author: Buchanan, J. Merrick, C. J.

text:
      W. C. Auld v. J. B. Walton.
    "Whatever may have been the authority of a Commissioner of Election to inquire into the evidence of citizenship of a voter, prior to the passage of the Act approved the -20th of March, 1856, entitled “ an Act providing for the Registry of the names and residence of all the qualified electors of the city of New Orleans, according to Artiole-eleventh of the Constitution of the State,” he has no such power as the law now stands.
    By the said Act of March 20th, 1856, an officer is created having authority to receive and consider the proof of citizenship of any person desirous of exercising the elective franchise in New Orleans, and proof being made according to certain rules and forms of evidence set forth in the statute, to enregister the name of the applicant as a qualified elector, and to deliver him a certificate*
    This certificate is, by law, full proof of the right to vote at the day of its date of the person named in it, and no person can vote in New Orleans who is not the bearer of a certificate of registry.
    The office of Register, under the statute, is a special tribunal for the trial of the right to vote in New Orleans; and the certificate is in the nature of a judgment, which is not subject to revision by the Commissioners of Election.
    These judgments of the Register are, however, subject to revision. The '9th section of ,the Act provides a mode of redress, by a suit against the Register, for an applicant to whom the Register shall ‘ refuse a certificate. And the validity of the certificate, and the sufficiency of the proof upon which it was based, may in all cases be examined upon the contest of an election, by the tribunals seized of the jurisdiction of such contest.
    Where the registry of the vote is more than three months old, and there is no change of domicil endorsed upon the certificate, the vote may be challenged upon the ground that the voter has changed his domicil since the date of the registry, and by such change of domicil has lost his vote in that precinct. Upon such challenge being made, the Commissioners of Election may lawfully swear the voter as to the fact of his change of domicil.
    Appeal from the First District Court of New Orleans, Robertson, J.

      Benjamin, Bradford é Finney and George S. Lacey, for plaintiff and appellant.

      Randell Bunt and L. M. Bay, for 'defendant.
   Buchanan, J.

On the 5th of November, 1855, a general election was held in the city of New Orleans for the choice of State and parish officers by the people. The votes wore received at twenty-three distinct election precincts, fixed by the common council of New Orleans, in conformity to section sixth of the Act relative to Elections, approved March 15th, 1855.

The following were the officers to be elected: Governor, Lieutenant Govern- or, Secretary of State, Auditor, Treasurer, Attorney General, Superintendent of Education, Representatives in Congress, State Senators, Representatives in the State Legislature, Sheriff, Coroner, District Attorney, Clerks of Court, Assessors, Tax Collectors, Justices of the Peace and Constables.

The districts of election for some of these officers included all the precincts, for others but a portion of them; but in each and every precinct, one or more officers of each of the above denominations was to be voted for (among them, six Clerks of Court), and in two ballots: the vote for Justice of the Peace and Constable in one, and the vote for any or all of the other officers named in another; two ballot boxes being furnished, as directed by law, to each election precinct for the reception of the votes; one box in which to deposit the votes received for Justice and Constable, and one box for the votes cast for the other officers voted for.

At all of the twenty-three precincts the votes were received up to the hour fixed by law for closing the poll; when the ballot boxes were opened and the three Commissioners of Election, assisted by the two Clerks appointed and sworn in each precinct, proceeded to count and record the votes polled for each candidate. In twenty-one out of the twenty-three precincts, the counting was completed and recorded, and the result ascertained without any obstruction. But at two of the precincts, the seventh and ninth, after the counting of the votes had commenced and before it had been completed, the polls were invaded by mobs, who snatched from the hands of the Commissioners of Election the ballot boxes and ballots, and from the hands of the Clerks of the election the lists of voters and the tallies which they were occupied in keeping, and consigned ballots, ballot boxes, lists of voters and tallies, to an indiscrimate destruction.

Returns of the votes polled in all the precincts, except the seventh and ninth, were made to the proper returning officer. Prom the seventh precinct no returns were made. Prom the ninth precinct, there was a return of the vote for Justice of the Peace and Constable, but no return of the vote for the other officers.

Among the officers which it was the purpose of this election to fill, was that of Clerk of the Fourth District Court of New Orleans. The only candidates for that office were the plaintiff and the defendant, the nominees respectively of the Demow'atic and of the American parties. The returns of the twenty-one precincts, at which the vote was fully counted, as certified by the Commissioner to the Sheriff, and by the Sheriff to the Secretary of State, gave collectively to Mr. Walton, the defendant and the “American” candidate, a majority of two hundred and two votes over his opponent Mr. Auld, the plaintiff, candidate of the “Democratic” party ; and the present action is a contest of defendant’s right to the office, according to the forms and within the delays prescribed by the Act of 15th March, 1855, relative to elections.

The petition of the contestant, Mr. Auld, sets forth the following grounds of contestation:

1st. “ At the seventh precinct there were polled, in my favor, legal votes sufficient to give me a majority of at least two hundred and twenty votes at said precinct, which votes have not been returned to the Sheriff by the Commissioners, for the reason that before the Commissioners had finished counting all the votes given for the several candidates at said precinct, and before they had been able to make up their returns, the room in which said Commissioners were employed in counting said votes and making up said returns, was violently invaded by a band of lawless men, who destroyed the ballot boxes, the votes, the lists of voters, and the other papers and documents of the said Commissioners, although the count had progressed sufficiently far, of the vote cast for the said office of Clerk of the Fourth District Court of New Orleans, to enable said Commissioners and their Clerks to ascertain that there was a majority of at least two hundred and twenty votes of legal voters in favor of myself.
2d. “At the ninth precinct there was a large majority of legal votes given in my favor, the exact number of which I cannot specify, which votes were not returned in my favor by the Commissioners, because they were hindered from counting said votes and making the returns thereof, by the violent interruption of a band of lawless men, who destroyed the ballot boxes with their contents, and the list of voters, so as to render it impossible for the said Commissioners to make the returns required by law.
3d. “ At the twelfth precinct there was an error in counting the votes in the ballot boxes, and in making the returns of the count, which error resulted to my injury and disadvantage to the amount of twelve votes.
4th. “ At all of the precincts in the city except the fourth, a large number of legal voters, who tendered their votes in my favor; were rejected by the Commissioners and their votes refused, because they did not produce their certificates of naturalization, which the Commissioners arrogated to themselves the power of demanding, although no such power is granted them by law, and although said voters offered to take the oath required by the fourteenth section of the Act of the 15th of March, 1855, entitled an Act relative to Elections.
5th. “ At all the precincts in the city except the fourth, large numbers of legal voters, who tendered their votes in my favor, were rejected and their votes refused, after they had complied with the illegal and unauthorized demand of. the Commissioners for the production of their certificates of naturalization, and after taking or offering to take the oath required by the fourteenth section of the Act of the 15th of March, 1855 ; the said Commissioners giving no reason or pretence for the said refusal, except the illegal and frivolous pretext that they had the right to disregard and consider as null the judgment of courts of record whenever, in the opinion of said Commissioners, said judgments were erroneous.
6th. “ That the persons whose names are set forth in the papers hereto annexed, and marked A and B for greater certainty, together with many other persons whose names will be hereafter produced, were on the said day of the election legal voters of the parish of Orleans, and entitled to vote in the respective precincts set forth immediately above their names; and that on the day of said election they did tender their respective votes in my favor, at the respective precincts where they were entitled to vote, and that they were not admitted to vote, and that the votes were refused by the Commissioners, although they offered to take the oath prescribed by the fourteenth section of the Act of the 15th of March, 1855, entitled an Act relative to Elections, and although many of them did take the said oath, and did exhibit .also, in compliance with the illegal demand of the Commissioners, their certificates of naturalization duly issued in conformity to law, and that said votes were rejected solely on the illegal and unjust pretext set forth in the fourth and fifth grounds aforesaid.
■ 7th. “ That at the third precinct there were three legal votes in my favor ; at the eighteenth precinct one legal vote in my favor; at the twenty-third precinct five legal votes in my favor, and at the tenth precinct one legal vote in my favor; all for said office of Clerk of the Fourth District Court of New Orleans ; which were delivered by legal voters and received by the Commissioners of said respective precincts, which were not counted by the said Commissioners and not included in the returns, because, by accident or mistake, on the part of some one of the said Commissioners, they were deposited in the ballot box kept for the reception of votes for Justice of the*Peace and Constable.
8th. “ There was error to my prejudice in adding up the tally lists at all the precincts, the said additions showing a smaller number of votes in my favor, and a larger number in your favor, than "would have appeared if the tally lists had been correctly added.
9th. “ The grounds above set forth will, when proven, suffice to overcome the majority which I learn will be shown by the returns already made, the said majority being only two hundred and two votes.”

The petition concludes by a prayer for citation and for judgment, decreeing that petitioner and not the defendant, James B. Walton, was duly elected Clerk of the Fourth District Court of New Orleans.

Defendant pleaded the general issue, averred that he was the Clerk elect by a iarge majority, and that his majority would have been much larger had not the Commissioners of Election received votes for contestant of persons not legally naturalized and not entitled to vote.

Upon this issue the parties went to trial before a jury who found a verdict, by a majorffy of seven to five, “that J! i?. Walton, the defendant, was duly and legally elected to the office of Clerk of the Fourth District Court of New Orleans.”

A new trial was prayed for, which the District Judge refused to allow, (“ although inclined to the opinion that the verdict was contrary to the law and the fact,”) inasmuch as the forty-fifth section of the Act of 1855, relative to elections, declares that the court shall have no power to grant a now trial in a case of this kind.

