text:
    Jacob Hoover v. D. F. Miller.
    A contract for the purchase of real estate cannot be proved by parol. C. C. 2255. But where a party interrogated upon oath confesses the contract, that confession forms the written evidence of the title.
    A party interrogated on oath must simply confess or deny the fact about which he is interrogated ; bat he may also state other facts tending to his defence, provided they be closely linked to the fact on which he has been questioned. If he admits the existence of an agreement, which he says was afterwards broken by the oilier party, the latter will not be considered as closely linked with the admission, but merely the affiant’s opinion upon what may be a question of law. C. P. 353.
    In doubtful cases the agreement is to be interpreted against him who has contracted the obligation; and where one of the parties has had an opportunity of giving the necessary explanation and has not done so, the inference is that the explanation would have been disadvantageous to him if made. C. C. 1952, 1953.
    If a party interrogated on oath answers evasively, the interrogatories may be taken as confessed against him, even without an application from the other party.
    from the District Court of Concordia, Farrar, J.

      FT. B. Shaw, for plaintiff.

      Stacey and Sparrow, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff seeks to recover a tract of land in the possession of the defendant, which he purchased at the probate sale of the succession of the late John P. McNeill. He also claims damages. The answer is, that McNeill died in Mississippi in 1837, leaving Alvarez Fisk his testamentary executor; that shortly after, the respondent entered into a written agreement with Fisk for the purchase of the land, and, under said agreement, took actual possession of it, and has remained in possession up to the present time ; that in 1848,’ a dative testamentary executor was appointed in this State, who caused the land to be advertised for sale at public auction, under an order of court; that the land being situated between the plantations of the plaintiff and of the respondent, they entered into a verbal agreement for the purchase of it on joint account, each to take the half adjoining his own land, and the division line to be drawn according to one of two plans, sketches of which were in the hands of the legal adviser of the plantiff, the said plaintiff having the choice; that the land was adjudicated to the plaintiff under this agreement, and that he now refuses to comply with it. The defendant further avers, that he has made a tender of half of the price; and he prays, that upon complying with the terms of the sale, he may be decreed to be the owner of the upper half of the land in controversy.

For the purpose of proving the alleged agreement, the defendant propounded the following interrogatory to the plaintiff: Did you, or not, previous to the probate sale of the land described in your petition, agree with Mr. J). F. Miller, the defendant, to buy the same in partnership, to be divided in one of two ways as shown in a sketch drawn by Mr. Miller, by which the land was cut into equal moieties, the upper half to belong to Mr. Miller, and the lower half to you?

The answer of the plaintiff was, that they had made a partial private agreement to that effect, and that afterwards said agreement was broken.

The case was tried before a jury, who found in favor of the plaintiff, with $300 damages. The defendant has appealed from the judgment rendered on the verdict. . ,

In the course of the trial, the defendant’s counsel excepted to the opinion of the court rejecting the evidence of witnesses offered by him, to prove that when 'the land was about to be sold a verbal agreement was entered into, in their presence between the plaintiff and the defendant, to the effect that the land was to be purchased by the plaintiff for the joint benefit of himself and the defendant, each paying one half of the price; and further, that after the adjudication the plaintiff had repeatedly acknowledged the defendant to be the owner of one half of the land. We are of opinion that the district judge did not err. We express no opinion upon the question, whether parol evidence would have been admissible if the object of it had been to explain the ambiguity in the answer of the plaintiff to the interrogatory put to him. It is enough to say, that the evidence was offered without reference to that answer, and that it was a distinct attempt to prove by parol a contract for the purchase of real estate, in direct violation of art. 2415 of the code. The case stands before us as it did before the district court on the interrogatory of the plaintiff, and the answer of the defendant to it. •Article 2255 of the code provides, that every transfer of immovable property or slaves must be in writing; but if a verbal sale or other disposition of such property be made, it shall be good against the vendor, as well as against the vendee, who confesses it when interrogated on oath, provided actual delivery has been made of the immovable'property or slaves thus sold.

Under that article, when the party interrogated admits the contract, the interrogatory and answer become the written evidence of title. The defendant in this case did not object to the sufficiency of the answer, and did not require the plaintiff to answer over. The only thing to be ascertained therefore is, whether the interrogatory and answer, as they stand, are sufficiently definite and certain to prove a contract, and establish the title of the defendant.

The rule in answering interrogatories is, that the party interrogated must ■ simply confess or deny the fact; but that he may state some other facts tending to his defence, provided they be closely linked to the fact on which he has been questioned. C. P. 353. The last part of the answer in this case, that the agreement was afterwards broken, so far from stating a fact closely linked to the question asked, is not a fact at all within the meaning of the Code of Practice. It is nothing more than the plaintiff’s opinion on a question of law, admitting the existence of the contract before it was broken. If the breach originated in the act or omission of the defendant, the plaintiff should have shown that act or omission. If the breach occurred through th'e fault of the plaintiff, the defendant does not elect to consider the contract as broken, and has a right to claim the specific performance of it. We will therefore disregard this portion of the answer, and determine the rights of the parties on the interrogatory and the answer, that a partial agreement had been entered into, to the effect mentioned in said interrogatory. This being the title of the defendant, if any he has, the case stands as if before the sale the following agreement had been entered into in writing: “ I, Jacob Hoover, do partially agree with JD. F. Miller, here present and accepting, to buy on joint account with him, at the probate sale of the succession of John P. McNeill, the land belonging to that succession in Louisiana, and adjoining our respective plantations above and below: each to pay one-half of the price, and the land to be divided into two equal portions, in one of two ways as shown by a sketch agreed upon by the parties, the upper half to belong to the said Miller, and the lower half to me.

This agreement may be said to embrace two distinct contracts: the first is to purchase the land, with the understanding that each of the purchasers is to take the half adjoining his plantation; the second relates to the fixing of the boundary between them. There is no contest in relation to the boundary, and the only question before us is as to the promise of the plaintiff to purchase the land on joint account with the defendant. That promise would be established beyond all doubt by the supposed agreement, if the word partially was not found in it. The thing to be purchased is accurately described: the agreement to purchase it would in that case be free from ambiguity, and the fact that no price is mentioned would not affect its validity. Both parties were present at the sale; and so long as one bid under the agreement, and the other did' not object, the bid, if accepted, was binding upon both.

The word partially, made use of by the plaintiff, standing as it does unexplained, cannot affect the contract to the prejudice of the defendant. The rule is, that in doubtful cases the agreement is interpreted against him who has contracted the obligation, and that if, as in the present case, the doubt or obscurity arise for the want of necessary explanation which one of th.e parties ought to have given, or from any other negligence or fault of his, the construction most favorable to the other party shall be adopted. C. C. 1952, 1953.

It was incumbent upon the plaintiff to have explained what he meant by a partial agreement; and as he has not done so, the law presumes that the explanation, if given, would have been to his disadvantage, and that there is nothing in this ambiguous expression that can diminish or affect his liability under the contact. Whiting v. Ivey, 3d Ann. 649. Barian v. Sterling, 2 N. S. 55. Knight v. Munhison, 1 R. R. 31.

There are other principles of law upon which the case might safely be determined. The answer of the defendant to' the interrogatory was manifestly evasive; and whenever this is the eas8, courts of justice are justified in disregarding the answer, and taking the interrogatory for confessed. This has repeatedly been done without an application from the party interested to that effect.

It was said in argument, that article 2255 was not applicable, because the possession had not been delivered to the defendant by the plaintiff. The possession was delivered to the defendant by the legal representative of the succession of McNeill, under which the plaintiff claims; and he purchased with full knowledge of that actual adverse possession. Such a possession has the character required by the article of tho code.

It was further urged, that tho agreement of the parties to buy the land jointly, for the purpose of avoiding the competition of each other at the auction sale, was immoral, and that no' action can be maintained upon it. Whatever may have been the motives which induced the parties to enter into the contact, the law has no means to reach them. It is enough that the contract itself is lawful on its face, and discloses nothing contrary to good morals or public policy.

The land was sold on a credit of one and two years, and the first installment has matured. We are of opinion, that the defendant has made out his case, and that upon his refunding to the plaintiff $5401 88 with legal interest from November 6th, 1850, till paid, in satisfaction of one-half of the first installment, if that installment has been paid, or on paying that amount to the dative executor of McNeill, if it has not already been paid by the plaintiff; and further, on assuming the payment of the like sum of $5401 88, due on the 3d of November, 1852, according to the terms of the sale, and obtaining from the dative executor the release of the plaintiff for that amount, the defendant is entitled to a conveyance of the upper half of the land in controversy. For the purpose of carrying these dispositions into effect, as well as to- have the boundary fixed, the case must be remanded.

It is therefore ordered, that the judgment in this case be reversed, and the case remanded for further proceedings according to law, and in conformity with the principles stated in this opinion; the plaintiff and appellee paying the costs of this appeal.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Lawson B. McKee v. J. J. and W. Amonett.
    By the common law, a surety is not entitled to a subrogation to the rights of the creditor upon paying a joint judgment against him and the principal. The judgment is extinguished by the payment.
    Compensation must rest on the basis of good faith; and where the parly setting up the same has been guilty of bad faith in acquiring his claim, he will not be allowed the benefit o f compensation.
    APPEAL from the District Court of Madison, Richardson, J.

      Remiss, for plaintiff.

      J.J. Amonett, for defendants.
   The judgment of the court was pronounced by

Rost, J.

