author: Seidell, J. Kino, J. StisELL, J.

text:
    Bertrand v. Arcueil.
    Proof of tlie existence of disease in a slave before the salo, and of his death from that disease -within three weeks after the sale, raises a very strong probability that the disease was incurable at the date of the sale; and very clear and cogent proof should be required from the vendor to overthrow the presumption.
    Art. 2518 C. C. which declares that “the redhibitory vice of one of several things sold together gives rise to to the redhibition of all, if the things were matched, as a pair of horses or a yoke of oxen,” is inapplicable to the case of a family of slaves, consisting of a father and mother, sold as field hands, and their infant child. Per Cm. The right to a total rescisión only arises, when the things sold are so dependant on each other for their usefulness, that the loss or unsoundness of one would render those remaining comparatively valueless, and where their natural dependence and peculiar fitness relatively to each other in a particular service, was the principal motive of the purchase. That the two examples given in art 2518 are mere illustrations of the rule, and that the principle may be extended to other things, is conceded; but the things must be matched, in the sense in which that term is used in the Code.
    the Parish Court of New Orleans, Maurian, J.

      Soulé, for the plaintiff.

      Pilié for the appellant.
   The opinion originally formed by the court in this case was pronounced by

Seidell, J.

In May, 1847, the plaintiff became the purchaser at auction of three slaves, for a total price of $1100, payable at one year. They were described in the advertisement as Harry, a field hand, Hannah, his wife, and their child, Huldah. The advertisement stated—“ tous ces esclaves sont garanties des vices et maladies prévus par la loi, et sont recommandé sous tous les rapports.”

The mother and child became seriously ill two or three days after their delivery to the purchaser, and died within three weeks after the sale. The testimony satisfactorily establishes that the disease of which they died existed in both anterior to the sale; and, although there was some conflict of opinion among the professional persons examined, we think the judge below correctly concluded that it had arrived at an incurable stage in both before the sale, although probably accelerated, in the case of the mother, by a miscarriage occurring after the sale. The existence of the disease before the sale, and the death from that disease within three weeks, raise a very strong probability that it was incurable at the date of the sale. Very clear and cogent proof that it was curable should be adduced by the seller, to overthrow the presumption. See Desdunes v. Miller, 2 N. S. 53. Thompson v. Willburn, I. N. S. 460.

But it is contended that the plaintiff cannot maintain his redhibitory action, because he was aware of the existence of the disease before he accepted the slaves and gave his note for the price. That symptoms of disease were discovered by the physician employed by the plaintiff to examine the slaves is true; but there is no reason to believe that the physician, or the purchaser, were aware of its extent. Had the purchaser known the real condition of the slaves, we must suppose that he would not have made the purchase. We consider him as having believed the symptoms discovered to be temporary and not of a grave character, and as having given his note in good faith, relying not only on the war- ■ ranty implied by the law, but on the express warranty and strong recommendation hold out by the advertisement. See Hepp v. Parker, 8 N. S. 476.

It is argued that the existence of redhibitory disease in two of the slaves did not authorise the rescisión of the entire sale, and that the plaintiff is only entitled to a reduction of the price, according to a reasonable estimate of the several items of the sale made in block.

We have seen that the slaves were described in the advertisement as bearing towards each other the relation of husband and wife, and parent and child, and that they were sold for a total price. The solution of the question depends upon the just interpretation of article 2518 of the Code. That article declares that “the redhibitory vice of one of several things sold together gives rise to the redhibition of all, if the things were matched, as a pair of horses or a yoke of oxen.” In construing this article we must consider its spirit, and are not to limit it to the cases literally enumerated, which are given by way of illustration. The principle announced in it is found in the roman law, Digest, Lib. 21, title 1; the examples there given are the same as stated in our Code. We are there told that if horses are sold as a match, a redhibitory vice in one gives rise to a rescisión of the entire sale; but that, if four unmatched horses are sold at a singló price, the defects of one would not be a cause of a rescisión of the entire sale; that the rule would be the same if slaves be sold together for an entire price, unless they could not be reasonably separated, as, for instance, if they were acompany of tragedians, or miners. The doctrine as explained by the commentators is, that the mere entirety of the price is not decisive; but that the enquiry must be, when the things sold are alike principal objects of the sale, whether they have been sold as making a whole together, and as being such that one would not have been sold without the other, or whether they are independent one of the other. In the former case, the redhibitory vice of one of the things sold involves the right of exercising the redhibitory action for the whole. In the latter, the action can only be maintained with regal'd to the particular thing affected with the vice. See Merlin, Repertoine, verbo Redhibitoire. Pothier, Contrátele Vente, p. 142.

Now it may be true, as argued by the defendant, that the death of the slaves Hannah and Huldah did not affect the value of the slave Harry, with reference to the purposes for which he was bought, to as great an extent as in the case of the slaves forming a company of comedians, cited in the roman law. But the spirit of the rule is applicable. Slaves constituting a family would probably labor more cheerfully and harmoniously together, and, by consequence, would be more useful than those not so related; and besides natural justice and humanity would dictate that they should be sold together. It was in this just and benevolent sense that Voet, in his commentary on the Pandects, says: Unde si duo jumenta sint vendita tanquam paria et unum in ea causa sit ut redhiberi deboat, utrumgue redhiberi potest; idemque in triga atque quadriga vendita jaris est; utiet quoties res plures separará nequeunt sine magno incommode, vel ob rationem jñetatis ; veluti, ne liberi a parentibus, ne contubernio juncti a se invicem separentur ac divellantur. Voet’s Com. Lib. 21, title 1.

The counsel for the defendant has cited the case of Andry v. Fox, 6 Martin, 696, in which judge Martin, after learned argument, held that, although several slaves be bought together and for a single price, the sale will not be rescinded for all, if any number less than the whole have any redhibitory defect. We do not consider our present opinion as conflicting with that decision. It does not appear that the slaves in that case were members of the same family. If such had been the case, it could scarcely have been overlooked by the counsel or the court.

The case of Ledoux v. Armour, which was a sale of a number of Coils of bale rope, certainly cannot be considered as covering the present case.

Filié, for the appellant,

for a rehearing. It is admitted as a general principle that, where one of several things sold together is tainted with a redhibitory defect, the sale should be rescinded for the whole, if it appear that the vendee would not have bought the others without it. llut, in Louisiana, that principle has been narrowed down by ait. 2518 of the Civil Code, to the only case where the things sold together are matched (appareillés). It is true that the examples mentioned in that article are cited by way of illustration, and do, by no means, prevent its being applied to other cases falling within its spirit. But those cases must necessarily relate to things that are matched.

It may be probable, as urged by the court, that slaves constituting a family would labor more cheerfully and harmoniously when together, than separated. But when a part of that family has died, I am at a loss to conceive how the rule can be made to apply to the survivors, who are severed from the others by the will of God.

Another ground relied upon is, that “natural justice and humanity would dictate that slaves so related should be sold together.” I agree to that. But I submit that the direct and inevitable consequence of the rule established in the judgment complained of, would be to render veiy difficult, if not absolutely impossible, a compliance with those dictates of natural justice and humanity. For, no man being possessed of a family of slaves, would be prevailed upon to sell them together, if ho knew that a vice or malady in one of them might expose him to a redhibitory action for the whole. To avoid the application of that rule, he certainly would sell them separately.

The passage quoted from Voét, which is but a repetition of what Ulpian and Paulus had said before on the same subject (Muhlenbruchii Doctrina Pandectarum, vol. 2. p. 579 no. 6593 et seq.), might have been entitled to much weight before the Code of 1825 was adopted. But under the Code of 1825, our position is different. Besides, the spirit of the remarks made by Voet, and before him, by Ulpian and Paulus, does not apply to cases like this. These authors suppose a case where the slaves sold are nearly related to each other, and say' that, ob pietatis rationem, if one of them is to be returned on account of a redhibitory defect the other should also, because they ought not to be separated. Hi non sunt separandi, says Ulpian. And this clearly presupposes that the slaves afflicted with the redhibitory vice, are living. But if they are dead, and the restitution of the price is alone prayed for, it is plain that the ratio pietatis no longer exists, as the separation is one which man has not the power to prevent or remedy.