The counsel of plaintiff has brought to our notice a contradiction between the English and French texts of this section quoted by the Judge of the District Court. For while the English text reads as stated, by the learned Judge, the French text seems to declare directly the reverse. In this contradiction of the two texts, we cannot say the Judge erred in adopting that which most promotes the end which the Legislature seem to have had in view in this statute, namely, a speedy determination of this class of cases.

The cause is now before us on the appeal of the contestant, under the Acts of 1856, pages 9 and 117, with the same latitude of control as was possessed by the jury under the forty-fifth section of the Act of 1855.

Counsel on both sides seem agreed in relation to two general principles of the law of contested elections:

1st. “ That the official return is prima facie evidence of the legality of an election.”
2d. “ That the election and not the return, entitles the party to the office, and that in a suit of this character, the court can go behind the return to ascertain the true canvass.” Tcople v. Torh, 14th Barbour’s New York Rep.

The burden of proof is upon the contestant (in the words of his ninth ground) “to overcome the majority shown by the returns already made, of two hundred and two votes” against him.

He proposes to do this by two different kinds of evidence:

1st. Of votes received at the polls, but not counted.

2d. Of votes offered at the polls and which ought to have been received, but were not received.

No question is made of the admissibility of the first kind of proof. The argument in relation to it, turns exclusively upon the credibility and effect of statements of witnesses to some extent conflicting.

The second class of evidence offered, involves many and intricate questions of law, but little or no contradiction as to facts.

The principal evidence of the first class is that in relation to the destruction of the ballots 'at the seventh and ninth precincts, and the state of the vote at those precincts at the close of the polls; and our attention must first be directed to the testimony given by the witnesses upon this subject.

The destruction of those ballots was a crime committed by persons unknown, which both plaintiff and defendant deplore, and in the commission of which there is not the .slightest hint of suspicion, in the pleadings or in the evidence, that either of them had any complicity. Both parties admit that a large number of votes was received at the two precincts in question. Both parties admit the propriety and necessity of secondary evidence of that vote, to come in aid of the partial returns of election which have been made; and to assure the possession of the office in contest to that candidate who has in truth been elected to fill it. The only dispute on this branch of the case is, whether the testimony adduced has accomplished this object. On the part of plaintiff, it is insisted that the state of the poll at the seventh and ninth precincts is established with sufficient certainty by the evidence. On the part of defendant, it is contended that the data are insufficient for that purpose. As to the occurrences at the seventh precinct, we. have the testimony of the three Commissioners, William Glmdsty, Samuel Loche and Charles IT. Horton; of the two Clerks of the precinct, L>. Mitchell and C. L>. Raney; of the Deputy Sheriff at that precinct, T. D. Hwrper ; and of a citizen, T. J. Hitzelberger.

All these witnesses agree that the total number of votes received at the seventh precinct from the opening- to the closing of the poll was eight hundred and ninety-four, except Hitzelberger, who does not mention the number.

They ail agree that, when the hour arrived for closing the polls the Commissioners opened, first, the ballot box containing the ballots polled for the State and parish officers, other than Justice and Constable, and commenced ascertaining the result of the election, as to those officers, by unfolding the tickets and distributing them into three piles; one pile being composed of printed tickets, headed “ Democratic,” which had no name erased or written upon them. This is called by the witnesses “ the straight Democratic ticket.” Another pile was composed of printed tickets, headed “ American,” which had no name erased or written upon them. The witnesses call this “ the straight American ticket.” A third pile was formed of “ scratched” or “ split” tickets.

The important operation of counting the votes was next in order; and as this is the point where the witnesses sunder, it becomes indispcnsible to trace, step by step, the testimony of each. We take them in the order in which they stand in the record.

D. Mitchell says, “ Colonel Christy counted out, one at a time, without calling the names on the ticket, the number of straight American tickets, amounting to 299, and told me to put that down as the number of straight American tickets. Mr. Loche, in like manner, counted the straight Democratic tickets, amounting to 509. The split tickets were called off, the names on each ticket, and tallied by the clerks. On those the different candidates had different majorities. These tickets were then put back in the ballot box, and locked up by Colonel Christy. Then they commenced opening the box of Justice of the Peace and Constable, and began to assort the tickets in the same manner as they had done for the others; and they had counted out those for Justice of the Peace and Constable, tickets that had the names of Mr. Bradford and Mr. Agaisse on them, and they had counted about 140 of the tickets having the name of Mr. Gumllieo' and Mr. Eecvrny, when the mob came in, took the ballot boxes and the other tickets that were then on the table, also all the tally lists and lists of voters, and carried then out into the street, and that is the last I saw of them.”

Mr. Raney says, “ Colonel Christy then proceeded to examine the straight American tickets, counting from one to one hundred. When he got through, my memory docs not serve me what the number of the straight American ticket was. In counting the straight American tickets, they were taken out one by one from one hat and put into another. When he got to one hundred I put down on my sheet the figure 100, and so on until he got through. After they got through the straight American ticket, Mr. Loclce proceeded to count the straight Democratic ticket in the same manner as Colonel Gh/i'isty did the straight American ticket, and I kept the tally in the same manner.” “ My memory does not serve me now so as to state the number of straight Democratic tickets.” “ The scratched tickets were then called off by Mr. Loclce, and each name tallied up by the Clerk. After we had got through tallying the scratched tickets, the whole of the tickets, straight American, straight Democratic, and scratched, were then placed back together in the box, either by Mr. Horton or Colonel Christy. 1 mean, they were placed in the same from which they had been taken in the first instance, and the box was looked up. We then proceeded to open the Justice box and assort the tickets in the same manner as in the State box, placed them in three different piles, one pile in a hat, one pile in a basket, and one pile in a bucket, the same receptacle which had been used for the State tickets. Mr. Loclce then proceeded to count the straight Democratic tickets for Justice of the Peace and Constable. They were counted in the same manner as the State tickets. While the Commissioners were counting the Justice’s box Mr. Mitchell and myself were then adding our tally list to make our report for the State ticket and the vote for each candidate on the scratched ticket together, and the result had been extended. The result for Sheriff and for Governor had been announced. While the Commissioners were counting the Justice’s box the mob broke in, blew out the lights, seized the tally sheets, the ballot box, one of the round tables, took them out in the middle of the street, then made a fire of the whole of' it. This took place at about half-past eleven o’clock p. m.”

Samuel Loclce says, “After the closing of the polls we proceeded to open the State box. There were two boxes, one for Justice and Constable, and the other for all the officers mentioned in ticket marked B. We proceeded to straighten out and assort the tickets, putting- the Democratic clean unscratched tickets into a champagne basket; putting the clean unscratched American tickets into a hat; all tickets that were scratched. or not throughout a party ticket, were put into another hat,” “ I counted the clean Democratic tickets, Messrs. Clw'isty and Horton looldng over me to see that I counted right. There were 509 of them. Mr. Christy counted the clean American ticket, I looking to see that he was counting right. There were 299 of them. There were 85 scratched tickets, and one blank ticket. I called off all the names on the scratched tickets. The Clerks kept the tally. Mr. Horton looking over me and taking the tickets to see if I called them right. Some of them had the Governor scratched, some the Sheriff, and others other candidates.”

“ After the ballots had been assorted, counted and tallied, they were all put together in the State ballot box by Mr. Christy, who pressed them down to get them in. The box was locked by him, and the key put in his, Christy’s, pocket, and he remarked that we had done with them, and his plan had been carried out, that is, in counting the ballots instead of tallying each name. We then proceeded to open the Justice’s box, straightened out and assorted the tickets in the same manner; and we fouud three State tickets in these, two American tickets and one Democratic ticket. The Clerks were ordered to add these to the count. The account I have given of the number of votes for each party was made up then, these votes being counted. Mr. Christy opened the State box, and put then those tickets into it, and put the key back in his pocket. Just previous to adding these three ballots, the Clerks had announced the majority for the Governor and the Sheriff. We proceeded to count the Justice’s votes in the same manner as we had done the State tickets ; Mr. Christy counting the American vote for Justice and Constable, and there were 299 votes, and I was counting the Democratic votes when the mob got in and destroyed them.”

T. B. Ila/rp&i' says, “ After closing the poll the votes were separated, as be. fore stated by Mr. Locike; they finished counting; all the State tickets were placed by Colonel Christy in a box, and locked up by him; the Commissioners had commenced counting the votes for Justice and Constable. The whole number of votes was 894 — 567 for Bell, 318 for Eufty. Heard Colonel Christy announce the majority for Sheriff, also Mr. Locke. This was about an hour before the mob broke in.” “ Witness did not add up the tally lists. It was done by the Clerks.” “When they had finished counting the three piles of State tickets, they were put by Colonel Christy in the State box, were pressed down by him, and the box locked by him with the remark “ that is now done with.” This box was afterwards opened to put into it the tickets which had been found in the Justice’s box. Colonel Christy then requested Mr. Locke to relieve him, as he was tired, and count the tickets in the Justice’s box.”

