tried on the merits. It appeared the curator had been re- WEStern Dits. appointed and given as many as three bonds; and that the September, 1840. defendant could only be liable in this suit on the last bond.

The district judge was, however, of opinion, that the suit was premature, and that no recovery could be had on the bond until the final administration of the estate, and final tableau filed. There was judgment for the defendant, and the plaintiffs appealed.

Splane, for the plaintiffs.

Dwight, for the defendant.

Martin, J., delivered the opinion of the court.

This case was before us at a former term, on an exception which was sustained by the District Court, and which this court overruled, and remanded the case for trial on the merits. See 11 Louisiana Reports, 329.

There was judgment on the second trial for the defendant, and the plaintiffs have again appealed.

The defendant's principal in the bond, curator of the estate of William S. Barr, deceased, at the end of the first year of his curatorship, presented an account of his administration, in which he placed the plaintiffs as creditors, for the sum of three hundred and sixty dollars and fifty cents, and stated that their proportion of the funds collected, was forty dollars and ninety-four cents. This account was homologated; payment ordered accordingly, and the curatorship prolonged for another year. At the expiration of the second year, he presented another account, in which the plaintiff's were placed as creditors for the sum of three hundred and nineteen dollars and fifty cents, and their proportion of the funds on hand put down at one hundred and eighty dollars and fifty-three cents, and payment ordered accordingly. There was a prolongation of the curatorship for the third year, (1834,) with the present defendant as surety. The bond bears date the 13th of June, 1834. On the 11th of December, in the same year, the plaintiffs claim was liquidated by a judgment for the sum of three hundred and sixty-seven

10

VOL. XVI.

PARMELE & BA

KER

1.8. BRASHEAR,

WESTERN DIST. dollars, with interest. The present suit is instituted for the September, 1840. amount of this judgment, on the last mentioned bond, against PARMELE & BA- the surety therein.

KER

BRASHEAR.

The present defendant was surety on the original bond, and another person on the first prolongation or second bond. In a suit on a curator's bond With regard to the moneys which the principal had reagainst the surety, he is only ceived, before the date of the bond sued on, the present deliable for the fendant is clearly not liable. There is no evidence that any into the money came into his hands after that time.

moneys

came

which

hands of the cura

the debts which

a failure to pay

The plaintiffs, tor after signing therefore, have no claim for the non-payment of money. But the bond, and for the condition of the bond is, that the curator "shall well are unpaid from and truly administer upon the estate, and faithfully execute over the funds and perform the duties required of him by law." The neduring this time. The condition glect to administer faithfully and perform these duties is most of a curator's certainly a breach of the condition of the bond. The solvenbond being, that he will faithfully cy of the estate is stated by the curator, and appears further administer, and from the inventory and statement of active and passive debts ties of his office, filed by him. The prolongation of the curatorship is conclumoney sive evidence that part of the duties of the curator remained when ordered, is a breach of to be performed. It is not shown that any of them have the condition, been attempted to be performed since that time. The conhas his remedy dition of the bond is therefore broken.

perform the du

a failure to pay

over

and the creditor

on the bond against the surety.

It remains to inquire into the amount of the plaintiffs' claim. It has been liquidated by the judgment for the full amount of the original account, in the sum of three hundred and sixty-seven dollars. The curator had received funds of the estate out of which he had been directed to pay two hundred and twenty-one dollars and forty-seven cents, as the proportion due to the plaintiffs, before the date of the bond sued on. For this, if not paid, his remedy is on the two first bonds. The balance to wit, the sum of one hundred and forty-five dollars and fifty-three cents, forms the amount of his claim in the present suit.

It has been contended that the plaintiffs ought first to have provoked the filing of an account and tableau of distribution by the curator. This would have been very requisite if they had sought a recovery from the estate administered by him. But the sole object of the present suit is to recover

from the surety of the curator, personally and out of his pri- WESTERN DIST. vate property, the damages which they have sustained by September, 1840. the breach of the condition of the bond. See the case of Rison vs. Young and Turnbull, 7 Martin, N. S., 294.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled and aversed; and it is further ordered, adjudged and decreed, that the plaintiffs do recover from the defendant, Walter Brashear, the sum of one hundred and forty-five dollars and fifty-three cents, with legal interest from the first of June, 1832, until paid, with costs in both courts.

COLLINS

vs.

MOORE & PRES

COTT.

COLLINS VS. MOORE AND PRESCOTT.*

APPEAL FROM THF COURT OF THE FIFTH DISTRICT, FOR THE PARISH OF
ST. LANDRY, THE JUDGE OF THE SIXTH PRESIDING.

