text:
    St. Victor Barrett v. General Mutual Insurance Company of New York.
    THIS case should have followed that of the same Plaintiff v. The New Orleans Insurance Company of New Orleans. Ante p. 3. It is inserted here, because the argument for a re-hearing has been deemed of sufficient importance to be published.
   Eustis, C. J.

(Rost, J., absent.) This is an action on another policy on goods shipped on board the schooner W. C. Preston. The facts are established in the same manner and to the same extent as in the other cases. For the reasons given in the case of Lapeñe & Ferré v. The Sun Mutual Insurance Co., [Ante p. 1,] the judgment in this case is affirmed with costs.

Briggs, for defendant, applied for a re-hearing.

In the sixth chapter of Arnould, 2d edition, § 243, it is stated that “ in every policy of marine insurance there is an implied warranty that the ship shall be sea-worthy for the voyage, by which is meant that she shall be in a fit state as to repairs, equipments, crew, and all other respects to encounter the ordinary perils of the voyage insured at the time of sailing on it.”

The reason of the rule is then given, and reference is made to the observations of Lord Eldon, in Douglass v. Scougall, 4 Dow. 276, and of Lord Redesdale, in Wilkie v. Geddes, 3 Dow. 60.

And the author proceeds to say, that “The Courts have accordingly held that the sea-worthiness of the ship for the voyage, when she sails, is a condition precedent to the underwriters' liabilities for any loss incurred in the voyage.”

If she be not so sea-worthy, says Lord Ellenborough, “from whatever cause this may arise, and though no fraud was intended on the part of the assured, the underwriters may answer, “We are not liable.”

At page 655—“ Thus in an action brought by an innocent shipper of goods, (who had no interest whatever in the ship,) on proof being given that the ship was unseaworthy when she sailed, Lord Mansfield non-suited the plaintiff, saying that the implied warranty could not be dispensed with in any case, and that is now well understood to be the law of England on this subject.” Oliver v. Cowley, Park on Ins., 470, 8th London Edition.

He then proceeds: “ The proposition indeed 1 that the implied warranty of seaworthiness cannot be dispensed with in any case,’ though unquestionably true as a general rule, must yet be understood with some limitations; for the following case shows, that if a ship having originally sailed in an unseaworthy state, puts back immediately on discovering the defect, and the underwriters agree to waive the objection, and allow her to proceed on her voyage a second time, (on which occasion she sails seaworthy,) they cannot afterwards set up the plea of her original seaworthiness as- a defence against any subsequent loss totally unconnected therewith.” Which brings us to the case of Weir v. Aberdeen, 2 B. & A., 320, and which we shall now proceed to examine.

We must first, however, in order to test the force of this and other cases, establish our definitions.

Seaworthiness for the voyage does not attach title till she sails, says Mr. Justice Lawrance, Annan v. Woodman, 3 Taunt.

Of course, if she ultimately sails unseaworthy for the voyage, this according to the rule laid down, wholly discharges the underwriter from all liability for loss on the voyage, although the policy may have attached on her while “ at” the port, owing to her having been there seaworthy for her then risk. Partee v, Potts, 3 Dow. 27. Per Park, arguendo in Watson v. Clark, 1 Dow. 336, cited, Arnould, 2, 674-5.

This warranty according to the law of England, is satisfied if the ship sails in a seaworthy condition—the assured makes no warranty that the ship shall continue seaworthy in the course of it. Lord Mansfield in Berman v. Woodbridge, Doug. 758. Lord Mansfield in Elden v. Robinson, Doug. 755, cited by Arnould, p. 657.

The second description of seaworthiness is that for port or inland navigation.

There are in fact different degrees of seaworthiness. Seaworthiness for the voyage is one thing; and seaworthiness in port or for inland navigation, &c., quite another. Forbes v. Wilson, Park on Ins., 472, 8th London edition, and Arnould, page 073, § 249.

This then is the doctrine of the English tribunals, and is the law of England now, and was in 1819, when Lord Tenderden as Chief Justice of the Court of King’s Bench, delivered his opinion in Weir v. Aberdeen, and it is quite impossible that he and his associate Judges should be entirely unacquainted with the subject which we are compelled to believe if his declaration that he “was a'little surprised at the proposition,” be not considered to have reference to that which was in fact the turning point in the case.

The report is somewhat meagre, but it begins thus: “ Action upon a policy of insurance, dated 21stFeb., 1817, on the ship Prince Cobourg, and her outfit at and from London to Bahia; and the declaration stated that the following memorandum of the 5th April, 1817, was endorsed upon the policy. It is agreed, that the Prince Gdbourg ma/y load, unload and reload goods, and disehargepart of her cm'go at Ramsgate. Plea non-assumpsit.

It is needless to narrate the facts which are of course well known to the Court, and are set out in the opinion.

It was objected on the part of the defendant that the ship having been overladen, was unseaworthy at the commencement of the voyage, and that the memorandwm was invalid, for want of a new stamp, and also from having been obtained without making a due communication to the underwriters. The learned Judge (Best) however was of opinion, “ that this being a policy on ship, the risk had cormneneed before any goods had been laden, and he left two questions to the jury; first, whether, when she sailed from Ramsgate, she was properly laden, and in a seaworthy state; and secondly, whether the subsequent loss had been occasioned by the circumstance of the vessel having been overladen between London and Ramsgate.” The Jury found that she was seaworthy whenshe sailed from Ramsgate, and that the subsequent loss had no relation to her unseaworthiness between London and Ramsgate, and a verdict was entered for plaintiff.

Now the Court will find in the opinions refusing a rehearing, that the attaching of the policy whilst the ship was in port and before loading, was considered as avoiding the necessity of a new stamp, the policy not having failed ab initio, and the defect being cured by the waiver of the objection, the original stamp was sufficient; and although the opinion of Best in the report is not set out, it was of course on this ground that he considered it material. It legalized the contract which by the memorandum was considered as commencing at Rams-gate.

On the motion for a now trial, it was again urged, 1st, that her having sailed in an unseaworthy condition, was a breach of a condition precedent; and 2d, “ that supposing the policy to have attached, the putting into Ramsgate was a deviation; for the memorandum could not email the plaintiff, inasmuch as it operated as a new policy, and therefore required a new stamp, and the liberty there given was obtained from the underwriters without having disclosed the important fact that the vessel had strained much owing to her having been overladen, or that a protest had been made.”

We now come to the opinion of Chief Justice Abbott, who says: “It appears in this case that the vessel at the time of her departure was not in a fit condition to perform her voyage, in consequence of her having at that time a greater cargo than she could convenient^ or perhaps safely convey. The master having discovered this, and having met with bad weather, (which was perhaps the cause of the discovery being ever made,) put back into the Downs, and haring obtained permission to go into Ramsgate for the purpose of diseha/rging pa/rt of her cargo, went there and did land some portion, and so having removed the objection that had previously existed, put the ship into a fit condition to perform the voyage, and the Jury have found that the loss which subsequently happened, was in no degree attributable to the condition in which she had originally sailed, and from which she had freed herself by discharging part of her cargo at Ramsgate. But it is said that this memorandum expressing the consent of the underwriters is void, and that in order to bind the underwriters, a new contract was necessary, inasmuch as the fact of the vessel having once sailed with a cargo greater than was proper for that voyage, and therefore in an unseaworthy state, wholly put an end to their liability on the policy. That proposition would go the length of establishing that if a vessel at the outset of the voyage be by mistake or accident unseaworthy, owing to some defect which is immediately discovered and remedied before any loss happens in consequence of it, still the policy would be void and the underwriters not liable. I confess that I was a little surprised at that proposition, because if true in point of law, I fear we should find many cases indeed, where it would turn out that the assured could have no claim upon the underwriters,, because something was wanting, or something excessive at the instant of the ship’s departure, although the want had been supplied or the excess removed before the loss happened. Suppose for instance a vessel is unseaworthy, unless she has two anchors, being destined for a- long voyage, and she sails from London to Gravesend with only one, shall it be said that if no loss happens between London and Gravesend, and the vessel at Gravesend takes on board her second anchor and then proceeds on her voyage, that the underwriters are not liable for a subsequent loss, and that the policy is completely at an end, that even if the underwriters agree to waive the objection, and to allow her to proceed on her voyage, then consent shall be unmailing. Those inconveniencies which would he continually occurring in practice, would lead to dangerous consequences, by opening the door to the underwriters to break their engagements by means of trivial circumstances, the effect of which no one can contemplate. I thinh, therefore, the proposition cannot be maintained. As to the objection that this was a deviation, it is sufficient to answer that it was done by the permission of the underwriters with respect to the communication made to them, it was quite clear that the underwriters were told all that was in substance necessary for them to hn,oio, for they were told that when the vessel sailed she had too la/i'ge a cargo on board, and that she was not in a situation ft to perform her voyage. Upon the whole, therefore, I thinh that the rule must be refused.”

We would now ask, what were the propositions before the Court? We take them to he those stated on the application for a new trial. Eirst, that the policy never attached ; and that if it did, the putting into Ramsgate was a deviation, because the memorandum endorsed on the policy was void, inasmuch as it operated as a new policy, and therefore required a new stamp ; and because important facts were not disclosed to the underwriters.

Now we have seen that on the trial, Best, J. held, that being on the ship, it did attach, because she was seaworthy for her then condition; and as, by the memorandum, the underwriters had waived a defence, which would, but for the waiver, have availed them, the waiver by endorsement, related back to the original execution of the contract, and did not constitute a new contract, requiring a new stamp. That the consent was considered to have disposed of the plea of deviation, is too plain to require illustration. The opinion is awkwardly expressed, but no doubt can exist in the mind of any one, it seems to us, that the whole must be construed together, and that when Lord Tenderden expresses his surprise at a doctrine which was then, and is now, admitted to be law, the concluding paragraph “that even if the underwriters agree to waive the objection, and allow her to proceed on her voyage, their consent shall be unavailing,” must be considered as inducing the declaration, that upon the whole, he thought the rule must be refused.