William Christy says, “At the closing of the polls, the tickets were divided into three parcels. Those headed ‘ American ’ were placed together, and those headed ‘Democratic’ placed together, and those scratched, were placed together, with the view of facilitating us in calling off the names of candidates, none of which had been called off except those upon the split tickets. These bundles of tickets were made expressly with reference to their heading. The assorting these tickets and piles was done with groat rapidity, and not a name was examined by any of the Inspectors, and so far as I was concerned, I did not examine a singl e name upon a singl e ticket thus assorted, nor did any of the other Inspectors to my knowledge. The three Inspectors assorted all of the tickets. Each took a handful of the tickets, examined the heading, and placed each ticket on its proper pile. Mr. Locke then counted the number of tickets headed ‘ Democratic,’ and I counted those headed ‘ American,,’ The number of each was announced, and I ordered it to be put upon loose sheets of paper by the Clerks. We then proceeded to call off all the names upon the eighty split tickets, and, as before stated, those were all the names that were called off and tallied.” “This arrangement of the tickets into piles was a preliminary step, taken by us merely to facilitate the counting, and was not intended by the Commissioners to be the final counting of the votes. This was done at my suggestion. I did not see the name of Mr. AvM or of Mr. Walton upon any of the tickets in either pile, except that of the split tickets which was counted. After the distribution of the tickets, I put the American tickets which I had counted back into the ballot box. Those headed Democratic were placed in a champagne basket, and those which were split were placed in a bucket, with the view of a final examination and calling off. While wo were counting the votes of Justice of the Peace, and before we had touched the others, the boxes were destroyed. We did not, I am positive, put all the tickets, American, Democratic and scratched, back into the box, and lock the box up. I did not lock the box containing the tickets headed ‘American,’ nor touch the key. I could not have made a return at any time since the election showing the nurn* bor of votes received by any one candidate at that precinct. The ticket boxes and every scrap of paper that was on the table disappeared in about five seconds after the mob entered, and the last I saw of them they wore burning in the street.” “The total number of votes cast at that election precinct was, I think, 8í)4. I am not positive, but that is my impression of the number. I do not know how many tickets were said to have been on that pile called ‘ Democratic ’ tickets. As the number was placed on paper by the Clex’ks, by order of the Inspectors, I did not charge my memory with it.” “ I think there were about 82 scratched votes — between 80 and 90. I have no idea what the relative vote between Auld and Walton on the scratched ticket was, as the tallies had not been counted by the Clerks axxd reported by the Inspectors. I heard the names on the scratched tickets called out.” “ I never on that day officially announced to any pei’son the result of the election as to any candidate, but I did announoe the number of votes headed ‘ American’ when I returned them to the box, which number was taken down by the Clerks; but I do not remember what that number was.”

Examined on another occassion, Mr. Christy says, “ The State ticket had been counted before the destruction of the boxes, and divided into three piles, one headed by JDerbigny, the other by Wiclcliffe, the third the split tickets, which last pile was large and had to be tallied and each name called. Witness suggested to the Clerks to go on and can-y out and add these tallies whilst the Commissioners counted the votes for Justice and Constable, which was done.” “ Witness did not, xxor did he hear any of the other Judges ask the Clex’ks if they had finished their tally, and what the result was, before the destruction of the box; but he heard remarked in conversation around hin, (does not know by whom, as he was engaged in counting,) that the result would bo on the general ticket, about 213 majority for Wiclcliffe, and about 250 majority for Bell”

C. H. Horton says, “ There is no fact or circumstance of that election that I am aware of, by which the actual vote of any of the candidates can be known by me. I have no information about the correctness of the counting of the straight piles of votes, and I do not know what one of the Commissioners conceded as to the correct counting of those piles. I am unable to say aiything in regard to Mr. Auld's position, or that of any other of the candidates on the tickets relatively.” “ I am certain that after the tickets had been separated and counted, as described by Colonel Christy, they were placed, those headed ‘American’ in the ballot box, those headed ‘Democratic’ in the champagne basket, and those that were sci-atched in the bucket.”

Examined on another occasion, Mr. Horton says, “ The whole of the State tickets had been counted out axxd tallied by the Clerks. Thinks the Clerks did announce the votes for some of the candidates. Was very busy counting votes from the other boxes. Does not remember how many straight Democratic tickets had been counted. Remembers the straight American ticket was 299. Thinks the number of the straight Democratic ticket exceeded 500.”

T. J. IlitzeTberrger says: “Was present at the'Tth Ward when the tickets were separated into thx’ee parts. Does not know what piles contained ‘ straight American tickets,’ and what contained ‘ stx’aight Democi’atic tickets,’ nor what contained ‘ scratched tickets ;’ but I found it impossible, from the extreme rapidity with which the tickets were passed from the ballot box, to ascertain whether the tickets were straight Democratic tickets or straight American tickets. They were headed, however, Democratic and American tickets respectively, and. as such counted.” “ To the best of my recollection, after the separation of the tickets, the American tickets and the scratched tickets were returned to the ballot box, the Democratic tickets being left in the champagne basket. I supervised the counting of the Democratic tickets by Samuel Loclce, having previously called the attention of Commissioners Ohristy and Horton to the necessity of such supervision.”

“ The tickets were separated, as 1 understood, with a view to ascertain the approximate result of the election, to gratify public curiosity, and not with a view to an accurate and final result of the election. The separation was made solely to ascertain approximation to the gubernatorial vote.”

These copious extracts from the testimony are believed to contain all that the record shows, which is material, in relation to the counting of the vote at the 7th precinct, at the election of the 5th November, 1855.

In connection with the testimony of Mitaliell and Haney, we must not omit, however, to mention that there is in evidence a memorandum which those gentlemen, with a very commendable regard to their duty as sworn Clerks of the election, and to the rights of their fellow-citizens interested in this election as voters or as candidates, made and signed by comparing their recollections of the lists of voters and the tallies which had been destroyed, on the very next day succeeding the election. This memorandum commences by giving the exact vote polled for each of the candidates for the offices of Governor and Sheriff, at the 7th precinct, and proceeds to state the minimum majority of the candidates who had obtained the highest votes for each of the other offices included in what the witnesses call the State ticket. In this memorandum it is declared that the plaintiff W. G. Auld, had obtained a majority, at that precinct, of not less than two hundred and twenty votes, for the office of Clerk of the Fourth District Court.

We see nó reason to doubt the correctness of this memorandum. It is made by the very men who had been engaged the whole of the preceding day, from nine o’clock in the morning until twelve o’clock at night, in recording the votes received and in tallying the votes counted. It is proved that the vote for Governor and for Sheriff (which two offices excited a more general interest than the others) had been definitively ascertained and announced before the destruction of the ballots and tallies. It is proved that the contest was between two party nominations for fourteen distinct classes of office, besides those of Governor and Sheriff, and to be filled (so far as the vote of the 7th precinct was concerned) by twenty-five individuals, whose names might be, and in most cases were, all included in each ticket polled, in addition to those of the candidates for Governor and for Sheriff. It is proved that, in order to avoid the enormous fatigue and delay of going through every one of nearly a thousand tickets, name by name, (or proclaiming and tallying twenty-five thousand names separately,) the Commissioners at this precinct had adopted a mode of operation which, it is also proved, was followed at the other precincts, which have made returns whose correctness is not disputed, namely: to cull out from the mass of ballots all those of a strictly party character; to distribute such into two piles, according to the party for which they were respectively cast; to put all the ballots which did not contain a complete or unmixed list of the nominees of the parties engaged in the contest, in a third pile; after such distribution of the ballots, to count each ticket in the party piles, as a vote for each nominee of the party in whose pile it was found; and only to call off, name by name, the tickets in the third pile, whose mixed character rendered its minute verification a matter of unavoidable necessity. It is proved that this mode of operation, thus adopted, was carried out by the Commissioners at this precinct; that, of the 894 ballots polled and deposited in the “ State” ballot box, 509 were assigned to the “Democratic” pile, 299 to the “American” pile, 85 to the “split” or “scratched” pile, and that one ticket was a blank paper; that 509 votes were therefore assigned to each candidate (besides Governor and Sheriff) on the “State” ticket of the Democratic party, and 299 to each candidate on the “State” ticket of the American party; that the “split” tickets were called off, and the votes tallied name by name.

It is proved that, after the count of the “ State ” ticket, made and recorded in the mode just described, the ballots, or a portion of them, wore restored to the “ State” ballot box; and the Commissioners proceeded to open the “ Justice’s ” ballot box, and to make a similar distribution into three piles of the ballots polled for Justice of the Peace and Constable, preparatory to a count of the vote for those officers.

It is proved' that while the Commissioners were engaged in distributing the ballots for Justice of the Peace and Constable, the Clerks added up, compared, and extended the result of their tallies of the vote for each candidate upon the “ State ” ticket, as a fact accomplished, and in accordance with the expressed intentions of the Commissioners.

Under these circumstances, when the irruption of the mob had annihilated the record which the law had provided, it was an effort of memory, not a matter of conjecture, on the part of the Clerks of election for the íth precinct, to establish the exact majority which the highest competitor for each office on the “ State ” ticket had obtained. They lost no time in taxing their memory for that purpose, and in consigning the majorities to paper, after consultation with each other, before intervening days and nights, and the routine of the ordinary pursuits of life, had effaced or dimmed the freshness of their recollection of the exciting events in which they had participated. Of those events, the tally and its addition were not only the most interesting, as being the consummation to which everything else tended, but wore also the events with which the two signers of this memorandum had, of all the actors in the scene, the most intimate connection. They were, emphatically, their own work. And the effort of memory, which reproduced the majorities, were not, in reality, so great as it might seem at first blush. The two Clerks were only obliged to recall the addition of the several names on the eighty-four “ scratched ” tickets, being less than one-tenth of the whole number of votes cast.