This action is brought to recover from the defendants two slaves, named Sam and Asbury, or their value. The defendants answered that they acquired title to the slaves on the 3d of August, 1846, at a sheriff’s sale, made by virtue of an execution issued in the suit of the Bank of Tennessee, fen' the use of W. and J. J. Amonett and J. Folkes, v. McICee; being a proceeding by executory process upon a judgment obtained in Tennessee against McKee, Follces et als. They also allege that they, with Folkes, were the owners in equal portions of that judgment; and pleaded its amount in compensation and reconvention. They cited Folkes in warranty by service of citation upon a curator ad hoc appointed to defend him. The curator filed an answer, in which he unites with the defendants in asserting the validity of their title, and also in their pleas. An unsuccessful motion was made by the plaintiffs to strike out the call in warranty. There was judgment in favor of W. and J. Amonett and Folkes, for the amount of the Tennessee judgment, after deducting the value of the slaves, which was estimated at $533 33. The plaintiff has appealed.

In order properly to appreciate the title which the defendants assert, under the sheriff’s sale, it is necessaiy to review the circumstances which preceded their purchase. It appears, that on the 23d January, 1846, a suit by attachment was brought in the district court for the parish of Madison by one Powell against McKee, a non-resident, upon an alleged indebtedness. The petition was signed by A. Pierce and the Messieurs Amonett as the attorneys of Powell. The attachment bond given in favor of the absent defendant, as required by law, to protect him from such damages as he might sustain if the attachment should be found to have been unlawfully issued, was signed by Pierce and James J. Amonett, as sureties. Under the writ, the sheriff on the same day seized, as the property of McKee, three slaves, Sam, Asbury and Rebecca, and also a wagon and harness. On the same day, W. S. Thompson, purporting to act as the agent of McKee, the absent defendant, but who was in reality the accomplice of Powell, executed, with the consent of Powell, a forthcoming bond for the slaves and chattels, conditioned for the satisfaction of such judgment as might be rendered against McKee. This bond is signed by A. Pierce and James J. Amonett, as sureties; they, as we have already stated, being the attornies of record for and sureties of Ihe attaching creditor. At the foot of this bond is a memorandum of like date, signed by Powell, in which he states, that though the bond is conditioned to pay the judgment rendered against McKee, he only requires that the property attached be forthcoming, and acknowledges that one of the slaves, Rebecca, and the chattels attached have been placed in his possession. On the same day, an agreement, attested by J. J. Amonett, was signed by Thompson, purporting to act as agent for McKee, and by Powell, by which it was agreed that the two slaves, Asbury and Sam, should be left with Pierce, until the suit should be determined, with liberty to hire them out. They subsequently, it appears, came into the possession of the Messieurs Amonett. On the 21st of April, 1846, McKee appeared in the cause, by counsel, and moved the dissolution of the attachment, upon the ground that the property attached had been secretly and fraudulently removed from his domicil in the State of Mississippi by the plaintiff Powell. Upon hearing, on the 21st of April, 1846, a decree was made dissolving the attachment; and in the same month Powell obtained an order for a suspensive appeal. Pierce and the Messieurs Amonett signed the appeal bond as his sureties. The cause was determined in this court at the February term, 1849, by an affirmance of the judgment. The court then observed, what we may now reiterate, that, the evidence showed conclusively that the plaintiff Powell obtained fraudulent possession of the property attached, in the State of Mississippi, and clandestinely removed it to this State without the knowledge or consent of the owner and defendant, McKee ; and immediately levied an attachment upon it. We held, that the wrongful and fraudulent act of the plaintiff in bringing the defendant’s property into this State, gave no jurisdiction to our courts, and that the district court did not err in dissolving the attachment.

Being thus foiled for the time being in the attempt to deprive McKee of his property through the attachment, but, at the same time, holding on to the possession of the slaves, through the instrumentality of a suspensive appeal, another device was put in motion. William Amonett went to Tennessee, and, on the 14th of May, 1846, obtained from the clerk of the Circuit Court of Shelby County in that State, an authenticated transcript of the record of the suit of the Bank of Tennessee v. McKee, Folkes et als. Although the visit of MrAmonett to Tennessee is not expressly proved by the testimony of witnesses who saw him there, it results conclusively from the fact admitted at the trial of the present cause, that the body of the transcript is in his handwriting. On the 20th of May, 1846, a suit was brought upon this transcript in the name of the Bank of Tennessee, which is represented in the petition as “ suing for the use and benefit of Jepilia Folkes, of the State of Tennessee, and J. J. and William Amonett. And here, in passing, we may remark, that there is no evidence whatever offered by the defendants to show that the Bank made an assignment of its judgment, or authorized suit to be brought in its name for the use of Messrs. Amonett and Folkes, or that the Messrs. Amonett ever acquired an interest in the claim. The petition in that cause further stated, that McKee had been condemned in the Tennessee judgment, as principal debtor, and Folkes as endorser; and that, as endorser, he had paid the amount of the judgment and costs, and thereby became the subrogated creditor of McKee. Upon this petition and transcript an ex parte decree was forthwith obtained, rendering the judgment executory in this State, and ordering a writ of seizure and sale to issue. On the 9th of June, 1846, a writ was issued; the slaves, Sam and Asbury, were seized, and, in the ensuing August, were sold at sheriff’s sale to J. J. and William, Amonett, the present defendants, for the sum of $533 32; which was settled, by direction of Messrs. Amonett, by crediting that amoun-, upon the writ. An appointment of curator ad hoc to represent McKee was made by the judge; but it does not appear from the record that the person named accepted the appointment, or took any action to protect the absent defendant, by notifying him of the seizure or otherwise. In the ensuing fall or winter, W. Amonett sold the slave Sam to Pugh, for an amount not shown by the evidence ; and the slave Asbury was sold by one of the Messrs. Amonett, for $375 or $400.

It is proved by a witness, examined under commission taken out by the defendants, that the Tennessee judgment was paid and satisfied by Folkes, the endorser of the bill of exchange drawn by McKee, Young 8f Co., upon which that judgment was obtained against the several parties to the bill. A counsellor at law in Tennessee, who-was also examined under a commission taken out by the defendants, deposes that the common law prevails in Tennessee, and that a payment there by the endorser of a bill constitutes a cause of action against the drawer for the amount paid, and a legal right of set-off to any debt or money demand upon which the common law action of debt or indebitatus assumpsit would lie. He also gives as his opinion, that by the law of that State, as at common law, pnyment of a judgment by one party extinguishes that judgment as to all parties.

The opinion expressed by the witness, that a joint judgment against the 'drawer and endorser of a bill of exchange is extinguished by a payment of that judgment by the endorser, is sustained, we find, by learned commentators. The rule, says Mr. Pittman, in his treatise on Principal and Surety, which entitles the surety, upon paying off the debt of his principal, to call upon the creditor for a surrender of all the securities which he has belonging to the principal for the purpose of obtaining his reimbursement, must be qualified by considering it to apply to such securities as continue to exist, and do not get back upon payment to the person of the principal debtor. So, observes that author, where the principal and surety gave to the creditor a joint and several promissory note, and the creditor brought separate actions against the principal and surety, and upon execution issued upon the judgment obtained against the surety, the surety paid the debt and costs. Upon bill filed by the representatives of the surety for the purpose of obtaining an assignment of the judgment which had been recovered by the principal debtor, it was held that the creditor having been paid his debt the judgment was satisfied, and the creditor would not have been permitted to proceed upon it at law against the principal; and it not being available at law in his hands, neither was it available in equity in the hands of the surety, and consequently the surety could not compel an assignment of it. To the same effect is the language of Mr. Story, in his treatise on Equity Jurisprudence, § 499 et seq. See also the opinion of Lord Elden, in Copis v. Middleton. Ib., in note.

How then do the defendants stand before us 1 They are purchasers under executory process, issued upon an ex parte decree obtained by themselves, upon a judgment which was extinct in the State where it was rendered, and by whose laws ‘fs BffBcf' must be determined. This executory process was enforced by themselves, the defendant and owner being absent, against property fraudulently brought, as they well knew, into the jurisdiction of the court; and which they, colluding with the parties who had been guilty of so bringing it here, had managed to withhold from its owner, after the unlawfulness of the attachment had been adjudged, by means of a suspensive appeal. It is impossible for a court of justice to sanction a title so obtained, or view those purchasers in any other light, than as wrong-doers, who are bound to restore the property so obtained, or respond to the owner in its value at the time of the wrongful conversion.

The attitude in which the defendants present themselves is also a sufficient reason for disregarding the plea of compensation. As we observed in the case of Nolan v. Shaw, ante p. 40, compensation must rest on the basis of good faith. See also Civil Code, article ¿207.

It- is therefore de,creed, that the judgment of the district court be reversed; and it is further decreed, that the plaintiff recover of the defendants, J. J. Amonett and of the succession of William Amo nett, deceased, in solido, the sum of $1050, being the value of the slaves, Sam and Asbury, with interest thereon from the 3d day of August, 1846, until paid, and costs in both courts.


author: Slidelu, J.

text:
    George W. Grove v. J. L. Roberts, Assignee, &c.
    At common law, where a party has received paper as collateral security, he may excuse himself from liability for the failure to collect, upon showing the insolvency of the parties hound by the coliatoral paper or the inutility of suit; the rule being that the pledgee is liable only for the damages sustained by the pledgor.
    PPEAL from the District Court of Madisou, Richardson, J.

      J.B. Remiss, for plaintiff'.

      Stacey and Sparrow, for defendant.
   The judgment- of the court was pronounced by

Slidelu, J.

