text:
    Byrne, Vance & Co. v. Wm. Prather—Same v. Same.
    The written acknowledgment of an account places the claim on the footing of an ordinary personal debt, and subjects it to the prescription of ten years, as provided by Article 3508 C. C.
    A judgment which has been appealed from cannot bo pleaded as res judicata while the suit in which it was rendered is pending on appeal.
    An exception of Us ■pendens made after a plea oí res judicata has been overruled, and before a judgment by default has boen rendered, should be considered as having been made in limine litis} and if well taken should be sustained.
    from the District Court of the Parish of Morehouse, Richardson, J.

      Morrison & Purvis, for plaintiffs and appellants. D. C. Morgan, for defendant.
   Land, J.

These suits have been consolidated and tried together in this court, by consent of parties. The first named was commenced on an acknowledged account, in favor of Byrne <& Co., for the amount of three hundred and twenty-five dollars and fifty-four cents, to which defendant pleaded the prescription of three and five years, which was sustained, and judgment rendered against plaintiffs’ demand.

The account sued on is that of a cotton factor against a planter, for plantation supplies, and was acknowledged in writing by the defendant to be correct, in the following form, to-wit:

“Bastrop, 16th May, 1853.

“ I hereby acknowledge the above account for three hundred and twenty-five dollars and fifty-four cents to be correct. Mrs. Nancy Woods, of Bayou Rouge Prairie, agreed to pay the above by shipment of enough of her then growing crop to the address of Messrs. J. B. Byrne & Co. I hereby obligate myself to make Mrs. Woods pay the above account, and in case of her failing tú do so, will pay the same myself, together with eight per cent, per annum interest on the same, from 20th March, 1851.

(Signed) William Pbatheb.”

The account itself is made out against the defendant, and as appears above, was acknowledged on the 16th of May, A. D. 1853 Citation was served on the 20th of May, A. D. 1858, and the only question in this suit is, whether the prescription of three and five years pleaded is a bar to the action.

The prescription of five years is not made applicable, by Article 3505 of the Civil Code, to any class of accounts; and this court held, in the case of Dixon, administrator, v. Lyons, tutrix, that an acknowledged account was not an open account, and as such prescribed by the lapse of three years, under the Act of March 5th, 1852, p. 90, relative to prescription. 13 An., p. 160.

In the case of Davis v. Houren, 10 R., p. 403, it was likewise held, that the written acknowledgement of an account places the claim on the footing of an ordinary personal debt, and subjects it to the prescription of ten years, provided by Art. 3508 of the Civil Code.

It is, therefore, ordered, adjudged and decreed, that the judgment in the suit of Byrne, Vance & Co. v. Wm. Prather, No. 2618, be reversed; and it is now ordered, adjudged and decreed, that the plaintiffs do recover of the defendant the sum of three hundred and twenty-five dollars and 54 cents, with interest thereon at the rate of eight per cent, per annum, from the 20th of March, 1851, until paid, with costs in both courts.

The second named suit was commenced on the written aknowledgment and promise of the defendant to pay the account on which the first suit was instituted, and to this demand the defendant pleaded, first, the exception of res judicata, and afterwards, without objection, the plea of lis pendens. The exceptions were both overruled. The first named suit was pending on appeal, and the plea of res judi-cata was properly rejected. Escurir v. Dahoval, 1 La., p. 519 ; Turnbull v. Cureton, 9 M., p. 38 ; C. C. 3522, No. 9.

The evidence shows that the name of Vance had been used through error in the first suit and that the real plaintiffs, in interest, in both demands, were Byrne <& Co.; and as the exception of lis pendens was filed without objection, although after the plea of res judicata had been overruled, but before the case had been defaulted, and, therefore, in limine litis, it should have been sustained. C. P. Art. 333.

It is, therefore, ordered, adjudged and decreed, that the judgment in the suit of Byrne & Co. v. Wm. Prather, No. 2,734, be reversed, and that said suit be dismissed, at plaintiffs’ costs in both courts.


source: Caselaw Access Project

author: Voobiiies, J.

license: Public Domain

text:
    John Young et al. v. J. W. Hays, Recorder, et al.
    When property is sold under execution, tho adjudication is made without reference to the amount of legal and judicial mortgages to which the property may be subject.
    A forced sale of property, made under execution of a judgment, secured by a judicial mortgage, does not discharge concurrent judicial mortgages.
    from the District Court of the Parish of Claiborne, Egan, J.

      J. Young, for plaintiffs and appellants. McGuire & Ray, for defendants.
   Voobiiies, J.

The question involved in this case is, whether a forced sale, made under a judgment, secured by judicial mortgage, lias the effect to discharge concurrent judicial mortgages. The issue is presented by the purchasers; they contend that they are entitled to the cancellation of the judicial mortgage of J. S. Sims, whose judgment was registered on the same day as that of the seizing creditor; and that J. S. Sims’ only recourse hereafter is on the proceeds in the Sheriff’s hands.

The' Code of Practice, Art. 708, reads : “ The purchaser is bound for nothing beyond the price of his adjudication ; and, if after paying the suing creditor, as directed in the preceding Article, there remains nothing more due to discharge the mortgages subsequent to that of the suing creditor, the Sheriff shall give him a release from these mortgages.” Thus it appears, that the express provisions of the Code militate against the plaintiffs’ pretensions : the text speaks of subsequent mortgages.

The plaintiffs, however, contend that, although their case does not come within the literal terms of the Article, yet it falls within the spirit of the law. We think differently. When property is sold on execution, the adjudication is made without reference to the amount of legal or judicial mortgages, to which the property may be subject: the provisions of Article 708, with regard to subsequent mortgages form an exception. All other judicial or legal mortgages remain unimpaired. The creditor with such a mortgage may, if he chooses, look to the proceeds of the sale in such a case, and enjoin the Sheriff from paying them over ; but it by no means follows, that his rights cannot be exercised by pursuing the property itself.” Judice v. Ker, 8 An. 464. The plaintiffs’ counsel does not pretend, however, that antecedent mortgages are affected; but he makes a distinction between such and concurrent mortgages, — a distinction which seems never to have been recognized in our jurisprudence, and which is certainly not in harmony with our system of laws upon this subject. Scott v. Featherston, 5 An. 313.

Why should the separate action of one judicial mortgage creditor prejudice the right of recourse of another creditor, whose debt is secured by mortgage of equal dignity ? Why should the latter be compelled to claim the proceeds of the Sheriff’s sale, any more than the creditor who has an antecedent mortgage ? Creditors whose rights are secured by concurrent mortgages stand upon the same footing towards each other; and the rights of the one are not to be controlled by those of the other. The adjudication is made with reference to this. The Code provides that, “ when there exists a mortgage or privilege on the property put up for sale, the Sheriff shall give notice, before he commences the crying, that the property is sold subject to all hypothecations and privilege, of whatsoever kind they may be, with which the same is burdened.” C. C. 679 ; C. P. 679.

As there is a special provision for subsequent hypothecations, and none made for those bearing the same date, the latter must be governed by the general rule.

Judgment affirmed.


author: Land, J.

text:
    M. O. Taliaferro v. L. F. Steele, Sheriff, et al.
    The rendition of a judgment on insufficient evidence is not a cause for which the action of nullity will lie, in the absence of all proof of fraud or ill practice on the part of the plaintiff. «
    The invalidity of a bail bond is not one of the causes for which an action will lie, to annul a judgment rendered on it.
    The remedy in both of the above cases is by appeal.
    When a bail bond recites the finding of a Grand Jury, the parties to it are estopped from denying its existence or contents.
    If the bond, in specifying the charge in the indictment, docs not follow the words used in the statute, iuhHIig indictment, and the warrant of arrest is not signed by the Clerk of the court, they are objections patent upon the face of the record, and when in such a case judgment is rendered on the bond, the remedy is by appeal, and not by an action of nullity.
    from the District Court of the Parish of Bossier, J.

      Looney <& Fort, for plaintiff and appellant. F. P. Stubbs, for defendants.
   Land, J.

This suit is brought to annul a judgment, and at the same time, arrest its execution during the pendency of the proceedings.

It appears that the Grand Jury of the parish of Bossier found an indictment against one Bozeman, for the offence of carrying “ a dangerous weapon concealed on his person, contrary to the statute of the State.” That he was arrested by the Sheriff, and gave bond for his appearance, in the sum of five hundred dollars, with the plaintiff, Taliaferro, James M. Jones and W. Arick, as his securities. That he failed to appear in pursuance of the condition of his bond, and that a judgment of forfeiture was entered against him and Ms securities. That notice of this judgment was given to the sureties, and that after the legal delays, an execution issued thereon, and the property of the-plaintiff was seized and advertised under it, for sale. And that plaintiff thereupon commenced this action to annul the judgment, and to enjoin the sale.

The plaintiff assigns four different grounds of nullity, as follows:

First. Because said judgment was acquired without legal evidence, or by a quasi-fraud.

Second. Because the bond was given for the appearance of the principal on a charge not prohibited by the laws of this State, and, therefore, the judgment was absolutely null and void.

Third. Because L. E. Bozeman never had any citation or notice, legal or constructive, of the charge against him in the bill of indictment, and it could not, therefore, be the basis of a judgment. And,

Fourth. Because the arrest was unlawful, and without authority, and the bond given under such circumstances was null and illegal, and, therefore, neither the principal nor the securities are bound by it.