Finally, the two Clerks concur in testifying to the correctness of the memorandum thus made to replace the tallies destroyed. ■ On this subject, Mitchell, examined in this cause on the 19th January, 1856, says: “I carried out the tallies on the split ticket. I made a memorandum to the best of my recollection. I cannot recollect the exact majority of each candidate. I made the memorandum the next morning after the election. That memorandum was made, by Mr. Raney and myself.”

[The memorandum was here shown to the witness.] “ When I presented the memorandum to Mr. Raney, I asked, him if his recollection corroborated mine, and if the majorities put down on that paper were correct. I informed Mr. Raney that I intended to show the memorandum to Colonel Christy and the (Other Commissioners, with a view to have a return made.”

The witness Ramey says, on the same point: “ Being shown the original memorandum filed in the Oth District Court as document B, says that his signature thereto is genuine. Mr. Mitchell and myself met on Tuesday morning after the election. Wc had a conversation in regard to the majorities. We agreed in regal’d to the majorities, with the exception of one name, that of Ool. Marl's; and after my explaining to him, he then agreed that I was right. I told him that we had better got together and make out a statement, our memory being then fresh. He then said he would preparo a memorandum of the majority, and present it to me for examination, and on Wednesday morning, after examining it carefully, I signed it, and it is the same memorandum filed in the 6th District Court and marded “ B.” That memorandum is a correct statement of the majorities for each candidate, according to my recollection at the time. I am positive that the statement in the memorandum is the lowest number, and when Mr. Mitchell and I could not agree we took the lowest ebb. I told Mr. Mitchell at the time that Mr. AulWs majority was twenty votes more than it is given in the memorandum.”

The court has marked with satisfaction that no objection was made to the introduction of this parol evidence, to supply the place of the ballots and tallies destroyed. It affords a proof, if any were required, of the detestation which the respectable defendant and his eminent counsel entertain for any attempt, through violence, to pervert or defeat the exercise of the right of suffrage.

The sovereign, in this land, is the people, and the ballot is the expression of the sovereign will. The audacious criminal who lays the hand of violence upon the ballot box, in effect usurps the sovereinty of the country. Wherever, therefore, a case of such attempted usurpation is presented, the tribunals charged with the jurisdiction of contested elections should avail themselves of every legal means within their reach, to ascertain whether the popular will has been expressed through the ballot box ; and if so, what it has decreed.

In Summing up the evidence of the occurrences at the 7th precinct, a wish to avoid adding to the otherwise, perhaps, excessive length of this decision, has alone prevented us from commenting on the discrepancies in the testimony of some of the witnesses. We have contented ourselves with recapitulating the material portions of their depositions, and giving our carefully considered conclusions. We will observe that some of the apparent contradictions are not, in reality, so much differences of fact as differences of inference from facts ; and that, where there exists a real and substantial variance in a matter of fact, the court is bound to attach more weight to a precise and positive affirmation, than to a negation founded upon a memory, either avowedly or obviously defective.

The record contains evidence of a ticket, printed and circulated in considerable quantities on the day of election, which contained the names of “Democratic” candidates for all the State offices, and the “American” candidates for all the parish offices, including Clerks of Courts; also of another ticket, which was throughout “Democratic,” with the exception of the Clerk of the Fourth District Court, for which office it had Walton’s name instead of Auld\ and it is argued that some of these tickets might possibly have been counted at the 7th precinct as “straight Democratic” tickets. On this point it is only necessary to say, that not a single ticket of either of these descriptions is proved to have been voted at the 7th precinct. We conclude, therefore, that the plaintiff is entitled to count a majority of two hundred and twenty votes, at the 7th precinct, in addition to his vote as certified in the official returns to the Sheriff, in evidence. This is sufficient to overcome the majority of two hundred and two votos for defendant, shown by the official returns, and to convert the result of the election into a majority of eighteen votes for plaintiff.

The ballot box was also broken in the 9th precinct, and the ballots, &c., dedcstroyed. In this precinct, differently from what occurred at the 7th, the Commissioners, after the polls were closed, commenced by counting the ballots for Justice and Constable. Having finished that box, and ascertained the result, (of which they have made a return,) the Commissioners opened the “State box,” and commenced distributing the tickets into piles, as at the 7th precinct. They had gone so far with this operation as to count and announce 188 “straight American” tickets, which finished that pile. They then commenced counting the “straight Democratic” tickets, and had got as far, according to some, as 100, and according to others, as 100, when a mob rushed in and destroyed ballots, ballot boxes and papers, as at the 7th precinct. The evidence as to the state of the poll at the 9th precinct rests, therefore, very much on conjecture; but wo are spared the labor of scrutinizing that evidence, inasmuch as'no witness, out of many who have been examined, pretends that Mr. Wallon had a majority over Mr. Auld at that poll. The official return shows a majority of twenty-one for the “Democratic” candidate for Justice of the Peace at the 9th precinct, and the coiyeatured majority of plaintiff over defendant is stated by none of the witnesses at a lower figure, and by most of them at a much higher one.

The great bulk of this monstrously voluminous record is composed of evidence in relation to votes tendered at all the different precincts for plaintiff; and rejected by the Commissioners of Election. In relation to these, it has been argued upon authority, by the counsel of defendant, that under the system of voting by ballot, rejected votes cannot be counted for the candidate who received a minority of the votes actually cast. Did we go into the inquiry of the propriety of the rejection of these votes, we would have to consider and decide a variety of grave and intricate questions of constitutional and statute law, which have been elaborately argued by the learned counsel on both sides, with a research and ability which challenge our admiration. But in the view that we have taken of this cause, it is not necessary that we should express any opinion upon the admissibility or effect of the proof as to the rejected votes. We find that a majority of the votes actually received were cast for the plaintiff and contestant. He is therefore entitled to the office.

It is proper to remark, that the defendant offered no evidence in the court below in support of the allegation of his answer: “That his majority would have been largely increased had not the Commissioners of Election received the votes, for the plaintiff, W. G. Auld, of persons that were not legally naturalized and had no right to vote.”

And here we might terminate. The settlement of the controversy between these parties demands no more. But the holy mission of restoring tranquility to an agitated community is ours. The Acts of 1856, which have conferred aipon this court an appellate jurisdiction in matters of contested elections, give us the authority, and the alarming- state of things which this record discloses makes it our duty, to expound what we conceive to be the rules laid down by the legislative will for government of those citizens who may in future be called to fulfil the irksome and invidious, no less than important, functions of Commissioners of Election in New Orleans.

Whatever may have been the authority of a Commissioner oí Election, under the law as it existed on the 5th November, 1855, to inquire into the evidences of citizenship of a voter (upon which we forbear to express any opinion,) he certainly has no such authority as the law now stands.

The 11th Article of the State Constitution reads as follows: “The Legislature shall provide by law that the names and residence of the qualified electors of the city of New Orleans shall be registered in order to entitle them to vote, but the registry shall be free of cost to the elector.”

In obedience to this constitutional injunction the Legislature has passed the Act, approved the 20th March, 1856, entitled “An Act providing for the registry of the names and residence of all the qualified electors of the city of New Orleans, according to Article eleven of the Constitution of the State.”

By the provisions of this Act an officer is created, with a salary equal to that of a Judge of the Supreme Court, having authority to receive and consider the proof of citizenship of any person ambitious of possessing and exercising the elective franchise in New Orleans; and upon such proof being made, according to certain rules and forms of evidence fully set forth in the statute, to enregister the name of the applicant as a qualified elector, and to deliver to him a certificate, setting forth, if a naturalized citizen, the particulars of his naturalization and the proof by which it has been established. This certificate is by law full proof of the right to vote, at the day of its date, of the person who is named in it; and no person whatever can vote in New Orleans unless he is the bearer of a certificate of registry.

Section 20th enacts: “That from and after the first Monday of October next (1856) any person having complied with the provisions of this Act shall be entitled to vote, and whenever the right of any person shall be challenged at the polls, the certificate of registry issued to such person shall be held conclusive of the right of said person to vote, and no Commissioner or Commissioners of Election shall require, under the pains and penalties imposed by the sixteenth section of this Act, any other evidence of the right of such person to vote, except that portion of the oath prescribed by Article ninetieth of the Constitution respecting duelling, and the following oath or affirmation, viz: “You solemnly swear (or affirm) that you are the the identical person described in and to whom this certificate was issued, and that you are not a soldier-, seaman or marine in the army or navy of the United States, nor under conviction of crime punishable by hard labor, or a pauper.”

“Section 21. Be it further enacted, That no person shall be entitled to vote who shall not have registered his name in pursuance with the provisions of this Act.”

We view the office of Registe, under this statute, as a special tribunal for the trial of the right to vote in New Orleans, whoso certificate is in the nature of a judgment, which is not subject to revision by the Commissioners of Election.

We. do not hold, however, the judgments of that tribunal to be without appeal. The 9th section of the Act provides a mode of redress, by suit against the Register, for an applicant to whom the Register shall refuse a certificate. And the validity of the certificate, and the sufficiency of the proof upon which it was based, may in all cases be examined, upon a contest of an election, by the tribunals seized of the jurisdiction of such contest.

