text:
    Mallard and Armistead v. John M. Carpenter.
    Whero an error of fact as to the domicil of a party has been alleged in the pleadings, it may be revoked, even in a suit between the same parties, and can have but little weight in a controversy in which a third person is a party. C. C. 2370.
    The only inscription of a judicial mortgage which binds slaves, is one in the parish where the owner is domiciliated, unless they be attached to a plantation; in which case, the mortgage may be recorded in the parish in which they are situated. C. C. 3318.
    When the inscription of a mortgage upon slaves has once been properly made, it remains binding, notwithstanding the subsequent removal of the slaves.
    A judicial mortgage cannot affect slaves not attached to a plantation, and belonging to a party residing out of the State, even though the slaves be subsequently brought into the parish in which the judgment is recorded. In that event, they are to be regarded as movables.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Durant and Hornor, for plaintiff in rule.
    P. E. Bonford, for defendants.
   The judgment of the court was pronounced by

Rost, J.

This litigation was commenced by rule. It is a contest in which Glendy Burke claims to be paid, by preference to the defendants in the rule, the amount of a judgment in favor of Burke, Watt 8f Co., against Green and McDougall, out of the proceeds of certain slaves sold under execution by the sheriff, as the property of Green.

Burke recorded the judicial mortgage under which he claims in the parish of Orleans, on the 23d of June, 1847, when, by his own admission, it appears that Green lived in the parish of Jefferson from 1846 till December, 1847, at which time he removed to the State of Mississippi, where he has resided ever since.

The counsel for the plaintiff in the rule has called our attention to a bill of exceptions, taken by him during the trial, to the opinion of the judge, admitting evidence to prove that the domicil of Green was in the parish of Jofferson whon the plaintiff’s judgment was recorded in the parish of Orleans, on the ground that the defendants, in their proceedings against Green, had represented him as residing in the parish of Orleans, and that they were estopped from contesting their own admission.

Green, although living in Lafayette, was a member of a commercial firm doing business in this city; and the fact that he suffered himself to be sued here could not defeat the operation of the law, which requires judicial mortgages to be recorded in the parish of his domicil before they can affect his slaves. The statement, that Green resided in the parish of Orleans, was mado through an error of fact, and might be revoked, even if it had been made in a suit between the same parties. C. C. 2270. As the plaintiff in the rule was not a party to the suit in which the admission was made, it can have but little weight in the present controversy. 1 Greenleaf on Evidence, parag. 206, 212. The record in the injunction suit of Maxwell v. Mallard and Armistead was properly admitted in evidence, to prove that there was such a suit, and that the defendants had been restrained from proceeding under their seizure by the injunction.

It is urged, that after the removal of Green to the State of Mississippi, the slaves were sent to the parish of Orleans, where they remained with a short interval until they were sold, and that as soon ns they came here, their master having no longer a domicil in the State, the judicial mortgage, resulting from tlio record of the plaintiff’s judgment in this parish, attached to them.

We know of no law by which this position can be sustained. The rule is, that the inscription of a judicial mortgage, in order to affect slaves, must be made in the parish where the owner has his domicil. C. C. 3318. The only exception to this rule is the case of slaves attached to a plantation, in which the. inscription of the mortgago in the parish where the land is situated, attaches to them, as it does to the team and farming utensils used in the cultivation of (lie land.

There is nothing in the objection, that a debtor might, under that view of the law, free his slaves from the judicial mortgages affecting them, by removing from the State. When the inscription has once been made at the proper place, the mortgage continues binding upon the slaves, notwithstanding any subsequent change of domicil of the master.

We are of opinion, that under our present legislation, a judicial mortgage cannot affect slaves not attached to a plantation, and belonging to a party living out of the State; and that all such slaves stand on the same footing as movables, so far as judgment creditors are concerned.

The judgment discharging the rule is therefore affirmed, with costs.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Paul Lestrade v. Alexander Perrera.
    Where a party employs a broker to sell for him a house and lot at a stipulated price, and the broker finds a purchaser, and the party then refuses to soli, but afterwards sells privately to the same purchaser, the broker is entitled to his commissions on the sale, in the same manner as if it hadbe'en made by him.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      L. Castera, for plaintiff.

      Ardrey and E. A, Bradford, for defendant.
   The ■judgment of the court was pronounced by

Rost, J.

The defendant employed the plaintiff as broker to sell a house and lot, and promised him a commission of two per cent on the price, if he obtained for the property sixteen thousand dollars: ten thousand cash, and the balance at one year, without interest.

The plaintiff introduced to him Vanzini, who was willing to give the price asked; but the defendant refused to sell, giving as the only reason, that he had changed his mind. The negotiation was apparently broken off; but two or three days after, the parties met, without the intervention of a broker, and the defendant sold Vanzini the property for §16,000 cash. The plaintiff claims, and the district court has allowed, the stipulated commission.

As the district judge gave faith to the testimony of the plaintiff’s witnesses, we are unable to perceive the grounds upon which the appellant relies for a reversal of the judgment. He was put into communication with Vanzini by the plaintiff, and finally obtained from him terms more advantageous than those at which he had offered to sell. He could not deprive the plaintiff of his just dues by closing the contract which the latter had enabled him to make, without his intervention. Levistone v. Landreaux, and cases there cited, ante, p. 26.

The judgment is affirmed, with costs.


text:
    Paul Lestrade v. Gabriel Vanzini.
    Where a person makes an engagement with a broker for the purchase of a house, and tho ’ principal refuses to sell the house on the terms stipulated by the broker, but does sell at an increased price, the broker cannot claim his commissions of the purchaser.
    APPEAL from Third District Court of New Orleans, Kennedy, J.

      L. Castara, for plaintiff.

      C. Roselius, for defendant.
   The judgment of the court was pronounced by

Rost, J.

This case is the sequel of the one just determined. It seems that after Perrera had spoken to Lestrade to sell his house, and before the price was named, Lestrade offered it to Vanzini, who told him that if he could get it at sixteen thousand dollars, ten thousand cash, and the rest at one year without interest, he would also give him a commission of two per cent. The plaintiff now claims that commission, and has appealed from the judgment rendered against him.

We are of opinion that the judgment should be affirmed. This is a transaction out of the usual course of business, and we feel bound to say, that we are not fully satisfied with the evidence adduced in support of it. But if we were, wo would sustain the judgment on the ground that the condition appended to the defendant’s promise has not happened. He was to pay the commission only in case he became the purchaser at sixteen thousand dollars ; six thousand of which were to be on a credit of one year, without any interest. He had to pay the entire price cash, and the interest he thus lost would amount to more than the commission claimed. The plaintiff has failed to make out his case.

The judgment is affirmed, with costs.


author: Eustis, C. J. Preston, J.,

text:
    J. Holmes v. W. S. D. Pettis et al.
    An act of the Legislature, authorizing police juries to impose taxes, to be assessed equally on real and personal property, slaves, and any other property, does not authorize a police jury to lay a tax on the profession or calliug of a commission merchant or retailer.
    APPEAL from the District Court of East Feliciana, Stirling, J.

      Z. S. Lyons, for plaintiff.

      E. T. Merrick, for defendants.
   The judgment of the court was pronounced by

Eustis, C. J.

This appeal is taken by the plaintiff from a judgment rendered against him in favor of the Police Jury of the parish of East Feliciana, for the sum of thirty-eight dollars, interest and costs in the Court of the Seventh District.

The only question involved in the case relates to the right of the police jury to impose a certain tax, for which the judgment has been recovered. The tax imposed by the police jury is levied on all commission merchants, retailers of diy goods, wines and spirituous liquors, in no less quantity than one quart, &c. The plaintiff is a retailer of dry goods only, and it is contended that the act of 1813, conferring the taxing power on police juries for the purpose of defraying the expenses of public works, for which the present tax was laid, provides that said taxes be equally assessed on real and personal properties, slaves, or any other property, as the police jury may deem expedient. These are the words of the statute, and it does not appear to have been followed in the imposing of this tax. That authorized by law ought to be assessed on property, and we find no warrant for this tax, which is on the calling or profession of the commission merchant or retailer. We think the tax illegal.

The judgment of the district court is therefore reversed, and judgment rendered for the plaintiff, perpetuating his injunction against the collection of the tax, and costs in both courts.

Preston, J.,

dissenting. The police juries of the parishes of the State have very onerous and expensive duties to perform in relation to levees, roads, courthouses, jails, schools and school-houses, and other public works. They have to pay many salaries, and incur various expenses otherwise, for the common welfare of the parish. I think, therefore, the power to tax should be liberally construed, in order to produce equality among all the residents of a parish.

It will be admitted that the police jury might, under the act of 1813, tax the stores and stocks of goods of retailers of dry goods, hardware merchants and grocers, in common and equally with the other personal property in the parish. As far as I can learn, ever since the year 1813, the police juries of the different parishes have,'under the act passed that year, imposed taxes on such merchants. From unskillfulness in wording their ordinances', the name of the merchant and dealer has been used in the ordinances and assessments for the store itself, and as representing it. Thus, in common parlance, in speaking of going to the store of Holmes, it’would be said we ar-e going to Holmes’.