But admitting the old rule to be still in force, where is the proof that the plaintiff would not have purchased the surviving slave without the others ? [s it not a fact of daily occurrence in this State, that slaves situated as these were, are sold separately ? Was even this connection between the slaves mentioned in the notarial sale passed to the plaintiff? And although the circumstances of this connection may have induced the plaintiff to purchase the slaves in question, was it the motif determinant of the purchase ? unless this is shown, and it certainly was not in this case, the plaintiff cannot recover even under the old rule.

"We conclude, therefore, that the court below did not err, in rescinding the entire sale.

The judgment of the court (concurred in by three judges,) was finally pronounced by

Kino, J.

After much consideration, the majority of the court are of opinion, that the interpretation given to the 2518th article of the Civil Code, in the decision heretofore rendered in this case, extends the principle announced in that article beyond its just limits. We think that both the letter and the spirit of the law forbid its application to a case like the present, where the slaves sold bear to each other the relation of husband and wife, parent and child, two of whom have died of redhibitory diseases. The article is as follows :

“ The redhibitory vice of one of several things sold together gives rise to the redhibition of all, if the things wore matched (appareillés), as a pair of horses or a yoke of oxen.”

That tho two examples given are merely illustrations of the rule, and that the principle may be extended to other things, is conceded. But the things must be matched, in the sense in which that term is used in the Code. The examples 'given both in the Code, and in the authorities which have been referred to in illustration of the rule,’ we think show the spirit and meaning of the law to be, that the right to a total rescisión shall only arise, when the things sold are so dependant the one upon the other for their usefulness, that the loss or unsoundness of one would render those remaining comparatively valueless, which mutual dependence and peculiar fitness of the things purchased relatively to each other in a particular service, formed the principal motive for the contract. We are of opinion that the rule does not embrace slaves sold together in families, as field hands, as was the case in the present instance, there being no such necessary dependence of one member upon another for its usefulness. If the principle be recognized ‘to the extent contended for, then when large families are sold together for one price, as daily occurs, the death of one of its members, from a redhibitory defect, would give rise to the rescisión of the entire sale. Yet it can scarcely be contended that the death of an infant, or of one of several children, would materially impair the value of the surviving father or mother. A case fora total rescisión of the sale would probably occur, if the mother or child were affected with a redhibitory vice, and the child should be below the age at which the law permits them to be separated. A rescisión of the sale as to one, would in that event probably vacate it as to the other. But this rule depends upon legislative enactment, founded on motives of humanity, and would cease to apply if death had severed the relation prior to the institution of the action.

We do not understand the correctness of so much ofthe opinion heretofore rendered, as determined that two of the slaves purchased by the plaintiff, to wit, the mother and'child, died of diseases existing at the date of the sale, to be impugned. The evidence leaves no doubt that the third slave, Harry, died of a disease contracted several months subsequent to the sale.

Under the view which we now take of the law, the loss of the slaves Hannah and Huldah, must be borne by the defendant, and that of the slave Harry by the plaintiff. But as the evidence does not enable us to determine the separate value of the slaves, the cause must be remanded, for the purpose of ascertaining the deduction to be made from the rate given for the price.

The judgment of the District Court is, therefore, reversed, and the cause remanded for further proceedings; the appellee paying the costs of this appeal.

StisELL, J.

dissenting. I adhere to the opinion formerly adopted in this case. I consider the sale of a family of slaves as coming within the spirit and intendment of art 2518. My reasons for that view have been already expressed, and I may add, by way of practical illustration, that I feel assured that any one desiring to purchase servants, if he had an offer of three slaves bearing to each other the relation of husband and wife, parent and child, as in this case, and of three others having equal physical and other qualities, but not so related, would give a higher price for the former than the latter.

I also consider the date of the sale the controlling point of time, to which reference is to be had. If the nature of the things sold was, at the date of the sale such as to subject the contract to the right of a total rescisión, the subsequent events, adverted to by the defendant’s counsel, ought not to be permitted to affect the right. The contract was completed between the parties, at the date of the sale. The legal incidents of a contract are not to be severed from the contract itself, of which they form a part. The right of rescisión, if the things sold be affected with redhibitory vices, is as much a part of the contract, as the price, or any other ingredient of the contract. The law implies the right, and the implication of tho law is as efficient as the expressed will of the parties. The case-then stands as though it had been expressly written in the act of sale, the “ vendee shall have the right to rescind the sale for the whole, should the father or mother of this family now sold be found to be affected with a redhibitory vice.”

To the authorities cited in the original opinion, I may add the following from thePandects:

Hoc edicto expressum circa paria mularum. Sed et quotiescunque manifestum est quern aut non venditurum, aut non empturum fuisse nisi omnia, una venditiovideri debet, licet in singulas res sint pretia separatim constituta.

Plerumque propter morbosa mancipia etiam non morbosa redhibentur, si separan non possint sine magno incommodo, vel ad pdetatis rationem offensam. Digest, lib. 21, tit. 1, s, 35.


source: Caselaw Access Project

author: Kino, J.

license: Public Domain

text:
    The State v. Crosby et al.
    It is no objection to the validity of an indictment that several offences of tlie same nature, and upon which the same or a similar judgment may be given, are charged in different counts.
    A count for larceny may be joined, in the same indictment, with one for receiving stolen goods-
    A nolle prosequi may he entered upon one count of an indictment, and a judgment claimed on the remaining count, even after a general verdict.
    Bis only in capital cases that juries are not permitted to separate after having been sworn. In cases not capital, it is discretionary with the judge, until his charge has been delivered, to-permit the jury to separate.
    the First District Court of New J.

      Ellmore, Attorney General, for the State,
    cited Chitty C. L. 252. Archbold C. P. (5 ed.) pp. 7-2, 73. Moody’s Crown Cases, 236. 12 Wendell, 429. 8 lb. 210,, 211.

      Wolf and Abell, for the appellant,
    relied on 2 Hawkins, 331. 1 Blackford’s Rep. 391, 431.
   The judgment of the court was pronounced by

Kino, J.

The defendant was tried upon an information, the first count of which charged him with the raime of larceny, and the second with having received stolen goods. After a general verdict of guilty, the attorney general entered a nolle prosequi upon the second count, and a judgment was given upon the first, from which tire defendant has appealed.

A reversal of the judgment is asked for on the three following grounds : 1st. That two distinct offences were improperly charged in the same indictment. 2d. That the attorney general was without authority to discontinue the prosecution upon one of the counts after verdict. 3d. That the jury were permitted to separate during the trial of the cause, which vitiated their verdict.

I. Upon the first point the authorities establish conclusively that it is no objection to the validity of an indictment that, several offences of tho same nature, and upon which the same or a similar judgment may be given, are charged in different counts. -2 Hale’s P. C. 173. 1 Chitty C. L. 253. Wharton C. L. 106. The joinder of a count for larceny with one for receiving stolen goods, has beeiv held to he good both in England and the United States. In Pennsylvania, it is •said to be tho most usual practice to unite counts in one indictment, charging both •of those offences, although in that State the receiving of stolen goods is only a misdemeanor. Rex v. Galloway, Moody’s Crown Cases, 235. Wharton C. L. 108, and note. 12 Wendell, 429. 8 Wendell, 210, 211.

II. In the case of the State v. Banton, ante p. 31, we held that after a general verdict, the attorney general could entera nolle prosequi upon one count, and claim judgment upon the remaining counts. On a re-examination of the authorities we find no error in the decision then made.

III. It appears from the record that when the .court had proceeded so far with tho cause as to empanel a jury and swear a witness, the usual hour for adjournment, 3 p. m. arrived, and the court adjourned until tire following morning, permitting the jury to disperse in the mean time. There is no complaint of misconduct on the part of the jury. It is only in capital cases that juries are not permitted to separate after being sworn. In cases not capital, it is discretionary with the judge to permit them to disperse, until he has delivered to them his -charge. 8 La. 558. Wharton C. L. 844.