We also hold that, where the registry of the voter is more than three months old, and there is no change of domicil endorsed on the certificate, the vote may foe challenged on the ground that the voter has changed his domicil since the date of the registry, and by such change of domicil lost his vote in that precinct; and upon such challenge being made, the Commissioners of Election may lawfully swear the voter as to the fact of his change of domicil. For, although the certificate of registry be, under the 20th section, conclusive proof to the Commissioners of the residence of the voter in the precinct at the date of the registry; and although, by Section seven and eight of the Registry Act, it is the duty of the voter to notify the Register of a change of domicil, and to have the same endorsed on his certificate of registry, yet it may he that a voter who has changed his domicil has neglected this formality.

We confidently expect that this exposition of the principles of the election law in New Orleans, emanating from an authority of the last resort, will command the respect and acquiescence of all; that the actions of the Commissioners of Election will thereby be rendered uniform and easy of performance; and finally, what is of paramount importance, that disorder will thereby be effectually prevented.

For the reasons above given, it is ordered, adjudged and decreed, that the judgment of the District Court upon the verdict of the jury he reversed, and that there he judgment in favor of the plaintiff and appellant, William G. Avid, decreeing him, the said Avid, to he entitled to the office of Clerk of the Fourth District Court of New Orleans.

Merrick, C. J.

In the limited time I have been able to devote to the voluminous record in this case, I have not been able to satisfy myself fully of the accuracy of the conclusions of the majority of the court; nevertheless I am unwilling to dissent or to delay the decision of this important cause upon a question of fact upon which my colleagues are unanimous.


source: Caselaw Access Project

author: Spoffoed, J.

license: Public Domain

text:
    L. Clauss v. W. Burgess and Wife.
    ftn objection to a document offered in evidence that it was not signed by all the parties, goes to the effect of the evidence, and not to its admissibility. A clerical error in the date of an instrument may be amended by parol evidence.
    The acceptance of an heir is express when he assumes the quality of heir in an unqualified manner in some authentic or private instrument, or in some judicial proceeding.
    The intention with which an act is signed by the heir is made by Article 988 of the Code the touchstone of its character. If signed with the intention of binding himself as heir, he becomes heir pure and simple.
    When a written instrument, purporting to be a notarial act of sale of property of the succession, by all the heirs, was signed by some of the heirs, and others refused to sign it, on the ground that they would render themselves liable as heirs, and the act of sale in consequence was not consummated, it is, nevertheless, an express acceptance of the succession by those heirs who signed the instrument, and they are liable as heirs.
    The subsequent formal renunciation of heirs who have thus accepted will not undo the effect of their acceptance.
    Appeal from the District Court of Pointe Coupée, Gooley, J.

      TT. B. & B. Phillips, for plaintiff

      8. /. Powell, for defendant and appellant
   Spoffoed, J.

The question here is whether the defendants have made themselves liable as heirs pure and simple of their deceased son, Wesley L. Bmgess.

The objections to the reception of the evidence offered by the plaintiff went to the effect of the evidence, and were correctly overruled; and the clerical error in the date of the writing was amendable by parol.

The proof is that the two defendants signed a written instrument, which was intended to be a notarial act of sale from themselves and their two surviving children, Lewis A. Burgess and Mrs. Lucinda Bwrgess, wife of FT. B. Benjamin, to Messrs. F. V. & J. W. Leake, of an undivided half of a lot of ground in Bayou Sara, described in the act as having belonged in common to F. V. Leake and the late Wesley L. Bwrgess, it being the same acquired by the said Wesley Bwgess to L. Glauss by an act specially designated. The vendors were also said in the act to be “the heirs at law of Wesley L. Bwt'gess, deceased.”

It is also proved that Mrs. Lucinda A. Burgess, one of the parties named as vendors in this act, refused to sign it, “for the reason that she feared to make herself unconditionally liable for the debts of the estate, there being no legal administration of deceased’s estate.”

It is also in evidence that long afterwards the defendant, William Burgess, put the Messrs. Leake in default by tendering them a title to the same property on the terms described in the projected act aforesaid, but they answered that they were not bound to accept the title.

Upon these facts the District Judge concluded that the defendants had made themselves unconditional heirs of the succession of Wesley L. Burgess, and from a judgment against them for a debt due by that succession to the plaintiff they have appealed.

It is urged by the appellants that, as the pretended act of sale was a mere project, never signed by their co-heirs, the two surviving children, nor by the pretended vendees, nor by the notary, it cannot constitute an acceptance, either express or tacit, on the part of the two heirs who did sign it.

“The simple acceptance may be either express or tacit. It is express when the heir assumes the quality of heir in an unqualified manner, in some authentic or private instrument, or in some judicial proceeding. It is tacit when some act is done by the heir which necessarily supposes his intention to accept, and which he would have no right to do but in his quality of heir.” O. C. 982.

“By the word act, used in the preceding Article, is understood any writing made with the intention of obliging himself, or contracting as heir, and not a simple letter or note, still less a verbal declaration, in which the person who is called to the succession may have styled himself the heir.” O. C. 983.

In Flower v. O'Connor, 8 N. S. 556, it was justly observed that the latter Article has reference alone to the express acceptance spoken of in the preceding Article, the word acte, in the French text of that branch of the former Article, having been translated instrument.

An express acceptance is effected by something written, a tacit acceptance by something done.

The District Judge thought that by signing what purported to be an act of sale of property belonging to the deceased, in which they described themselves as his heirs, the defendants expressly accepted his succession.

The intention with which they signed this projet of an act is made by Article 983 the touchstone of its character.

Bid they sign it with intent to bind themselves as heirs of Wesley Burgess ? If they did, they are heirs pure and simple.

We think it manifest, from a perusal of the whole instrument, that they did sign it with that intention; indeed they could not have signed it with any other. In it they described themselves as his heirs; by it they engaged to sell a portion of his property for a stipulated consideration. That they failed to carry out the engagement was no fault of theirs, for they did all they could to consummate it. The fact that the instrument never became binding on them as a sale, for the want of the assent of other proposed vendors, and a consequent acceptance by the vendees, can have no such retroactive effect as to change the intention with which they signed it.

In the express acceptance, the intention must be manifested by what is written; in the tacit, by what is done. O. C. 984.

"We find in this case a written declaration of the defendants which, in our judgment, clearly shows a design on their part to act as masters of the succession of Wesley L. Burgess.

They are, therefore, his unconditional heirs. 3 Marcadé, No. 205.

Such would probably have been the determination of the cause, even if the Articles 983 and 984 had not been added by the compilers of our present Code to the Code of 1808, which followed the French original much more closely. M. Duranton teaches that an act which is declared void for a vice of form or for incapacity on the part of the person with whom the heir supposed he was contracting, may, nevertheless, constitute an acceptance on the part of the heir, if it shows a design to accept. Although the act has no effect, as between the parties, to bind them in a covenant, it may have the effect of disclosing the heirs’ intention to accept the inheritance which has fallen to him. 6 Duranton, No. 383.

It is contended by the appellant’s counsel that this construction may open the door to fraud. The Code has guarded against that in Article 1003: “The heir who is of age cannot dispute the validity of his acceptance, whether it be express or tacit, unless such acceptance has been the consequence of fraud practiced or violence exercised against him, he never can urge such claim under pretext of lesion.”

In the present case there is no suggestion of fraud or error.

The formal renunciation of the defendants, after the acceptance which we have described, did not undo its effects. Semel Imres, semper hceres.

The attempt to sell the property as the property of Wesley Bwrgess would imply an acceptance, even if it turned out not to be his, for it is the intention which controls. 3 Marcadé, No. 203. So proof of the title being in his succession was unnecessary.

It is, therefore, ordered and decreed, that the judgment of the District Court be affirmed, with costs.


author: Spofrord, J.

text:
    Euphrosin Hotard v. Mary C. Hotard, his Wife.
    The interdiction of the wife for the cause of insanity, is no ground for a decree of separation of property against her in favor of the husband.
    The community can be dissolved by the husband, only by the eifects of the dissolution of the marriage bond, or a separation a mema et thoro, of which a dissolution of the community ip thelogical sequence.
    APPEAL from the District Court of Terrebonne, Cole, J.

      Connelly & Righten', for plaintiff and appellant.

      Goode S Aycoeh, for defendant.
   Spofrord, J.

The plaintiff sued to procure the interdiction of his wife for the cause of insanity, and also prayed for a decree of separation of property against her.

The former prayer was granted and the latter rejected; the husband has appealed, and urges in this court that the separation of property should be awarded. .

His argument is, that the law of community is predicated upon the theory that matrimonial gains are the result of the reciprocal industry and thrift of husband and wife ; that, therefore, when the wife ceases to contribute anything to the community in the way of labor, care or counsel, and becomes a helpless burden to the business partnership, the partnership should cease and the husband be entitled to a separation of property.

Marriage is a contract for life, and, in this State, it superinduces of right a partnership of acquets and gains in the absence of a contrary stipulation at the date of the marriage. This community is only dissolved consequentially by a dissolution of the marriage, or a separation of bed and board, and directly by a separation of property judicially pronounced. The causes for which a divorce a vinculo, a separation from bed and board and a separation of property may be demanded, are specially defined by law. An interdiction for insanity, although authorized at the suit of either spouse by Article 383 of the Civil Code, has not been named by the law giver as one of these causes. It is out of our power to add it to the category.

This is not the proper forum in which to assail the wisdom of rules of property laid down by the Legislature, or to seek an amendment of them, by softening their rigor or creating exceptions, which the law itself has not recognized.