The long and cotemporaneous interpretation of the act of 1813, should excuse the Police Jury of the parish of East Feliciana for falling into a common and even doubtful error in the language of tbeir ordinance. I think the judgment should be affirmed, and the tax collected; but as an adverse decision will produce more explicit local legislation, I do not regret that my brethren have come to a contrary conclusion.


author: Preston, J.

text:
    Nicholas Shiers v. Thomas C. Poole.
    The testimony of one witness is not sufficient to destroy the answers of a defendant to interrogatories propounded to him by plaintiff; nor will the possession of promissory notes, which are harred by prescription, he considered asa sufficient corroboration of the testimony of a witness to a promise, on the- part of defendant, to pay the notes, when the promise is denied by the defendant in bis answer to the interrogatories.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Stockton and Steele, for plaintiff.

      W. C. Budd, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff brings suit upon a number of promissory notes which were extinguished by prescription. He alleges, however, that the defendant repeatedly promised to pay the notes, particularly on the 27th day of December, 1849, and the 6th of February, 1850. He propounded interrogatories to the defendant to prove the promises, and accompanied them by circumstances to elicit the facts, if they were true. The defendant denied the promises m the most categorical manner.

The plaintiff then obtained a commission to take the testimony of James Lord, of New York, to contradict the answers of the defendant to his interrogatories. The testimony of the witness was taken, but was rejected as evidence, on the ground that the official capacity of the person who executed the commission was not established.

It is unnecessary to examine the question whether or not the evidence was properly rejected; because, if admitted, it is not sufficient to destroy the answers of the defendant to the interrogatories propounded to him.

The Code of Practice declares that the answers of a party to interrogatories propounded to him, “may be destroyed by the oath of two witnesses, or of one single witness, corroborated by strong circumstantial evidence, or by written proof.” Art. 354.

The testimony of Lord shows rather a negotiation with regard to the notes, than a final and well settled agreement to waive prescription, and promise to pay them. If it should be conceded that the witness proves a waiver of prescription and promise to pay the notes, he was not corroborated by '“ strong circumstantial evidence or by written proof.”

It is said the possession of the notes by the plaintiff is strong circumstantial evidence of the alleged promise of the defendant to pay them. As they were extinguished by prescription, they raise a presumption against such a promise. Nor are they written proof of the promise. They show a promise to pay them in 1839, but not in 1849. The testimony of the witness is not corroborated as required by the code to destroy the answers of the defendant to the interrogatories propounded to him.

The judgment of the district court is therefore affirmed, with costs.


text:
    T. and G. Forbes v. J. and R. Geddes.
    Damages for the wrongful issuance of a provisional seizure for rent, will not he allowed where the seizing creditor acted without malice, and where the circumstances were such as to give prohable cause for the seizure.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      J. B. Bemiss, for plaintiffs.

      Wolfe and /Singleton, for defendants.
   The judgment of the court was pronounced by

Preston, J.

The plaintiffs claim the thousand dollars damages caused them in consequence of a provisional seizure issued by the defendants against their stock of groceries, on the 15th of June, 1849. They allege that there was no foundation for the proceeding, and that their business and credit was injured by it to that amount.

On the 1st of November, 1848, they rented their store from the defendants for one year, for the sum of fourteen hundred dollars, payable monthly. The rent for April and May remained due and unpaid on the 15th of June, although frequently demanded. Fires had occured in their store on the night of the 29th of May and 8th of June, which were the work of incendiaries. This induced them to advertise for sale, at auction, the goods damaged by the fire. They also advertised, to be sold immediately afterwards for cash, wines, brandies, liquors, tobacco, &c. They were sending off such a quantity of goods immediately before, as to induce a customer of a neighboring store to ask if they were moving. Their misfortunes by the fires had hurt their credit.

By such circumstances, the defendants were induced to issue the writ of provisional seizure ; and we think they were excusable. We have no reason to believe they were actuated by malice, or believed their right to the provisional seizure unfounded.

The plaintiffs were moreover in fault for not having paid the two months rent then due, especially as, according to the testimony of their witnesses, they had ample means to do so. Being thus wilfully in fault themselves, they should not recover, without making out a strong case against the defendants.

They could have prevented all the damage of which they complain by paying the rent on the demand of the sheriff; and in fact no damage is proved: because, being in the act of selling their goods at auction for cash, the defendants took the auctioneer’s obligation to pay them out of the proceeds of the sale, and permitted the auction to proceed.

It is impossible that a just claim thus quietly settled, caused the destruction of credit, the stoppage of consignments, the ruin of business, of which the plaintiffs complain. Besides, the arrangement carried out the honest intentions of the plaintiffs, for we are bound to suppose they were selling their goods to pay their rent; otherwise the fears of the landlords were well founded.

If the goods were sold at auction at a ruinous sacrifice, as alleged, it was a sacrifice the plaintiffs were voluntarily making, and of which they cannot therefore coinplain. On the contrary, this voluntary sacrifice was what, no doubt, excited the apprehensions of the defendants.

Wé concur entirely with the district court, that the plaintiffs have not shown by evidence any cause of action; and the judgment is therefore affirmed, with costs,


text:
    Marie Naulet v. Her Husband, Francois Dubois.
    Where the husband abandons his wife on account of her cruel and outrageous conduit, that abandonment does not justify a suit on her part for a separation from bed and hoard. Where the conduct of the party complaining has been outrageous, the remedy is first to be sought in a reformation of conduct.
    APPEAL from the Second District Court of New Orleans, Lea, J. C.

      Dufour and Nautré, for plaintiff.

      H. Train, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff sues her husband for a separation from bed and board, on the ground of abandonment. She also asks judgment for the sum of twenty-five hundred francs, the amount of her dowry, and for the further sum of three thousand six hundred dollars for paraphernal property, alleged to have been received by her husband.

The defendant resists the action; and, assuming the character of plaintiff in reconvention, also claims a separation from bed and board, on the ground of public defamation and of excesses, cruel treatment and outrages on the part of his wife, of such a nature as to render their living together insupportable. He also prays judgment for three thousand francs, alleged to have been brought by him into marriage.

The district court rejected the plaintiff’s demand for a separation from bed and board and for paraphernal funds; and decreed a separation from bed and board and a dissolution of the community, on the reeonventional demand. He further determined the amount due to the plaintiff for dower, and to the defendant, for property brought by him into man-iage. The plaintiff has appealed.

The district judge has stated, as follows, the impression made upon his mind by the testimony of such of the witnesses examined as he thought worthy of credit: “From the period of the return of Mrs: Dubois to her husband in 1847, to the date of the institution of this suit, her conduct towards him appears to have been of a character to justify the conjecture that the first separation might have been owing to the impossibility of his living with one, to whose overbearing-violence of temper and conduct he had neither the moral courage nor the physical strength to offer an effectual resistance. She appears to have taken almost the entire management of their pecuniary and domestic affairs. She received money, discounted notes, kept a separate account in bank, under the name of Roque, and kept a debtor and creditor account with her husband-. The house was a scene of continual strife and turmoil, growing out of her incessant demands for money; on which occasions she treated her husband with contempt and scorn, and on one occasion resorted even to personal violence. These attacks appear to have been met, on the part of the husband, with unresisting imbecility, until, in January, 1850, he abandoned a dwelling in which a longer residence was, as he alleges, insupportable.”

Under this view of the facts, in which we fully concur, the present case does not differ from that of Lalande v. Jore, in which we held, that if the conduct of the party complaining has been outrageous, the remedy must be first sought in a reformation of conduct and deportment, on the ground that the evils complained of might cease with the behaviour which has produced them. 5th Ann. 38,

The abandonment, charged upon the defendant, was justified by the habitual brutality and occasional violence which marked the course of the plaintiff towards him, and is not a legal cause for a separation from bed and board. But although nothing can justify the conduct of the plaintiff, and she is not in a situation to entitle her to relief at our hands, we are of opinion that the defendant himself is not free from blame; and that his culpable neglect of his wife and children, during the seventeen years they remained in Europe, in obedience to his wishes,' when he had ample means to assist and support them, must have had the natural result of alienating their affection, and of aggravating the situation of which he now complains.

We have therefore come to the conclusion, that the judgment, so far as it is in favor of the defendant on the reeonventional demand, should be reversed, and both parties left where their misconduct towards each other has placed them. Durand v. Her Husband, 4 M. R. 171. In making this disposition of the case, it may be useful to state our concurrence in the view taken by the district judge, of the plaintiff’s claim for paraphernal funds, alleged to have been received by her husband.

It is therefore ordered, that the judgment in this case, so far as it decrees a separation from bed and board in favor of the defendant, and a dissolution and final liquidation of the community, be reversed. It is further ordered, that the judgment, so far as it is in favor of the defendant against the plaintiff, Marie Naulet, on her claim for a separation from bed and board, be affirmed. It is further ordered, that the demand in reconvention be dismissed: the plaintiff paying the costs of the district court; those of this appeal to be paid by the defendant.


author: Pkeston, J.

text:
    The State v. Paul Lartigue et al.
    A party bound upon his recognizance to appear at court and answer to the charge of subornation of perjury, or any other felony, cannot do so by attorney; and on bis failing to appear, the recognizance should be declared forfeited, although his attorney may offer to plead for him.
    The statute punishing the crimes of perjury and subornation of perjury, was passed during the Territorial Government of Louisiana, and punished the offence when committed, in the courts of the Territory. Held: That the statute is still in force, and applies to the offence when committed, in the courts of the State.
    APPEAL from the First District Court of New Orleans, Larue, J.