I.The rendition of a judgment on insufficient evidence is not a cause for which the action of nullity will lie, in the absence of all proof of fraud, or ill practice, on the part of the plaintiff. The remedy, in such a case, is by appeal. 0. P., Arts. 605, 607.

II.The invalidity of a bail bond is not one of the causes for which an action will lie to annul a judgment rendered on it. C. P., Arts. 605, 607. The remedy is likewise by appeal.

III.The bond recites the finding of the indictment by the Grand Jury, and estops the parties to it from denying its existence, or contents, as a matter of notice.

IV. This ground of objection is substantially the same as the second, and for the same reason, is insufficient to maintain the action of nullity.

The bond specifies the charge to be, “ the crime of carrying concealed weapons,” and the warrant describes the offence in the same language, omitting the word dangerous ” used in the statute and in the indictment. The warrant, besides, was not signed by the Clerk of the court.

If there be anything in these objections, they were patent on the face of the record, and the plaintiff’s remedy was by appeal, and not by action of nullity.

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


author: Cole, J.

text:
    Dyer & Stevenson v. Harmon A. Drew.
    A law partnership is an ordinary one, and the partners are hound jointly, and not in solido.

    Objections to the authority of the plaintiff to sue, and to the non-joinder of the heirs and representatives of. one who was hound jointly with the defendant, cannot he made after an answer has been filed, pleading a general denial.
    ■When a receipt has been given by an attorney-at-law, for a claim, placed in his hands for collection, the prescription of one year, provided by Art. 3501 of the Civil Code, cannot be applied where an action is brought on the receipt to make him liable for having allowed the debt to be lost by his neglect ; the receipt creates a personal obligation which is only prescribed by ten years, as provided by Article 3508 C. C.
    PPEAL from the District Oourt of the Parish of Claiborne, J.

      Vaughn & Vaughn, for plaintiffs and appellants. J. D. Watkins, for defendant.
   Cole, J.

This suit is instituted to recover of the defendant the' amount of two promissory notes, received for collection by Drew t& Bonner, as attorneys-at-law. The answer was a general denial.

There was judgment, as of nonsuit, against plaintiff, and he has appealed.

It is established, that a receipt was given for the notes by Drew & Bonner, and that the signature to the receipt is in the hand-writing of the defendant.

The defendant has not offered to return the notes, or to show what has become of them.

It was also incumbent on the defendant to establish that the failure to recover the amount of the notes was not owing to any laches on his part, but to the insolvency of the debtor. He has not proved these points.

A law partnership is an ordinary, and not a commercial one. O. 0. 2196, 5191. The partners are bound jointly and not in solido. C. C. 2843.

The objections to the authority of plaintiff to sue, and to the non-joinder of the heirs and representatives of Bonner to this suit, as co-defendants, come too late after an answer pleading the general denial.

The prescription of one year, for damages resulting from offences or quasi-offences, under Article 3501 oí the Civil Code, does not apply to this case.

As a written receipt was executed for the notes, this created a personal obligation, which is only prescribed by ten years. C. C. Art. 3508 ; Davis v. Houren, 10 R.,p. 403.

■ It is objected, that plaintiff is obliged to show the genuineness of the notes, previous to recovery. It is for the defendant to produce them, and give plaintiff the opportunity of proving the signatures to the notes. The defendant is clearly liable for one-half of the notes for which the receipt was given.

■ It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and that plaintiffs recover of the defendant four hundred dollars, with eight per cent, interest on one-half thereof, from the 29th of June, 1850, and on the other half from the 29th of June, 1851, and also the costs of both courts.


text:
    James G. Richardson v. J. E. Emswiler et al.
    A precmptor under the Act of Congress approved March, 1851, entitled “ An Act for the settlement of certain classes of land claims within the limits of the Baron de Bastrop Grant, and for allowing pre-emptions to certain actual settlers, in the event of the final adjudication of the title of the said De Bastrop in favor of the United States,” may either sell or mortgage the land after its purchase from the General Government, as in ordinary cases, thore being in the Act no restriction of his right to do so.
    Laws in the restraint of trade, or the alienation of property, are strictly construed, and are nevor extended to cases not within the express will of the law-maker.
    from the District Court of the Parish of Morehouse, Richardson, J.

      McGuire & Ray, for plaintiff. Todd & Brigham,, for defendants and appellants.
   Land, J.

This is a suit against the maker of a promissory note, secured by special mortgage on a tract of land, and also an hypothecary action against L. P. Spealcer, third possessor of the mortgaged premises.

There was judgment in favor of plaintiff, and the third possessor has alone appealed.

His defence urged in this court is set forth in his supplemental answer, as follows, to-wit: that the only title the said Jno. E. Emswiler ever pretended to hold to said land, upon which a mortgage is claimed in this suit, was under a right of preemption from the General Gevernment, under a settlement; that no patent had ever issued to said Emswiler for said land at the time the said pretended mortgage was executed, and that, therefore, the said land was not, at the time susceptible of being mortgaged ; and that said alleged mortgage is consequently a nullity.”

The mortgagor purchased the land in question from the United States Government, under and by virtue of the fifth section of an Act of Congress, approved March 3d, 1851, which is in these words :

“ That in the event of a final adjudication in favor of the United States, of the Bastrop claim, as contemplated by the first section of this Act, every bona fide settler on any part of said land, at the time of the extension of the public survey over the same, who is a man of family, widow, or single man over twenty-one years of age, and an actual house-keeper thereon, and who, but for the reservation heretofore made of said land for the claim of the said Bastrop, would have been entitled to a right of preemption under some one of the preemption laws, be, and he is hereby authorized to enter the quarter section he resided on, or by adjoining legal subdivisions, so as to include his residence, and land cultivated or improved, any number of acres not to exceed one hundred and sixty acres, upon making proof of such settlement, house-keeping, See., to the satisfaction of the Register and Receiver, as in ordinary cases, at any time within a year after the public surveys aro so extended over said land. See Acts of Congress, 1851, p. 598.

The appellant contends, that the purchaser of the land was a preemptor, and could neither assign nor transfer his right of preemption prior to the issuing of the patent by the General Government; and that as the land was not subject to alienation before the fee had passed out of the General Government, it was not susceptible of mortgage under Art. 3256 of the Civil Oode, which declares that immovables subject to alienation, and their accessories, likewise considered as im-movables, are alone susceptible of mortgage.

It is true, that the Prescription Act of 1841 declares all assignments and transfers of land by the preemptor, prior to the issuance of the patent, null and void. ■The preemptor in this case, however, did not acquire the land under the Preemption Act of 1841, but under the Act of 1851, which contains no such provision, declaring the assignment or sale of the land prior to the vestiture of the fee simple, by patent, in the preemptor, null and void. And as this restraint on the power of alienation is omitted in the Act of 1851, the presumption is, that such was the intention of the lawgiver, and as a consequence, the preemptor had a right either to sell or mortgage the land after its purchase from the General Government, as in ordinary cases.

Laws in the restraint of trade, or the alienation of property, are strictly construed, and^ are never extended to cases not within the express will of the lawmaker.

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


author: Yooehies, J.

text:
    Hannibal Faulk v. John S. Hough et al.
    Tho exclusion of warranty in an act of salo, cannoí availthe vendor, when it is fraudulently made,, as ho is hound to disclose redhibitory vices and defects in the thing sold, when ho knows of their existence; and the vendee is not precluded by such exclusion, from showing that previous to tho date of tho sale, the vendor was aware of the existence of redhibitory defects, whioh ho fraudit lently concealed from him.
    from the District Court of the Parish of Morehouse, Richardson, J„

      Todd & Brigkam, for plaintiff. Parsons & Budding, for defendants and', appellants.
   Yooehies, J.

The plaintiff sues for the price of a slave, which he soldi toitlie-defendant, with an exclusion of warranty.

The defence set up is, that the vendor was aware of the fact,, that, at the time of the transfer, the slave was afflicted with a redhibitory disease, aftet of whieh the vendee was totally unaware; and that it was, «account of' theftaudl and misrepresentations of the former, that the latter consented to> purchase the slave under the circumstances.

When the case was called for trial, the defendant prayed for a continúanos,, erti the ground, that David M. Day, a witness, whom he had caused to be regularly-cited, was not in attendance. The affidavit states substantially, that the. absence, of this witness is not attributable to the defendant; that his tetiffliW- fe mate. rial -to tlie issue; that the defendant expects to prove by him the unsoundness of the slave previous to the date of the sale; that plaintiff was frequently urged by Ms wife to sell or dispose of this slave, on account of her unsoundness and worthlessness ; and, finally, that the defendant hopes and expects to procure the testimony of this witness by the next term of the District Court.

There are two other petitions for a continuance, setting forth the absence of A. S. Washburn and John Ii. Taylor, witnesses summoned on behalf of the defendant, the subpoena having been regularly served upon the former, but not upon the latter, on account of his temporary absence. The petition, as to this witness, states, however, that the defendant has used due diligence. The defendant expects to prove by one of these witnesses, the plaintiff’s statement, that the slave had no other disease but chills, at the time of the sale; and by the other, the fact that she died of the drcpsy, a disease which she had contracted previously to the date of the transfer.

