text:
    The State v. Patrick Langton.
    An execution cannot be enjoined upon grounds which might have been pleaded before judgment.
    A party bound to appear at court to answer a criminal prosecution, will notbe released from a judgment of forfeiture on his bond, upon the ground that the court adjourned before the usual time of the term expired.
    The entrance of a nolle prosequi discharges a judgment previously entered against the accused on a forfeiture of his recognizance bond.
    APPEAL from the District Court of St. Charles, Duffel, J. The judgment of the district court was as follows: “ The defendant in this case, Patrick Langton, obtained a writ of injunction to stay the execution of a writ of ji. fa. issued on a judgment of this court forfeiting a bond furnished by the defendant to secure his appearance in court to answer a charge of assault and battery.
    “ The injunction was applied for on the ground: 1. That the party accused had compromised the matter before judgment of forfeiture. 2. That defendant had the whole term of the court to make his appearance, which term, by usage, is to. last six days, but that the court was adjourned on the third day of the term. The answer to the petition for an injunction is a general denial, with a prayer that the demand be dismissed, with costs.
    “It is admitted, that the term of the district court in this parish is usually one week; that when the court adjourned, there were two cases undetermined on the docket. It is furthermore admitted, that when the bond was forfeited, the parties had compromised, but that the district attorney had not been apprised of the same.
    “As to the first ground it cannot avail the party, for the rule is that nothing which occured before the judgment was rendered, which could have been set up as matter of defence to the suit, can furnish grounds for issuing an injunction against its execution; but the writ must be based upon matters which arise since the rendition of the judgment. Campbell V. Briggs, 3 R, R. 111. Ben

      ton v. Roberts, 8 N. S. 513. 8 L. R. 104, 273. The bond was forfeited in strict conformity of the act of 11th March, 1837. Bullard & Curry’s Digest, p. 281, sec. 1, which directs that the district attorney, on the second day of the term, or any other day thereafter, shall call all persons who may have entered into any bond, recognizance, &c. for their appearance in court, and also to call on all the sureties to produce instanter in open court, the person of such defendant, and upon failure to comply therewith, the court shall forthwith enter up judgment for the amount of such bonds, <fcc., which judgment, at any time during the same term of the court, &c., may be set aside upon the appearance, trial, and acquittal or conviction of the party accused.
    “Now the law does not limit and fix the duration of the terms of courts in the Fourth Judicial District; but merely declares'when each term shall commence in each parish of the district, (Acts of 1848, p. 126,) and the usage invoked grows out of the fact that usually there is business to occupy the court one week; but when such is not the case, the court adjourns as soon as the business has been absorbed. It could hardly be expected that the court would meet and adjourn from day to day merely to await the pleasure of a defendant, who, as in this case,- was legally declared to be in default. This leads us to the inquiry, has the defendant placed himself within the provisions of the law he now invokes 1 That is, has he appeared during the term of the court, which he contends was six days? The fact that the court was no longer' in session, did not exempt him from making his appearance and delivering himself up to the sheriff.
    “ From this view of the case, it is ordered, adjudged and decreed, that the writ of injunction issued in this case be dissolved and set aside; that the sheriff do proceed with the execution of the writ of Ji. fa. enjoined by said injunction, and that the costs of these proceedings be paid by the plaintiff in injunction.”

      Isaac Johnson, Attorney General, for the State. H. St. Paul, for the appellant.
   The judgment of the court was pronounced by

Preston, J.

The defendant wos accused of assault and battery, and gave bond and security to appear before the District Court for the parish of St. Charles on the fourth Monday of March, 1850, being the first day of the ensuing term of the court, to answer to the charge, and not to depart until discharged according to law.

On Tuesday, the second day of the term, informations were filed against the defendant; he was called upon his recognizance, failed to appear, and judgment of forfeiture was entered against him and his surety for the amount of their bond and costs.

On Wednesday, the third day of the term, the judgment was signed and the court adjourned sine die. Execution was issued against the defendant, which he enjoined on the grounds which, we think with the district court, were not tenable, for the reasons he has assigned. Indeed, we have doubts whether an injunction should be issued by the courts against the execution of a judgment rendered in favor of the State.

It appears, however, that the defendant had compromised the assault and battery of which he was accused with the prosecutor, although the compromise had not been brought to the notice of the district attorney. The 3d section of an act approved the 6th of April, 1843, authorizes the parties in cases of assaults and batteries and misdemeanors to compromise, and renders it lawful for the attorney general and district attornies in such cases, to enter a nolle prosequi, provided all costs are paid. p. 61.

