text:
    Sam Caramonta vs Frank De Salvo
    No.8968
    Charlas F.Claiborne,Judge.
    February 19th 1923.

   Sam Caramonta vs Prank De Salvo

No.8968

Charles F.Claiborne,Judge.

On motion to dismiss for want of jurisdiction.

The allegations of plaintiff's-petition are that- the defendant,Frank De Salvo,is indebted unto him in the sum of $10,000 for this: that on June 28th 1922 the said De Salvo,in defendant's barver shop,and in the hearing of a large number of persons made the following statement:to petitioner:Vou robbed me of $2.75 six months ago^and you have been robbing me all along:" that said statement is slanderous and false,and uttered with a view of damaging plaintiff's reputation and good name.

The defendant admitted having spoken the words but pleaded provocation.

There was judgment in favor of defendant dismissing plaintiff's demand.

Plaintiff has appealed.

In this Court the defendant and appellee has moved to dismiss the appeal on several grounds:

1st Because this Honorable Court is without jurisdiction, rations materias,as under the Articles of the Constitution of 1921,the claim of the plaintiff and appellant,not being one for personal injuries and being one for damages in excess of two thousand dollars•"

There are other grounds urged for the dismissal of the appeal which our conclusions upon this point render us incompetent to oonsider.

The Constitution of 1921 in fixing the jurisdiction of the Court of Appeal for the Parish of Orleans,provides: Article VII- Section 77,P.59 : " The jurisdiction of the Court of Appeal for the Parish of Orleans shall be the same as that-of the Courts of Appeal for the First and Second Circuits,exoept as otherwise provided herein for appeals from the City Courts for. the Parish of Orleans''.

Article VII,section 29,P.46 : " The Courts of Appeal,except as otherwise provided in this Constitution, shall have appellate Jurisdiction only which jurisdiction shall extend to all cases, Oivil and probate,of which the Civil District Court for the Parish of Orleans,or the Dlstriot Courts throughout the State, have exclusive original jurisdiction,regardless of the amount involved,or concurrent jurisdiction exceeding one hundred dollars exclusive of interest,and of which the Supreme Court is not given jurisdiction,except as otherwise provided in this Constitution,and all appeals shall be both upon the law and the facts." Article VII- S 3 of Section 10 P.39 :

" It ( the Supreme Court ) shall have Appellate jurisdiction in Civil• Bésti'ée'b suits where the amount in dispute,or the fund to’ be distributed,irrespective of - the amount therein .claimed,shall exceed two thousand dollars exclusive of interest ^ except in suits for damages for physical injuries to,or for the death of a person,or for other damages sustained by such person or his heir's or legal representatives,arising out of the same circumstances ; nor shall such appellate jurisdiction extend to any suit for compensation under any State or Federal Workmen's Compensation law,or employer's liability act ;provided,that appeals properly granted to the Supreme Court,in such excepted caseB,prior to the adoption of this Constitution shall be finally disposed of by said Court."

We are of opinion that this Court has afjellate jurisdiction of suits for damages in excess of $2000 only when the damages claimed result from " physical injuries inflicted upon the person"and that the remaining words of the clause embrace only such other damages to thé^property of the plaintiff as may arise out of the aamá circumstances that oaused the physical Injury to the person.

The object was to confer jurisdiction upon the Court of Appeal for all the damages,to the person and to the property which arose frok the circumstances that brought about the phy-sioal injuries,so that the damage to tha^ropertv^ij; any,slguld ' be determined by the same Court that passed upoiíwhj^ja^ége to the person,so as to create no conflict of opinion. Je are therefore of opinion that' unless the' damages in excess of two thousand dollars result /from physical injuries to the serson,or from injuries to the^property,arising out of the same cirsumstances,th&s Court has no jurisdiction.

Damages resulting from Blander cannot be said to be physical.They affect the fame,credit and reputation of the i-l plaintiff,and may cause moral anguish,but do no physical injury A to the person.

Courts must notice ex proprio motu of the want of jurisdiction.

a La.Dig.P.539 S 520-24 A 94-33 A 339-35 A 346-36 A 418 37 A 41-39 A 113-45A 1316-48 A 1433.

The Court of Appeal properly dismissed an appeal in a j^oase involving more than §2,000 - 51 A 1311 .

The plaintiff religa upon 40 4 424 and 45 A 833 holding pfí * si P ' T 1 r ' .I that aotions for slander -are^basad upon a isle 0.C.2315 - That tx ,ay bejbut those decisions do not hold that slander is a physical // injury.

He also relies upon the case of the Times Democrat vs Nozee 138 Fed 761 where it was held that damages from libel d slander are "personal injuries " .The same may be said of ■t case.

Having arrived at the conclusion,that this Court has jurisdiction of this appeal,we cannot pass upon the other lestions involved in'the motion to dismiss.

But.we are not obliged to dismiss the appeal.Under Act f 1912 P.25 we have the right to transfer the case to the

It is, therefore ordered that this case he transferred to the Supreme Court^and that the record herein he filed in said Court within fifteen days from the time the decree herein shall heoome final;the costs of appeal to this Court to-he paid hy the appellant.

Case transferred to Supreme Court.

February 19th 19S3.


source: Caselaw Access Project

author: Dinkelsplel; J.

license: Public Domain

text:
    NO. 8970
    COURT OF APPEAL PARISH OF ORLEANS.

    FRED FRANZ versus A. LEVITAN FURNITURE CO., et als
   Dinkelsplel; J.

The allegations of plaintiff's petition aver that the defendants rented premises 1200 Dxyades Street in this city prior to October 1st, 1920 for sans one year, lease expiring September 30th, 1931; averring further that prior to the expiration of the lease in question; notice was given to the defendants to vacate; refusing to do so, remaining in possession until after the expiration of the lease without any right or authority so to do, plaintiff was compelled to institute proceedings for ejectment and this judgment being obtained defendants were ejected from said premises; subsequently defendant maintaining illegal possession of the pxapsmx premises, *ks same in the meantime having been leased to S. S. LeBlanc and D. L. Ivy, and theáe parties unable to obtain possession through illegal acts of defendant; plaintiff brought suit in the Civil Dlstriot Court against the defendant for damages for the illegal acts complained of. In that suit on appeal to this Court from the judgment maintaining an exception of no oause of action, tt it was held that not the aotion in question was premature, and as it was/proven the amount of damages sustained by plaintiff there oculd be no aotion for damages, and the judgment of the Court in that case, which is No. 8669, of the docket of this Court was to the following effect:

"In order that plaintiff's rights against the defendants resulting from any >sss claims or suit that LeBlanc and defeated Ivy may have «gainst than in the future may not be/ by the judgment of the District Court maintaining the exception of no cause of action, we will reserve his rights.isxpxMuoiix»

The pfesent suit is a sequence to the aotion in question.

The allegations of the petition further aver that Le Blanch and-Ivy filed a suit in theCivil District Court against plaintiff and the .defendants in this case, claiming the sum of |1500,00 damages for the illegal retention of the premises leased by plaintiff to LeBlanc & Ivy, and to this suit the defendant Levitan et als filed an exception of vagueness and 3,130 an exception of no cause of action.

The petition further goes on to allege that fearing that plaintiffs in that case would obtain a large judgment for damages against the plaintiff in this case, he compromised and settled that litigation by paying to LeBlanc and Ivy the sum of 1515,00, and for which he now seeks to recover the same amount from the defendants herein.

An examination of this record satisfies us that the <ta inte nance of the defendant's exception of no cause of action whs an error for the reason, first, the.t under the Civil Code Art. 2315; "Every act whatever of man that causes damage to another, obligee him by whose fault it happened, to repair it."

And this article has been construed in many decisions pf our Supreme Court, and we refer only to one, whioh we think te-covers this case in so far as the exception, of no cause of action is concerned.

The case referred to is Hyman vs. Hibernia Bank & Trust Company, 139 La. 411-14:

"If by the unlawful act of two defendants the plaintiff has bpen deprived of a right which he had, and thereby has sustained a loss, the defendants are bound to repair it.

There can be, under the allegations, no question bdt that plaintiff has sustained the loss, and that it has been caused by the act of the defendants; the only question, therefore must be whether the act was.unlawful,"

Quoting numerous authorities.

We are of the opinion further that the question of compromiseipon whioh this suit is brought muat be determined by the Court aqua, its duty In the premises is to investigate and ascertain from the evidence to be adduced, whether or not the compromise was actually made and isi wh-t if any amount was paid by the plaintiff in this case to LeBlanc & ivy, aid also to what extent if any, aeiendants can he held accountable and responsible therefor.

For the reasons assigned, it is ordered, adjudged and decreed, that the judgment of the Court aquo be and it is hereby annulled and reversed, and it is further ordered, adjudged and decreed, that the Judge of the Court aqio hear and determine the issues, presented,' as to whether or not plaintiff did or not compromise and settle his differences in the matters complained of and if so, what he paid, and whether or not at under the evidence and the facts to be discussed, the defendant, Levitan & Company were or were not bound to make the amount good and ifi so to what extent. Costs of this appeal to be paid by the defendants and all other costs to await the future result.

-Judgment annulled and reversed and case remanded,


author: By WILLIAM A. BELL, Judge.

text:
    SUCCESSION OF MARGARET C. LOEBER
    NO. 8971
    COURT OF APPEAL PARISH OF ORLEANS
    WIBDIAM A. BEIL, JUDGE.
    APRIL 30, 1923.

   By WILLIAM A. BELL, Judge.

This appeal is from a Judgment dismissing an opposition filed by the 1. Grünewald Company, Limited, to the administrator's final aooount. Claiming to he a creditor for an alleged balance due on the purchase price of a piano, sold and delivered to the decedent on July 18, 1910, The Grünewald Company filed an opposition to the final account, on October 14, 1928.