Judgment affirmed.


author: Kura, J. Eustis, C. J.

text:
    The State v. McLane.
    'The stat. of;8tli of March, 1841, providing that “in all criminal prosecutions in the Criminal Court of tlie Eirst District, for crimes and offences punishable by not more than two years hard labor, the proceedings may be by information,” was not repealed by the abolition of that court, -and the substitution of other district courts by tho constitution of 1845; and the stat. of 30th of April, 1846, organizing the district courts in the parish of Orleans, having directed (sec. 6) that all informations shall be filed in the Eirst District Court, and this directionbeingnecossarily understood as relating to all such informations as were authorized by the laws then in force, of which the act of 1841 was one, that act must be considered as extended to the Eirst District Court.
    A count for larceny may be joined, in the same indictment, with one for receiving stolen goods.
    Though the different counts of an information be attached together by wafers, it is not necessary that each count should be signed by tho prosecuting officer.
    The different counts of an information are sufficiently identified as one proceeding, by being attached together by wafers.
    It is discretionary with the judge of the first instance to direct the acquittal of one of several prisoners on trial for larceny and receiving stolen goods, that he may testify on the trial of the rest, if, in his opinion, the charge against him be unsupported.
    from the First District Court of New Orleans. McHenry, J.

      Elmore, Attorney General, for the State.

      Budd and Redmond, for the appellant.
   The judgment of the court was pronounced by

Kura, J.

The prisoner was convicted of larceny, andhas appealed. The proceeding againsthim was by information, which he contends was unauthorized by law.

The act of the 8th of March, 1841, provides, •“that in all criminal prosecutions in the Criminal Court of the First District, for crimes and offences punishable by not more than two years hal'd labor, the proceedings may be by information.”. Acts of 1841, p. 59.

It is contended, on behalf of the appellant, that this act applies exclusively to the Criminal Court of the First District, which has been abrogated by the constitution of 1845, and that the law itself has been thereby virtually repealed, having become inoperative. It is further contended that, criminal proceedings in this State are to be conducted according to the rules of the common law, which restricts the use of information to misdemeanors.

We do not find it necessary to determine, whether informations may be filed for larceny in the district courts of the State generally. Our enquiry is limited to the propriety of the proceedings in the parish of Orleans. Previous to the adoption ofthe present constitution, the Criminal Court ofthe First District, had exclusive criminal jurisdiction within the territorial limits of that district. B. & C’s Dig. 194. The 62d art. of the present constitution vests the judicial power of the State in a Supreme Court, in District Courts, and injustices ofthe peace; and the 73d art. confers upon District Courts unlimited jurisdiction in all criminal cases. Thus new tribunals have been created, which in the parish of Orleans, are clothed with all the jurisdiction in criminal matters formerly exercised by the Criminal Courts of the First District.

But, in substituting one set of courts for another, the framers of the constitution were careful to abolish none of the laws, in force at the time of its adoption, regulating judicial proceedings in the courts which were about to be superseded, and not to leave the newly created tribunals, in this respect, entirely dependent on future legislation. The constitution was prepared with reference to the then existing laws, and with the view of preventing the serious interruptions to judicial proceedings which it was foreseen would otherwise occur before the legislature could act. It was expressly declared, in the 142d art. that, “ all rights, actions, prosecutions, claims, and contracts, as well of individuals as of bodies corporate, and all laws in force at the time of the adoption of this constitution, and not inconsistent therewith, shall continue as if the same had not been adopted.’ ’

It is obvious that none of the laws regulating judicial proceedings were repealed by the adoption of the new constitution, and that while the framers of the constitution gave to the newly created tribunals all the jurisdiction, both civil and criminal, possessed by the courts which they were intended to replace, they also preserved the laws necessary to give them efficiency, and to enable them to exercise their respective jurisdictions in the same manner and to the same extent that they had previously been exercised. Among the laws then in force, applicable to the only court of criminal jurisdiction in New Orleans, was the act of 1841, authorizing proceedings by information. The legislature of 184P, while organizing the courts for the parish and city of New Orleans, in view of the previous legislation on this subject, which stood unrepealed, directed that the attorney general, and the district attorney, should file all informations in the First District Court. This direction must be understood to relate to all such informations as were authorized by the laws then in force, of which the act of 1841 was one.

The other grounds upon which a reversal of the judgment of the lower court is urged, are: 1st. That two distinct offences are charged in the same information, to wit, larceny, andreceivinggoods knowingthemto bestolen. 2d. Thatonly one count ofthe information had been signed, and that the two counts are merely attached together by a wafer. 3d. That the district judge erred in refusing, after the testimony on the part of the State had been closed, to permit a separate verdict to be rendered as to Stewart, against whom, it is alleged, no evidence was adduced, in order that he might testify in behalf of the remaining parties accused.

I. The first ground has recently been considered; in the case of the State v. Crosby, ante p. 434, in which we sustained an information charging in different counts, as has been done in the present instance, the offences of larceny and of receiving stolen goods.

II. We have been referred to no authority in support of the position that, the different counts of an information should all be signed by the prosecuting officer. The practice, both in this State and under the system from which our rules of criminal proceedings are borrowed, is otherwise. The two counts were sufficiently identified as one proceeding, by being attached together, State v. Lennon, 8 Rob. 543.

III. It was discretionary with the judge to direct the acquittal of one of the prisoners that he might testify, if, in his opinion, the charge against him was unsupported. The judge, however, assigned as the reason for his refusal to direct a separate verdict, that he considered there was testimony against Stewart, and the jury appear-to have been of the same opinion.

Eustis, C. J.

dissenting. I concur in the opinion of my brethren, that the former legislation is to be left entirely out of view, in considering the right of the attorney general to institute this prosecution by information, with the single exception of the act of 1805, which' establishes the common law as the rule of proceedings in criminal cases, and which has served as a guide for our courts ever since in criminal matters.

The reasons which have compelled me to withhold my assent to the conclusion of my brethren that, the law of 1841 is still in force, are these :

1. That law is of a peculiar character; it is an exception to the general law of the State. It subjects the person committing a crime within the first district to prosecution at the will of the attorney general, against which, if the crime were committed in any other portion of the State, he would have been protected. 2. However convenient the prosecution by information of the offence of larceny may be in the administration of justice, and the law was passed undoubtedly to meet the exigencies created by the accumulation of criminal business in this capital, I do not consider that this mode of prosecution is necessary in a legal sense, that is, the mode of prosecution by indictment is adequate to ensure the punishment of all offenders. 3. The law of 1841 takes from the accused the protection of a grand juiy. In criminal cases, except in misdemeanors, independent of this law, before the defendant can be put to answer the charge against him, the accusation must be warranted by the decision under oath of twelve men.

The Criminal Court of the First District having ceased to exist, and this law being recognised by no part of the act of 1846, organizing the District Courts, as I understand it, I do not feel myself at liberty to adjudge it to be saved by a remote and unnecessary implication.

I think the judgment ought to be arrested.

Judgment affirmed.

       The Chief Justice must he considered as dissenting from the judgment in the case of ^ the State v, Crosby, ante p. 434, so far as that case, being a prosecution by information before the JTivst'Districfe Court of New Orleans, under the statute of 8th of March, 1841, conflicts with the dissenting opinion in this case. ft.


author: King, J.

text:
    State v. McLane.
    Decisions in State v. McLane, ante p. 435, affirmed.

      « PPEAL from the First District Court of New Orleans, McHenry, J.

      El-

      more, Attorney General, for the State.

      Budd and Redmond, for the appellant.
   The judgment of the court was pronounced by

King, J.

The offences charged, and grounds urged for a reversal of the judgment in this case, are the same as those in the case of the State v. McLane, just determined. For the reasons assigned in that case, the judgment of the District Court is affirmed, with costs.

       The dissenting opinion of the Chief Justice, in the case of the State v McLane, ante p. 437, applies to the opinion in this case.


author: Eustis, C. J.

text:
    The State v. Hunt.
    The jurisdiction of the Supreme Court being limited by the constitution, in criminal oases, to questions of law alone, no appeal will lie from an order of the judge of the first instance, overruling an application for a new trial made on the ground of newly discovered evidence, where the application was refused by the judge because he did not believe the affidavit of the prisoner. Per Curiam: We cannot review, in criminal cases, the acts of a judge of the first instance, resting in his discretion. There is nothing in the stat. of 1846, providing for the mode of bringing criminal cases before,this court, which affects the question under consideration. It depends upon the constitution alone.
    from the FirstDistrict Court of New Orleans, McHenry, J.

      Elmore, Attorney General, for the State.