This construction is warranted by the opinions of the other Judges. Bayley, J., says, I am of the same opinion. There was not any fraud or concealment in this case, so as to vacate the memorandwn; for it distinctly appears that the underwriters were told that the ship had been overloaded, ahd that from that circumstance she was in an unsecnoorthg state. As to the fact that the ship had strained, it is to be observed, that if that straining had rendered her unseaworthy, the non-communication of that fact would home vacated the policy ; but as the jury negatived that fact, it was immaterial. The question then is, whether the memorandum, required a new stamp, and the case of JTubba/i'd v. Jaclcson, 4 Taunt. 174, is an authority to show that a warranty may be waived without a new stamp. Now it is a warranty that the ship shall be seaworthy, and therefw'e it goe& not require a new stamp in order to waive it. On these grounds, I am of opinion that the memorandum in this case did not require anew sta/mp, and that the verdict is right."

Holroyd, J. “ I am of the same opinion. I do not think that the overloading which rendered the ship unseanoorthy at the time of her sailing, made an end of the^ policy. The inconveniences which have been pointed out, induce me to think that such a proposition is contrary to law; no authority has been cited in support of it; and unless some cogent authority were produced, I should not accede to it. It appears to me that the rislc continued to the term of the loss, and that the plaintiff is entitled to recover.”

Now here is authority stronger than that of the C. J., if the language is to be understood without reference to the particular facts of the case, or the quo animo with which it was employed. Bailey, J., is also of the same opinion with the Ohief Justice, and yet distinctly tells you that seaworthiness is a warranty ! and that as it has been decided that a warranty may be waived or modified at any time prior to the natural termination of the risk without a new stamp, therefore this waiver was good without a new stamp, and therefore the plaintiff was entitled to recover—in other words, that the endorsement related back to the date of the original policy, which to this extent was not destroyed; and this is all that Lord Tenterden ever intended to say, or that Holroyd or Best intended to say.

Had the memorandum of waiver not been there, does the Court undertake to say that the underwriters should have 'been held liable ? That the breach of a warranty of seaworthiness for the voyage occurring on the departure of a ship for London, could be cured at Ramsgate! if so, why not at Madeira, or at any port short of that of her destination ? and what becomes of the general rule ? and yet if the view the Court has taken of it be correct, to this conclusion we must come. Lord Tenderden must be understood as declaring that a warranty once broken can bo subsequently cured without the consent of the underwriters, a doctrine we are quite sure his lordship never heard broached in Westminster Hall, and are equally sure he is innocent of having originated.

The doctrine is fuily and unconditionally asserted in Sergeant Marshall’s treatise upon the law of insurance, the first edition of which was published in 1802, and the second in 1808, and in Mr. Justice Park’s work, published in 1786. It is, as we have before .observed, impossible to conceive the Court surprised, or considering this doctrine as a novelty.

That the very portion of the opinion relied on, which has been quoted by writers as establishing this novel doctrine should be considered a dictum, we should infer from the illustrations put. His Lordship talks of accidental deficiencies or excesses immediately discovered and corrected, and supposes a vessel navigating from London to Gravesend with one anchor, and there taking in the other. This is river navigation, and he well knew that for such a risk the seaworthiness of the voyage is not exacted, and that in the instance put, the underwriters would be bound by other principles of law. But if intended to meet the point raised at bar, they are fall of significance, for it was argued that the rislc never attached, that the breach of the warranty so completely avoided the contract, that the endorsement must be considered as a new acceptance of the risk, a new contract between the parties; and as such wanting a stamp to give it validity. This Best at the trial answered by saying that the policy being on the ship, attached before loading ; and in this view, and with this intendment, the case put is such as might be expected from Ohief Justice Abbott, and ceases to be inappropriate, as to our humble judgment it would be, were the popular reading of this opinion to be admitted as correct.

He never considered that these observations would, apewt from the facts of the particular ease, be construed as overturning a doctrine so completely settled, or that they would be considered in themselves decretal.

The recent work of Mr. Arnould has, however, accepted the result of our examination as its true exposition, since in the second edition of his work on Insurance, p. 657, he says after citing the authority: “ It must be understood, however, that this doctrine is strictly limited to cases, in which there is clear evidence both that the underwriters have agreed to waive the objection to the ship’s original want of seaworthiness, and also that the subsequent loss was wholly unconnected therewith.

To the English doctrine and definitions, that seaworthiness for the voyage is a condition precedent, and satisfied if the ship sails in the required condition. And that this complete equipment is not required for port or inland navigation.

The American system of jurisprudence has added a third and qualified warranty, the nature of which together with the recognition of the English as the general rule, is clearly set forth in Starbuck v. New England Insurance Co., 19 Pickering, where the Court says: “ The obligation of the assured to have his vessel seaworthy at the commencement of the voyage, and his obligation to keep her seaworthy during this voyage, depend on different considerations, and impose different duties. If the assm'ed does not make her seaioortlvy at first, she is not a vessel. But, if she meets with an accident after the beginning of the voyage, as the very contract of insurance supposes that she may, it is the duty of the assured to make repairs.” If he does not repair, when he reasonably ought to do so, and a loss arises from it, the assured cannot recover, because it is not a loss by any of the perils insuredagainst; but if the loss arise from another cause, he may recover. The difference is this: If the vessel is not seaworthy at first, the policy never attaches ; in the other case, the insurers having become responsible, continue liable for all losses not arising from the fault of the owners, Sc. See Copeland v. New England Insurance Co., 2 Metcalf, 432, 437.— Paddock v. Franklin Insurance Co., 11 Pick. 227, 234.

We shall now examine the American doctrine and the cases cited in support of this supposed qualification of the general rule, and will begin with Kent, who in speaking of this warranty, says, p. 358: “ This warranty of seaworthiness relates to the commencement of the risk, and the warranty is not broken if she becomes unseaworthy afterwards,” and then goes on to notice the American doctrine with reference to the obligation to keep the ship in this condition, and says: “A breach of the implied warranty of seaworthiness in the course of the voyage has no retrospective operation, and does not destroy a just claim to damages for losses occurring prior to the breach of this implied condition.” “Every warranty is a part of the contract;” “ it differs from a representation in this respect, that it is in the nature of a condition precedent, and requires a strict and literal performance. Whether the thing warranted be material or not, and whether the loss happened by reason of a breach of the warranty, or did not, is immaterial, a breach of it avoids the contract ab initio. Every condition precedent requires a strict performance to entitle a party to his right of action. But seaworthiness in port may be one thing, and seaworthiness for the whole voyage quite another.”

He then, as in the case with all the writers except Arnould, takes up Weir & Aberdeen, and after stating that the general rule is that a “vessel must be seaworthy at the commencement of the risk, whatever that risk may be, in order to make the policy attach and charge the insurer,” observes: “ Itwas held in the case of Weir v. Aberdeen, that though a ship be unseaworthy at the commencement of .the risk, yet if the defect be cured before a loss, a subsequent loss is recoverable under the policy. The argument of Lord Tenderden in favor of this doctrine is very weighty, but a doubt seems to have been thrown over its solidity by the Supreme Court of the United States, referring to 1 Peters’ R. 170.”

We have here the doctrine laid down as we have stated it, and the only exception cited is that of the case we have reviewed, and yet this is the doctrine which Lord Tenderden is supposed to have treated as novel, and as one which surprised him.

In the case referred to, Judge Story, in reference to the case in question, merely says: “ In this point of view it is not necessary to i\ely on the doctrine of Mr. Chief Justice Abbott in Weir v. Aberdeen, which goes the length of asserting that if there be unseaworthiness at the commencement of the voyage, and the defect is cured before the loss, the subsequent loss is recoverable under the policy. This is an important doctrine, and well worthy of discussion, whenever it-comes directly in judgment.”

Here the Court will find the tables again changed, and both Chancellor Kent and Mr. Justice Story treating the opinion of Lord Tenderden as heresy, and one-at which they might express surprise.

We shall now refer to Mr. Phillips, and the authorities he has cited in support of this doctrine, and see whether they are more-to the point.

It is needless to refer to those which are in affirmance of the doctrine we are advocating, they will be found at p. 308, 329, seednd edition.

The quotation from this author, cited by the Court, we are unable to find, and it must therefore be an addition to or alteration of the text in the edition of which we have not seen.

Li that referred to, the 2d, he says, “ That the effect of non-compliance with warranty of seaworthiness, as well as of the forfeiture of any other cóndition, is to discharge the underwriters from their liability under the policy.” If this condition is forfeited at the commencement of the risk, it doubtless discharges from all liability under the policy; “ but it does not appear that a forfeiture of this condition, subsequently to the commencement of the risk, discharges the underwriters from their liability to pay antecedent losses; on the contrary, the underwriters are liable for previous lossesand Annan v. Woodman, 3 Taunt. 299, and Taylor v. Lowell, 3 Mass. 347, are cited as authority.

We now come to our unfortunate case, which ho introduces under the marginal heading of Temporaiy Unseaworthiness, and says: “ Though it appears by many of the preceding cases that a non-compliance with the warranty of seaworthiness, discharges the underwriters from all subsequent liability, yet it seems to be intimated, in an opinion given by Chief Justice Abbott, that a non-compliance with this warranty may take place, and still, if the defect whereby it is violated is of a temporary nature, and soon remedied, and it appears that no loss could have occurred in consequence of the defect, the liability continues, or revives, notwithstanding such violation;” p. 380; and then sets out the opinion and the remark of Mr. Justice Story, in 1 Peters, already given thereon.

And at page 335 says: “In Weir v. Aberdeen, ‘the circumstance that the policy was at and from the port, so that the policy attached, and the risk commenced before sailing was not expressly relied upon, or made the avowed ground of the decision; but such was the fact, and would seem to reconcile it with the decisions.’ ” That is, the breach was not at the commencement of the risk. This is, as we have shown, the very point in the case, if coupled with the waiver.— The fact was, as we have shown, directly decided by Best, and forms the leading feature in the judgment of Mr. Justice Bailey; and as we have endeavored to show, was the fact upon which the case depended; for had it not attached, the whole reasoning would have fallen to the ground. The argument for the plaintiff is not set out, and this may have occasioned the mistake.

