Davis v. The Police Jury of Concordia. 9 H.

forgotten, that natural persons and bodies corporate might have been invested with monopolizing privileges and exemptions, both on the land and the water,-that charters could have been given to places, with licenses and exemptions which might have interfered seriously with the policy and institutions of a State coming into the possession of ceded territory. We will not mention them in detail. Enough has been said to show, that if such a sovereignty could be exercised after a treaty has been signed, it would be a power to change materially the relations which the people of a ceded territory had to each other; and to establish between them and a new sovereign

*a different condition than had been contemplated when [*295 ] they were transferred.

Such being the law of this case, we must say that the appellant, under the privilege of a ferry right given by the Marquis de Casa Calvo, had no property in it secured by the third article of the treaty by which Louisiana was ceded to the United States, and that no contract arose from it, the obligation of which has seen impaired either by the legislation of Louisiana, or the action of the police jury of Concordia under it.

We will remark further, that nothing can be inferred from what we have said in favor of the validity of any franchise relating to the navigation of the Mississippi, if any such was granted whilst Louisiana was a province either of France or Spain.

We will not enter minutely into the history of the retrocession of Louisiana to France, or into that attending our acquisition of it. There is much in both to confirm the views we have expressed concerning national rights arising under treaties signed, and afterwards ratified. We have now, too, other sources of information, contemporary with the transaction, which disclose more fully than was known until within a few years the policy of the first consul in acquiring Louisiana. Stimulated by the European desire for colonies, and to counteract the impressions which might be made upon his popularity, and the glory he had given to France, if Egypt should be lost and St. Domingo should become valueless from the revolt of its slaves, he determined to avail himself of his power to gratify the wishes of the king and queen of Spain, by making the infant duke of Parma a king in and over a part of Italy, with all royal rights and honors, and to get Louisiana in return. He meant to make it a permanent colony of France. He negotiated, as the treaties show, for an absolute retrocession of its people and territory, without other limitation than that which the law of nations secured to the former. It was to belong to France, as it had been, when the generous weakness of Louis the Fifteenth, without either cause or consideration,

Davis v. The Police Jury of Concordia. 9 H.

ceded it to Spain. On the other hand, that portion of Italy which was to be given for it was to be an unconditional transfer of people and territory, which, in the event of the failure of the issue of its new king, were to become absolutely a part of the Spanish monarchy. Neither contemplated any thing else, or that Spain should exercise a complete dominion in Louisiana, after having signed a treaty to cede it. There is not in the diplomacy of nations a more abso[* 296 ] lute surrender of dominion, than was made * by the king of Spain in the treaty of St. Ildefonso, of October, 1800.

From that time until the treaty of Amiens was made, and afterwards, when it was foreseen it would be but a short truce, and would be followed by wars of longer duration, and greater changes in the condition of European nations than had been made in the wars of the ten preceding years, the first consul, amidst all of his grand contemplations, did not lose sight for a moment of the colonization of Louisiana. Troops were embarked to take possession of it. Plans were made to colonize it exclusively with Frenchmen. He saw what might become our pressure upon it from the west, and to guard against the chances of war, which were then in this hemisphere in favor of England, it was to have been in its beginning a military colony under a leader of marked character and renown. France looked for commercial advantages from it, and a commanding war position over the Gulf of Mexico. It was hoped, too, that it would· give to France, in the foreseen wars of Europe, favorable influences over the United States. That such a power as France, between the United States and Mexico, would check us in our career in that direction, and would give to France the control of Mexico, and the continuance of her control over Spain itself. It was not in the order of Providence that such intentions should be accomplished. The first consul foresaw a war in which all the resources of France would be wanted, and all that could be gathered from every source. war came sooner than he anticipated, or meant that it should. deprived him of all certain ability to take possession, or to retain Louisiana, if he had done so. The navy of England was in his way, With his usual decision, and in opposition to his counsellors, he determined to sell Louisiana to the United States, when we were then only negotiating for such a part of it as would secure to us the transit of our western produce to the ocean. Our ministers, with promptitude never to be forgotten, without orders or powers from home to do so, secured the prize by the treaty of the 30th of April, 1803.

The
It

We shall direct this cause to be remanded for such further proceedings in the court from which it has been brought as that court may deem necessary.

10 H. 609: 12 H. 47..

Humphreys v. Leggett. 9 H.

BENJAMIN G. HUMPHREYS, Appellant, v. LEGGETT, SMITH, AND LAWRENCE.

9 H. 297.

In modern practice, courts usually give a summary remedy on motion, where a writ of audita querela was formerly used; but a bill in equity will also lie.

Therefore, where a defendant had a good defence, which accrued after the case was sent back to the circuit court from this court, and under the mandate of this court, was prevented from pleading it, equity relieved him, by enjoining the judgment.