The defendant was ruled to trial, notwithstanding these motions for a continuance. It is argued that the exclusion of warranty in the deed of sale, made it unimportant to prove the existence of a redhibitory defect, and that, in fact, the defendant was estopped from making that defence. So it would be, had the mere existence of a redhibitory defect been relied upon as a bar to the plaintiff’s demand. But it is alleged in the answer, that this contract is tainted with fraud as regard the stipulation of warranty; and that is what the defendant wishes to prove by the witnesses, whose absence deprive him of the benefit of their testimony.

The Civil Code provides, Art. 2526 : “ The renunciation of warranty, made by the buyer, is not obligatory, when there has been fraud on the part of the seller.”

Independently of this text of the law, it is evident that under the provisions of the Civil Code, upon the vitiation of all contracts in general, on the ground of fraud and error, the party would be entitled to relief upon a proper showing.

In the case of Ogden v. Michel and Husband, reported in 4th R. p. 156, the ■ court said: “ The case of Turner & Senshaw v. Wheaton et als., 18 La. 37, relied on by the appellant, is to the same effect. In that case, the exclusion of warranty, as to every thing except title, was made with a knowledge on the part of the vendor, of redhibitory vices, which he failed to disclose at the time of the sale, and which good faith required him to disclose. The principle laid down in Art. 2480 of the Civil Code, that, although it be agreed that the seller is not subject to warranty, he is, however, accountable for what results from Ms personal act, and any contrary stipulation is void, receives its application in such cases as that above quoted. An exclusion of warranty, made fraudulently, cannot avail the vendor, because he is bound to disclose those vices and defects, within his knowledge, which are not discoverable on inspection.”

The exclusion of warranty, stipulated in the deed of sale from the plaintiff to the defendant, does not preclude the latter from showing that, previous to the date of the contract, the former was aware of the existence of redhibitory defects, which he concealed from the purchaser.

The continuance prayed for should have been granted, unless the opposite party admitted that the absent witnesses would, if present on the trial, testify to the facts stated in the motion. Acts of 1839, p. 164, and 1840, p. 124, amending C. P. 466. This was not done, however. The defendant was then entitled to a continuance.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed, and that this case be remanded for a new trial; the ap-pellee paying the costs of appeal.


text:
    Mellissa Kelly v. Wiseman & Hinson.
    The vendor cannot enjoin the seizure and sale of the property of his vendee, when it is seized under execution as the property of a third person, on the grounds that his obligation in warranty may . attach.
    In such a suit the question of title to property is involved, and it, therefore, partakes of the nature of a petitory action, which can only bo maintained by the party in whom the legal title is vested.
    The vendor is only liable on this warranty for causas anterior to the sale, and if the vendee should be evicted without calling him in warranty, and he can establish the fact that he had a good defence, which he lost, in consequence of the neglect and failure of the vendee to call him in warranty, the vendee cannot recover from him.
    from the District Court of the Parish of Morehouse, Richardson, J.

      Parsons <fo Ludeling, for plaintiff and appellant. Todd <& Brigham, for defendants.
   Land, J.

The facts of this case are stated by plaintiff’s counsel, as follows : “ On the 26th of April, 1852, plaintiff purchased from one T. C. Mathews, by notarial act, certain lots in the town of Bastrop, known on the plat thereof as No. 9,10, &c., in block No. 2, for the price of $1000 cash. On the 4th of February, 1851, plaintiff, by act sous seing privé, sold a part of these lots, to Caperton & Wealcs, under full warranty.

“ On the 4th of June, 1851, defendants, Wiseman & Hinson, a commercial firm, obtained judgment against one John B. Stewart, for the sum of $509 19, for which they caused a writ of fi. fa. to be issued on the 13th of July following, under which they had the property, sold by plaintiff to Caperton & Wealcs, seized as belonging to their debtor, and advertised for sale. Plaintiff, as warrantor of Caperton & Wealcs, her vendees, on the 4th of September, 1857, applied for and obtained an injunction arresting the sale. The questions presented are those of ownership, and whether a judgment creditor, not of the vendor, can disregard the title and possession of a third person, and seize property, owned and possessed at the time of seizure by a hona fide claimant.

“ A motion to dissolve the injunction on the insufficiency of the bond having-been properly overruled, defendants filed their exception aud answer, denying in the exception that any legal grounds were disclosed for an injunction, and in the answer setting up fraud and simulation in plaintiff, and putting at issue the question of ownership. Upon these pleadings, a trial was had by the court, (the jury having been waived,) and judgment rendered in favor of defendant, dissolving the injunction, with $50 damages, from which plaintiff appeals.”

This suit, as stated, iuvolves the question of title to real estate, and is, therefore, in the nature of a petitory action, which no one can maintain except the party in whom the legal title is vested. C. P. Art. 44.

In the suit of Caze, Administrator, v. Robertson, ante p. 232, which was the suit of an administrator of a deceased vendor, to recover a tract of land which he alleged had been unlawfully taken from the vendee, and in which he claimed a right of action, on the grounds of warranty, as sot up in this case, we held, that the suit was properly dismissed, on an exception in the nature of a demurrer.

This case in principle, is the same, subject, however, to the more serious objections, that if one vendor can enjoin the sale of real estate under execution, on the ground that his obligations in warranty may attach, each vendor, back to' the origin of the title, would have the same right, and thus the judgment creditor might be involved in vexations and ruinous litigation.

The vendor is only liable on his warranty for causes anterior to the sale, and! if the vendee should be evicted without calling the vendor in warranty, and the latter can prove that he had good grounds of defence, which he has lost in consequence of the vendee’s failure to do so ; the former can not recover, and this rule of law is a sufficient protection to his rights.

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


text:
    Elizabeth Deloach v. Mary L. Elder. Administratrix.
    If a slave sold, dies of a disease which did not exist at the time of the sale, hut was produced by tlix> effects of a disease which manifested itself within three days after the sale, the vendor is liable.
    All warranties to which vendors are subject in private sales, exist against the heir, in judicial sales of the property of successions.
    from the District Court of the Parish of Bossier, Egan, J.

      Watkins & George, for plaintiff. R. J. Looney, for defendant and appellant.
   Cole, J.

This is a redhibitory action ; there was judgment for plaintiff, and defendant has appealed.

Even if the slave died of a disease which did not exist at the time of sale, but. was yet produced by the effects of a disease which manifested itself within three days alter the sale, still the vendor is liable. Cornish v. Shelton, 12 An., p. 415; Piggin v. Kendig, 12 An., p. 453.

It is contended that the defendant is not liable to warrant the soundness of the slave, because she was sold under seizure, by order of a court of .justice.

The judgment of the District Court under which the negress, the subject of the present litigation was sold, decreed, that so much of the slave property should be sold, as would satisfy the indebtedness of the estate to the creditor who petitioned for this sale.

If the whole of the property of the estate had been sold for the purpose of paying the debts of the succession, it would have been a probate sale, and the nature of the sale is not changed, because not the whole, but a part of the effects of the succession is sold for the purpose of paying the debts of the estate. Article 2597 of the Civil Code applies to “ sales on seizure or execution,” and not to sales made by orders of court to pay the debts of an estate.

Article 2602 of the Civil Code declares that all the warranties to which private sales are subject, exist against the heir, in judicial sales of the property of successions.”

This Article of the Code is found under the title which treats “ of the Judicial Sale of the property of successions.”

Judgment affirmed, with costs.


text:
    Banks A. Smith v. John Taylor.
    A party who permits property in his possession to be seized under execution and sold as the property of another, without objection on his part, and at the sale purchases the property, does acts inconsistent with the idea of ownership on his part, and which generally have the force and eftcct of an estoppel.
    The claim of a surety against his principal, for re-imbursement of the amount of a note taken up by the surety, is barred by the prescription of ten years only.
    PPEAL from the District Court of the Parish of Union, Richardson, J.
    _Ol J. T. Ludeling, for plaintiff. Baker & Harris, for defendant and appellant.
   Land, J.

This is a suit for the recovery of a slave, and his hire from the first day of January, 1849.

The slave was purchased by the plaintiff at a succession sale, in January, 1848, on a credit of one, two, and three years ; and to secure the payment of the price, he gave his three several promissory notes for equal amounts, bearing interest at the rate of eight per cent, per annum from date, with John Taylor, the defendant, as one of his securities, and a special mortgage on the slave purchased.

On or about the first day of January, 1851, the slave came into the possession of defendant, under an agreement between Mm and plaintiff, and remained in his possession, until the slave was seized by the Sheriff, and sold on the third day of June, 1858, after the commencement of this suit, under certain writs of fieri facias issued on judgments against the plaintiff, Banks A. Smith.

The defendant had previously, to-wit, on the 18th of March, 1853, paid, as surety of plaintiff, the sum of $1,449 on the promissory notes given for the price of the slave.

At the Sheriff’s sale the defendant was present, and became the purchaser of the slave at the price of $2,255, as the property of the plaintiff, without any notice or claim of right in himself. He afterwards filed a third opposition, and claimed a privilege on the proceeds of sale by preference over the seizing creditors of the plaintiff.