The next authority is Taylor v. Lowell, 3 Mass. 331, which is introduced by the following remark: “It has, however, been distinctly held in Massachusetts, New York and South Carolina, that a temporary non-compliance with this implied warranty does not discharge the underwriters from a liability for all subsequent losses, where it distinctly appears that no damage or subsequent change of risk was occasioned by such non-compliance.”

This case is somewhat of the same complexion as Wew v. Aberdeen, and Judge Phillips fairly states the contradictory complexion of the decree, and for the purpose of reconciling the contradiction, infers that it must have been decided upon the doctrine in question.

The ship was insured 12th January, 1798, lost or not lost, at and from Calcutta to her ports of discharge in the United States. The assured had advice of her arrival at Calcutta, in July, 1797, and that she would probably sail from thence in August of that year, and the insurers were so informed. She did sail on the 19th August, for the United States, but leaking badly put back to Calcutta, where she was unladen, made seaworthy, and sailed in February, 1798, from Calcutta to the United States, and arrived at Boston in safety. Suit was brought for the premium, and resisted on the ground that the ship sailed in an unseaworthy condition, and that as the risk had therefore never attached, no premium was earned. This was the issue raised, and why the Court undertook in its opinion to go over so much ground it is difficult to understand.

The Court correctly decided or rather exposed, that seaworthiness for the voyage is one thing, seaworthiness for the port another; that accidents chargeable on the underwriters might well happen to a ship or goods in port, and be independent of the forfeiture resulting from subsequent sailing in an unseaworthy condition; that under tliis doctrine, the policy in question attached, and the premiums were earned, and that the liability to this extennt once attaching, was not discharged by the sailing of the ship in an unseaworthy condition, but continued through the voyage, and entitled them to call for payment on a contract of binding force upon the parties on the return of the ship to Boston. This does, it seems to us, reconcile the contradictions otherwise apparent in this opinion, and was in fact all the Court was called upon to decide, the risk attaching but for an instant, the premium was earned, and the case was at an end; and if as Judge Phillips thinks, the Court went further, it was an exposition of law gratuitously given by the Court, and cannot be considered decretal.

The case of Deblois v. The Ocean Insurance Company, 16 Pick. 303, is not in point. The risk was at and from Boston to St. Thomas, and a market in the West Indies, &c. The original warranty had been satisfied. The ship arrived at St. Thomas in safety, and it was for a breach of the continuous duty to keep the ship seaworthy imposed by the American doctrine in an intermediate voyage, that was urged as a defence. Peabody, J. “ But there is another answer : If it were not proper to make the passage without more ballast, yet it was no breach of the implied warranty of seaworthiness, but a neglect to keep her in that state. And if she had been lost in consequence of that neglect, the defendants might have availed themselves of that neglect. But she made the passage in safety. The defect, if any, was cured, for it is not suggested that she was not in good sailing trim when she left the West Indies.”

We leave the Court to decide whether this case is not a direct authority for our position, and whether the distinction between the warranties and the consequence resulting from their broach, could be more distinctly pointed out.

The case of the American Insurance Company v. Ogden, 15 Wendall 532, 20, 281, is equally inapplicable. It was a time policy for six months. The vessel sailed the 2Gth November, on a voyage from New York to Charleston, thence to Norfolk, and thence to St. Thomas, in the West Indies. There was no pretence that the original warranty was broken. She sailed seaworthy from New York, but in going into Charleston lost her small bower anchor, and 'failed to replace it; and encountering bad weather, sprung her foremast, and became leaky.

The case of Chase v. The Eagle Ins. Co., 5 Pickering, 52, is still inapplicable. Assumpsit on a policy of insurance upon property on board the Delia, at and from New York to Lynn, with liberty to call at Newport. The ship sailed on the 13th or 15th December, from New York, with an underdeck and deck load, and proceeded to Newport, whore she arrived the next day, and unloaded her deck load.

We subscribe to every principle advanced in this opinion, but are unable to see in what possible way it can be cited as authority against us. The vessel complied with her warranty, and sailed in a seaworthy condition, and thus the warranty was fulfilled. She went into her port under the permission to do so, and had she been there made unseaworthy by the willful neglect or ignorance of the master, the American doctrine continuing the obligation to maintain her in that condition, would, as the Court has said, have avoided the contract; but the jury found that he had not done this, and the Court sustained the verdict.

McMillan & Ewart v. Union Insurance Company of Charleston, 1838, is extracted from the Charleston Courier, February 26,1839, we are therefore obliged to take it as it is given in the text, and can only say that if correctly reported, it is in violation of a principle established by the highest authorities in an infinite variety of cases,

Cleveland v. Union Insurance Company, 8 Mass. 308, is the last case cited as illustrating this subject, and proof of the adoption in Massachusetts, New York and South Carolina, that a temporary non-compliance with this implied warranty does not discharge the underwriters from a liability for all subsequent losses, where it distinctly appears that no damage or subsequent change of risk was occasioned by such non-compliance, and we have found it as little applicable to the subject as the rest.

There is no allegation that the ship was unseaworthy at the commencement of the voyage, and the only approximation to the subject is, that it was contended that the neglect of the captain to take his papers with him from the Isle of Franca Now admitting this to have been the case, it was still a breach of the continuous obligation to keep the ship in a state of seaworthiness we have so often adverted to, and not that breach of the warranty which is held to be a condition precedent

The case mentioned by the Court having reference to the needle, we suppose that cited, p. 310, Stanwood v. Rich, S. J. S. Mass. Suff. November, 1811, turned altogether upon another point. If Judge Phillips’ .statement bo correct ,it was shown by a variety of witnesses, that notwithstanding the utmost care of master and owners, iron-bodies will sometimes occasion a variation, and there being no negligence, the Court did not consider the ship unseaw'orthy’, scorning to acquiesce in the opinion of the witnesses. .

We have gone through all the cases cited by Judge Phillips with some degree of minuteness, because we were sensible that it was our duty to rest our objection to the decision of the Court on other grounds than our mere assertion that the cases were not in point; we have, wo believe, shown that they are not, and we beg to assure the Court that in the analysis of each we have honestly reported them without the slightest endeavor to dress them to our purpose. It may be still as Judge Phillips says, a settled rule of American jurisprudence, but it must be shown on other grounds and supported by other authorities than those he has adduced.

We believe that it is not so—that he, like other writers, has been misled by the case of Weir v. Aberdeen, and that he has, in endeavoring to find analogous cases, confounded the American doctrine of continuous, obligation with the initiatory condition to which that case undoubtedly has reference.

The principles established in the ease 15 and 20 Wendell, were recently and fully discussed, and resulted in the same decision in Small v. Gibson, first tried in B. R., and afterwards in error in the Exchequer Chamber, reported English Law and Equity Reports, vol. 3, and the leading doctrines as we have explained them, are fully recognised as applicable alike to policies for time and voyage, and it seems to us that the Court should pause before it undertakes to overturn a doctrine which has been admitted to be true for centuries, even upon one or two state decisions which majr or may not have been properly presented or determined, if such are to be found, and we have found none.

We would, however, again repeat our conviction, that had not the master of the W. 0. Preston, when he left for the Bay of St. Louis, ordered her to follow him, she never would have left her moorings until his return. We have asked this question of merchants and seamen, and have received the like answer. We repeat that it is impossible to believe that a schooner, navigated by three- men and a cook, should, in the absence of her captain, break up from her moorings, and proceed to sea, on her voyage to Galveston; and this is sworn to by the witness, examined under a commission, who says that they did not sail for the Bay of St. Louis, but for Galveston.

The inference is irresistible, that she left her moorings, and went to sea to pick the captain up; and if this be the fact, it is unnecessary to tell the Court that it was a deviation. The master says he boarded the schooner twenty miles from the Bay of St. Louis, and that he was on board when he discovered the loss of the water. This may be, but we do not believe it; and are satisfied, that on the ground of deviation, as well as from the fact that she went to sea in an unsoaworthy condition, the underwriters are discharged. Wherefore we pray that the case may be re-argued at bar.

Rehearing refused.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    N. B. Riddle v. Cyrus Ratliff et al.
    The perfecting of incomplete Spanish titles to land in Louisiana, of right belongs to the legislative branch of the Federal Government, anil their power to deal with such titles, In their political capacity, and to determine to whose benefit they should inure, is beyond the control of the Judiciary.
    In incomplete grants, where the land has been separated from the public domain, the King of Spain had no power, or discretion, which he could lawfully exercise in relation to it, and none passed to the United States. The land was and has remained private property, which no legislation of Congress could affect.
    Incomplete titles like settlement and cultivation were mere equities, and the Government had the right to say in what manner they should ripen into perfect titles, and to establish a limit beyond which these equities should cease to have effect. The confirmation was the title, and inured to the benefit of the party to whom it was made. But in cases of complete grants, the confirmation is not the title, but only its recognition, and iu ascertaining the rights of parties, it must be laid out of view.
    Under the Spanish Government verbal sales of lands might perhaps be shown, but only in the case of actual and continued possession by the purchaser.
    Appeal from the Ui,strict Court, Seventh District, Parish of West Feliciana. Sterling, 3.

      U. B. Phillips and U. O. PRidson,'íov plairáxít

      liatliff, for defendants.
   Rost, J.

This is a petitory action.

The plaintiff claims title • under a complete Spanish grant in favor of Felix Bernard, bearing date the 18th of June, 1787.