It may be true, that among the rude and hardy tribes of German origin who introduced the custom of the- matrimonial community of gains into Gaul, whence it has been transmitted to us, the wife was the equal partner of her husband’s toil. If, in the change of manners which a higher civilization has produced, this prime reason of the community law has ceased to exist, yet the institution remains. With us it is a positive provision of law, a rule of property, and must be enforced without reference to the theory upon which it was founded. The hardship of a particular case cannot exempt it from a rule which the law giver has made universal. The law concerns itself only with general principles and results ; it takes no heed of individual cases. If the courts could, at their discretion or caprice, take cases out of universal rules to avoid a hardship, there would soon be no rules and, consequently, no law.

Every marriage superinduces the community, of right. That is the general rule. The community can he dissolved at the instance of the husband, only by the effects of a dissolution of the marriage bond, or of a separation a mensa et thoro, of which a dissolution of the community is the logical sequence. The law has allowed the wife in a limited class of cases, to sue her husband for a separation of property during marriage and without disturbing the marriage. C. 0., Art. 2399 et seq. It has nowhere accorded to the husband a like exemption from the general law. The District Judge was, therefore, right in declining to make a law which would authorize the plaintiff in this case to demand a separation of property against his wife, because she has fallen into madness.

MM. Bodibre and Pont have remarked, that all the authors arc agreed that the husband cannot sue the wife for a separation of property, that being a privilege conceded only to the wife against her husband. 2 Oontrat de Mariage, No. 806 in noiis. La femme peut seule demander la séparation de biens. 13 Toullier, No. 3L See also 5 Marcadé, Article 1443 C. N.; Pothier, Traite de la Communauté, No. 513.

The faculty to demand this separation is accorded to the wife only when the disorder of her husband’s affairs puts her present or eventual rights of property in peril.

And the reason why a similar faculty is not granted to the husband is, that he is head and master of the community; and it is out of the power of the wife to put his rights of property in peril.

It is, therefore, ordered and decreed, that the judgment appealed from be affirmed, with costs.


author: Voorhies, J.

text:
    Samuel Tillett v. Mary Upton.
    Judgment reversed where rendered on issue joined by defendant, a married woman, unauthorized by her husband or the court.
    The husband being sued with the wife, and both cited, the plaintiff might have made his judgment by default final on proving his demand, but it must appear from the record that such proof was made.
    Appeal from the Tenth District Court of Tensas, Snyder, J.

      Beeves & Briscoe, for the plaintiff.

      T. P. Pairar, for defendant.
   Voorhies, J.

This suit was brought against the defendant as the executrix of the last will of her deceased husband, John Upton, forthe recovery of $998, evidenced by a promissory note signed by the latter in favor of the plaintiff, dated the 20th of January, 1851, and payable, on the 1st of January, 1852, “bearing eight per cent, per annum.”

The defendant having contracted a second marriage with W. M. Wilson, her husband was also made a party defendant, and both were duly cited.

The defendant, Mary Upton, unassisted by her husband, pleaded specially in limine litis, that she was not executrix of the succession of John Upton, Sc. This exception was overruled and a default entered. On the same day, the plaintiff filed a supplemental petition, alleging that Mary Upton was the administratrix instead of the executrix of the succession, and prayed for judgment against her as such, for the sum claimed in his original petition.

The defendant, unassisted by her husband, also pleaded specially, that she had never been cited in her ‘Capacity as administratrix, and prayed that .the judgment, by default taken against the succession should be set aside. This exception being overruled, she then, still unassisted by her husband, joined issue by pleading a general denial. There was judgment against her, and she took the present appeal, in which she was joined and assisted by her husband.

It is urged that the judgment against her should be reversed, first, because she was not authorized either by her husband or the court to appear and defend this suit. Under the authority of the case of Adié v. Anty, 1 An. 260, we think this objection is fatal. There the husband of the defendant, a married woman, was joined in the suit, as in the present case, and a judgment by default was entered against both. Subsequently, the judgment by default was set aside, and the wife alone filed an answer to the merits. Upon that issue the plaintiff went to trial without taking the necessary steps to have the wife authorized to contest the suit, and judgment was rendered in his favor. The court held, that the separate answer of the wife was an unauthorized appearance in court, and reversed the judgment. Here, it is true that, as the answer of the wife must be taken as an unauthorized appearance in court, the judgment by default stood unaffected, and the plaintiff could have made the same final on proving his demand. But this want of proof forms the second objection urged by the appellant. There is no note of evidence in the record. The note declared upon is annexed to and forms a part of the petition. There is no proof of its execution, which was essential to make the judgment by default final. C. P. 312; 12 R. 518. The certificate of the Clerk informs us that the record contains all the documents filed and testimony adduced in the case.

It is, therefore, ordered that the judgment of the court below be reversed, and this case be remanded for further proceedings; the plaintiff and appellee paying the costs of this appeal.


author: Buchanan, J.

text:
    P. G. Mourain v. V. Mourain.
    When the wife by the marriage contract constituted to herself as dowry certain slaves, and her father became a party to the contract and signed it, he is estopped from contesting his daughter’s title to the slaves.
    Appeal from the District Court of Pointe Coupée, Gooley, J.

      A. Provosty, for plaintiff and appellant.

      W. H. Gooley and A. L. Mahoudeau, for defendant.
   Buchanan, J.

The plaintiff claims of the defendants, his daughter and his son-in-law, certain slaves, which the petition avers the daughter constituted to herself in dowry by marriage contract, although the same actually belonged to plaintiff.

Now it is proved, and in fact admitted by the petition, that plaintiff was a party to the marriage contract, and signed the same.

We think, therefore, with the District Judge, that the plaintiff is estopped from contesting His daughter’s title to the slaves in question.

The rules applicable to donations inter vivos are improperly invoked by the plaintiff. There is nothing, either in the recitals of the marriage contract or in the other evidence in the cause, which implies a donation of these slaves by plaintiff to his daughter.

Judgment affirmed, with costs.


author: Merrick, C. J.

text:
    A. Laforest v. R. R. Barrow.
    Where, to enforce a mortgage containing the pact de non alienando property had been sold under an order of seizure and sale, prosecuted contradictorily with the third possessor, who was an absentee, by the appointment of a curator ad hoc, and when the order of sale, and all the proceedings under it, were subsequently homologated by a monition; Held: that the judgment could not he collaterally attacked by one claiming to have derived his title subsequently from such third possessor.
    The purchaser in possession under such a sale cannot be disturbed in his title, on the ground of irregularities and defects in the executory proceedings, from which the parties in interest might at the time have been relieved by appeal.
    The vagueness and uncertainty in the description of the property in the act of mortgage will not be permitted to operate to the injury of a purchaser in good faith who went into possession under the sale of the property, which was understood at the time to be the object of the mortgage and sale under it. The notice with which the parties under whom a claim is set up adverse to the purchaser, is chargeable, is sufficient to vest in the purchaser a valid title to the land which he went into possession of under the sale, notwithstanding an uncertainty in the description as to the land
    Appeal from tho District Court of Terrebonne, Cole J.

      Beatty & Bush, for plaintiff and appellant.

      Miles Taylor & W. H. Tmjlor, for defendant.
   Merrick, C. J.

The plaintiff and defendant claim to be owners of the tract of land in controversy, in virtue of titles derived from the same author.

The plaintiff claims, by direct conveyances from James Bowie and the defendant, in virtue of a forced sale made by the Consolidated Association upon a mortgage given to that institution by James Bowie, and a purchase at the Sheriff’s sale by said Consolidated Association, and a transfer by it to the defendant.

The defendant’s title is the oldest, and the plaintiff’s counsel admit that it is incumbent on them to show it to he defective before they can recover. They propose, in substance, to do so in two modes, viz:

1st. They allege that the proceedings of the Consolidated Association, in their order of seizure and sale, were null, and hence no title was conveyed by the sale to the bank by the Sheriff, nor by the bank to Barrow.

2d. That the description of the property in the act of mortgage was vague and uncertain, and could convey nothing which could prejudice subsequent purchasers in good faith.

I. Laforest claims in virtue of a transfer from Robert J. Walker. The act of mortgage given by James Bowie to the bank when he borrowed the money upon his mortgage and pledge of stock contained the pact de non alienando.

Walker, Duncan Walker and Wilkins bought of James Bowie, and when Robert J. Walker bought the interest of his co-purchasers, ho bought the stock in the Consolidated Association which was secured by the mortgage of Bowie to the bank. The objections to the executory proceedings are that no such proceeding could be instituted upon the mortgage as against Walker, and if such proceeding could be instituted against him, the present one was defective for non-observance of the legal delays and forms; that tho attorneys ad hoc appointed to represent the defendant, R. J. Walker, the absentee, could not waive the required proceedings and accept services; that prescription had intervened before taking the legal steps to interrupt its acquisition, and that the order of seizure and sale was null because a copy of the bond of Bowie was annexed to the petition instead of the bond itself.

We remark that at the time the order of seizure and sale was signed by the Judge ten years had not elapsed from the maturity of the bond to the date of such order. Moreover the bond had credits endorsed upon it which, if correctly made, interrupted prescription from the date of such payment.

If it be conceded that one, not a party to the order of seizure and sale, can callaterally question its regularity in this particular, we think the burden of proof would be upon him to show that the alleged payments were fictitious and improperly made, and that the order of the Judge was granted upon an instrument absolutely barred by prescription.

In regard to the other objections, we observe that no appeal was taken by Walker, and that the proceedings in the order of seizure and sale were confirmed by a monition. Under the facts of the case, we do not see how it is possible for the plaintiff to question in this collateral manner the regularity of the proceedings in the order of seizure and sale.