I. On this statement of the facts, in the absence of any sufficient or legal evidence of title in the defendant, the verdict of the jury, finding that the slave was the property of plaintiff in this suit, who was defendant in the executions, is well grounded, for the reason that the seizure and sale of the slave, as the property of plaintiff, in the presence of, and without objection on the part of defendant, who became the purchaser, are acts wholly inconsistent with all legal ideas of ownership on his part, and generally have the force and effect of an estoppel as to the title of defendant in execution, upon all persons present and assenting thereto. Amonett v. Young & Bemiss, ante, p. 175.

II. The evidence sufficiently establishes, that the verbal agreement under which the slave came into the possession of defendant, was intended by the parties as a contract of indemnity or pledge to secure the defendant against the consequences of his suretyship on the promissory notes given for'the price of the slave; and under this agreement, which had leen executed, the defendant was bound to account to plaintiff for the hire of the slave, by deducting annually the amount, first from the interest, and the balance, if any, from the principal. C. C., Arts. 3143, 3107. It is, therefore, clear, that the plaintiff had no right of action for the recovery of the hire of the slave, so long as the debt he owed to defendant remained unsatisfied. C. C. 3145.

III. The defendant, in his answer, prayed for judgment for the amount, to-wit, $1449, which he had paid on the notes, as security for plaintiff, with eight per cent, interest, and privilege on the slave, by virtue of his legal subrogation to all the rights of the vendor. To this demand the plaintiff pleaded specially the prescription of one, three, and five years. The prescription by which the surety’s right of action for reimbursement is barred, is the prescription of ten years, under Article 3508 of the Civil Code, and not five years. Linton v. Wilkoff, 12 An. 880.

IV. The defendant claims a privilege on the slave, which attaches to the proceeds of sale in the Sheriff’s hands. The payment of the notes by him, subro-gated him, by operation of law, to all the rights and actions of the creditor, including mortgages and privileges; and as the creditor was the vendor of the slave, the defendant succeeded to his right of special mortgage and vendor’s privilege, as a security for his reimbursement. C. C. Art. 2157. And his privilege is superior to that of the seizing creditors, and as such, entitles him to be paid by preference out of the proceeds of the sale of the slave. C. C., Art. 3234.

The jury found the hire of the slave to be worth one hundred and fifty dollars per annum, to be computed from the 1st of January, 1851; and taking this as the basis of the calculation, and allowing the defendant interest at the rate of eight per cent, per annum on the sum of $1449, from the 18th of March, 1853, and making the annual deductions, of the hire, as required by Art. 3143 of the Civil Code, we find that there was due the defendant on the 3d of June, 1858, the date of the Sheriff’s sale of the slave, the sum of $741 80, the balance due on the promissory notes aforesaid, paid by him as surety for plaintiff.

For this amount, defendant is entitled to a privilege on the proceeds of sale in the Sheriff’s hands, and by preference over the seizing creditors of the plaintiff But as these creditors are not before us on appeal, we can only adjudicate on the rights of the parties to this suit, as presented in the record.

The only error in the verdict of the jury, which the judgment follows, is the rejection of the defendant’s privilege on the proceeds of the sale of the slave. The tacts on which the judgment we are about to pronounce is based, are substantially found by the verdict of the jury.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be reversed, and the verdict of the jury be set aside ; and it is now ordered, adjudged and decreed, that the plaintiff be declared to have been the owner of the slave described in his petition, from the third day of January, 1848, to the third day of June, 1858. And it is further ordered, adjudged and decreed, that the defendant do have and recover of the plaintiff the sum of seven hundred and forty-one dollars and eighty cents, the balance due him on the promissory notes given for the price of said slave, with eight per cent, per annum interest thereon, from the third day of June 1858, and that this privilege on the proceeds of the sale of said slave be recognized and enforced as against said plaintiff, Banks A. Smith, with the costs of this appeal. And it is further ordered and decreed, that the defendant pay the costs of the lower court, the same being allowed plaintiff on the question of title to the slave.


text:
    James Cooper v. W. D. Cooper.
    The date of a judgment may he fixed by reference to the record of proceedings in the case, and it is not necessary that the Judge should sign it in open court, or that it should be stated that it was read in open court.
    "When the plaintiff is the payee of the note sued on, he may strike out or not his special endorsement of the note, and is not bound to show a transfer back to him of the note.
    PPEAL from tlxe District Court of the Parish of Union, Richardson, J.
    XX Todd & Brigham,, for plaintiff. W. J. Z. Baker, for defendant and appellant.
   Cole, J.

This action is based upon a draft drawn by the defendant on Messrs. Cleveland & Bro., New Orleans, payable to plaintiff or order.

There was judgment for plaintiff, and defendant has appealed.

1. The first objection of appellant is, that the judgment appears to have been rendered without any default having been rendered. That the record shows the evidence to have been taken down, and the case tried on the 12th of April, 1859 ; that the order granting ap appeal was taken on the 12th of April, 1859, and it is not shown that any default had been taken before this time. That the record shows that a default was taken on the 13th of April, 1859.

It appears clearly that the latter date is a clerical error. The record shows that the case was taken up and tried on the 12th of April; and as the judgment states that two judicial days had elapsed since the judgment by default was taken, it is thus shown that the default was taken at least two days before its confirmation.

2. The second objection is, that the judgment has no date, and does not appear to have been signed or read in open court.

The record establishes that the case was tried on the 12th of April, 1859, and that on the same day a motion for an appeal was granted to the defendant in open court. The date of the judgment is thus fixed, and it would appear also that it was signed in open court; but the Code of Practice does not require that the judgment should be dated, or that it should be signed in open court.

Article 543 of the Code of Practice declares, that all judgments must be read by the Judge in open court, but this Code does not require that it should be stated in the judgment, that the judgment has been read in open court; and the District Judge must be presumed to have done his duty and to have read it, as the law directs.

3. It is contended that the plaintiff has not shown himself to be the owner off the draft sued on because the payee, the defendant, had endorsed it to A. J. Bobo or order; and that there is no allegation or proof that the draft was endorsed to Bobo for collection or as agent; that there is no proof of retransfer from Bobo to the plaintiff.

As the plaintiff was the payee and holder of the note, he had the right to strike out or not his subsequent endorsement to Bobo, and he was not bound to prove any transfer back from the subsequent endorser. Dugan v. United States, 3 Wheaton, 183 ; Story on Notes, §§452, 246 ; Squier v. Stockton, 5 An. 121. Although there is a special endorsement in this case to Bobo, it appears evident that it was so endorsed for the purpose of collection; the draft is endorsed in blank by Bobo, and tbe notary states that it was at the request of Bobo it was protested. As plaintiff is the payee of the draft and in possession thereof, and as it has been endorsed in blank by Bobo, it is prima facie evidence that the plaintiff is the lawful owner of the same. Wood v. Tyson, 13 An., p. 105.

Judgment affirmed with costs.


text:
    Powell & Hopkins v. Matilda Hopson & Husband.
    When it is apparent that a party intended to offer in evidence a paper, or document, hut failed to do so through inadvertence, or mistake, and the document is copied in the transcript of the record, the Supreme Court will consider and give effect to the evidence, as if it had been formally introduced, if it is admissible.
    from the District Court of the Parish of Morehouse, Richardson, J.

      McFee <& Mathews, for plaintiffs. McGuire & Ray, for defendants and appellants.
   Land, J.

This suit was commenced on an account-current in favor of plaintiffs as cotton factors, kept in the name of the husband, against the wife, for the amount of S3,440 02 cents, on the allegations that the account had been contracted by the husband as agent of his wife, who had been separated in property from him by a judgment, and that the items of the account had enured to her separate benefit and the improvement of her separate estate; and that the husband, without any property or assets in his own name, had managed and controlled the plantation and slaves of his wife, during the period covered by the account, as her general agent.

There was judgment against the wife for $2,858 61, with five per cent, interest on the same, and she has appealed.

This case was formerly before this court, on the appeal of the wife, and was remanded for a new trial, because of the insufficiency of the evidenee to establish her liability.

On the new trial, the plaintiffs’ counsel filed an affidavit for a continuance, as follows:

“ The plaintiffs in this case move the court for a continuance, on the following grounds, to-wit: the mandate of the Supreme Court rendered in this case, at its last term, ordered a new trial for the purpose of allowing plaintiffs to produce the invoices and items thereof as charged in the account sued on. That since said mandate was filed and ordered to be made executory, and at this term of the court, plaintiffs have filed an amended petition, with the invoices called for, so far ag they can at this time produce them. That all the items of the invoices, as charged in the account, are produced, except the invoice of April 4th, 1854, of $200 77, the items of which are not now produced in consequence of the absence of the parties who furnished said invoices to plaintiffs for defendant, — being absent from the city of New Orleans during the late epidemic of yellow fever. That plaintiffs expect to produce, by the next term of the court, the items of said invoice, and the full proof of all the invoices; that the items thereof enured to the benefit of Matilda Hopson and her separate estate ; and expect to prove by G. F. Girault. and S. H. Gardiner, and other competent witnesses in New Orleans, that all of said invoices and items were furnished defendant, and were for her benefit, &e.”

The defendant admitted, that if the witnesses named were present, they would swear to the facts stated in the affidavit, and thereupon the parties proceeded to trial. The plaintiff’s counsel omitted to offer in evidence, and to have the same filed and marked as testimony in the case, the admission and affidavit, and the defendants’ counsel contends that they cannot be considered as evidence before this court, although they form a part of the record before us.