The sale from the grantee, Bernard, to Zaehariah Smith, under whom the plaintiff alleges he holds, has not been produced, and the sale from Zaehariah Smith to the next vendee, has not been established by legal evidence. But it is shown that in 1820, the land was confirmed to John Bhea, as holder of the Spanish grant, and it is urged in behalf of the plaintiff that the confirmation is evidence of the title being in Bhea, and that as the chain of conveyances is complete from Bhea down to him, his title is sufficiently proved. The District Court sustained that defence on the authority of the case of Purvis et als. v. Harmonson et al., 4 Ann. 421. The title in that case was an inchoate Spanish grant, which had not divested the former Government of the fee in the land. The conclusion to which we came was that the whole matter of perfecting incomplete titles to land in Louisiana, of right belonged to the Legislative branch of the Federal Government, and that their power to deal with such titles in their political capacity, and to determine to whose benefit they should inure, was beyond the control of the Judiciary.

In this case there was a grantee, and the land had been separated from the public domain before the change of Government. The King of Spain had no power or discretion which he could lawfully exercise in relation to it, and none passed to the United States under the Treaty. It was and has remained private property, which no legislation of Congress can affect. If there had been no confirmation by the United States, the plaintiff would have been required to trace his title to the original grantee, unless he could hold by prescription. The confirmation leaving the title precisely as it was before, and being merely a recognition of it by the United States, it cannot alter the legal rights of parties claiming under or adversely to that title, or change the law of evidence in relation to it

The distinction between perfect and inchoate titles has been carefully preserved in the Acts passed by Congress for the adjustment of titles and claims to land in Louisiana. The Act of 1805, which those passed subsequently have followed, provides that every person claiming lands by any complete French or Spanish grant, may, and every person claiming under an incomplete French or Spanish grant, or by virtue of settlement and cultivation, shall deliver to the Register of the Land Office a notice in writing, stating the nature and extent of his claim; thus making it optional to apply for the confirmation of complete grants, and recognizing their binding force upon the Government without it. The same section requires parties claiming under complete grants, as well as others to which it refers, to deliver to the Register, to be recorded, the original grant or patent, together with the warrant or order of survey, and the plat. The object of this provision was to ascertain which lands had been separated from the public domain by the former Governments, and no penalty is attached to it; while the Act provides that if any person claiming by virtue of any incomplete French or Spanish grant, ox-under settlement or cultivation, shall neglect to deliver the notice of his claim, and cause the evidence of it to be recorded in the Register’s Office, all his rights shall become void, and forever thereafter be barred, and his title shall not be admitted as evidence in any Court of the United States against a title derived from the United States. Statutes at large, page 326.

Incomplete titles, like settlement and cultivation, were mere cqxxities, and the Government had the right to say in what manner they should ripen into perfect titles, and to establish a limit beyond which those equities should cease to have effect. The confirmation was the title, and inured to the benefit of the party to whom it was made. But in cases of complete grants, the confirmation is not the title, and in ascertaining- the rights of parties claiming under them, it must be laid out of view.

It has been urged that at the time the sales to Zaehariah Smith and his brother are alleged to have been executed, verbal sales of land were authorized, and that there is evidence in the record from which verbal sales may be implied. This might perhaps be the case if actual and continued possession by the purchasers had been shown; but in default of possession, the evidence relied on by the plaintiff to support the alleged sales, is not such as a court of justice can act upon.

The plaintiff has failed to make out his case, and the judgment must be in favor of the defendants for that portion of the land claimed beyond the two hundred and thirty-six arpents and two-fifths, covered by Bernard’s patent. The plaintiff claims under it as far as the back lines of the tracts fronting on the Mississippi River; but he has failed to show the existence and position of that line at the time the patent issued, while it is proven by the defence that the front tracts were not granted for eight or ten years after its date. There was no fixed and known boundary of the^ront tracts at the date of the grant, by which the quantity it specifies can be controlled. The patent itself is silent in relation to that boundary, and only specifies the front with such a depth between parrallel lines as will give two hundred and thirty-six and two-fiths superficial arpents. The defendants are entitled to retain all beyond that quantity.

For the land covered by Bernard’s patent, we can make no final disposition of the case in favor of the defendants. It is now as it was in the case of Williams et ais. v. Biddell, an outstanding- title, and as such a bar to his recovery. The present defendants in interest were plaintiffs in that case, and had sued Biddell for the same lands. Biddell set up the outstanding title of Berna/rd. There was judgment for the plaintiffs in the District Court, and they caused themselves to be put in possession under it. Upon a devolutive appeal subsequently taken, the judgment was reversed, and Biddell ordered to be quieted in his possession to the full extent covered by the outstanding title. Why Biddell has not caused the judgment to be executed, has not been explained; but his rights are not affected by the delay; no length of time can deprive him of the writ of possession to which the judgment entitles him. This is his only remedy.

It is ordered that the judgment in this case be reversed.

It is further ordered, that for the two hundred and thirty-six arpents and two-fifths, of the land covered by the patent of Felia: Berna/rd, there be judgment against the plaintiff as of non-suit.

It is further ordered that the defendants be quieted in their possession and title against the claims and pretensions of the plaintiff, to all the land claimed bv him, situated between the prolongation of the side lines of the Bernard grant, beyond the extent for which it calls, and the rear line of the grants on the Mississippi River as the said lino now exists.

It is further ordered, that the plaintiff pay costs in both Courts.


author: Dunbar, J.

text:
    The State of Louisiana v. Cazeau & Blanchard.
    There is no objection to the insertion of several offences of the same nature in an indictment in separate counts, though differing from each other in degree and punishment, wjien these offences arc all felonies.
    The right to compel the prosecutor to elect on which charge he will proceed, is confined to cases where the indictment coutains charges which are actually distinct, and which grow out of different transactions.
    The term felony means a crime of great magnitude, and subject to an infamous punishment—death, or imprisonment at hard labor.
    In an indictment against several, where the offence is such that it may have been committed by several—they are not of right entitled to be tried separately—but are to be tried in that manner only when the Court on sufficient cause, may think proper.
    The Supreme Court cannot review, in criminal cases, the acts of a Judge of the first instance, resting in his discretion.
    In an indictment against several, each defendant is entitled to his peremptory challenge. This is not a right to select, but a right to reject—and no one defendant can complain that jurors not challenged by him, have been challenged by a co-defendant.
    The improper reception of parol evidence offered by the State, of the contents of a policy of insurance, is cured by the subsequent introduction of the policy by the defendant.
    It is a general rule that whenever the credit of a witness is to be impeached by proof of anything that he has said, declared, or done in relation to the cause, he is first to be asked, upon cross-examination, whether he has said, declared, or done that which is intended to be proved, in order that he may have an opportunity of explaining that which is prima facie contradictory.
    The title of an Act cannot control the plain meaning of the words in the body of the Statute.
    Appeal from the First District Court of New Orleans, Lrn'ue, J.

      Soule & Bcm’ton, for appellant.
    The Indictment contains two counts:
    lsí Gounb:—For preparing combustibles for setting the building on fire :

      %d Count:—For actually setting fire to and burning that building:
    In both counts that building is described as being “occupied as a mansion house by the said Pierre Gazeau.”

    ASSIGNMENTS OF ERROR WITH COMMENTS THEREON,
    lsi Bh’-ror.—The refusal of the District Judge, either to require the District Attorney to make his election upon which of the two counts the defendant Gazeau should be tried, on account of the misjoinder and duplicity of counts, or to quash the whole indictment therefor.

      Acts of 28, p. 38.—The 1st section of the Act of February 21, 1828, (under which this indictment was framed,) punishes the malicious setting fire to a mansion house, &c., with death.

    The 2d section of that act punishes the preparing and placing combustibles, with intent to set fire to such mansion house, &c., with imprisonment at ha/rd labor for a term of between 10 and 15 yeevrs.

    There are but two classes of crimes at Common Law, which fall within the definition of felonies; they are,
    1st. All such as are punished capitally ; or
    2d. All which involve “ a forfeiture of lands and goods,” &c. All other offences at Common Law are misdemeanors only.
    Now in Louisiana we have no criminal offences punished by “ a forfeiture of lands and goods,” and consequently we have no crimes deemed felonies at Common Law, except such as are punished by death.

    It follows, that this indictment charges a misdemeanor in the first count, and a felony in the second; and the question raised by the rules referred to is, can they bejoined?f
    Avoiding details, we think the negative of this proposition is irrefutably maintained in the references and quotations wre now cite:

      Arch. Grim. Proceedings, p. 60.—“A defendant ought not to be charged with different felonies in different counts; as for instance, mwder in one count, and a burglcm'y in the other; or a burglary in the house of A. in one count, and a distinct burglary in the house of B. in another,” &c.

      IMd Gl.—“So upon an indictment for robbery, and for an assault with an . intent, Sc., in different counts, the prosecutor must elect upon which he will proceed.”
    If then distinct felonies cannot be joined in distinct counts, it must be inferred a fortiori, that felonies and misdemeanors cannot be joined.
    The junction of even mere misdemeanors in the same indictment, is specially restricted to the contingency, that each of them demand the same judgment.
    3 Term Rep. 98,10G, 4GG. 3d Maulé & Selwyn 639. 8th East 4G. 2 Burr. 984. 2d Cwmpbell 181.—“Indictments for misdemeanors may contain several counts for different offences, provided tiie judgment upon each be the same.”
    It is seen above, that a count for robbery could not-be joined with a count for an assault with an intent to rob, Sc.; and nothing can be surer in criminal pleadings, than that a count for murder may not be joined with one for an assault with an intent to hill; and why?
    Simply for this:—That when the whole offence aimed at, has been actually committed, the intent to aommvit it, is thoroughly merged and absorbed in its actual accomplishment, and constitutes therefore, not only a main element of the principal charge, but of the punishment allotted to it.
    In the case at bar, the 2d count charged that Gazeau's house was actually set fin'e to and burnt, and the verdict responsive to this charge, and convicting him of the fact,—officially informs this Court that the house was thus set fire to and burnt.