The opponent claimed to have sold a piano to the decedent •on July 18, 1910, for the price ana sum of $460.00, of which there «as a balance due on the principal of $64.00, with interest at 6$ per annum from April 18, 1922. and of $129.85, alleged to be accrued •interest up to that date, plus 10$ additions], thereon as attorney's fees. The administrator filed a plea of prescription of three, five and ten years. On the trial the opponent offered in evidence the contract, of purchase where in, among other things, the vendor retained title in the .instrument sold until the full purchase price had been paid. The contract further provided that ¿o preso» ip ti on should run against the purchase price as long as any balance remained due and unpaid. The opponent also offered in evidence #»opy of the account showing debits and credits- More than twelve years elapsed between the date of the purchase and the death of the purchaser, which was April 23. 1922. The lower oourt sustained the plea of prescription of three years and dismissed.the opposition, from which Judgment the onnonent has prosecuted this appeal.

In support of the opposition herein filed, appellant relies ¡entirely upon the ruling of this court in Werlein v. Forstall, 1 Orl. Appl., 249. In that case this court reversed Judgment of the Court a quo, which maintained an exception of three years prescription .to suit on contract similar to that now under consideration. .The opinion of this court in the cited case was predicated upon the Views therein -expressed^that a clause in a contract to purchase a plane atíd other'articles, which provided that default in one peyment would mature all others yet to become due, was in effect a waiver hy anticipation of prescription. We think that such conclusion was erroneous and quite contrary to the expressed prohibition of Article 3460 of the Revised Civil- Code against the renunciation of prescription not yet acquired. In the cited case, the court held that the renunciation of prescription was anticipated and implied. In the case before us there is a special stipulation in the last clause of the contract by which this prohibited waiver or renunciation is admitted. The decision in Werlein v. Forstall should have been in conformity with the ruling made in Segond v. Landry, 1 Rob., 335, and to which we now adhere. Where a prior expression of this court is clearly 'erroneous, to will not hesitate to depart therefrom. Such a ruling has been not infrequently made by the Supreme Court of this State, as was recently done by that court in the case of State v. Orvill Smith, No. 25753 (decided February 26, 1923) .

The ointract offered in support of the opposition herein filed is one of conditional sale, in vfcioh it is attempted to reserve to the vendor title to the thing sold until the full amount of -the purchase price is paid. The effect sought is to make the contract oije of lease, rather than one of sale , and is such as the laws of Louisiana do not recognize except under special statutory provisions covering other and different subjects than are now before us. The decision in Barber Asphalt Co. v. St. Louis Cypress Co., 121 La., 152, covers fully all that can be said on this point of the case and impels us to the conclusion that the contract before us is bitt one of ordinary sale for merchandise "on account," prescripti-ble by three years. The exclusion,by our learned brother of the trial court,of the evidence properly objected,-to,was entirely Justified and nothing can be added to his written reasons for Judgment, .maintaining the pleas^ of prescription herein filed. Article 2278, R.C.C; Succession of Driscoll, 125 La., 291.

II IS, THEEEEOEE, ORDERED, ADJOD&ED AHD DECREED that the .judgment herein appealed, from he and. the sane is hereby affirmed, at appellant's costs in both courts.

JUDSMEHI AFFIRMED,

APRH 30, 1923.


author: Dinkelspie; J.

text:
    NO. 8973
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM SILENZI VERSUS BAPTISTE SOUQUET

   Dinkelspie; J.

The issues presented in this ease are substantially as follows

The plaintiff brings this suit for damages to his Cadlllao automobile; the damage occurred through a collision with defendant's ford truck on September 6th, 1923. Plaintiff alleges that he was proceeding down Chartres Street and that his oar was going about ten t'o twelve miles per hour, and thrt as his car was crossing the intersection of St. Peter Street a ford track belonging to the defendant, driven by him ooming from the direction of the River on St. Peter Street suddenly and without any warning, dashed out St. Peter Street, ran into plaintiff's oar striking it in the right front end, and driving it against a post on the woodside downtown corner of that intersection, causing damages in the sum of $113.41; he avers further that the sole oause of the aocident was the negligence of defendant in not bringing his oar to a stop Iqc before crossing intersection of Chartres and St. Peter Streets, and that he, plaintiff, had right of way.

Defendant answered, admitting the occurrence of the colllssion, but denying any negligence or liability, he was operating his truck on St. Peter Street about ten miles per hour. Reaching Chartres Street he saw an automobile approaching, going north on Chartres Street at a fast rate of speed; and this being nearer the intersection and having the right of way he increased his speed.in order to give the driver of plaintiff's automobile a ohanoe to pass behind him, but instead of so doing the driver continued ahead and turned to his left, passing in front of defendant's car, oausing the left front of his car to oollide with an eleotrlo light iron box on the northwest corner of Chartres Street, and that before defendant could stop his truck it collided with the right front of plaintiff's automobile.

On this evidence the parties went to trial.

As usual in cases of this character, there is a conflict of testimony. The car of the plaintiff was driven by a Mr. Rousseau, he had no interest in this bsx car whatever, he was an employee of an automobile company and a complaint had been made to this company that there seemed to be a knock in this car, and he volunteered to drive plaintiff to his place of business and if possible on the way ascertain what the trouble was with the car, they drove through various streets in order to ascertain the trouble, and to locate it; they finally turned into Chartres Street toward St. Peter Street and the evidence further shows were driving slowly and carefully,tes no other oar in sight; in attempting to cross St. Peter and Chartres Street, defendant's car coming at a rapid rate of speed hit plaintiff 3 car and knocked it against an iron box, damaging the c?r to such an extent that he was compelled to bring it back to the shop and then had the repairs daraw done as shown by the itemized bill presented in this record.

On the other hand defendant contends thM; this car of plaintiff's went into this iron box before defendant struck it at all, and that if ih any damage was done it was d*f8nii8mifc through plaintiffs own fault and his own negligenoe.

The conflict between the witnesses in this case, as stated at the outset of this opinion materially differed, and after all it was a question of fact within the control and under the supervision of the trial Court; he heard and saw all the witnesses in this case, and as we have frequently decided was in a better position to determine whether or not defendant's car pushed plaintiffs car into the iron box or whether the car was driven into that position by the plaintiff in this case; he determined the question in favor of plaintiff, and giving this °aBepatened1 &nd con3iderate attention, and there being no error/paitaran* on the record to convince us that he was mistaken miaBXwnmix we conclude that he had better opportunities seeing and hearing the witnesses, to come to a decision, than we have, and finding no error in his opinion, we conour therein.

April 2nd, 1923.

For the reasons assigned, it is ordered, adjudged and decreed, that the judgment of the Court aquo in this case be and it is hereby affirmed, defendant to pay costs of both Courts.

Judgment affirmed.


author: By WILLIAM A. BELL, Judge

text:
    GABRIEL H. FUSELIER VS J. HENRY BLACHE
    NO. 8976
    COURT OF APPEAL FOR THE PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE
    MARCH 5, 1923.

   By WILLIAM A. BELL, Judge

Plaintiff has sued defendant herein for his share of certain commissions involved in the sale of certain real estate, it being claimed that the right to said commissions arose from a certain written oontraot reading,in part,as follows:

"August 5, 1921.
"That the said Mr. J. Hy. Blaohe, as real estate broker, agrees to employ the services as salesman, of Mr. Gabriel H. Fuselier, with the mutual understanding that on all business created and effected by the said Mr. Fuselier; that is to say, that on any contracts to buy or sell or lease secured by the said Mr. Fuselier which results in business being effected by said Mr. Blaohe, or on any contracts to sell, buy" or lease secured by the office of said Mr. Blaohe on which the said Mr. Fuselier effeots business, the said Fuselier is to receive half of the commission received by Mr: Blache on said business. * * *
"(Original signed) J. Hy.. Blaohe
" " Gabriel H. Fuselier."

The above is, in substance, a copy of the aforesaid oontraot made part of plaintiff's petition. It is alleged in his petition that on April 21, 1920, long prior to the making of the said oontraot, plaintiff received an offer, in writing, from the owner of oer-tain lotB known as the "Woodville Traot Ho. 2," on Gentilly Hoad, in the City of New Orleans; that on Sept. 7, 1921. some thirty days after the signing of the oontraot between the parties to this suit, plaintiff wrote the owner of the Woodville Tract again making inquiries concerning the lots' and asking if same were for sale; that three days later, on September 10. 1921, the owner of the lots having replied to plaintiff's letter of inquiry, was advised by plaintiff over .the telephone to get in touch with the defendant in this suit and the address of said defendant was given-him, and that as a result of placing the owner of said lots in touch with the defendant, an ultimate sale of said lotB was made by the defendant to a third party, the defendant realizing from said sale the sum of $341.25. These are, in substance, the facts of the case which are necessary to he here noted so far as the plaintiff's petition is concerned. The petition concludes with a prayey that under the terms of the aforesaid contract plaintiff he declared entitled to one-half of the total commission of $341.25 realized hy defendant, that is, the sum of $170.63, for which Judgment is prayed.

Defendant has answered this suit, first pleading an exception of no cause of action, which has not been seriously urged and which was overruled hy the trial court, and then, specially answering, urges that tho written oontraot, which is admitted, and the subsequent sale, which is admitted, could not in any manner have made defendant liable to plaintiff for half of the commissions for the reason that it was specifically agreed between the parties to this suit that commissions would only he due upon such otntraota as plaintiff may have procured and had signed between the parties to the sale, that is, the commissions were to he earned on actual sales made hy plaintiff on "signed contracts" or "signed listings."

There was judgment in the liver court in favor of plaintiff, from which defendant has appealed.