      Isaac Johnson, Attorney General, for the State.

      J. W. Frost, for appellant.
   The judgment of the court was pronounced by

Pkeston, J.

The defendant, P. Lartigue, was accused of subornation of perjury; and being arrested, gave bond, with Jerome Tourné and J. B. Lartigue as his sureties in the sum of $2000, conditioned that if he should appear before the First District Court of N ew Orleans, to answer to the complaint brought against him for subornation of perjury, and not depart thence without leave of the court, the recognizance should be void; otherwise remain in full force.

He was indicted for the offence, and ordered to appear before the court on the 22d of July, 1850, to be arraigned, and his trial was fixed for the same day. He failed to appear in person; and the district attorney, in pursuance of the act approved the 11th of March, 1837, caused judgment of forfeiture of his bond to be entered against him and his sureties.

His counsel subsequently moved to set aside the judgment, on the following grounds: 1st. Because Lartigue was present, by his counsel, when he was called to be arraigned on the indictment, and was ready, by his counsel, to plead to the same. 2d. Because the indictment found against him, does not charge him with the commission of any act forbidden and punishable as a crime by the statutes of the State; and that the bond does not set forth an offence known to the laws, and punishable by statute.

The motion was overruled, and a final judgment rendered agukrsvLaxiigue and his sureties, from which they have appealed.

The object of an arraignment, we are informed by Coke, is, to take ca\-e that the accused do appear to be tried, and hold up his hand at the bar for the certainty of the person, and plead a sufficient plea to the indictment. Coke, Lit. 262, 263.

The accused is also allowed, then, to put himself on the country for trial, or to select any other legal mode of trial, or may plead guilty and ask the clemency of the court, which is sometimes of great avail.

In England, for misdemeanors, the accused has sometimes been allowed to plead by attorney; but never in felony. It is true, perjury and subornation of perjury are not felonies in England; but, as conviction and inability to pay the fine, in England, might subject the accused to an infamous punishment, we doubt, if the courts in England would dispense with arraignment, allow a plea by attorney, or tidal in the absence of the accused, for the grave offence of perjury, or subornation of perjury.

In this country, the term felony has not a precise meaning: the forfeiture of lands and goods, which characterize it in England, being abolished. It denotes, here, a crime of great magnitude, and subject to an infamous punishment — death or imprisonment at hard labor in the penitentiary. We find no example in the United States, in which the arraignment and presence of a prisoner to plead and be tried, when accused of a grave crime subjecting him to an infamous punishment, has been dispensed with. In the case of the Commonwealth of Virgina v. Thomas Lewis, presented for unlawful gaming, the General Court decided, “that the defendant may appear and plead by his attorney, without making his personal appearance in court.” Virginia Cases, 335. But the punishment was only a pecuniary penalty.

The arraignment is a step and stage in the prosecution, and has never been dispensed with in this State. A plea, without arraignment and the presence of the accused, has never been allowed. So that the universal usage and practice is adverse to the pretensions of the defendant. No case has been produced, in England or the United States, in which a different practice has prevailed, where the crime subjected the accused to capital or infamous punishment.

For the crime of perjury or subornation, the criminal is subject, in this State, to imprisonment in the penitentiary at hard labor for a term not less than five years. He is rendered incapable of giving testimony, and, by the Constitution and laws, is forever deprived of the right of suffrage or to hold office. If an attorney can plead not guilty for a person accused of this crime, he can plead guilty, and subject him to these terrible consequences. We can sanction no other than the universal practice and usage in the State, where a contrary practice might lead to such serious results to an individual in his absence.

He has the great, constitutional privilege of meeting his accusers and the witnesses against him face to face. The trial, too, is for the public example: the solemnity and effect of which would be greatly impaired if it should take place in the absence of the accused.

Pie was to appear to receive punishment, too, if convicted; which has never been pronounced in the absence of the prisoner. Therefore the act of 1837 prescribes, that the forfeiture of the bond, for non-appearance, can be set aside by appearance, trial, conviction and punishment, or acquittal, at the same term.

The examining magistrate is directed to take bond for the appearance of the accused to answer the charge; which has always been understood to be a personal appearance. The terms of the bond, to appear and not depart until discharged, as universally taken, indicates the same thing. In case the accused fails to appear, the sureties are called, by the very terms of the statute of 1837, “to produce, instanter, in open court, the person of the defendant.”

The practice of appearing personally to be arraigued, being present to plead, to challenge jurors, to be tried and punished, or discharged from the prosecution, personally, has been so universal, from our territorial organization to the present time, and in cases subject to infamous punishment, without exception, that we cannot sanction the introduction of a different practice.

The defendant was prosecuted under an act passed in 1805, for the punishment of perjury and subornation of perjury, committed in the courts of the territory. It is contended, that he could not be convicted of subornation of perjury committed in the courts of the State. And remarkable examples are cited of the strictness with which penal statutes against perjury have been construed in England: as, that the statute providing for the punishment of perjured witnesses, did not apply to a false oath in a chancery proceeding, or perjury on a criminal trial.

Examining our statute in this stringent manner, the word courts, in the act of 1805, for the punishment of perjury, would have expressed, so far as the character of the courts were concerned, all that the words courts of the territory expressed: And, in that point of view, the term territory was surplusage in the law. The terms of the territory, were therefore intended in the law to express the limits within which the courts were held which were to be protected by the statute against perjury. Now, the courts organized at that time in the territory, those subsequently organized under the Old Constitution, and those lastly organized under the New Constitution, were all embraced within, and extended to the same limits, and were, therefore, included in the general term courts, used in the act of 1805, punishing perjury.

Be this as it may, we have heretofore observed, that the melioration of opr criminal jurisprudence had led to a more rational construction of our penal statutes than the strict construction which has been invoked on this occasion. And we have no hesitation in saying, that the courts of the territory, by the adoption of the Constitution of 1812, became the courts of the State; and the laws of the territory, the laws of the State; and their violation, the infraction of State laws. It has been so universally understood and acted upon by the legislative, executive and judicial departments of the government, and by the people, from 1812 until the present time; and, if necessary, we might say communis error facit jus.

But the words of the 4th section of the schedule of the Old Constitution, establishing a State government, are a conclusive answer to the argument of the defendant’s counsel on the point under consideration. “That all laws now in force in this Territory, not inconsistent with this Constitution, shall continue and remain in full effect until repealed by the Legislature.” So, by the adoption of the New Constitution, the courts created took the place of those which were abolished. The laws protecting courts from crimes against public justice, as the stealing or altering records, perjury, and the like, were continued in force by the schedule of the Constitution without reenactment; and, it is universally understood, afford their protection to the present courts.

The judgment of the district court is therefore affirmed with costs.


text:
    J. L. Riddell v. A. Ebinger.
    An alias writ may.be issued on an order of seizure and sale by executory process, after the first writ lias been returned not executed; and it is not necessary tliat the judge should issue a new order of seizure and sale.
    Informalities in the advertising or manner of maiding a sheriff’s sale are barred by five years’ prescription.
    APPEAL from the District Court of Jefferson, Clarice, J.
    In this case a sheriff’s sale was sought to be annulled upon the following grounds: 1. That there was no judgment authorizing the writ under which the sheriff acted. 2. That no notice, as required by law, was given to Kessler; nor the legal advertisements made previous to the sale. 3. That the sale was not a public one, but the result of a combination between D’Orgenoy and the sheriff for the benefit of the latter. 4. That the price was never paid. 5. That the sheriff never made any return of the writ under which he acted. 6. That the sale was not registered in the proper office of conveyances in the parish of Jefferson.

      T. A. Bartlett, for plaintiff.

      Brewer and Dunlap, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff sues to recover four lots of ground in the possession of the defendant, and has appealed from the judgment rendered against him.

In February, 1832, Oormley and Miller sold the lots to Constantin Kessler. This sale was made on credit, and a mortgage was retained to secure the price. Kessler failed to pay the price, and his vendors sued out an order of seizure and sale. The lots were sold under that order on the 19th August, 1843, and purchased by Louis LeBreton D’ Orgenoy, who was then put in possession by the sheriff. Two of the Jots were subsequently conveyed by D’ Orgenoy to Jacques Charbonnet, and have come to the defendant’s possession by a regular chain of conveyances; the other two lots were acquired by him at the probate sale of D’ Orgenoy’s succession.

The plaintiff claims under a private act from Kessler to him, registered in the office of conveyances for the parish of Jefferson,, on the 21st February, 1848, and alleges that the sheriff’s sale to D’ Orgenoy was null and void, and that Kessler was not divested of his title by it.

Two of the objections alleged by the appellant against the sale are, that there was no judgment authorizing the writ under which the sheriff acted, and that the sale had not been registered in the proper office in the parish of Jefferson.

The writ under which the sale was made was an alias, and it is contended that the order of seizure was a judgment only so far as the original writ was concerned; that it expired when the writ was returned, and that no other writ coxxld issue without a new order of court.

This objection has so often been held unfounded by our predecessors and ourselves, that we deem it unnecessary to do more than refer to some of the cases in point. Ursuline Nuns v. Depassau, 2 N. S. 646. Mader v. Fox, 15 L. R. 152. Harrod v. Voorhies, 16 L. R. 256. Fortier v. Zimple, ante p. 53.

