author:
      Rost, J. Eustis, C. J.,
     Slidem,, J. Eustis, C. J., Rost, J. Kino, J. Slidell, J.

text:
    Beaulieu et al v. Furst.
    A judge can recuse himself, only where the parties would have the right of recusing him. C. P. 340.
    A judge cannot recuse himself on the ground, of one of his relations having an interest in the event of the suit. C. P.338.
    Where an appeal is tried before throe judges, the concurrence of two is sufficient to reverse the judgment of the inferior court. Const, art. 68.
    APPEAL from the District Court of the First District, Buchanan, J. A verdict and judgment having been rendered in this case in favor of the defendant, for $6,559 87, with interest at five per cent a year, from the 13th October, 1838, till paid, the plaintiffs appealed; and the case having been argued by I. W. Smith and Soulé, for the appellants, and G. B. Duncan, Benjamin and Micou, for the defendant, Si/WEim, J. recused himself, in consequence of the interest of a relation in.the event of the suit, when the following opinion of the majority of the court was pronounced by
   Rost, J.

In a small tenement situated on the Metairie road, in the adjoining.parish of Jefferson, have dwelt for such a length of time as the memory of man scarcely runs to the contrary, a black woman, at the time the transactions involved in this controversy bear date, over eighty years of age, her two sons and her daughter, all, at this period, much advanced in life. Not one of them can either read or write, and they are remarkable, even among their race, for want of intelligence, and ignorance of the world and its ways. They cultivate, for marketing, a small field of vegetables, out of the proceeds of which they contrive to live. When they lose an ox, they find great difficulty in raising the means necessary to replace it.

On the 28th April, 1837, Le Carpentier, a young man about twenty years of age, and lately arrived from France, came to their house in company with one Emerhng, a property broker, and asked them to affix their ordinary marks to some notes made payable in solido, and also to a deed, purporting to be a notarial act before Theodore Seghers, a notary public in and for the city of New Orleans. They did as they were asked. Le Carpentier brought back the act and notes to the office of Seghers, designated to one of the clerks the marks of each of the plaintiffs, and their names were written around them by that clerk, in presence of Le Carpentier. ' Both signed as witnesses; and the notary, in wanton disregard of his duty and of his oath, authenticated the act as passed before him.

That act is, on the face of it, a conveyance of real estate by the defendant to the plaintiffs, in consideration of the sum of $13,400, for which it states notes in solido, made payable by the plaintiffs to the order of F. Hazeur, to have been given, and to have been secured by mortgage on the property sold, and also on the homestead of the plaintiffs.

The first note was protested at maturity for non-payment, and the defendant caused the property sold by him to the plaintiffs to be seized under the mortgage. It was adjudicated to a third person for $7,000.

The second note was also protested at maturity for non-payment, and the defendant obtained against the property of the plaintiffs another order of seizure, which was subsequently converted into an ordinary suit.

The plaintiffs, alleging error', fraud and deception, on the part of the defendant and his agent, and also that the act, under which he claimed, was null and void, because their marks had not been affixed thereto in presence of the notary, or in his office, applied for, and obtained an injunction. They called on the defenddant to answer on oath various interrogatories, which he answered; he further denied all their allegations, and averred the transaction to have been, on his part, fair and unsullied by deception or fraud.

Six juries have been sworn to try that issue. The first four were unable to agree on a verdict; the fifth found a verdict for the defendant. Judgment went in his favor, and, on appeal, it was reversed, and the case remanded on bills of exception. On the last trial, the jury again gave a verdict ict favor of the defendant, and the plaintiffs have appealed from the judgment rendered thereon.

We agree fully with the counsel of the defendant that, as a general rule, after two verdicts on an issue of fraud, the court ought not to interfere, unless those verdicts are manifestly contrary to law and evidence; but we must premise that this is a case, in which the arbitration of the jury has not as much weight with us as it would have if the parties to the suit were of equal condition.

The excellence and safety of jury trials consist in the fact, that the jurors are, or ought to be, the peers and equals of the parties. Juries de medietafe lingua, and the frequent resort to special juries originate, to a great extent, in the policy of preserving that equality. In this controversy, the case of the plaintiff's was not tried by their peers and equals, and the fact that, the first verdict gave the defendant a much larger sum than he claimed, and compelled him to enter a remittitur, affords strong evidence that this jury, at least, did not weigh the rights of the plaintiffs with the care required to give authority to their decision. It is our duty to shield the legal rights of the plaintiffs from the prejudices of cast; and we deem their dependent condition sufficient to put us upon inquiry, whether impartial justice has been done to them?

The defendant admits that the act under which he claims is not authentic. The plaintiffs, on the other hand, have acknowledged that they affixed their marks to it and to the notes. Does that acknowledgment, taken in connexion with the facts disclosed by the defendant’s evidence, prove any thing more than rem ipsam? Does it prove the act — does it establish the fact that the plaintiffs purchased the house and lot from him, and gave him, in payment, their notes, in solido, for $13,400, secured by mortgage on the property sold, and on their homestead ?

Whoever claims the price under a contract of sale must show affirmatively the consent of the purchaser to the contract. If the acknowledgement of the plaintiffs, that they affixed their marks to the act and notes, proves their consent, the defendant should have stopped there, and rested that part of his case upon the written evidence. Had he done so, the naked question of the legal effect of the acknowledgement would have been fairly placed before us. Ho has seen fit to adopt a different course; he has gone beyond the act, and, by introducing parol evidence, to prove en pais the fact of consent, he has, as it were, dissolved the contract into its original elements. Although a party may object to the introduction of parol evidence to prove the transfer of real estate, if it is admitted without opposition, it is binding upon him; a fortiori, is it binding upon the party who himself introduces it.

Emerling and Le Carpentier were the only persons present when the plaintiffs made their marks. Le Carpentier read the documents to them, and Emerling swears that there was no explanation given them, hut by him. His testimony is as follows: He explained the act to them, and they appeared to understand it very well. It does not appear that he mentioned the object of the notes to them. Cross-examined, he says, he asked them if they understood, and knew what they were about. They all answered distinctly that they did. He is a German, has been in Louisiana seven or eight years, speaks .French well enough to make himself understood, and spoke to the plaintiffs in that language.

The first objection to this evidence is, that the plaintiffs speak no language save the creole patois, which is not, that we are §iware, taught in German universities.

Several witnesses gave it as their opinion that Emerling could not have made himself intelligible to them, and that it is impossible he could have made them understand what a mortgage was; and, by-the-by, he is the only witness who testifies that they consented to the mortgage under which the defendant now claims. The testimony of A. S. Lewis, the officer of the court who went to their house to get them to sign the affidavit and the injunction bond in this case, satisfies ns that no faith is to bo given to that of Emerling. This witness ondeavored three, or four, different times to explain to them the purport of the oath and of the bond, and doubts whether they understood him then. He spoke the creole patois to them, and could not get them to understand French. They appeared to him as ignorant as they could well be, and there was no pretention of ignorance about them. Two other persons, there present, had to assist him in his explanations.

Emerling had the property for sale for the defendant as his broker, and received two per cent commission, for the sale of it to the plaintiffs. He has shown himself not over scrupulous, and we have no reason to doubt that he has placed the defendant’s rights in the most favorable light, consistent with such a regard for truth as may fit the standard of his morality; but it appears to us that his knowledge of the language of the plaintiffs and of the laws of Louisiana, was inadequate to the task he undertook to perform; and the facts disclosed by his evidence induce the belief that, if it had not been, he would not have cared to teach the plaintiffs what a mortgage was, and in how short a time it could divest them of their home, but would have been content to make up a plausible story and secure his commission.

While acting as broker for the defendant, he made with the plaintiffs a secret bargain, by which he was to receive two per cent commission from them to betray his employer. After the purchase he took possession of the property, worth a rent of $40 per month, without any authorization from the plaintiffs, and kept it one year to pay himself a commission of two per cent on $13,200. Subsequently he called upon the plaintiffs, and, instead of accounting to them, insisted upon being paid his commission a second time. No other witness, save Le Carpentier, knows any thing about the sale and mortgage. The fact that the plaintiffs were decoyed by a brace of swindlers to go and visit the house, cannot surely be taken as proof of the subsequent purchase; and the other fact, that they appeared to those who occupied the house not more stupid than negroes generally are, cannot stand in opposition to the testimony of the officer of the court, who, in discharge of his duty, had to test their intelligence.

Had the notary himself been present, and had he testified in the cause as Emerling has done, the trust reposed in him ,by law in matters of that kind, would have rendered his evidence sufficient.

