603. 9 Rob. 83. 12 Rob. 666.

      Dwight, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff obtained an injunction, to prevent the sale, under an order of seizure, of certain property, adjudicated to her as belonging to the community which had existed between her and her late husband, James Sanders. The facts of this case are substantially as follows: James Sanders and the plaintiff were married in 1810. Sanders died in 1839, leaving as the issue of his marriage James Sanders, Mary Sanders, the defendant Mary Carson, and Susan and Eliza Sanders, the two last being minors at the time. In December, 1839, James Sanders was appointed administrator of the succession of his father, and he subsequently convoked a family meeting of the minors, who advised that certain slaves and immovables, stated by them to belong to the community, should be adjudicated to the plaintiff, and that the remainder of the projjerty should be sold. These proceedings were duly homologated, by a decree of the Court of Probates sanctioning the- adjudication and ordering the sale. The property not adjudicated to the plaintiff was sold in execution of the decree. In March, 1843, the administrator rendered his account, showing a balance in his hands, after paying all the claims presented against tho succession, and also uncollected' claims to the amount of $1,679 26, besides the price of adjudication due by the plaintiff. Mary Carson was subsequently appointed administratrix, and caused an order of seizure to issue on the mortgage retained to secure the price of the adjudication made to the plaintiff.

The plaintiff enjoined the proceedings on various grounds, among which the-following are deemed material: 1st. That the slaves and property seized belong to the community which existed between the petitioner and her husband, and have been adjudicated to her as surviving partner of the community and as co-proprietor, and that the administratrix has no right to proceed against her until her portion has been definitively fixed, by a partition and settlement of the community, 2d. That Mary Carson, the administratrix, was also a purchaser at the sale of the succession to the amount of $1,116, which she is bound to apply to the payment of any claims against the succession, if any are still due, before calling on the petitioner. 3d. That the District Court has no jurisdiction, and cannot compel the payment of the notes as claimed; and that the Court of Probates alone has jurisdiction to fix the part and portion coming to each heir.

The answer denies that the property adjudicated belonged to the community, and avers that the plaintiff is bound to pay the price, as any other purchaser. The plaintiff amended her petition, and alleged that, since the institution of this suit, she and the heirs have sold all the lands and improvements seized to H. Anderson, and that by her obligations in the act of sale, the defendant is bound to dismiss the order of seizure and sale.

The defendant admits the sale, and that she received, in her capacity of administratrix, tho sum of $1,000, outof the price; but she denies that this sale deprives her of the right to proceed as she has done, and prays that the proceedings may be changed from the via. executiva to the vid ordinarid, and that she may have judgment for the several sums claimed, except the price of the land and improvements. The court below perpetuated the injunction, and the defendant has appealed.

The judgment of adjudication having been rendered by a court of competent jurisdiction, and no fraud or spoliation being shown, its validity cannot be enquired into collaterally; and, for the purposes of this enquiry, we must take it for granted that the properly adjudicated formed part of the acquéts and gains made during the marriage, one half of which belonged to the plaintiff. It may be true that the administratrix has the right to collect from the plaintiff a sufficient amount to pay the debts of the community; but she has not shown the existence of those debts. All the claims presented to the former administrator were satisfied by him, and there were left in his hands money and credits which the present administratrix must have received.

In the sale of the land to JHJ. Anderson, to which the administratrix was a party, it was stipulated that she should receive from the purchaser, in part payment of the price, the amount necessary to discharge the debts of the succession, leaving in the hands of the said purchaser the balance of said price, until the final settlement and partition between the heirs according to law. As the administratrix claimed and received one half of the price only under this agreement, we must presume that no more was necessary to pay the debts.' If this presumption should be unfounded in truth, the defendant cannot seize the property of the plaintiff till she has exhausted the fund placed at her disposal for the purpose of paying debts, and shown in a proper manner the application of the fund, and the debts remaining unpaid. Judgment affirmed.


text:
    Ledoux et al. v. Goza.
    Where one sued on an account, the principal item in which is stated to be unbalance of former account, as rendered,” excepts to the petition as not sufficiently informing him of the nature of the demand, plaintiffs should not be allowed to proceed without furnishing the items of debit and credit, of which the account producing the balance was composed.
    APPEAL from the District Court of Carroll. Selby, J. The judgment in this case was rendered on the verdict of a jury, in favor of plaintiffs, for part of their claim. They appealed.

      JR. N., and A. N. Ogden, for the appellants. JDwpuy, for the defendant,
    cited in support of the exception, Code of Pract. art. 172, §3.

      Sparrow, on the same side.
   The judgment of the court was pronounced by

Slidell, J.

This suit is brought by the plaintiffs, who were defendant’s factors, to recover from him the sum of 11,117 86, a balance of accounts, as exhibited by an account annexed to the petition. The account annexed to the petition shows a balance of 11,117 86, but commences with one item of 11,020 79, stated as follows: “June 30, 1841, To balance of the former account, as rendered, 11,020 79.” In the petition is an allegation, “ that petitioners presented an account current, with the amount due by the said Goza, on or about the 20th July, 1841, which account came duly to the possession of the said Goza, and, on the 20th July, 1841, the said Goza promised to pay the same.” &c. In the account annexed to the petition, the next item to that of $1,020 79, is an item charged as follows: “ July 14, 1841. Our invoice of this date, $38, 69.” By a comparison of these dates and items it is impossible to say, whether the account stated in the petition as rendered is the same as that stated as rendered in the account annexed to the petition. It will also be observed, that the n.ew items form a very trifling portion of the balance claimed.

The defendant excepted to the petition as not sufficiently informing him of the nature of the demand, and we are of opinion that the exception should have been sustained. It is true that o.ur rules of pleading are liberal, but we ought not to extend this liberality so far as to force a defendant to answer, until he is informed, with reasonable certainty, of .the items and nature of the plaintiff’s claim. The averments of the petition are not sufficiently full and explicit to charge the defendant for the item of $1,020 79, as upon abalance of a former account rendered, approved and finally adjusted between the parties. The defendant was .entitled to information of the items of debit apd credit of which the account producing the balance was composed, and, having demanded it by his exception, the plaintiffs should not have .been permitted to proceed further in the cause until it was furnished. 'We may also remark that there is some obscurity in the testimony in this cause, which illustrates the propriety of enforcing a reasonable accuracy and fullness of pleading, before going to trial.