In March, 1840, J. B. Coleman brought suit against Grove upon a note of $7000, due in 1839, made by Grove to the order of and endorsed by Harris and Lape. In November, 1840, Grove filed an answer, accompanied by bis affidavit, in which he alleged that Coleman was not ihe owner of the note, but that it belonged to Harris and Lape, or William Lape, one of that firm, and that he hud au offset against them in the form of a judgment obtained against them in Mississippi and hold by him. Interrogatories for the purpose of establishing this defence were propounded to Coleman. The cause was continued until May, 1843, when, with the consent of Grove, a supplemental petition was filed by Coleman, in which he states that pending the suit the note had been transferred to the assignees of the Bank of the United States, and asked leave to prosecute the cause for their use. At the same term of the court the cause was brought to trial, the defendant dispensed the plaintiff from answering the interrogatories; no evidence whatever was offered in support of the defence, and judgment was entered in favor of Coleman for the use, of the bank’s assignees for the full amount of the note and interest, with mortgage upon certain slaves.

No action appears to have been taken by the assignees on Ihis judgment until the year 1848, when they seized the slaves under fieri facias ; and thereupon Grove brought the present action, and obtained an order of injunction upon the ground that he was entitled to have various sums credited upon the judgment. He was unsuccessful in the court below, and has appealed.

The first credit claimed is for an amount of $905 75. This sum was paid in New Orleans on the 28th of May, 1840, by Reynolds, Byrne Sf Co., the factors of Grove, to the Merchants’ Bank, as agent of the Bank of the United States, and a receipt was given in the following words: “Received, New Orleans, 28th of May, 1840, from Messrs. Reynolds, Byrne Co., the sum of nine hundred and five dollars and seventy-five cents, on account, of G. W. Grove. (Signed,) R. Copland, Assistant Cashier of the Merchants’ Bunk.”

The receipts contains no imputation of payment, and no parol evidence has been adduced to show what was said or agreed upon at the time of payment. We must look, therefore, to the contemporaneous circumstances and subsequent facts for a solution of the contest between the parties. Grove insists that the payment should be imputed to the note and judgment for $7000. The assignees contended, successfully, in the court below, that the imputation should be made to a judgment obtained in Mississippi by Briggs, Lacosle Sp Co. against Grove, for $3892 56 ; upon which judgment Briggs, Lacosle Co. obtained a decree in this State, rendering it executory in 1839. They issued an execution upon it in February, 1840, which was returned nulla bona on the 24th of April, 1840. On the 29th April, 1840, if not earlier, this judgment was transferred by Briggs, Lacosle Co. to the Bank of the United States.

It does not appear from the evidence whether the Bank of the United States held the note of $7000 on the 28th of May, 1840, when the payment for account of Grove was made; and the uncertainty in which this matter is left, would be a sufficient reason for not. disturbing the imputalion made by the district judge to the Lacosle judgment, which was unquestionably held by the bank at that time. Besides, the conduct of Grove in the defence of the suit brought by Coleman upon the note of $7000, is inconsistent with his present pretensions. He asserted, ns we have seen, in his answer and affidavit in 1842, that the note belonged to Harris and Lape. The only offset he then urged was a judgment held against them. When, in 1843, the transfer of the note to the assignees of the bank was disclosed, be was still silent as to the credit now claimed; abandoned any further resistance to the demand, and permitted judgment to go for the eut.ire amouut of the note and interest.

Another credit claimed in the petition lor injunction was the amount of a judgment held by Grove against Harris and _Lape, for $2394 37. This credit, was also refused by the district judge, who held'that it should be imputed to ihe Lacoste judgment. lu this opinion we concur. A witness produced by Grove proves that there probably had once been an understanding between Grove and the bank, or its assignees, to allow the credit in question upon the Coleman claim. But this witness deposes, that at or about the time the judgment'in the suit of Coleman v. Grove was obtained, Grove consented that the credit to which he might be entitled on account of the Lape and Harris debt, should be imputed upon the judgment of B ■igss, Lacoste Co. against him, which had been transferred to the bank. The trustees, whose counsel the witness was, had agreed to extend the time of payment of both claims in case lie. Grove, would secure the payment of the Briggs, Lacosle Co. judgment, which was not then secured. It was to avoid the trouble of giving that security that the above agreement was made. The testimony of this witness is not contradicted, and, on the contrary, is sustained by the other evidence in the cause. It harmonizes with the acts of Grove, as shown by the record of the Coleman case. After that suit had been in prosecution nearly three years, Grove is found assenting to the amendment of the pleadings, and the appearance of the assignees as plaintiff in the cause, abandoning the defence previously pleaded, and suffering judgment to go in favor of the assignees for the entire claim. On their part, the assignees do not issue execution until a long interval has elapsed.

The next question for our consideration is, whether the district judge properly refused to charge the assignees with the balance, or any part of the balance, due upon a note of Walker endorsed by Payne and Pinkard, which appears to have come into the hands of the bank as a collateral security for the judgment in the case of Briggs, Lacoste & Co. v. Grove. At the trial, it appeared that the assignees had endeavored to collect it amicably, but without success. They did not bring suit upon it, and were unable to produce it at the trial, it having been lost or mislaid after being placed in the hands of their attorney. The evidence satisfied the mind of the district judge, that in consequence of the insolvency of the parties, (two of them were discharged in bankruptcy in 1841 and 1842, and the other name was unavailable down to the time of the trial,) suits against any of them would have been a fruitless expense, and that the claim was worthless.

The contract of pledge was made in Mississippi. We understand the rule of the common law in such a case to be, that the measure of damages for not putting the note in suit, supposing that the bank was under an express or implied agreement to do so, would be the injury sustained by the pledgor, and that the pledgee may excuse himself by showing the insolvency of the parties to the instrument. Upon payment of his debt, the pledgor would have a right to receive the note pledged, and upon refusal would have his action of trover. In that action, a bailee, not in bad faith, may show, in reduction of damages, the insolvency of the maker.

If the district judge had thought that it was still of some importance to Grove to get back the note, and had assessed some portion of its amount as damages for the failure to bring it into court to be delivered to him on his paying the creditor, we would not have been disposed to reverse such a decree. But as he virtually declared by his judgment that it was utterly worthless, and as Grove, by his long silence, may be supposed to have regarded the matter in the same light, we do not feel authorized to disturb the judgment.

There was an application for a new trial, which we think was properly refused by the district judge. The plaintiff was notified by the special plea of the defendants that they relied upon an agreement respecting the imputation of the judgment against Lape and Harris ; he did not show in his affidavit for a new trial, unsuccessful diligence to obtain the testimony of the witnesses named in the affidavit, nor had he made an application for continuance.

Judgment affirmed, with costs.


author: Sliueli., J.

text:
    James C. Dawson v. His Creditors.
    Where a party opposes a tableau for the distribution of an insolvent’s estate, upon the ground that a sum has been allowed to the wife of the insolvent upon a judgment in her favor recognizing a tacit mortgage, he must allege the judgment to be fraudulent in order to set it aside.

      Where the wife has obtained a judgment against her husband, which became null under C. C., 2402, she may institute a second suit and obtain another judgment, the effect of ... , . , , , „ , . which will not be unpaired by the first judgment.
    APPEAL from the District Court of East Baton Rouge, Burle, J.

      J. M. Brunot, for appellant.

      A. M. Dunn, for appellee.
   The judgment of the court was pronounced by

Sliueli., J.

The syndic of Dawson filed a tableau of distribution, in which, after proposing to apply the proceeds of certain lands and slaves to the payment of certain privileged creditors, .he awarded the balance of the fund to Mrs. Dawson, as the holder of a tacit mortgage recognized by a judgment against her husband. Menard filed an opposition, in which he claims to have held a mortgage upon two slaves, and demands the application of the proceeds of their sale to his debt in virtue of his mortgage. He did not allege that the wife’s judgment was fraudulently obtained, nor tender an issue as to the existence of her tacit mortgage.

We think the district judge did not err in refusing to recognize the alleged mortgage right of Menard In 1839, W. C. Gayle endorsed several notes for Dawson's accommodation, and Dawson executed a mortgage in his favor in the following terms: “Which three notes were drawn by him, the said James C. Dawson: now he, the said appearer in consequence of said endorsement given to him through friendship, and in order to secure the said William C. Gayle against any trouble, losses or disbursements of- money that could arise, should the appearer fail to meet the payment of the said notes, or either of them, at the several times as they will respectively become due, or at any other, should either of the notes be renewed by him, the said James C. Dawson, does hereby mortgage and hypothecate to the said William C. Gayle, his heirs and assigns, the following property, to wit, two slaves,” &c..

The note offered in evidence by Menard, is not one of the notes described in the mortgage, nor is it proved to have been given in renewal of one of those notes.

It is said that the judgment obtained by Mrs. Dawson is null on its face, because it appears from its recital that there had been a previous judgment of separation obtained by her against her husband. It does so recite ; but it also recites that the previous judgment had become null under the article 2402 of the code, for want of execution. So that the wife had a right to institute a second suit. See Muse v. Yarborough, 13 L. R. 532.

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


author: Eustis, C. J.

text:
    Charles McMicken v. J. B. Maxent, Executor.
    An appeal does not lie from an interlocutory order refusing to make the widow and heirs parties to a suit against tlie executor.
    APPEAL from the District Court of East Baton Rouge, Burle, J.

      J. M. Brunot, for the appellant, contended :
    This is an appeal from the ruling or judgment of the court below, refusiug the plaintiff the right to cite in, and make the widow and heirs of J.- B._ F. Maxent, one of the defendants deceased, before issue joined, parties to the suit. The court, will find a suggestion of the death of Maxent, simply, by his counsel, without any “leave” asked for or granted by the court, “ to make proper parties,” as averred in his petition afterwards filed on the 21st September, 1850. We have yet to learn, that the death of a defendant regularly in court, by service upon him of plaintiff’s petition, enables one, claiming to be the representative of the last will of another person, to assume and take, in the manner here attempted, the attitude of the original defendant. In the present instance, if the person praying “he may be received as a party to said proceedings in lieu and stead of said Maxent,” is viewed in the light of a plaintiff, then, in that event, as no replication is known to our system of practice, his averments must be considered as denied, and require proof. When Maxent died, if his counsel had suggested not only his death but. as is the custom, the name of his heirs or representatives with leave to make them parties, there could have been no objection ; provided always the righl of these persons to represent the deceased in the suit, was not controverted. Vide C. P., art. 120, et-passim.