We do not think the plaintiff is in a situation in which he could avail himself of the want pf registry.

The other informalities alleged in avoidance of the sheriff’s sale, are all barred by the prescription of five years under the act of 1834, which the defendant has expressly pleaded. 3 R. R. 374.

The alleged fraudulent combination between the sheriff and D’Orgenoy could not, if it existed, affect the defendant, who is a purchaser in good faith, for an adequate consideration which he has paid. It is proper to state, however, that the unfairness of the sale, so far from being proved, is rendered extremely improbable by the fact that Kessler, who attended it, was satisfied with it and made none of the objections now set up.

The defendant has shown as his title, a valid judgment, an execution and a sheriff’s sale. This is sufficient to defeat the plaintiff’s action. Brosnaham v. Turner, 16 L. R. 454, and cases there cited.

The judgment is affirmed, with costs.


text:
    Joseph C. Clark v. J. L. Warner & Co. et al.
    ríhe purchaser of property is presumed to acquire all actions appurtenant to the property and necessary to its perfect enjoyment; but as to damages actually suffered by the vendor before the sale, they are personal to him, and cannot be recovered by the purchaser, with-an express subrogation.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      C. Roselius, for plaintiff.

      R. Hunt, for defendants.
   The judgment of the court was pronounced by

Preston, J.

On the 16th of May, 1848, the plaintiff purchased from Rebecca Springer a lot of ground on Champ Elysées, near the corner of Victory street, with the buildings and improvements thereon, and all the rights thereunto belonging. The improvements consisted of a two story brick dwelling house, kitchen and out-houses. He alleges that J. L. Warner 8f Co., for a year and upwards, have used the adjoining premises, belonging to W. C. C. Claiborne, as an ice house depot, and have accumulated such an enormous quantity and weight of ice thereon, and stored the same in such an unskillful and imprudent manner, that the two story brick dwelling house, kitchen and out-houses belonging to him have been entirely ruined, by the pressure, moisture and other destructive effects of the ice on his buildings; in consequence of which, the lives of himself and family have been greatly endangered, the houses have become useless and require to be demolished, — all from the causes mentioned. He claims from the keepers of the ice house, and their lessor, six thousand dollars damages, to be paid in solido.

J. L. Warner 8† Co. deny that they have caused the plaintiff any damage by their ice house, but call their lessor, Claiborne, in warranty, on the ground that he rented them their premises expressly for an ice house. Claiborne denies that he caused the plaintiff any damage, or that he is liable to be called in warranty by his lessees. The cause was continued as to him. The plaintiff obtained judgment against J. L. Warner Co. for two thousand one hundred dollars damages, and they have appealed.

There was much testimony on both sides; and the district judge, to satisfy himself in the conflict, minutely inspected the premises; and we would readily yield to his opinion on a question of fact and damages, but that we think he set out with a radically erroneous principle. He considered that the plaintiff had acquired, by law, as well as by the terms of his title, all the rights and claims of his vendor that, as applied to the case, had grown out of the property. In the application of this principle, he allows the plaintiff all the damages caused by the defendants to the premises while they belonged to Mrs. Springer, and indeed to preceding vendors; for she purchased from Thompson Cregg, in December, 1847, and Stephen Herriman owned the property in 1846; all after the erection of the ice house.

We are not aware of the provision of law to which the district court referred. It is true, that the purchaser of property is presumed to purchase all actions appurtenant to the property, and necessary to its perfect enjoyment; but as to damages actually suffered before the purchase, we know of no other principles governing the case than those referrable to this general provision of the code, that “every act of man that causes damage to another obliges him by whose fault it happened to repair it.” It is a mere corollary, that the reparation must be made to him who suffered the injury. And the principle is strikingly illustrated by this case.. The plaintiff, after possessing the property twenty months, claims one-third more damages than .he gave Mrs. Springer for his lot with all the buildings and improvements. This leads to the impression, that the modicity of the price he gave for the premises may, perhaps, be attributed to their dilapidated and dangerous situation, on account of the erection of the ice house and other causes. It is impossible, from the law, to concur with the district court, that these damages, which probably caused the moderate price given for the house and kitchen, should be a source of profit to the purchaser, who had a perfect knowledge of their existence when he purchased.

The damages which occurred while Herriman owned the premises, belong to him; a part belongs to Gregg in like manner; and Mrs. Springer is entitled to what happened while she owned the property. Did she or they transfer their claim to damages to the plaintiff? The claim is an incorporeal right, and strictly personal property. Her bill of sale to the plaintiff is in the usual form for the conveyance of real estate and its appurtenances. It does not transfer her claim for damages, expressly, nor is there any thing in it which indicates a transfer by implication. The rights and appurtenances mentioned in the bill of sale have always been considered real rights. It does not appear, therefore, either by law or contract, that the plaintiff has any claim for damages previous to the 16th of May, 1848, when he purchased the property.

The district judgo allowed the damages for the following reasons: that the house was dangerous to live in, the party wall being cracked in many places; and that the condition of the house was evidently occasioned by the superincumbent wall of the defendants, as proved by the witnesses. Now, this superincumbent wall, of from ten to sixteen feet in height, is an old wall, placed on the original party wall eight or ten years ago, as appears by the testimony of the surveyor, D'Hemecourt, that is, long before the plaintiff purchased the property. The judge further expresses the opinion, from personal inspection, that the pressure of the wall is much increased by an undue proportion of the weight of the roof of the defendants’ building being thrown upon the party wall, in com sequence of all the joists in the building having been removed in order to fit it up for an ice house. The defendants’ premises were thus fitted up for an ice house in 1845, three years before the plaintiff purchased his house; and it is strongly proved that the old walls were badly built of bad materials.

Differing from the district court on the question of law involved in the case, and as it is possible that the plaintiff might, by this difference of opinion, be induced to furnish more explicit testimony as to any damages suffered by him, within the twelve months immediately before the institution of his suit; and not wishing to express any opinion as to the rights of the parties in the re-construction of another party wall, which appears to have had some influence on the opinion of the district judge, we' think there should not be a final judgment against the plaintiff; but one only of non-suit.

The judgment of the district court is reversed; and it is decreed that the plaintiff be non-suited, and pay costs in both courts.


text:
    R. W. Montgomery v. Ship Abby Pratt and Owners.
    A vessel is not liable for damage caused to goods from the “ sweating of the hold’’ when the vessel has been supplied with proper ventilators. But if the injury results from improper stowage, the vessel willbe held liable.
    When goods receipted for in good ordor are found in a damaged condition at the end of the voyage, the vessel is presumed to be liable until the injury is shown to have been caused by the act of God, inevitable accident, or public enemies.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.
    P. E. Bonford, for plaintiff.

      E. A. Bradford, for defendants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff claims from the defendants $302, being the amount of the alleged damage to 158 boxes tin incurred during a voyage from Liverpool to New Orleans.

The bill of lading states the contents of the boxes, two hundred in number, to be tin plates; and in it the goods are acknowledged as shipped in good order and condition. Upon their receipt in New Orleans, .some of the boxes were found to be in bad order. They were examined, at the request of plaintiff, by two persons, one of whom was an inspector for a portion of the New Orleans insurance companies, and the other was a dealer in hardware. They gave a certificate of the result of their inspection, in which they say, “they find the same rusted' and damp, apparently from the sweat and dampness of the ship’s hold.” Upon their examination at the trial, they attributed the injury to the same cause; stating also that. the boxes were mouldy and the nails rusly. It further appears from the evidence, that this sweating of the hold occurs more or less in all vessels, and increases on passing from a cold to a warm climate. It may be partially relieved by ventilation. The Abby Pratt was supplied with ventilators in the most approved form. Goods stowed low are more likely to escape injury from this sweating of the hold, than those stored near the deck. Tin plates are an article susceptible of damage from this cause.

The district judge gave plaintiff a judgment for the amount claimed, and the defendants have appealed.

The general doctrine as to the liability of the master and shipowner is well settled. The cargo must be taken on board with care and skill, and be properly stowed. All possible care must be taken of it by the master during the voyage;' and he is responsible for any injury which might have been prevented by human foresight and prudence, and competent naval skill, he being chargeable with the most exact diligence. When goods receipted for in good order are found to be damaged at the end of the voyage, the burden of prcof is on the captain and shipowner to show that the loss was occasioned by the act of God (inevitable accident, as some express it) or public enemies.

The general doctrine is not disputed by the defendants; but they contend, that the sweating of the ship’s hold is a peril to which all goods transported in ships are exposed, and which must be included among the perils of the sea. It cannot, say they, be entirely guarded against; and the testimony shows that every usual and proper means of ventilation were adopted on board the vessel. They also rely upon the testimony of the mate, that the cargo was well stowed.

A difficulty which interposes itself to our reversing the judgment, on the grounds suggested, is this : It is in evidence, that goods which are stowed near the deck are more exposed to the effects of the sweating of the hold, than those which are stowed low. And as the goods in question were, from their nature, particularly susceptible of injury from that cause, it would be imprudent stowage to put them near the deck. Now, as a part of this lot of tin plates, which was receipted for in good order, arrived in a damaged condition, and another lot of tin plates, brought by the same vessel on the same voyage to another consignee, arrived .uninjured, the only reasonable mode, under the evidence, of accounting for the damage to a portion of the plaintiff’s lot, is by supposing it to have been stowed in a position where it was more exposed to the deleterious influence. But if it was so stowed, it was a fault on the part of the carrier, who was informed what the boxes contained; and he must bear the resulting loss. This was the view of the evidence taken by the district judge. He observes: “I infer from the testimony, that tin and other goods liable to be injured by dampness or water, will almost to a certainty be injured, if they constitute the top part of the cargo. There was nothing between the tin on board the Abby Pratt and her deck. The upper tier of this tin was, therefore, exposed to probable if not certain injury.”