It is therefore decreed, that the judgment of the court below be reversed, that the exception of the defendant be sustained, .and that this cause be remanded, with leave to the plaintiffs to amend their petition, and for further proceedings according to law; the plaintiffs paying the costs of this appeal.


text:
    Brander et al. v. Cobb et al.
    Where a wife, separated in property, by whom a note had boon executed jointly with another person, after maturity of the note executes a second note, payable at a futuro period, for the amouul.of the original note with interest, and delivers it to the payee to be signed by her coobligor, taking an obligation from the payee .to deliver the first note on .the execution of the second by her co-obligor, and her husband, acting as her agent, afterwards gives a receipj. to the payee for the first note, reciting therein that the second note had been made in re. nowal thereof, it is sufiicient evidence of his authorisingjthe wife to hind herself by the note.
    In an action on anote payable at the place ofbusiuess. of the holder, demand at the place of paymentnoed not be alleged or proved, to authorise arecov.ery .against the maker.
    APPEAL from the District Court of Madison, Selby, J. This is an action on a promissory note for $1,188, signed by Sarah M. C. Cobb and A. J. Lowry, payable on 1st December, 1845, to the order of Davenport, agent, at tho office of the plaintiffs, and endorsed by the payee to the plaintiffs. The note was dated 29 May, 1845. The petition alleges that the maker of the noto had refused to pay, though amicably requested. The defendants pleaded a general denial; S.M. C. Cobb further denying any responsibility on her part, as the note was executed without any authorisation by her husband. The plaintiffs offered the note sued on in evidence. They proved that Davenport was Jheir agent, and that the endorsement was in his writing. A copy of the judgment of separation of property obtained by the defendant S. M. C. Cobb, agains her husband, was also offered in evidence. Plaintiffs also offered in evidence the following receipt, signed by the husband of S. M. C. Cobb: “ Received of W. V.Davenport, agent, Mrs. S.Ikf. C- Cobb and A. J• Lowry's joint note for SI,100, dated May 19,1844, .due on the 1st day of December, 1844, for which they have executed their joint note, dated 29th May, 1845, due 1st Dec,, 1845, for 381,188, and which I have received W. V. Davenport's obligation to deliver the first note on the last note being signed by A. J. Lowry, as it was a joint debt, and which receipt or obligation has'been lost or mislaid, and which bore date the 29th May, 1845. O. B. Cobb, Agent.”
    To the introduction of the ncfie sued on in evidence, defendants’ counsel excepted, on the grounds : 1st. That the petition contained no averment of a demand at the place of payment specified in said note. 2d. Becausejhe plaintiffs did not prove a demand of payment at .the place specified in said note. Bóth of which objections the court overruled, and gave a judgment in favor of the plaintiffs for the amount of theirudemand; from which Mrs. Cobb, and her husband, appealed.

      Garland, for .the plaintiffs.
    The assent of the husband is conclusively shown by his receipt. His concurrence in the act subsequently to the execution of the note, made it as obligatory on her, as if it had been obtained at the time of executing it. The Civil Code, art. 1779, declares “ that the incapacity of the wife is removed by the authorisation of the husband,” without any limitation as to the time when the authorisation may be given. In France, the consent of the husband, or, in his absence, that of .the .court, may be given before, or after the execution of the unauthorised contract, .and any act in writing, from which that assent to acts done clearly results, satisfies the requisites of the statute.” The authorisation ¡must be special for all acts to be done, but it may embrace all acts already done, because they are always certain .and specific. 13 La. 183.
    As to the exceptions; Where the law, under the circumstances of the case, .does not require a presentment of the note for payment at the place indicated, an allegation in the petition to that effeet is unneeessaiy and immaterial. The first ground of exception is involved in the second. As to the second ground: A note made payable at plaintiff’s domicil need not be formally presented for payment. Tbe note sued on is payable at the office of the plaintiffs in New Orleans.
    In the case of Attain, .fyc. v. Lazarus, 14 La. 327, the defendant was the maker of several promissory notes to the plaintiffs, which were drawn payable»to the order of the plaintiffs, at their counting house in New Orleans, on which suit was brought by them. The defendant, on the trial, excepted to the notes being received in evidence, because no evidence was offered that they had be.en presented at the place indicated, and no protest was made of the notes.
    But the court said : 1 ‘ The maker of the note contracted the obligation to repair to the counting house of the payees, and to make payment; they must be presumed always ready and willing to receive; and when it is shown that the payees are still in possession, the burden ought to devolve on the obligor to show ti readiness and offer to pay, or funds placed in the hands of the payee for that purpose, if he wishes to exonerate himself.” Wallace v. McConnel, 13 Peter’s Rep. 136. In the case of Maurin v. Perot, 16 La. 276, this doctrine is fully confirmed, that a note payable at the plaintiff’s domicil need not be formally presented for payment. The principle is clearly announced ; but the court further adds, ■“ especially if the defendant had no funds there.”

      Pepper, on the same side.

      Snyder and Shannon, for the appellants.
    To enable a married woman to make a valid contract, it is pecossary thnt she should have the authorization of her husband or of the judge. Civil Code, arts. 124, 2410, 2411. The authorization is a condition precedent. Neither the husband, nor the judge can, by any act posterior to the contract, render it valid. The instrument of writing which plaintiffs have tortured into a ratification of Mrs. Cobb’s obligation upon the note, is simply a receipt in which the note is enumerated in general terms; and neither the plaintiffs, nor Mrs. Cobb’s husband, could ever have dreamed that the instrument referred to was intended as a ratification of Mrs. Cobb's act, or they would never have left the matter in so ambiguous a position. The judgment of the court below is erroneous in not giving a non-suit against the plaintiffs for failing to prove a demand at the place of payment.
   The judgment of the court was pronounced by

Rost, J.

This suit is brought upon a joint and several promissory note of the defendants. S^M. C. Cobb resists the payment, on the ground that she executed the note, without authority from her husband. It is in evidence that she is separated in property from him, and his authorisation clearly results from the receipt given by him to the plaintiffs’ agent.

There is no error in the judgment rendered by the court of the first instance, in favor of the plaintiffs. Judgment affirmed.


text:
    Booth v. McFarland.
    An emancipated minor, sued on notes given by him for the price of a steamer,purchased after his emancipation for the purpose of being employed by him in transporting freight and passengers, and which was so employed, he'Commanding her as-captain,-cannot be relieved from his obligation on the ground of minority. C. C. 2222.
    APPEAL from the District Court of Madison, Curry, J. The facts -of this case are stated on the opinion, infra.