If the Judge of the District Court granted the order of seizure and sale upon a copy of the bond instead of the bond itself, it was at most but an error in the judgment, subject to revision on appeal, and one which was not injurious to Walker, as we must presume from the fact that the bond really existed, and Walken' never thought it worth his while to appeal.

If Walker did not chose to appeal upon a mere matter of form, it is clear that no other persons ought to avail themselves of the objection, particularly after the homologation of the order and all of the proceedings by a monition. Revised Statutes, p. 341, § 7.

The institution of the executory process against Walken' instead of Botoie was one of which he, Walker, could not complain, for he was in possession of the property, and was thus notified of the necessity of making payment in order to relieve his property from seizure, he being the owner of Bowie's stock secured by the mortgage.

If, under the pact de non alienando, a sale of the property would have been legal without service upon Walker and by service upon Bowie merely, it cannot be the less so by service upon the third possessor, who really represents the property which it is the object of the proceeding to sell, and who is to be injured by the sale. Moreover in this case the defect is cured by the monition, which is notice not only to Bowie and Walker, but to all other persons besides.

II. The second point presented by the plaintiffs and appellants is much more difficult.

It grows out of the description in Bowie's mortgage to the Consolidated Association, dated 15th June, 1829, under which the order of seizure and sale issued in 1840, and the land was sold by the Sheriff on the 21st September of that year.

The description of the mortgage is in these words: “A plantation, situated in the parish of Terrebonne, measuring seventy-five arpents on the Bayou Boeuf alias Bayou du Large, on the left bank of said bayou, by forty arpents in depth and fifty arpents front on the same bayou, on the right bank, by the same depth of forty arpents, bounded above by other lands belonging to said Bowie, and below by Mr. Edmond Hogan on the left bank and by Mr. William Hargrove on the right bank of the said bayou, of which plantation there is now only a small number of arpents in cultivation, the greater part being in standing wood and wild cane.”

The order of seizure and sale, as well as the monition, having followed this description of the property, it is the title under which the defendant must, if at all, protect his possession. In itself it appears well enough upon paper, but contains a latent ambiguity, which makes its application to Boioie’s land upon Bayou du Large very difficult.

Bowie owned two tracts of land upon Bayou du Large of eighty arpents front on both sides of the bayou by a depth each side of forty arpents. The upper tract is called in this controversy the “Gabion tract;” the lower tract is called the “Felicé tract,” they being two confirmations by Congress to persons of those names. The defendant is in possession of and claims so much of the “ Gabion tract” as could be found after sales made by Bowie prior to the mortgage to the hank were carved out of it. The plaintiff contends that the “Felicé tract” answers the description contained in the mortgage better than the “Gabion tract.”

The District Judge has examined the hypothesis of the plaintiff and the pretensions of the defendant in this respect, in an elaborate and able opinion which he has placed on file, and he has arrived at the conclusion that both Wallcer and Laforest are chargeable with notice, and that as against them the description in the mortgage, accompanied as it has been by possession, was sufficient to vest the title to the land in controversy in the defendant. '

We concur fully in the reasoning and conclusion of the District Judge on this branch of the case, and deem it sufficient to state, as we have done, the result, simply observing- that although the “Felicé tract” corresponds in more particulars with the boundaries mentioned than does the “Gabion tract;” yet it is shown that there was no improvement at all upon that tract of land, whilst there was a small improvement upon the other; that the “ Gabion tract of land is identified by one of the witnesses, who appraised the land for Bowie and the bank, as the one appraised, and moreover, that all parties, up to the sale of Wallcer's pretensions to Laforest, in 1855, seem to have treated the “Gabion tract” of land as the one covered by the mortgage.

It is true that Article 8273 of the Civil Code requires that a mortgage, in order to be valid, should describe the nature and situation of each of the immovables on which the mortgage is granted; yet we think that where a sale of the mortgaged property has been made under an order of seizure and sale, and possession has followed the title, that an error in some of the boundaries ought not to be permitted to defeat the title, where the most important calls in the description are answered, and the identity of the tract is also established aliunde, particularly in favor of one purchasing- with notice, as in the present case with Laforest.

Judgment affirmed.

Lea, J., is recused in this case on the ground of interest.


author: Lea, J.

text:
    J. Laidlaw v. Jean B. Landry.
    When defendant’s title is not traced to a sovereign grant, possession in good faith under successive purchases from private vendors for more than ten years, will not constitute a title by prescription against one who claims under a patent from the United States, issued within ten years previous to the institution of the suit.
    In the absence of any other evidence, the date of the actual severance of the land from the public domain, the date of the patent must be considered as the time when the severance took place.
    The burden of proof rests with the party pleading prescription to show affirmatively a state of facts which will sustain the plea.
    Appeal from the District Court of Assumption, Gole, J.

      W. O. Lmoes, for plaintiff.

      Mmlhot & Mills, for defendant and appellant.
   Lea, J.

The plaintiff claims from the defendant a tract of land situated in the parish of Assumption and constituting the fractional section 56 of township 12, range 14 east. His right is derived from A. F. Mghtor, who purchased directly from the United States and in whose favor a patent was issued on the 8th of September, 1845. The defendant holds under successive purchases from private vendors, none of whom trace their title to a sovereign grant, hut under which the defendant and his vendors have held possession in good faith for more than ten years. The plaintiff, on his part, shows a paramount title emanating from the General Government within ten years prior to the institution of this suit, and, as before stated, the evidence shows that the defendant and his vendors have held possession in good faith under a title translative of property for more than ten years. The plaintiff, therefore, has made at least a prima facie showing of a transfer, within the last ten years, from a vendor against whom prescription could not run. See 4th Howard’s Reports, p. 184.

It is urged that the date of the patent does not furnish conclusive evidence of the fact that the actual severance of the land in question from the public domain took place at that time, and that the payment for said land may have been made prior to that time and more than ten years prior to the institution of this suit. It is undoubtly true that such may have been the case; it is equally true that nothing of the kind has been proved. The only evidence before us of the time of the transfer from the Government, is the date of the patent w|iich was duly set forth in the plaintiff’s petition. It was a part, therefore, of the defendant’s case to show, if he could, that the title of the Government was divested not only anterior to the date of the patent, but more than ten years prior to the institution of this suit, and without such proof, ho could not make out his plea of prescription. It is a mistake to consider the plaintiff as defending himself against a title by prescription by an exceptional plea, and as such, under obligation to prove a state of facts which he has not alleged. It is clear that prescription in favor of the defendant could not begin to run until after the severance of the land from the public domain, and if the defendant wishes, by the plea of prescription, to attack the validity of a title based upon a patent issued within ten.years prior to the institution of the suit, it is incumbent upon him to show affirmatively a state of facts which will sustain his plea.

Judgment affirmed.


author: Buchanan, J. Merrick, O. J.

text:
    Judith A. Harbour v John S. Scott.
    Where the Sheriff is incapable of acting by reason of interest and there is no- Coroner of the parish the Judge may appoint a special officer to attend the jury during the trial.
    Appeal from the Ninth Judicial District Court for the parish of Pointe Coupée, Cooley, J.

      U. B. & E. Phillips, for plaintiffs.

      W. PL. Cooley, for defendants.
    Both parties appellants.
   Buchanan, J.

We see no reason for changing our opinion upon the question involved in the mandamus issued to the Judge of the Ninth Judicial District in February last. 11 Annual Rep. 79.

Neither do we find any error, under the peculiar circumstances of the case, in the order of court appointing Ma/i'cel Samson special officer to attend the jury during the trial; nor in the course followed in empannelling the jury. Defendant admits in argument that there was no Coroner at that time in the parish.

The only real contest between these parties relates to the right of the defendant to have the value of two slaves, named Paehel and Dials, deducted from the note sued upon, on the ground that those slaves were affected with redhibitory diseases at the time of the sale, which was the condition of the note and that they afterwards died of said disease. The pleadings of the defendant, in relation to this part of his case, are very defective. He does not declare whatwere the diseases of said slaves. Neither does the testimony make out to our satisfaction the existence of any redhibitory disease in those slaves, or either of them, at the time of the sale. We conclude that the jury erred in making a reduction of the price on account of the death of the slave Diels.

The plaintiff, Mrs. Morgan, has asked, in her answer to defendant’s appeal, ’for an amendment of the judgment; to which we consider her entitled.

It is, therefore, adjudged and decreed that the judgments appealed from be reversed; and that the plaintiff, Judith Ann Harbour, wife of James A. Morgan, recover of defendant, John S. Seott, seven thousand two hundred and sixty dollars, with interest at eight per cent, per annum, from January 31st, 1855, until paid, and costs in both courts; and with mortgage and privilege of vendor on the property sold to said defendant, which is set forth and described in plaintiff’s petition and the act of sale thereto annexed; and that said property he seized and sold for the payment of this judgment.

Merrick, O. J.

It is ordered, by the consent of the defendant, in writing, and on the motion of plaintiff’s counsel, that the decree in this case be amended by correcting a clerical error in this, that the interest on §7260, allowed by the decree, he changed so as to read: to allow said plaintiff eight per cent, interest Rom January 31st, 1853, until paid, instead of January 31st, 1855, until paid; and that the judgment so amended he certified to the lower court for execution, notwithstanding the mandate already issued.


text:
    Succession of Charles Morgan, Sen.
    ■When the front tract belonged to the husband before marriage, the double concession purchased by him after the marriage, under the Act of Congress of June 15th, 1822, became the property of the husband. The only right of the community is that of claiming a reimbursement of the sum paid as the price, if the payment has been made out of the funds of the community.
    In cases of partition where some of the part owners are minors, the Judge has no power of his own will to order a sale of the property to be divided, upon terms of credit. This can only be done at the instance of the tutor and upon the advice of a family meeting. O. C. 1268
    ,1 ix PPEAL from the Ninth Judicial District Court for the parish of Pointe Coupée, Cooley, J.