      Collins, for the appellant.
   The opinion of the court was pronounced by

Eustis, C. J.

Oliver Hunt was convicted of larceny in the FirstDistrict Court of New Orleans, and was sentenced, for his offence, to two years imprisonment at hard labor in the penitentiaiy. He applied for a new trial, on his affidavit that he had, since the trial, discovered two witnesses, by whose testimony he could establish an alibi. The district judge overruled the application for a new trial, and Hunt has appealed from the judgment awarding the sentence.

We do not propose to examine the sufficiency of the affidavit; but to consider the question, whether this court, under the constitution, can review the decision of the district judge, in refusing the application for a new trial. The jurisdiction of this court in criminal cases extends to questions of law alone, whenever the punishment of death or hard labor may be inflicted, or when a fine exceeding three hundred dollars is actually imposed. By the 33d section of the act of May 4th, 1805, for the punishment of crimes and misdemeanors, the rules of evidence and all other proceedings in criminal cases, except as otherwise provided, were'to be according to the common law, changing what ought to be changed; and since that period, all our criminal statutes have been enacted and construed with reference to that system. It is therefore a safe guide, in construing the article of the constitution vesting this court with its limited criminal jurisdiction. Under the common law judgments can be reversed by writ of error, which lie from all inferior criminal jurisdictions to the court of Queen’s Bench, and from the Queen’s Bench to the House of Lords. A writ of error does not lie to the House of Lords for an error in fact; but, for an error of this description, a writ of error coram nobis, as it is there called, lies in the same court. This is the case in some of the States ' of the Union, where the courts, from their organization, can issue a venire for the trial of the error of fact See case of Arnold et al v. Duncan, 14 Johnson’s Rep. 417.

It seems to us to be clear, that the constitution, in limiting the jurisdiction of this court, in criminal cases, to questions of law alone, by its terms excluded all cognizance of questions of fact. The Supreme Court of the United States, in construing its common law jurisdiction, under the constitution, and the judiciaiy act of 1789—a jurisdiction by no means restricted as much as ours—has determined, by a series of decisions, what points are open for examination under a writ of error; and those decisions have all been made in conformity with what were understood to be the rules and principles of the common law. By the 22d section of the judiciaiy act, it is provided that on a writ of error to the Supreme Court, there shall be no reversal for error in fact. That court has always held, that error does not lie on the refusal of the court below to grant a new trial. Although that court takes no cognizance of criminal cases, except in a division of opinion of the judges of the court below, the decisions in civil cases appear to us conclusive of the principle. Henderson v. Moore, 5 Cranch, 11. Barr v. Gratz, 4 Wheaton, 213. Blunt’s lessee v. Smith et al. 7 Wheaton, 248. Brown v. Clark, 4 Howard, 4.

In the case of Barr v. Gratz, Judge Story remarked that the proposition was too plain for argument.

Nor does error lie, on the refusal of the court below to continue a cause after it is at issue. Marine Insurance Co. v. Hodgson, 6 Cranch, 218. In that case, Mr. Justice Livingston says, it may be very hard not to grant a new trial, or not to continue a cause ; but in neither case can the party be relieved by a writ of error. Wood v. Young, 4 Cranch, 237. 5 Cranch, 280. 7 Cranch, 152. 7 Cranch, 565 etc.

If this court cannot examine a question of fact in a criminal case, it cannot review the acts of a judge of the first instance resting in his discretion. In the present case, the judge did not believe the affidavit of the prisoner, that he could prove an alibi. He sat on the trial of the cause, he heal’d the witnesses, and had an opportunity of forming an opinion of the whole affair, with its attendant circumstances; and, we think, the constitution has provided wisely in leaving these matters in the discretion of the magistrate, who has the best means of thoroughly understanding them. If the facts attempted to be proved by the affidavit of the prisoner, were to be confessed in court by the attorney general, a different case would be presented; and cases have occurred, in which courts have acted upon the confession of the attorney general, on writs of error of errors in fact. Rex v. Wilkes, 4 Burrows, 2550.

In this case nothing is conceded; and a question of fact, which we are not permitted to determine, is an insuperable obstacle" to the exercise of our jurisdiction, which is confined to questions of law alone.

There is nothing in the statute of 1846, which provides for the mode of bringing criminal cases before this court, which affects the question under consideration. It depends upon the constitution alone.

Previous to the adoption of the present constitution, the late Court of Errors and Appeals, in the case of the State v, Charlotte, 8 Robinson, 529, held that, under the statute creating the court, it was empowered to grant relief against decisions of inferior tribunals, in criminal cases, on questions confided to their legal discretion. The ground on which that decision was based was that the various decisions of the Supreme Court of the United States on that subject, were inapplicable to that court, because, under the statute creating it, the court was not a court of errors only. The insertion of the word alone in the constitution, confines the jurisdiction of this court exclusively to questions of law; and, 0(1 the reasoning of the Court of Appeals, the decisions of the Supreme Court of the United States would be applicable to the question of jurisdictipn of this court.

Judgment affirmed.


author: Rost, J.

text:
    McGary v. The City of Lafayette.
    Where a municipal corporation ratifies the tortious acts of its agents, it will be liable therefor, although those acts were not done by the authority of the city government.
    The general rule in regard to the allowance of damages under our law is that established by art. 2294 C. C., by which the reparation must he equal to the injury. An exception is made to this rule by art. 1928 C. C. in relation to damages resulting from offences, quasioifences, and quasi-contracts, which declares that in such cases much discretion must be left to the judge or jury; hut this discretionis notunlimited, and,in this respect, our jurisprudence differs from that oi England.
    from the Third District Court of New Orleans, Kennedy, J.

      Roselius, for the plaintiff.

      Michel and Preston, for the appellants.
   The judgment of the court was pronounced by

Rost, J.

This case was before our predecessors on a former appeal, and the facts of it are fully stated in the opinion of the court, 12 Rob. 668. On the first trial in the District Court, the plaintiff obtained averdictfor$10,000 damages, upon which judgment was renderedin her favor. The Supreme Court affirmed the judgment; but, on an application for are-hearing, the majority of the court remanded the case for a new trial, principally on the ground that the damages were excessive. The court also intimated a doubt as to the liability of the corporation for the tortious acts charged against its officers. On the second trial the plaintiff obtained a verdict and judgment for $5,000 and the defendants prosecuted the present appeal.

After the verdicts of two juries, the facts of the case must be considered as settled in favor of the plaintiff, and we have no hesitation in saying that those facts authorize the recovery of damages against the defendants. It is true the acts complained of were not done by the authority and order of the city government, but those acts, after they wei'e done, were ratified by the corporation. Thayer v. City of Boston, 19 Pickering, 511. Fowle v. Common Council of Alexandria, 3, Peters, 398. Ware v. Barataria and Lafourche Canal Co., 15 La. 168. Mabei v. Canal Bank, 11, La. 86.

Under this view of the law of the case, the only question left is, as to the amount of the damages allowed. The general rule of law under which damages are allowed, in our system of jurisprudence, is in these words: “ Eveiy act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it.” C. C. 2294. Under that' rule, the reparation made must equal the injuiy inflicted. But an exception is made by art. 1928 C. C., in relation to damages resulting from offences, quasi-offences, and quasi-contracts. In those cases, says the Code, much discretion must be left to the judge or jmy. The french text is: ules dommages dans ces cas sont laissés en grande partie ala prudence dujuge ou du jury pour lew fixation.” This disposition of law while it gives to the judge or jury a discretion which they have not in other actions of damages, clearly intimates that the discretion thus given isnotiflimited, ¡and in this respect our .jurisprudence differs from -that'Of .the english courts, upon whose authority the .plaintiff’s counsel relies.

Admitting that the verdicts of juries in .those cases .should not be disturbed on slight grounds, and that they ought to be maintained, although their amount is something larger than we approve, yet there is a limit beyond which it is our duty to interfere, and we think this a proper case for our interference. The defendants were entitled to the land they claim. The plaintiff being .aware of that fact, had abandoned it for the public use, and put up a building on the last line given by the city surveyor. He is not entitled to be indemnified ¡for the value of this land, and it is proved that the damage sustained by the taking down of the wall could not have exceeded three or four hundred dollars. We admit that the actual loss sustained is not the measure of damage, andihat the jury had a right to take into consideration the violent and illegal proceedings of the officers, of tire corporation. The facts of.the case would, in our opinion, have authorized a verdict for $1500., and we will decree accordingly.