      Shannon, for the plaintiff.
    The contract of sale between .the parties was a commercial one, as the boat was purchased for the express purpose of carrying freight and passengers for hire; and the owners of the boat conducting that business, were engaged In a commercial partnership. Civil Code, art. 2796, •§ 3. Commercial partnerships are such as are formed “ for carrying personal property for hire in ships and other vessels.” Article 465 shows what is meant by personal property. See also 4 La. 110. 3 Rob. 49G. 2 Rob. 182. The defendant admits that after the purchase a commercial partnership existed, and defendant would be then bound by his contracts. If he would be bound after the purchase, the contract or purchase of the means to carry on, or commence business, must necessarily be binding upon the defendant, else an emancipated minor would not be bound by a contract for the purchase of goods, or for a loan of money obtained for the purpose of commencing or going into trade.
    The defendant, as an emancipated minor, had full authority to make this contract. By article 379 of the Civil Code, the emancipated minor, who is engaged in trade, is considered as having arrived at the age of majority, for all acts which have any relation to such trade. By art. 1867, “ a minor who is a banker, factor, trader, or artisan, is not relievable against lesion in contracts made for the purpose of his trade or business.” Art. 2222 of the Civil Code declares that, “a minor carrying on commerce, or being an artisan, is not restituable against the engagements into which he has entered in the way of his business or art. See 2 Rob. 517 and 513. 5 Mart. N. S. 653. 2 Toullier, p. 436, no. 1293. He is necessarily bound, otherwise none would trade with him; he is even permitted to borrow money to obtain his capital, and for securing its re-payment, he can mortgage and hypothecate his immovables- The purchase of the boat on a credit, was the defendant’s capital in this case.

      Stacy and Sparrow, on the same side.

      Snycler, for the appellant.
    The purchase of a steamboat is not,a commercial contract, as the joint owners are not commercial partners; each holds an undivided share, which he may dispose of without consulting the others. Neither can sell the interest of his co-proprietor, without his consent. Byrne v. Hooper, 2 Rob. 229. In all commercial partnerships the acts of one partner, in the name of the firm, bind the others.
    Plaintiff contends that, under article 379 of the Civil Code, the defendant is liable. If he was sought to be rendered liable for any contract entered into after he had engaged in trade or commenced running the boat for hire, then the article would be properly invoked.
    Dunlap, also appeared for the appellant.
   The judgment of the court was pronounced by

Rost, J.

The defendant being sued upon certain promissory notes pleads minority, and alleges that if he is bound for any portion of the said notes by reason of his emancipation, his obligation cannot exceed the amount of his income, which he alleges to be under one thousand dollars a year. He also alleges various payments on account. The court below gave judgment in favor of the plaintiff, allowing on the first note the payments made by the defendant. From this judgment the defendant has appealed.

There is nothing in the plea of minority. The defendant, being over eighteen years of age, and duly emancipated, subsequently purchased one undivided half of the steamer Daniel Webster, took command of her, and ran her in the river trade. After running her some time he purchased the other half, and the notes sued on are the consideration of both purchases. The purchase of the boat was made in view of the defendant’s trade, and a necessary prerequisite to carry it on. He cannot be relieved against it. See Civil Code, arts. 1867, 2222.

This youth must have singular notions of justice, to retain after his majority, as he has done, the properly purchased, and to call upon the tribunals of his country to dispense him from paying for it. Judgment affirmed.


text:
    Bell v. McFarland.
    Appeal from the District Court of Madison, Carry, J.

      Shannon, Stacy and Sparrow, for the plaintiff. Dunlap and Snyder, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

This suit is in all respects similar to that of Booth v. McFarland, just determined ; and for the reasons therein given, the judgment in this case is affirmed, with costs.


author: Kino, J.

text:
    Downes v. Scott.
    A sheriff, at whose request judicial advertizements have been published, will bo liable for the costs of publication, in the absence of proof any agreement by the publisher to look to others for remuneration.
    Appeal from the District Court of Madison, Selby, J.

      Amonett, for the plaintiff. Dunlap and Snyder, for the appellant.
   The judgment of the court was pronounced by

Kino, J.

The plaintiff sues for the amount of an open account for printing and publishing judicial advertisements at the request of the defendant, while the latter was acting as sheriff of the parish of Madison. The defendant denies that he is indebted to the plaintiff, and avers that he is not personally answerable for the charges for printing advertisements, which, in the discharge of his official duties, he was required by law te'cause to be published. The cause was tried by a jury, who gave a verdict for the plaintiff, and the defendant has appealed.

In-the case of Haile v. Rils, the question now presented, was settled. It was there held that, among the charges which the sheriff, in the exercise of his official duties, must necessarily pay himself or become responsible for, were those for printing the advertisements required by law; and when these' services are- not paid for in cash, that parties rendering them must be presumed to have credited the person by whom they were employed. 9 Rob. 510.

The evidence in the present case, shows that the services Were all rendered at the request of the defendant; and no agreement is proved, to look to any other person for remuneration. Judgment affirmed.


author: EtrsTiSy C, J:

text:
    Goodloe v. Holmes et al.
    Actions for dsuhages resulting from offences or quasi-offences, are prescribed' by One year from tlie time when they were committed.
    APE AL from the District Court of’ Carroll, Mayo, J. This action was instituted'on the 26th of May, 1845. The acts complained of as designed to defraud the plaintiff, Were'committed, as the-petitioner alleges, on the 3d of’ June, and 2d of September, 1843.

      Thomas, Prentiss, and Finney., for the appellant. Caldwell, Stacy, and Sparrow, for the defendants.
   The judgment of the court was pronounced by

EtrsTiSy C, J:

This is an action-fbr damages, resulting, from alleged quasioffences, committed by defendants to the injury of the plaintiff. The prescription- of one year was pleaded ; the general issue was also pleaded, and a demand in reconvention was setup, in which it is charged that the'present suit is vexatious and malicious, and instituted for the sole purpose of harrassing the defendants with a-troublesome and expensive law-suit,. and that they have suffered actual damages by being put to the expense of employing counsel to defend it and otherwise, to the amount of $1,000 each.

There was a verdict for the defendants in reconvention for $499 each, against the plaintiff, and costs of suit. There was a motion for a new trial, on the-ground of the misconduct of the jury after their retirement to deliberate upon the verdict, which was disallowed, and the plaintiffhas appealed.