From the pleadings in this suit we gather there is only one defense seriously urged to plaintiff's olaim and that is that outside of the written oontraot there was the agreement qualifying it as above set forth. At the trial of the oause the testimony on this suhjeot was properly objected to, and the record shows that when the objection was made to said testimony concerning "signed contracts" as a condition to the earning by plaintiff of his commission, counsel for defendant made the specific statement after the objection was interposed^that defendant did not oare to press the question. However, later on in the testimony we find the question again ashed of the plaintiff, who positively denies that there was any such agreement. In any event, the verbal testimony that was sought to he adduced on this subject was wholly inadmissable under the aoademio rules of evidenoe and oould not be considered by the court beoause of its tendency to wholly vary, alter and oontradiot the written contract originally entered into between the parties. We find conclusively that the only time the defendant met the owner of the "Woodvllle Tract" was after said owner had been sent to him by the plaintiff. The testimony of the owner himself is to this effect, and we find that said owner though subpoenaed by the plaintiff, was placed upon the stand for direct examination by the defendant, and when asked to narrate how he became acquainted with the defendant, stated that the plaintiff, who had failed to keep several engagements with him concerning the ownership of the "Woodvllle Tract," finally told him over the telephone to call up the defendant and get in touch with him. On oross-examination by counsel for plaintiff this same witness was asked the all-important questions as follows:

"ft.-When you saw Mr. Blache you introduced yourself to him, did you not?
"A.-Yes, sir.
"ft.-Did you know him at that time?
"A.-Wo, sir.
"ft.-Did you tell him who referred you to him?
"A.-Yes, sir.
"ft. — Who was that?
"A.-Mr. Yuselier.'
"ft.-That was before you had any dealings at all with Mr. Blache that you told him that?
"A.-Yes, sir."

After careful oonsideration of the reoord in this case, of the letters and correspondence made part hereof, we are oon-vinoed that the transaction under whioh the defendant earned the commissions, half of whioh plaintiff now sues for, arose entirely through the fact that the plaintiff and he only brought the owner of the property, whioh defendant sold, into business communication with the defendant, and the defendant never knew of the party until said party phoned him at the request or instructions of plaintiff. Applying these facts to the oantraot whioh Roth parties admit to hays existed between them and interpreting the oontraot as a binding ene not to he qualified in any respeot by verbal testimony, we are of the opinion that the judgment of the trial oourt is oorreot and should be affirmed.

II 13, THEREFORE, ORDERED, ADJUDGED ADD DECREED that the judgment herein appealed from be and the same is hereby affirmed at the defendant's costs in both courts.

JUDGMENT AFFIRMED.

MARCH 5, 1923.


author: Dinkelspiel; J.

text:
    NO. 8983
    COURT OF APPEAL PARISH OF ORLEANS
    CHARLES A. HEINZ versus ROBERT W. MARKEL.

   Dinkelspiel; J.

Plaintiff institutes this suit alleging that he entered ■o' a contract' with defendant to install certain plumbing, furnish certain material.and'do certain work cn the premises Ho. 7809 Sycamore Street, whioh amounted to the sum of $536.50. That of said amount he received $400.00, -leaving a bal'-noe due and owing of $136.50; he annexed to his petition statement of his account, alleges amicable demand and prays for Judgment.

In answer, sfter denying generally fell the .--negations Of plaintiff's petition, defendant admits thrt plaintiff performed certain work on the premises in question, but that the amount stated was .incorreot, and there w\e a generel indebtedness b 'tween plaintiff and defendant on ether mutters not connected with,plaintiffs account, but on previous trrr.sections snd claimed fchft he owned .plaintiff only the sum of $5,53, on this pfrtlcuNr transaction, and'that in other matters growing out of prior transactions tfct.re was an indebtedness due defendant, whioh hs ol'-imed should be «1-lowed to him in this case; hence prayed rtrifc the original emit be dismissed-and th*t he be allowed the sum claimed.

It would accomplish no good object to enter into det.lla of this controversy» An examination of this record proves tiu-t plaint if f/asniaat the property on Sycamore Street, after a fire -was to -do certain plumbing work at e- certain price to be pc.id him by the defendant, that he performed this -work to the defendant's en-..Ht®' satisfaction and the defendant time and again promised ps-.y-.-jmhht'of'the balance due plaintiff; he f;-.,lled in k.-epin,-; his prom'■■ISe, never'denied the work had been dene, but insisted on the trial ■df this base'that on o.ther work done th--re was due him p certain lamotmt of, money whioh should be offset end th-.t judgment should be ..rendered'in his flavor for the amount of hi3 dula in these other .matters*

' Odds.pi Practice. Art. 375. "In order to entitle the -ho institute, a demand in reot-nvention, it- is requisite ^tÍiftt''süóS'-;Seniana-; ;tfiough-"dff f erent: from tie':»i¿' ‘¿oíiin/pbe-;' ■j3Se„véíHieles.é’ hépéssé.rily' eonneóté&'with end iñoi'dent&l’.'io same;*'

March 19th, 1923.

’ '"Compensation tálese. place only between two debts -which, ^'eúéqjislly iiqúlde..jed ánd. demándablei ?

Wm. L. Well vs. Marcel Bernard, 4th Ct. App. 463.

:Tha .seoord further demonstrates that the.Sycamore ebhtrác't ,wa's’.’separate >nd distinct-and all other, matters were .plosed^ánd'adjusted, :...

- .The Judge of 'the 'Court aqufl. in his .judgment -in "issx. faWr.^di'. plaintiff,, reserved'to defendant,. the -right if any he':. •bád,;;in;'s. dir.esó.t-suit on any ola.im he may have.;-'This-'iri-'bur;■„ opinion .wáé;¡all-that'the defendant-hád a right'tov .

For- the-.reasons-assigned, it is ordered^; adjudged.ánd dboreed,'- that .the'.-judgment'of the Court aqud be &ti¿' the ¡.same is hereby affirmed, costs of both Courts'to-be’-paid.-by.-jiefendant,-■.

.-JúdgmenV aff limed-


author: ByWILIlAMA. BEBI, Judge.

text:
    SUCCESSION OF HARRY CHARLES CHRISTIAN DEMIEN
    NO. 8987
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM: A. BELL, JUDGE.
    APRIL 16, 1923.

   ByWILIlAMA. BEBI, Judge.

His is su appeal taken by the universal legatee from a ■Judgment homologating the provisional account of the executors of in which the fees for the attorney of the executors, account for $1250.00, and the fees of the attorney for absent heirs, placed on the account for $200.00, is opposed.

The decedent left an estate consisting of cash, mortgage notes, real estate, etc., inventoried at $14,949.59. The will named executors and provided for a number of legacies to collateral relatives, payable in marks, some of which were direct gifts, and some are legacies of the interest on certain amounts, with the provision that the principal should go to other legatees; and making the City of Krakow, Germany, residuary legatee. On the trial of the opposition, the fees of the attorneys for the executors were reduced to $1,000.00 and the fee of the attorney for absent heirs maintained at $200.00, the amount fixed in the account. From this Judgment the City of Krakow has appealed.

The only issue is the value of the services of the attorneys -mentioned. We have given careful examination to the extent of the services as shown in the record, with the result that we are of the opinion that the oppositions are not well founded and that the fees are Just and reasonable and should be allowed.

It has been held in the Succession of Caballero, 25 Ann., 646, that when attorneys fees rendered to the estate is awarded in the sum of $500.00, that the attorney for absent heirs is reasonably paid the sum of $100.00. The Judge a quo has awarded what is to us a reasonable fee in the sum of $1,000.00 to the attorneys of the executors and on this basis we think he has duly observed the rule Just oited in ansr&AAg $200.00 to the attorney for absent heirs.

In the Succession of Richards, 49 A., 1115, the Court said

nTlie estimation of the value of professional services of an attorney at law is only a question of law, and one that comes peculiarly within the province of the judge a quo who superintended the making up of the record upon which the same must necessarily depend, giving him a very intimate acquaintance with all of its details, as well as knowledge of the kind and value of what services were performed."

In Dinkelspiel v. Pons, 119 La., 236, and in the Succession of Herwig, 127 La., 127, it has teen held where the amount allowed fcy the trial judge for professional services are not manifestly insufficient or excessive, the judgment will be affirmed.

II IS ORDERED, ADJUDGED AHD DECREED that the judgment herein appealed from he and the same hereby is affirmed at appellants costs in both courts.

JUDGMEHI AFFIRMED

APRIL 16, 1923.


author: Dinkelspiel; J

text:
    NO. 8989
    COURT OF APPEAL PARISH OF ORLEANS
    JAMES T. DORMAN versus BOARD OF COMMISSIONERS OF THE PORT OF NEW ORLEANS.

   Dinkelspiel; J

This is a oompensation suit»

The record establishes that the plaintiff is a widow-~ex, carrying on a small farm in the State of Mississippi, and that his son, the deoeased, aaaki* contributed by his labor and work on the farm from the time that he was am old enough, to the upkeep of the father, amongst other things doing light plowing and that he was undoubtedly, in 1919, a 'help to his father and assisted him on the farm in the manner stated.

Subsequently the boy left his father's plaoe, going first to Yazoo City, and subsequently coming to Hew Orleans, where he had occassional employment, and during the oourse of his employment sent his father the only money that he oould spare after providing himself with clothing and other necessaries of life, the small sum of five dollars. It is not shown in this reoord how much he earned in the oourse of his absence from the farm, but it is shown that in various oooupa-tions he earned but little, and that little was necessary for his own svg>port, save and except as heretofore stated^

This suit is brought under the compensation act by the father, for the death of his son, claiming that hs was dependent upon his son for support. It is proven that the father lost the servioes of this son when he left in February 1930, and after that the father's olroumstanoes tbsxfatha were of the poorest oharaoter, and the little work that he had he- was compelled to employ labor to gather the orops;and the main question, in fact the only question presented for our consideration is whether under the olroumstanoes and the law, the father was dependent on the deoeased for support*

The Civil Code, Art. 239 reads:"Children aré bound to maintain their father and mother, and other ascendants who axe in need; and the relatives in the dlreot ascending line are likewise bound to maintain their needy descendants, this obligation being reciprocal*"

The latest construction on this question was presented to our Supreme Court in the case of Gregory versus Standard Oil Company, to he found in the 151st. An. beginning at page 329, and there the oourt goes on to say:

"This suit is by the father and mother of young Gregory, to recover compensation, as provided in the Em-to ployer's Liability Aot. There is no dispute as/the employment and the wages of the young man was receiving, and it is admitted that he was in the oourse of his employment, when he lost his life. The sole defense against liability is that the plaintiffs were not actually dependent on their son to any extent, at the time he was drowned, within the intendment and meaning of the compeneation statute.