    Our bill of exceptions explains the sole question presented for the solution of this honorable court, whether in an action personal to the defendant, the latter is released by death, and his heirs and widow cannot be made parties, but, on the contrary, the court has the right to pre-judge the question before the plaintiff has had an opportunity of citing said widow and heirs. It will be seen from the averments and the prayer of our petition, we no where ask a judgment against the estate of A. Couvillier, Senior; but sue the executor, or he who claims to act as such, as a trespasser and responsible to us in damages, as any other individual for injury.
    The judgment of the court below refusing us the right to make the widow and heirs of Maxent parties in lieu of the deceased, and decreeing Thomas G. Morgan, Esq., executor of A. Couvillier, Senior, to be the proper defendant, we viewed, at the time, to be in effect a non-suit. It is not pretended the persons we propose to make parties, are not the widow and heirs of Maxent, and we know of no law, in such a case, which deprives us of the right to cite them in and thus make them defendants. It seems to us the heirs ought to become their own defensors, in a suit where their ancestor has been regularly made a party, since his estate is liable in their hands for his quasi-contracts or offences.
    For the sake of argument, admit the suit was one seeking a judgment against A. Couvillier, Senior’s succession, represented by an executor of his last will, what right would a subsequent executor, upon the decease of the first, have to assume, in the mode here proposed, responsibility for the tortious acts of the latter, and thrust himself forward as a defendant in his stead. The deceased, against whom the action was brought, might, with his surety, be well able to satisfy any judgment we expect to recover; but it. by no means follows this would be the case with the substitute. Besides all this, the evidence of the illegal acts of the first executor, might very well apply to him, and perhaps his surety, to establish our right to recover ; but we cannot conceive how the subsequent executor could be bound by the acts of the predecessor, and the estate he represents amerced in damages, where the acts of the executor are acts of trespass. The trespasser is liable for his own acts in damages, and cannot discharge himself on the plea that he is only an agent or representative. Vide Tourne et al. v. Lee et al. 8 N. S- 549. Kernion v. Guenor, 7 N. S. 171.
    If at. the decease of Maxent, the names of his heirs had been given, and we had neglected to cite and make them regularly defendants, our action could very readily have been hastened by the appearance of the heirs.
    We trust your honors will reverse the judgment of the lower tribunal, by ordering our motion for leave to cite and make the widow and heirs of Maxent parties, be allowed; and the decree declaring Thomas G. Morgan, executor, the proper party defendant, be avoided and reversed, as neither supported by law or the evidence.

      T. G. and P. H. Morgan, contended:
    In order to place this case properly
    before the court, it will be necessary to state, with some minuteness, the facts so far as will now be considered by the court, and the averments in the petition for injunction. In the suit of Fletcher’s Heirs v. The Executors of A. Couvillier, Sen. deceased, and others, judgment was rendered in favor of the defendants, and against the plaintiff, for the sura of eighteen thousand nine hundred dollars. This judgment the defendant in injunction avers has never been satisfied ; and he having been 'appointed dative testamentary executor of the last will and testament of A. Couvillier, ordered out an execution to enforce the payment of so much thereof as was due the estate he represents, to wit. nine thousand four hundred and fifty dollars — CouviLlier having been the owner or, at least, the possessor of one half of the whole tract sued for. This execution was levied upon the - tract of land recovered by the heirs of Fletcher from the defendant’s testator; and A. CouviLlier, Jun., and John Davenport (McMicken pretending to have acquired a title to this land from the heirs of Fletcher,) obtained an injunction.

      J. B. F. Ma rent, dative testamentary executor, died on the-day of — , in file year 1850; and at July term, 1850, of the Sixth District Court, his counsel. who had caused the writ enjoined to issue, suggested his (Maxent’s) death. Toe statement in the motion made by McMicken to set aside the order of assignment., that the counsel of Maxent's executor, who suggested his death, “ moved for leave to make his heirs and representatives parties,” is not correct. No such leave was asked for, and no such order made.
    On the-day of ——■, 1850, T. G. Morgan was appointed dative testamentary executor of the will of A. CouviLlier. On the-day of--, 1850, T. G. Morgan gave notice to the plaintiff in injunction, and also to the iutervenors of his said appointment. Answer of Morgan, dative testamentary executor, to the petition for injunction, filed October, 1850.
    On the - day of-, 1850, the heirs of Fletcher, (McMicken’s pretended vendors,) filed a petition of intervention in the case; and on the 30th of August, 1850, Ibey filed a supplemental petition of intervention. On the 23d of October, 1850, the counsel for McMicken filed a motion suggesting the death of Maxent, the executor, and moved the court “for leave to cite, in and make the he.rs of the deceased parties defendant in this suit.” He prays that the widow of Maxent be cited, and served with a copy of his petition, “ and that lie have judgment against her, as representing the deceased.” The case was. on the -day of October, 1850, assigned for trial on the-. The motion file.d on behalf of McMicken, on the 23d October, 1850, for leave to make the widow of the executor party defendant was overruled, and- leave refused. From this interlocutory order, or ruling of the court, the present appeal has been taken.
    On behalf of the appellee, the following points are made : 1. An appeal will not lie in such case: the present appeal should, therefore, be dismissed. One may appeal from all final judgments rendered in causes in which an appeal is given by Saw. C. P. 565. One may likewise appeal from all interlocutory judgments, when such judgment may cause him an irreparable injury. C. P. 566.
    In the case of Fortin v. Randolph, the late Supreme Court held this language : “ The defendant and appellee meets the plaintiff, by averring that the decision is not such a one as can be appealed from. To ascertain whether this objection is well taken, we must examiue if it is a final judgment, or a decree of such a nature as will occasion a grievance irreparable to the party against whom it is given. If. is not a final judgment; for the cause is yet pending and stands continued. It does not work a grievance irreparable. It is quite different from the case of Pranchin v. Andry, 4 M. R. 314, to which we have before referred, and from ail other cases decided in this court upon that principle. Without referring to each particular decision, it will be found that those were cases where the judge a quo refused the parties a new trial or continuance; deprived them of the benefit of a judgment obtained; set aside some process or writ given in the preliminary stages of a suit to secure the plaintiff’s rights, or discharged the defendant out. of custody when arrested. If the judge erred in tlie cases just put, the party was without remedy and the injury irreparable. Supposing a mistake in this case, no such consequence is perceived ; the cause stands continued; the parties will have it tried, it is presumed. Mere delay cannot be regarded as an irreparable injury.” 3 M. R. 171. 9 M. R. 494. 10 M. R. 444- Fortin v. Randolph, 11 M. R. 275.
    Again, in the case of Penrice v. Crolhwaite, et al., 11 M. R. 546, the same court held the following language: “ We cannot go into the opinion of the court on the refusal to receive a supplemental petition. It does not produce a grievance irreparable in this case, and, therefore, is not a decision from which an appeal lies."
    These cases cover the whole ground for which we contend. A supplemental petition, in the form of a motion, was filed by plaintiff in injunction, suggesting the death of the executor Maxent. This was supererogatory; the death had been suggested by his counsel at the previous term of the court; but the motion, or supplemental petition — let. it be called which it will — then goes on to state the deceased left a widow and children, and “prays the said widow be served with the original petition herein filed against her late husband, and be cited to answer thereto in the legal delays, and that he have judgment against her, as representing the deceased, and he will pray,” &c. This, as we have before stated, was refused.
    But there are other authorities on this point to which the attention of this court is requested. 6 L. R. 435. In the case of Geordano v. Thomas et al., 13 L. R. 315, the opinion of the court was delivered by his honor the present chief justice. It is brief: “This is an appeal from an order of the court below dismissing a supplemental petition filed by the. plaintiff. We are of opinion that no appeal lies from a decree of this description.” And the appeal was dismissed. See also on same subject, Parvageavd v. His Creditors, 13 L. R, 354; Richardson v. Ledbetter, 14 L. R. 156; Hart v. Phillips, 1 R. R. 223; The Slate v. The Judge of the First Judicial District, 2 R. R. 395 ; Osborne v. Clayton, 3 R. R. 437; Bailey v. Sims, 3d Ann. 217; Walker v. Caldwell, 4th Ann. 12.
    The cases (6 L. R. 435) above cited, (9 M. R. 519, and Park et al. v. Porter, 2 R. R. 343,) do not, in the least, militate against the doctrine we have seen supported in the cases above cited. The latter case is a fair illustration of an exception to the general rule. A large quantity of molasses on board a ship bound for New Yorkbad been attached. The intervenor took a rule to show cause why the cargo of molasses should not be delivered to him on his giving bond, &c. The rule was made absolute on the intervenor giving bond in the sutn of $600, and plaintiff appealed. On motion to dismiss the appeal, on the ground that, the judgment, on the rule was not final, and did not work an irreparable injury to the plaintiff, the motion was overruled; because, if the property had been supposed to betaken to New York, the plaintiff would have nothing out of which the judgment which might have been rendered in his favor could be satisfied.
    The legal rights of the appellant are perfectly clear. They could have taken a bill of exceptions to the ruling of the court in refusing to grant the prayer of the supplemental petition. And if, on appeal taken from the final judgment, this court should consider that there was error in the decision of the court in respect to the interlocutory matter, the case would be sent back, to be proceeded in according to law. It must not be overlooked, that there are now parties before the court competent to stand in judgment, to wit, the present dative testamentary executor and the sheriff. We consider that we are warranted in saying, under the circumstances of the case, and the authority of the cases cited, that this appeal is taken solely for the purpose of delay; and, therefore, should be not only dismissed, but that damages should be allowed as for a frivolous appeal. We consider we hazard nothing in saying, that after a careful examination of the record — looking at the interest the party enjoining has to procrastinate; the refusal of his agent and attorney to exhibit the power of attorney under which he signed the petition, took the oath required to obtain the injunction and the bond he executed ; the allegations of the petition and supplemental petition of intervenor, and his whole course heretofore — this court will see that the object of this appeal is delay, and nothing else. If, however, the court shall determine that the interlocut.ary decree rendered by the district court cun be appealed from, then we submit.
    2. That there is no error in the interlocutory decree, or ruling of the court, refusing permission to the plaintiff in injunction to make the widow of Maxent, late dative testamentary executor, a party to the suit, and that said judgment, or ruling of the court, should be affirmed at the costs of the appellant,
    A proper elucidation of this point can be more readily obtained by a close examination of the petition for injunction, which will clearly show, notwithstanding the evident attempt at obscurity, and the total want of legal precision in the language used, that the plaintiff in injunction, at the time the petition was framed, never thought of making the dative testamentary executor personally responsible. A celebrated diplomatist is reported to have remarked, that language was given to man to enable him to conceal Jiis meaning! It would really appear as if the learned counsel for appellant had acted upon this saying when he concocted the petition under consideration. But there is enough in the midst of all the obscurity to satisfy the mind, that his idea of any personal pecuniary responsibility on t.he part of the dative testamentary executor, cannot, now avail the party; and is only now lugged in as a part and portion of the studied attempt at obtaining delay.