      Louis Janin, for Olivia Van Wielele et als., appellees.

      Ilsley & Provosty, for IF. Allain et als., appellants.
   Voorhies, J.

On the 17th of February, 1848, Charles Morgan died intestate, in the parish of Pointe Coupée, where his succession was opened, leaving a widow and the following children and grand-children as his legal heirs, to wit: Charles Morgan, Jr., James A. Morgan, Augustine Morgan, widow of J. W. Swain, Aurora Morgan, widow of Wm. £. Falconer, and the three children of Adele Morgan, deceased wife of Stephen Van Wielele, to wit: Fmma Láse Van Wielele, a minor represented by her father and natural tutor, Adeline Van Wielele, wife of J. P. Coulon, and Olivia Van Wielele, wife of J. L. Mathews.

Charles Morgan, Jr., one of the heirs, was appointed administrator of the succession. He died in July, 1855, without having rendered any account of his administration, leaving a Widow and seven minor children.

This action was instituted by Olivia and Adeline Van Wielele against their grand-mother, Ilyaeinthe Allain, and their oo-heirs for a parition, in which they also claimed an account of the administration of Chandes Morgan, Jr. They allege in a supplemental petition filed by them, that a tract of land of fourteen and one-half arpents front on the Mississippi, by forty in depth, established as a sugar plantation, together with the double concession thereof, was erroneously inventoried as the property of the community ; that both were the separate property of the deceased, except the improvements thereon, which were properly inventoried as belonging to the community.

Stephen Van Wielele, as tutor, the widow of Clwrles Morgan, Jr., as natural tutrix, and Aurora Morgan, answered respectively, acquiescing in the plaintiff’s demand, and also claiming that the double concesssion should be considered as the separate property of their ancestor.

Hyacinths Allain, widow of Chandes Morgan, in her answer, in which her two children, James A. and Augustine Morgan, join her, avers that all the property inventoried belonged to the community of which she was the surviving partner, and as such legally entitled to the usufruct thereof.

A report of experts shows that the property in question is not susceptible of being divided in kind between the parties without inconvenience and loss.

It is admitted by the parties that the front tract was purchased by Chandes Morgan on the 23d of June, 180C, the year previous to his marriage, that his title to it was confirmed in 1820, and that he bought the double concession in 1835, under the Act of Congress of June 15th, 1822.

The defendants and appellants have presented two questions to our considera, tion: 1st, Is the double concession separate or community property ? 2d, Is a^ce °f a famity meeting essential to fix the terms of credit of the sale in relation to the interest of the minors ?

I. We do not think the Judge erred in deciding the first question affirmatively. That the cause of the acquisition preceded the marriage, is a matter^ which can hardly admit of any doubt. We think it is perfectly clear, under our jurisprudence on the subject, that the confirmation by the Government, subsequent to the date of the marriage, did not have the effect of vesting the legal title to the original tract in the community. It is, therefore, difficult to perceive in what manner the rights of the parties can be affected in this case by the distinction between complete and inchoate titles. See the case of Pargoud v. Pace, 10 An. 614. But we consider the decision in the case of Barbet v. Langlois, 5 An. 212, as decisive of this question. The only right to which the commnnity is entitled is that of claiming the reimbursement of the sum paid on account of the entry of the double concession, if such payment has been made out of the funds of the community.

II. As it was conceded, that a sale of the property in question was necessary to effect a partition, the Judge accordingly ordered an inventory and sale thereof, on the terms demanded by the parties, to wit: two-fifths, as the shares of James Alfred and Augustine Morgam,, for cash, and the residue at one, two, three, four and five years’ credit, the purchasers giving notes with approved security, &c. In cases of partition, where some of the heirs are minors, Art. 1263 of the Civil Code declares : that the Judge may at the instance of their tutors, and on the advice of the meeting of their family, order the sale to be made on certain terms of credit and on proper security, &c. This textual provision, blear and free from any ambiguity, is imperative, leaving no discretion in the Judge to act without such authority. It maybe true in this instance that the terms of credit are advantageous to the minors. But it is evident that the plain letter of the law cannot be disregarded under such pretext. And we cannot yield our assent to the proposition, that the appellants can have no possible legitimate interest in the determination of the question thus presented by them. They certainly have, as joint owners, an interest to see that a valid title to the property shall be vested by the sale in the purchaser. Sec 6 An. 755.

It is, therefore, ordered, that the judgment of the court below be avoided and reversed, so far as it regulates the terms of the sale in relation to the minors, and in every other respect that said judgment be affirmed; and it is further ordered, that the case be remanded to be proceeded in according to law, the appellees to pay the costs of this appeal.


author: SpofEord, J.

text:
    Patrick Fox v. City of New Orleans.
    The city cannot be held liable undei* a contract made by the Municipal officers in Violation of law.
    Appeal from the Sixth District Court Of New Orleans, Cotton, J.

      Pace S Foster, for plaintiff.

      J. Livingston, for defendant and appellant.
   SpofEord, J.

This action is based upon an alleged contract. The plaintiff declares that the late Second Municipality of New Orleans passed an ordinance requiring the Surveyor thereof to notify certain proprietors of lots therein to fill them, and in default of their compliance within thirty days to cause the same to be filled at the expense of the owners ; that the lots of one Worthington were ordered to be filled in pursuance of this ordinance* and the owner failing to do it, the Surveyor of the Second Municipality employed the petitioner to fill them, and “ contracted with him to fill the same for the city, at the price of seventy-five cents per yard,” which he did, and the work was accepted by the Surveyor.

The present plaintiff formerly brought a suit against Worthington's representative for the price of the filling, but was cast, on the ground that he, in connection with the Municipal officer, had acted in violation of a remedial statute which was intended to check Municipal extravagance and corruption, by requiring all contracts for public or other works ordered by the Municipality “to be let out to the lowest bidder at public auction.” See Fox v. Sloo, Executor, 10 An. 11; Act 18th March, 1850, Sec. 12, (Sess. Acts, 131.) The consolidation Act passed a few days later, embraced the same provisions couched in even more general terms: “all contracts to be made or let by authority of the City Council, and all materials and supplies to be furnished shall be offered by the Mayor at public auction, after the usual advertisements, and adjudicated to the lowest bidder.” Aot 21st March, 1850, Seo, 22, (Sess. Acts, 164.)

The defence in his case is identical with that in the case of Fox v. Sloo. No action can be maintained upon a contract made in violation of law. If, by overriding this statute, the Municipal officers could saddle the city with the expenses of the contracts they choose to make in defiance of its mandates, the tax-payers would become an easy prey to the jobbing contracts which it was the commendable object of the statute to defeat.

Judgment reversed, and judgment for defendant, with costs in both courts.


author: Cooley, J.

text:
    Succession of William H. Lyne.
    A minor emancipated under the Act of the Legislature of March 1855, but not yet over twenty-one years of age, is invested with all the capacities in relation to his property and obligations which, he would have had actually at the age of twenty-one years, and may be appointed Administrator of a succession.
    Appeal from the District Court of Pointe Coupee, Gooley, J.

      F. B. & F. Phillips, for defendant and appellant.

      Provosty, for appellees.
   The following reasons were given for his judgment by

Cooley, J.

The Article 1035 of the Civil Code provides that, “In the choice of an administrator the preference should he given to the beneficiary - heir over every other person, if he he of age and present in the Stafe."

John It. Lyne was emancipated under the Act of March 15 th, 1855, 444, but is not yet over twenty-one years of age, and he is one of the beneficiary heirs of the deceased, all the other children being minors.

In the case of Briscoe and Wife v. Farthington, 5 A. R. 692, the objection made by the Supreme Court to the appointment of a minor emancipated by marriage, as an administrator was, that “ ho could not bind himself by promise or obligation for any sum exceeding the amount of one year of his revenues, and that he could not alienate, affect, or mortgage his immovables or slaves without the authority of the Judge, which can only be granted on the advice of a family meeting,” and that, therefore, he could not sign an administrator’s bond.

In the caso of an emancipated minor under the Act of 1855, by which he is dispensed from the time prescribed by law for attaining the age of majority, he is invested with all the capacities in relation to his property and obligations, which he would have, had he actually arrived at the age of twenty-one years. See 6 R. R. 429; 9 L. R. 570.

The Code does not seem to require any peculiar personal fitnes or capacity to fill the office of administrator, at all events, we are bound to presume that the opponent is capable of managing his estate and affairs, at least as much so as he will be at the age of twenty-one years, — because the family meeting and the judgment thereon have so decided, — and besides, there is no suggestion of incompetency against him.

I presume, that when the Code required the applicant to be of age, the legislature had in view the capacity of binding himself on the part of the administrator, and not a personal fitness which may be presumed in a person of 21 years of age. It is probable, that if this latter view had been taken, the requirement of the age of twenty-one years would have been stated in express words.

Spopford, J. For the reasons assigned by the District Judge, it is ordered that the judgment in this case be affirmed, with costs.