The evidence is undisputed that the plaintiffs are very poor and in needy circumstances. They have no stated income and no property. They lived on a small farm in Arkansas, which they cultivated on the share system. The father is in his declining years, able to do but little work, and is growing less able to work as the years come and go. The last of November or first of December, 1919, Roy left home, with the oonsent of his parents, to seek employment where wages were more attractive and he couid furnish more assistance to his parents. Before leaving, he told his father and mother that he would send a certain stipend to his parents out of his wages in order to assist them to employ others to take his place during his absence. He worked a little better than a month, when he met a tragic end. He did not send any of his wages of the first month, except $5 to a younger brother, ksxlng He had to pay his board and lodging and to fit himself up with clothing and personal effects needful to his employment and new situation. The reputation, whioh the young man had earned, as attested by his neighbors, exemplified in his devdtion to his parents and the faithful discharge of his filial duty, gave his parents every reas® fio expect the redemption of his promise of peounlary assistance and to look forward to suoh aid,MhEHsiha as they progressed.

The statute, under whioh the suit is brought names two olasses of persons who are entitled to reoover compensation for the injury and death of an employee: (1) Those who are conclusively presumed to be dependent, and (3) those who are actually dependent upon the deoeased employee, to any extent for support at the time of the injury and death. Those of the latter class are required to make proof of their dependency. The plaintiffs belong to that class. The position of the defendant is that no recovery can be had under the statute, because it is not shown that the plaintiffs were aotually receiving from their son aid or contribution, either material or pecuniary, and whioh was relied upon and used by them for their support and maintenance.

Under the law of this state, parents are entitled to receive and to appropriate to their own use, the earnings of their minor ohildren, and the children are under a legal obligation to maintain their father and mother, when in need. (C. C. 229. The proof is, as we have seen, that the son was contributing to the support of his parents out of the crop of 1919, which his labor helped to produoe, and the proceeds of that crop had not been entirely oonsumed when the young man left home. The parents likewise had every reason to mxmp expect pecuniary benefits from their son, under the promise whioh he had made to them on the eve of his departure. We think this situation meets the contention of counsel. But we cannot give our assent to such a rigorous and limited interpretation of the statute as contended for by oounsel. In the light of the conditions whioh brought about the passage of the law, we cannot be persuaded to believe that its promoters, nor the Legislature whioh adopted it, ever contemplated or intended, that a construction so technical and arbitrary would or could be applied to the language used in that part of the statute under consideration. It is oommon knowledge that the law was enacted as the result of concession, agreement, and compromise between employers and workmen, and oommon experience has confirmed the wisdom of its enactment. It was manifestly in the interest of both classes brought under its terms, as well as that of the general public. It is true the statute withdrew from the employer certain defenses, yet such employer was compensated in being relieved from vexations damage suits and the payment of large sums arising therefrom. This affords, however, no reason for such a narrow construction in favor of the employer. To adopt the interpretation oontended for would destroy the fundamental purposes of the law and result in great injustice in many instances. A right of recovery would be denied parents for the death of their son, though suoh death was caused by the gross and criminal negligence of his employer. It cannot be assumed that the Legislature intended to take away such right of action, a right whioh had been given by statute, prior to the enactment under consideration, without at the same time providing an equitable equivalent remedy by way of compensation.

The statute does not attempt to define what shall constitute "actual dependence for support to any extent," a$a the oourt cannot make any definite inflexible rule to govern every case. Each case must be considered in the light of its own facts and attending circumstances. Our oonolusion in this case is that it is not necessary that the plaintiffs should have been actually receiving from their.son, contributions or pecuniary aid at the time of his death; that the son's parents, being in necessitous ciroumstanoes and he being a minor, that he had contributed his personal labor, in making a crop the year previous to his death and whioh went to their support; and when, after the orop was harvested, the son left, with the oonsent of his parents, to seek employment, promising his parents to send a stated amount of his monthly wages to employ a hand to take his plaoe, constitute the parents actual dependents to such an extent as to bring them within the meaning of the statute."

The Court goes on to say:

■Suoh a construction is in perfect accord with the jurisprudence of the courts of many of the states, only a few of whioh oases we deem it neoessary to refer to."

And they olte:

"Pittsburg, C. C. & St. L. Ry. Co. v. Collard's Adm'r., the Court of appeals of Kentucky, 170 Ky. 239, 185. S. W. 1108, L. R. A. 1918E, 273; holds:
■It is not neoessary to prove that a deoedent has made actual contributions to the support of his parents in order to establish a reasonable expectation of pecuniary benefit from the continuance of his life, "
"And in the opinion in the Collard Case it was said:
■A young man who had never been in a position to render material assistance to his parents might go to work with the fixed purpose of contributing to their support, and yet his parents, who would have every reason to expeot pecuniary benefits from the oontlnuanoe of his life, would be denied a reoovery because he was suddenly killed before he had an opportunity to render them any practical assistance,"

In Parson v. Murphy, 101 Neb. 542:

■Under the Employers' Liability Aot, the question of dependency is not determined by the fact that a decedent In had not dskaxadatxdxh actually oontilibuted to the support of a parent before the date of the accident. But for the accident he would now, in human probability, be a wage earner and thus ha be in a position to support plaintiff in pursuance of his promise. It is always presumed, until overoome by proof, that a man will do his duty."

The Court goes on further:

"Under the federal statute, It might well be said that "dependent* means that the beneficiary could not maintain himself without the aid of the deceased relative; that he was dependent on him for a support and maintenance; and yet the courts have consistently refused to apply suoh a literal interpret an ion. Our statute does not require that the father and mother should be shown to be absolutely dependent on their son for support, before they can recover compensation on account of his death. The only requirement is that thev should be actually dependent to any extent, that is to say, to some extent. The phrase, "at the time of the injury and death," cannot be so oonstrued as to mean at the very moment of the death of the employee. It is broad enough to oover a reasonable period prior to the death, as well as a reasonable expectation of pecuniary assistance during the oontinuanoe of the son's life."

Defendants in their able brief oontend that in the first oase u oited the son left home with the consent of his father, but in this oase the boy left home without the oonsent of his father, and it is further oonvenaed the boy promised to send money home in support of his parents, and in this case no suoh promise was made.

The deoision quoted in our opinion does not in any wise change the sitaation in this oase. Whilst it is true -mat the boy in this oase left his farther on his own volition and without the father's consent, and without promising anything, nevertheless, under the artiole of the Civil Code, quoted above, and under the deoision referred to in this opinion, we .ere convinced that tkcxsxwui that was immaterial, and we so hold.

The proof is abundant that the deoeased helped and aided his father On the farm in the year 1919, and did everything be oould,' being only a boy of about fifteen years of age, in aiding hie father in outtlng up the land and helping him to work the farm. His going away without oonsent, or without informing his parents, neither changes the law nor the statute. The fact that on reaohlng the first point and the very first money that he oould spare he sent to his father, proves conclusively that he if he had lived he would have done all in his power to aid his father, ho knew the fatherle oiroumstanoes and oondition, ana showed his disposition to help him whenever he oould. unfortunately he was killed whilst in the employ of the defendant, and after he had worked only for a short, period of time; and, therefore, the parent is entitled to'what the Judge of the lower Court allowed him, under the law.

For the reasons assigned, it is ordered, adjudged and deoreed, that the judgment of the Court a quo he and the same is hereby affirmed, oosts of both oourts to he paid by the defendants*

-Judgment affirmed-


author: Charles F.Claiborne,Judge.

text:
    Wilson Truckers Ass'n vs John Bonura and Co.Appellants

    No.8990
    March 19 th 1923.

   Wilson Truckers Ass'n vs John Bonura and Co.Appellant.

No.8990

Charles F.Claiborne,Judge.

This is a suit for the recovery of $276.40 balance due on the price of potatoes sold and delivered.

Plaintiff's petition consists of two counts :

I The plaintiff avers that on May 1922 it sold,shipped, and delivered to defendant one oar load of potatoes,as follows;

173 bags No.l's at $2.50 $432.50
71 " " 2' s 2.50 177.50
38 " " 3's 1.00 38.00
12 Hampers Fancy = 6 bags 2.50 15.00
5.00
that it received on account 412.50
leaving a balance due of |250.50

II That on May 24th 1922 petitioner sold under and delivered to defendant another oar-load of potatoes for the price of #480.00 upon which defendant paid on account #454.10

( Price of potatoes $480.00 }
( Paid on account 454.10 )
leaving a balance due of 5.40 . 25.90^ making a total of

The defendant admitted having purchased from the plaintiff " one carload of choice red triumph potatoes " of the grades ana price mentioned in the first count of the petition; "that this car of potatoes was shipped by plaintiff for defendant's account to the Baldwin Pope Marketing Oo. in St.Louis to be sold for defendant's account;that upon the arrival of said oar in St.Louis,it was found that it contained no number One potatoes,a-large percentage of number Two potatoes,and some Number Three potatoes ; that owing to the low grade of said potatoes,said Baldwin Pope Marketing Co .were -unable to dispose of the potatoes to the trade," and declined to accept delivery of them; that defendant oaused them to be sold at a greatly-reduced price as "field run " potatoes ; that there was also a loss in said potatoes owing to their decayed and bad quality of 1879 pounds; that defendant paid b^aj; plaintiff $412.50 whioh was the full value of said potatoes.Defendants admitted owing $23.90 on the second oar.

®aay prayed " for judgment rejecting plaintiffs' demand except for $23.90 which it prays plaintiff be required to accept as the full sum due."

Defendants did not tender or deposit the $23,90 .

There was judgment for plaintiffs.for $274.40 and the defendant has appealed.

Upon the trial of the oase the plaintiff offered in evidence certain entries in a book concerning the shipment of these potatoes made by a clerk of the plaintiff whoso duty it was to make these entries under plaintiff's instructions.

The objection was overruled.The ruling was correct. Sec 22 C.J.P.862 S 1034 .P.863 notel" The authorities are numerous which hold that books containing entries made by those whose duty it was to make them in the usual course of business are competent evidence when other requisites are sufficiently established " 88 N.Y. 334-338-22 C.J. p 865 note. 151 Pac 657 C.J.p.868 No.16 p,885 .