It may be that the only object of the defendant in introducing the evidence of Emerling, was to disprove fraud; but if it discloses a state of facts inconsistent with the hypothesis of consent on the part of the plaintiffs, one of the essential requisites of the contract is wanting, and the mechanical operation of holding the pen while the marks were being made, cannot supply it. It is said that parties affixing their ordinary marks to an act are bound to know, and must be presumed to have known, the contents of it; but we are of opinion that this presumption is not juris et de jure, and that it does not exist where the party claiming adversely to them under the act, shows that they had not the means of knowledge.

We believe that the jury did not take this view of the case, and that, being satisfied that the defendant himself had not committed the fraud alleged against him, they considered themselves bound to decide in his favor. They probably overlooked the fact that, through'the acts or omissions of his agent, the sale might be void for want of consent, although no moral guilt could attach to him.

The inference that the price bargained for was not exorbitant a.t the time, drawn from the fact that some months previous to the sale, a bid of over $12,000 was offered at public auction for the property, was well calculated to mislead the jury. The sudden change which took place in the value and availability of real estate in the months of March and April of that year, is an historical fact which does not appear to have been noticed. The ignorance and seclusion of the plaintiffs prevented their being apprized of the change, and they were probably the only persons living, having any thing to lose, who could have been induced to make the purchase at that time. The fact that they did make it, must, therefore, be placed beyond the reach of doubt. With men as well informed as the defendant, the operation would have been all fair; but we are not prepared to say that it was so, with a superanuated negro woman, brought into the vortex of speculation at that late hour by the arts of such men as liazeur and Emerling.

The defendant is not shown to have had any participation in bringing about the sale, but the acts of Emerling accrued to his benefit.

If the mother were the only party to the contract, the court would have no hesitation in remanding the cause. The fact that her sons and her daughter are bound in solido with her, and would be deprived by the judgment of the means of supporting her, does not the less entitle her to relief.

After a long, patient and thorough investigation of this cause, a majority of the court have come to the conclusion that justice requires that it should be remanded, and submitted to another jury.

It is therefore ordered, that the judgment be reversed, and'the case remanded to be proceeded in according to law; the defendant and appellee paying the costs of this appeal.

Eustis, C. J.,

dissenting. A very thorough consideration of this case has not enabled me to concur with my brethren in the disposition they have made of it. Our difference of opinion relates, I believe, only to matters of fact. I am not aware of any naked question of law, which is presented for our determination, concerning which we do not concur. The case turns exclusively on the facts, according to my view of it. Were there any such questions of law, which the court could examine, independent and separate from the facts, and it should be in favor of the plaintiffs, they certainly should have the benefit of it, for I never could consent to surrender the decision of questions of law to a juiy-

The point which, it appears, presents the principle obstacle to the affirmance of the judgment, is the want of consent of the Beaulieus to the contract of sale, which is sought to be enforced by Furst; and this defect of consent seems to rest on the want of credibility of a witness, and on their gross ignorance and want of intelligence.

On this subject, I consider that the defendant, Fur-sl, has the verdict of two juries, under evidence which was contradictory, and which it was peculiarly their province to weigh and determine.

In a case of this kind, involving the reputation of a party, the credibility of a witness, and questions of fact resting on contradictory evidence, I do not feel myself at liberty, in the exorcise of a sound legal discretion, to set aside this second verdict, which the defendant has had in. his favor. A much, stronger case than this ought to be made out, before the court would be authorized, in my judgment, to set aside the verdict. I, therefore, dissent from the opinion of the court.

Cr. B. Duncan, Benjamin and Micou, argued that the judgment of the court 'below must be affirmed,

Soulé, contri!.

The rule taken by the appellee, and the argument at the bar-, imply: 1st. That under the present organization of the court, unless three judges should assent to a decree of reversal, the judgment appealed from is to be affirmed. 2nd. That it is not lawful for any judge to recuse himself after hearing a case, and that his abstaining from all participation in the judgment .rendered, amounts to an agreement-with the minority of the court, and is to bo construed accordingly: 3rd. That the parties litigant have a right to inquire into the motives which may have induced the judge to recuse himself.

From such premises only can be inferred the broad principle assumed by the appellee in the rule, that, as the four judges were present at the hearing of the case, they must be considered as having participated in the decree rendered ; and that, therefore, as but two j udges were for the reversal of the j udgment appealed from, the same ought to be affirmed. The appellee has quoted, in support of his pretensions, article 68 of title 4 of the constitution, and articles 338 and 340 of the Louisiana Code of Practice. The appellants submit, in answer, the following brief remarks:

I. By the article quoted from the.constitution, no decree of an inferior court ■can be affirmed on the appeal, unless it actually meets with the assenting •opinion of at least two judges. Two, when they are equally divided; two, when there is but a quorum of the court. A majority of the four judges constitute a quorum (title 4, art. 64, Const.), and when they are a quorum, they possess the full constitutional authority vested in the court; and this must bo based on the presumption that the judge absent or recused would, if present or not recused, have joined .the majority; otherwise, the recognition of sufficient power in three of them to act for the whole court would constitute a glaring inconsistency, and defeat the very principle which provides that an equal division of the judges shall enuro to the benefit of the party having the judgment of the court of original jurisdiction.

il. That judges may reeuse themselves, is not denied, and, indeed, one of the articles quoted from the Code of Practice provides, “that the judge may recuse himself in such cases, where the parties themselves would have the right of recusing him.”' But it seems to be the opinion of the counsel for the appellee, that this recusation cannot take effect after the hearing of the case, nor without the parties having the opportunity of testing the correctness of the ground upon which it may be founded. Judges, in England, have considered not only that they were at liberty to abstain from giving an opinion after hearing the case, but that they might even participate in the form of the judgment, without at all joining in the opinion of the other judges. In the case of Tatham ■v. Wright, which had been heard before the Lord Chancellor, assisted by the Lord Chief Justice and the Lord Chief Baron, the Lord Chancellor said: “That he had given no opinion, and should give none; that the judgment was in form his, in substance that of the other leai-ned judges; his former position as counsel in the case, precluded him from giving any opinion as to its merits.” Legal Observer, London, vol. 2, pages 317, 318. But the rule of law which prevails here, being derived from the French Code of Practice, it may not bo improper to test its bearing with the French authorities, and to ascertain how in the French tribunals it was formerly understood, and is still now applied. The royal ordinance of 1667, after stating the cases in which judges may bo recused by the parties, has this provision: “The judge who is aware of the existence in himself of sufficient cause of recusation, shall recuse himself, without awaiting that he be recused by others.” Art. 17. And the article 380 of the French Code of Practice also pr-ovides, “ that any judgo who may be awaro of the existence in himself of some causo of recusation, is bound to declaro it. in order that it may be decided whether or not he shall abstain.” Under the rule laid down in 1667, it had been contended by some that the recusation, when coming from the judge himself, was to be acted upon by decree and confirmed. Indeed there was an express provision to that effect in article 24 of the ordinance; but, says Favart de Langlade, vol. 4, page 765: “L’ordonnance ne s’observait pas it la rigeur dans le ressort de plusieurs parlements, et nombre de juges se déportent aujourd’hui sans qu’une décision de la Chambre ordonne qu’ils s’abstiendront.” As to the time when the judge was to abstain, or to recuse himself, the same author adds: “La loi ne fixe pas le temps dans lequel le juge qui reconnait cause de recusation en sa personue est tenu d’en faire la declaration.” Ibid. Nor is any time fixed by the article quoted from our own Code of Practice.

The day after these opinions were read, the counsel for the dofandant, on motion, obtained an order of court for the appellants to show cause why the decree reversing the judgment of the lower court should not be set aside, and one affirming the judgment be rendered in its place, on the ground that the constitution of the State orders the judgment of the court below to be affirmed in all cases tried before the four judges of the Supremo Court, unless three of the judges unite in reversing.it.

The very point in controversy was brought, in 1832, before the Court of Cassation, under the authority of article 380 of the French Code de Procedure, which is so much more restrictive than our own, and the court held: “that in the case of a judge recusing himself, the question was one of discipline, cognizable only by his colleagues, involving no contradictory proceedings, no debate, arising from the spontaneous declaration of the judge that there exist legitimate «reasons why he should abstain, and requiring neither decree nor procés-verbal, but a mere mention of the motives that induce him to abstain.” See the opinion at length in the Journal du Palais of Ledru Rollin, vol. 24, years 1831, 1832, page 1126.

The appellants maintain: 1st. That a judge may abstain in all cases for reasons which might justify parties in recusing him, and this at all times before judgment. 2nd. That such a recusation is only cognzable by the court in chambers, and need not be preceded by decree, debate, nor procés-verbal. 3rd. That the exercise of judicial authority manifests itself only in the opinions and decrees delivered by the judges, and not in the part which they may have taken in the hearing of the case. 4th. That there is nothing so sacramental in the hearing of a case as should preclude a judge who has participated in it from recusing himself afterwards, if he should discover that there is sufficient reason for doing so. 5th. That the constitution, when determining the number of judges necessary to form a decree, does not compute the judges present at the hearing of a case, but those giving an opinion in the case. Art. 68, tit. 4. 6th. That in the present case but three judges participated in the decision. They formed a quorum. They .could not force the fourth to join them in their deliberations. They were bound to dispose of the case. They did dispose of the case. Their decree ought to be maintained, and the rule dismissed.