Judgment affirmed, with costs.


author: Slidell, J.

text:
    F. H. Petitpain v. A. Redeau et al.
    The obligation of a bankrupt prior to his discharge cannot be offered in compensation of a debt contracted to him since his discharge.
    APPEAL from the Second District Court of New Orleans, Lea, J.
    The judgment of the district court was as follows: “This is a suit on a promissory note duly protested. A. Rideau, the drawer, pleads a stay of proceedings from the Fourth District Court. The endorsers,- J. M. Rideau and David, plead want of notice of protest. The notices appear to be regular. In this case and on the trial, the defendant David asked leave to file a plea in compensation, and filed in support of it a note endorsed by plaintiff, which was protested in April, 1839. Plaintiff filed his certificate of discharge in bankruptcy, dated March 2d, 1843. It is clear, that the obligations of a bankrupt prior to his discharge cannot be allowed to offset claims contracted since his discharge.”
    J. L. Tissot, for plaintiff.

      J. C. David, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

For the the reasons assigned by the district judge, the judgment is affirmed, with costs.


text:
    Henry C. Young et al. v. Eunice Carl et al.
    In tlie absence of evidence to show the value of the fruits of property belonging to minors, the tutrix who has acted in good faith is liable only for legal interest on the appraised value of the productive property; and where the tutrix possessed in good faith, as her own, property which in reality belonged to the minors, she is liable for interest only from judicial demand.
    A disposition of more than the disposable portion is not null, hut only reducible upon the action of the heirs to the disposable portion.
    Where minors, after becoming of age, purchased property for less than its appraised value, on a judgment obtained against their mother as tutrix,* brought an action, alleging the nullity of the said judgment and claiming a new settlement, they will be compelled, so far as third persons are concerned, to account for the property, so purchased and retained by them, at the appraised value, and not at the price given by them.
    APPEAL from the District Court of East Baton Rouge, Burk, J.

      A. M. Dunn, for plaintiffs.

      George S. Lacey and J. M. Elam, for defendants.
   The judgment of the court was pronounced by

Rost, J.

In 1820, the defendant, Eunice Carl, was married to Benjamin Hook. In 1822, Hook died, leaving a will, by which he bequeathed his entire estate to his wife, with the reservation, that if he should have a son or daughter after his death, as he expected, his property should be equally divided between his wife and his posthumous offspring. A short time after the death of the testator, his son, Benjamin Hook, Jr., was born. In 1824, Eunice Carl contracted with Joseph Young the marriage from which the plaintiffs are the issue. In 1833, Benjamin Hook, Jr., died. On the following year, Joseph Young also departed this life, and Eunice Carl was confirmed as natural tutrix of the plaintiffs. Proceedings were then had, under which, property, supposed to belong to the community between Young and his wife, was adjudged to her at the price of the appraisement in the inventory of his estate; and to secure the share of the minors, she gave a special mortgage on a tract of land known as the McMaster tract, subsequently sold by her, and now in the possession of her co-defendants, Carl and Stephens.

In April, 1850, the plaintiffs, now having capacity to stand in judgment, instituted an action against their mother, in which they prayed that the adjudication of the community property made to her be declared null and void, on account of informalities in the family meeting; that she be decreed to pay them the sum of $9200, on account of the sale by her of the undivided half of the McMaster tract of land, belonging to them, and of interest on said price at the rate of eight per cent per annum since it became due; and also, other sums received by her, as tutrix, from the successions of their grand-father and of their grand-mother; that a final settlement of the community may take place, and that the defendant he compelled to return to them the property of the succession yet unsold; and to account to them for their share of the revenues of that property, and for the price of such property of the succession as she may have sold. They finally prayed that their legal mortgage may be recognized from the day of her confirmation as tutrix, and that her property be sold under it, to satisfy their judgment. To the petition is annexed a detailed account of the plaintiffs’ claims.

The defendant, Eunice Carl, admitted all the facts alleged; and only claimed, in part compensation of the plaintiffs’ account, a small amount of debts of tho succession paid by her, and the sum of seventy-five dollars a year for the support, education and maintenance of each of the plaintiffs, during their minority.

The plaintiffs admitted that account, and a judgment was entered in conformity with the prayer of their petition; by which the defendant was adjudged to pay them for their share of the McMaster tract of land, and for the revenues of their property, the sum of $18,571 90, with legal interest until paid. They were further adjudged to have a legal mortgage for this sum from and after the year 1834, under art. 3282, C. C.

The plaintiffs, in their petition, had averred their readiness to ratify the sale of the McMaster tract of land and to quiet the title of the purchasers; provided their mother was made to account to them for the price, and interest thereon at the rate of eight per cent per annum.

On the very day the judgment was rendered in their favor, and, as we must believe, in execution of their promise, they went before the recorder of their parish, and executed a release of the legal mortgage existing in their favor on that tract of land, in the name of their mother and tutrix, under art. 3282 of the Code.

Under the judgment in that case, property found in the possession of the defendant, Eunice Carl, was sold, and purchased by the plaintiffs at two-thirds of its appraised value; leaving a balance of over $7000 still due them.

As soon as the execution had been returned, the plaintiffs, being in possession of the property thus purchased, instituted the present action; in which they allege that the judgment rendered in their favor is greatly injurious to them, and should be increased so as to include all the property belonging to them, and the fruits it has produced; that through ignorance of their legal rights, they did not claim from their mother in that suit three-fourths of the succession of Benjamin HooTc, Jr., to which they are entitled; that nearly all the property purchased by them in satisfaction of the judgment belonged to that succession; that the possession of their mother during their minority was theirs, and she is bound to account to them for the rents and revenues thereof, the property itself being already in their possession; that the bequest of one-half of his properly by Benjamin Hook, Sr., to her is excessive, and should be reduced to one-fifth.

They further allege, that their mother has failed to pay them for their share of the McMaster tract of land, and that they are entitled to recover it in kind from Carl and Stephens. They also aver, that they raised their legal mortgage on the other half of said land, through error and in ignorance of their legal rights, claims and demands against their mother. They set up several grounds of nullity against said release, and ask that it be avoided, and their legal mortgage reinstated. Finally, they claim $50,000 damages, for revenues of the properly of Benjamin Hook, and the value of such portion of said property as may have been sold.

The defendant, Eunice Carl, pleaded the general issue, and averred, that after the death of Benjamin Hook, Jr., she considered herself his only heir, and in consequence of that belief, made no inventory of his property, and kept no account of the revenues it produced or of the expenses incurred on account of it. She prayed that her legal rights be preserved to her; and averred, that during her marriage with Joseph Young, he had the sole administration of her property, and that she is not liable for revenues during that time. She also prayed to be allowed a reasonable sum for the support, education and maintenance of Benjamin Hook, Jr., and of the plaintiffs.

The other defendants specially denied all indebtedness from Eunice Carl to the plaintiffs, and the right of the said plaintiffs to the property claimed, and its fruits. They further alleged, that by claiming from their mother the price of the McMaster tract of land, and taking a judgment for that price, they had ratified the sale; and also, that their release of the legal mortgage existing in their favor on the other half is valid and binding upon them.

There was judgment in favor of the plaintiff's against their mother for the property claimed, and the sum of $20,000; and against the other defendants, for one undivided half of the McMaster tract of land. The release of the legal mortgage on the other half was set aside and avoided, and the property subjected to that mortgage under the judgment. Carl and Stephens have alone appealed.

The tutrix not having appealed, the judgment, so far as it affects her, erroneous as it evidently is, must remain undisturbed; our first inquiry will be, whether the alleged indebtedness of the tutrix has been proved against the appellants.

The plaintiffs have adduced evidence to prove the income which the property of Hook’s and Young’s successions should have produced, if it had been properly administered; and they claim that the account of the revenues be settled on that basis. In the case of the Succession of Ouillemain, 2d Ann. 638, we held, that the failure of the tutor to take proper steps to render the property of his ward productive, subjected him to damages at least equal to the interest of the amount due them; and it may be conceded, that in aggravated cases of maladministration and bad faith, the damages claimed might properly be allowed. But we do not think this a case of that kind. By the former laws of the country, and until 1825, the surviving parents inherited the entire succession of their children. This rule of property was known, and we have no doubt that when Benjamin Hook, Jr., died, in 1833, the defendant was not aware that it had been changed by the New Code, and believed herself in good faith his only heir. Her ignorance of the law does not, of course, dispense her from accounting to the plaintiffs. But it may, with propriety, be invoked by bond fide third persons, in mitigation of the damages she has to pay. We are of opinion, that in the absence of evidence to show the value of the fruits received by her, legal interest only should be charged on the appraised value of the share of the plaintiffs in the productive property of those successions.