"When it is apparent, a party intended to offer in evidence a .paper or document (as it is in this case), but did not do so, through inadvertence or mistake, and the document is copied in the transcript, the court will consider and give effect to the evidence, as if formally introduced in the court below, if it do not appear, nor is shown to be inadmissible.

Considering the facts stated in the affidavit to be true, or proved by witnesses, the judgment of the lower court is sufficiently sustained by the evidence.

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


author: Voorhies, J.

text:
    State v. Marion Fuller.
    The objection, that the defendant did not have a copy of the venire and indictment served upon him two entire days before his trial, must be urged before going to trial; it can have no effect when the defendant seeks to avail himself of it after the verdict has been rendered.
    The general repealing clause of the Act of 1855, relative to crimes and offences, does not repeal the former statutes denouncing crimes and offences, upon which the Act is silent.
    from the District Court of the Parish of Union, Richardson, J.

      F. P. Stubbs, District Attorney, for the State. McGuire <& Ray, for defendant and appellant.
   Voorhies, J.

This case comes up on a motion in arrest of judgment.

The objections, as stated in the motion are : 1st, “ That there is no law in this State, making the inciting, moving and procuring of a person to inveigle, steal and carry away any negro or other slave, an offence, as is charged in the indictment, upon which judgment is rendered in this case ; 2d, That this defendant did not have a copy of the venire and indictment served on him two entire days before he was tried, as appears by the return of the Sheriff on the back of the indictment.”

The last objection, however good it may be when urged before going to trial, loses its efficacy when the party seeks to avail himself of it after verdict rendered in the case. This right is waived when not claimed before trial. State v. Hernandez, 4 An. 379 ; State v. Price, 6 An. 691; State v. Benjamin, 7 An. 47 ; State v. Holmes, 7 An. 567; State v. Kentuck, 8 An. 308; State v. Maxent & Guesnon, 10 An. 743 ; and State v. Jackson, 12 An. 679.

The indictment charges that the prisoner “ did feloniously and maliciously incite, move, procure, aid, hire and counsel the said Robert Fuller and the said Robert H. Holmes alias W. B. Hall, in manner and form aforesaid, to inveigle, steal and carry away.” The prisoner contends that six different offences, three of which are unknown to our laws, are charged in the same count; and that, conse quently, this defect is not cured by general verdict.

The statute of 1819 (Acts p. 62-3) reads as follows : “ All and every person and persons, who shall inveigle, steal, or carry away any negro or other slave or slaves, or shall hire, aid, or counsel any person or persons to inveigle, steal, or carry away,” &c. The addition in the indictment of the terms incite, move and procure, far from changing the nature of the offence charged under the statute, is merely explanatory. The indictment is couched in the very words of the statute, which, in this respect, denounces the offence committed by accessories before the fact; and although it would have been sufficient to have inserted the expression used by the statute to define the offence of an accessory before the fact, to the inveigling, stealing and carrying away of slaves, yet, there can be no impropriety in adopting the common law form of charging the offence, as it embraces the precise terms of our statute.

It is contended, in the last place, that the statute upon which the present indictment is framed, has been repealed by the Act of 1865, relative to crimes and offences. The failure to reenact this statute in the Act of 1855, above mentioned, is not affected by the repealing clause, “ that all laws contrary to the provisions of this Act, and all laws upon the same subject-matter, except what is contained in the Civil Code and Code of Practice, be repealed.” In the list of offences, comprised in the 125 sections of this Act of 1855, there is not one upon the same subject-matter as the offence under consideration. We have already held, that the Act of 1855 does not, by omitting any particular crime or offence, existing previously, repeal the same. State v. Wilson, ante, p. 446.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed.


text:
    Paulina Picket v. S. W. Vance.
    When interrogatories on facts and articles are annexed to a petition, and an exception is made to the vagueness of the petition, and sustained with leave to amend — ; That the interrogatories not being pertinent to the issue, the defendant should not be compelled to answer them.
    from the District Court of the Parish of Caddo, Creswell, J.

      Landrum & WiMiamson, for plaintiff. B. L. Hodge, for defendant and pellant.
   Land, J.

The late James B. Gilmer and the plaintiff, his wife, entered into an act of partition and settlement, of all their property, rights and credits, which was specially authorised by an Act of the Legislature, and the 19th Article thereof declares:

“ That if hereafter any community property, or any property right, or claim acquired since the marriage, be discovered to exist, of any nature soever, and not herein recited, or specially disposed of hereinafter, whether the same be real, personal, movable or immovable, whether situated in this State or elsewhere, such property, right, claim or credit, when discovered, shall vest in, and become the individual, absolute and irrevocable property and rights of the said Paulina Gil- mer, lier heirs and assigns, forever, together with all the rents, revenues, issues, profits, &c., accrued since the date of the final agreement entered into by said Gilmer and wife, to wit, 4th of October last past,” that is 1855.

The present action is founded on this article or stipulation in the act of settlement and partition against the defendant, the son-in-law of Gilmer, for the recovery of two specific sums, to wit, $115 and $550, alleged to have been acquired by Gilmer since his marriage with plaintiff, and to have been received by defendant. And also, for the further sum of fifty thousand dollars alleged to have been received by him at various other times, in collections and notes and other property belonging to plaintiff by virtue of said stipulation. The plaintiff concludes her petition by propounding interrogatories to the defendant.

The defendant excepted to the petition, upon the grounds that the allegations contained in it, were too vague, indefinite and uncertain, to be answered, except those relating to the two specific sums first mentioned, and which the petition charged to have been received from a certain named person.

The general allegation to which the exception applied, was in these words : Petitioner further represents, that said Samuel W. Vance, who is familiar with the affairs of said Gilmer, about which your petitioner was not fully informed, has, at various other times, collected various sums of money which constituted property acquired since said marriage, and also has in his possession, notes and other property belonging to petitioner, by virtue of said settlement above mentioned, to the amount and value of fifty thousand dollars, all of which he refuses to deliver up, or account for, though amicably requested so to do.”

The exception was sustained and the petition dismissed as to the demand for fifty thousand dollars.

The District Judge did not err.

Although great latitude is allowed in pleadings under our system of practice, yet the plaintiff is required to make, in his petition, a clear and concise statement of the object of his demand, as well as of the nature of his title, or the cause of action on which it is founded. O. P. Art. 112.

The cause of action alleged by plaintiff, is the collection of monies, and the receipt of notes and other property belonging to her by defendant. It cannot be said in such a case, that there is a clear and concise statement of the cause of action, when there is no allegation of time, place or person, or of items making up the gross sum demanded.

After the exception had been sustained, the plaintiff’s counsel moved the court for an order on defendant, to answer the interrogatories on facts and articles propounded in the petition, to which defendant, by his counsel, objected, and the objection was sustained on the ground, “ that the exception to the vagueness of the petition had been sustained, with leave to amend.” The Judge did not err.

After the exception had been sustained, the interrogatories were not pertinent to any issue before the court, and the answers of defendant would have been a vain and useless thing in the suit pending.

The defendant answered the petition, as to the two specific items claimed, and admitted that in the spring of 185G, Gilmer placed in his hands for collection, a note for $450, for loaned money, bearing eight per cent, interest from date ; and that he had received on it $115, but nothing more ; and alleged his willingness to account to plaintiff for the note and the money received, if she were entitled to the same, and that he had so notified her agent before the institution of this suit, but averred that the note and money received on it, belonged to Gilmer.

There was judgment for the money collected, and the note, and defendant appealed.

His learned counsel contends, in bar of this action, that the partition and settlement were intended as a finality between the parties, and to preclude a resort to the courts, for the ascertainment of their respective rights and obligations. This is certainly true, and the solemn acts which they executed, under the express authorization of the Legislature, are final and conclusive upon their rights, but this suit is not for the ascertainment of the rights of plaintiff, or the obligations of Gilmer, but for the recovery of money which the act of partition and settlement expressly declares belongs to plaintiff.

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


author: Buchanan, J.

text:
    James Walling v. His Creditors.
    The syndic of an insolvent may plead in his answer to oppositions filed to his tableau of distribution, any legitimate defence against the claims of the opposing creditors, such as usury and want of consideration, &c.
    The opposition in such case is a suit to establish a money demand, and the defence cannot be barred by prescription.
    from the District Court of the Parish of Caddo, Creswell, J.

      Landrum <& Williamson, for A. B. Levisee, for defendants and appellants.
   Buchanan, J.

The late Samuel Bennett and Mrs. Alexander, filed oppositions to a tableau of distribution in this insolvency. They claimed to he mortgage creditors of the insolvent; the syndic filed an answer to their oppositions, in which he pleads that the contracts were usurious. This plea has been, after full investigation, sustained to a great extent by the District Judge; and the opponents have appealed.

Their counsel relies in this court, principally, upon the argument that the de-fence interposed by the syndic, is equivalent to a revocatory action, and is subject to the rules governing that action, as the prescription of one year, &c.

We do not think this argument well founded. The opposition is a suit to establish a money demand founded upon contracts ; and the syndic has full right to repel such suit or demand, by any legitimate defence, as for instance, usury and want of consideration.