1. W. Smith, on the same side.

An application for a re-hearing was .also presented in this case by the counsel for the defendant.

The opinion of the court on the rule and on the application for a re-hearing, was pronounced by

Slidem,, J.

When the decision of this case was under deliberation, a member of this court, believing that one of his relatives, not however a party to the cause, was indirectly interested in the event of the suit, declined to participate in the decision.

A consideration of the constitution and of articles 338 and 340 of the Code of Practice, and a conference with his brethren, havo satisfied the mind of that judge that, he had not the strict legal right to decline giving an opinion in this case. The defendant’s counsel having inyoked the strict legal rule, we have therefore concluded that, under the circumstances, the whole bench should participate in the decision of this cause. J

But while we thus yiold obedience to the rigid provisions of the Code, wo must, at the same time, take occasion to observe that, when circumstances not strictly within the textual provisions of the Code of Practice, render it disagreeable to a judge to take part in the decision of a case, and there it a quorum of the court without him, we do not believe the general interests of justice would be, in all cases, promoted by the subjection of a right of conscience to a mere arbitrary rule. It seems to us that a judge’s scruples, and the propriety of his joining in the decision of a case, should be left, without discussion at bar, to the consideration of himself and his brethren. .Such a course it is desirable that the bench should be left to pursue, and such also appears to us to be the interest and duty of the bar, who are not the mere representatives of their clients, but are also, as was well said by a learned judge, “ministers of justice acting in aid of the courts.”

Judgment below affirmed, the judges being equally divided.

ON the re-hearing of this case, the judges being equally divided in opinion, separate opinions were given.

It being the opinion of the court that the defendant, Furst, was, under the circumstances, legally entitled to a decision of this cause by a full bench; and it being also the opinion of the court that he is not, .under the constitution, entitled to the specific relief prayed for by his motion, it is therefore ordered that a re-hearing be granted; and it is further ordered that the r.ule taken by Furst be dismissed-

Same Case — On a Re-hearing.

Eustis, C. J.,

for the reasons assigned in the dissenting opinion pronounced by him on the first hearing, was of opinion that the judgment below should be affirmed. '

Rost, J.

persisted in the opinion just pronounced by him, adding :

The appellate jurisdiction of this .court extends to facts as well as law; it is our duty, therefore, to preserve the purity of the sources from which the knowledge of facts is derived, and this case requires our action in that behalf.

The main witness introduced by the defendant to disprove fraud, has shown himself to be corrupt and unworthy of belief. His testimony taken at different ■times, is contradictory and inconsistent with that of other witnesses of known good character. The deplorable fact that two verdicts have been rendered in conformity with it, increases the enormity of the offence, but cannot legalize it.

It is nothing to me tlxat the jury may have thought differently of this witness. In passing upon testimony of any kind, I claim the right of private judgment. I will not receive as true, on the faith of others, evidence which I firmly believe to be false.

I admit that I do not know what influence it had upon the jury, nor that the verdict would not have been the same without it; but it is sufficient for the position I take, that it was heard in the trial of the cause, and that it soils now the records of the court.

We have heretefore met all such exhibitions of depravity, in a manner that makes it the interest of parties litigant to avoid having recourse to them. I consider the decree about .to be rendered as an unfortunate deviation from that salutary and fruit-bearing course.

I am of opinion that the 'judgment ought to be reversed, and the case remanded for further proceedings.

Kino, J.

After a careful consideration of the evidence in this cause, I have been unable to convince myself that it supports the verdict of the jury. The difficulties of the case grow out of questions of fact, depending on the weight of testimony and credibility of witnesses. In such cases great respect is due to the verdicts of juries. Their decisions, however, on matters of fact as well as of law, have been expressly subjected to revision; and, in the exercise of that jurisdiction imposed on this court, cases most occasionally present themselves in which the mind refuses its assent to the conclusions' at which juries may have arrived.

In such cases, there can be no laesitatation between duty and the deference due to the findings of juries.

The facts and reasons which repel the conclusion that the plaintiffs assented to the sale, or were aware that they were becoming purchasers, have been so fully stated in the opinion road by the judge (Rost) with whom I concur, that it is unnecessary again to repeat them.

I think that the judgment of the inferior court ought to be reversed, and the cause remanded for further proceedings.

Slidell, J.

This case has already been before the Supreme Court, and was remanded for .a new:trial. The reportas in 3d Robinson, page 345 ; the pleadings are there stated.

The act of sale was manifestly not an authentic act, and this the counsel of Furst concedes. Can it avail as an act under private signature ?

This act was not signed by the plaintiffs ; not knowing how to write, they affixed their marks. It is said that a sale of immovables cannot be thus made ; that the Code recognizes the substitution of a mark for a signature only in acts passed before a notary and two witnesses ; that an act not notarial requires the signature of the party. Upon the general question, I express no opinion. But in this case the parties, under oath, in their petition for an injunction of the judicial sale, and in which also they pray that this act of sale and mortgage may be rescinded and cancelled as null and void, have acknowledged that they did affix their marks to this act, and to the notes held by Furst. 'The will of a party is manifested by affixing a mark, as well as by signing his name. The argument upon the impolicy of binding the rights of the ignorant, upon proof by witnessses, that the ignorant party .affixed his mark, fails in a case where the party himself solemnly, in a judicial proceeding, acknowledges the mark. A mark wants the individualizing characteristics of a signature, and perjury has a wider and safer scope in the one case than'in the other; but there can be no vestige of doubt of the genuineness of the mark, when the party himself judicially and under oath acknowledges it.

This brings us then to the true enquiry in this cause. Has the fraud alleged by the plaintiffs been committed? The allegation in their petition is, “that the act of mortgage, and the .notes or note on which said order of seizure and sale has been granted, are absolutely null and void, and cannot be legally enforced againstyour petitioners ortheir said property, but the same ought to be rescinded, cancelled and annulled, because the mortgage and notes have been obtained from your petitioners by the fraud, artifice and deception of Fame Hazeur, a free man of color, acting as:agent, and at the instance, of said Furst.” Again, going into more minute detail, they say: “ The said acts and notes are void, because your petitioners were led into error by said Hazeur as to the nature of the said contract, the said Fame Hazeur acting as agent of said Furst, and, by and with his knowledge and consent, as your petitioners are informed and verily believe, persuaded your petitioners that said Furst, or some one else, was buying their said tract of land at the price of $60,000, or at a very large price, and that said act of mortgage was their act of sale of their said tract, and not .as it really is, an act of purchase and mortgage on their part. Your petitioners are ignorant and unfortunate persons, not knowing how to read or write; said acts and said notes were never read nor explained to them, nor understood by them; they were constantly told by said Iiazeur, agent of said Fwrsi, that they were selling, at an immense price, their said .tract of land, and that they must sign said act and said notes, to complete their sale, and realize an enormous fortune, all of which they believed.”

So in their first petition they say “they did affix their marks to said papers, through error.” &c.

The question then is, not whether the plaintiffs executed this act and these notes, but whether the fraud alleged has been practised, whereby they, believing themselves sellers, are in reality purchasers and mortgagors?

The duty of the court, in this case, is not free from difficulty. If I had not before me the verdicts of two juries, by which twenty four citizens have, under oath, unanimously declared that this alleged fraud has not been committed, I might, perhaps, have yielded to the views of two of my brethren, for whose opinions I entertain a very great respect, and have consented to the remanding of this cause for a new trial. But great consideration is due to those verdicts. This cause, as stated by the Chief Justice, turns mainly on questions of fact; and it has been the settled jurisprudence of the Supreme Court of this State, since its earliest existence, not to disturb the verdict of a jury in cases of fraud, unless manifestly erroneous.

Here are two verdicts in favor of Fwrst. The previous verdict was disturbed by our predecessors upon a purely technical ground, to wit, that the plaintiffs in injunction had the right of opening and closing the cause before the jury, and that the district judge had deprived them of that right. Both these verdicts were, on motions for new trials, approved by the district judge. To the opinion of the district judge, twice expressed, is added the opinion of the Chief Justice.

It is said, by two of my brethren, that the plaintiffs have not had a trial before their peers, and that it is'the duty of the court to shield them from the prejudices of caste. We must take the law of jury trial as we find it. If this cause be sent back, it will be tried again by a jury of white men; and if the argument be a sound one, a new reversal should follow for the same reason. If it can be said that, under our social organization and the provisions of our laws, the trial by jury between the white and colored man is unequal, and the latter must seek protection from the judiciary, it must be remembered, in this case, that the inequality is of the plaintiffs’ own seeking, and that the protection was not originally invoked. The prayer for a jury came from themselves; the jury was the tribunal of their own choice.