The appellant, Humphreys, who was complainant below, filed his bill against the defendants, praying an injunction against the issuing of an execution on a judgment they had obtained against him at law.

court by writ of error, where the court was reversed, and the case

His bill sets forth, that he was one of the sureties of Richard Bland, late sheriff of Claiborne county, in his official bond. That in March, 1839, the present defendants instituted a suit on the bond against Bland and his sureties, on which the circuit court rendered a judgment in favor of the defendants. The cause was removed to this judgment of the circuit remanded to the circuit [312] court, with directions to enter judgment against Humphreys, the surviving surety. This was in February, 1845. In the mean while, at May term, 1840, judgments were entered in the state circuit court of Claiborne county against the sheriff and his sureties on the same bond, and the whole amount of the penalty collected, by levy and sale of complainant's property.

The bill, moreover, avers, that complainant had no notice or knowledge whatsoever of the suit and proceedings against him by these defendants, till after the case was remanded by this court; that the sheriff's return of service of the writ on him was false, and made at the request of Bland, for the purpose of keeping the complainant in ignorance of the pendency of the suit; that when the cause was remanded to the circuit court, he offered to plead his payment of the bond puis darrein continuance; but the court refused to receive the plea, on the ground that the mandate of the supreme court was imperative on them to enter a judgment for the plaintiff.

The defendants demurred to this bill for want of equity, and the court below sustained the demurrer, and dismissed the bill, and the complainant has appealed to this court.

Humphreys v. Leggett. 9 H.

Do the facts set forth in the bill, and admitted by the demurrer, entitle the complainant to the injunction prayed for?

According to the view entertained by the court of the true merits of this case, it will be unnecessary to examine the question so much mooted on the argument, as to the conclusiveness of the sheriff's return, or whether equity would interfere, where a false return has been made by the sheriff in collusion with a co-defendant, without any fraud or fault of the plaintiff. We shall, therefore, consider the case as if the complainant had full notice of the suit at law, and the summons had been duly served on him.

The laws of Mississippi limit the liability of the sureties in the official bond of the sheriff to the amount of the penalty. Any person injured by a default of the sheriff in paying over money collected by him, may have a judgment entered on the bond for the amount due to him, on motion, without service of process, or stay of execution. This judgment is a lien on all the personal and real property of the defendants, and has a priority over all judgments subsequently obtained.

As the officer is liable to the extent of his defaults, and the surety only to the extent of the bond, difficulties will, no doubt, often occur as to the mode in which sureties may defend themselves when judg

ments are demanded exceeding the amount of the penalty. [*313] If the prior judgments should be paid * out of the property

of the sheriff, the sureties might wrongfully escape, if the amount of prior judgments might be pleaded against subsequent demands. On the contrary, if it could not, the surety might be compelled to pay more than the amount of his bond, unless the court should protect him in some way.

In some States, where a similar law prevails as to suits on sheriff's bonds, each suitor is permitted to take a judgment on the bond for the amount of his claim; and when the sureties have paid in the whole amount of the penalty, all further executions are stayed by the court, and the money apportioned to the claimants according to their respective priorities. But, whatever may be the practice of the courts of Mississippi in such cases, it is clear, that when the surety has paid the whole penalty of his bond, he should, at some stage of the proceedings, be suffered to plead this defence to further exactions. he has had no such opportunity before judgment, the court, on motion, should permit it to be done after judgment, and order a stay of execution. Formerly, courts of law gave a remedy in such cases, by a writ of audita querela," a writ," it is said, "of a most remedial nature, and invented lest in any case there should be an oppressive defect of justice, where a party who has a good defence is too late in

If

Humphreys v. Leggett. 9 H.

making it in the ordinary forms of law;" and although it is said to be, in its nature, a bill in equity, yet, in modern practice, courts of law usually afford the same remedy on motion in a summary way. The practice in Mississippi seems to prefer a bill in equity for the same purpose.

And courts of equity usually grant a remedy by injunction against a judgment at law, upon the same principles. In Truly v. Wanzer, 5 How. 142, this court say: "It may be stated as a general principle with regard to injunctions after a judgment at law, that any fact which proves it to be against conscience to execute such judgment, and of which the party could not have availed himself in a court of law, or of which he might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will authorize a court of equity to interfere by injunction to restrain the adverse party from availing himself of such judgment." See also Story, Eq. Jur. § 887.

*

In the case before us, the surety had been compelled to pay the whole amount of his bond by process from the state courts, before the present defendants obtained their judgment against him, but after the institution of their suit. This would have been a good defence to the action if pleaded puis darrein continuance. The complainant tendered this plea at the proper time, and was [*314] refused the benefit of it, not because it was adjudged insufficient as a defence, but because the court considered they had no discretion to allow it. The mandate from this court was, probably, made without reference to the possible consequences that might flow from it. At all events, it operated unjustly, by precluding the complainant from an opportunity of making a just and legal defence to the action. The payment was made while the cause was pending here. The party was guilty of no laches, but lost the benefit of his defence, by an accident over which he had no control. He is, therefore, in the same condition as if the defence had arisen after judgment, which would entitle him to relief by audita querela, or a bill in equity for an injunction.

We are of opinion, therefore, that the complainant was entitled to the relief prayed for in his bill, and that the decree of the court below should be reversed.

21 H. 66.