It may well be doubted, whether an action against Eunice Carl, personally, for a reduction of the bequest made to her, to the disposable portion, can be cumulated with an action brought against her to account as tutrix. But conceding it may, there can be no doubt, that until that action was commenced, she possessed in good faith, under the will, one half of the property left by her husband at his demise. The disposition in her favor was not null, but only reducible to the disposable portion; and whether it was reduced or not, depended upon the future action of her children. Being in possession under a just title and in good faith, the fruits of the property during the continuance of that possession cannot be recovered from her. The question of good faith in this case is analogous to 1 that presented in cases of lesion beyond moiety; and it is well settled in such cases, that the purchaser is considered in good faith, and owes no fruits on the supplement of the price, before the judicial demand. Troplong, de la Vente, 839, 841.

In stating the account of revenues, the tutrix must be credited with one-half of the revenues of the estate of Hook, under the will, and with one-fourth of the other half, as heir of Benjamin Hook, Jr. The plaintiffs’ claim is limited to three-eighths of the revenue of that property.

The plaintiffs have no claim against their mother for fruits, from the time of the marriage of their father with her, in 1824, until his death, in 1834. Benjamin Hook, Jr., died in 1832, while the father and mother of the plaintiff's were both living; and. the revenues of the property which they inherited from him belonged to their parents as long as the marriage continued. Before the death of Benjamin Hook, Jr., Young had the sole administration of the property, after 1824, believing it to be the paraphernal property of his wife, and used the revenues in his own affairs. If the defendant is responsible for the share of those revenues belonging to the minors, she has her recourse against his succession for the amount due; and as the plaintiff's have accepted that succession, they are estopped, by their warranty, from claiming them in this suit.

The plaintiffs claim the value of ten slaves, alleged to have been sold by the defendant, and forming part of the succession of Hook. There is no evidence in the record of the value of those slaves, nor of the time at which they were sold. If they were alienated after the sale of the McMaster tract of land took place, they must be subjected to the legal mortgage of the plaintiffs, before the McMaster tract can be reached. The defendants are entitled to the benefit of the doubt resulting from the insufficiency of evidence, which it was incumbent upon the plaintiffs to produce. So far, therefore, as they are concerned, we will make no allowance for the price of those slaves.

As it results, from the accounts between the parties, that the plaintiffs have received the sum of $9200, which they agreed to take for their share of the McMaster tract of land, the condition upon which they agreed to ratify the sale, if there was such an agreement, has happened; and it becomes unnecessary to inquire into the existence of the legal mortgage claimed by them on the other half. The sum agreed upon will therefore be charged to the defendant.

The defendant is entitled to be credited with the sum of $1375, for the support and maintenance of young Hook, and to the sum of $6000, for the support, education and maintenance of the plaintiffs; also, to the sum of $1000, for improvements put by the community upon the property of Hook, and $1500 for raising young negroes. Her interest in the property sold at sheriff’s sale, under the plaintiffs’ execution in the former suit, was appraised at $11,172 50. That property was adjudged to the plaintiff's at two-thirds of that appraisement; and, although they disregard the judgment in that suit, on the ground that it was founded in error, they retain the property acquired under it. They may do so, if their mother consents; but so far as third persons are concerned, the sale, as well as the judgment, must be disregarded, and the property retained by the plaintiffs in part payment of their claim must be appraised at its full value. The amount of the appraisement made before the judicial sale must, therefore, be credited to the defendant. The defendant is further entitled to a credit of ten per cent on the revenues, for her commissions as tutrix; and interest must be allowed on all sums paid by or due to her, from the time they were paid or became due.

By an account made in conformity with, this opinion, and filed in the record for reference, it appears that the plaintiffs have been overpaid the sum of $2144 48. They have, therefore, no claim against Carl and ¡¡Stephens, and the judgment against them must be reversed.

It is therefore ordered, that the judgment, so far as it adjudges one undivided half of the McMaster tract of land to the plaintiffs, and recognizes the existence of their legal mortgage on the other undivided half of said tract, be reversed. It is further ordered, that the defendants, Carl and Stephens, be for ever quieted in their possession and title of, and to said tract of land, against all claims and pretensions of the plaintiffs; and that the legal mortgage, which heretofore affected the other half of that tract of land, in the name of Eunice Carl, as tutrix of the plaintiffs, under art. 3282, C. 0., be cancelled, and entered as released in the record of mortgages. It is further ordered, that the plaintiffs pay costs in both courts.


author: Eustis. C. J.

text:
    Thomas Byrne v. Heirs of Moses Horne.
    A stockholder of an insolvent corporation obtained a judgment for a certain sum due to him as a creditor of the corporation, against the other stockholders, subject to a deduction of the amount of pro rata contribution, which the suing creditor might himself bo called on to pay. All the stockholders but one appealed; and the judgment was reversed as to them. An attempt was made to collect the amount of the heirs of the stockholder who had not appealed, he having died in the mean time. Held: that the action could not be maintained, as the judgment itself required a liquidation of the affairs of the corporation, and the amount to be contributed by each stockholder to be ascertained, before it could be executed. .
    APPEAL from the District Court of West Feliciana.
    Z7. B. Phillips, for the plaintiff, contended:
    The defence set up may be classed under three heads: I. The errors committed by the plaintiffs in a former suit, and the judge who rendered the judgment. The one in asking for, and the other in rendering a judgment that was contrary to law and the evidence. 2. That the judgment has been reversed by the Supreme Court. 3. That the action is barred by the prescription of three years.
    The defence, in fact, assumes the form of an action of nullity set up by way of a plea in reconvention. The Supreme Court has recognized such a mode of proceeding in the case of Paxton v. Cobb, 2 L. R. 139. 3d Ann. 328. They are, in fact, compelled to adopt this position or to treat the judgment as an absolute nullity on its face. The latter position will scarcely be seriously relied on, when Millaudon, Dick and others, found it necessary to obtain its reversal by the Supreme Court, in order to arrest its execution; and after the same court has distinctly recognized plaintiff’s right of action, in its decree reported in 4th Ann. 187.
    That the defence must be thus received or be virtually abandoned, is at once apparent. For the only modes known to our laws, by which a definitive judgment may be revised, set aside or reversed, are those pointed out in art. 556 of the Code of Practice. Of those, but one, “ the action of nullity,” is available for the defendants in this action.
    Viewing the defence set up as an action to annul the judgment by way of a plea in reconvention, a tangible position is assumed, and the law applicable to it is readily referred to. The causes for which the nullity of a judgment may be demanded are two-fold: those relating to the form of proceeding, and those appertaining to the merits of the question. C. P. 605. No cause of nullity, resulting from any vice or form, has been set up. All the causes assigned relate to the merits of the question.

      What are the causes, appertaining to the merits of the question tried, for which the nullity of a definitive judgment may be demanded? The answer to this is found in art. 607, C. P. “A definitive judgment may be annulled in all cases where it appears that it has been obtained through fraud or other ill practices, on the part of the party in whose favor it was rendered.” See 5 M. R. 623; 1 R. R. 523; and 3d Ann. 646. In these cases this rule is fully recognized ; and there must be no laches or negligence on the part of the party asking for relief.
    By a careful examination of the grounds of nullity set up, it will be seen that no fraud or ill practice is charged against any person; the matters complained of were errors of the judge a quo, in not deciding according to law and the evidence ; all of them defences of which the parties might have availed themselves before the judgment was rendered, or which might have been remedied by an appeal. They furnish no grounds, however, to sustain an action of nullity.
    Having shown that no legal ground for annulling the judgment exists, it remains to be seen whether it has ever been reversed (ns to these defendants) by the Supreme Court. Millaudon, Dick, Augustine Le Blanc and Z. Porche, appealed; and the judgment, now sought to be enforced, was reversed and .remanded for further proceedings. 17 L. R. 397. 1 R. R. 394.
    The defendants contend, and so the court below decided, that this decree inured to the benefit of all against whom the judgment was rendered, whether they were parties to the appeal or not; as an insurmountable difficulty would otherwise be presented, because the court decided, that the action in the suit of Reynolds, Byrne Co. v. The Feliciana Steamboat Company was joint, and that all the defendants must be before if, before any valid decree could be rendered. Whereas, should this judgment be held valid and be enforced against those who did not appeal, it would then be impossible for Reynolds, Byrne Sf Co., or those who, by payment, might be subrogated to their rights, to get all the parties before the court a quo, and to proceed in conformity with the directions of the appellate court.
    These anticipated difficulties, even if they existed to the full extent supposed, would furnish no ground for disregarding and nullifying a cardinal principle of the jurisprudence of this State and of all civilized nations. The provisions of art. 2082 of the Civil Code are applicable to this case; and shows that the payment of the debt, by one or. more of those against whom the judgment stands good, would be no obstacle to keeping them in court until its final termination..
    In 6 L. R. 227, Judge Martin, in overruling a motion for a re-hearing, said: “ We have been requested to grant, a re-hearing, because the judgment of the lower court is reversed absolutely, while it ought to have been so as to the appellant; all the parties against whom it was given'not having appealed; and because, in remanding the case for further proceedings, we have not instructed the judge not to suffer the payments authorized by the homologation to be contested. It is so clear a point that a party against whom judgment is given, cannot avail himself, when he does not appeal, of its reversal on the appeal of a party joined with him below, that it is absolutely unnecessary to qualify the reversal of the judgment.”
    In relation to the first point made by the curator ad hoc, that the transfer from Reynolds, Byrne Co. to the present plaintiff, was not established : the evidence on this, before referred to, is deemed full and conclusive, and is all that was required under the general issue plead by defendants.