I must also observe that, in cases involving such questions of fact as are presented in this cause, there is much to sustain the rule of our jurisprudence, which I have already referred to as consecrated by a long series of decisions.

While judges, from the nature of their vocation, are isolated from the everyday walks of life, jurymen, on the contrary, are constantly moving in them. Dealing with the world, and not with books, they are better qualified to appreciate the motives, characters and conduct of their fellow citizens, and have a more practical conception of the bearing of facts. Moreover, jurymen confront the witnesses, and have a better opportunity of estimating their intelligence, their fairness, and tlio general weight of their evidence. The tone, manners and appearance of a witness, his candour, or his reserve, his promptness or liis hesitancy, his calmness or his excitement, these, and other circumstances, are matters that, from their nature, are not susceptible of being inscribed upon the record. It comes before us a cold and inanimate transcript of the mere words that were uttered, and these often inaccurately or ambiguously preserved.

I would not voluntarily abandon our power to reverse the verdict of a jury on a question of fraud; but I hold such a verdict to be entitled to great deference, and not be set aside except for manifest error.

Such considerations, accompanied by a careful examination of the testimony adduced in this protracted litigation, have induced me, so far as my opinion is concerned, to leave the judgment of the court below undisturbed. It is proper, hqwever, that in doing so, I should briefly refer to some of the prominent facts^ which, coupled with the verdicts of the two juries, have led my mind to this conclusion.

Furst himself stands before us unsullied by fraud. I do not understand the plaintiffs’ counsel as imputing it to him. The plaintiffs, by full interrogatories, have appealed to his conscience. He unequivocally denies the charge of fraud, and declares that Hazeur, by whom they allege that they were deceived, was not his agent, but their own; that if any fraud has been practised, it was not by himself, nor by his sanction. I find nothing in the testimony of the other witnesses to impeach the good faith of Furst, or contradict his answsrs under oath.

To Hazeur also the plaintiffs propounded interrogatories. In his answers under oath he denies the fraud imputed to him, declares that he acted for the plaintiffs, that he endorsed the notes at their request, that they must have known that they were buying Furst’s property, since they visited the ground before the completion of the sale, and conversed with him about the sale; that he also believes that they were aware of their mortgaging their property to Fuzst,'that he never attempted to impose upon them, but was their friend, and endeavored to obtain the property for them at as low a price as he could.

It is evident, from other testimony, that Hazeur was the confidential adviser and intimate friend of the plaintiffs. He was their agent for the sale of their lands, as is shown by a written instrument executed by them. He is their endorser on their notes.

Furst did not bargain for a price, exorbitant at the time. The price, thirteen, thousand four hundred dollars, on a credit, was a fair price at the then rates. We find that, in June, 1839, after the effects of the great monetary crisis had matured, it was estimated by judicial appraisers at a cash value of teu thousand dollars. The improvements put upon the property by Furst’s vendor, and which were quite new when Furst bought, having been built in 1835, cost six thousanddollars. This sale was made in the month of April, 1837. In March, 1837, Furst offered the property at auction, at a limit of fifteen thousand dollars; he obtained, but rejected, a bid of thirteen thousand and some hundred dollars, on terms of credit not materially more favorable to purchasers than in the sale to plaintiffs.

At this offering, at public auction, some of the plaintiffs attended to bid upon it. The veracity of the witness who asserts this is questioned, but it derives strong confirmation from the testimony of Manuel Fleitas, a witness whose veracity was neither impeached at the trial, nor questioned in the argument. The witness makes the following statement: “He sold the property to Furst. He saw Bernard, one of the plaintiffs, and one of the women now in court, and probably another woman, on the property visiting it. They went through the house. Witness was yet living in the house when they came there. They told witness they heard the property was for sale, and asked if there was any objection to their visiting it. Witness took them all over the house, and they examined it with care, and seemed to be well pleased. They also went out in the yard, and afterwards came back through the house. This was sometime between the last of January and the last of April. From all'that witness saw of them, he did not see that they were so very ignorant; they seemed to be persons intelligent for their walk of life.” That the premises were visited by some of the plaintiffs, is also shown by other testimony.

The marks of these purchasers were affixed to the acts and notes, in the presence of two witnesses. Both declared that the plaintiffs understood what they were doing. The veracity of one of these witnesses I did not understand as being impeached; but it was said he was inexperienced. He was a clerk in the notary’s office, and was about twenty years oí age.

The plaintiffs have executed other acts, both of sale and of mortgage, and have executed other notes.

The answers of some of them, when the notes were notarially presented to them at maturity for payment, negatived the idea that they were ignorant of the execution of the notes.

Several witnesses say the plaintiffs were very ignorant, and that one of them had arrived at an extreme old age. Were she the only purchaser, I might hesitate to affirm the judgment. But the others possessed their faculties, and are stated by some of the witnesses to be shrewd and cautious, and as intelligent as persons usually are in their walk of life Some of them were present in court and were seen by the jurymen. The question is, were they so ignorant as to believe they were selling, when in reality they were buying. The burden is clearly on them. By their own admission, they acknowledge they were making a contract of some kind. The power of attorney to Hazeur, executed in February, 1837, was offered by plaintiffs to corroborate their alleged error. This power authorized him to sell their land for forty thousand dollars; twenty thousand dollars cash, and twenty thousand dollars in notes at one and two years, bearing mortgage. If they thought that what they signed was the contemplated sale, how was it that this large cash sum was not told down to them, and that instead of receiving notes, they gave them. Such a degree of ignorance is conceivable; but what the plaintiffs ask us to believe passes the boundaries of the probable, and verges upon the incredible. Such, at least, was the unanimous opinion of twenty-four jurymen, and of the judge of the District Court, before whom this case was tried six times.

I cannot, however, close this examination of the facts of the case, without joining my colleagues in the deserved rebuke of the conduct of the notary, who, under his hand and seal of office, has declared that these persons appeared pernally before him at his bureau in New Orleans, in the presence of the subscriing witnesses, when in reality the act was executed in the parish of Jefferson, out of his presence, and in presence of only one of the subscribing witnesses. The office of notary is one of great trust and high responsibility. . In the discharge of his official duties he should consider himself the especial guardian of the illiterate and humble, to read and explain to them the effects of what they sign, and to protect them against the superior intelligence of the educated, and the artifices of the designing. His official duty was grossly neglected in the present case.

It remains to notice briefly some points of law presented by the plaintiffs.

It is said there was no delivery of possession; but the act acknowledges possession, and, as between the parties, such acknowledgment is binding. Civil Code, arts. 2417, 2239.

It is said that the verdict rendered in favor of Furst was irregular, because there was no claim in reconvention upon which to found it. This cause was tried, and a judgment rendered previously. It was evidently-considered, at the former hearing before the Supreme Court, that Furst’s reconventional demand was still pending. See 3 Robinson, 347. The multifarious pleadings with which the record is crowded have been treated by the parties as consolidated, and were properly so considered by the court below.

The objection of a want of parties by reason of the death of M. J. Beaulieu, does not appear to me tenable. There was no action to malee new parties by the plaintiffs, themselves the forced heirs of their mothei-, and she an usufructuary under the father’s will. So far as Burst’s claim was concerned, he surviving parties were bound to him in solido upon the notes, and against those who were in court, a verdict was properly rendered for the amount of their indebtedness.

The certificate of the parish judge of Jefferson, accompanying a copy of the will of Joseph Beaulieu, does not set forth the probate proceedings; but the defect is supplied by a recitation in the act of sale, in which the will is announced as the the title of plaintiffs, and is declared to have been duly probated in the Probate Court of that parish.

In conclusion, I must remark, that in this case, the plaintiffs have had the benefit of six trials, and of the services of counsel of great eminence. While no jury has ever found for them, two have found against them. The costs and other expenses of this litigation must have been enormous, and it has occupied over and over again the time of jurymen and judges, during a harassing litigation of more than eight years. It is time this contest should close. Interest reipublicte ut sit finis litium.

In my opinion, the judgment of the court below should be affirmed with costs.

Forasmuch as, upon the question of the affirmance or reversal of the judgmenj upon which the appeal in this cause is taken; the judges of this court are equally divided in opinion, in obedience to the 68th article of the constitution the said judgment stands affimed, the appellants paying the costs of this appeal.

       These remarks, with regard to juries, will not be considered as made generally. There are many classes of oases which seom to me very unsuitable for the consideration of juries, and in which their intervention is rather an impediment, than an aid, to the administration of justice. Note by Slidell, J.


source: Caselaw Access Project

author: King, J.

license: Public Domain

text:
    Fleury v. Murphy.
    A judge must, in all oases, assign the reasons on which his judgment is founded, or it will be null j but the omission to refer to the particular law in virtue of which it is rendered, will not render it null. Const, art. 70.
    Appeal from the Second District Court of New Orleans, Canon, J.