At the ensuing term of the district court, the accused appeared and brought to the notice of the court and the district attorney, the compromise he had made with the prosecutor and offered to pay all the costs. The district attorney must have been satisfied with the compromise, for he entered a nolle prosequi in the case. Although the statute rendered it lawful for him to do so, he was by no means obliged to enter the nolle prosequi if he thought the public interest required a prosecution.

We must, therefore, conclude that the accused presented himself and was ready to submit to a prosecution if deemed necessary on behalf of the State, and that the proper officer, with the leave of the court, discharged him from the same. Under the circumstances, we think the entry of the nolle prosequi was a release of the bond and its forfeiture. The court still had the whole case under its control. The bond was taken to secure the effectual prosecution of the accused. The compromise of the offence in pursuance of law, and the dismissal of the prosecution by the district attorney for that reason, satisfies the law and accomplishes the whole object of the bond. The case is not distinguishable in principle from that of the State v. Hamill, lately- decided in this court. Ante p. 257.

It is therefore ordered, adjudged and decreed, that the injunction obtained by the plaintiff be dissolved, and that the judgment of the district court be affirmed with costs. But it is further ordered and decreed, that the judgment of forfeiture of his bond against the accused shall be satisfied, on his paying all the costs of the prosecution against him.


source: Caselaw Access Project

author: Preston, J.

license: Public Domain

text:
    Benjamin Glasscock v. McRae and Sharp.

      One partner against whom a separate judgment has been recovered, is an incompetent witness for the plaintiff to prove the indebtedness as against the other partner.
    from the District Court of Livingston, Stirling, J.

      G. W. Waiter-son, for plaintiff.

      T. A. Bartletle, for defendant.
   The judgment of the court (Slidell, J., dissenting,) was pronounced by

Preston, J.

The plaintiff instituted suit against the defendants, as partners in a sawmill. He propounded interrogatories to Sharp, whose answers were favorable to his claim; and judgment was rendered against him separately for the amount admitted to be due. McRae prayed for a jury; and on the trial the plaintiff offered Sharp as a witness, who was rejected as incompetent on the ground of interest. The plaintiff excepted to his rejection. A verdict and judgment was rendered against him, and he has appealed.

The plaintiff does not pretend that he has made out his case against McRae ; and only contends, that the cause should be remanded for the reception of the testimony of Sharp.

To be competent, our code declares that the witness must be neither directly nor indirectly interested in the cause. If judgment should be rendered against McRae, and the plaintiff should recover the amount from him, Sharp would be exonerated as to the plaintiff, and McRae could recover but half the amount from him. So, if the plaintiff recovered from RcRae but half the amount, Sharp would be so far exonerated without any liability to McRae. He was, therefore, clearly interested in the plaintiff’s success in the suit, and was properly rejected as an incompetent witness.

The case of Ellis et al. v. Lame et al., 4th Ann. 245, is analogous in its circumstances, and conclusive on the point.

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

Judge Slidell dissents from this opinion, referring to 3d Ann. 64.


author: Slidell, J.

text:
    W. W. George, Curator, v. T. R. Roach.
    The principal, that when a purchaser, who has received possession from his vendor, buys afterwards an outstanding and superior title, and thus perfects the title, the second purchase will enure to the vendor’s benefit so that his liability as vendor will be restricted to the amount so expended, is not applicable to acase where the vendor never had possession and where he was aware of the adverse title and knew he was selling what belonged to another.
    APPEAL from the District Court of Caddo, Olcott, J.

      Crain, for plaintiff.

      J. Garrett and B. L. Hodge, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

A lot of ground in the town of Shreveport was sold to Roach at a probate sale by George, curator, and the vendee gave his notes for the price. Being sued upon them, he resisted the action upon the ground that the succession of Sprague was without title; and claimed a rescission of the sale. There was a judgment for the defendant in the court below, and the plaintiff has appealed.

It is proved that at the date of the probate sale, the title was in a third person, from whom Roach subsequently purchased the same piece of ground. This third person, and those under whom he held, had been in possession for many years. The succession of Sprague never had possession, nor had Roach, until he received it from this third person. It is clear, therefore, that there was a failure of the consideration of the notes given by Roach.

But it is said, that Roach, having purchased the adverse title, is only entitled to be relieved from the payment of his notes up to the amount which he expended to acquire it.