This action is prescribed by lapse of time, and the case ought not to have gpne to the jury; so-'far as relates to the demand of. the plaintiff for damages. The conduct of the jury was such as to deprive their verdict of all the weight it-would otherwise receive from this court, in a case of this kind. We think it erroneous, and not warranted by the evidence'.

The judgment of the District Courtis therefore reversed;'and judgment is entered for the defendants against the plaintiff in the principal suit, and for the plaintiff against the defendants in their demand in reconvention ; the plaintiff paying costs in the court below in the former suit, and the defendants those in the latter; the costs of the appeal to be paid by the appellees.


author: Ecjstis, C. J.

text:
    Smith, Under-tutor v. Dickerson, Tutrix.
    Defendant, natural tutrix of lier minor children, being about to contract a second marriage,applied to a family mooting to determine whether she should retain the tutorship, which decided that she should do so, on condition of her executing, prior to her marriage, abondto tho parish judge ill a certain sum to secure the rights of the minors, andón that condition only. Having married without executing the bond, the under-tutor instituted a suit for her destitution, to which she answered objecting to the right of the family meeting to require a bond and to tho form of the bond required, but alleging her readiness, with her husband, to give security, if required by law. Held, that defendant should be retained as tutrix on giving bond and security, insólido, With her husband, for the faithful performance of her duties as tutrix.
    Appeal from the District Court of West Feliciana, Boyle, J.

      Phillips, for tho plaintiff. Ratliff and Cowgill, for the appellants,
    cited Radial v. Radial, 10 La. 460.
   The judgment of the court was pronounced by

Ecjstis, C. J.

This is an appeal from a judgment by which tho mother has-been deprived of the tutorship of her minor children. The reason given by tho judgo is, that she, being a widow, married her present husband, “ without having been retained in her natural tutorship to her minor children by a family meeting.”

Article 272 of the Civil Code provides that the mother, the natural tutrix of her minor children, wishing to contract a second marriage,- must, before the celebration of tho marriage, apply to the judge for the convocation of a family meeting, for the purpose of deciding whether she shall remain tutrix. If she neglect to apply for the family meeting, she is ipso facto deprived of the tutorship, &c. The party defendant, before her second marriage, applied for a family meeting under this article, and the meeting unanimously determined that she should retain the tutorship, notwithstanding her proposed marriage, on condition that she should, prior to her' marriage, give bond to the parish judge, in the sum of ten thousand dollars, to secure said minors, and upon that condition only. The under-tutor consented to the homologation of these proceedings without further notice, and it appears that the marriage' was celebrated without the bond being given.

The question has been raised as to the right of the family meeting to append this condition to their assent, and also to the form in which the bond is required to be given. In this state of things, wo think the judge erred, in decreeing the destitution of the mother of the tutorship of her children, particularly as she, in her answer, and her husband, have declared their willingness to give security for the tutorship, if the law requires it of them.

The judgment of the District Court is therefore reversed,- and it is decreed that the defendant Mary Ann Dickerson be retained in tho tutorship of her minor children, on her giving bond and security, in solido with her husband, conditioned for the faithful performance of her duties as tutrix; the costs of appeal and of tho court below, to be paid out of the estate of said minors.


author: ■Rost,-J.

text:
    New Orleans Gas Light and Banking Company v. Hill.
    Open accounts against a plaintiff, not acknowledged by liim, transferred to defendant by a third person, cannot be pleaded in compensation, in an action by plaintiff on a promissory note.
    Appeal from-the District Court of Madison, Curry, J.

      Bemiss, for the plaintiff. H.W. Dunlap, for the appellant.
   The judgment of the court was pronounced, by

■Rost,-J.

This is a-suit upon a promissory note, against the defendant as maker.- He pleaded in compensation various open accounts against the plaintiffs, alleged to have been transferred to him. The court below disregarded the plea,, and gave judgment in favor of the plaintiffs for the whole amount claimed, and interest from the day of the protest.

There is no error in the judgment. The accounts set up by the defendant were not acknowledged, and could not be compensated with his note. The protest was in the usual form,,and the court did not err in admitting it in evidence.

Judgment affirmed.


text:
    Course, Under-tutor v. Forshey, Tutor.
    Where, at the time of appointing a tutor, the property of the minor consisted in an undivided-interest in a plantation and slaves, but, by a compromise afterwards made with the co-proprietors, the tutor is authorised to receivo a sum of money in cash in. extinguishment of the undivided interest of the minor, the tutor, though appointed by the advice of a family-meeting and expressly exonerated from giving security under the provision of the stat. of 10 March, 1834, sec. 4, may be required, in consequence of the change in the character of the property, to give security for the sum to be received by him, and the interest which may accrue thereon. Arts. 330, 331, 332 of the Civil Code are not repealed- by the stat. of 10 March, 1834,,sec. 4,
    Appeal from- the District Court of Concordia, Farrar, J.

      Shaw, for the-plaintiff. Forshey, appellant, pro se. Frost, on the same side.
   The judgment of the court was pronounced by

Rost, J.

The defendant was appointed tutor of a minor, and was dispensed from giving security, under the provisions of the act of 1834. The property of the minor consisted, at the time, in an undivided interest in a plantation and-slaves. A compromise was subsequently made with the other owners of that property, by which the defendant was duly authorized to receive the sum of $10,000, in extinguishment of the rights of his ward. The under-tutor then-instituted these proceedings against him, to compel him to give security for that sunr and the interst that might accrue on it. The court below ordered the defendant to give security in the sum of $12,00-0, and he appealed.

There is no error in the judgment. The change in the nature of tne property of the minor, fully authorises the course of the under-tutor. The act of 1834, has not repealed the articles of the Civil Code on which he relies; and tutors may at all times be required to furnish additional security, for the sums that come into their hands, during the continuance of their guardianship.

Judgment affirm


text:
    Anselm v. Brashear.
    One wlio builds a cabin on lands in the possession of another, and occupies it for 'less than a year, for the purpose of acquiring a.pre-emption right in case the title under which the parly in possession hold should be annulled, hut afterwards.abandons the house, having had .notice of the adverse title and possession and having .declared his intention not to interfere withit, cannot, on-the demolition-of .tbe.house by the possessor,.and in-tho absence of any proof of his,having used the materials, recover ftomhimlhevalaeof the.honse.
    from the District Court of St. Mary, Voorldes, J.