      Biron, for the appellant. Redmond and Budd, for the defendant.
   The judgment of the court was pronoueed by

King, J.

The plaintiff has instituted this action to recover the possession of a lot of ground of which he is the owner, and of which he alleges that the defendant, Murphy, has taken and holds illegal possession. He further claims $500 damages for the alleged wrongful acts of the defendant. The plaintiff’s claim was rejected in the court below, and he has:appealed.

The principal question presented is one of fact, whether or not the plaintiff leased the lot in controversy to the defendant. One of the witnesses, whose •credibility is not impeached, and whose testimony is uncontradicted, expressly declares, that he was present when the parties were treating in relation to the 'lease, and that the plaintiff verbally let the premises to the defendant at a month-. •ly rent of $5, and agreed that the lease should continue as long as he remained the owner of the property. Two other witnesses, both tennants of the plaintiff, say that on the day on which the contract is stated to have been made, the plaintiff called on them, expressed his desire to lease the ground to the defendant, and asked their assent to this disposition of it, as its occupation by the defendant might incommode them. Their assent was given. These circumstances strongly coroborate the testimony of the witness, who declares that the contract was positively entered into. A few hours after the agreement for the lease, the plaintiff held a second conversation with the defendant, at the conclusion of which he was asked by one of the witnesses, what was the result 1 He replied, II n’y a ríen de fait” ; and his subsequent conduct shows that he considered himself at liberty to recede from his engagement, and that he had put an end to the contract, by this early notice of his intention to do so. The defendant, however, insisted on carrying it into effect, and there is no evidence of his consent that it should be rescinded.

There appears to us but slight conflict, if any, between the testimony of Massé and Ames, the witnesses principally relied on by the parties respectively. A conflict could only arise on the supposition that their testimony related to one and the same conversation; whereas] the latter details the first conversation, which resulted in a contract, and the former the second conversation, at the conclusion of which he was informed by the plaintiff, that no agreement had been made.

It has been urged that Fleury understood the English so imperfectly, as not to be able to enter into a contract in that language. It is shown, however, that he has made other contracts of lease through the medium of the English, and that Murphy speaks the French. The contract having been entered into, the plaintiff could only dissolve it for a legal cause, and none such has been shown.

It is contended that the judgment appealed from is null, because the judge has failed to cite the particular law in virtue of which it was rendered, in violata3n’ as ^ *s m'S0<b °f the 70th article of the constitution.

This article is a literal copy of sec. 12, art. 12 of the constitution of 1812, under which it has been repeatedly lyeld that the judge must, in all cases, assign the reasons for hi3 judgment, otherwise it will be null, but that he is not compelled to cite the particular law on which his decision is founded ; for, however familiar he may be with the legal principle on which he pronounces, it may be impossible, at the time, to refer to the particular chapter or page at which it is to be found. 3 Mart. N. S. 154. 10 Mart. 162. 4 Mart. 463. 12 La. 144.

The judge has, in the present instance, given the reasons for his judgment at length, and, under the authority of numerous adjudicated cases, has satisfied the constitutional requisition. Judgment affirmed.


author: Eustis, C. J.

text:
    Denton v. Willcox et al.
    The purchase of a judgment, from which no appeal can be taken, and which is not subject to be annulled, is not the parchase of a litigious right. The purchase of such a judgment by an attorney at law is not prohibited by art. 2423 of the Civil Code.
    Where the parties to an agreement entered into it for the purpose of defrauding their creditors, neither party can maintain any action on it.
    Appeal from the Commercial Court of New Orleans, Watts, J.

      Benjamin and Micou, for the plaintiff. Wilde, for the appellant, Vason.
   The judgment of the court was pronounced by

Eustis, C. J.

This controversy grew out of an agreement* between the plaintiff and J. Willcox, one of the defendants, of which the following is a copy.

“Whereas difficulties and embarrassments exist between G. W. Denton and Jacob Willcox, arising from their business in New Orleans, under the commercial firm of Willcox Fearn, and from the obligations and endorsements of said Denton for said Willcox, as one of the firm of Willcox, Anderson Co., and which difficulties the parties have mutually agreed on terms for adjustment of, to wit: — The said Denton, on his part, has agreed that, in consideration of the said Willcox obtaining his release on all the judgment claims hold by the Bank of the United States against him, and which aro believed to consist of the following, viz: one for the sum of thirty-eight thousand and thirty-three dollars and fifty cents; one for the sum of four thousand four hundred 'and eighty-seven dollars and thirty-nine cents — both with interest from maturity of the different obligations, sued in the Commercial Court of New Orleans; also from the judgment or judgments originally obtained by the United States Bank,' against Mr. Denton, and now held by James Erwin, as well as all other claims or implications existing against Mr. Denton, of every nature or kind, for account of Willcox 8¡ Fearn, Willcox, Anderson Sf Co., or Jacob Willcox individually; and further, that said Denton is to retain for his own use the lands entered for their joint benefit, in the States of Louisiana, Mississippi and Arkansas, (remaining unsold,) the titles to all which, with one exception, were taken, and stand in the name of said Denton; also a small lot of ground in the City of New Orleans, adjoining the cotton press on Magazine street; also, to retain all the yent money collected by him, for dues on said cotton press, from J. S. Wood,

“Now, in consideration of the foregoing, the said Denton has agreed to, and hereby binds himself to hand over to said Willcox, as cancelled and satisfied, the notes given to him by said Willcox, in settlement of his claim on assets of Willcox 8f Fearn, amounting to $100,000.

“The note of Willcox, Anderson 8p Co., paid by said Denton to the Union Bank of Louisiana, $3,870.

“ The obligation of H. W. S. Hills, given him as security or indemnity for any and all losses sustained by him on account of said Willcox 8f Co.

“ Also, to reconvey to said Willcox, or such other person as he may name, full titles to the house, slaves and furniture in New Orleans, if in his name, situated in Julia street, (in the Thirteen Buildings,) and now occupied by said Willcox; also, to convey such titles or claims on nine sections of land in Mississippi, as may belong to him, to A. SfJ. Dennistoun Co., which are referred to in the offer made them for settlement of She-ir account against said Willcox, and by them accepted.

“And the said Jacob Willcox, on his part, hereby covenants and agrees with the said G. W. Denton, for and in consideration of the foregoing, on his part, to have him released from any and all claims under the judgments referred to as belonging to the Bank of the United States, or their assigns, or any other claims they may hold on him, for account of said Willcox, in any manner whatever; also, to relieve the name of said Denton, as endorser on the paper of Willcox, Anderson <%• Co. It being well understood, that Willcox will need the aid of security the house will give, to complete the agreement on his part, the transfer of title will be made,'when so required, for the purpose named.

“ In witness of this agreement, the parties have affixed -their signatures, and interchanged the same.

“New York, October, 1844.

(Signed) “Jacob Willcox,

“G. W. Denton.

“ It is expressly understood by the parties to the above agreement, that all expenses attending the transfers therein aamed, are to be at the expense of Jacob Willcox.”

Vason, another of the defendants, had become the owner of the judgments recited in the agreement as belonging to the Bank of the United States. They were against Denton, Willcox and Huntington, one for $38,146 83, and the other for $4,551 16, both bearing interest. There is a discrepancy between the extract from the judgment docket and the mortgage certificate, as to the dates and amounts .©f these judgments; but no question as to their identity is made, and we assume the dates recited in the mortgage certificate, the 11th of March, 1843.

The plaintiff obtained an injunction against the issuing of execution on these judgments, tendered a performance of his part of the agreement, and prayed for a perpetual injunction against any future execution on them, and that they be deemed to be satisfied, on the ground that Vason held them subject to the conditions of the agreement, that Willcox was bound to release Denton from the judgments, under the agreement, that Hills Co. purchased them from the trustees of the Bank of the United States on account of Willcox, that they were, in fact, parties themselves to the agreement, and on the purchase Denton ceased to be bound as a defendant by the judgments, and that Vason, holding the judgments through Hills Sp Co., could derive no greater rights than they possessed, and was subject to all the equities which Denton had against the original purchasers under the agreement. Hills Sf Co. were made parties defendant, but, disclaiming any interest, withdrew from the suit. Willcox was made a defendant, and answered on the merits. No judgment was asked against him; and the issue is between the plaintiff and the defendant Vason.

It is charged also in the petition that Willcox, or some other person for his use, has an interest direct or indirect in the claim under these judgments, and that if they should be satisfied out of the proceeds of Denton’s property, part of them will inure to the benefit of Willcox. Vason denies, in most positive terms, the allegations, so far as they affect him or his rights, which he asserts as a bond fide purchaser of the judgments, without notice or combination, from A. T. Burnley Sf Co., to whom they were sold by Hills Sf Co.