The defendant offered to prove 1st.that the car I.C. 55,959 upon which the plaintiff had loaded the potatoes had been diverted by the defendants to St.Louis,and what became of the oar there; 2nd that the contents of this oar were examined by the consignees Baldwin-Oope Marketing Oo.ahd rejected on the ground that the shipment did not contain 173 saoks of No.One potatoes,and to establish the other defenses set up in the answer,and 3rd to establish how the defendants arrived at the conclusion that 5412.60 was tne only amount due to the plaintiff^that the defendants had a right to divert the- sninment.

The plaintiff objected to the introduction of this evidence.The objection was maintained.This ruling was error.

The seller warrants both the quality and condition of articles sold*by him,to be of the quality represented by him andb to be sound at the moment of delivery or within a reasonable time thereafter.Prom the time the potatoes were sold and delivered to the defendants,they became their property and they had a right to ship them to any plaoe in the world,and to sell them to any buyer they ehose.The vendor's warranty,as to quality,followed the potatoes for all time and in all places;The vendor's warranty was not bounded by longitude or latitude^’but as to soundness it lasted only for such length of time as potatoes keep sound under ordinary conditions.If.the vendors railed in that warranty the purchaser had a right to claim a reduction of the price.The vendor did not escape that warranty,nor did the purchaser forfeit that right,because of the fact that the purchaser shipped the potatoes, to an point different from the original destination. Whether the inferior grade,or unsoundness of the potatoes was discovered in Hew Orleans or in St,Louis,did not affect the warranty.Whon defendants resisted the payment of the price of the potatoes upon the ground that they were inferior in quality*or grade,or standard,from that purchased by them,or were unsound, at a time when they should have been sound,they certainly should have been permitted to establish that defense.

In all- sales there is an implied warranty against redhi-bitory wipes, or defects.C.C.247642461) isi La 76-41 A 1060 - 12 OtiApp 361- 0.0.2642 42620' )^Tho buyer may also content him-i self ■ with resorting to this aotion/reduotlon of the price)when the quality,which the thing sold has been deolarod to possess and which it', is ■ found to want’,is not of such importance as to induce him to demand a redhibition".

A purchaser of flour of a certain grade and kind is entitled to a returh of the price paid hy him if an inferior article is shipped to him 5 Ct.App.241 .

The case of Brown and al vs Duplantier 1 N.S.312 is a case similar in every respect to the case under consideration. In that case the plaintiffs purchased from the defendant a number of cotton bales and sold and shipped them to Liverpool' at that Jlace it was found that the cotton was of an inferior quality.The Court allowed the plaintiffs a reduction of the price. See also Shawcross vs Nivette Manning's U.C.118-5 R 217 - 3 A 455 3 A 442-7 A 613-8 A 136 .

The defendant sold to the plaintiff^s 150 barrels of potatoes in New'Orleans for $2.30 a barrel.He immediately shipped them to Shreveport^and sold them for $3.20 a barrel. On examination there,they were found unsound,and the purchaser refused to accept them.Held,the.plaintiffs were entitled to recover the reduction of the price -7 A 242 .

Inasmuch as the defendants admitted owing $23.90 but failed to tender or deposit the same according to law,but on the oontrary prayed that the plaintiffs be condemned to accept said amount in full payment f there must be judgment for plaintiff for $23.90 With costs. 23 A 183 -24 A 17 -108 La 125 -11 Ct.App 191- 4 R 146- C.P.415-416-156-549-52 A 864, .It is therefore ordered that the judgment herein in favor of the plaintiff be reduced from $274.40 to Twenty Three 90-100 dollars with costs in both Courts; that the rights of the plaintiff to reoover $250.50 balance claimed and itemized on the first count be reserved;and for that purpose this case is remanded for a further trial upon the evidence already on file and upon such further evidence as the parties may Introduce,and In accordance with the views hereinabove expressed;the plaintiff to pay the costs of appeal.

Judgment amended and case remanded for further trial.

March 1? th 1923


author: By WILHAM A. BELL, Judge.

text:
    M. MARX VS A.W. JACKMAN
    NO. 8999
    COURT OF APPEAL FOR THE PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE.
    MARCH 19, 1923.

   By WILHAM A. BELL, Judge.

?rom a judgment is favor of plaintiff suing upon an open ,ccount, defendant baa appealed.

The evidence in/this ease is convincing that the defendant, engaged as a sub-contractor to construct a bridge near the town of sa, La., ae£authorized his superintendent to purchase all ma-TTStial. incident to and necessary for the building of a pile driver and other works preparatory to the main construction of the bridge; •that this superintendent or manager of the works was introduced by defendant to different merchants in and about Bogalusa, though not especially to the plaintiff herein, and was held out by defendant to those in that vicinity as his representative in full charge of the said oonstruotion, with power to employ and to pay all labor, making such purchases and performing any and all acts incident to the'work in question. Defendant has answered this suit with a general denial, and at the trial it is evident from his testimony that his sole cos-, tention is not that the goods in question were not delivered but that he never authorized his manager or agent to purchase seme. His.evidence is not at all convincing on this point and.in seme respects is both evasive and contradictory. When asked the direct question if he knew that the goods sued for had been delivered to or had been received by his agent,he replies positively that he did not know, and yet in almost the same breath he admits that his superintendent told him the goods had been purchased and that he, defendant, direoted him to return ' them to plaintiff. He also denies that he gave the agent or superintendent any authority to buy goods in order to proceed with the job, but in his direct examination he admits having given full authority for the purchase of the materials he got from plaintiff's store "specifically. " On the other hand, we have the positive testimony from his superintendent that he not only authorized the purchase, but that he specifically direoted that the goods be bought from plaintiff's store against the superintendent's advice that they be purchased at.Hew.Orleans. Io hold., plaintiff to the atriot proof usually required as t» the sale and delivery of items set forth in a suit upon an open account would not he justified in this oase heoauae of defendant's own admissions on the witness stand that he knew of the purohase and delivery of the goods which he had directed to he returned to the plaintiff. A letter offered hy defendant, dated February 0, 1981, and addressed to plaintiff, is also to'he disregarded because of the aforesaid record-admissions. The total amount of the hill is declared hy the superintendent to he correct, though some of the items, heoauso of lost records, have not been possible of proof.

We have no doubt that the trial judge who saw and hoard' the witnesses has made a just and proper finding in this ease. There is nothing m the record, which has besn carefully examined hy us-, that causes us to believe the Judge a oua has in any manner erred.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the judgment appealed from he and the same hereby is affirmed, at d#-fendant’s oosts in both courts -

JUDGMENT AFFIRMED.

MARCH 19, 1923.


author: Huston, J.

text:
    JOHN SMAY against CHARLES SMITH and BENJAMIN R. MORGAN, Executors of WILLIAM SMITH, D. D.
    IX error.
    When it can be proved or is admitted that a man acted as an assistant surveyor, it is not requisite to shew a special authority.
    General reputation-that a-person was employed as such, or proof that many drafts or field notes remaining in the Surveyor’s office are in his hand writing, are evidence that he was an assistant.
    The return by a deputy surveyor of a survey made by another, is a ratification of it, and it is immaterial whether there was a precedent authority to make it or not.
    An ejectment may, in some cases be supported on a warrant without a survey. • In ejectment to recover a tract of land, where reference is made in a deposition to lines run and surveys made, and a draft is annexed, which does not embrace all those lines and surveys, but only those of the tract in dispute, it will be sufficient, if the defendant was present to cross examine, and did not ask for any other or further draft.
    Error to the court of common pleas of Cambria county.
    This was an ejectment brought in the court below by the executors of Hr. Smith to recover from John Smay, the defendant, part of a tract of two hundred acres of land in Cambria county. To support their claim, the plaintiffs gave in evidence,
    1st. A warrant to William Smith, H. D. dated 7th April, 1792, for one hundred acres near the 13 th mile tree on the road from Erankstown, including the Dollar Camp.
    2d. A warrant to Rebecca Blodget, (a daughter of Dr. Smith,) dated 21st December, 1792, for three hundred acres adjoining lands, warranted to William Smith, D. D. at a place called the Dollar Camp.
    The plaintiff's then offered the deposition of Thomas Vickroy, which went to shew, that in 1794 he went and saw the outlines of the survey, as made by William O'Keefe, deputy surveyor, in 1808, and many other surveys for Dr. Smith, as run by P. Cassidy. That' Pickroy himself at the instance of Dr. Smith, at different times run the division lines, and particularly run and marked all the lines of the said survey of O'Keefe, (a draft of which, shewing the courses and distances and corners he annexed to his deposition,) that having completed all the work, he in 1808, gave his field notes and draft to Mr. O'Keefe, who returned the surveys for Dr. Smith. That the said survey included the thirteenth mile tree on a road from Frankstown to Conemaugh, and the Dollar Camp,'a place só called, and well known.
    A cross examination of the deponent was attached to the depo-. sition. The defendant objected to its admission. That it was not proved that P. Cassidy was an assistant of G. Woods the deputy surveyor. That it was not proved that Thomas Vichroy was an assistant of G. Woods. That he was not an assistant of O'Keefe. That the land was not in G. Woods' district. That Vichroy did not return with his deposition a draft of all the work done by P. Cassidy and himself. And that if Vichroy had no authority to make the survey- it was useless to prove the existence of the lines on the ground. Which objections were overruled by the court, and a bill of exceptions sealed.
    Other witnesses were then produced on the part of plaintiffs, who proved that they had examined the lines on the ground, and found the survey accurately made, and the defendant living within it.
    The plaintiff then offered a certified copy of the survey by William O'Keefe.