It is therefore ordered'that the judgment in this case be reversed. It is further ordered that there be judgment in favor of the plaintiff and against the defendants, for the sum-of $1500, with the costs of the district court; those of .this appeal to be paid by the plaintiff and appellee.


author: Etjstis, C. J.

text:
    The State v. Long.
    Decision in Slate v. Hunt, mttep. 438, affirmed.
    from the First District Court of New Orleans, McHenry, J.

      Elmore, Attorney General, for the State.
   The judgment of the court was pronounced by

Etjstis, C. J.

The defendant has appealed from a judgment of the First District Court of New Orleans, condemning him to two years imprisonment at hard labor for the offence of larceny. Before the trial of the cause, the defendant applied for a continuance, on the ground of the absence of material witnesses, andmade an affidavit tothateffect. To the refusal of the judge to .continue the cause, the defendant took a bill of exceptions.

This case is similar in principle to that of the Stale v. Hunt, just .decided ; and for the reasons therein given, the judgment of the District Court is .affirmed, with costs.


author: Slidell, J.

text:
    D’Aquin et al. v. Barbour.
    Parol evidence is admissible to show the nature and extent • of premises leased by an act sous seingpivé> when, from the indefinite language of the written instrument, it is necessary, to ascertain the intention of the parties.
    Where the intention of the parties is doubtful, the manner in which a contract has been executed by one with the assent of the other, will determine the construction to he put upon it.
    Antecedent conversations respecting a contract which the parties subsequently embody in a written instrument, are inadmissible, where fraud is not charged.

      from the Second District Court of New Orleans, Canon, J. ■

      Wolfe and Singleton, for the plaintilfs.

      T. H. Howard, Larue and Ross, for the appellant.
   The judgment of the court was pronounced by

Slidell, J.

On the 28th October, 1848, a lease of certain premises, for a term of five year's, was made by the defendant to the plaintiffs, who carried on the business of bakers ; and the plaintiffs gave sixty notes for the monthly rent. On the 21st of March, 1849, the plaintiffs instituted this suit, claiming the dissolution of the lease with damages, on the ground that “the defendant has failed to deliver to the plaintiffs all the buildings by him leased to the plaintiffs, and indispensable for them to cany on their said trade. That the part of said buildings, [withheld] consists in a store adjoining the entrance of said establishment on Levée street, which, according to said lease, and in conformity to his promises, the said Barbour was bound to deliver to the petitioners.”

Before considering the terms and effoct of the lease, it is properito notice the nature of the property of which the defendant was owner when the lease was made. It was a lot of ground having a front on New Levée street, and running back to Commerce street. Fronting on New Levée, was a brick building occupying the entire width, and three stories in height, and across the entire front, between the second and third stories, was a sign, “Union Bakery.” The lower story, in front, was divided into nearly equal portions, by a partition. One portion, having a depth of about 32 feet, was arranged and occupied as a clothier’s shop. It was rented in December 1847. foroneyear, by Barbour to Mayers, and this lease was renewed between them, in December, 1848. Mayers has been in possession during the whole period, carrying on his business of a clothier in this apartment. The other portion had been used since the erection of the building by Barbour as a baker’s shop, having a like depth of thirty two feet. The entire width back of the baker’s and clothier’s shop’s was used by Barbour for storing purposes, in his business of a baker. Back of this, and occupying also the entire width was a bakery, and still further in the rear were arrangements for horses and drays, used in his business.

The lease to the plaintiffs is in writing, and contains the following expressions and covenants: “ The said lessor lets and hires to the said lessees, for the period of five years, commencing on the 1st November, 1848, the premises now and heretofore occupied by him as the Union Bakery, situated on New Levée street, and extending through to Commerce street; and further, the lessor lets and hires as aforesaid, and as a portion of said bakery, eight certain negroes, and certain other property, consisting of the steam engine, biscuit machine, troughs, breadboxes, cloths, and the fixtures on the premises used in carrying on the business of saidbakeiy, the whole of whichare particularly enumerated and described in the inventory annexed, marked A., and accepted by the parties to this contract of lease as a portion thereof.” This inventory contains the names and ages of the slaves, who are ranged under two classes with reference to their different values and rates of hire as specified in the lease; also an enumeration of the machinery, fixtures, and apparatus, of a baker’s establishment. It is silent as to the apartment occupiedas aclothier’s shop. The lease then contains, amongothes clauses, the following: 1st. “ The said lessees shall have the use and control of the said bakery and property, during the term of five years aforesaid, &c. 4th. The said lessor shall, according to law, keep that portion of the buildings in which said premises are contained in good tenable [Sic in lease] condition as the same now are during the period of said lease. 5th. The said lessor binds himself to sell to the said lessees, at the expiration of the second year of the period of said lease, liispremises and property, at 98 New Levée embracing that described and enumerated in the said inventory, for the sum in cash of $30,000.” In the statement ofthe obligations of the lessees, we find the following : 1st. “The said lessees take the said bakery and property embraced in said inventory, in the good order and condition in which they now are, and engage, during the period of said lease, to keep the same in the like good order, &c. 2d. The said lessees shall incur all risk and expense resulting from the sickness or running away ofthe negroes, &c. 4th. And the said lessees bind themselvos to pay to the said lessor the sum of $4000 per annum, for the said bakery and property aforesaid,” &c. And it is provided and agreed that if the said lessees should, at the expiration of the second year of the period of said lease, neglect to pay to said lessor the sum of $30,000 as aforesaid in cash, for the premises aforesaid of 98 New Levée, and property embraced in said inventory as vendees of said lessor and owner, then and from the time of said sale and payment this instrument of lease shall be null and void, and the said lessor shall deliver to said lessees all of the said promissory notes given for the said rent, &c.

We have no hesitation in saying that, parol evidence was properly received by the court below, for the purpose of showing the nature and distribution of tho property which forms,the subjectof the controversy. The property was described in the introductory clause of the lease, as the premises now and heretofore occupied by Barbour, as the “Union Bakery,” situated on New Levée street, and extending through to Commerce street; and for the purpose of ascertaining the nature of the subject, parol evidence to show what premises were then, and had been theretofore, occupied as the Union Bakery, was proper and even necessary. The intention of the parties was to be ascertained, and that intention could not be reached without an explanation of the situation and nature of the property. See Greenleaf on Evidence, § 286, and the cases there cited. When that necessary explanation is brought into juxtaposition with the language ofthe instrument, both in the introductory clause and in those which follow it, it is difficult to resist the conviction that, the bakery and its appurtenances, as occupied by Barbour, was the objectof the lease ; and, that the apartment then, and theretofore occupied as a clothing store by another person, and which was notnecessaiy for the business ofthe plaintiff, did not enter into their contemplation. It must be observed that the lot of land, eo nomine, is not leased. There is no sweeping expression in the leasing clauses, that would bring the entire premises under the lease. “The Bakery” is the repeatedly recurring expression. The fourth clause, in which the lessor binds himself only to keep in good order that portion of the buildings in which said premises are contained, appears to us quite repugnant to the' construction claimed by the plaintiffs.

It is not to be supposed that, in making so important a contract, and in inserting the description “ the premises now and heretofore occupied by him (Barbour) as the Union Bakery,” the plaintiffs had not first carefully inspected the property which they proposed to lease. Its arrangement was before their eyes, and they saw an establishment occupied by another person and wholly disconnected with the business which Barbour had prosecuted, and in which they were about to succeed him. It is extraordinary, if they expected to get the clothier’s shop under the lease, that they should nothave expressedit in the written agreement.

We believe that in the stipulation for sale, the parties did intend to cover the entire property; but the language they use in those clauses which point to a sale, is certainly broader than is found in the stipulations of lease.