      To show this more satisfactorily, we will quote all such parts of the petition for injunction as have any bearing on the matter: “The petition of Charles McMicken, resident of the city of Cincinnati and State of Ohio, most respectfully represents to your honorable court: A certain individual, calling himself J. B. F. Maxent, dative testamentary executor of the will of A. Couvillier, Sen., deceased, by appointment derived from your honorable court, and a resident of the parish of Orleans, State of Louisiana, and Leroy C. Morris, sheriff of the parish of East Baton Rouge aforesaid, have, in violation of your petitioner’s rights of property under an execution or writ of fieri facias, issuing in a suit known on the docket of your honorable court by No. 1446, entitled ‘ A. Fletcher et al. v. Executors of A. Couvillier et al.,’ seized and advertised to be sold for cash,” áse. “ Your petitioner charges the whole proceeding, on the part of the said Maxent, as illegal, tortious and void in law, and entitle your petitioner to claim damages in the sum of two thousand dollars on the foregoing and following grounds,” áse. “Ground 3d. The evident attempt to collect monies, which by the records of the suit itself have been already paid, upon the judgment or execution thereon, and in support of this he annexes hereto a copy of the execution now issued,” áse.
    The prayer of the petition is as follows: “The premises considered, for the protection of your petitioner’s rights, he prays your honorable court to grant an injunction restraining the said J. B. F. Maxent, styling himself executor aforesaid, and Leroy C. Morris, sheriff, from proceeding any further under the said execution, or said pretended judgment, until the further order of your honorable court; and that on hearing, said injunction be rendered perpetual. Petitioner further prays, that said ■/. B. F. Maxent and L. C. Morris, sheriff, be each duly cited to answer the petition, and be, in solido, sentenced, as co-trespassers on,.your petitioner’s rights and property, to pay him damages, two thousand dollars; and that your petitioner have all such other and further relief as may-be just and equitable, and trial by jury. ' (Signed,) J. M. Brunot, Agent for Petitioner.”
    In considering the question now before the court, the first fact that attracts attention is, that the fieri facias was issued at the order of Maxent, as dative testamentary executor. 2. That his (Maxent’s) capacity as executor, is not denied, or in any manner put at issue. It is therefore admitted. 5 L. R. 403.
    Looking at McMicken in the light of a defendant; considering that his petition is an answer to the demand of the plaintiff, and that by not putting directly at issue the representative capacity of the plaintiff, that capacity is admitted,' we will proceed to examine the words of the petition for injunction. It sets forth that “ a certain individual, calling himself J. B. F. Maxent, dative testamentary-executor of the will of A. Couvillier, Sen.” áte. Again: “Your petitioner charges, the whole proceeding on the part of said Maxent is illegal, tortious, and void in Jaw, and entitle your petitioner to claim damages in the 'the sum of,” áte.
    “Said Maxent!” What said Maxent? To whom does the petition refer? Evidently to the dative testamentary executor first spoken of. From whom is the plaintiff entitled to “ claim damages ?” Manifestly from the same person, and in his representative capacity. If we look to the prayer of the petition, we still find the same phraseology. Petitioner “ prays your honorable court to grant an injunction restraining the said J. B. F. Maxent, styling himself executor as aforesaid,” áte.; and that said J. B. F. Maxent,” áte. “ be duly cited,” átc.,i “and be, in soliólo, sentenced, as co-trespassers on petitioner’srightJkind property, to pay him damages,” áte. Thus we perceive that, throughout the whole petition, in the narrative and charging clauses, as well as in the prayer, Maxent is referred to, either directly or by direct implication, in his representative capacity.
    We submit that a party who has acted in a representative capacity, when that capacity is admitted, or at least not denied, cannot be rendered personally responsible by any implication. The textural provisions,of our code, as well as common justice, require that a party should be distinctly advised of the nature of the demand made against him, and the capacity in which he is sought to be rendered responsible, as well as of the nature of the title, or the cause of action on which it is founded. C. P. art. 172, sec. 3. In the case before the court, the writ enjoined was ordered to be issued by Maxent in his representative' capacity. In that capacity he was enjoined from further proceedings under the writ. His (Maxent’s) death was suggested of record in July, 1850 Prior to October term, 1850, another person had been appointed, by competent authority, dative testamentary executor, and notice thereof had been given to the plaintiff in injunction; and it was not until after proper parties had thus been made, that an attempt was made to render his (Maxent’s) heirs personally responsible. We have said that the injunction was asked for and granted against Maxent in his representative capacity, and such is the fact; if not, he or his successor had a legal right to proceed and sell under the Ji. fa. and levy enjoined, and this without rendering the preseut executor responsible personally, or the estate he represents — a dilemma in which we apprehend the party enjoining would not be willing to be placed.
    If it be urged, as it has been elsewhere, that, there is no merit in the position we take — that it is purely technical; then we join issue and say there is merit always in endeavoring to compel parries who seek redress for real or pretended injuries, to be plain, frank and explicit in their pleadings, and that courts of justice will not, or should not countenance occult meanings and obscurities, and permit parties to “falter with them in a double sense.” Wilcox v. Henderson, 2d Ann. 152.
   The judgment of the court was pronounced by

Eustis, C. J.

This appeal is taken by the plaintiff from an interlocutory order of the District Court of East Baton Rouge, refusing to make the widow and heirs of the deceased J. B. F. Maxent, parties to this suit.

The authorities cited in the written argument, show conclusively that no appeal lies from an order of this kind. The motion to dismiss the appeal must therefore prevail.

This appeal is dismissed, with costs.


author: Eostis, C. J.

text:
    William F. Ferguson v. Heirs of Philemon Thomas.
    In a suit for the annulment of a judgment decreeing the ownership of land, it is essential that the party seeking the annulment should allege, in his petition, the ownership of the land of which he has been evicted by the judgment he seeks to annul.
    In a suit for land which is alleged to be in the possession of A., as agent for B., an absentee, where the agent disclaims any title or possession either in himself or principal, and the residence of the principal is unknown, the appointment of a curator ad hoc to represent the absentee is proper; and the judgment thus obtained will be sustained, if legal in other respects.
    APPEAL from the District Court of East Baton Rouge, Burk, J".

      J. M. Brunot, for plaintiff, contended:
    This is an action instituted by Ferguson against Thomas, to annul a judgment which the l itter obtained in his favor in a suit heretofore brought, in the late Third District Court, entitled Thomas v. Griffith et al.. No. 3544. In the suit No. 3544, Thomas sought; to make Ferguson a defendant, by citing Griffith for himself nnd as agent fov Ferguson. Griffith, in his answer, denies he is agent, and thereupon Thomas has a curator ad hoc appointed to represent Ferguson. Has this curator cited, and thereon discharged his suit entirely, ns to Griffith. At p. 11 of the Record, this honorable court will find the judgment we nowseek to aunul, in which the judge of the lower court says: “ the defendant, Griffith, sued as agent for William Ferguson, denied his agency ; whereupon, a curator ad hoc was appointed to represent Ferguson as an absentee, Griffith being discharged by the plaintiff from his action.”
    There was, then, properly speaking, no party before the court, by the original petition and citation. There was no amended petition setting forth the fact,— Ferguson was an absentee, and praying leave to cite him in, by the appointment of a curator ad hoc, — but simply the answer of Griffith, denying he was agent j whereupon, the court proceeds, with Thomas' assent, to take it for granted, and makes an appointment of J. C. Patterson as curator ad hoc. Let us now enquire, where do we find any petition directed against Ferguson, an absentee? The suit directed to Ferguson through the person charged to'be his agent, it appears, was dismissed by the plaintiff, Thomas. How has this suit been revived against Ferguson, an absentee? The answer is. not by a petition, praying he be cited through a curator ad hoc, but upon the answer of Griffith, a co-defendant. A. sues B. for himself, and as agent for C. — and after-wards dismisses his suit as to B. for himself, and as agent for C. Can this suit be regularly revived, save with all the forms observed in the first instance ? We think not.
    In the case now brought up for the consideration of this honorable court, they will discover one of the greatest legal absurdities, perhaps, ever perpetrated in the course of judicial proceedings.
    In the petition filed in suit No. 3544, above alluded to, the plaintiff charges as follows : “ One George Griffith, residing in the parish of East Baton Rouge, who assumes to act as agent of William Ferguson, whose residence is unknown to your petitioner, has taken forcible and illegal .possession, &c.,” — “ prays Griffith be cited for himself, and as agent for Ferguson — that he be adjudged the legal owner, &c.” In answer to our suit to annul the judgment, or the foregoing averments, the representatives of Philemon Thomas, (defendant having died) plead that “ by the plaintiff’s own showing, if he ever was in possession of the laud, &c., he was a trespasser without title, and he has no right to question the judgment which he seeks to annul, unless he alleges and exhibits a title in himself.” This thing, called an exception; is sustained by the judge below, and our action of nullity dismissed at our costs. Here we have the doctrine gravely asserted, that although a party may have never been legally brought into court, yet he shall not be permitted to avoid the judgment on this ground, unless he re-opens the controversy on the merits in the original suit.
    In conclusion, and in support of the ground we assume in our petition, why the judgment we complain of should be annulled, the following citations are made, viz: Thayer v. Tudor, 2d Ann. 1010 ; Dupuy v. Hunt et al. Ib. 562.
    The idea, that a stranger owning property in Louisiana, having no agent here, should be divested of his title through a curator ad hoc, in a case where the plaintiff dismisses his action as to the real defendant, seems to us altogether inadmissible. If a stranger had asserted rights over lands within the State, and this was alleged and proved, perhaps, for the protection of our own citizens, we might subject him, and the property he claimed to the jurisdiction of the courts. But, in the present instance, the device resorted to, in order to affect Ferguson, has neither law or reason on its side. The answer of Griffith, and his admission, may bind him, but it certainly cannot be contended they extend to us, and authorise the court to proceed to render a judgment.