In the case of Pepper v. Dunlap, we recognized the highly equitable doctrine, that when a purchaser, who has received possession from his vendor, buys afterwards an outstanding and superior title, and thus perfects and quiets the defective title and the possession which he received from his vendor, the second purchase will enure to his vendor’s benefit, so that his liability as warrantor will be restricted to the amount so expended.

But the equity cannot be invoked in the present case; for the succession never had and gave no possession, and it is shown, by the curator’s official acts, that he was aware of the outstanding title, and knew he was selling what belonged to another.

Judgment affirmed, with costs.


text:
    State v. Henry Stouderman.
    The domicil of the husband is also the domicil of the wife, and she has the right to call upon the police to protect her from violence even against her husband.
    The police officers, tor the purpose of preventing a felony or even a breach of the peace, may enter the dwelling house of the accused in the night time without a warrant and. arrest him, provided his conduct was such at the time as to justify the belief that the perpetration of a felony or breach of the peace was intended^
    Where the accusation of a crime includes an offence of an inferior degree, the jury may dis-
    charge the defendant of the higher crime and convict him of the minor one; hut several offences created by different statutes cannot be embraced in one count.
    On an indictment for an assault with the intent to commit murder, the jury may find the accused guilty of an assault with intent to kill.
    APPEAL from the First District Court of New Orleans, McHenry, J.

      Isaac Johnson, Attorney General, for the State.
    T. W. Collens, for the appellant.
   The judgment of the court was pronounced by

Preston, J.

The defendant was indicted for an assault with intent to commit the crime of murder; was convicted of an assault with intent to kill; was sentenced, and has appealed.

He relies for a reversal of the judgment against him on the following bill of exceptions: “ Be it remembered, that on the trial of this case, after evidence and arguments of counsel, the accused, by his counsel, prayed the court to charge the jury as follows: 1. That the watchmen and police men of the city of New Orleans had no right forcibly to enter the private dwelling of a citizen in the night time, without a warrant, for the purpose of ai'resting and conveying him to prison, for the past commission of a misdemeanor, or under the apprehension that he might commit a misdemeanor. 2. That the report or declaration of a wife in the street, declaring that she feared that if she returned to the marital domicil, her husband might shoot or kill her, did not, in law autborize watchmen or policemen forcibly to enter the pi’ivate residence of a resident citizen for the purpose of arresting him and conveying him to prison, without a warrant. 3. That should, in such a case, the officers enter said domicil, and then attempt to arrest the person complained of while he was quietly at supper, he has a right, after asking for their warrant, warning them not to advance upon him, informing them that in case of violence he would kill the agressor, and after retreating from room to room, and after his retreat was cut off, should the said officers (some of whom were armed with heavy clubs) forcibly attempt to take him, he had a right to oppose force by force, in defence of his domicil and person. 4. That it was only in case of persons caught in the actual or an impending commission of “ felony,” or of pursuit by hue and cry, that officers of the law could forcibly enter or break into a private domicil for the purpose of arresting an offender in the night time. 5. That the prisoner being charged under the 24th section of the act of 4th May, 1805, it was necessary that the circumstances which would amount to murder iri law, except the death should exist in order to authorize the conviction under said statute, and that should the facts, in case of death, only have amounted to manslaughter, the prisoner could not be convicted under said statute.

“Which charge the court refused to give in the said terms; but the court charged as follows: On the first point, that if the jury were satisfied that the wife of the accused represented to the police officers that her husband had threatened and attempted to take her life, and that he was armed with a knife or some other dangerous weapon, and still persisted in his threats to kill her, or do her some great bodily harm, that said police officers, for the purpose of preventing the commission of a felony, or even a breach of the peach, might enter the house of accused in the night time without a warrant and arrest him, provided his conduct was such at the time as to induce the belief that the representations of his wife were well founded. As to the second point, the court refused to give instructions required of it, for the reasons given in the instructions of the first point. As to the third point, the court charged the jury that if they were satisfied that the accused knew the persons who entered his house were police officers, and had been induced by the representations of his wife to come to his house to prevent a breach of the peace, it was the duty of the accused to submit to the police officers, and not to oppose them with violence ; for that if the police officers transcended their duty the law afforded an ample remedy, and it was his duty to seek that remedy, and not to attempt to take the law into his own hands. Upon the fourth point, the court instructed the jury that if, in the night time, the attention of the police officers were'directed to a house in consequence of the cry of murder, or any other alarm calculated to produce belief in the mind of a reasonable person that a high crime was about being committed, in the opinion of the court, it was the duty of the police officers to enter forcibly, if necessary, to prevent the commission of the crime and quail the disturbance. As to the fifth point, the court charged as requested, except that they might find him guilly of assault with intent to kill, should they be satisfied that he was guilty. To which refusal, and to said charge as given, the counsel took this his bill of exceptions, which is signed by the court. ' (Signed) John McHenry, Judge.”