Upon the facts, embracing many and complicated transactions between the insolvent and the opponent Bennett, the elaborate and laborious examination which the District Judge has given them, in his reasons for judgment, have led him to conclusions which appear to us to couform to the evidence in the cause.

We are of opinion, with the Judge a quo, that the different notes and mortgages which figure in the evidence, although executed partly in the name of Samuel Bennett, and partly in the name of Mary D. C. Cane, (Mrs. Alexander,) as payees and mortgagees, were in reality obligations held by Samuel Bennett, arising out of transactions between the insolvent and Bennett, and for the account and behoof of the said Bennett.

There is one particular in which there appears to be error in the judgment of the District Court. No interest is allowed upon the amount ($3,638) for which the succession of Bennett is ordered to he placed upon the tableau of distribution, with right of mortgage taking date from the 6th of September, 1851.

By the terms of the mortgage, the debt, to secure which it is given, bears interest at the rate of eight per cent, per annum.

It is, therefore, adjudged and decreed, that the judgment of the District Court be amended ; that the syndic of the creditors of James Walling, place the appellant, Mrs. Alexander, in her capacity of executrix of the last will of Samuel Bennett, as a mortgage creditor, upon the tableau of distribution herein, for the sum of $3,638, with interest at eight per cent, from the 6th of September, 1851, date of the mortgage, until paid; that in other respects, the judgment appealed from be affirmed ; and that the costs of appeal be borne by the mass.

Lane, J., recused himself in this case, being a creditor of the insolvent.


text:
    J. P. Elam, Tutor, et al. v. Heirs A. S. Barr et al.
    Whore the tutor was hound to furnish another surety, in place of one who had died or become insolvent, and without any order of court, voluntarily furnished a new bond, with other surety, which was filed and approved by the Clerk of the court — Held : That the surety on the new bond was bound, although it was not executed in pursuance of any order of court “ volenti non fit injuria. ”

    from the District Court of the Parish of Catahoula, Richardson, J.

      J. G. Taliaferro and W. B. Spencer, for plaintiffs and McGuire <§ Ray and R. H. Cuney, for defendants.
   Buchanan, J.

The appellee, Sarah J. Glenn, administratrix of the succession of Isaac T. Glenn, moves to dismiss the appeal taken by the plaintiffs herein, on the ground that Elizabeth Glenn, one of the defendants, was not made party to the appeal.

It was not necessary to make her a party. She had no interest in maintaining the judgment of the court below, which condemned her to pay the plaintiffs a large sum of money, while it exonerated the co-defendant and appellee from all liability. Dow v. Hardy, 13 An. 441; Saux v. Lefevre, 12 An. 757.

Our decision upon this point renders it unnecessary to notice the other grounds of the motion to dismiss.

The principal question to be determined is the validity and binding effect of a bond given on the 10th of December, 1850, by Samuel Glenn, as principal, and Isaac Thomas Glenn, as his security, in the sum of twelve thousand seven hundred and seventeen dollars, conditioned for the faithful performance, by Samuel Glenn, of the duties of tutor of the minors Elam. The appellee, Sarah Jane Glenn, administratrix of the estate of Isaac Thomas Glenn, security named in said bond, defends this suit, on the ground, (among others,) that said bond was executed several years after Samuel Glenn’s appointment as tutor to the plaintiffs, and was not provoked by any legal proceedings, and was not executed in pursuance of any law or order of court, and is a nude pad, and is in no manner binding on the estate of Isaac T. Glenn.

The record shows that Samuel Glenn was appointed tutor to the minor heirs of L. W. Elam, in November, 1849, and gave as surety on his bond, Elizabeth Glenn and Alfred S. Barr.

Barr died in February, 1850. Elizabeth Glenn became insolvent about the same time, her estate being sold on a twelve month’s bond. At this juncture of affairs, John A. Bray, uncle of plaintiffs, demanded of Glenn other and better security for his tutorship, which Glenn complied with, by executing the bond above mentioned, with Isaac T. Glenn as security, which bond was approved by the Clerk of the District Court.

It seems to us that the bond given under these circumstances, is a legal bond. The obligation of a dative tutor, to give good and sufficient security for the fidelity of his administration, is recognized by Article 330 of the Civil Code.

Now, nothing is more likely to happen in the series of years during which a charge of tutorship may last, than that the surety originally given by the tutor, may die or become insolvent. In either case, the security for the minor’s rights, which the law contemplates, no longer exists. There will be, virtually, no one bound for the fidelity of the tutor’s administration, but himself.

It cannot be doubted, that upon suggestion of this fact to the Judge of Probates, the tutor would be ordered to furnish another surety in the place of him who has died or become insolvent. And if, without any order of court, the tutor voluntarily furnishes another bond, with other security, under the circumstances, and files the same with the Clerk of the court, he has done no more than he was obliged to do, and it does not lie in the mouth of the surety who has signed such bond, nor of the representatives of such surety, to repudiate the obligation. This is not, in terms, the case of the third paragraph of Article 330 of the Code, which authorizes the tutor’s bond to be increased or diminished on the demand of the under-tutor, or of any relation of the minor, when there shall be an augmentation, or a diminution of the funds of the minor, in the tutor’s hands. Such increase or diminution of the amount of security for administration, must, probably, be ordered by the Judge; particularly would that seem necessary, when a diminution of the security was made. But that paragraph more particularly points to the case when the person of the surety is unchanged ; the amount of the suretyship being the only thing mentioned in the text.

"With regard to the present case, the maxim will apply, that in whatever manner a man binds himself, he shall remain bound; and the other maxim “ volenti non Jit injuria.”

In the case of Canal Bank v. Brown, an administrator’s bond was held to be valid and binding on the sureties, under circumstances of much greater irregularity than those of the present case. See also Bryan v. Austin, 10 An. 613.

The amount of the indebtedness of the tutor seems to have been correctly settled by the District Judge, under the evidence, in rendering judgment against the surety, who is not before us. Under the views taken by us of the effect of the bond signed by Isaac T. Glenn, the same judgment must be rendered against the estate of the latter.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, as to the defendant, Sarah Jane Glenn, administratrix of Isaac T. Glenn’s succession ; and that plaintiffs recover of the said Sarah Jane Glenn, in her quality aforesaid, the sum of seven thousand two hundred and eighty-three dollars and fifty eight cents, subject to a credit of two thousand three hundred and twenty-eight dollars and thirty-two cents ; and costs of both courts.


text:
    State v. Ward.
    On appeals in criminal cases, tlie court will take cognizance only of unmixed questions of law.
    In criminal cases the parties have not the right to require the Clerk to take down the evidence and certify it to the Supreme Court, and the court will not take notice of the facts thus taken down, although certified both by the Clerk and the Judge of the inferior court.
    A list of the jurors, hoaded “ List of Jurors for the third and fourth weeks of the October term of the District Court of the Parish of Caddo,” duly served on the prisoner, held to be a sufficient compliance with the law.
    A question of fact, of which the appellate court cannot take jurisdiction, is necessarily involved in determining whether the prisoner had used due diligence in procuring the attendance of his witnesses.
    It is in the discretion of the District Judge to determine whether or not a case should be postponed or continued on account of the ill health of the prisoner.
    An impression entertained by a juror as to the guilt of the accused, is not sufficient to disqualify him.
    • Held: That the court below did not err in refusing to allow the prisoner’s counsel to ask a juror whether he had not made up his mind as to what punishment should be inflicted in case the prisoner should be convicted. The question also was properly overruled, whether, if the juror went into the jury-box in his preseut state of mind, he went there with the belief that the defendant was guilty of murder, as charged in the indictment.
    from tlie District Court of the Parish of Caddo, Creswell, J.

      Stubbs & Williamson, for the State. M. A. Jones, for defendant.
   Voorhies, J.

The prisoner being indicted for the crime of murder, was found guilty by the verdict of the jury, and was sentenced to capital punishment by the judgment of the court.

Before expressing any opinion upon the numerous bills of exception which are presented for our consideration, it is proper that notice should be taken of the extent of our jurisdiction in criminal matters. By constitutional provision, it is limited to questions of law ; and, in giving effect to this limitation of our appellate jurisdiction, we have on five different occasions held, that we could take cognizance only of unmixed questions of law ; that these questions should be submitted upon bills of exception taken to the ruling of the inferior courts, or upon assignment of errors, unless the defects are patent on the face of the papers; and finally, that, though certified by the District Judge, or the Clerk, the facts of the case did not fall within our jurisdiction, and we were not justified in giving them our consideration.

It has been remarked by Mr. C. J. Merrick, in the case of the State v. Henderson, 13 An. 489, (and this ruling meets the unqualified approbation of the court,) that “ it is apparent, that inasmuch as the testimony is never taken down by the Clerk in criminal cases, the record cannot be certified, as in civil cases, to contain all the evidence. This was known to the framers of the Constitution when they conferred the appeal, and to the Legislature also when it authorized an appeal in criminal cases, without giving bond. The Articles of the Code of Practice, which gives either party the right to require the Clerk to take down the testimony in civil cases, and to require him to certify the same to the Supreme Court, are not applicable to appeals in criminal cases. See State v. Brunetto, 13 An., p. 45 ; State v. Bunger, ante, p. 461.

We will now proceed to dispose of the bills of exception that are in the record, without taking any notice whatever of the facts, which are certified both by the Clerk and the Judge of the District Court.