    To which it was objected, that the certificate at the foot of the draft returned, stated the above to be a copy of a survey made in 1794, by G. Woods, &c. and examined and resurveyed in 1808, by William O'Keefe, deputy surveyor — and that part of the certificate which states what G. Woods did, is no evidence of the fact; and in support of their objection produced a witness who swore, that he had seen and conversed with William O’Keefe, on the morning of the trial, and that he lived within a mile and a quarter of the town. Whereupon the court rejected the draft. The plaintiffs,,after giving in evidence the will of Dr. Smith, dated 10th July, 1802, rented.
    The defendant produced no other testimony than to show that the “ Dollar Camp,” was without the lines claimed by the plaintiffs, and relied on the defectiveness of the defendant’s title lo prevení a recovery.
    The opinion of the court was reduced to writing, and filedof record.

      White, for plaintiff in error, contended,
    1st. That the deposition of Vicheroy was erroneously admitted, because it referred to a draft which had been in his possession, and did not account for the loss of it; and although he did swear the copy annexed was true, that that was not sufficient. Lessee if Packer v. Gonsolees, 1 Serg. dp Razóle, 52(5. 13 Serg. SgRazule, 113.
    2d. That the warrant to Dr. Smith is but descriptive' to a common intent, and the title would only attach from the actual survey, but if it were descriptive, the holder is postponed by laches. Hunter's Lessee v. Meason, etal, 4 Yeates, 108. 3 Yeates, 25. 7 Sergr Sf Razóle, 185,. 191.. • 4¿Úift,.58. 3 Yantes,. 283. 2 Yeates, 148,

      3d. As the plaintiffs have no official survey they cannot recover. 2 Yeates, 148. 3 Bin. 103.
    4th. That the defendant could not be affected with notice unless there was an official survey. An illegal survey is not notice. 7 Serg. Sf Rawle, ,191. 2 Bin. 105 — 7. Smith’s Ex’r v. Keehan, MS. case.

      Smith, for defendant in error.
    The warrants were, descriptive, as appears by the finding of the jury — they had both been placed in the hands of P. Cassidy, an assistant of the deputy surveyor, Thomas Vickroy also had run lines, and made a draft, which he gave to O’Keefe, the deputy surveyor, who returned the survey into the office.
   The opinion of the .court was delivered by

Huston, J.

The executors of Dr. Smith, who were plaintiffs in the common pleas, claimed the land in question on two warrants unsurveyed ,and returned into the office of the Surveyor General. One in the name of Dr, Smith, dated the 7th April, 1792, for one hundred acres of land near the the thirteenth mile tree, on the road from Frankstown, including the “Dollar Camp;” another in the name of Rebecca Blodget, (a daughter of Dr. Smith,) dated the 21st of December. 1792, for three hundred acres, adjoining land warranted to William Smith, D. D, at a place called the “Dollar Camp.” After giving in evidence these two warrants, the plaintiff offered the deposition oí Thomas Vickroy, which was received and exception taken, then the testimony of S. Lloyd, which was admitted, and then .the return of the survey by William O’Keefe, deputy surveyor, under seal office* which was rejected, because as was agreed here, -the certificate at the foot of the draft returned, stated the above •£© be a copy of a survey, made in 1794, by G. Woods, &c. and examined and surveyed by William O’Keefe, deputy surveyor, in 1808, and that the par| of the certificate which states what G. Woods had done, was no evidence.of the fact stated. Be it so — it was still evidence of what was done by the deputy surveyor who returned it, and should have been received as evidence of a survey in 1809 — this being rejected the defendant gave, no evidence — it had been proved he was in possession, and the court. charged the jury that they might find for the plaintiff; they did so, and Smay has brought this writ of error.

There is in the objections an over acuteness, not usual in our courts, and which I shall proceed to state.

Vickroy’s deposition proved that in 1794, he went and saw the outlines of the survey in question, and many other surveys for Dr. Smith, as run by P. Cassidy. That Vickroy himself, at the instance of Dr. Smith, al different times run the division lines, and particularly run and marked all the lines of the surveys in question, (a draft of which, shewing the courses, distances and corners, he annexed to his deposition,) that having completed all the work, he in 1808 gave his field notes and drafts,to Mr. O’Keefe, who returned the surveys. Lloyd and others proved that shortly before the trial they examined the lines on .the ground, and found the survey accurately made, .and the defendant living within it. Vickroy and others proved the .thirteenth mile tree on a .road from Frankstown to Conemaugh, and the “ Dollar Camp,” a place so called and well known, to be included in the plaintiff’s survey. There was.a cross examination at the time of .taking the deposition- The objections to it were, that it was not proved that P. Cassidy w.as an assistant of G. Woods.. That it was not proved .that Thomas Vickroy, the witness, was an assistant of G. Woods. That he was .not ,an .assistant of O’Keefe’s. That the land was not in O’Keefe’s district. And.that Vickroy did not return with his deposition a draft of all the work done by P. Cassidy and himself. And next that if Vickroy had no authority to make the survey, it was useless to prove the existence of the lines on the ground, by Lloyd.and others.

There is .a rule of evidence that a party shall produce the best evidence which the case admits of. ,In practice, however, there are very many exceptions. Where a deed is acknowledged, ,or a deposition ¡taken before a man who states himself to be a justice of the peace, the deed is recorded,or read .in court,.and sois a deposition, though we have not the best evidence, hr .any .evidence that the man who certified it was.a justice of the peace. Copies of the returns of surveys under seal for the Surveyor General’s office, a.re and have been received, and the commission of the deputy surveyor who made them is not asked for, any more than the justices of the peace ahove stated. The boundaries .of a surveyor’s district arc also taken from .report, as w'ell as the fact of his being a deputy surveyor, if either is .contested, .notice is given before .the trial, or the party contesting the authority, comes with a copy of the commission to some other person, and with proof that the land was actually out of the district. So the commission .o.f a sheriff or proof that the writ -was executed within his .county is not required — if denied, the truth may be enquired into. The sheriff and deputy surveyor generally have assistants, and the authority to the deputy sheriff, or assistant to the surveyor, is scarcely ever in writing, I will say .never where the person is generally employed.. If a man who has never been engaged to make a survey for the officer, is wanted to make a single survey, he may be requested in writing. In some instances there are several persons who .act as assistants to the deputy surveyor, and when they continue to act in that capacity for a long time, this is as generally known as it is known who is the deputy surveyor of the county.

Where it can be proved or is admitted that a man acted as an assistant surveyor, and the survey is returned, as was the case here, it never was required to prove a special authority to do that act. General reputation that a man acted as an assistant to a former deputy surveyor, or pro.of.that many drafts or field notes remaining in the office are in the hand-writing of a particular man, are evidence that he was an assistant. In 7 Serg. & Rawle, 317, the law is not laid down, hut rather what has been the us,age op this subject: and see 6 Serg. & Rawle, 137. Perhaps every* pan jn that court hopse knew that G. Woods was the deputy surveyor of Bedford county, in 1792, and that the presept county of Cambria was a part of that county in the same year. It was as well known thirty years ago that Cassidy and Vickroy had been assistants of G. Woods, as that G, Woods had b.e.en deputy surveyor of Bedford county. If Vickroy had said in his deposition that he and Cassidy had been assistants to G. Woods, it would have been legal evidence of it; so if any person in the court h,ad proved that they were known and reputed as such. Palpably the deposition was taken without .a ¡question on this subject, because it was supposed to be too well known to be denied. - If it had been necessary in the cause I would have directed the jpry that they might fairly infer if. from the .testimony given. Vickroy also proved that he gave to O’Keefe tire drafts, &c. from which the return was made — now the fact that O’Keefe returned a survey made by Vickroy, or any other person, was ,a ratification of it, and .after this, it was totally immaterial whether there was a precedent authority to make it or not. There was then, unless contradicted, and if believed, evidence of the survey being legally made.

I.t would then seem unnecessary to discuss the point 'whether in any case or in this case, an ejectment can be supported on a warrant without a survey. Clearly there are case.s where ,a man may bring an ejectment on a waprppt without any survey of the same land, each a warrant of his own: the deputy surveyor pipkes the survey for one, the other enters .a c.ave.at, the board of property decides, .as the deputy surveyor did, the .other is not without his redress he may bring his ejectment, and recover the whole or a part of the land which is in dispute; the fifth section of the limitation act, of the 26th of March, 1785, in fact s.upp.os.es an ejectment on a warrant on which no survey has been made. There was a radical mistake in rejecting the return of survey by O’Keefe, b.u't this was in favour of the party who has taken the writ of error, he, however, says that prevented him from going into-a full defence; be it so, we must take it as it appears to us. There was another objection namely, that Vickroy in his .deposition spoke of lines run and surveys made by Cassidy and himself, and did not annex a draft of these lines or surveys, but he .annexed a draft of the tract in question, .It did not appear, nor is it .alleged that any other part of the work was material — besides having closed his testimony, .and annexed his draft, the defendant cross- examined the deponent and did not ask for any other or further draft.

Judgment affirmed.


text:
    ELIZABETH CARLISLE and JOHN CARLISLE, against ADAM STITLER.
    IN ERROR.
    An entry is not necessary in any case in Pennsylvania, in order to enable the person who has title to recover the possession of lands.
    Every owner is in possession until some person actually enters on him under an adverse claim, and the statute .of limitations begins to run from the time actual adverse possession is tafeen only.
    The-disability of marriage cannot be added to theprior disability of infancy, to avoid the operation of the statute.
    W. L. owned a tract of land .containing two hundred and eighty-seven acres, under an application and survey, of which he never had actual possession, and died in 1784, leaving issue Elizabeth in her minority, who at.the age of twenty, married J. C. in April, 1787. At the time of the death of W. L. all but eighty acres of the said tract was held adversely by C. S. under a younger title by improvement, warrant and survey, who in 1793, .bought under another title the said eighty acres, and toofe possession, which was held by those claiming under him. J. C, intermarried with E., died in 1815, and to February term, 1818, the said E. C. brought ejectment. Held, that as to so much .of the tract of which said C. S. had adverse possession at the death of W. L., the said E. his daughter, was barred by the statute of limitations, but that as, to the eighty acres of which the said C. S. took adverse possession in 1793, she was not barred.
    When the right to the eighty acres, descended ,to E- C. in law she acquired the possession, and the true construction of the act of limitations gives a ¡feme covert the same .time when adverse possession is taken of her lands while she is covert, as it would have given her if there had been adverse possession and the lands had descendedlo he? when she was .covert.
    Writ .of error to the common pleas of Westmoreland county.

