bail be not entered, and is liable to same judgment that WESTERN DIST. defendant would be liable to; also, 1928, No. 5; 1945, 1944, October, 1840. 1943, 1942, 1954. The object and design of the law is clear and indubitable: The 12th section of judiciary act, in accordance with the constitution of the United States, while it secures to foreigners the right to a trial in the courts of the United States, requires that the plaintiff should be put in no worse situation thereby, and where special bail or attachment takes place in the original court, it requires that on removal the same security should be had; to wit, a bond to enter the copies of proof so as to give the court jurisdiction, and also to enter special bail; and in attachment, that the goods remain attached to answer the judgment of the United States court, in the same manner as in the state court. Special bail has a technical meaning, and is peculiar to the English and common law practice, and is there distinguished from common bail, and from appearance bail; but in Louisiana, we know of no other bail than that pointed out by our statute. Code of Practice, article 219, 235, and this mode of procedure is the law of the United States courts in Louisiana, under the act of congress of 1824. Suppose the plaintiff had originally commenced his action in the District Court of the United States at Opelousas, the only bond that could have been taken would have been under the article 219, of the Code of Practice. And suppose the marshal of the court had neglected to take bond, or had taken a bond with mere nominal security, could he recover on the bond or for the neglect to take one, prior to judgment against his principal debtor? The proposition itself is absurd. There would possibly have been some ground of action, if the conduct of the principal debtor had been such as to deprive the United States court of all jurisdiction, but the judiciary act does not require that special bail should be given to give it jurisdiction; on the contrary, after expressly reciting that the party shall be entitled to the removal of the cause to the next district court, "on his furnishing sufficient security for his entering in such court, on the first day of its session, copies of said process against him, WELCH & Co. vs. THORN ET AL. WELCH & co. THORN ET AL. WESTERN DIST. and also, for his there appearing and entering special bail in the October, 1840. cause, if special bail was originally requisite therein, it shall then be the duty of the state court to accept the surety, and proceed no further in the cause; and any bail that may have been originally taken shall be discharged, and the said copies being entered as aforesaid, in such court of the United States, the cause shall there proceed in the same manner as if it had been brought there by original process." And in case of attachment, &c., it is made a condition of removal, and that the state court shall proceed no further, and that the original bill shall be discharged, that the party shall give sufficient surety to enter the process in the court, and to give special bail, but once that is done, that is such security given, it merely requires the copies of the process to be entered to give the United States court jurisdiction, to proceed with the cause as if there originally instituted. And suppose it had been there originally instituted, would not a judgment against principal, be a condition precedent to a judgment against any party to the bond; where the contract has been made in Louisiana, the lex loci governs, whether sought in her own courts or those of the United States. Proceedings, therefore, on bail or arising from contracts of that nature, will conform to the law and the practice of the state courts. Here we pause to ask what would be thought of the experiment, where in a state court the sheriff permitted the escape of a party under arrest in a civil suit, or neglected even to arrest him, that the plaintiff should dismiss his suit upon judgment, and go on the sheriff for damages, for escape, in the amount of the bail bond that he (the sheriff) neglected to take; although his remedy would be clear against the sheriff, on judgment against the debtor and returns nulla bona. The liability of the parties then to this bond, is nothing more or less than the liability of parties to the bail bond, as known to our laws, and that liability is to surrender the body of defendant, in the action on judgment and execution, or pay such judgment. Has the plaintiff such a case? He has not, and we contend and will show, should occasion hereafter require it, that by the voluntary dismissal of his action, he has lost now and forever, all claim upon the defendants, on the The judiciary act of Congress, May 26, 1824. Gordon's 3. If we were, for argument sake, to admit that the bond is in the nature of a penalty, yet the plaintiff's case is in no way helped. The conditions having been partially performed, the party can only recover according to the damage sustained by him; Civil Code, 2123. To same point, 6 Louisiana Reports, 715, M'Gloin vs. Henderson. The court will apportion damages to injury; 5 Martin, 563-64, M'Nair vs. Thompson, liquidated damages. Court will relieve from unreasonable penalties; 8 Martin, 311, Brant vs. Louisiana State Bank. 2 Starkie on Evidence, note s, page 621. Civil Code, 1958, No. 5; 1928, 1945. 9 Louisiana Reports, 451-52. 2 Louisiana Reports, 397, Boswell vs. Lainhart. Code Napoleon, No. 1227, sustains the above ground: See note e, Paillet. The nullity of the principal obligation carries that of the penalty with it. Louisiana Code, 2122. A condition precedent in all penalties is putting the party in default. 