Cocks v. Izard

APPEAL from the Circuit Court of Louisiana.

During the late rebellion, one Anderson, by a proceeding in what was known as 'the Provisional Court of Louisiana'-a court established by proclamation of the President, in October, 1862, when the insurrection which had prevailed in Louisiana, had temporarily subverted and swept away the judicial authorities of the Union, and which, by the terms of its constitution, was to last only until 'the restoration of the civil authority'-brought some sort of suit against one Cocks.

The suit proceeded to execution; and, on execution, the marshal of the said Provisional Court exposed to public sale certain real estate owned by Cocks, in New Orleans, and worth $15,000. Cocks was a resident of Mississippi, and knew nothing of the suit, execution, or exposure to sale. At the sale, one Izard, his tenant, who was there, made a bid of $1500, giving out, and letting it be understood, that he was bidding for account of Cocks, and in his interest. Persons, who were at the sale, thus refrained from bidding, from a wish not to compete; and, competition being so prevented, the property was knocked down to Izard at the sum bid by him.

Izard acknowledged these facts soon after the sale, and promised to reconvey on receiving the money which he had advanced. He afterwards refused to do this.

Cocks now filed a bill in the court below, setting forth the above facts, that Izard had received in rents, in two years, $2500; and praying an account and reconveyance.

Izard demurred, and the court below, sustaining the demurrer, dismissed the bill. Cocks appealed.

Mr. Conway Robinson, for the appellant, asked a reversal of the decree on these two principal grounds:

1st. That the court which rendered the judgment against Izard and issued the execution, was not a court competent to exercise judicial power, consistently with the Constitution of the United States.

2d. That conceding that the court had jurisdiction, the proceedings at the sale were, nevertheless, of such a character as to demand the interposition of a court of equity.

Mr. P. Phillips, contra, contended that the 'Provisional Court,' having been established while war was flagrant, and while the place was in military occupation, was founded on necessity, and being to last only while the necessity lasted, had sufficient jurisdiction. That the mere declaration of one person, that he intended to buy for another person, without evidence of any previous agreement to do so, or of any advance of money for that purpose, raised no trust which could be supported in equity.

That, independently of this, Cocks ought to have applied to the Provisional Court, to set the sale aside and order a resale.

Mr. Justice DAVIS delivered the opinion of the court.