1. The prisoner objected going into the trial of the case, on the ground that he had not had a proper service of the venire, as the law contemplates. His counsel states in his brief, that the list served upon his client “ contained thirty-two names, headed ‘ List of Jurors drawn to serve as petit jurors for the third and fourth weeks of the October term, 1858, of the District Court for the Parish of Caddo.”

This we consider to be a sufficient compliance with the law ; such a course did not tend in the least to embarrass the accused in his researches for information as to the jurors who were to pass upon him, in order to prepare his challenges. He was informed by the very list served upon him, and besides, he must have known the plain provisions of the law, that, the jurors of the third week could not be called to serve during the fourth week ; and that those of the fourth week were in a similar situation as to the trial of cases during the third week. He could not plead ignorance of the law, and his own showing establishes his knowledge of these facts. This is not a case analogous to the one quoted in 3 An. 51, State v. Howell.

2. Por the purpose of compelling the prisoner to go to trial, notwithstanding his right to a continuance on the ground of the absence of the witness, Martin, the District Attorney “ admitted, for the purposes of this trial, that the facts set forth in the affidavit, to be proven by Evan Martin, are true; and if the trial is not gone into at this term of the court, the State reserving the privilege of withdrawing the admission.” It appears, by a bill of exceptions taken by the District Attorney to another ruling of the District Judge, that during the trial the witness, Martin, was present, but that the court, upon the opposition of the defendant, refused to the District Attorney the privilege of withdrawing this admission.

The appellant then, appears before this court, in this instance, in an inconsistent position, and, from his own manner of proceeding, has precluded himself from the relief which he claims at our hands. In the first place, he is not satisfied with the admission made by the defendant, and then he will not consent to permit its withdrawal, when he has in court the very witness whose absence was urged as a ground for a continuance. If the admission was not such a one as the law contemplates, and did not reach his expectations, his remedy was reached by eliciting the truth from the witness, who happened to be present during the trial.

3. With regard to the other witness, it is evident that the District Judge was not satisfied that the prisoner had used due diligence to procure his attendance. This question necessarily involves one of fact; we will, therefore, not disturb the ruling of the court below.

4. It is left to the discretion of the District Judge, to determine whether, or not, a case should be postponed or continued, on account of the ill health of the prisoner ; this is a matter which lie must decide by going into the facts, upon which must be predicated the exercise of this discretionary power.

5. The prisoner contends that John Walters was not a competent juror; but the bill of exception taken to the adverse ruling of the District Judge, does not show affirmatively that he bad formed or expressed an opinion as to the guilt or innocence of the prisoner, from the narrative of the witnesses. His impression upon the subject does not amount to such an opinion as will disqualify him to sit as a juror. There must be a deliberate opinion, and not an impression, as to the guilt of the prisoner, in order to disqualify a juror.

6. The following question was propounded to ono of the jurors, John Walters “ In case of conviction of the prisoner, of murder, as charged against him, have you not made up your mind as to what punishment ought to be inflicted upon him ? ” The prisoner’s counsel contests the correctness of the ruling of the District Judge.

The object of examining a juror on his voir dire, is to ascertain the state of his mind, in order to determine whether he stands indifferent between the State and the prisoner. He is considered indifferent when he has no bias for or against the prisoner, when he has not formed or expressed an opinion as to the guilt or innocence of the prisoner, after having heard the narrative of the witnesses, and finally, when he entertains no conscientious scruples that will prevent him from carrying the law into effect.

But such is not the case presented by the interrogatory propounded to the juror, Walters. A hypothetical statement is made, that thé jury brings in a verdict of guilty of murder, and the prisoner then wishes to know whether the juror has made up his mind as to the manner in which he will exercise the discretion vested in the jury to bring in a qualified verdict. It is not even hinted that the juror has any bias against the accused, nor that he has formed or expressed an opinion as to the guilt of the accused, either upon the declarations of witnesses, or upon rumor; nor that the juror has any conscientious scruples as to the penalties denounced by law in such cases. If there existed any bias or prejudice in his mind in the case at bar, it was lawful for the prisoner to interrogate him directly upon the subject; and he could pursue the same course, if the juror entertained on the merits of the case any opinion which operated a disqualification.

It is the duty of the District Judges to direct the proceedings in their courts, so that the ends of justice may be attained; and a great deal of discretion is vested in them for that purpose. Nor can we say that this discretion was not properly exercised by the Judge a quo in refusing to allow the prisoner to inter rogate the juror as to hypothetical cases. If the juror has not formed an opinion as to the guilt of the prisoner, it is idle to inquire whether he has made up his mind as to the degree of punishment that should be awarded. If, on the contrary, such an opinion has been formed, that would be a more appropriate ground of opposition. State v. Bennett, ante, p. 651; State v. Melvin, 11 An. 536.

With regard to the ruling in the case of the State v. George, 8 R. 538, see our opinion in the case of the State v. Bennett, ante, p. 651. See also State v. Nolan, 13 An. 276.

7. The following question was propounded to the jurors Wm. Flannagan, Sr., Wm. Flannagan, Jr., Wm. Blalcey, Andrew Scott, and Benjamin Stephens, to-wit:

“ Whether, if they went into the jury-box in their present state of mind, they went there with the belief that the defendant was guilty of murder, as charged in the indictment.”

This question was properly overruled, for the reasons given in the foregoing pages.

8. The court below properly rejected the challenge for cause to the juror, Lafoy. Although he had conversed with two witnesses, yet he had not formed a deliberate opinion as to the guilt of the prisoner. It appears from the statement of the District Judge, in his reasons for overruling the prisoner, that Lafoy, although he had conversed with two witnesses, was not aware of the fact of their being witnesses, and that the slight opinion which he entertained as to the guilt of the accused, was based upon rumor. State v. Bunger, ante, p. 461.

9. The prisoner’s counsel states, that when jurors were sworn on the voir dire, ]ie requested that their testimony be taken down ; but that the District J udge’ refused to accede to his demand. This objection is fully answered by the preliminary remarks in this opinion.

10. We cannot examine the question raised by the accused, on the motion in the court below for a new trial, based upon the ground that one of the jurors who sat in the case had not the legal qualifications. This was an issue to be raised before the juror was sworn and empanelled. State v. Bunger, ante, p. 461; State v. Nolan, 13 An. 276.

It is, therefore, ordered and decreed, that the judgment of the District Court be amended, inasmuch as it fixes a day for the execution of the defendant, E. Ward; that it be further amended, so that the sentence shall be executed upon a day to be fixed by the Governorand that the judgment so amended be affirmed.


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    Jefferson G. Brooks v. Eliza J. Wigginton & Husband.
    A married woman may sign a note or draft in payment of a debt created for the benefit of her individual estate, without the authorization of her husband.
    A draft given for such a debt by a married woman is an act of administration, and in giving it, sho may be considered as having resumed, as she may do at will, the administration of her paraphernal property.
    from the District Court of the Parish of Catahoula, Mayo, J.
    /. Hawkins and J. G. Taliaferro, for plaintiff. Smith & Spencer, for defendants and appellants.
   Cole, J.

The plaintiff sues Eliza J. Wigginton for services as overseer of a plantation which was her paraphernal property.

Por $686 38£, a part of the amount claimed, Mrs. Wigginton executed her draft on a commercial house, which was protested for non-payment.

It is contended, she was not authorized by her husband to sign the draft.

This was unnecessary in this instance.

The debt was created for the benefit of her individual estate, and as the wife is entitled to resume at will the administration of her paraphernal property, she may be considered to have done so in giving this draft, for this was an act of administration.

If the wife could not, without the authority of her husband, pay the debts made for the benefit of her separate estate, when she conceived it necessary for the welfare^of that estate, her right of administration would be a vain thing and without any vitality.

Besides, it seems probable from all the circumstances of this case, that the husband acquiesced in the execution of the draft by the wife; the body of the draft is in his handwriting.

Judgment affirmed, with costs of appeal.


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    Succession of J. H. Pool—Opposition to Account and Tableau.
    The appraisement of notes and accounts in the inventory of the effects of a succession, is required by
    An administrator is not bound to attempt the collection of bad debts.

    Where notes and accounts due the succession are numerous and small in amount, and constitute, as it were, a mass of bad debts, the discretion of the Judge of Probate in ordering their sale at public auction, will be considered as legally and properly exercised.
    from the District Court of the Parish of Morehouse, Richardson, J.

      McGuire & Ray, for plaintiff. S. G. Parsons and J. P. Ludeling, for opponents and appellants.
   Land, J.

John B. Stewart, whose rights to certain real estate inventoried as the property of the succession of the deceased, were recognized in the suit of himself against Daniel Newton, administrator of the estate of J. H. Pool, reported in 12 An. 622, filed an opposition to the account and statement of debts presented to the court by the administrator, for homologation, and obtained a judgment amending the same, in several particulars, but being dissatisfied with the decree, has appealed.

He offered no evidence in support of the grounds of his opposition, whereon the burden of proof was upon himself, and the amendment to the account and tableau, were in consequence of the failure of proof on the part of the adminis-tr,.tc4 in those particulars wherein the opposition imposed on him the onus pro-bar fJ'V

He appeals, however, on a question of law, and asks a reversal of the judgment on this ground: It appears that a large number of small accounts and notes were due the deceased, and which were inventoried in a very large majority of instances, as valueless, or bad debts ; and that the administrator’, on the order of the court, caused them to be advertised and sold for the purposes of the payment of the debts and settlement of the succession.