    If Gazeau procured and placed the combustibles, &c., and was present at the burning, that made him a principal to the arson; and if he procured and placed them, but was not present at the burning, that made him an accessory before the fact; and as the Act of March IS, 1818, subjects all accessories of this class to the same penalties denounced against the principals, in neither conjuncture could ho have been prosecuted for the misdemeanor, when the proofs, if reliable at all, must have merged the misdemeanor in the felony, and have convicted him of that.
    There is an English case most strikingly applicable on this point:
    2d. East Or. Lam 1031, Isaac's case. John Isaacs was indicted for a misdemeanor at Common Law, in setting fire to and burning the house he himself occupied, Sc., and it being admitted, that several other persons houses adjoining were also burnt, Mr. Justice Butter said:
    “ If other persons houses were in fact burnt, although the defendant might only have set fire to his own, yet, under these circumstances, the prisoner was guilty, ip at all, of felony, the misdemeanor being merged ; and he could not be convicted on this indictment, and therefore directed an acquittal.”
    This decision was made in 1799, and of course before the 43d George III. (1803,) which being specially designed for the protection of Insurance Offices, made the burning one's own house, a felony.

    The absurdity of such a junction of counts, was strikingly exemplified in the finding of the jury against the defendant Blanchan'd. The only direct proof of his agency, was that he brought the combustible matters to Gazeau's house, and was present and concurring when they were placed and set on fire. If the jury believed the ivitness, (who was Herráis, and acknowledged himself an accomplice,) then they should have convicted him as a principal in the arson; and if they disbelieved him, they should have acquitted him altogether. This latter alternative they would doubtless have agreed on, had they not found a safety-valve in the first count, to let off and compromise their scruples and differences touching Blanchard's guilt or innocence under the second count.
    2d Ei'ror. The Court’s refusal to sever P. Gazeau from his co-defendants, and award him a separate trial, on the grounds set forth. He charges his co-defendants with a conspiracy to take his life, under the forms of law, for a crime of which they alone are guilty; and with a purpose (as one of the means thereof) of depriving Gazeam of his right to “an impartial jury of the vicinage,” by maliciously challenging such jurors as he should accept, and as capriciously accepting such as he (Gazeau) should peremptorily challenge.
    In most joint prosecutions, as experience attests, no motives exist for severing the trials of co-defendants; and their interests being joint and mutual, no serious difficulties could arise in selecting a jury acceptable to all.
    But if their interests conflict, or (what amounts to the same) if the parties think that they do, and they cannot or will not agree in the selection of jurors, what is to be done ?

      If co-defendants in a criminal prosecution must agree in their peremptory challenges, or lose their right to them, as in civil cases, nothing could be easier than to impannol a jury for their trial.
    But if each citizen has a right under the Law and the Constitution to challenge peremptorily twelve of the jury, and an equal right to be tried by such of the jurors upon the list whom the State has not challenged either peremptorily or for cause, then, in the conjuncture just stated, a joint tidal is plainly impossible, and the State must sever or not try at all.
    But this matter may be more appropriately noticed under the next head:
    3d Error. The Court’s refusal to direct or permit the several jurors to be sworn and impannelled, as set forth in detail in Bill of Exceptions, B.
    This paper explicitly shows in detail that no less than twelve jurors, (not one of whom had been challenged by the State, either peremptorily or for cause, and each of whom had been accepted by Fieire Gazeau,) were excluded from the pannel by the Court, against his consent, and for the reason that they were peremptorily challenged by his co-defendants Blanchwrd and Blanc.

    From the same paper it appears, that of these twelve jurors, Blanchard challenged five, and Blanc seven.

      Becordp. 15.—Now it appears of Record, that Blanc and Herráis were discharged from the prosecution at an early stage of the trial, and made witnesses of in behalf of the State, so that the State had the benefit of the seven peremptory challenges of Blame, in addition to its own; and of course Gazeau was to that extent prejudiced in making choice of his jury.
    Nor was that the worst of it; for as Blanc was discharged before the State’s testimony was closed, of course his discharge was not the result of any exculpatory testimony of his own, and as we must suppose, that the Attorney for the State was fully aware, of all the proofs he could adduce in the State’s behalf, it is a fair inference that the discharge of Blanc was a foregone conclusion of the District Attorney before the impanelling of the jury commenced; and if so, must ab initio have known that Blanc could have no just right whatever to intermeddle with, or to thwart Gazea/a or Blanchard in their efforts or their rights to obtain a jury of their choice.
    However this may have been in the case at bar, nothing can be surer than that the State, if armed by the judgment of this Court with the power of linking and holding in the same prosecution and trial, persons hostile and hateful to each other, must reap undue and extraordinary advantages, through their clashings and collisions, in their choice of a jury for their joint trial.
    At all events, it is patent upon the record in the case at bar, that Gazeau stood in an attitude of distrust and hostility to his co-defendants, and that through them peremptory challenges, added to those of the State, the prosecution had an advantage against him, in the choice of a jury of eighteen peremptory challenges, against his twelve, though the Statute restricts the State to six!
    A very serious objection to this consolidation of persons in the same trial, where they stand in militant relations to one another, may be exemplified in the delicate and embarrassing attitude in which the respective counsel of the militant co-defendants may be placed.
    There ai'e members of the bar (and Gazeau’s counsel are of them,) who could not be induced by any recompense to prosecute, as private counsel, a citizen upon a charge involving his life.
    Now, it was past a doubt that Ocmau's house had been actually burnt, and that it had been willfully done by somebody, and as his co-defendants had acknowledged before the Recorder, their agency in the doing of it, it became the very gist of his defence to maintain his own innocence, by devolving the guilt on them. To do this effectually, might require his counsel to join the State in prosecuting- his co-defendants for then- lives. To do it ineffectually, might subject them to the reproach of doing- loss than their duty towards their client.
    It is not complained of at all, that the District Judge allowed to each of the prisoners, his right of peremptory challenge within the limits prescribed by law. These are moans provided by law, to secure that “ impartial jury” which the Constitution guarantees to every citizen charged with a crime, &c.
    But the right of peremptory challenge is not more invaluable to the citizen, or more essential to the securing of that “ impartial jury,” than the right to be tried by such jurors as he accepts, after the State has waived or oxausted its rights of challenge.
    Neither the Constitution nor the laws countenance any limit or qualification to eacli citizen’s right to be tried by the jurors of his choice, except so far as the right of challenge peremptorily, or for cause may interfere therewith. Beyond this, the right of acceptance is as peremptory, as absolute, and as exclusive as the right of challenge itself. Neither the Court, and still less an imputed accomplice, can deprive him of jurors xvhich the State has spared to his choice, and the Constitution and laws have allowed him. If this right of acceptanee interferes with a co-defendant’s right of challenge, and neither will give way, that only proves that they cannot be rightfully and lawfully prosecuted together, and that the trials must be severed. This is all, but that is indispensible, if each is to be secured in their constitutional and legal rights respectively.

      át/i Error. The Court’s receiving, and refusal to exclude from the jury the testimony of J. M. Lapeyre, (the Px-esident of the N. 0. Insux-anfce Company, a witness in behalf of the State,) to prove that OaeeaM had insured the property, together with the contents of the policy of insurance, without the production of the original, or a duplicate, or an authentic copy thereof.
    The objections taken to this testimony were:
    1st. That as the indictment charged no intent to defraud the Insurance Company, the proof was wholly irrelevant to the issue under trial; and if it had been relevant,
    2dly. It was but secondary and inferior proof, until the absence of the policy and the official books of the Company had been satisfactorily explained and accounted for.
    The principles of law trenched upon in this ruling of the District Court, are too familiar and incontoslible to need a special reference to authouritics, and we shall cite none.
    True, the Judge a quo assigns two reasons for this decision, at the foot of the Bill of Exceptions.
    The 1st. is: That the testimony was admitted to prove “ the malice or ill de - sign of the party, &c.”
    The reply to this is, that it is no answer at all to the objection that the defrauding the Insurance Company was not charged in the indictment, nor therefore in issue; and if it were, it is no answer at all to the other objection, that it was but secondai-y testimony.
    The 2d. point is, that the policies were afterwards introduced by the parties, &c.
    The obvious reply to this is, that it is no answer to our objection at all, inasmuch as it is altogether ex post facto, a mere after thought, in assigning- a reason for making a decision, which had no existence whatever at the time that decisioxx was made. We are consti-ained to add, that we protested at the time, as we protest now, to the foisting into the record by the arbitrium of the District Court, a more fact, which, under the limited jurisdiction of this lion. Court in criminal causes, was a matter wholly in pais, unless brought into the record by a Bill of Exceptions.

      5th Error. The Court’s refusal to admit in evidence the duly authenticated original of the affidavits and testimony taken before the Recorder, of such of the witnesses as had been examined on this trial, together with that of the co-defendant Blanchard, as set forth in the Bill of Exceptions, D.
    The objects stated for offering these proofs were:
    1st. To contradict and discredit such of the witnesses whose testimony had been taken both before the Recoi-der, and on the trial of the cause, through the discrepancies maxxifest upon a comparison between them.
    2d. To establish through the same pi-oofs, (in connection with that of Blanchard,) the existence and character of that conspix-acy against Gazeau, which had been charged in the rule taken, and the affidavit theretofore made by him.
    We think we need cite no authority upon this point.
    REFERENCES :
    1st Mor. Digt. 302.—As to the Louisiana law of Arson, see Act of May 4th, 1805, sections 3, 6, 33, 48, and Kerr’s Exposition.

      Ibid. 384.—Act of Febx-uary 22, 1817, sections 4 and 5.

      Ibid. 388.—Act of March 12, 1818, sections 8, 9 and 12.
    Acts of 1828, p. 38.—Act of February 21, 1828, sections 1 and 2.
    Acts of 1329, p. 104.—Act of 1829, section 1.

      DEFINITION OF ARSON AT COMMON LAW.
    4th Black. 220; 3d Chit. Orim. Law, 530, 32, 33; 2d Russ. 422, 25, 32, 4; 2d East Or. Law, 1014, 15, 22, 3, 5, 6, 31.
    Indictments at Common Law and under statute for Arson: 3 Chit Crim. Law, 535, 6, 7, 8, 0 and 340, 1—15. 463.
    As to date of Common Law, see 2d Blade. Com., p. 31.
    As to the'-definition of Felonies, see 4 Black. Com., 94 to 96.
    Johnson, Attorney General.

