1 Mart. (N.S.) 541 | La. | 1823
delivered the opinion of the court. This action has for its object the recovery of certain slaves, mentioned in the petition, and damages for their illegal detention. It
The defendants pleaded severally: Stiles claimed and obtained the removal of his cause into the United States’ Court, on the ground that he was a citizen of Virginia. Lackie pleaded, that, in the seizure made by him, he acted as deputy marshal, under an execution issuing from the district court of the United States for the Louisiana district. And Wall presented, as his defence, the sale from the other defendant, Lackie, which he averred had been duly made under proper authority.
There was judgment in the district court against the defendants, Lackie and Wall; that they deliver up possession of the five slaves claimed in the petition, and pay him for the same, at the rate of forty dollars per month, from the institution of this suit until final delivery.
Wall has appealed, and the judgment, as it
The facts of the case, as they appear in evidence, are, that Curtis purchased, in his life time, from Stiles, the slaves sued for ; and executed an obligation, with mortgage, to secure the purchase money Failing to comply with his contract, the mortgagee, who is a citizen of Virginia applied to the district court of the United States for the Louisiana district, and obtained an order of seizure and sale, directing the mortgaged property to be sold to satisfy the debt due him.
This order of seizure and sale was dated on the 9th day of April, 1822, and came into the hands of the deputy marshal, on the 16th of the same month, but no seizure was made under it, until the 20th of July, five days after the period fixed for its return, on the third Monday of that month.
At the sale made by the marshal the defendant Wall became the purchaser as agent of the plaintiff Stiles; the slaves were in the possession of the former, at the commencement of the suit, and were sequestered: and he gave bond in his own name, that they should be forthcoming to answer the judgment of the court.
We agree with the appellant that amendments to pleadings should always be allowed, where they tend to the furtherance of justice, and we entirely agree with him, that the granting of that which was asked for in the present case, would not have imposed on the plaintiff the necessity of producing further proof, nor have occasioned any hardship to him. Without therefore expressing any opinion as to the propriety of the judge a quo refusing an amendment which could have had so little effect, on the decision of the case, we are all clearly satisfied that it would not be a sound exercise of the discretion which the law, in cases of this kind, has vested us with, to remand the cause, and thus put the parties to
It has been contended that if this plea had been received, the appellant could have
The case, on its merits, presents one of the utmost simplicity. We are of opinion that the force and effect of the writ was spent on the close of the return day; that the service made under it, after the expiration of that time, was illegal; and that the subsequent sale was null and void, and vested no title in the purchaser. Reeves vs. Kershaw, 4 Martin, 573; Dufour vs. Camfranc, 11 Martin, 697. There can be no doubt the acts of a marshal, deriving his authority from the courts of the United States, are examinable in ours; the point has been already settled in this tribunal after solemn argument—Dun & Wife vs. Vail, 7 Martin, 416.
As to the objection taken to the form of action, we are clear that which was used here, is such as the case required.
It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.