The case? of the defendant is much strengthened by resorting to the principiewhich is embodied in the 1951st article of the Code. “ When the intent of the par-ties is- doubtful, the construction put upon it by the manner in which it has been1 executed by both, or by one, with the express or implied consent of the-other, furnishes a rule for its interpretation.” Now here the plaintiffs went into-possession of the bakery and the rest of the premises, but they did not ask Mayers to go out; they did not ask him to pay them the rent, nor give him any notice-that he was to consider himself their tenant; and, without any obj ection whatever, so far- as the testimony informs us, they seem to have contented themselves-with the residue of the premises, and to have' paid, as' they fell due, the first four notes for rent, to Barbour.

Parol testimony was introduced, respecting the conversations of the parties-while negotiating respecting the lease, for the purpose of showing that it was-understood that the plaintiffs were to have the rent of the clothier’s shop. We' think these antecedent conversations respecting a contract which the parties have embodied in a written instrument, were inadmissible, there being no fraud-in the confection of that instrument, or otherwise alleged or proved.

It is, therefore, decreed that, the judgment be reversed, and that there be judgment for the defendant, with costs in both courts.


author: Kins, J.

text:
    The State v. Vanderlip.
    The description, in an information for larceny, of the party injured, as I. B. Kirkland, though; his real name be Isaac B. Kirkland, is sufficient.
    Where there is but one count in an information for larceny, those parts which are defective by reason of the failure to aver the value, may be rejected as surplusage, without affecting its validity; and the conviction as to the remainder will be good, under a general verdict.
    Although, in general, itis necessary to use the precise technical expressions of the statute, in describing an offence, a variance which does not alter the sense of a material part of the1 statute, will not vitiate an information.- As where a statute punishes- “the robbery or larceny of b'anlc «otes,-obligations” &c,,. and. an information charges the larceny of “one note-of the bank of Mobile,” “one note of the bank of Alabama,” “of the goods and chattels” &c.; the terms “‘bank notes*” and “-notes of a bank” being,.in common parlance, synonymous.
    Itis sufficient in an information, for larceny,,under sec. 10 of the stat. of 4 May, 1805, to aver that the notes which were the subject of the larceny, were the “'goods and chattels ” of the-person entitled to them; itis not necessary that it should be stated that they were his* “property.” The word “chattels,”*used in such a case, signifies*property and ownership-
    from the First District Court of New Orleans, McHenry, J-

      Elmore, Attorney General, for the State.
    1.- At common law there was no such thing as larceny of banknotes, bills of exchange, and promissory notes. See Archbold’s C. P. p. 208, and the authorities there cited. 2d. The punishment? for stealing bank notes, and monied obligations generally, is provided for by the act of 1805. B. & C. 243, sec. 10. 3. The name of the injured party is sot out in the information, with sufficient certainty. See Archbold’s G. P. p. 211, 212, 121, 122. 4. The statute having made the stealing of bank notes and monied obligations a punishable offence, no value need be assigned1 to- them in the-information. 3d Chitty, 247. Russell and Ryan, 406. 2d Hale, P. C. 182-Archbold’s C. P. 211. Beg. v. Morris, 9 C. &P. 349. Beg. v. Bingley 8{ Law, 5 C. &P. 602. Commonwealth v. Smith, 1st Mass. 244,245. 5. The information is sufficiently descriptive of the property alleged to be stolen. See 3d section of the act, entitled “An act to provide for the prosecution and punishment of crimes therein mentioned,” approved March 8th, 1845, p. 47, Sessions Acts. 6. Bank notes and monied obligations are goods and chattels. Common

      wealth v. Boyer, 1 Binney, 208. Commonwealth v. Richards, 1st Mass. 337. People v. Holbrook, 13 Johnson, 93. United States v. Moulton, 5 Mason, 544 et seq., and the authorities there referred to.

      Upton and Frost, for the appellant.
    1. Whatever is good cause of demurrer, is good in arrest of judgment. 1 Chitty, 662, 443. 4 Blacks. 376. For what is good cause of demurrer, see 1 Chitty, 439. 4 Blacks. 335. 2. An information must have the certainty of an indictment. 1 Chitty, 846—2, pp. 6, 7. 3. An indictment must contain no abbreviation nor figures, except where it embodies a copy of some instrument. 1 Chitty, 175, 176. Arch. 52. 4. The name of the aggrieved party must be given, if known; if not known, this feet of ignorance must be stated. 3 Chitty, 950—1. 1 lb. 213, 216. Arch. 31. 5. The use of the initials of a man’s name is fatal, because they are abbreviations, and because they do not constitute a name. 1 Pick. 388. 3 lb. 263. Arch. 176. 6. An indictment must allege the value of each article stolen, and where a value is laid as to a part, and silent as to a part, and a general verdict is found, it will be bad. 1 Mass. 245. 3 Chitty, 948, 959. Arch. 176. 2 An. R. 741. 5 Mason, 301. 7. Information is defective in its description of the property. 1 Chitty, 172, 282. Arch. 48, 49, 50. 2 Russel, 170. 2 Leach, 1055, 565. 3 Chitty, 967—8, 947, and notes. 2 East. P. C. 601, 602. 1 Binney, 201. 1 Dyer, 5, B.
    A correct indictment for the stealing of “ bank notes,” is in 2 Harris & Gill, 407. The cases in Leach all give the description as bank notes of a certain value, and the property of some person. This information charges the defendant with stealing notes of certain banks, and a draft—a value is only stated as to a portion, and they are described as “the goods and chattels,” and not the “property,” of J. B. Kirkland. These objections are purely technical, but they are sustained by authority; and we rely on the law as it exists. By a statute of 7 Geo. IV”. many of these objections are no longer good on a motion in arrest of judgment. No such statute of jeofails has been enacted in this State, and the court must decide by the law as it existed in 1805.
    In reply to the positions and arguments of the Attorney General: We deny that the allegation of value is dispensed with. Not a single authority quoted by the State bears out the proposition. Lord Hale says the value must be alleged. So says Archbold. The case in the Mass. Rep. is headed thus: “In an indictment for stealing money, value must be laid.” The case in Russell & Ryan holds that, it is necessary to aver value to sustain a conviction. The reference from Archbold only recites that it is no longer necessary to prove value equal to the smallest coin. The point here is, whether a value should be averred.

    Bank notes are not goods .and chattels. If they are goods and chatties, why was it necessary to pass statutes making the taking of bank notes larceny?
    The first and last points of tire attorney general contradict each other.
    The case in 1 Binney, presented ten points. The court decided the first in favor of the defendant, and declined to pass on the second. The case from 1 Mass. Rep. 137, did not present the point, and it was not made nor passed upon. The case in 13 Johnson is against us; and so is that in 5 Mason, 544. That is a decision of Judge Story, who never has been deemed the highest authority in criminal law. In that case he held that, bank notes were personal property. At the same term of the court, and in the same volume, he held that a promissory note was not personal property. We rely on the english authorities as fixing the definition of larceny, and the necessary averments of an indictment.
   The judgment of the court (Slidell, J, absent,) was pronounced by

Kins, J.

The defendant was prosecuted under the 10th section of the act of 1805, B. and C.’s Dig. p. 243, for the larceny of several bank notes, and other effects, alleged to belong to I. B. Kirkland. He was convicted and sentenced, and has appealed.

It is urged that the information was defective, for the following reasons: 1. Because the name of the parly aggrieved is not sufficiently averred. 2. Because the value of each of the articles charged to have been stolen, is not alleged. 3. Because the description of the property stolen is defective. 4. That the notes stolen are alleged to be the 11 goods ana chattels” of I. B. Kirkland, whereas, it is contended, they should have been averred to be the “ property” of the person injured.

These objections to the information are, as was correctly said in argument, Purely technical, and depend entirely upon authority.

I. As regards the first ground. The name of the injured party is averred in the information to be I. B. Kirkland. Upon the trial Kirkland appeared as a witness, and testified that his name was Isaac B. Kirkland; whereupon the counsel for the accused asked the judge to instruct the juiy that the prisoner was entitled to his discharge; which charge the judge refused to give. As regards the description to be given in the indictment of other persons than the defendant referred to in it, Hawkins says : “ It is certainly safest to describe them with convenient certainty, which will hardly be dispensed with except in special cases, and for special reasons. Yet when, in common presumption, it maybe very difficult, if not impossible, to know the names of the persons referred to in an indictment, it may be good without naming any of them!” After giving several exceptions to the rule requiring the name of the injured party to be averred, he concludes by saying: “ However, from the whole, thus much seems plainly to follow, that whenever the person injured is known to the jurors, his name ought to be put in the indictment.” Hawkins P. C., book 2, chap. 25, sec. 73. In the case of the King v. Sulks, an indictment for larceny, laying the goods stated to be the properly of Victory, Baroness Turkheim was sustained, although her true name was Selina Victoria. The court said it was not necessary that there should be an addition to the name of a prosecutor in an indictment; that all the law requires upon this subject is, certainty to a common intent; and that, as the prosecutrix had always acted in, and been known by the appellation of, Baroness of Turkheim, and could not possibly be mistaken for any other person, it must be taken to. be her name, and referred to the authority of Hawkins.” See the case in 2d Leach C. L. p. 1006.