      Error 1.—There is no law to support this assignment The preparing combustible materials, and the setting fire, are parts of the same act The former is included in the latter. A man may be found guilty of< manslaughter who is indicted for murder or for assault and battery, though indicted for an assault with the intent to kill; or for an assault with intent to kill, though indicted for an assault with intent to murder. The punishment in all these cases is different, and ranges from death to simple imprisonment or fine; and if a person can be found guilty, under such indictments, of the lesser offence, it certainly can bo no objection to an indictment, that, in different counts, it sets out both. What the jury is authorized to find, cannot be wrong in the prosecution to charge: State v. Stouderman, 6 An. 286. In the case of The State v. Crosby et al., it was held by this Court that a count for larceny may be joined, in the same indictment, with one for receiving stolen goods; and it is good doctrine in England and the United States, that It is no objection-to an indictment that several offences of the same nature, though differing from each other in degree, and varying in punishments, are charged in separate counts: 2 Hale, 173; Ohitty C. L. 253; Wharton C. L. 106.
    This being the case, there was no ground for the motion to quash the indictment for misjoinder and duplicity of counts, and none, consequently, for that to compel the District Attorney to make his election upon which of the two counts Caneara should be tried.
    The right of election is confined to cases where the indictment contains charges which are actually distinct, and which grow out of different transactions. But when several counts are inserted in an indictment for the purpose of meeting the evidence as it may transpire on the trial, the charges being for offences technically of the same nature and substantially the same, the right of election is never allowed: Wharton, 109. To fortify his position, the able and
    ingenious counsel for Caneau affirms that, at common law, a joinder of a felony and a misdemeanor, in separate counts of the same indictment, is bad, and then contends that the offence of preparing combustible materials for setting fire to a building, at common law, is a misdemeanor, because not punishable here, or in England, with death. The reason of the English authority was, that in an indictment charging a felony and a misdemeanor, the defendant would be deprived of a copy of the indictment, a special jury, &c. This reason has no force in this country. And jin the States it has been generally held that felonies and misdemeanors may be property joined when relating- to the same subject matter: Wharton, 108, and authorities cited. But, preparing combustibles to set fire to a building is punishable with imprisonment at hard labor in the penitentiary, and it has been decided that the term, felony, has no precise meaning-in this State, the forfeiture of lands and goods which characterized it in England, having been abolished; and that it is understood to denote a crime of gi-eat magnitude, and subject to an infamous punishment—death or imprisonment at hard labor: Slate v. Sarrtigm, 6 An. 405.

      Error 2.—The refusal of the Court to award a separate trial to Caneau, from his co-defendants, was a matter entirely within the discretion of the Judge before whom the case was tried. He did not think a sufficient showing for a severance had been made, and refused it. No matter of law, from which an appeal lay, was involved in his ruling, any more than if it had been an application for a continuance. . This Court will not, therefore, revise the decision of the Court of the first instance touching this point State v. Jaalcson, 6 An. 593 ; State v. Bradley, 6 Ann. 555. *

      Error 3.—The counsel for the accused seem to labor under a strange hallucination on the subject of the prisoner’s rights. They think ho has a right to choose a jury, when, on the contrary, he has only a right to challenge. If the doctrine contended for be true, it would be impossible, in any case admitting of peremptory challenges, to try two or more persons at the same time. If one challenges a juror, that juror cannot sit in the trial, and if another has the right to insist that the challenged juror shall sit, it is evident that no jury could over be formed. The truth is, if the District Judge erred at all in this matter, it was in the interpretation ho gave the law regulating challenges, which allows “the defendant or defendants twelve peremptory challenges.” The words of the law are not clear whether, when several are tried together, the whole or each shall bo entitled to the twelve. But the Judge, contrary to the former practice of the Court, gave to each twelve challenges. The accused certainly cannot, with grace, complain of this act of favoritism. Acts 1837, 49, 1.

      Error 4.—The testimony of Lasseps was to a fact which, in this case, it was competent to prove by oral testimony; but, before the bill of exceptions was submitted to the judge, the prisoner himself had proved the same fact by the production of his policy. It can certainly bo no ground of reversing the judgment, that the same fact was proved by both parties, and by each in a different way.
   Dunbar, J.

The defendants were jointty indicted on two separate counts— one for maliciously preparing combustible matters with intent to sot fire to a building, occupied as a mansion house, and the other for maliciously setting fire to and burning the same building.

The jury found Blanchard guilty upon the first count, and CazeaM on the second, without capital punishment. The District Judge, in conformity with the verdict, sentenced Gazcav, to har’d labor in the State Penitentiary for life, and Blanchard to the same punishment for the term of ton years ; from which judgment they have appealed to this Court.

There have been numerous assignments of error made for the defence, which wo shall proceed to notice in their order.

First. The refusal of the District Judge to quash the indictment, or to require the District Attorney to make his election upon which of the two counts the defendant Gwzeau should be tried, because of the misjoinder and duplicity of the counts.

This was only a matter of prudence and discretion which rested with the judge to exercise ; for, in point of law, there is no objection to the insertion of several offences of the same nature in an indictment in separate counts, though differing from each other in degree and punishment, when these offences are all felonies. In most of the States it has been held that, even felonies and misdemeanors may be properly joined when relating to the same subject matter. The right to compel the prosecutor to elect on which charge he will proceed, is confined to cases where the indictment contains charges which are actually distinct and which grow out of different transactions. Wharton, Criminal Law, 106, 108, 109 ; 2 Hale, 173 ; Chitty’s Criminal Law, 1 vol. 253. Both the of-fences charged in the indictment are felonies. What we understand by the term felony, is a crime of great magnitude and subject to an infamous punishment—death or imprisonment at hard labor in the Penitentiary. The State v. Paul Lartigue et al, 6th Ann. 405.

Second. The refusal of the District Judge to award a separate trial to Gazeau from his co-defendants.

In an indictment against several, when the offence is such that it may have boon committed by several, they are not, of right, entitled to be tried separately, but are to be tried in that manner only, when the Court, on sufficient cause, may think proper. It seems that where several defendants, entirely disconnected in the transactions through which they are sought to be convicted, are jointly indicted, it would bo sound exercise of discretion to grant them separate trials. Wharton’s Criminal Law, GGG. Wo, howovor, cannot review, in criminal cases, the acts of a Judge of the first instance, resting- in his discretion. State v. Hunt, 4 Ann. 439.

- Third. That the District Judge did not permit Gazeau to accept jurors that were peremptorily challenged by the other defendant.

Under the statute of 1837, twelve peremptory challenges are allowed to the defendant or defendants in all criminal prosecutions in this State for any crime or crimes, the punishment of which may be imprisonment at hard labor for a term of twelve months or more.

It is clear that each defendant has his peremptory challenge. The right of peremptory challenge is not of itself aright to select, but a right to reject jurors, and no one defendant can complain of challenges by a co-defendant. 2 Ilale’s Pleas of the Crown, 268 ; United States v. Marchant, 12 Wheaton, 480; Wharton’s Criminal Law, 666.

Fourth. That the Court received the testimony of the President of the New Orleans Insurance Company, a witness on the part of the State, to prove the contents of a policy of insurance without the production of the original.

It appears from the bill of exceptions, signed by the Judge, that the defendants themselves afterwards introduced the policy itself in evidence, which we think cured any error which might have been committed in the introduction of-parole proof of its contents.

Fifth. That the Court refused to admit in evidence the deposition and affidavits of witnesses taken before the recorder or committing magistrate, to contradict and discredit their testimony on the trial before the Court.

This evidence was properly rejected by the Court, upon the ground that the credit of these witnesses could not be thus impeached, because no questions had been asked of them about their depositions or affidavits when on the stand.

It is a general rule that whenever the credit of a witness is to be impeached by proof of anything that he has said or declared, or done, in relation to the cause, he is first to bo asked, upon cross examination, whether ho has said or declared or done, that which is intended to be proved, in order that he may have an opportunity of explaining that which is prima facie contradictory. Starkie on Evidence, part 2, p. 146; part 4, p. 1753. Besides this, it is stated in the bill of exceptions by the Judge, that the recorder had not made a full examination of the witnesses before him, but had merely taken down in writing what he conceived to be the substance of their testimony.

Sixth. The defendants, after having established by proof that the State House of Louisiana had been destroyed by fire in January or February, 1828, and that the journals of the Senate and House had been wholly lost or destroyed at the same time, offered the Official Gazette, called the Argus, containing the proceedings of the Senate and House of Representatives of Louisiana, for the purpose of showing that the Act of the 21st February, 1828, entitled an Act to amend the Penal laws of this State -was, in its inception in the Senate, entitled an Act to amend the Penal law's of this State relative to the punishment of the crime of Arson. The object of introducing this evidence in behalf of the. defendants, was stated to bo, for the purpose of showing that the entire and exclusive object of the Act of February 21, 1828, on its introduction and up to the moment that the 3d and 4th sections wore added thereto in the House of Representatives,-was to change alone the punishment prescribed in the 4th and 5th sections of the Act of February, 1817, entitled “ an Act supplementary to an Act entitled an Act for the punishment of crimes and misdemeanors,” and to leave all else of those sections in full force and effect.

We do not think the Judge erred in the rejection of this testimony.

The Act of 1828 is in these words: “ Whenever a free person shall be convicted of having maliciously set fire to a mansion house or other building, or to a vessel or other water craft, the person thus convicted, shall suffer death.” The title of this Act cannot control the plain words in the body of the statute, and if the Act of the 21st February, 1828, had passed without any change in its oi'iginal title, the words in the body of the statute are too plain to admit of doubt. In the case of the United States v. Fisher et al, assignees of Blight, 2 Cranch. 358, Chief Justice Marshall said: “ On the influence which the title ought to have, in construing the enacting clauses, much has been said; and yet it is not easy to discern the point of difference between the opposing counsel in this respect. Neither party contends that the title of an Act can control plain words in the body of the statute ; and neither denies that, taken with other parts, it may assist in removing ambiguities. When the intent is plain, nothing is left to construction. Where the mind labors to discover the design of the legislature, it seizes everything from which aid can be derived; and in such case the title claims a degree of notice, and will have its due share of consideration.” In the Act under consideration there is no ambiguity.