The judgment of the court maintained the injunction, except for the sum of $7,971 61, the amount paid by Vason to A. T. Burnley Sf Co. for the judgments, and the defendants Vason aud Willcox have appealed, and Denton has united in the appeal.

■ It is charged in the petition that, the purchase by Vason was of ,a litigious right, which, as an attorney and counsellor at law, he was prohibited from making, under the article 2422 of the Code. We do not conceive that the judgments purchased by him come within the prohibition of that article, and we take this opportunity of remarking that, if there was any thing exceptionable in this transaction on the part of Mr. Vason we should feel ourselves bound to notice it, but we are of opinion that he did what he had a right to do, and that his purchase was bona fide, and that his conduct is not obnoxious to censure.

An exception has been taken in this court to the plaintiff’s right of action, that the agreement which the plaintiff seeks to enforce was illegal, immoral and fraudulent throughout, conceived and carried on for the purpose of screening the property of both Denton and Willcox from their creditors, and consequently that a court never can lend its aid in carrying it into effect.

If the agreement be, and it is alleged, tainted with those vices, our duty is plain, and leaves us no discretion in its performance; and, in order to form a correct opinion of its character and object, it is necessary to go back to its origin.

The plaintiff and Willcox were merchants, doing business in New Orleans under the name of Willcox Sf Fearn. They had purchased out the interest of Fearn. Denton was a silent partner, and by an instrument under private signature, on the 15th June, 1840, sold his interest in the partnership to the defendant Willcox for $100,000, for which the latter gave the plaintiff his notes; and, as a further consideration for the sale, Willcox agreed to pay a balance appearing to be due Denton on the books of the firm of Willcox Sf Fearn, and assumed the payment of the losses on cotton in 1839, which amounted to $66,000, of which Den-ton’s share was one half. For the purpose of securing the performance of the conditions of this agreement, which embraced not only what is before stated, but provided for the protection of Denton against the'debts of the firm of Willcox Sf Fearn, and all his liabilities on account of Willcox personally, or of the house of Willcox, Anderson Sf Co., (a new firm which succeeded Willcox Sf Fearn,) it was provided that, the titles to the real estate belonging to that partnership, and also that belonging to Willcox personally, should stand in the name of Denton, and be retained by him as hypothecated for that object. Willcox reserved the privilege of selling any of the real estate or slaves thus mortgaged, on furnishing satisfactory security in lieu of that disposed of. Willcox assumed all the debts of Willcox 8c Fearn, and Denton was to be held harmless.

It appears that this property, which figures in the agreement of 1844, and which never ceased to belong to Willcox, was in the name of the silent partner of the bankrupt concern of Willcox 8{ Fearn, and by the agreement of 1840 was so to remain. It is stated in the printed argument of Willcox that, it had been so placed originally for the purpose of facilitating the transfer of it, should it be required, Denton being the only unmarried man of the firm; but it appears that the real object was equally well attained after the marriage of Denton, and another purpose was also effected, to which neither of these parties could be strangers — by the property being in the name of Denton, it was supposed to be beyond the reach of Willcox1 s creditors. At this time, on the 15th June, 1840 there were these judgments recorded against him, which, in September, 1845, stood on the books of the recorder of mortgages:

1st. A judgment against Willcox, Anderson 8f Co., jointly and severally, for $7,493 50, with interest from the day of the date thereof, 23d November, 1837.

2nd. Another, against the same parties, for $5,158 64, with interest from its date, November 22nd, 1837.

3rd. Another, against the same parties, for $9,760, with interest from its date, 12th May, 1838.

Having these judgments to meet, besides the loss of the cotton speculation of 1839, $66,000, it is obvious, with all the real estate of the late firm of Will-cox 8c Fearn, as well as his own dwelling house, slaves and furniture in the name of the- silent partner Denton, there were other objects effected by that state of things besides the facilities of conveyance, which no professional man can ask a court of justice to countenance.

The agreement of 1840 was the basis of that of 1844, on which the plaintiff rests his claim for relief. This agreement, made in New York four years after, provides for the conveyance of the Julia Street property, (the dwelling house of "Wilcox,) his slaves and furniture, the delivery up of the notes of $100,000 and others held by Denton, to Willcox, in consideration of the latter’s procuring the release of the former from certain judgments which are set forth in the plaintiff’s petition, and certain other claims which it is not material now to notice. The last clause of the agreement is the key to the whole, and discloses the original purposes of these parties: tllt being well understood that Willcox will need the aid of the security the house will give, to complete the agreement on his part, the transfer of title will be made when so required for the purpose named.11 That is, is in order to enable Willcox to buy up these judgments, the means must be furnished by Denton1 s uncovering the title and conveying the house; but not to him, Willcox, for then it would come under the general mortgages recorded against him, but to Willcox, or such other person as he may name.

The counsel of the plaintiff gives this view of the matter in his printed argument. “After the arrival of the procuration to Josephs, difficulties arose in reference to the transfer of the property. There were numerous judgments against Willcox, many of them, and of large amounts, of prior dates to the judgments now in question; hence Willcox did not desire that the property should be transferred to himself, because that step would have placed it most effectually beyond his control.”

The judgments recorded against Willcox taking precedence of those mentioned in the petition, rendered the latter without value, so far as his name was concerned; and it is apparent that, as Denton merely held a mortgage on the property in his name, whenever the debt for which it was given became extinguished, the property must of right fall under the mortgages recorded against the owner, and they also have the benefit of any diminution of the debt. The first mortgage creditor is first in right, and any disposition of the property to his detriment is a fraud, and any agreement between parties, having that for its object, is illegal. Denton had no right to give any such direction to property on which he only had a mortgage to the manifest loss of bond fide mortgagees. A release of his mortgage could not inure to the benefit of Willcox at the expense of his creditors.

There were other judgments against Willcox, of which we will take the plaintiff’s own account. We find what follows in the printed argument of his counsel:

. “Willcox met with other serious difficulties in his negotiations. In addition to the judgments of which his friends had obtained the control, there were others against him originally belonging to the Uuited States Bank, but which had been sold by the sheriff, at the sale of the various credits belonging to that institution. They were adjudicted to W. A. Gasqueb and G. Morgan, and by them transferred to A. Erwin. It would seem that Erwin had acquired them under some secret understanding with Willcox, and that there was a difference between them as to the balance due, Erwin claiming $7,500, and Willcox contending that he was bound only for $5,000!.”

These judgments are also referred to in the agreement of October, 1844. Willcox contracted to release Denton from them, as well as from those held by the United States Bank. In the agreement they are said to belong to James Erwin, but he held them as agent of A. Erwin.

But there is another branch of the affair between Denton and Willcox which is in keeping with the rest of it, and discloses the purpose of their combinations. Denton was a silent partner, and in solido bound for the debts of Willcox 8f Fearn, and was also involved to the extent of $66,000 on cotton shipments made with Willcox in 1839. He held, in his own name, real estate in New Orleans, and lands and slaves in Mississippi and elsewhere, belonging to the firm or to Willcox, and retained them as a security for the performance of the condition of the agreement of the 15th June, 1840.

But by the agreement of 1844, on which the plaintiff has founded his action, her etains for Ms own use the lands entered for their joint benefit in the States of Louisiana, Mississippi, and Arkansas, remaining unsold, and a small lot of ground in New Orleans, &c., to the detriment of creditors, who, from the secrecy of his relations towards Willcox as a partner, were in the dark as to the ownership of the property and his responsibility as a partner.

That there were unsatisfied claims against Willcox Sf Fearn results from the agreement of 1844, by which Willcox binds himself to procure the release of Denton from them, and there is a provision in the agreement for the conveyance of lands in.Mississippi belonging to Denton, to A. J. Dennistoun & Co., in settlement of their accounts against Willcox.

This looks very much like a joint effort of partners to enable a secret partner not only to avail himself of the ignorance of creditors to escape from his liability in solido, but to close his own account by the appropriation of partnership property to his exclusive benefit.

Having ascertained, as far as it can be done from the documents before us, the position of Denton and Willcox, let us examine that of the plaintiff in respect to these two judgments.

The first (5023) was obtained in a suit against Denton and others on a bill of exchange, on which Denton was an endorser, which was protested in New Orleans, on the 13th June, 1840, for non-payment.

The second (5069) was obtained on Denton’s own notes, three in number, each dated May 23rd, 1840, payable at thirty, forty-five, and sixty days respectively, to the order of Willcox, and each amounting to §5,000, pi’otest of which was waived by the endorser, and on three notes of Willcox, Anderson & Co., endorsed by Denton, and protested before the 15th June, 1840, the date of the first agreement.