The opponent contends that the notes and accounts due the succession, should not have been appraised in the inventory ; that the administrator should have proceeded to collect them in the course of administration, and that the sale of them, under the order of court, was illegal and void, and did not relieve him from his obligations to collect and account for the same.

The appraisement or estimation of the notes and accounts in the inventory, was not only proper in itself, but seems to be required by law, in order to ascertain the amount of bond to be given by the administrator.

Article 1041 of the Civil Code, provides : That the security to be given by every administrator thus named, shall be one-fourth beyond the estimated value of the movables and immovables, and of the credits comprised in the inventory, exclusive of bad debts. By bad debts are understood, those which have been prescribed against, and those due by bankrupts who have surrendered no property to be divided among their creditors.”

It is not the duty of an administrator to attempt the collection of debts of the character above mentioned, and thereby incur, as he necessarily would do, costs and attorney’s fees without any benefit to the creditors or heirs of the succession.

In a case like the present, wherein the notes and accounts due the deceased, are numerous and small in amounts, and constitute, as it were, a mass of bad debts, the discretion of the Judge of Probate, in ordering their sale at public auction, will be considered legally and properly exercised.

G. C. Martin also filed opposition to the account and tableau, on similar grounds, but as he is before this court as appellee, and has not answered the appeal and prayed for an amendment of the judgment, it is unnecessary to consider his opposition asking to be placed as a creditor on the tableau of distribution.

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


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    State v. W. H. Davis.
    The Act of 1858, making it the duty of the District Judges to cmpannol the Grand Jury on thejfirst day of the term, is merely directory, and if any sufficient obstacle exists to prevent the empannelling on the first day, it may be done on a subsequent day.
    Slaves are regarded, in our law, both as property and persons, and the 9th section of the Act of 1855, relative to crimes and offences, which punishes an assault upon a person by “ willfully shooting at him,” &c., applies to an assault upon a slave, as well as a free person.
    from the District Court of the Parish of Morehouse, Richardson, J.

      F. P. Stubbs, for State, appellant. Newton <& Hall and McGuire & Ray, for defendant.
   Cole, J.

vThe defendant was indicted by the grand jury of the parish of

Morehouse, for having feloniously made an assault upon a slave, by willfully shooting at him with a shot-gun, loaded with gunpowder and divers leaden shot.”

The motion to quash the indictment, was sustained, and the State has appealed. The grounds urged by the appellee for quashing the indictment, will be considered in their order.

1. It is not a valid objection that the Grand Jurors, who found the indictment, were not empannelled upon the first day of the term of court.

The Act of 1858, declares that it shall be the duty of the District Judges of the several District Courts, (the First and Second Judicial District Courts excepted,) on the first day of each jury term in their respective districts, to select from the forty eight jurors summoned, a juror, who shall be and act as the foreman of the Grand Jury; that immediately thereafter, it shall be the duty of the Sheriff to place in a box, prepared for that purpose, the ballots upon which are written the names of the remaining forty-seven jurors, and proceed to draw said ballots therefrom, in open court, and to call the same as they are drawn, and the first fifteen jurors who shall answer to their names when called, shall, with said foreman, constitute the Grand Jury.

This Act is an amendment of that of 1857, which did not direct that the Grand Jury should be empannelled upon the first day of each jury term.

The Act of 1858, making it the duty of the District Judges to proceed to the empannelling of the Grand Jury, is merely directory, and if any sufficient obstar ele exists to prevent the empannelling on the first day, then it may be done on a subsequent day. The object of this Act is to have the Grand Jury empannelled, as soon as possible, so as to promote a speedy administration of justice. Sess. Acts, 185V, p. 179 ; 1858, p. 170.

2. That the foreman was not selected from the forty-eight jurors summoned, and there were sixteen jurors drawn and empannelled on the Grand Jury, in addition to the foreman.

The record shows that James Memette, one of the jurors summoned for the first week of court, was appointed foreman of the Grand Jury, whereupon the Sheriff then proceeded to draw from the regular panel of jurors sixteen persons, among whom the name of James Monette appears.

The Sheriff ought to have put only the names of forty-seven jurors in the box, omitting the name of the foreman, but as his name was drawn with the fifteen, and the record shows that the Grand Jury was composed of but sixteen jurors, no injury could be suffered by the accused.

3. The appellee contends that the offence charged is not indictable, because there is no statute providing a punishment for or forbidding the assault upon a slave by a free person, by willfully shooting at him.

The ninth section of the Act of 1855, declares : “That whoever shall assault another, by willfully shooting at him, or with intent to commit murder, rape, or robbery, shall, on conviction thereof, be imprisoned at hard labor, not exceeding two years.” Sess. Acts, 1855, p. 131.

This section is found under an “ Act relative to crimes and offences.”

Slaves are treated in our law as property, and, also, as persons ; this section then applies to an assault upon a slave or upon a free person. State v. Dick, 4 An. 182 ; The State v. Kitty, 12 An. 805.

It is, therefore, ordered, adjudged and decreed, that the order of court quashing the indictment, be set aside and reversed; and that the indictment be reinstated and restored to its full force and effect, and the case be remanded to be proceeded with according to law, and that appellee pay the costs of appeal those of the lower court to abide the final decision of this prosecution.


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    State v. W. Hampton, Collector, et al.
    When the sureties on a Tax Collector’s bon 1 obligate themselves, each for a specific sum, the Stato Is entitled, in case the Collector becomes a defaulter, to a judgment against each surety for the whole amount for which he is bound, although more than the amount due the State by tho principal in tho bond cannot be collected from his sureties.
    Under a bond of a Sheriff and Tax Collector, conditioned that he shall collect and pay over 11 all the State, mill and poll taxes, together with all fines,” &c., according to law — Held: The surety is liable for the amount of licenses for which the Sheriff is defaulter.
    It is not necessary to put a Tax Collector formally m default, to enable the State to recover the two por cent, per month interest, which is tho penalty by law for tho non-payment of the taxes to tho Stato by the Collector.
    from the District Court of the Parish of Franklin, Mayo, J.

      M. A. Jones, for plaintiff. McGuire <6 Ray, for defendants and appellants.
   Cole, J.

This is an action instituted by the State against W. Hampton, Sheriff and Tax Collector, and his securities upon his bond for taxes for 1853, and for licenses for 1854. The amount of the bond is $4,628 93.

There was judgment against the principal for $3,964 47, with two per cent, per month thereon, from the 1st of December, 1854, and against the securities, each for the amount he bound himself for in the bond. Defendants have appealed : they urge various errors.

1. It is not a valid objection that the total amount of the judgment against the seoui'ities, exceeds that against the principal upon his bond of State Tax Collector. In this bond, each of the securities obligated himself for a specific sum; and for that sum bound himself to guaranty the State against loss from the infidelity of her officer, and the State is entitled to a judgment against each, although she cannot collect from the securities more than that due by the principal.

If the State could only have a proportionate judgment against each, according to the amount of the defalcation of the Tax Collector, then the condition of the bond would not be accomplished; for each has bound himself to pay a specific sum in case the officer should not fulfill his duties, and be a defaulter, to the amount of that specific sum. Each having so bound himself, the State cannot be deprived of a judgment against each for that amount. Sess. Acts of 1855, p. 82, l 5.

Otherwise, the State might lose, and the condition of the bond would not be accomplished. For if the securities on a Tax Collector’s bond are entitled to have a deduction made from each specific sum for which each has subscribed the bond, so that the total amount of the liability of all of the securities should be only equal to the amount of the defalcation of the officer ; then if only half of the securities were solvent, and the principal were insolvent, the State would lose one-half of the defalcation, and the securities would not have complied with their obligations, for the obligation of each is that he shall protect the State from loss to the amount for which he has signed the bond. Copely v. Dinkgrave, 7 An. 595 ; State v. Breed, 10 An. 492.

2. It is contended that the securities are not bound for the amount of the licenses for which the Sheriff is a defaulter, because they did not stipulate so. in their bond. The condition of the bond was, that Hampton, as State Tax Collector for the jiarish of Franklin, should collect and pay to the proper authorities, all the State, mill and poll taxes due in and for the parish of Franklin, for the year 1853, together with all fines, &c., according to law.

Licenses may be considered as taxes within the meaning and intent of this bond ; besides the 70th section of the Act relative to “ Revenue,” uses the word taxes as synonymous with licenses. It is as follows :

“ On or before the first day of December, annually, the several Tax Collectors shall make their final payments ini.o the Treasury for the taxes due on the rolls, and on trades, professions and occupations, and all other objects due in said year.” Rev. Stat. p. 474, jl 70.

3. The judgment is correct in charging Hampton, the principal in the bond, two per cent, per month on the amount of the judgment, from the 1st of December, 1854, the day when the amount of the taxes became due.

There is no necessity of putting the Tax Collector formally in default. The 71st section of said Act provides, that interest at the rate of two per cent, per month, shall be charged against the Tax Collector on the sum withheld, to be computed from the time the same ought to have been paid, until actual payment. Sec. 71, Rev. Stat. p. 474.

Judgment affirmed, with costs.