      Splane, for the appellant. Dwight, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

The defendant purchased at sheriff’s sale an improved tract of land, held under one of the Bowie claims. The plaintiff, being aware of this fact, and under the expectation that the title would be annulled and set aside, •built a cabin upon a portion of the land, for the purpose of acquiring a pre.emption right. He occupied it something.less than one year, arid then went to .reside in another, which he had.built on an adjoining section ofland. The house was on the cultivated laud of the defendant, and, beingabandoned andleft open, he caused it to be pulled down, leaving the materials on the spot, and, for ought ■that appears to the contrary, at the disposal of the plaintiff. The plaintiff now .seeks to recover the value of .the house, which he alleges to have been $500. Judgment was rendered against him in the first .instanco, and he appealed.

The bare statement of the case shows that the plaintiff has no right to recover. He had notice of the defendant’s title and possession, and stated that he ■did not wish to interfere with him, as Jong as his title was held valid.

The judge of the first instance made a correct application of art. 500 of the Civil Code. The house, when it was first put up, was not worth over $50. It had been abandoned in a dilapidated state, and, as the erection of it was unlawful, the defendant is not hable in damages for having demolished it.

Judgment affirmed*


text:
    Brashear v. Dwight et al.
    After the dissolution of a partnership, and notice thereof by an advertisement in the newspaper of the village where the partnership business was,earned on, service of citation upon •one of its members will not authorise a judgment against the rest. In a direct action .against a partner, for dealings had with the firm after its alleged dissolution, the fact that plaintiffs were in the habit of dealing with the partnership, would render it necessary to bring notice of the dissolution home to them, otherwise than by notice in a newspaper; but this fact cannot affect the manner .of bringing the partners of a dissolved partnership into court.
    Appeal from the District Court of St. Mary, Boyce, J.
    Brent, for the plaintiff,
    contended that the judgment was correctly annulled for want of ^citation. C. P. 606, § 4. 1 Mart. N. S.-9. 3 Ib. N. S. 327. 8 Ib. N. S. 145. 1 .Rob. 30. After dissolution of a partnership, citation must be served on all the partners individually. 17 La. 42.
    Dwight, on the same sido. Splane^ for the appellants,
    contended that, without personal notico of the dissolution, defendants, being dealers with the linn, could not be affected by it. 1 Coliyer on Part. pp. 75, 154. :3 Kent’s Connn. 38. Story on Part. ss. 84, 334, 335.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, one of the partners of the late firm of Bemiss, Bra* shear &; Co., enjoined an execution issued upon a judgment obtained by the defendants agninstsaid firm, on various grounds, among which it is only necessary to notice the following: J. That the citation in the original suit was served upon Cyrus Eggery, one of the partners, long after the partnership had been dissolved, and the dissolution advertised according to law. 2. That plaintiff never was cited, and was not aware of the proceedings until the sheriff seized his property; and that the judgment is, as to him, an absolute nullity. The defendants filed a general denial, averted that their proceedings were regular and binding upon the plaintiff, and prayed for the dissolution of the injunction with interest and damages. The court below having annulled the judgment and perpetuated the injunction, .the defendants appealed.

It is satisfactorily proved that, before tlje institution of .the suit, the partnership of Bemiss, Brashear ¿y Co. had been dissolved, and the dissolution advertised ¡n the newspaper .of the village whore it had been carried on. It is contended that the plaintiffs in the suit were in the habit of trading with the firm, and that notico of the dissolution should have been brought home to them, otherwise than by publications in the newspapers. That ground would be well taken, if the .object of the plaintiff had been to make the defendant liable, in a direct action against him, for dealings had with the firm after its alleged dissolution ; but if does not affect the manner .of bringing the partners of a dissolved partnership into court, and the authorities cited in behalf of the defendants are not applicable to the case. It appears by (he notice of dissolution, that the plaintiff re? mainod charged with the affairs of the firm. The entries made by him in its books in 183G, were no doubt made in his capacity of liquidating partner.

We are satisfied that the plaintiff was entitled to personal citation, and that, foy want of it, the judgment cannot be executed against him-

Judgment affirmed.


text:
    Ballard et al. v. Wall.
    A noto made payable in “ Mississippi currency,” will be taken to moan tlie lawful currency of the State, that is, gold and silver, in the absence of other proof that it was intended to be payable in tlie notes of tlie banks ofthat State.
    Appeal from the District Court of Madison, Curry, J.

      Amonelt, for ill© plaintiffs. A. Piersc, for the appellant.
   The judgment of the court was ■pronounced by

Kino, J.

The defendant is sued as the maker of a promissory note, payable in “ Mississippi currency.” He pleads in defence the prescription of five years. The note became due on the 1st. of Nov., 1839, and citation was served in this suit on the 9lh of October, 1845, more than five years after the maturity of the note. The prescription pleaded would have accrued, had it not been interrupted by the acknowledgments of the defendant, A witness, to whom the note way entrusted for collection, says that, several times within the four years last preceding the commencement of the suit, tho defendant recognized the dobt and promised to pay it, and, at one of the interviews, offered to secure its payment by a mortgage.

It-is contended in this court, that the plaintiffs can only exact payment in the bills of banks of the State of Mississippi, and that these were, at the maturity of tho note, at a discount of from twenty to thirty per cent. No such plea is set up in tli© answer, nor is there any evidence in the record to show that such was the intention of the parties in using the words “Mississippi currency.” In the absence of such proof, the terms must bo understood to mean the lawful currency of tho State, that which would constitute a legal tender, to wit, gold and silver, But giving to the terms used the interpretation most favorable to the defendant, that bank bills current in Mississippi were to be received in payment, still his defence would not avail him under the evidence. It is in proof that no bank bills have been current in that State since 1840, and that officers were forbidden from receiving depreciated Mississippi money, unless specially instructed.

Judgment affirmed,


text:
    Louisiana State Bank v. Barrow et al.
    '■the Civil Code lias ilxed no special proscription, for judgments. Debts existing in that form are barred, if by any prescription, only by that of thirty years.
    Heirs who liavo accepted a succession unconditionally, represent the deceased, and stand in his placo both as to his debts and obligations, and a prescription which could not have availed him if alive, cannot protect them. C. C. 897,93,9.
    W hero judgment has been obtained against a party condemning him to pay a certain sum with interest at a certain rate from a particular time, and another sum with interest at a lower rate and from a later period, a payment made after judgment must, in the absenceof any imputation by tho parties, be imputed to the interest and principal of that portion of the debt bearing tho highest interest, it being tho oldest and most onerous.