These suits were instituted on the 5th and 19th April, 1842, respectively, and judgments were obtained on them only in 1843; but on the 6th June, 1842, the plaintiff confessed a judgment in the Parish Court of New Orleans, in favor of James Erwin for 63,000 with interest, a portion of which related back to 1837. In December following the confession of judgment, it appears to have been transferred to Andrew Erwin, of Tennessee, and being recorded before the two judgments under consideration were rendered, operated as a general mortgage to their detriment on all property in the name of Denton. The verity and validity of this judgment is assailed by the defendant Vason, who charges that it was a mere cloak, and afforded the moans to Denton to defy his creditors and those of Willcox and weary them out, by standing in the way of a pursuit of their lawful rights.

Bearing in mind the statement of the plaintiff’s counsel concerning the relations between Willcox Sy Erwin, which we have just recited, let us hear what his witness says concerning this judgment.

Jacques, a witness examined in New York, after stating the understanding between Denton and Hills Sy Co. in relation to the purchase of the judgments, says: “ Denton positively said that he would make title to the house, negroes and furniture, if the latter was in his name, immediately on his arrival in New Orleans; that he was unable to do so at that present time, in consequence of Mr. James Erwin holding a certain judgment against him, taking precedence on record to those held by the United States Bank, but that judgment was under his, Denton’s, control; that he would write to Erwin on that day to facilitate his action in the matter on his arrival in New Orleans, when he would make title to the house, &c., either by directing Erwin to waive the judgment held by him, or by a formal sale under that judgment, which ever might prove the most feasible plan.”

This account of the judgment, of the power Denton had over it, and of the purposes to which he could apply it, was given by Denton to Hills & Co., on the 19th of November, 1844, previous to the purchase of the judgments held by the trustees of the Bank of the United States, Its effect would be weakened by any comment.

A letter of May 11th, 1845, addressed by one of the Messrs. Hills to their agent, which was produced at the request of the plaintiff, is to the same effect. An extract is to this purport: “ Denton stated to me, in the presence of a witness, that he had the control of the judgment against him held by Mr. Erwin, as well as the titles to the house and lot in Julia street, and, he believed, the negroes and furniture, and would immediately on his arrival in New Orleans, make good and sufficient title to the same to you, or our agent,” &c.

Huntington, another witness for the plaintiff, proves that the plaintiff put another valuable piece of property in the city which belonged to him, the Harpej property, as it is called by the witnesses, in the name of another person.

James Erwin released the property from the judicial mortgage, by an act to that effect, dated the 31st of May, 184&, passed by him as attorney in fact of Andrew Erwin.

If we consider this Erwin judgment as the plaintiff himself'has treated it, what weight can be given to it, or to its transfer to Andrew Erwin? We can only treat it as an instrument in the hands of the plaintiff to coerce his creditors to sell their just claims on him to some mutual friend for a bagatelle; which instrument he used most effectually, and to enable him to complete and accomplish his ends he appeals to the ministers of the law.

The circumstances attending this judgment, its transfer, its non-execution, and the payment of no portion of it for so long a period, its amount, and the uses to which it has avowedly been applied, produce the conviction on our minds as to its origin and purpose, which we cannot avoid, and'the whole complexion of the testimony, oral and documentary, without one single exception, fortifies that conviction.

There are a number of letters before us from Hills Sf Co. to their agent in New Orleans, Mr. Josephs, who was examined as a witness. They were produced at the instance of the plaintiff.' They unmask the whole business. They establish conclusively that it was understood between the parties, that the Erwin judgment was a mere cover to prevent the Bank of the United States from recovering their debt; that their judgments, which Hills Sf Co. purchased, were perfectly good for their amounts independent of the contrivances with which these parties embarrassed their collection, and which had enabled Hills Sf Co. to buy them for about a fourth of their value from those who were in charge of the wreck of the late Bank of the United States.

A paragraph from Mi-. Josephs to Hills Sf Co., mentioned in one of these letters, is strongly expressive of his opinion of the transactions which are the subject of our enquiry.

Mr. Denton will not take any step adverse to your interest. I know his situation well, and even if he feels disposed to pursue the course apprehended by you, he would not dare attempt it, or provoke the publicity it would occasion.”

Concerning the law applicable to this case there can be no question. We have been called upon to apply it in the cases of Bernard v. Auguste. 1 Annual Reports p. 70, and in Davis v. Holbrook, Ibid. 176.

All the evidence in this case points to one conclusion, and- renders impossible any other hypothesis under the most charitable construction which we are permitted to put on the actions of men. These parties were bankrupt merchants, and it is proved by the plaintiffs own showing that they combined for the purpose of putting their property out of the reach of their creditors, for the object of defrauding them, by first depreciatingtheir debts, by unlawful means, and thereby enabling themselves to purchase them up at an inconsiderable price ; that Ike agreement of 1814 is in furtherance of that combination and plan, ami was entered into with that view alone ; that it is immoral and fraudulent, and that no action for relief can be based on it.

The judgment of the Commercial Court is therefore reversed, and tho plaintiff's petition dismissed, with costs in both courts.

       The counsel for the plaintiff cited, in support of the position that the purchase by Vason was that of a litigious right, Civil Code, arts. 2422, 2623, 3522, no. 22. The counsel for Vason, on the other hand, cited Favard, verbo Droits Litigieux. Troplong, Vente, nos. 200, 201, 202 and authorities there cited. Merlin, Rep. verbo Droits Litigieux. Code Nap. Ánnoté. art. 1700. Code, lib. 8, tit. 37, de Litigiosis. 1 Maynz., Droit Romain, 326. 9 Mart. 183.


author: Rost, J.

text:
    Johnson v. Johnson.
    ■Where a slave was diseased at the time of the sale to the knowledge of tho vendor, and tho disease is proved to have rendered her use so inconvenient and imperfect that it must be supposed tho purchaser would not have bought her ii he had been aware of its existence, she becoming incapable shortly after the sale of doing the work for which she was sold, and continuing so, the sale will be rescinded, and the vendor condemned to repay the price, with interest from tho day of sale, and the cost of her medical treatment while in the hands of the purchaser.
    Appeal from .the District Court of the the First District, Bucchanan, J.

      M. M. Reynolds, for the plaintiff,
    cited Civil Codo, articles 2451, 2496,
    2504. 5 Mart. 434. 1 La. 311. 7 La. 517. 19 La. 519,

      Mo'ise, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

This is an action of redhibition. The plaintiff alleges that he purchased from the defendant, with full warranty, for the sum of $400, the female slave, Winney, about eighteen years of age ; that a few weeks after the sale, he discovered that said slave was, and had been before and at the time of the sale, afflicted with an incurable chronic disease; that the use of said slave is, by said disease, rendered so inconvenient and imperfect that the petitioner, had he been aware of it, would not have purchased her at any price whatever: that the defendant knew of the existence of the disease at the time of the sale, and fraudulently concealed it from him: that he has made a tender of the slave to the defendant, and made of him a demand of the price ; and finally that he has sustained damages by the fraudulent conduct of the defendant, as well as by expenses incurred for medical attendance on said slave, and loss of time. He prays that the sale be rescinded, and the defendant adjudged to pay him the sum of $40 0, withi nterest and damages. The petition also contains a prayer for general relief.

The answer of the defendant is a general denial. The judgment of the court below was that the sale be rescinded, and that the plaintiff recover from the defendant $400, with legal interest from the date of said sale, and the further sum of $21, expenses incurred in medical treatment of said slave, and that the plaintiff restore the slave Winney to the defendant. From this judgment the defendant has appealed.

Five physicians have testified in this controversy. The testimony of two of them supports the allegations of the petition, and is in direct opposition to that of the three others, not only as to the nature of the disease, but also as to the facts of its external appearance. When doctors disagree it is difficult to decide, but we console ourselves with the reflection that the accurate diagnosis of the disease is not perhaps as important as the ascertainment of its effect upon the patient. It is positively proved that, shortly after the purchase, the slave was confined to her cabin, and continued incapable of doing the work for she was sold by the defendant. j

The defendant was aware that she had a disease of some kind. When he was about selling her, he asked the physician who was in the habit of attending his slaves, whether he could guaranty her as sound. That physician asked her tho usual questions to ascertain the symptoms attending a disease of the womb. She replied in the negative, and from the cursory examination he made of her, he told tho defendant that he thought he could guaranty her as sound. A short time before she had a miscarriage on board of a vessel on her way to Louisiana. Whether "her illness was the result of that accident, as one of the physicians seems to believe, or whether it was produced by a disease independent of it, the slave was unsound at the time of the sale, to the knowledge of the defendant, and her disease is proved to have rendered the use of her so inconvenient and imperfect, that it must be supposed that the plaintiff would not have purchased her if he had been apprized of its existence.