      J. M. Elam, for defendant, contended :
    To annul the judgment rendered in the suit of Philemon Thomas v. Griffith et al., two grounds of nullity are alleged : 1. The judgment was obtained in an ex parte manner, and without any legal serviré of petition and citation. 2. The court having, in this case, no right to appoint a curator ad hoc, and by this mode proceed to judgment.
    The only question involved is, the power of the court to appoint a curator ad hoc to Ferguson, an absentee, and the right of Thomas to establish contradictorily with the curator ad hoc his title to the land in controversy in that suit, No- 3544. If Ferguson had any interest in the land, and being an absentee, without an agent in the State, it was competent for the court to appoint a curator ad hoc to defend the same. C. C. art. 57. C. P. art. 196. If he was without, any interest in the land the judgment was not prejudicial to him, and he has no right, to annul the judgment, or complain as to the mode it was obtained.
    In this action, Ferguson does not pretend that he has, or that he ever had any title to the land in controversy; therefore, his right to seek the nullity of the judgment was opposed by the following exception : “ That, by the plaintiff’s own showing, if he ever was in possession of the land described and adjudged to be the property of Philemon Thomas, in suit No. 3544, he was a trespasser without, title, and has no right to question the judgment he seeks to annul, unless he alleges and exhibits a title in himself.” The district judge sustained the exception, and dismissed the action. ■ Was he right in doing so?

      The appellant’s counsel, in his printed brief, rests the reversal of the judgment on another distinct ground than those alleged in the petition, or which the exception put at issue, namely, that the judgment which decreed Thomas to be the owner of the land against Ferguson discharged Griffith from the action. Griffith was cited for himself, and as the agent of Ferguson; appears by answer, and denies that he was agent for Ferguson, or that he was in possession of the land. Griffith was not thereupon discharged by the plaintiff from his action, ns Ferguson’s counsel supposes, but was continued as a party to the suit until the final judgment, which closes with a decree “that there be judgment in favor of G. Griffith, discharging him from this action, with costs.” Griffith filed his answer 6th June, 1843; on the same day it was “ ordered that,/. C. Patterson, Esq. be appointed curator ad hoc to represent William Ferguson, the absentee ; and be was served with a copy of the' proceeding.” John C. Patterson, as curator ad hoc, was, by the order of court, regularly a party to the suit, and filed an answer.
    The appellant’s counsel cites Thayer v. Tudor, 2d Ann. 1010, Dupuy v. Hunt et al., lb. 562; and then adds, “The idea that a stranger, owning property in Louisiana, having no agent here, should be divested of his title through a curator ad hoc, in a case where the plaintiff dismisses his action as to the real defendant, seems to us altogether inadmissible.” "We should be under an obligation to the learned counsel to be informed what disposition ought to have been made of Griffith in the final judgment but to dismiss him from the action.
    Again; appellant’s counsel says, “If a stranger had asserted rights over lands within the State, and this was alleged and proved, perhaps, for the protection of our own citizens, we might subject him and his property he claimed to the jurisdiction of the courts.” By this we can understand nothing else than Ferguson never “ had asserted rights over lands within this State; ” therefore, he was not subject to the jurisdiction of the courts. And from what follows, it would seem that Ferguson’s real object, in trying to annul the judgment, is a fear that it will effect his property in another State.
    A second and more attentive reading of the case cited, of Dupuy v. Hunt et al., will quiet the fears and apprehensions of both Ferguson and his counsel. There is no error in the judgment of the district court, and it should be affirmed with costs. If there was error in the judgment in suit No. 3544, the remedy was an appeal, and not by an action of nullity — both were barred by the prescription of two years. C P. arts. 593, 614.
   . The judgment of the court was pronounced by

Eostis, C. J.

This action was instituted against Philemon Thomas, in his lifetime, for the purpose of having decreed null and void a certain final judgment rendered against the plaintiff, in favor of said Philemon Thomas, in the late court of the Third Judicial District. By this judgment, Thomas recovered from the plaintiff the possession of a tract of land, with costs, and was quieted in his title to the same.

The grounds of nullity alleged by the plaintiff were, that the judgment was obtained without any legal service of the petition or citation, and that the court which rendered the judgment had no right to appoint a curator to represent the party defendant in the suit. The district judge dismissed the plaintiff’s suit, on an exception to the plaintiff’s action, taken by the defendants’ counsel, that the plaintiff had neither alleged having had possession nor title to the land which was the subject of the judgment. The plaintiff has taken this appeal.

In the suit in which the judgment was rendered, one Griffith was charged as being in possession of the land for Ferguson, and judgment was prayed for against both Griffith and Ferguson, as to the possession and ownership of the land. Griffith disclaimed any possession or title either for himself or Ferguson. Griffith was discharged from the suit, and a curator ad hoc was appointed to represent Ferguson, who was an absentee, residing in Arkansas. The curator appointed filed an answer for Ferguson, and the case was regularly tried and judgment rendered on the evidence. The curator had previously accepted service of the petition and pleadings in the case, and the residence of Ferguson was alleged in the petition to be unknown.

The proceedings referred to are annexed, to the plaintiff’s petition, and are referred to in support of its allegations. The case appears to have been one in which there was a necessity for appointing a representative to an absentee. The suit was instituted in May, 1843, and judgment was not rendered until June, 1845, after a contested trial: and there is no allegation in the plaintiff’s petition, that he was not notified, of the proceedings. The plaintiff’s case is without any equity and the objections taken to the form of the proceedings are quite untenable. There is nothing decided in the cases of Dupuy v. Hunt, 2d Ann. 1010, and of Thayer v. Tudor, Ib. 562, which does not support the validity of this judgment.

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


text:
    Elizabeth Calmes et al. v. Josephine Duplantier.
    Testimony'taken by plaintiff under a commission should not be rejected because the same party had obtained a second commission to take the testimony of the witness, which had never been returned.
    APPEAL from the District Court of East Baton Rouge, Burke, J.

      'T. O. Morgan, for plaintiff.

      J. M. Elam, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

This appeal is taken by the plaintiff from a judgment as in case of non-suit. The question argued before us is presented by a bill of exceptions taken by the counsel for the plaintiff to the admission of a certain deposition of Williams Sims, taken under a commission. This suit was instituted in December, 1845. A commission to tafee testimony was issued, at the instance of the plaintiff, on the 30th of January, 1846, and the testimony was taken in April following. In October of that year, a rule was taken on the defendant to show cause why the testimony thus taken should.not be read in evidence on the trial of the cause. In answer to this rule the defendant objected to its being read on the trial, on the ground that there was no legal evidence of the official capacity of the person who had executed the commission. It does not appear, that there was any decision rendered on this rule. The commission, interrogatories and return were, with the authorization of the judge, given at chambers, withdrawn from the files, on the 12th of February, 1847, by the plaintiff’s attorney, a copy of the whole being filed in their stead. Previous to this, to wit, in December, 1846, a new commission had been taken out by the plaintiff’s attorney, to take the testimony of the same witness whose deposition had been taken under the first .commission. Interrogatories were filed, and cross-interrogatories were put by the counsel for the defendant, under notice, differing materially from those originally propounded. The plaintiff’s attorney forwarded the first commission, &c., to Mississippi, where it had been executed, and had a certificate of the Governor verifying the official capacity of the person who executed it. The second.commission was never executed. On the trial of the cause, the plaintiff offered in evidence the testimony taken under the first commission, with the certificate of the Governor of Mississippi annexed. On an objection being made by the counsel for the defendant, the district judge refused to receive in evidence the testimony offered, and the counsel for the plaintiff excepted to this decision. The bill of exceptions states the objection to have been, “that under such circumstances the party was bound to take the answers of the witness to the second interrogatories and cross-interrogatories.”