The first charge required was of a very'gen eral character, and might nothave had a precise application to the case. It was the duty of the prisoner’s counsel to have shown by his bill of exceptions, that he asked for instructions to the jury that would have had a material bearing on his case; and that he did not require the court to charge the jury upon abstract principles of law. The district judge supposed the precise case, we are bound to presume, which the prosecuting attorney contended he had fully established by evidence; and if the jury believed the facts supposed were true, the charge was clearly legal and appropriate. So, if the counsel of the accused had distinctly stated the facts he contended the evidence established, and then required the court to charge the jury, that if they believed those facts, the prisoner might lawfully have assaulted with intent to kill, in defence of his dwelling house or person, the violater of either, it would have been the duty of the judge to have instructed the jury whether those facts were or not a justification in law of the acts charged against the accused. But there was not this precise application to the case on trial in the charge required on behalf of the accused.

If the facts admitted in the second charge required, occurred in the night time, as the whole case indicates, and were accompanied with the qualification which the judge supposed, that the conduct"of the husband was such at the time as to induce the belief that the representations of his wife were well founded, the judge was right in refusing the instructions required. The domicil of the husband is the domicil of the wife; she is entitled to enjoy it in peace and tranquility. The city watch were established peculiarly to preserve peace and tranquility in the night time when warrants cannot be procured from the magistrates to arrest peace-breakers. The report of the wife, that her peace was actually disturbed in the night time, when the offices of the magistrates were closed, and her life endangered in her own domicil, was sufficient to justify the officers in entering the house with her to protect her from violence in her domicil. And having ascertained that the peace was disturbed, and her life in danger, it was their duty to arrest the husband and convey him to the guardhouse until the matter could be investigated by a magistrate, as required by the act of 1834, and by ordinances of the council. It cannot reasonably be denied that the facts, as stated, amounted to a disturbance of the peace; and the 7th section of this statute expressly authorized the guard to arrest without warrant a person caught in the act of disturbing the peace. Even at common law, it is well settled, that a constable may arrest any one for a breach of the peace in his presence, and keep him in his house or in the stocks until he can bring him before a magistrate. Archbold, 445. 1 Hale 487. Dalton says, the power may be exercised even for the prevention of a battery.

¥e are inclined to think, that the instruction on the fourth point, as asked, and as given, differ only in words and the manner of giving the charge. It is not pretended on behalf of the State, to justify the arrest, that a felony had been actually committed, nor that the prisoner was pursued by hue and cry for felony. Now, his counsel admits, that to prevent the impending commission of a. felony, the officers might forcibly enter a private dwelling in the night time for the purpose of arresting the offender. Under our laws the term felony has not a precise meaning as at common law, the forfeiture of lands or goods having ceased to exist. The judge therefore used the term high crimes in its stead, and stated, that if the alarm given was calculated to produce a reasonable belief that a high crime was about being committed, it was the duty of the police. officers to enter the house, forcibly if necessary, to prevent the commission of the crime, and quell the disturbance.

v'Now, there is abundant authority that a constable may arrest a man about to commit any act which would manifestly endanger another’s life, and detain him until the intent be presumed to have censed. Arch. 446. East, in his Pleas of the Crown, vol. 1, p. 306, says: It seems clear, that if one menace another to kill him, upon complaint thereof to the constable forthwith, he may, to avoid the present danger, arrest the party, and detain him till he can conveniently bring him to a justice of the peace. If so, the law must certainly justify the means necessary to make the arrest, as the forcible entry of a dwelling house. Indeed, it was expressly held, that any one may justify the breaking and entering a party’s house, and imprisoning him, to prevent him from murdering his wife, who cries out for assistance.- 2 B. & B. 260. This authority belongs to all peace officers such as watchmen, patrols, beadles, constables, bailiffs, justices of the peace, sheriffs and coroners, and is peculiarly intrusted by our statute and ordinances to watchmen in the night, because the danger is more immiment and the means of obtaining a warrant more difficult. The intention of our Legislature cannot be mistaken in providing for the police of our city, which is the resort in winter of such a vast concourse of heterogeneous population.