We incline to the opinion of the court below, that the testimony of the two physicians who have attended the slave since she is in the possession of the plaintiff, is entitled to more weight than that of physicians who saw her but once, in relation to the disease alleged. Whether that disease be curable or not, may be a matter of conjecture; but it is an undeniable fact that thus far it has pot b.een cured, and that the plaintiff has not what he bargained for.

Judgment affirmed.

       Eustis, C. 3., having boon of counsol, did not sit in this caso.


author: Etjstis, C. J,

text:
    In the matter of the Merchants Bank of New Orleans.
    Where a statute directs that the salaries of the commissioners for the liquidation of a hank shall not, after its passage, exceed a fixed sum, the court may, on the suggestion of counsel, amend a tableau of distribution in which the commissioners have allowed themselves a larger sum, by reducing the allowance, though no opposition was made to the allowance by any creditor of tho bank.
    Where a statute expressly provides that it shall have effect from its passage, it will have effect from that dato, and not from the time of its promulgation only.
    The second section of the stat. of 6 April, 1843, reducing the compensation, allowed by sec, 25 of the stat. of 14 March, 1842, to the commissioners appointed under that act, did not impair any contract. The 25th section of the act of 1842, allowing such compensation, created no contract with the commissioners.
    APPEAL from the District Court of the First District, Buchanan, J. The commissioners appoihted under the act of the 14th March, 1842, to liquidate the Merchants’ Bank of New Orleans, having filed, in the District Court for the First Judicial District, their final tableau of distribution, and prayed for its homologation, the usual order of publication was granted.
    The publication having taken place as required by law, various creditors filed oppositions, insisting on their right to be placed on the tableau, and to be paid in preference to other creditors, &c. These oppositions were tried, and the court settled the rank of the opposing creditors, and from the decision thereon none of them have appealed. In the course of the argument on the oppositions, Mr. Barker, one of the counsel in the case, suggested to the court that, the commissioners were only entitled to a compensation of $1,000 per annum, agreeably to the act of 1843, instead of $3,000 per annum, that fixed by the tableau. The judge reduced the compensation of the commissioners accordingly, from which decision Calhoun and Conrey, two of them, have appealed.

      Schmidt, for the appellants.
    The judgment below was erroneous:
    I. Because there was no opposition filed by any one to the compensation allowed them by the tableau. By the 24th section of the act of 1842, (Sessions acts, p. 246), “the powers, duties and liabilities of the commissioners, are the same as those conferred or imposed on syndics of insolvent estates, and the proceedings are the same as those provided for by the acts now in force, relative to the voluntary surrender of property.” By the 36th section of the act relative to the surrender of property, (B. & C’s Dig. 494,) it is provided that, after a tableau has been filed and notice given, the creditors who have any objection to the distribution “shall file their opposition in the clerk's office, together with the motives on which the same is founded," Sec, Vide Kirkland v. His Creditors, 7 Mart. N. S. 131.
    The judge is not authorized to reform the tableau of distribution, unless there be: 1st. A written opposition filed, explaining the motives why the reform is required; and 2nd. Unless such opposition come from a creditor, that is, from a party who is not a mere volunteer, but who has a direct interest in the question. Here, no opposition has beon filed with the clerk, and there is no evidence to show that Jacob Barker is a creditor. The judge had no power, ex oficio, to make such changes in the tableau as he thought proper.
    There are cases in which the court will officially apply the law, but they will be found to class themselves under two heads, viz: 1st. Those relating to the powers of the tribunal before which a suit is brought, or, in other words, questions of jurisdiction. The reason of this is, that questions of this nature fall peculiarly within the province of the judge, who cannot, without a dereliction of duty, and disregard of his official oath, assume an authority wiih which the legislative power has not chosen to entrust him. 2nd. Those in which the legislature, from motives of policy, has thought proper to refuse relief to a party aggrieved. In such -cases, the judge may, ex officio, refuse his aid, if the fact appear plainly from the pleadings.
    II. Because the construction which the inferior court put on the act of 1843, gives that law a retrospective effect, and violates the contract, by virtue of which the commissioners acted, contrary to the true intent and meaning of the legislature ; and because sueh a construction would discharge the sureties of the commissioners, and leave the creditors without any other guarantee than their personal responsibility, which can never be presumed to have been-intended by the legislature..

      Any alteration of the original agreement, whether injurious or beneficial to the surety, will discharge him. Miller v. Stewart, 9 Wheat. 680. Wright v. Johnston, 8 Wend. 512. Moore v. Payne, 12 Wend. 12,6. Colemard v. Lamb, 15 Ibid. 329. Miller v. McCann, 7 Payne, 451. Doev. Postmaster General, 1 Peters, 325. United States v. Stansbury, Ibid, 475. Hunter v. United States, 5 Ibid, 173. Douglass v. Reynolds, 7 Ibid, 113. United States v. Orr, 8 Ibid, 399. Sprigg v. Bank of Mount Pleasant, 10 Ibid, 257. Same case, 14 Ibid. 201. United States v. Boyd, 15 Ibid, 187. Pothier, Traité des Oblig. 406. Roman v. Peters, 2 Robinson, 479.
    III. Because the inferior court makes the law take effect from the day it was approyefl by the governor, instead of twenty four hours after its promulgation. The act of 1843 (Sessions acts, p. 65) was approved 6th April, 1843, and promulgated the 13th April following; it did, consequently, not go into operation until the 15th April, 1843. Acts in fine.

      C. C. Parkhill, contrS-
    The stat. of 1843 did not impair the obligation of any .contract. The stat. of 1842 created no .contract. 6 Crauch. 135, 145. 4 Wheat. 611, 616, 661. 4 Devereux, N. C. Rep. 14, 20. 3 Story on Const. 260. The stat. of 1843 expressly provides that it shall go into effect immediately after its passage.
   The judgment of the court was pronounced by

Etjstis, C. J,

On the 14th day of February, 1845, the commissioners of the Merchants’ Bank of New Orleans, in liquidation, Peter Conrey, Jr., Robert Copland and John Calhoun, filed their final tableau of distribution and account in the clerk’s office of the District Court of the First Judicial District-, and notice thereupon issued, in the manner and form required by law, to all creditors and others interested, to show cause, within ten days, why it should not be homologated. In this tableau, the commissionei’s allowed themselves a salary at the rate of $3,000 per annum, from the 7th April, 1843, to 7th Februaiy, 1845, amounting to $5,500 each, or $11,000 for the two appellants, Conrey and Calhoun.

After trial of the oppositions, the court rendered judgment on the 23d February, 1846, amending the tableau in several particulars, and homologating it a3 amended.

The judge says: “My attention has been called by Mr. Barker, one of the counsel in the cause, to the charge for salary made by the commissioners. That charge is at the rate of three thousand dollars per annum, for each commissioner. I consider myself bound to examine into its legality, when that is brought to my notice, even in this informal manner; .and am referred to the 2d section of an act of the legislature, approved 6th April, 1843, (page 63 of Sess. acts) which declares, that the commissioners of the banks in liquidation shall, in future, be entitled only to a yearly salary of one thousand dollars each, free from the expenses of office. This law is .perfectly unambiguous, and must regulate the allowance of the commissioners, from the day of its date. It is therefore adjudged and decreed that the tableau be amended, by reducing the salary of each commissioner of the Merchants’ Bank of New Orleans to the rate of one thousand dollars per annum, from and after the 6th April, 1843, until the date of the filing of the tableau, and that the tableau, so amended, be homologated.”

From this judgment, two of the commissioners, Peter Conrey, Jr. and John Calhoun, have appealed, and assign as errors:

First, that the court undertook to reform the tableau of the commissioners, as to their commission, without any opposition whatever, either special or genoral, and upon the suggestion of a person who does not appear to have any interest in the matter, or to represent any one interested therein.

Secondly, that, even if the court was right in this respect, the judgment is erroneous in decreeing a reduction of the salary from the 6th April, instead of of the 15th April, being 24 hours after the promulgation of the law, which was not published until the 13th April, 1843, in the official gazette of the city of New Orleans.

Charles C. Parkhill and others, stockholders, make answer to the petition of appeal, praying for a confirmation of the judgment, and damages for a frivolous appeal, taken for the purpose of delay.

We think the judge did not err. The law reducing the salaries of the bank commissioners is imperative, and the court was bound to carry it into effect. It took effect from its passage, by virtue of an express proviso.

But, it is said, that the 25th section of the act of 1842, providing for the compensation of the commissioners appointed under the act, was a contract, and to change the amount by legislation, is to impair the obligation of a contract, in its constitutional sense.

A contract fixing the compensation of commissioners for a term of years, without the salutary control of the legislature, would convert the commission into a job, and defeat the very object of the law. Such a construction is totally repugnant to its intendment, and is supported by no sound rule for the interpreting of statutes. Judgment affirmed.