Seventh. That the Court charged the jury “ that when the Court charged specifically as to what the law was, they were bound implicitly thereby, and to receive, construe and to apply the law, as they were instructed by the Court.”

We do not consider ourselves called upon in the present case to decide upon this highly important question, as the defendants do not complain of any instructions that were given to the jury by the District Judge upon any questions, of law. If, therefore, the Judge erred on this point, it could not have caused. any injury to the defendants. See the case of the State v. Brette, 6th Ann. 658.

Eighth. That the District Judge refused to charge the Jury, that if they believed, from the evidence, that the mansion house, mentioned in the indictment, and the other property, described by the witnesses as having been consumed at the fire, was the hona fide and lawful property of Gazecm himself, and that he was in the rightful and exclusive possession and occupancy of the same, at the time that the fire took place, and that no house or building of another had been burned or set on fire, or was designed to have been burned or set on fire by the said Gazecm—that then, under the laws of Louisiana, he is not liable to conviction upon either count of the indictment.

From the opinion wo have just expressed upon the plain words and meaning of the Act of the 21st February, 1828, entitled, an Act to amend the penal lavrs of this State, we can nave no hesitation in saying that the District Judge did not err in refusing to give the instruction asked for.

Under the Act of the 22d February, 1817, it was provided: That if any person or persons shall willfully and maliciously set fire to, or burn any dwelling house or other building of another, the offender or offenders, on conviction, should be sentenced to an imprisonment at hard labor. See Moreau’s Digest, 1st vol. p. 384. But the Act of 1828, which we have already quoted, extends the crime of Arson to the malicious setting fire to a mansion house, or other building, even if it should bo the property of the person who commits the of-fence, and increases the punishment to death, which is mitigated, however, by a subsequent law, that permits the jury to bring in a verdict of guilty, without capital punishment, and the Judge to pass sentence of imprisonment for life, We have no doubt about the intention of the Legislature, or the proper construction of this law of 1828.

It is, therefore, ordered and decreed, that the judgments of the District Court against the defendants he affirmed, w'ith costs.


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    John L. Lobdell v. The Union Bank of Louisiana and John L. Lewis, Sheriff.
    Plaintiff made opposition to the sale of two slaves, seized by Lewis, Sheriff, in the suit of the Zfiiion, Bmxh v. Hereford, in the District Court of East Baton Rouge, in which Court he claimed damages against the defendants—alleging the slaves to be his property. Defendants excepted to the jurisdiction, on the ground that their domicil was in New Orleans.

      By the Court. The plaintiff’s claiming title to the slaves seized, the opposition was properly made by petition to the Court from which the order issued, as required by Article 898, of the Code of Practice; and Article 400, of the same Code, expressly provides, that if the sale has not been enjoined, the opposition shall not prevent the Sheriff from selling the property under seizure, but in such case he shall be personally responsible for all damages which the sale may occasion the intervening party, anil the Sheriff shall have his recourse against the party who has obtained the seizure.
    When the Sheriff sells property, to the sale of which opposition has been made, the opponent can recover the property from the purchaser. His claim against the Sheriff is for the damages which the sale may have occasioned him—not for the value of the property sold.
    APPEAL from the District Court, Sixth District, Parish of East Baton Rouge. Robertson, J.
    The above statement of facts is taken from the opinion of the Court. The suit was commenced by petition. In the suit of the Union Banin v. Hereford and wife, in wdiich the seizure was made, no opposition wras made by the plaintiff. In this suit an Injunction was prayed for but not ordered.

      Lobdell, in propria persona, and Beale, were counsel of record in the District Court, for the plaintiff.
    No counsel seems to have appeared for the plaintiff in the Supreme Court.

      Denis, for the defendant and appellant.
    Had the Bank the right to seize slaves mortgaged to them by Gharries M. H Myott anterior to the year 1839, as they have done, is the only question on the merits of this litigation.
    The plaintiff, John Lobdell, alleges that- these slaves are his property and have been in his possession for many years. He complains of the seizure and claims damages from the Bank and from John L. Lewis, the Sheriff. He has not thought fit to file a third opposition in the suit of the Bank v. Hereford, hut for reasons best known to himself, he has preferred to bring an original and direct action in damages against the Bank and the Sheriff. He was at liberty to do so, but what he had no right to do, I believe, was to bring his suit against the Bank, out of the jurisdiction of the Parish of Orleans, whe're is by law and in fact, located the said Bank’s principal establishment.
    A special exception to the jurisdiction of the Sixth District Court for the parish of East Baton Rouge, was filed by the Bank and by Lewis, Sheriff of the parish of Orleans.
    These exceptions were over-ruled by the District Court. It is a difficult matter to understand, on this-point, the reasoning of the Sixth District Judge.

      I will, therefore, not attempt to combat it. I will merely state, that accord-big to the well known rule of our law, every one must be sued in the place of his domicil or residence; a corporation has a domicil as well as an individual, and the petitioner has taken the trouble himself, in his petition, to inform the Court that the Union Bank is located in the city of New Orleans, and that John L. Lewis is the Sheriff of the city and parish of New Orleans.
    There are some few cases specified by law, in which, contrary to the general rule, persons can be sued out of their domicil, but the present case is not one of them.
    It is clear that the Sheriff of the parish of Orleans is the officer of all the Courts of the State of Louisiana, and when ordered to execute an order from a District Court, he is amenable before that Court, by rule taken in the suit, in which the order issued, for not proceeding or for proceeding- wrong. But if the party aggrieved does not choose to proceed against him, in the suit, out of which the order issued, and prefers to bring an original action in damages against him for his acts, then the original suit ought to be brought at the domicil of the defendant
    The same rule will apply to the Bank, certainly after it has caused to be issued, the order of seizure in the case of the Bamlo v. Hereford, and the two slaves John Qwrry and Tom Hall had been seized, Lobdell might have formed his third opposition in said suit, to establish his title to the slaves, and then compel the Bank to join issue with him according to Art. 398 of the Code of Practice, but no where do we see that a third opponent has any other right but to establish his title to the thing seized, or his better right to be paid out of the proceeds of the thing sold. If he wants anything else he must proceed as any other suitor in law.
    C. P. Art. 399 provides that at the request of the third opponent the Court may enjoin the Sheriff not to proceed to sell the property thus claimed, provided such third person give security to be responsible for all damages, &c.
    Art. 400 says “that if the third person who has intervened in the suit (always contemplating that the intervention of the third opponent must he in the original suit, and not a separate suit) has not enjoined the sale of the property of which he claims the ownership, or has failed to furnish the surety required, his opposition shall not prevent the Sheriff from selling the property under seizure, but in such case the Sheriff shall he personally responsible for all damages which the sale may occasion to the intervening party, and the Sheriff shall have his recourse against the party who has obtained the order of seisure. If the opposition be sustained, the sale made by the Sheriff shall be null.”
    This means, in my humble opinion, that if security has not been given, and no injunction has issued, the Sheriff is not before the Court; he is no longer to be dealt with as Sheriff. He is personally responsible; it becomes, on his part, a personal debt; ho must be sued in damages. Whore ? Certainly, as every other person, at his domicil.
    The whole tenor of the section treating of the third opposition, in the Code of Practice, indicates that such opposition must be filed in an original suit, and is not of itself an original suit.
    Art. 345 says, that “ this opposition is a demand brought by a third person not originally a party in the suit,” but who, of course becomes a party by his opposition.
    Finally, if an opposition, a tierce 'opposition, is filed, it must be in the original suit. That opposition can only be for the causes specified in the Code of Piactice. If the party seeks damages, or any other remedy, he must then sue by an ordinary action, at the domicil of the defendant.
    I believe the Court will feel no hesitation in reversing the judgment of the District Court, and in dismissing the case for want of jurisdiction in the Sixth District Court.
    If, however, it be otherwise, the case is not a doubtful one, on the merits.
    In the case of Shillman v. Purnell et al, 3 Louisiana Reports, p. 495, Judge Porter says : “ The Code of Practice, which gives the right to third parties to oppose an execution, limits that right to those cases where the person making the opposition is the owner of the thing-, or has a privilege bn it. All other rights, if any such there be, which the party may possess, must be exercised by an ordinary action. They furnish no ground for this mode of relief.”
   Rost, J.

(Slidell, J., dissenting.) The plaintiff made opposition to the sale of two slaves, seized in his possession under an order of seizure and salo, at the suit of the Union Bank v. Hereford and wife, on the ground that they were his property, and that the Bank has no right thus to proceed against them, he claims from the Sheriff and the Bank the damages sustained by reason of the wrongful seizure.

The defendants excepted to the jurisdiction of the Court of the parish of East Baton Rouge, on the ground that, although the writ issued from that Court, it was directed to John L. Lewis, the Sheriff of the parish of Orleans, who executed it, and any claim for damages against him must bo brought in the Court where he exercised his functions.

We are of opinion that there is no error in the decree over-ruling the exception. The plaintiff claiming title to the slaves seized, the opposition was properly made by petition to the Court from which the order issued, as required by Article 898 of the Code of Practice; and Article 400 of the same Code expressly provides that, if the sale has not been enjoined, the opposition shall not prevent the Sheriff from selling the property under seizure, but in such case he shall be personally responsible for all damages which the sale may occasion the intervening party, and the Sheriff shall have his recourse against the party who has obtained the order of seizure.

The sale not having been enjoined, the slaves seized were sold, and the right of the defendant to recover damages from the Sheriff in this suit, if the seizure was unlawful, rests on that express provision of law.

On the merits, tho order of seizure issued on two mortgages of Favrot & Joyce, in favor of the Union Bank, and an act of mortgage by Hereford and wife, also to the Union Bank, containing an assumption of tho mortgage of Fmrot & Joyce, and also of a mortgage consented by Charles H. Hiot in favor of the same institution.