      J. Hunter Collins, and Ratliff and Cowgill, for the defendants, contended:
    In 1830, Reynolds, Byrne Co. instituted suit, against the stockholders of the Feliciana Steamboat Company, for a liquidation and settlement of the affairs of the company, and for a judgment for the sum of $7,934 34, with ten per cent interest from the 1st of May, 1828.
    On the 18th of December, 1839, defaults having been previously taken, a final judgment was rendered against Simon Porche, James C. Sinton, James Dick, Laurent Millaudon, Moses Horn et als., in solido, for the amount of plaintiffs’ demand, subject to a credit for the amount of stock owned by said plaintiffs, in proportion of seventy shares to three hundred and twenty-six shares, that being the whole number of shares. From this judgment Dick, Millaudon, LeBlanc and Porche appealed. The judgment of the lower court was reversed, and the case remanded for further proceedings according to law. Reynolds, Byrne fyCo. v. Feliciana Steamboat Company, 17 L. R. 397,

      In 1842, Moses Horn died in Tennessee, where he then resided, and, by his will, constituted B. W. Cotton, Mary C. Cotton and Emily Hickson his residuary legatees. On the 30th March, 1848, Reynolds, Byrne Sf Co. took a rule on these parties to show cause why execution should not issue against each, for one-third the amount of said judgment thus obtained against the testator. Being all absent, a curator ad hoc was appointed by the court to represent them.
    The legatees had received from the executor of Horn’s estate their share of the effects of the succession, which was settled under a decree of the Probate Court of West Feliciana, in June, 1844. An attempt was made to attach a note of theirs in the hands of their attorney, but the sheriff did not obtain possession of the note, and there was no process of garnishment. From a judgment discharging the rule, the plaintiffs appealed. The judgment of the lower court was affirmed. Reynolds v. Horn, 4th Ann. 187.
    Shortly after this judgment had been affirmed by the Supreme Court, Thomas Byrne, the present plaintiff, claiming to be owner of the judgment in the case of Reynolds, Byrne Sf Co. v. The Feliciana Steamboat Company, instituted a suit in every respect similar to the present one. The curator ad hoc appointed by the court to represent the absent defendants, appeared and filed a notice to dissolve the attachment which had been obtained. Previous to this motion being acted upon, the plaintiff took a non-suit, and, on the same day, instituted the present action.
    The whole of the proceedings in the case of Reynolds, Byrne Sf Co. v. The Feliciana Steamboat Company, are in evidence. The object of that suit, the court will perceive, by reference either to the transcript on file or to the reported case in the 17th L. R. 397, was a liquidation and settlement of the partnership affairs, the plaintiffs being stockholders and creditors of the company.
    In addition to the reasons assigned by the court in their decision reversing the judgment of the lower court, and remanding the case for further proceedings according to law, and which, in the opinion of the appellees, are sufficient to support the point that the judgment is a nullity, they will offer a few others, which have suggested themselves in the investigation of tins case, in arguing other points under this head.
    The parties in that case, both plaintiffs and defendants, must be viewed as joint obligors. Article 2080 of the Civil Code says: “In every suit on a joint contract, all the obligors must be made defendants, and no judgment can be obtained against any, unless it be proved that all joined in the obligation, or are, by law, presumed to have done so." The next article requires the judgment to be rendered against each defendant separately for his proportion of the debt; and the next article requires that even if one of the joint obligors has paid his part of the debt he shall be made a party defendant.
    Have the provisions contained in these articles of the code been complied with in this instance ? Most clearly they have not. As the case now stands (for it is still pending) it presents the parties in a four-fold aspect: 1st. There are stockholders that never have been made parties, or, if they have, no citation has ever issued. 2d. There are parties who have been cited, against whom the case is still pending. 3d. There is a judgment against Reynolds, Byrne Sf Co., by making allowance for what they owed themselves, as stockholders, in proportion to the number of shares held by them; and, 4th, a judgment in solido against Moses Horn et als.

    It was the difficulty, or rather impossibility, of reconciling these opposite positions of the parlies, and of carrying into effect the judgment rendered on the appeal of Hick and Millaudon, in the further prosecution of the case, that led the judge a quo, in the present case, to think that the reversal in favor of Hick and Millaudon inured to the benefit of all the parties, and that Reynolds, Byrne Sf Co.’s remedy against the present defendants, was to make them parties to the suit as representatives of Horn.

    When the judgment in that case is compared with the pleadings, and with the facts as exhibited by the record, we are forced to believe that the judgment is an absolute nullity. If, however, the nullity should be only relative, the parties have clearly the right to plead it in bar whenever the judgment is sought to be enforced. In Paxton v. Cobb, 2 L. R. 137, the following language is used by the court: “The Code of Practice does not speak of the nullity of judgments being offered as an exception, and directs that suit shall be brought to set them 51,side; but we believe it is a general rule in jurisprudence, that wherever a man may sue, he can except, where the matter which might have been annulled in an action is presented as the basis of his demand against him. The proposition seems as true in law as in morals, that what you have a right to attack and destroy, you may resist when it is used as a means of injuring you.” This principle is also affirmed in Delahoussaye v. Dum 'artrait, 16 L. R. 91. Marshall v. The Grand Gulf Railroad and Banking Company, 12 R. R. 202. The two latter cases are applicable to the prescriptions plead by the plaintiff.
    The counsel for the appellant has laid a good deal of stress on the language used by the court in their decision upon the rule taken by Reynolds, Byrne Co. against the present defendants; and he assumes that because the court say “that the plaintiffs have their rights of action,” it is tantamount to a judgment in their favor. We do not think that the language used by the court warrants such a conclusion: at the same time we do not pretend to deny that the plaintiff has no right of action; but we are clearly of opinion that he has mistaken his remedy in the present case. Let him prosecute the suit of Reynolds, Byrne <5* Co. v. The Feliciana Steamboat Company, to a final termination, and if he has the good fortune to get all the parties into court, and a judgment against them, he will then have a decree that can be enforced. This is equity, if it is not law. By such a construction, the plaintiff is in no worse situation than he was before; he suffers no damage. Whatever delays may have arisen (and we believe there have been none) have been caused by his own fault. On the other hand, it would be an act of manifest injustice to make these parties pay a debt to Reynolds, Byrne Co., who are, injustice and law, bound to a greater extent for its payment than these parties. United States Digest, vol. 2, Supplement, p.224, Case 143. Rangleyv. Webster, 11 New Hampshire, 299. Ironsdale v. Donnell, 4 Humphrey, 273.
   The judgment of the court was pronounced by

Eustis. C. J.

This is an action on a judgment rendered against Moses Horn, on the 3d of January, 1840. The plaintiffs in the original suit were Reynolds, Byrne Co.; the present plaintiff sues as their assignee, and the defendants are sought to be charged with the debt as the sole heirs and universal legatees of Horn, they having accepted his succession. There was judgment for the defendants, as in case of non-suit, in the district court, and the plaintiff has appealed.

The case was once before this court, and is reported in 4th Ann. 187. The plaintiff had proceeded agaiust the appellants in a summary manner by rule to show cause why execution should not issue against them on the judgment against their testator; but the court considered this mode of proceeding inadmissible, and affirmed the decision of the district court, discharging the rule and directing the party to proceed, if he willed, by ordinary action against the defendants.

The judgment on which the suit is brought is against Moses Horn and others in solido; it decrees that the plaintiffs recover from the said defendants, the sum of eleven thousand nine hundred and thirty-four dollars ninety-four cents, with interest on the same at ten por cent per annum, from the 1st May, 1828, till paid; subject to a credit for the amount of seventy shares — seven thousand 'dollars — owned by the plaintiffs as stockholders in the steamboat, according to the proportion which that number of shares bears to the whole amount of shares of said stock in said boat, being three hundred and twenty-six shares, on a pro rata of losses, to be struck between all the parties; and that said defendants pay costs of suit.

It will be perceived from the judgment itself that it was rendered in favor of creditor stockholders of a corporation, whose charter had terminated, against other stockholders. The case is reported in 17 L. R. 406. The Supreme Court reversed the judgment in favor of the appellants, who were a portion only of the stockholders defendant; but Horn and some others not having appealed, it became a question, how far their responsibility on the judgment was affected by the decision of the Supreme Court.

We consider it quite useless to examine this and other matters presented in argument. The judgment speaks for itself; it is not final; it requires something to be done before it is complete; it requires the losses to be adjusted and the concern settled, and the amount to be contributed by each stockholder to be ascertained. It is clear that no action can be maintained upon it, as it stands against Horn's representatives.

The judgment of the district court is therefore affirmed, with costs.


text:
    The State v. Celestin Leonard et al.
    Whore several persons are indicted with the principal offender, as his aiders and abettors, whether there shall be a severance in their trial, with the view of using the testimony of those that may he acquitted, either for the State or the prisoner, is a matter resting in the discretion of the court. When such motions are made, it should appear that there was no evidence against the persons in whose behalf tlie severance was asked.
    A threat made by the deceased within a month before the homicide was committed upon him, and which threat is not shown to have been communicated to the accused, or to have been followed up by any act denoting an intention to execute said threat, will not be sufficient ■ o reduce the killing from murder to manslaughter.
    APPEAL from the First District Court of New Orleans, Larue, J.