      APPEAL from the District Court of West Feliciana, Johnson, J.

      Ivor, for the plaintiffs.

      Patterson, for the appellants.
    The defendants in this rule rely on the prescription of ten years. Civil Code, arts. 3442, 3444, 3495. “This prescription has also the effect of releasing the owner of an estate from evoiy species of real rights, to which the property may have been subject, if the person in possession of the right has not exercised it within the time required by law.” Art. 3494. 11 La. 59, 259. These cases are decrees rendered on mortgage claims. If this i.s a real right against the properly of the estate, it is prescribed by ten years. 6 La. 31 and 671. This prescription is a perpetual bar to any action to recover. 4 La. 327. C.C. 3422.
    If this is a persona] action, it is barred by the prescription of ten years. C. C. art. 3508. Good faith not being required on the part of persons pleading prescription, the heirs cannot be compelled to swear whether the debt has been paid or not. Art. 3515. To interrupt this prescription for the whole, it is necessary that they all be served with citation or all acknowledge tho debt. Art. 3517.
   Tho judgment of the court was pronounced by

Slidell, J.

Iu the year 1829, the plaintiffs recovered judgment against Bennett Barrow, and, in the year 1844, a rule was taken in the causo against the .appellants, the children and heirs of Bennett Barrow, who died in 1833, to show cause why execution should -not issue against them, for the balance remainjng ¿ue Up0n saifi judgment. The plaintiffs in their application for the execution alleged that, these heirs were the sole heirs of the deceased, and had accepted the succoession of their father purely and simply. A credit was acknowledged of $1,396 48, as paid thereon, about 30th April, 1830. The defendants answered by u plea,of prescription.

Our Code has fixed no special prescription for judgments, and, in the absence of any special provision, we are of opinion that debts existing in that form are barred, if by any, only by the prescription of thirty years. But it is contended that this is an action against the heirs, and is subject to the prescription of ten years.

The heir represents the pei'son of the deceased; he is of full right in his place, as well for his rights as his obligations, and no prescription not available to the ancestor, were he alive, can protect the heir. SeeCivil Code, ar.t. '939; also art. 867, &c.

There is certainly something very extraordinary in this ease, when we consider the punctuality and honesty of the ancestor, as shown by the testimony ; and also the facts, that no execution appears to have issued on the judgment during his life time, that he was a man of ample means, and that he died leaving an unembarrassed estate. But whatever opinion the mind may form as to the payment of this debt, in the absence of proof of payment and of the lapse of a sufficient time to accomplish prescription, the heirs must be held liable.

The judgment in this case condemns the defendants to pay “$3,864 25, with interest at the rate of ten per cent per annum, on the sum of $1,884, from the third day of March, 1825 : and interest at the rate of five per cent per annum on the further sum of $1,957 25, from the 6th March, 1829, subject to a credit of $1,396 48, made 8th April, 1830.” This form of judgment is sufficiently certain, because it can be rendered so by calculation; the form, however, is liable to the objection that it may lead to mistake in its execution. To prevent any future misunderstanding or difficulty in the execution of this judgment, we think proper to say, that the imputation of the credit of $1,396 48 should be made to the interest and- principal of the $1,884 ; the balance thus produced to bear a like interest from the date of the payment. This imputation must be made, because that portion of the indebtedness was the oldest and the most onerous.

Judgment affirmed.


author: King, J.

text:
    Collingsworth v. Covington.
    A manager of slaves employed on a plantation may recover from the owner damages for a wound inflicted onliimby one of the slaves under bis charge, not caused by any fault of the manager. C. C. 180, 181, 2300. Articles 170, 2299 of the Civil Code relate not to slaves, but to free servants; and the proviso in art, 2299, that responsibility for damage occasioned by servants only attaches where the masters might have prevented the act which caused the damage and have not done it, is confined to eases of free servants.
    Appeal from the Court of Probates of Tensas, Montgomery, J. Frost, for the appellant, cited Civ. Code, art. 2306.

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

King, J.

This action is instituted to recover damages for a serious wound, alleged to have been inflicted on the plaintiff by a ¡slave belonging to the defendant. The answer denies that the plaintiff has any cause of action against the defendant, and alleges that the former was the overseer and manager of the defendant, and as such was responsible for the good conduct of the slave in question, who was under his charge. During the pendency of tho suit the defendant died, and the cause was transferred to the Probate Court, where it was tried, without the intervention of a jury. A judgment was rendered against the plaintiff, from which he has appealed.

The evidence establishes fully that the plaintiff, while in the employment of defendant as an overseer, received from a slave belonging to the latter a painful and dangerous wound, which disabled him for some time, and subjected him to charges for medical treatment. It is further in proof, that the plaintiff was a good manager, attentive to the health, discipline, and good government, of the slaves under his charge, and exercised no unnecessary severity ; that Covington had rendered his slaves unmanageable by over indulgence; and that the loose discipline which he maintained on his plantation, was a source of complaint and dissatisfaction among his neighbors. This evidence is uncontradicted, and the veracity of the witnesses, by whom it is given, unimpeached. The judge bolow has assigned no reason for rejecting the plaintiff’s demand, but probably considered, as has been contended by the counsel for the defendant, that masters are not responsible for the damage caused by their slaves, in cases like the present.

In our opinion, the judge erred. Masters are expressly made answerable for the damage occasioned by the offences or quasi-offences committed by their slaves, but with the right reserved to them of liberating themselves from that responsibility, by abandoning the slave. No exception to this rule is established which precludes an overseer or other person, having a slave under his charge, from obtaining reparation in damages for injuries caused by the latter-. Civil Code, arts. 180,181, 2300. Articles 170 and 2299 refer, not to slaves, but to free servants, with regard to whom a different rule is established. By the latter of these articles, the responsibility of the master, resulting from the acts of the free servant, only attaches when he might have prevented the act which caused the damage, and has not done it. Justice, in our opinion, requires that the cause be remanded for the purpose of being submitted to a jury.