The slaves seized in this case are found in none of the acts of mortgage upon which the order of seizure was granted. They are stated to be two of the slaves originally mortgaged by Miot; but there is no certified copy of that mortgage in the record, and its existance is denied by the plaintiff. Considering, as urged in behalf of the defence, that there are facts and admissions in tho record from which its existence may be implied, there is nothing to show that it was authentic and had been properly recorded, and until that showing was made, tho Bank could not proceed by the via execwtica, and the order of seizure and sale was unadvisedly granted without it.

As to the remedy of the plaintiff, Article 400 of the Code of Practice, already cited, provides that if the opposition be sustained, the sale made by the Sheriff shall be null. The law considers all purchasers as affected with notice of the opposition, and the only right it gives to the party making it, besides that of being indemnified for the damages which tho sale may have occasioned him, is to bo restored to the possession of the property, as if no sale had taken place. The value of the property sold forms no part of the damages for which the Sheriff is liable, and the judgment condemning him to pay that value is erroneous.

The plaintiff not having asked to be restored to the possession of the slaves, we can make no final decree on this part of the case.

The slaves seized were taken from the plaintiff on the 16th May, 1851, nearly two years ago, and are shown by the evidence to be valuable men. Taking into consideration this and other facts in the record, we do not consider the allowance of $400 damages, made by the District Court, as being excessive.

It is ordered, that the judgment in this case be reversed. It is further ordered, that the plaintiff recover from the Sheriff, John L. Lewis, the sum of $400 and the costs of the District Court.

It is further ordered, that John L. Lewis recover from the Union Bank of Louisiana the sum of $400 and the costs of the District Court,

It is further ordered, that the plaintiff pay the costs of this appeal, and that his right to recover the slaves Tom Hall and John Carrey be reserved.

       EustiSj 0. J., recused himself, being a stockholder in the Union Bank.


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    Wright, Williams & Co. v. McFall et al.
    Where the first and second of a hill of exchange were both accepted, with the knowledge and consent of the drawers, and without fraud or collusion between the holders and acceptors, the drawers will be bound on both.
    Appeal from the District Court, Tenth District, Perlcins, jr. J.

      Pubose, for plaintiffs.

      Ciarle and Short & Parham, for defendants and appellants.
   Dunbar, J.

The defendants being sued on their accepted bill of exchange, duly protested for non-payment, resist its recovery on the ground that they had paid the second bill of the same set to another party after it had been also protested.

There was judgment in the Court below in favor of the plaintiffs, and the defendants have appealed.

It appears that the defendants drew two bills of exchange, being a first and second, payable eight months thereafter, to the order of one of the defendants, who was a member of their commercial house; that the latter endorsed them, and that they were both accepted by <?. Pur he & Co., the drawers, that they were left with them and were both subsequently negotiated and fell into the hands of third persons, bona fiHe holders. The defendants, in their account with the acceptors, received credit for the proceeds of the two acceptances before their maturity. Both acceptances were protested at maturity, but the second bill was paid by the acceptors after their failure, and the first bill forms the subject of the present suit.

We de not understand that it is usual to accept more than one of the same set of exchange; but if such a course be pursued, as was done in the present case, with the knowledge and consent of the defendants, without any fraud or collusion shown between the holders and acceptors, the drawers who have received the proceeds or who have otherwise authorized the negotiation of the bills must be held bound on both of them. However unusual or irregular the transaction, they cannot visit with loss this irregularity upon third persons acting in good faith.

The judgment of the District Court is, therefore, affirmed, with costs.


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    William Adams v. Routh and Dorsey.
    Where, in a judgment rendered, the amount is left in blank in the record, the appeal will be dismissed.
    A testator can leave to his concubine only movables to the value of one-tenth of his estate.
    An heir cannot contest the validity of a legacy, when sufficient remains, after payment of the legacy, to pay him the full amount of his interest in the succession.
    Appeal from the District Court, Tenth District, PerTcins, jr., J.

      Stacy & Sparrow, for plaintiff.
    The emancipation of a slave is the .donation of an immovable. Prudence v. Berudi, 1 Lou. R, 241. A concubine can only take a tenth of the estate, C. 0. 1468 ; 6 Lou. R, 387. “Illegitimate, colored bastards are not permitted to prove their paternal descent, but it may be proved against them.” C. 226; Jung v. Dorieourt, 4 Lou. 177; SoMnnet v. Verdan, 14 Lou. 544; Gompton v. Prescott, 12 Rob. 71.

      Shaw, for defendants.
    The emancipation of a slave is the donation of his value. 1 Lou. 241.
   Rost, J.

This is an appeal by John South and Samuel W. Dorsey, executors of Wm. Adams, jr., from so much of the judgment, rendered in this case, as annuls and declares void the provision in the will of Adams emancipating the slave Nancy, and bequeathing her a sum of money, the watch and furniture of the testator. John South has also appealed from a judgment rendered against him individually, but as the amount for which the judgment .was rendered, is left in blank in the record, and we have no means of supplying the defect, that portion of the' appeal must he dismissed.

The plaintiff and appellee has prayed that the judgment be amended in his favor, by setting aside two legacies of $1000 each to two bastard children of the testator, which the District Court has allowed, on the ground, that the legatees had not been legally emancipated, and if they had been, that the aeknow-' lodgment of the father in the will is insufficient to give them capacity to take the legacy.

The right of the plaintiff to oppose the emancipation of the slave Nancy is undeniable. He is the forced heir of the one undivided fourth of his son’s estate, this slave included; and may, as such, contest the validity of the testamentary disposition under which she claims her freedom.

It is proved that the testator had lived in open concubinage with this woman, and under the disposition of Article 1468, he could only give her movables equal in value to one tenth part of his estate. Admitting that the emancipating a slave by will should, in favor of liberty, be considered not as the donation of an immovable, but as a donation to the slave of his own value, yet that value must not exceed the disposable portion. Nancy is valued in the inventory at $1000, and the property which legally belonged to the testator, without including her, at $4750. The disposition is, therefore, excessive, and as it cannot be reduced, the District Judge properly set it aside.

The appellee is entitled to receive one-fourth of the entire succession of the testator, and to enforce a partition of it in kind or by licitation, as the case may he ; but as after he has received his share sufficient assets will remain in the hands of the executors to pay the legacy of $1000 to each of the children of the testator, he has no interest or standing in Court to contest the validity of those legacies; and as the residuary legatees have Hot prosecuted their appeal from the judgment, it must remain undisturbed.

It is ordered, that the appeal of John South individually be dismissed.

It is further ordered, that the judgment be otherwise affirmed, with costs.


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    Succession of Elihu Cresswell.
    It clearly results from the will of OressiveU that, in the absence of his universal legatee, the testator intended to give his executor the seizin of all his property.
    The statute of 1837 is highly penal, and when, under it, an executor is dismissed, and compelled to pay 20 per cent, he will not be deprived of his commissions.
    Appeal from the Fourth District Court of New Orleans.

      Wolfe & Singleton, for the executor and appellant.

      Sozier, for the opponent and universal legatee.
    ELIHU CRESSWELL’S WILL.

      Slate of Louisiana, Gitnj of New Orleans. Whereas the uncertainty of life is great, and is not left to the time and choice of human beings, I do herein declare this to be my last will and testament. I do herein will the freedom of my man servant Gabriel, whom I acquired by inheritance from mjr father’s estate, and the sum of fifty dollars to him for long and faithful services, that he may acquire his freedom in the slave States, or be sent to the free United States of America, as he may desire.
    And I do moreover hereby will and decree the freedom of all slaves that may belong to me at the time of my death, and that the slaves shall be sent to one of the free States of the United States of America, and there liberated: and their names shall bo registered in the Court as free persons, no longer to be held in bondage; and I wish the expense of such removal to be paid, first out of any moneys or assets that may belong to me; and in case there is no assets, that the slaves shall work at wages until a sufficiency is obtained to remove them as above directed.
    My executors shall appoint some trustworthy man to attend the removal of the slaves,, who shall receive the expenses and a just compensation for the removal of the slaves to the free States.
    And I further will and bequeath all the remaining of my estate to Mrs. Sarah Gresswell, my beloved mother, and in case of her death, to the heirs of her body. And I do wish that my friends, John E. Oolwell, ( Galdtoell,) of the firm of Edgill, Mulford & Go., and Mr. L. E. Simons, attorney at law, both of this citjq shall act as executors to carry out this my last will and testament.
    I would will my body to a respectful burial. My soul belongs to the Supreme Being, and I with pleasure submit to his will.
    I have written this will and testament in a state of sound mind, and hope no mortal man will interfere with it.
    This done this second October, 1848. ELIHU CRESSWELL.
   Rost, J.

The appeal in relation to the claim, made in behalf of the slaves of the testator in this case, for the wages earned by them since his death, has been discontinued and the claim waived.

There is no error in the allowances made by the District Judge for counsel fees and executors commissions. We concur in his opinion that there was no necessity for employing two counsel, and we consider the compensation allowed a fair remuneration for the services rendered.

We think it clearly results from the will, that in the absence of his universal legatee, the testator intended to give his executor the seizin of all his property. It is contended that he forfeited-his commissions, because he did not keep the funds of the succession in Bank, as required by the Act of 1837. He was dismissed by the Court on that ground—was made to pay 20 per cent, interest on the funds of the succession in his hands, and would have been adjudged to pay special damages, if any had been proved. The statute of 1837 is highly penal, and there is no warrant of law for increasing the penalties it imposes, and depriving executors of their commissions under it. As, however, the executor was dismissed through his own fault, before the succession was fully administered, and any disposition had been made of the testator’s slaves, the District Judge very properly refused to allow the commission on their appraised value. Whether the new executor will be entitled to receive it, in case the slaves are sent out of the State, if the heirs object, is a question not before us.

It is ordered, that the judgment, so far as it reduces the counsel fees paid by the executor from $2000 00 to $1200 00 and the executors commissions from $1033 15 to $785 65, be affirmed, with costs.