Where the plaintiff holds by two titles, and the premises are sold by the sheriff under execution against him, and he receives the balance, after satisfying the judgment, he cannot set up a claim to the same property under the other title, although the sheriff describes the sale to be of the youngest of the two titles.

This is an action to recover twelve arpents of land by forty in depth, situated on the east side of the Bayou Courtableau, in the parish of St. Landry.

The plaintiff, William C. Collins, alleges that his father, John Collins, acquired title to the above tract of land by purchase from one Charles Vigé, who by several mesne conveyances acquired it from the original grantee of the Spanish government. He further shows that his father is dead, and he is the only son and heir; and has inherited the same. But that in 1830, the defendants took possession and continue to occupy said land, and have committed great waste.

When the case was taken up, Judge SIMON left the bench for the remainder of the term. The court then consisted of Judges MARTIN, MORPHY and GARLAND.

WESTERN DIST. He prays that his title may be declared the best, and the September, 1840. possession delivered to him, &c.

COLLINS

The defendants plead a general denial; and aver they MOORE & PRES- hold the land by a good title, purchased at sheriff's sale, un

COTT.

der a judgment and execution against the plaintiff, which sale was regularly made and is valid. They pray that the defendants' demand be rejected.

The plaintiff sets up a different title, as he contends, to the land, from that under which it was sold by the sheriff, and which is an older and a better title.

There was judgment decreeing the defendants to be the legal possessors and owners of the land in controversy, and the plaintiff appealed.

Linton, for the plaintiff, submitted the case.

T. H. Lewis, for defendant.

Garland, J., delivered the opinion of the court.

The plaintiff commenced this suit to recover of the defendants a tract of land containing twelve arpents front by forty in depth, situated on the east side of the Bayou Courtableau, in the parish of St. Landry, which he alleges was granted by the Spanish government, and by several conveyances from the grantee, came into the possession of John ColWhere the lins, his father, from whom he inherited it. The defendants plaintiff holds do not deny that the plaintiff had a title to the land in quesby two titles and the premises are tion, but allege they are the owners of all his right to it; sold by the sheriff under execuhaving purchased the same at one or more sales made by tion against the sheriff of the parish of St. Landry, under several execureceives the bal- tions issued on judgments obtained against the plaintiff in fying the judg- 1829 and 1830. No irregularity or defect in these sales, is ment, he cannot alleged or proved, and the sheriff in his deeds, says, he sells

him, and he

ance, after satis

set up a claim

to the same pro-and transfers "all the right, title, interest or demand, which perty, under the

other title, al- the said William C. Collins has or had to said lands, or any though the sher

iff describes the part

sale to be of the youngest of the two titles.

thereof at any time."

So far as the facts can be gathered from the record, it appears the plaintiff had two titles, which cover the same piece

WILLIAMS

vs. BRASHEAR.

of land, but as the sheriff in describing it in his sale, only WESTERN DIST. mentioned one of the original grants and that the youngest, September, 1840. he wishes to recover back the land under the oldest grant, notwithstanding he has ratified the sales by receiving a balance from the sheriff, after the payment of all the executions; and is also bound to warrant the title of the defendants. We are unable to see the slightest foundation for the claim advanced, and, therefore, affirm the judgment of the District Court, with costs.

WILLIAMS VS. BRASHEAR.

APPEAL FROM THE COURT OF THE FIFTH DISTRICT, FOR THE PARISH OF
ST. MARY, THE JUDGE THEREOF PRESIDING.

In an application for a new trial, on the ground of newly discovered evidence, in the absence of the party, the attorney who conducts the suit is competent to make the necessary affidavit, when the facts are within his knowledge.

So, in an action against the drawer of a bill, where the attorney swears that

since the trial he has discovered a certain person who will prove that the defendant had sufficient funds in the hands of the acceptors to pay the bill, it is good grounds for a new trial.

This is an action against the drawer of a bill of exchange.

The defendant, at New-Orleans, 12th of May, 1834, drew his draft for one thousand seven hundred and twenty-three dollars and seventy-four cents, on Bemiss, Brashear & Co., of Franklin, in the parish of St. Mary, payable the 1st of November following, to the order of John B. Bemiss, and by him endorsed. The draft or bill was duly accepted by the drawees, and protested for non-payment; but no notice was given to the drawer.

The plaintiff alleges that the said bill was protested for non-payment; that the defendant had no funds in the hands of the drawees from the date to the maturity and protest of said bill, and that he has since promised to pay the same.