We do not concur with the district judge in his opinion on this point. The case was not tried until the 23d of October, 1850. The second commission had been out nearly four years, and there was every reason, from its non-return, to suppose that it had been abandoned. If the defendant had an object in examining the witness as to any matters testified to in his first examination, he certainly has had ample time for that purpose. Copies of the original commission, with the intetrogatories and deposition, having remained on file, we do not think the party defendant could have labored under any surprise at the original deposition being offered in evidence. If he did, it did not have its origin in any act of the plaintiff. Piad the defendant applied for a continuance on this ground, it would have presented a question resting in the legal discretion of the court; but we do not find any sufficient cause for the refusal to receive the testimony in evidence.

The judgment of the district court is'therefore reversed, and the case remanded, with directions to the judge to receive in evidence the testimony mentioned in the bill of exceptions ; the appellee paying the costs of this appeal.


text:
    Ambroise Theriot v. Stephen Henderson.
    In a suit where the defendant sets up a reconventional demand, the verdict of the jury in favor of the plaintiff covers the reconventional demand. If the defendant desired a special finding of the jury upon his reconventional demand, he should have asked for it before the verdict was recorded.
    APPEAL from the District Court of East Baton Rouge, Burle, J.

      J. M. Brunol, for plaintiff.

      J. M. Elam, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action to recover from the defendant the sum of five hundred and twenty-five dollars on a contract made between the parties for the making of the defendant’s sugar. The defence is, the gross neglect and mismanagement of the plaintiff in the performance of the contract. The defendant claims, in a reconventional demand, a large sum from the plaintiff resulting from his alleged misconduct. The plaintiff also claims the sum of one hundred and sixty-nine dollars and ninety-six cents for the hire of three of his slaves, who were employed in taking off the crop. The defendant also pleaded in conipensation an account of one hundred and fifty-eight dollars and seventy-eight cents.

The case was submitted to a jury, who found a verdict in favor of the plaintiff for the sum of six hundred and forty dollars and forty-one cents, with interest from the day when, by the contract, the money was due. Before the verdict was recorded, the plaintiff remitted the interest allowed by the verdict previous to the day of the service of the citation. Judgment was accordingly rendered for the amount of the verdict, with interest from the judicial demand. After the judgment was entered on the verdict, the counsel for the defendant moved for a Dew trial, on the ground that the jury had hot passed on the issues submitted to them. The district judge refused to grant the new trial, and the defendant has appealed. The point urged for a neyy trial is the only one which counsel have presented in argument.

The verdict of the jury, based upon the evidence presented by the defendant of the damages alleged in his reconventional demand, we think, covered Ihe whole case. The case of Kelly v. Caldwell, 4 L. R. 40, we think is conclusive on the subject, that the defendant desired to have a special finding of the jury on his reconventional demand, he should have asked for it before the verdict was recorded.

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


author: Preston, J.

text:
    Abraham B. Vail et al. v. Abraham Bird, Executor.
    A slave may become a party to a civil suit when he has to claim or prove bis freedom. C. C. 177.
    The heirs may dispute a legacy to a slave of her freedom upon the ground of the concubinage of the slave with the testator, and cannot be defeated by the objection that they are thus alleging the turpitude of the person from whom they derive their title. In such a case, tbe fact that the legatee was the slave of the testator, does not constitute a legal excuse for the concubinage. C. C. 1468.
    Slaves are made immovable property by the laws of Louisiana; and the donation of freedom to a slave, is the donation of an immovable.
    from the District Court of East Baton Rouge, Burk, 3.

      A. M. Dunn, for plaintiffs.

      J. M, Brunat, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The plaintiffs allege that they are the lawful heirs of Henry C. Vail, and have accepted his succession unconditionally. They allege that he made a will, the execution of which has been ordered, and that Abraham Bird, the defendant, is acting as the executor. They further allege, that the testator emancipated, by his will, a female slave named Jane, and gave her two promissory notes of one hundred dollars each, and that these legacies should be annulled, because the testator lived in open concubinage with Jane ; that the donation of freedom to her is a disposition of his immovable property in her favor, which is prohibited by law. They contend that the testator could only give her a tenth part of the value of his estate in movable property, which they allege the donations in her favor greatly exceed. They pray that Jane may be made a party to this suit, and that the donations to. her may be annulled by judgment. '

Bird, the executor, excepted to the petition that the plaintiffs could not make Jane a party. Our code, however, enables a slave to become a party plaintiff or defendant to a civil action when he has to claim or prove his freedom. Art. 177. He further excepted, that the allegation of concubinage between master and slave, was improper, and not in law admissible, because the slave was entirely subject to the power of her master and without a will of her own ; and further, that it was illegal and immoral to suffer heirs to enrich themselves by setting up and proving the turpitude of those from whom they derive title.

The district court sustained these exceptions, dismissed the plaintiffs’ suit, and they have appealed.

The Inst ground of exception, if well founded, would equally apply to all donations reprobated by law, and defeat the whole object of our lew and all its provisions on this important subject.

If the heir could not cast the opprobrium of concubinage upon those from whom he is entitled to inherit, the 1468th article of the code would be obliterated. But it is an explicit provision of law of great importance to the order, decency and well being of society, and this must be carried into full effect by the courts. This ground of exception cannot therefore be maintained.

The other ground is more plausible, but equally untenable. The slave is undoubtedly subject to the power of his master; but that means a lawful power, such as is consistent wilh good morals. Tiie laws do not subject the female slave to an involuntary and illicit connexion-with her master, but would protect her against that misfortune.

It is true, the female slave is peculiarly exposed, from her condition, to the seductions of an unprincipled master. That is a misfortune; but it is so rare in the case of concubinage that the seduction and temptation are not mutual that exceptions to a general rule cannot be founded upon it. The 1468th article of the code is so general as to embrace all persons, white or black, free or slaves, who are capable of concubinage together, and equally renders all who live together in open concubinage, incapable of making to each other donations of immovables at all, or of movables to more than a tenth of the value of their estate.

It is lastly said, that the donation of liberty to a slave is not the donation of an immovable. Slaves are made by our law immovable property. A donation which deprives the heir of the donor of a slave is a disposition of immovable property. The donation of freedom to a slave deprives the heirs of the slave, and is therefore the donation of an immovable.

We think the exceptions filed by the defendant should have been overruled. The judgment of the district court is therefore reversed, and the cause remanded with directions to the district court to overrule the exceptions and to proceed to the trial of the case on its merits ; and the defendant and appellee is condemned to pay the costs of this appeal.


author: Slidell, J.

text:
    B. Haynes, Liquidator, &c. v. Succession of J. A. Beckman.
    The Clinton and Port Hudson Eailroad Company had, by its charter, power to transfer, by endorsement, negotiable notes belonging to it.
    The cashier of a bank is the executive officer of the bank. He is entrusted with its notes and bills, and with the collection and transfer of them in the ordinary course of business. A note made payable to his order is just as negotiable as if made payable to the order of the bank.
    The character of a note, as to negotiability, is not changed by the insertion of a contract of pledge in the body of the note.
    Negotiable paper is barred by five years prescription. C. C. 3505.
    from the District Court of East Feliciana, Sterlings J.

      E, P, Ellisi for plaintiff,
    cited, to show that the note was not negotiable, and consequently not barred by prescription. Acts 1834, p. 118, sec. 11. 3 Kent, 49. Story on Bills, 61. Chitty on Bills, 180, 218. '
    ^ E. T. Merrick and W. D. Winter, for defendant,
    cited, to show the negotiability of the note, Fleckner v. Bank of United, States, 8 Wheaton, 338. Miner ét al v. Mechanics’ Bank, 1 Peters, 46, 70. Story on Bills, p. 132, § 127. Angelí and Ames on Corp., 295, 296. Story on Agency, 130, 131, § 114. To show the power of the Bank as to negotiable paper, Myers v. JDeLee, 1 R. R. 516.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff is the liquidator of the affairs of the Clinton and Port Hudson Railroad Company, a corporation which was clothed with banking powers. The sole question presented for our consideration is, whether the instrument upon which the action is brought is barred by the prescription of five years, éstablished in art. 3505 of the code. Its language is, “Actions on bills of exchange, notes payable to order or bearer, except bank notes, those on all effects negotiable by endorsement or delivery, are prescribed by five years, reckoning from the day when these engagements were payable.”

The instrument is of the following tenor: “Jackson, La., 4th, February, 1840. $640. Twelve months after date I promise to pay to the order of L. Sturges, Cashier of the Clinton and Port Hudson Railroad Company, or his successor in his office, the sum of six hundred and forty dollars, for value received, payable and negotiable at said office in Jackson, and waiving the usual bank notice, herewith leaving in pledge, to secure the payment of the said sum', my certificate of ten shares of cash stock of said company, upon which eight dollars per share have been paid, and hereby authorizing said cashier, or his successor in office, to sell or transfer my said stock for the payment of said sum, or otherwise dispose of my stock as is customary in such cases, if said sum be not otherwise paid. J. A. Beckman.”

The plea was sustained in the court below, and the plaintiff has appealed.

In Myers v. DeLee it was held, that this corporation had power, under its charter, to transfer, by endorsement, notes belonging to it. 1 R. R. 516. There was, therefore, nothing in the fact of the instrument being made in favor of the corporation, to affect its negotiable character.

But it is said, that the instrument is payable to the order of the cashier, who is a mere servant of the company, and without power to convey the instrument by endorsement without a resolution of the directors. We see no reason to suppose from the charter, that the Legislature intended to place this banking institution upon a different footing, as regards the conduct of its business, from other banks. The ancient strictness on the subject of corporate action has been long since reformed, from considerations of general convenience and policy ; and it is now well settled, that in case of promissory notes held by banks, an endorsement by the cashier of the bank, in his official character, is sufficient, at least prima facié, to pass the title of the bank' thereto. See Fleckner v. Bank of United Slates, 8 Wheaton, 360. Wild v. Bank of Passamaquoddy, 3 Mason, 507. Story on Notes, § 127. The cashier of a bank is held out to the world as its executive officer, entrusted with its notes and bills, and the collection and transfer of them in the ordinary course of its business. Viewing him as a person standing in this relation to the bank, we are unable to perceive why the note was less negotiable by being made payable to the order of the cashier, than it would have been if made payable to the order of the bank.