An indictment for the forgery of a draft addressed to Messrs. Drummond Co., by the name of Mr. Drummond, without stating the names of Drummond’s partners, was held, at a conference of all the judges, to be good. The judges said that they must understand the words “ Messrs. Drummond Company” as eveiy body else did, to mean the partners in the partnership in the banking house. One of the judges said, the only question was whether Drummond Co. were meant by the prisoner, which was established by the verdict. 2 East, P. C. 990. An indictment for an assault on John, parish priest of D, was held to be sufficiently certain. 2 Hawkins, P. C. chap. 25, sec. 74. In each of these cases, the party injured appears to have been known to the jurors, and in each the name is incorrectly stated. In the two first, the error consisted in omitting the Christian names; and in the third, in omitting the símame.

In the present instance it appears that Kirkland was a merchant, residing in Memphis, in the State of Tennessee; that the package containing the notes, alleged to have been stolen, was taken while being transmitted to his correspondent in this city; and that it was marked I. B. Kirkland. It was shown on the trial that Isaac B. Kirkland was the owner of the notes and other effects contained in the package, and described in the indictment as being the property of I. B. Kirkland. It is not pretended that I. B. Kirkland and Isaac B. Kirkland are not one and the same person, and the owner of the effects stolen. That Kirkland was known by the name of I. B. Kirkland, is evident from the fact that he is so described in the information. But it is not shown that he was known to the attorney general, or in this city, by any other name than that of I. B. Kirkland, and being the resident of another State, we cannot presume that the attorney general knew him by any other name than that averred in the information.

It is only when the party injured cannot be described by name, that it becomes necessary to state that' he is a person unknown. But with the evidence before him that the aggrieved party was known by the name of I. B. Kirkland, the attorney general could not, with propriety or truth, have averred the property in the notes to be in a person unknown, On the contrary, the rules of criminal pleading absolutely required that, he should have averred it to be in a person whom the evidence in his possession described as I. B. Kirkland.

We think that the circumstances of this case, tested by the strictest rules of criminal pleading, bring it within the exceptions to the general rule which require the name of the injured party to be accurately set forth, and authorize the averment as made in the information. See 1 Chitty, C. L. p. 212, et seq.

II. The information alleges that several different notes were stolen, but avers the value of but two of them.

The only authority to which we have been referred, in support of the proposition that sentence could not be passed on a general verdict upon an indictment of this kind, establishes, as we think, the reverse of the proposition. See 1 Mass. Rep. 245. If there had been several counts, instead of one, some of which averred a value to the articles stolen, and others which did not, it seems to be settled that, after a general verdict, judgment could have been given upon the good counts. When there is but one count, those parts of it which are defective, by reason of the failure to aver the value, may be rejected as surplusage, without affecting the validity of the instrument; and tire conviction as to the remainder will be good.

III. The next objection is that, the description of the property stolen is defective. It is contended that the notes should have been described in the precise terms of the statute. The words of the act are: “ The robbery or larceny of bank notes, obligations” &c. “ shall be punished” &c. The averments in the information are: “one note of the Bank of Mobile,” “one note of the Bank of Alabama,” “of the goods and chattels.”

Although, in general, it is necessaiy to use the precise technical expressions of the statute in describing the offence, a variance which does not alter the sense of a material part of the statute will not vitiate the indictment. The terms “ bank notes,” and “ notes of a bank,” are, in ordinary parlance, synonymous. Both are understood to mean the notes emitted as the circulation of the bank. In the 'case of the Comm. v. Richards, it was held that a deviation from the terms of the statute, similar to that which occurs in the information now under consideration, did not vitiate the indictment. Comm. v. Richards, 1 Mass. Rep. 338.. We think that case conclusive of the point presented.

IV. The last objection urged we also think untenable. In the case of The People v. Holbrook, 13 Johnson’s Rep. 93, 94, anaverment of the property, in the terms used in the present information, was held good. The court said: “ It is sufficient to lay in an indictment that the notes or instruments mentioned in the statute are the goods and chattels of any person who is entitled to them; and that the word chattels denotes and signifies, when applied as in this case, property and ownership.” Judgment affirmed.


text:
    West v. His Creditors.
    Objections to evidence, though made in the lower court, will not be notice don appeal, unleás brought before the court by a bill of exceptions.

      The authority of the thing adjudged is merely an exception, which the party who wishes to avail himself of it must oppose, in the manner and at the time prescribed by law. Unless the exception be thus opposed, the party will be presumed to have renounced the advantage resulting from it.
    A judgment, rendered in another State against one who had previously made a cessio bonorum. here, though binding on him personally, is not conclusive against the other creditors, nor against the fund to be distributed here.
    Creditors of one who had made a cessio bonorum here, residing in another State, where they had acted as trustees under an assignment, made to them in that State, by a third person, to secure the payment of the debt due them by the insolvent, where such assignment was valid by the lex loci, must account for the property included in the assignment, or show some legal cause for their failure to reduce zt into possession, to entitle them to be put down as creditors on the tableau of distribution of the effects of the insolvent in this State.
    from the Fifth District Court of New Orleans, Buchanan, J.

      G. B. Duncan, Iiornor, J. Strawbridge, Kearney and Cohen, for the different appellants.
   The judgment of the court was pronounced by

Rost, J.

In addition to those creditors who were allowed a place upon former tableaux in this interminable controversy, several others have presented themselves claiming a part in the fund now to be distributed. Of these new claims, the District Court ordered William C. Galt to be placed on the tableau for the sum of $3,000. J. Barbour, Francis Duplessis and Adelaide Duplessis, who are creditors of the insolvent, have appealed from this portion of the decree. The claim of N. B. Beale for $7,000, and that of W. H. Booth for $5,000, were rejected by the court, and these parties also have appealed.

The evidence adduced by the creditor, William C. Galt, in support of his claim, satisfied the district judge; and a careful perusal of it has not enabled us to say that he erred. It is as satisfactory as could be expected at this distance of time; more so, indeed, than that on which many of the claims on the first tableau of distribution were admitted. 1 Annual, 365.

The claims of the appellants, Beale and Booth, rest on the following facts: Shortly after his failure, the insolvent went to the State of Kentucky, and was sued in the federal court of that State by these parties, as acceptor on bills of exchange, drawn by Thomas It. West on him, in their favor. John K. West defended the suits, alleging that Thomas It. West had made three assignments to these parties, in trust1 for the purpose of securing them in the payment of several debts due them by Thomas R. West, and also by himself, among which were the debts sued upon. The court overruled this plea, and the defendant filed his bill of exceptions to the ruling of the court, but did not carry the case to the appellate tribunal. The plaintiffs subsequently obtained judgments which are final against John K. West personally.

These judgments are adduced in evidence of the appellants’ claims, and their counsel contends : 1. That, upon the trial of the oppositions, the district judge erred, to their prejudice, in admitting the deeds of trust in evidence to show that their claims had been paid; this issue having previously been made in the federal court, and the judgments rendered thereon forming res judicata. 2. That, under the constitution and laws of the United States, those judgments must have the same faith and credit in Louisiana as they have in the State of Kentucky, where they were rendered. 3. That they are the highest evidence of the debts merged in them.