      Isaac Johnson, Attorney General, for the State, contended :

      Celestin. Leonard was indicted, in the First District Court of New Orleans, of the crime of murder, and convicted, without capital punishment. Three others were indicted with him, as aiders and abettors, but were acquitted. Leonard has appealed, and relies on two grounds for a reversal of the judgment against him, and for a new trial.
    The first ground is to the ruling of the court, refusing to permit one Secretan to be sworn as a witness for the defence, to prove expressions of malice by the accused towards the defendant.
    The testimony was irrelevant. It appears from the bill of exceptions, that the expressions of malice sought to be proved were made in the parish prison a month previous to the homicide; and that the killing took place on the 26th of August, 1850; and that on that day the accused sought, pursued and killed the deceased. The evidence, therefore, if admitted, could have no tendency to reduce the offence to manslaughter, nor to show an excusable homicide.
    The rule is, that words of menace of bodily harm do not constitute a sufficient provocation to reduce a homicide from murder to manslaughter, unless such words are, at least, accompanied by some act denoting an immediate intention of following them up by an actual assault. 1 Russel, 580. 1 East. P. C. c. 5, § 29, p. 233. Wharton, 226. 4 Iridell, 409. In all cases, to reduce a homicide, upon provocation, to manslaughter, it is essentia] that the beating or wounding appear to have been inflicted immediately upon the provocation being given. Arch. 325. Foster, 296.
    And this is strictly in consonance with right reason, and general principles. "Voluntary manslaughter occurs when upon a sudden quarrel two persons fight and one of them kills the other, or when a man greatly provokes another by sonje personal violence, and the other immediately kills him. Lord Morely's case, in 1 Hale, 456, is not law, except, perhaps, as explained by Russel; and the defendant can take nothing by this plea.
    2d. Defendant’s counsel demanded a severance, on the trial of the case, and requested the judge to allow the jury to consider the case of the three persons indicted as aiders and abettors, to make witnesses of them, in the,event of their acquittal, in behalf of Leonard, which was refused. The judge was right. It was a matter of discretion with the court to grant or refuse the request, and not a right, demandable by the defendant. Roscoe’s Criminal Evidence, 142. “It has been adjudged, that such of the defendants, in an information against whom no evidence has been given, may b'e witnesses for the others. The pi’actice in this case is, to appiy to the court to permit the issue as to the intended witnesses to go immediately before the jury.” Is even this imperative on the court in such a case? Phillips, vol. 1, quoted by defendant’s counsel, at p. 67, says, “if there is no evidence against one of the defendants, he is entitled to a separate verdict of acquittal, and may then be called as witness for the others.” At page 30, however, the same author says: “When there is either no evidence whatever, or very slight evidence against one of them, the court, in the exercise of its discretion, sometimes will direct a verdict to be given for him, and if acquitted admit him as a witness for the others.
    In the case of the United States v. Gribert et al., reported in 2d Sumner, it was decided, that, in a legal point of view, the reason assigned for a separate trial, which was to make witnesses of the acquitted defendants for the others, was inadequate to justify the court in the exercise of such a discretion. — p. 66, 67. Judge Story further declares: “ that he has never known a case in which the sole ground for a separate trial has been to make the witnesses competent for each other.” Upon full consideration, the same doctrine is held in 12 Wheaton’s R. 480. See also Wharton, 666, 667, and the authorities there referred to.
    The motion for a separate verdict is not upon the ground that there was no evidence against the parties sought to be made witnesses of; and a case of error could, only on that hypothesis, if it even then could, be macle out against the judge for refusing the severance. The feet that the motion for a separate verdict was predicated on the ground of no evidence, must appear from the bill of exceptions as approved by the judge, and cannot result inferentially from the verdict of acquittal by the jury; otherwise, there would be no sense in the doctrine sanctioning the practice of permitting a separate verdict in cases where there was no evidence against some, in order, if acquitted, that they might become witnesses for the others.

      C. Dufour, for the appellant, contended:

      Celestin Leonard and three others, defendants, were indicted for murder. Leonard was found guilty, without capital punishment, and all the others were acquitted.
    The errors assigned for this appeal are embodied in two bills of exception. 1st. After the evidence of the State was closed, the counsel for the prisoners moved that the issue against all the defendants, except Leonard, be sent up immediately to the jury, in order that they might be heard as witnesses for Leonard, in case of acquittal.
    This was denied by the court, and a bill of exception taken. This decision was against universal practice, and is destructive of the enlightened tenderness of the law. See 1 Phillip’s Evidence, 62. Roscoe’s Criminal Evidence, 118. McNally’s Evidence, 56. 1 Chitty’s Criminal Law, 627.
    The doctrine in Chitty reads as follows, viz: “ When several defendants are indicted together, one of them cannot regularly become a witness for the others; but if no evidence whatever be given against him, he is entitled to his discharge as soon as the case of the prosecution is closed; and may then be examined on behalf of the other defendants.” The case cited in McNally is a leading one on the subject.
    2d. The counsel for the defendants offered a witness named Secretan, to prove that the deceased had told him a very short time previous, whilst both the deceased and witness were in jail, that as soon as he would be free he would kill Celestin Leonard. This evidence the court would not allow to be exhibited to the juiy, and a bill of exceptions was taken.
    • It is always improper and against the humane policy the of law, in a case of life and liberty, to shut out evidence which may attenuate the charge. The effect of evidence, in criminal matters, is with the jury, and should not be anticipated by the court; and still less can the court exclude evidence because it is assumed it will have no effect.
    In the present case, it was confidently expected by counsel, that the testimony of Secretan, showing words of menace of bodily harm, would have made the offence manslaughter only. The doctrine is, that words of menace of bodily harm are a sufficient provocation to reduce the offence of killing to manslaughter. See 1 Russel on Crimes, 701. Lord Moreley’s case, 1 Hale, 456.

      A man may certainly run mad from fear; and such a case may exhibit the frenzy, the furor brevis, which renders man deaf to the voice of reason, and makes him a fit subject for the indulgence shown by the law to human frailty.
   The judgment of the court was pronounced by

Preston, J.

The defendant having been indicted and convicted of the crime of murder, and sentenced to the penitentiary for life, has appealed. Three other individuals were charged in the same indictment, as his aiders and abettors. After the evidence for the State was closed, the defendant’s counsel moved the court, that the case of these individuals should be first submitted to the jury, that in case of their acquittal, he might have the benefit of their testimony in his behalf. The district court overruled the motion, and the prisoner’s counsel took a bill of exceptions and appealed.

It was settled in the case of The King v. Frazer and Ross, that “In criminal prosecutions, where there are several defendants on trial, and it appears, on closing the evidence on the part of the prosecution, that against one or more of them no evidence has been given, the court will, in its discretion, direct an issue to go up to the jury, on the part of the defendant or defendants against whom no evidence had appeared; and on verdict of not guilty being recorded, will suffer such defendant or defendants so acquitted, to give evidence on the part of the prisoner or prisoners remaining at the bar on trial.” 1 McNally, 56.

But it seems to be equally well settled, that if there be any testimony against all the persons accused, a separate verdict will not be allowed; but the jury should pass upon the case, as to all the prisoners together. Whart. Crim. Law, 667. Bul., Nisi Prius, 285. Commonwealth v. Marson, 2 Ashmead, 32.

It is not shown by the bill of exceptions, that there was no testimony in this case against the persons accused as aiders and abettors, and therefore we are unable to say, that the district court did not wisely exercise the discretion confided to it by law. That it was a matter in the discretion of the court, we infer not only from the case cited from McNally, but from the case of The United States v. Marchand, in which the Supreme Court held, that the allowance of a separate trial of persons jointly accused, was not a matter of right, but of sound discretion to be exercised by the court. 12 Wheat. 480. The same principle must apply to separate verdicts.

The defendant offered to prove that within a month previous to the homicide of which he was accused, the deceased had, while in the parish prison, declared to a fellow-prisoner that he would kill the defendant. The object of the evidence was to alleviate his offence into manslaughter or excusable homicide.

Foster informs us, that in eveiy case of homicide upon provocation, how great soever it be, if there is sufficient time for passion to subside and for reason to interpose, such homicide will be murder. — p. 296. The time that intervened between the utterance of the words and the perpetration of the homicide, forbid the idea that the offence might be reduced to manslaughter on account of the menaces. For even if the defendant heard of them, which does not appear by the bill of exceptions, and was excited to such a degree at the moment, as to have alleviated an immediate homicide into manslaughter, yetthere was sufficient time for his passion to cool and reason to resume her sway.

Besides, East, in commenting upon Lord Morley’s case, relied upon by the counsel of the accused, concludes, that “menaces of bodily harm, to be a sufficient provocation to reduce the offence of killing to manslaughter, should at least be accompanied by some act denoting an immediate intention of following them up by an actual assault.” 1 East, 233.

Nothing of the kind is pretended in the bill of exceptions. On the contrary, it is stated that “the accused sought, pursued and killed the deceased.”

We know of no case in which it has been held that menaces without dangerous action will excuse a homicide. Blackstone, on the contrary, informs us, that “ no affront by words or gestures only, is a sufficient provocation, so as to excuse or extenuate such acts of violence as manifestly endanger the life of another.” Vol. 4, p. 200.

The judgment of the district court is therefore affirmed, with costs.