The language used in the instrument clearly manifests the maker’s intention to clothe it with negotiability. The statement it contains touching the pledge ia not inconsistent with the intention to make it negotiable. If the pledge had been embodied in a separate instrument, it certainly would not have affected the negotiability of the note ; and we do not see why the incorporation of the agreement of pledge, in itself, should have that effect.

Judgment affirmed, with costs.


text:
    Eldridge Tucker et al. v. Sarah Musselman et al.
    Where a party is in possession of property under a forthcoming bond which had been given to release the property from a sequestration, the party thus situated cannot be sued for the same property in another court, while the suit in which the property was sequestered is still pending, upon the ground that the property was improperly bonded.
    APPEAL from the District Court of East Baton Rouge, Burk, J.

      Dunn and Merrick, for plaintiffs.

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

Preston, J.

The defendant, Sarah Musselman, who resides in the parish of East Baton Rouge, was one of the plaintiffs in a suit brought in the parish of East Feliciana against Rebecca Gayle, for the recovery of certain movables and slaves described in the petition. The plaintiffs in that suit obtained a writ for the sequestration of the property claimed, which was executed, except as to the slave Abraham, who, it appears, had absconded and was subsequently found at the residence of the defendant. A writ then issued in that suit to the sheriff of the parish of East Baton Rouge, commanding him to sequester that slave, which he executed by taking the slave in his possession. After the execution of the writ, Sarah Musselman gave a forthcoming bond to the sheriff, and the slave sequestered was delivered to her.

The plaintiffs in this suit are the legal representatives of Rebecca Gayle, lately deceased. They have instituted a possessory action for the slave Abraham, in the parish of the defendants’ domicil.

The defendants excepted to the action on the following grounds: 1. That there exists, pending between the same parties, a petitory action for the negro man Abraham, in East Feliciana. 2. That the respondent is in possession of Abraham, under a sequestration issued from the parish of East Feliciana; that the defendant in that suit having failed to give bond to release the property from sequestration, the defendants did so, as they were authorized to do under art. 279 C. P. and that they are therefore legally in possession. 3. That the court of East Baton Rouge cannot annul or interfere with an order or decree of the district court of East Feliciana, and can take no action in the premises. These exceptions were sustained, and the plaintiffs have appealed from the judgment dismissing their petition.

It was urged in argument, that the possession of the defendants was tortious, because it did not appear that any notice of the sequestration had been given to the plaintiffs, or that they had the opportunity to release the slave by giving bond. It was also contended that the administrator of Mrs. Gayle had no authority to consent, as he did, that the defendants should bond the slave.

These would have been proper inquiries on a rule taken upon the defendants in. the petitory action to show cause why the bond taken by the sheriff of the parish of East Baton Rouge should not be set aside, and the slave restored to their possession upon their giving bond and security as required by law. But this proceeding has not been resorted to ; and so long as the bond remains in force, and represents the slave sequestered, in the court of East Feliciana, the court of East Baton Rouge cannot disregard it or inquire collaterally into its validity. The defendants are entitled to bond the slave if the plaintiffs do not; the possession which they have cannot therefore be taken from them until the plnintiffs not only show their superior right to it, but offer to give, and actually give a forthcoming bond, the amount and validity of which must be determined and passed upon by the court from which the sequestration issued. Upon the plaintiffs’ own showing, their action cannot bo maintained.

The judgment is therefore affirmed, with costs.


text:
    The State of Louisiana v. Michael Read.
    In a prosecution, under the statute of 16th of March, 1830, against a person for having used language of a tendency to produce'discontent or insurrection among the slaves, it is essential that the indictment should set forth the words thus used, and charge that they were used with a felonious intent.
    APPEAL from the District Court of West Feliciana, Penn, J.

      Isaac Johnson, Attorney General, for the State.

      C. Ratliff, for appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

This appeal is taken by the accused from a judgment of the Court of the Seventh District sitting in the parish of West Feliciana, by which he was sentenced to be confined at hard labor in the penitentiary for the term of five years, and to pay the costs of prosecution. He was indicted, and found guilty under a statute approved on the 16th day of March, 1830, entitled, “An act to punish the crimes therein mentioned, and for other purposes.” The section under which the indictment was framed is in these words :

“Be it further enacted, That whosoever shall make use of language in any public discourse from the bar, the bench, the stage, the pulpit, or any place whatsoever; or whosoever shall make use of language in private discourses or conversations, or shall make use of signs or actions, having a tendency to produce discontent among the free colored population of this State, or to excite insubordination among the slaves therein; or whosoever shall knowingly be instrumental in bringing into this State any paper, pamphlet, or book having such tendency as aforesaid, shall, on conviction thereof before any court of competent jurisdiction, suffer imprisonment at hard labor not less than three years nor more than twenty-one year-s, or death, at the discretion of the court.”

The indictment charges: That Michael'Read, late of the parish of West Feliciana, and State of Louisiana, yeoman, on the tenth day of February, in the year of our Lord one thousand eight hundred and fifty, with force and arms, at the parish aforesaid and State aforesaid, did in public discourse make use of and utter the following language in substance, and to the effect, that is to say: “ The negroes (he meaning the slaves of the parish and State aforesaid) are as free as the white men. (He meaning the white men of the parish and State aforesaid.) This is a free country, (meaning the parish and State aforesaid,) and that the negroes (he meaning the slaves of and in said parish and State) have no right to call any man master; which said discourse and language, so uttered as aforesaid by the said Michael Read, did then and there have a tendency to produce discontent among the free colored population of the State of Louisiana, and to excite insubordination among the slaves therein, contrary to the form of the statute in such cases made and provided, in contempt of the authority of the State of Louisiana, and against the peace and dignity of the same.”

The jury found the accused guilty in manner and form as charged in the indictment, and recommended him to the mercy of the court.

The counsel appointed by the court to defend the accused moved to arrest the judgment, on the grounds that the crime was not sufficiently and positively stated in the indictment; that the accused is not charged with any criminal intent in uttering the words alleged to have been spoken, and that the indictment does not state any particular words to have been uttered which would subject him to a criminal prosecution, but charges him with having, in public discourse, made use of and uttered the following language in substance, and to the effect, &c. The motion to arrest the judgment was overruled, and the case has been argued before us by the attorney general and the counsel for the accused, on the grounds urged in support of the motion in the court below.

We understand that the rules concerning indictments at common-law relate generally to indictments for crimes under statutes, and that whatever precision is required in the one is necessary in the other, and that it is often insufficient merely to pursue the description of the offence given in the statute by which it is created. It is laid down in general terms in elementary works on the criminal law, that all indictments under statutes, especially the most penal, must state all the circumstances which constitute the definition of the offence in the act, so as to bring the defendant within it. Vide The King v. Neill et al., 6 East. Rep. 417.

The indictment contains no charge of any criminal intent, and the word feloniously, which is necessary in indictments for felony, is omitted, nor is there any equivalent word to be found in this indictment. Nor is it charged that the words were uttered in the presence or hearing of slaves or persons of color. This may not be essential in all cases under the statute; but under the very naked charges of this indictment, which repeat merely the words of the statute, an allegation of this kind would be necessary in order to constitute an offence. The statute makes it criminal to make use of language having a tendency to produce certain evils.

Our impression is, that besides setting forth the words made use of, the indictment ought to contain such averments and inuendoes as establish its tendency and the relation in which they were spoken, rendering the language intelligible, and its application to the evil intended to be reached by the statute evident. The words of the statute, “ having a tendency,” are so comprehensive and vague, that without proper averments, indicating the tendency, and sufficient explanatory statements and references as to the words spoken, the accused would not have the means of defence, which an indictment, drawn with the precision and certainty which the law requires, would afford to him. Our inquiries have not led us to discover any precedent of an indictment like this having been sustained. The requisites of indictments for seditious words and for libels affords us examples which we consider as safe guides, although the cases are not identical.

It is urged, on behalf of the State, that the statute does not require any criminal intent to constitute the offence, and that it is not necessary to allege it, inasmuch as malice may be inferred from the language itself, without averment or extrinsic proof of it. But in this case there are no averments, references, or inuendoes concerning the language used which establish the inference. We understand the rule to be, that the charge must be sufficiently definite and explicit to support itself, and no latitude of intention can be allowed to include anything more than is expressed. 2 Burrows, 1127. 2 Maulé and Selwyn, 381. Chitty’s edition of Blackstone, vol. 4, p. 306, notes.

The other objection taken by counsel to the validity of the indictment is, that it does not purport to state the words uttered, but the substance and effect of them. The indictment charges that the accused did, in public discourse, make use of and utter the following language, in substance and to the effect, that is to say. The attorney general contends that the words “ in substanee and to the effect” may be considered as surplusage and not written, and that the indictment will then read, “utter the following language, that is to say,” and is sufficient

It appears to us that the suppression of these words would violate the sense of the indictment, and that these words were intended to qualify those which preceded them. The indictment certainly does not purport to give the language uttered, but the suhstance and effect of it.

When a man’s life is put in jeopardy for language made use of, we think the language itself ought to be charged in the indictment. Where words are the gist of the offence, they must be set forth in the indictment with the same particularity as a libel. Where words are laid as an overt act of treason, it is sufficient to set forth the substance of them; for they are not the gist of the offence, but the proofs or evidence of it. Archbold’s Criminal Pleading, 22.

For these reasons, the judgment in this case is arrested.