If the first ground were well taken, it is not brought before us by a bill of exceptions, and we cannot notice it. The authority of the thing adjudged produces" merely an exception, which the party wishing to avail himself of it must oppose in the manner and at the time prescribed by law. Item, si in-judicio tecum, actum fuerit, sive in rem, sive in personam, nihilominus obligatio durat, et ideo ipso jure de eadem re postea adversus te agi potest; sed debes per exceptionem rei judicata, adjuvari. § 5, Institutes, de Rxceptionibus. Unless the exception rei judicata is thus opposed, and opposition is made to the admission of the evidence adduced on the second trial, the presumption is that, the party entitled to the exception has renounced the advantage resulting from it. Merlin, Rep. § 20, 4th edition, verbo Chose Jugée.

But this ground is untenable. Conceding that the judgments offered in evidence are entitled to the same faith and credit here as they have in Kentucky, it is necessary to ascertain the effect which they would have in that State. Our cessio bonorum is unknown to the laws of Kentucky; but assignments under those laws, when assented to by the parties named in them, produce substantially the same legal effects, so far as these parties are concerned. They divest the debtor of the title to the property assigned, and vest it in the trustees for the purposes of the trust. Such was undoubtedly the effect of the'deeds of trust made by Thomas R. West to the appellants, after they assented to, and agreed to act under, them. Let us suppose then, that a creditor of Thomas R. West, not named in the assignments, had subsequently obtained a judgment against him. The question under consideration may be solved, by ascertaining what effect such a judgment would have had in Kentucky, and what rights it would have created in the trust fund.

Under the common law, which prevails in that State, the solution presents no difficulty. An assignment when made in good faith, and assented to by the assignee, is deemed a valid conveyance, founded upon a valuable consideration, and is good against creditors proceeding adversely to it by attachment, or seizure in execution, of the property conveyed. 2 Story’s Equity, no. 1036.

Considering that John K. West was also divested of his title to the property in the hands of the syndic at the time the judgments of the appellants were obtained, we conclude that those judgments, although binding upon him personally, are not conclusive against the other creditors, nor against the fund to be distributed.

It is urged, as another ground against the admission of the assignments in evidence, that thirty years have elapsed since they were executed, and that that lapse of time should be a sufficient objection. If this were so, it could only be upon the presumption that they had been executed, and that the creditors named in them were paid and satisfied.

It is further urged that the assignments, having been executed by 'Thomas R. West, and not by the insolvent, the creditors of the latter have, no right to call the trustees to an account; and that, if they had, it could not be done in this collateral manner. That if, at this late period, the trustees are liable to account to any one, 'it is to Thomas R. West, if he be living, if not, to his legal representatives, or to the creditors named in the assignments'. It is said that these parties make no claim, and that the credtors named in the assignments must be presumed to have long since been paid. Under the terms of the assignments the two appellants were the first creditors to be paid; and, if we are to presume that those who came after them have all been satisfied, it is difficult to resist the conclusion that they stand in the same category.

It matters not by whom the assignments were made. They purport td deliver the possession of the property assigned, and were assented to by the appellants, who agreed to act as trastees under them. This assent and this agreement imposed upon them the implied obligation, to perform all those acts which were necessary and proper for the due execution of the trust which they had undertaken. 2 Story’s Equity, no. 1268. Theirs is an equitable claim ; and they are bound to do equity before they can be heard. It was incumbent upon them to account for the property assigned to them. It is stated by their counsel, in their brief, that they received none of the real property mentioned in the deeds of trust; but there is no evidence of that fact in the record, and they have failed to show a legal cause for not reducing it into- possession. W& are therefore of opinion that there is no error, of which they can complain, izathe judgment appealed from.

Another opposition was filed by the syndic of Dorsey and the heirs of Hull. These opponents objected to the sum allowed to the wife of the:insolvent. The* defendant answered the opposition and pleaded res judicata, which plea wasi sustained by the court below. On the argument of the ease, these' opponents asked that the judgment sustaining the defendants’ plea might be> reversed. But as they have not appealed, we cannot act upon their application. Girod v. Creditors, 2 Annual 547.


text:
    Same Case—On a Re-hearing.
    If a creditor of one who has made a cessio borwnim, who had proved a claim at the time-of the first distribution of the effects of the insolvent, and received a dividend out of the fends then in the hands of the syndic, is not debarred thereby from proving, on a subsequent distribution, another and a distinct claim existing at the time of the failure, itc follows, as a consequence, that new grounds- of opposition may be set up against a claim allowed on a previous tableau, whenever a new fund comes into the hands of the syndicfor distribution.
   The judgment of the court (Eustis, C. J. absent,) was pronounced by

Rost, J.

The appeal taken by the heirs of Hull in this case, was. detached from the record, and was not brought to our notice till after the judgment had-been rendered. Upon discovering this error, we granted a re-hearing a&to them and their opposition to the claim of Mrs. West, is now before us, on the pleas off payment on one side, and of res judicata on the other.

On the first tableau of distribution filed, the claim of Mrs. West, and. her right of preference, were contested by these opponents, on the ground that her mortgage, not having been recorded as required by the act of. 1&13, her claim was-absolutely null and void. We disallowed the right of mortgage,, but recognized the claim as an ordinary debt, to the amount of $5,400. West v. Creditors, 1 Annual, 365.

It appears that, at the time this opposition was moA&rMrs. West had.received: the sum of $4,149 40, from the assignee of her husband, after his failure, in 1842. The opponents now plead this payment, and insist that Mrs. West has. no claim to any portion of the fund in hand.

In the appeals taken from the judgments rendered on the oppositions to the-second tableau of distribution filed by the syndic, we held that a creditor, who had proved a claim at the time of the first distribution, and received a dividend out of the fund then in the hands of the syndic, was not debarred' thereby from the right of proving, on a subsequent distribution, another and a distinct claim, existing at the time of the failure.

We came to this conclusion by analogies drawn from the practice established under the bankrupt laws of England and of the United States, giving effect to the familiar rule that, where there is doubt upon a question of res judicata, the party against whom the plea is set up should have the benefit of that doubt. West v. Creditors, 3 Annual, 532.

If, in subsequent distributions, creditors are permitted to set up new claims which existed when the first distribution was made, it follows that new grounds of opposition may be set up against then1 claims, whenever a new fund comes into the hands of the syndic for distribution.

It is proved that Mrs. West has received $4,149 40, on her claim. That amount must be deducted from the sum of $5,400, for which she is placed on the tableau.

It is therefore ordered that the judgment in this case be amended, so as to sustain the opposition of the heirs of Hull against Mrs. West, except for the sum of $1,251 60, for the amount of which Mrs. West is to be classed in the tableau as an ordinary creditor.

It is farther ordered that the judgment, as amended, be .affirmed.


author: Smdeli,, J.

text:
    Succession of Warren.
    in a contest between the creditors of an insolvent succession, the notes or obligations of the insolvent are not conclusive proof ot the debt of which they are evidence. They must be supported by such additional proof as will satisfy the judge of the fairness and justness of the claims.
    by the executors of Barton, from a judgment of the Second District Court of New Orleans, Cannon, J.

      T. A. Clarke and Micou, for the appellants.

      Livingston, for the administrator.
   The judgment of the court (Eustis, C. J. absent) was pronounced by

Smdeli,, J.

As the succession of Warren is insolvent, and as the consideration of the notes of the deceased held by the appellants, and the genuineness and bonaJides of their claim, were expressly put in issue, it was necessary for the apellants to produce some evidence, beyond the mere notes themselves. In Sabatier et al. v. Their Creditors, 6 Mart. N. S. 585, it was held that, in a contest between the creditors of an insolvent, the notes or obligations of the insolvent do not make in themselves conclusive proof of the debts apparently due to them. They must be supported by such additional evidence as will satisfy the mind of the judge of the fairness and justness of the claim. We are not aware that the opinion in that case has been questioned; and no argument has been adduced by the appellants against its correctness.

The district judge rejected a large portion of the appellants claim; and, after a careful consideration of the evidence, we do not feel ourselves authorized to say that his conclusions upon this question of fact were manifestly erroneous. If the whole amount represented by the notes was really due, it seems to us that there must have been ample evidence to support it within the reach of the holders. On the other hand, in view of the relations of the parties and the testimony respecting the acknowledgment of the deceased in his life time, it is difficult to resist the conviction that he died in debt to Barton, in whose favor the notes were drawn, at least to the amount for which the district judge has rendered judgment.

We have considered the appellee’s prayer for amendment, and are of opinion that the judgment requires no change. Judgment affirmed.