      Foster, for the plaintiff in error.

      Alexander, for defendant in error.
   The tacts .of the case are fully stated in the opinion of the court, which was delivered by

Huston, J.

This was an ejectment by Adam Stitler against Elizabeth Carlisle, who having died, her heirs were substituted defendants by consent.

The case was considered in the nature of a special verdict, either party to be at liberty to take a writ of error.

One Michael Byerly ,and another made an improvement and built a cabin, in 1773, and sole the right to Conrad Stitler, who moved to the land and lived on it until his death about 1796— in 1786, C. Stitler took out a warrant for three hundred acres, describing the land and paying interest from 1st March, 1772 — the same year he got a survey made and returned containing three hundred .and eight acres.

On the 25th July, 1769, John Irvine obtained an application No. 3668, for three hundred acres of land on Brush creek, at the mouth of Irvin’s run, and about two miles below the mouth of Bunky run.

On the 12th April, 1790, a survey was made on this by B. Lodge, a deputy surveyor, of two hundred and eighty-seven acres, (this survey was in all respects the same as to courses, distances and corners, with another survey to be mentioned directly.)

In 1791, John Iroine got a patent, and in 1793 sold th'e land with-warranty to Conrad Stitler. This latter survey interfered greatly vvith Stitler’s survey on his warrant, only about eighty acres were clear of his own former survey on his warrant. Stitler and his family occupied the lands until 1811, and died; on a writ of partition, the land in question, being that part which did not interfere with Stiller’s old survey, was allotted to Adam Stitler, one of the heirs of Conrad Stitler.

Conrad Stitler and his heirs were in possession of and claimed all the land embraced in both the surveys before mentioned and are yet in possession of the land embraced in said surveys,- except the one fourth part of that part of the survey of John Irvine, which did not interfere with Stitler’s old tract.

On the 25th July, 1769, John Irvine, Indian trader, (being the same man who entered the preceding application, No.- 3668,) entered another application No. 3663, for three hundred acres on the waters of Brush creek, on the south west side of the new road, &c. On the 4th May, 1771, he sold this to William Lyon for twenty pounds by deed recorded! in 1787.

On the 22d June, 1772, a survey was made of two hundred and eighty acres, and returned in October, 1772. This survey, I said before was the same afterwards taken in 1790, under the other application in the name of John Irvine.

William Lyon never was in actual possession of any part of the land. —he died in 1784, leaving a son born in 1764, who died in 1817.

There was another son who died without issue,- and intestate,, and a daughter Elizabeth Lyons, born in 1767, and who married John Carlisle on the 16th April, 1787 — John Carlisle died in 1815, and to February term, 1818, Elizabeth Carlisle brought an action-of ejectment against the said Adam Stitler for the undivided fourth part of two hundred and eighty-seven acres contained within the survey of John Irvine, and she recovered an.Undivided fourthi part of all that' part of that survey which lay east of 'the survey In Conrad Stitler’s name and judgment on the verdict in-1821 : — -and for- that part within the survey of Conrad Stitler, verdict and; judgment for defendant. Elizabeth Carlisle entered into-possession of the part so recovered by her, and this- suit is brought by Adam Stitler, to try again her right to that land.

It will be seen then, that her right' descended to Elizabeth Lyon,. in 1784, when she was an infant. , That she married John Carlislein April, 1787, being then aged about twenty years. That her husband lived until about 1815, and she brought' her suit in 1818. It was contended that being a minor when these lands descended teller, allowing twenty-one years, and then ten years more ow account of her infancy, which was all that in any case could be asked, the time (thirty-one years,) expired in the year 1815,' and!' that her recovery in a suit brought in 1818, was against right. It is true that the disability of marriage cannot be added to the prior disability of infancy; nor can the infant child of a woman who dies covert, have a longer period than its mother would have had if she had survived her husband. That part of the claim which affected lands of which Conrad Stiller was in possession when William Lyon died, came within the principle; and it was rightly decided that as to Slitlcr’s old survey, Airs, Carlisle was barred. But the eighty acres, part of which is now in dispute, which was within the first survey, on application John Irvine, No. 3663 — and which was included in the survey on application No. 3668, was not claimed or occupied by Stitler, until after 1792, when he bought it from John Irvine. The possession and the right of this part descended together to Elisabeth Lyons, and both right and possession continued in her until Stitler purchased from Irvine, and he being in actual possession, totally ignorant of any claim but his own, held for himself and adverse to all the world. At the time he acquired this possession and right, Elizabeth was a married woman. As to this part, of which she was not disseised until 1792 or 3, she being covert at that time, the statute did not run against her until her husband’s death, and she brought her suit within three years from that time,

The act of the 26lh March, 1715, says, “ From henceforth no person shall make entry into any manors, lands, tenaments or hereditaments, after the expiration of twenty-one years next after his,' &c, right or title to the same first accrued.” In this clause it is evident the writer did not know that an entry was not necessary in any case in Pennsylvania, in order to enable the person who had title to recover the possession of lands. It seems not to have been considered that the possession, and. the right, in all cases descended or accrued together, unless there was an adverse possession at the time the title vested: and if adverse possession was taken afterwards, the twenty-one years began to run from the commencement of adverse possession: The next clause is more easily understood; “ nor shall any person whatever have or maintain any writ of right, or any real or possessory writ or action, for any manor, lands, tenements or hereditaments, of the seisin and possession of him, her or themselves, his, her or their ancestor or predecessors, nor declare or allege any other seisin or possession of him, her or themselves, his, her or their ancestors or predecessors, than . within twenty-one years next before such Writ, action or suit, so hereafter to be sued, commenced or brought. But though it is easily understood, it is not because in the construction of it, any attention was paid to grammar, or any care shewn to avoid unnecessary, and in that place, unmeaning words: — but it shews clearly enough, that this statute does not effect a man who is in possession, I repeat, until some person actually enters on him, enters an adverse claim.

The fourth section, containing the saving for infants, married women, &c. has the same inaccuracy as the first clause of the second section above mentioned, and would seem to make the statute run against infants, married women, &c. although they were themselves in possession. The truth is the statute was made to bar those out of possession, and who continued out of possession, and did not bring suit within the time prescribed for each. The law does not refer or apply to those in possession, except to protect them after certain prescribed periods. The second, third and fourth sections all suppose persons to be out of possession, and limit the periods within which they must bring suits, according to the age and situation of each: while in possession it has no application. Mrs. Carlisle then was in possession at the time this land descended to her — in possession when she married, and until 1773, when Slitter's adverse title and possession commenced — and the true construction of the act gives her the same time where adverse possession is taken of her lands while she is covert, as it would have given of her, if there had been adverse possession, and the lands had descended to her when she was covert.

Judgment for plaintiff in error.


author: Per Curiam.

text:
    WILLIAMSON against MITCHELL.
    IN ERROR.
    Upon an appeal from the judgment of a justice of the peace by the plaintiff, the bail entered into a recognizance, which was taken by the justice in these words, “ J. W. bound in a sum to cover all costs,” which was held to be void; and upon which there could be no recovery on a scire facias against the bail.
    The writ of error in this case was to the common pleas of Mercer county.
    A judgment was rendered in a suit brought before a justice of the peace by Robert Lyon against John Mitchell, from which the plaintiff appealed, and John Williamson the defendant in the court] below, and plaintiff in error in this suit, was his security, whose recognizance was taken by the justice in these words — “John Williamson bound in a sum certain to cover all costs, that plaintiff will prosecute this appeal with effect.” This suit was a scire facias upon that recognizance, in which John Mitchell was plaintiff, and John Williamson defendant. The following is a copy of the writ which issued.
    Mercer County, sot.

      The Commonwealth of Pennsylvania to the Sheriff of Mercer county,

      Greeting:

    We command you, that you summon John Williamson, bail of Robert Lyon, to be and appear before our judges at Mercer, at our county court of common pleas, there so be held for said county, on the third Monday of November next, to shew cause why he should not pay the costs taxed, in the case wherein Robert Lyon, by Joseph Lyon, was plaintiff, and John Mitchell was defendant, and have you then, there, this writ. Witness the Hon. Henry Shippen, president of our said court, at Mercer the 26th of August, 1826.
    WM. S. RANKIN, Proth’y.

    The defendant plead — mil tiel record and nil debet — Replication— habetur tale recordum. Issue.
    The plaintiff offered in evidence a transcript of an appeal from the judgment of Alexander Dumars, Esq. in a suit wherein Robert Lyon was plaintiff and John Mitchell was defendant, dated the 1st December, 1823, on which transcript were the following words, “December 1st, 1823, an appeal applied for hy Joseph Lyon — John Williamson bound in a sum to cover all costs, that plaintiff will prosecute this appeal with effect,” which evidence was objected to by the defendant, and the court overruled the objections, and sealed a bill of exceptions.
    The court was requested by the plaintiffs counsel, to charge the jury, that the recognizance upon which the writ issued was void, in consequence of its non-compliance with the act of Assembly, and that, therefore, there could be no recovery in this suit: which the court refused to do, but instructed the jury that the recognizance was valid, and the plaintiff had a right to recover.
    . Three errors were assigned in this court.
    1st. The court erred in admitting the transcript in evidence.
    2d. They erred in their charge to the jury.
    3d.' That there is no cause of action stated in the scire facias.

      Bredin and Banks for plaintiffin error.
    The transcript of the justice, although filed in the prothonotary’s office, is not evidence. A justice has no seal by which his acts are authenticated; and his certificate that the transcript is truly copied from his docket, is not entitled to greater weight than the certificate of any other person not on oath to a fact within his knowledge. The evidence was nothing more than the allegation of the justice, that a recognizance had been entered into by Williamson before him. — O’Donnel v. Seybert, 13 Serg. Ramie, 54.
    The 5th section of the act of 1810, Purd. Dig. 452, provides the. form in which the recognizance shall be taken, so far as respects the condition; but the recognizance upon which this suit is brought, does not contain an obligation certain in amount, nor does it contain the conditions required by the act, even substantially, which it ought to do in order to its validity. Commonwealth v. Emery, 2 Bin. 431. Latigsv. Galbreath, 1 Serg. Sf Ramie, 491. Bolton v. Robinson, 13 Serg. fy Ramie, 193. King. v. Culversen, 10 Serg. Ramie, -325.