It is therefore ordered that the judgment of the District Court be avoided and reversed, and that the cause be remanded for further proceedings; the appellee paying the costs of this appeal.


author: Kins, L-

text:
    Gasquet et al. v. Robins.
    Sheriffs were liable,before the stafc. of 7 April, 1826, s. 17, to the party injured, for any damage sustained by their illegal acts or neglect. That statute gives an additional remedy in cases for which it provides; but it cannot be construed as subjecting the sheriff to the payment of the amount for which a Ji.fa. was issued, as a penalty for a mere failure to return the writ on or before its return day. It provides a summary remedy,by motion, after ten days notice, in cases of failure to return writs of Ji. fa. on or before the return day, or to pay over money received tbereon to the party entitled to receive it, orto his attorney, unless good cause be shown for such failure, as the inability of the sherifF to effect a sale before the return day, or that the writ had been enjoined, or payment of the sum collected suspended by order of a-competent tribunal'.
    The return on a fi- fa., made by a sheriff sifter the return day, that lie had demanded of the debtors money to satisfy it, hut that they refused to' give either money oí property, will not exonerate the officer from liability under the stat. of 7 April, 1826, s. 17. On the refusal-of the debtor to satisfy the writ or to give up property, the sheriff should- have called on the' creditor to point out property. C. P. 726, 727. It is only where the debtor has made a surrender of his property, that this dem'and becomes unnecessary.
    Where a sheriff) by whom a twelve-month's' bond has! been taken for the price of property' sold undor execution; neglects to return the writ, and retains the bond in his hands for more than eleven months,- and until,-in consequence of his failure to return it, it is destroyed, he; will he liable to the creditor for its amount. The bond belonged to the creditor, who had a ight to require its delivery upon- paying the c’osts; and the return of the writ would have nfonned him that a bond had been taken. C. P. 716.
    A sheriff condemned to pay to the creditor the amount of a fi. fa. in consequence of his neglect, is entitled to be subrogated to the'rights'of the latter against- the defendant in execution'.
    APPEAL from- the District Court of East Feliciana, Johnson,- J. This suit' was instituted to recover from a former sheriff the amounts for which certain executions were issued in favor of tlie plaintiffs, the sheriff having failed to' return them on'or before their return days. There was a verdict and judgment in favor of tlie plaintiffs for $>4,793 06, from which the defendant has appealed. Tlie material facts of this case will be found iu the opinion of the' court, infra.

      Winter and' II. A. Bullard, for the' plaintiffs.
    The right to recover is given by the act of 7 April, 1826, sec. 17. The act of 1826 imposes, as a penalty for' neglect to- return the writs, the amounts specified- in them. It does not merely give an action for damages actually sustained ; that remedy existed before. The courts cannot mitigate the penalty, nor enquire what actual'damages'may have' been suffered. The act i's highly penal, but it is founded in public policy, and' was called for by a great evil. The act of 1826 was passed subsequently to-the promulgation of the Code of Practice, and was not repealed by the act of 1828, which abrogated only such rules of practice as existed prior to the adoption of the Code.

      Lawson, for the appellant.
    The sheriff is the agent of the plaintiff. Tho' loss sustained by a principal-, in consequence of the negligence of the agent, is the measure of the latter’s liability. 1 Livermore on Agency, 398-9. Russell v. Palmer, 2 Wilson, 326. Purviancev'. Angus, 1 Dallas, 1801 Story, Agency, ch. 3, § 164, 165, p. 177. Pothier, Oblig. nos. 159, 160. Shepherds. Johnson, 2 East. 210. Conard v. Nieoll, 4 Peters, 291. 6 Peters, 282. 2 Wilson’s-Rep. 325. 3 Martin, 478. Dupuy. v. Barlow, 4 Mart. N. S. 243-. Clarkev. Wrightr 5 Marti N. S’. 124. Stinton v. Buisson, 17 La. 571. Bonnabelv. Bouligny, 1 Rob. 294. Union Bank v. Thompson, 8 Rob. 227. Prior to-the act of I826y the law in reference to the returning of writs was held to be merely directory. See Code of Practice, art. 279. This court say that: “ The provisions of the Code of Practice which require the judge to.fix the amount of the bonds to betaken on a writ of sequestration, and the- sheriff to return it into court, are directory only. They do not authorise a recourse on the sheriff, for neglects from' which the plaintiffs receive no injury. See Vawter v. Morgan, 6 Martin's N. S. 46. The act of 1S26 was repealed by the stat. of 25 March, 1828, s. 25.-See Jemison v. Wamaek, 5 La. 4'94.
   The judgment of the court was pronounced by

Kins, L-

The plaintiffs in this action obtained three judgments against parties residing in the parish of East Feliciana, under each of which a writ of fi. fa.was issued and delivered to the defendant, then sheriifof that parish, who failed-to return them within the prescribed delay. It is contended that, by reason of this omission, the defendant lias rendered himself unconditionally liable for the amount of those judgmonls, which liability it is the object of this action to enforce. The defendant denies that the plaintiffs have sustained any injury from his acts, and avers that the defendants in execution, against whom one of the writs was directed, were notoriously insolvent at the date of the writ; that under each of the other writs, a twelve-months’ bond was taken, which bettered the condition of the plaintiffs. There was a judgment against the defendant, in the court below, from which he has appealed. After the appeal the defendant died, and his administrator has made himself a party to this proceeding.

It appears that under one of the writs in question there was no seizure made or money collected, and that it was not returnéd until after the expiration of the return day. It is admitted in the defendant’s answer, that under each of the other writs, twelve-months’ bonds were taken, on the 16th of April, 1838, both of which, it appears, were lost by a fire which destroyed the court house of the parish, in March, 1839, nearly a year after they were received. In neither of these cases, was the execution returned.

In 1841, the defendant, Robins, made the affidavit authorised by the special statute of the 20th March, 1840 (Sess. acts, p, 62, §4), that under the writ issued in the case of Gasquet, Parish & Co. v. M. & E. Boatner, property had been seized and sold, and a twelve-months’ bond taken; that both the writ and bond had been destroyed by the fire of March, 1839; and that M. Boatner, one of the judgment debtors, was not a party to the proceedings under the execution ; whereupon, a fieri facias was issued against M. Boatner, and a twelvemonths’ bond was taken for the amount of the judgment.

The section of the act of 1826, under which the defendant is sought to be rendered liable, is as follows:

“ It shall be the duty of each of the sheriffs of the different parishes in this State, to return all writs directed to them, into the clerk’s office from which they issued, on or before the return day mentioned therein, and also to pay over any moneys received thereon to the party entitled to tbe same,orto his attorney; and in default of any of the duties imposed on him in this section, he shall be" come liable to the party or parties entitled to the benefit of said writ, for the full amount specified therein, which shall be recovered, on motion, before the District Court, in the parish in which the said sheriff acts and resides, after ten days’ notice having been given to said sheriff, of such intended motion. Bul. & Curry’s Dig. p. 435.