6 Martin, N. S., Erwin vs. Fenwick; Ibid, Llorente vs. Gaitrie. Martin, J., delivered the opinion of the court. The plaintiffs instituted their suit for damages in one of the district courts of the state, and held the defendant to bail. The latter being a citizen of another state or alien, procured the removal of the suit to the Federal court, on giving the usual bond. He brought and filed the transcript in the latter court, but failed to give special bail, as required by the condition of his bond, and the plaintiffs on their own motion, obtained a judgment dismissing the suit, at the costs of the defendant. WESTERN DIST The present suit is brought on this bond; and the breach October, 18:0 of the condition assigned, is the failure to give special bail in the Federal court. The bond is for the penalty of twelve WELCH & CO. THORN ET AL. bonds and the which are re tested by the law to be taken. the law, or the thousand and five hundred dollars; and the condition exThe effect of pressed therein, is that the defendant shall file copies of the rights of the par- proceedings in the suit in the state court, before the first day ties to them, of the next session of the Federal court, holden at Opelousas, quired by law to" and there enter special bail." We have lately had occasion cial proceed to say, that in bonds which are required by law, in judiings, are to be cial proceedings, the rights of the parties ought to be tested directing them by the laws which require those bonds. In conventional In legal pro- obligations, the penalty may be well considered as the ceedings the measure of the damages which the party failing to comply penalty of the bond is fixed by with his part of the contract was bound to pay. In legal court, and the proceedings, the penalty of the bond is fixed by the law, or law points out by the court or judge, and never by the agreement of the the object for which it is given. parties. In the other states of the Union, where the comthere being no mon law prevails, when courts of law give judgment for the penalty of a bond, the defendant may resort to a court of proceedings between the law equity, if the plaintiff attempts to enforce his execution for and equity jurisdiction of our more than the amount of the damages which he is equitably courts, the pe- entitled to. In this state, there being no distinction in the cial bond is dis- proceedings between the law and equity jurisdiction of our regarded, and judgment given courts, the penalty of a bond like this is disregarded, and judgment is given for the damages which the party has the party has really sustained. really sustained. In this state, distinction in the nalty of a judi for the dam ages which penal bond was court, to the that he was to So, where a The damages which the present plaintiffs may have, in given by a de- our opinion, sustained, are those which result from the fendant, on re- breach of the condition assigned; to wit, the failure to enter moving a suit from the state special bail in the Federal court. The defendant appeared United States there, by counsel, who filed an answer for him; and the District Court, plaintiff might have proceeded to trial and judgment, if they appear and put had not thought fit to be satisfied with a judgment of disin special bail, and he failed to missal at the defendant's cost. Had they proceeded to final put in bail, upon judgment on the merits, and one rendered in their favor, the which the plaintiff dismissed his amount of the damages which they might recover on the suit, and brought his action on the bond could not exceed the sum for which they had judgment, bond : Held, with interest and costs: and if the judgment was for the that he could not defendant, the plaintiffs could have no claim on the bond; WESTERN DIST. for the breach of its condition did not cause them any October, 1840. damage. TOMPKINS ET UX 78. BENJAMIN, TU- he had not pro The plaintiffs cannot say that the judgment which was given is not such a one as they were entitled to, for they provoked it, and made no attempt to obtain any other. That recover, because judgment put an end to the suit and gives them nothing but ceeded to judg their costs. They have not shown to us what those costs and did not are; and we cannot notice them. Their bond, however, is still in force to cover the costs. The District Court did not, in our opinion, err in giving judgment for the defendants. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs. ment in his suit, show that he had sustained any damages. TOMPKINS ET UX vs. BENJAMIN, TUTOR, &C. APPEAL FROM THE COURT OF PROBATES, FOR THE PARISH OF CARROLL. In courts of general or ordinary jurisdiction, the party intending to appeal must have the testimony taken down in writing by the clerk, so that the record contains all the testimony adduced on the trial, or the appeal will be dismissed. In the Court of Probates, the judge is required by the 1042 article of the Code of Practice, to take down the testimony of the witnesses in writing, and annex it to the record, together with a list of the documents produced by the parties, that they may be read on the appeal. So, where the judge of probates failed or neglected to take down the testimony of witnesses on the trial, and the record came up without it, the cause was remanded for a new trial. This is an action instituted by the plaintiff's wife, Elizabeth E. Graham, with his consent and assistance, against her tutor to compel him to account and surrender up and deliver over her effects and property. 16L 197 44 548 |