      3d. The writ of scire facias does not contain an allegation or ■charge that the defendant ever entered into a recognizance, or .that such a recognizance exists: — the plea of mil tiel record would be inapplicable to it, for it recites no record, there could therefore, ■foe no recovery upon it. Witherow v. The 'Commonwealth, 10 Serg. ¿if Rawle, 231.

      Moore and Foster for defendants in error.
    There is no necessity, in order to the validity of a recognizance taken by a justice of the peace, that it should be drawn out at length upon his record; a short memorandum from which it may be drawn out if necessary, is a substantial compliance with the act. But it was too late upon the trial of the cause, to take advantage of the defect, if one existed.
    The rule on this subject is correctly laid down in Means v. Trout, 16 Serg. Rawle, 349.
   Per Curiam.

It is impossible to support this judgment. A recognizance is an obligation of record, with condition to pay money, or do .some particular act; and it is in most respects like any other bond, the chief difference consisting in this, that a bond is the creation of a fresh debt, and a recognizance the acknowledgment of a former one. Here the justice has certified that the bail was “bound in a mm sufficient to cover all costs.” What was that sum? It was impossible for the appellee to know what to demand. Even the act of assembly under which the proceedings were, requires the bail to be taken in a mm; and it is not sufficient for the justice to state the fact generally in the words of the act, without shewing in the recognizance what the sum was.

' In an indictment it is not enough to pursue the. very words of a statute which has created the offence, it being necessary to allege the special fact in which the offence consists. (2 Hawk. 354.) Here the fact by which only an obligation could be incurred, the acknowledgment of indebtedness in a sum certain — is not alleged. The recognizance is therefore void; and even if it were valid as a stipulation, still an action of asmmpsit, and not of scire facias, would be the remedy. But the scire facias is even more defective than the recognizance. It neither recites the recognizance, nor alleges any fact to entitle the plaintiff to execution; but resembles a rule to shew cause more than any thing else. Its defects are not cured by the verdict, because it sets forth nothing, either in substance or in form, which resembles a cause of action, and being in the place of a declaration, it is incurably vicious. It mortifies one’s professional pride to find such a writ among our records, for which the alleged incompetency of the prothonotary is no apology, it being the business of the attorney to see to the form of the process. Such looseness is discreditable to the practice of our courts, and we are therefore, compelled to speak of it with marked disapprobation.

Judgment reversed.

Hustok, J. and Smith, J. dissented.


author: Gibson, C. J.

text:
    HARVEY against BOIES.
    Words Which impute an offence against morality, are not actionable, unless the offence be indictable or induce some legal disability..
    Therefore to say “J. H. swore a lie before the sessions, and I can prove it by twenty witnesses,” is not actionable. ,
    This record was returned with a writ of error which issued to the Court of Common Pleas of Beaver county, where it was an action of slander brought by John Harvey the plaintiff in error, against John Boies the defendant in error, for speaking the following words — “ John Harvey swore a lie before the sessions, and I can prove it by twenty people:” — which the court below (Si-ialer President) charged the jury were not actionable, and the plaintiff therefore could not recover — to which opinion the plaintiff excepted, and the same was assigned for error in this court,

      Fetierman for the plaintiff in error.
    Christianity is a part of the law, and ecclesiastical tribunals are essential to its propogation and existence, and hence the necessity of recognizing as judicial, those tribunals which have been erected among all denominations for the administration of those laws, which although peculiar to the respective subjects of them, are nevertheless binding and obligatory. To deprive them of their habitual mode of inquiring after truth, is to deprive them of the power of administei’ing their laws, and punishing in their own way, offenders. The offence of false swearing, before the tribunal of an ecclesiastical body, is in point of morality as great as perjury before a temporal court,- and every reason which prompts the punishment of the offender in one case, is equally applicable to the other.
    In the course of his argument, Mr. Fetierman cited 2d Day’s Connecticut Rep. 3. (Common-wealth v. Updegraff.) MMillin v. Birch, 1 Bin. 186. 1 Croke, 135. 185. Eckert v. Wilson. 10 .Serg. fy Ramie, 47, Guardians of the Poor v. Green. 5 Bin. 555. Hawk. Pleas of the Crown, 430, book 1, chap. 3.

      II. M. Watts for defendant in error.
    •Actionable words must .contain in themselves an express imputation of an offence which would be indictable, and which might subject the party to infamous punishment. Onslow v. Horn, 3 Wilson, 186. M‘Curg v. Ross. 5 Bin. 218. Shaeffer v. Kintzer, 1 Bin. 552. Brooker v. Coffin, 5 Johns. Rep. 191.
    The office of the inuendo is to elucidate, and not to enlarge the meaning or common import of the words spoken: Do the words as spoken and laid in the declaration, charge Boies with an offence for which if true he might be indicted, and if convicted, punished? Perjury is false swearing when a lazuful oath is administered by a judicial tribunal having power to administer an oath. The sessions of the church is not an ecclesiastical court; and if it was, it is not recognized by our constitution and laws as a judicial tribunal, or as competent to administer an oath: to say therefore of a man, that he swore falsely before the sessions of the church, does not import a charge of perjury, for which if true, the person charged might be indicted and convicted; and this is the true criterion by which words which are actionable, and those which are not, may be judged of. Ward v Clark. 2 Johns. Rep. 10. Skinner v. Trole, Cro. Jas. 190. Page v. Krole, Cro. Jas. 436. Shaeffer v. Kintzer. 1 Bin. 542.
   The opinion of the court was delivered by

Gibson, C. J.

If there is any rule established by universal assent, it is that words which impute an offence against morality, are no,t actionable unless the offence be indictable, or induce some legal disability. No one will pretend that perjury can be assigned in an extrajudicial oath; and to assert that every oath is judicial in the technical sense of the word, which it may be lawful and proper to administer, would ascribe to tribunals merely spiritual, the ordinary attributes of temporal authority: a connexion which no friend to the purity of religion would wish to see established. From lime immemorial Chsistians of every denomination have doubtless had their ecclesiastical courts; and to these is allowed full and free power to adjudicate on matters submitted to them. But when the civil magistrate is called in to punish for a disregard of the sanctions which they impose, it becomes a question, whether he can interpose, without perverting his power from its legitimate objects. Christianity .has been indefinitely said to be a part of the law of the land. The law undoubtedly avails itself.of the obligations of Christianity as instruments to accomplish the purposes of justice. But judicial oaths are not founded exclusively on the belief of the Christian’s revelation, a Jew or a Gentoo being allowed to swear in th.e form prescribed by his faith. Christianity is indeed recognized as the predominant religion of the country, and for that reason, are not only its institutions, but the feelings of its professors, guarded against insult from reviling or scoffing at its doctrines: so far it is the subject of special favour. But further the law does not protect it. Happily it neither needs nor endures the patronage of temporal authority, from contact with which, it is proved by all experience, to contract defilement. But perjury is punishable in the temporal courts, not for; its moral guilt, but its consequences to the public at large, in obstructing the administration of distributive justice. Its consequences however, do not affect the public at large, where it has been committed in an ecclesiastical court, inasmuch as they consist' in the obstruction of discipline among the members of the particular sect; and to punish it as an offence against the public, would be to treat it as what it clearly is not, and to enforce by tbe civil arm, the laws of a religious society; ail object foreign to the aim of temporal government. If, then, false, swearing in a spiritual matter, be not in reason, as it certainly is not in point of authority, an indictable perjury, what show of argument is there in favour of the position that words which impute it are actionable?

■ According to the principles of the action as now universally understood, it is not the infamy of the charge which constitutes the injury, but the danger created by it of sustaining a criminal prosecution or incurring a legal disability. This distinction is a guide which leads through every intricacy of circumstances, to at least, certainty of conclusion. It is of little account that the infamy is in fact the substantial injury. To have any law at all in the world, it is necessary that the consequences of human actions be determined beforehand by fixed principles, and not subsequently by the arbitrary discretion of the magistrate: and the law of slander as it is already established, is, if not as consistent with what may be thought natural justice, certainly more convenient in practice than the anomalous mass that would be produced by deciding every case on its circumstances, according to the dictates of reason or of passion. In any event we are not at liberty to declare the law otherwise than as we find it; and according to the authorities, with a single exception, the words laid and proved are not actionable.

Judgment affirmed.


text:
    PUMROY against LEWIS.
    IN ERROR.
    The prothonotary of the Court of Common Pleas, has no power to administer the oath required to obtain a writ of error.
    Error to the Common Pleas of Erie county.

      Babbit moved to quash the writ of error in this case, because the affidavit was sworn to before the prothonotary of the Common Pleas, who, he insisted, has no power to administer an oath except in special cases, when he derives the power from positive enactment.

      Pearson and Barrett, contra,

    argued that under the former constitution of the Common Pleas, the prothonotary, being one of the judges, had a general power to administer oaths, which he still retains by virtue of the twelfth section of the act of the 13th April, 1791, Puri. 401.
   Per Curiam.

Formerly this officer had a general power to administer judicial oaths by virtue of his office, not of prothonotary, but of judge; but when the two offices came to be separated, the powers incidental to them- were also separated, reddendo singula singulis, except so far as the contrary was specially provided. But the judicial powers retained by prothonotaries under the provisions of the act of 1791 extend no further than to signing judgments, writs and process; and to taking bail. Had the general power to administer oaths been supposed to be retained of course, it \yould scarce have been thought necessary to give a power specially limited to the business of the office. But a prothonotary of the Common Pleas has nothing to do with expediting the writs of the Supreme Court; consequently the affidavit to ground a writ of error must be sworn to before the prothonotary of the Supreme Court, or some officer who has a general power to administer oaths.

Writ quashed.