The right to an action for damage actually sustained inconsequence of the acts or negligence of the sheriff, existed before the enactment of this statute. The legislature, no doubt, intended to grant a remedy to plaintiffs in execution, in addition to that which previously existed. But considering that statute, in connexion with principles well recognized, both before and since its passage, in regard to the powers and duties of sheriffs, we cannot yield our assent to the position assumed by the counsel for the plaintiffs, that it is to be construed as imposing the amount specified in the writ as a penalty for the mere failui’e of the sheriff to make a return within the legal delay. Such an interpretation is inconsistent with the well settled jurisprudence of the State, both prior and subsequent to the act of 1826.

It has been repeatedly held, both before and since the date of that statute, that, if the sheriff levy upon property before the peturn day of the writ, he may sell alter the expiration of that day. It is the duty of that officer, when he has made a legal seizure, to complete what he has commenced ; and until a sale is effected, or the writ has been otherwise satisfied, he can make no return, without the-consent of the plaintiff, which would release- the property from the seizure. Any act of the sheriff, after a legal levy, prejudicial to the rights which the creditor acquires in virtue- of his seizure, would render that officer liable for all losses resulting from his act. Such being the duties of the sheriff, how can he be answerable, unconditionally, for the mere failure to return a writ, which, under certain circumstances, he may be bound to hold or to execute. 3 Mart. N. S. 496. 1 Rob. 540. 12 Ib. 12.

The object of the statute appears to have been, to remedy the evil of a 'failure or refusal of the sheriff to execute writs of fieri facias, or to return those which had been executed, or to pay over the sums made under execution. In such cases, a summary remedy is given against the sheriff; who, after ten days notice, may, upon-motion, be made liable, unless he can show good cause why no return has been made, or why money collected under the writ has not been paid. The sheriff may, in. answer to such notice and motion, show that, in the exercise of due diligence, he has made a levy, buthas been unable to effect a sale; that the writ has been enjoined; or that the payment of a sum collected has been suspended by an order of a competent tribunal; and this showing would excuse his failure to make the return within the prescribed delay, and exonerate him from liability. "We consider that the defendant has shown circumstances, which discharge him from responsibility under one of the writs. In regard to the other two, his conduct is without excuse, and he must be held an-' swerable to the plaintiffs.

On the writ issued in the case of Gasquet, Parish & Co. v. Ripley & Thorn, which was returnable on the third monday of February, 1838, the following re. turn was made : “ Received this fi. fa. December 28th, 1837. This day, January 2d, 1838, I demanded of the defendants in this fi. fa. the money to satisfy it. They paid no money, an d refused to give me property to satisfy it. This fi. fa. having expired, I return it, no money made. March 1st, 1838.

(Signed) Thos. J. Robins, Sheriff.”

“ Returned and filed, March 18th, 1838. T. Hardesty, Clerk,”

It is clear, from this return, which was made sometime after the expiration of the writ, that the sheriff failed to perform his duty, which was, upon the refusal of the debtor to give up property to satisfy the writ, to call on the creditor to point out property. Code of Pract. arts. 726, 727. 4 La. 301. The alleged insolvency of the defendants in execution, did not excuse him from-making this call. They had made no surrender, and the creditor might havbeen able to designate property to be levied upon.

On the execution which issued under the judgment against Boatner, no return was made. A bond was, no doubt, taken ; but it was retained by the sheriff for more than eleven months, and until, in consequence of his neglect, it was destroyed. It belonged to the judgment creditor, who could have required its delivery to him upon paying the costs, and the return of the writ would have informed him that the bond was taken. C. P. art. 716. The loss of the bond is imputable to the laches of the sheriff, for which he is answerable.

Under the judgment against M. & E. Boatner, the plaintiffs availed themelv ot the benefit of the statute of 1840, already referred to, and issued a new execution, under which, a twelve-months’ bond for the whole amount of their judgment, was taken. This was an approval of the defendant’s act in relation to this writ, and a waiver of recourse .against him. The amount of this bond,which is $3,474 78, must be deducted from the judgment rendered by the court below..

The defendant asks, in the event of a judgment being rendered against him, to be subrogated to the rights of the plaintiffs, and this he is entitled to claim.

It is therefore ordered, that the judgment of the District Court be avoided and reversed. It is further ordered that, the plaintiffs recover from the succession of Thomas J. Robins, deceased, the sum of $1,318 '28, and that, upon the payment of that sum, the plaintiffs subrogate the said succession to all their rights resulting from their judgments against Ripley & Thorn, and against Elias Boatner, numbered 998 and 1032, on the docket of the District Court of East Feliciana: the appellees paying the costs of this appeal, and the appellant those •of the court below.


text:
    Magee et al. v. Robins.
    Where a sheriff fails to return afi.fa. directed to him and put into'his hands, and shows no_ thing which can excuse his failure to execute or to return the writ, ithe plaintiff in execution will be entitled to judgment against him for the amount for which the writ was issued. An allegation that the debtor was insolvent, where no surrender had been made by him, is not of itself sufficient to excuse the neglect.
    Appeal from the District Court of East Feliciana, Johnson, J.

      Winter and H. A. Bullard, for the plaintiffs. Lawson, for the appellant.
   The judgment of the court was pronounced by

King, J.

This is an action to recover from the defendant the amount of two ■writs of fieri facias, which were directed to him as sheriff, and which he failed to return within the legal delay. The defendant denies his liability, and alleges that the defendants in execution, against whom one of the writs was directed, were insolvent when it issued, and that under the other a twelve-months’ bond was taken, by which the condition of the plaintiffs hasbeen bettered. The cause was submitted to a jury, who found for the plaintiffs, and the defendant has .appealed. After the appeal the defendant died, and his administrator has made himself a party to the proceedings.

The defendant admits that one of the executions went into his hands, and the evidence satisfied the jury that he received both. Neither was ever returned, and no facts are shown which excuse the failure to execute the writs, or to make due returns. The alleged insolvency of the debtors in execution, against whom one of the writs was issued, is not of itself sufficient to excuse the neglect of the sheriff. Those parties had not made a surrender, and it was incumbent on him to show diligence in the execution of the writ directed against them.

The record affords no proof of a bond having been taken under the remaining writ, other than the averment in the defendant’s answer.

The judgment of the District Court is therefore affirmed with costs; reserving to the defendant the right of requiring a subrogation to the plaintiffs’ rights, on making payment.