And in this whole case it is to be borne in mind,- that the house was the house of the wife as well as of the husband, into which she had the same right with him to introduce the means of protecting herself from danger when he ceased to afford that protection, and especially when his conduct became the cause of her danger. In carefully considering the instructions of the district court* we find nothing in them not warranted by law. The interpretation given of the legal powers of the city guard is indispensable to the energetic performance of their perilous duties, so necessary to the tranquility of our city and the protection of individuals.

It is lastly contended that the prisoner was prosecuted under the 24th section of the act of 1805, for an assault with intent to commit the crime of murder, and as the facts did not justify his conviction under that statute, he should not have been convicted of an assault with intent to kill, which is prohibited, not by the statute under which he was prosecuted, but by the 4th section of an act approved the 7th of February, 1829. The same acts which amount to a violation of the first statute when done with premeditation constitute an assault with intent to kill alone, if done without premeditation, and are punishable under the last statute.

It is a general rule of the common law, that where an accusation of a crime includes an offence of an inferior degree, the jury may discharge the defendant of the higher crime and convict him of the less atrocious. Thus, upon an indictment for murder, he may be convicted of manslaughter; accused of grand, the offence may be reduced by the verdict to petit larceny; prosecuted for robbery or burglary, he may be found guilty of theft alone. So, on an indictment on a statute, the defendant may be found guilty at common law in England.

Now, all crimes and offences in this State are made so by statute, and in their prosecution are to be governed by these principles of the common law. We have a statute against assaulting with intent to murder, and a statute against assaulting with intent to kill; and there is no reason why the principle should not apply that in prosecuting for the higher, which includes the lesser offence, the juiy should not acquit of the former and convict for the latter.

It was proper for the district attorney to prosecute under the first statute, believing with the grand jury that the accused was guilty of an assault with intent to murder. The petty jury, not being able to find premeditation and malice, were bound to acquit the accused under that statute, but still might well find him guilty of an assault with an intent to kill, under the last statute. Thus there is a statute against murder and another against manslaughter.' No one ever doubted that in a prosecution for murder under the first statute, the accused might be found guilty of manslaughter under the last. The case is precisely similar in principle with that before the court. No confusion was ever produced by convictions for manslaughter under prosecutions for murder. So the confusion apprehended by the prisoner’s counsel, by convictions for assault with intent to kill under prosecutions for assaults with intent to murder, will not occur.

This general proposition is true, that several offences, created by different statutes, cannot be included in one count. But when the crime prohibited by one statute is greater in degree and includes the crime punished by the other statute, the greater crime denounced in a single count necessarily embraces the pi'osecution of the lesser crime, for which therefore the accused may be convicted under the count.

And the conclusion of the indictment must be against the statute in the singular, and not against the statutes in the plural; because, if the accused is guilty of the greater crime, the statute punishing it embraces the whole offence and merges the violation of the other statute; whilst if he did not commit the greater offence he violated only the statute against the lesser. In either case, the conclusion against the statute was the only proper conclusion of the indictment.

It is therefore decreed that the judgment of the district court be affirmed, with costs,


text:
    Pierre Uzureau v. J. Mignolet.
    Material men and workmen are incompetent to prove for each other in a suit against the owner of a building that he paid the contractor by anticipation, and that consequently he is liable to them for the materials and work done.
    One cannot be a witness tor others to create or increase a fund, to a portion of which the witness will himself be entitled.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      L. Castera, for appellant.
    C. Dufour, Watts and Spring, Le Gardeur, V. Burthe, J. Livingston, David, Latour, Grivot, Mellaerts, for appellees.
   The judgment of the court was pronounced by

Slidell, J.

A contract by notarial act and duly recorded was made between Uzureau and Mignolet, by which the latter agreed to erect certain buildings for the former. A small sum was paid in cash at the date of the contract, and the residue was to be paid in installments at various stages of the work. The third installment was to be paid when the floors should be laid and the roof finished. Mignolet performed part of the work; but after receiving the third installment made default. Uzureau was consequently obliged to employ others to finish the building. Mignolet contracted large debts for supplies of materials and for work, and hence the present controversy between Uzureau and Mignolet’s creditors. In the pleadings they charge fraud on the part of Uzureau in the making of the contract; but this is alleged in a vague and obscure manner, and we think the district judge did not err in refusing to hear evidence respecting the inadequacy of the price stipulated in the contract, which was offered with reference to that charge. Upon this branch of the case we may remark that the contract between Uzureau and Mignolet was unquestionably a real contract; and if Mignolet chose to undertake the work at too low a rate, it shows that he was imprudent, and that Uzureau made a bargain which would have been an advantageous one to himself if Mignolet had fulfilled it; but we are at a loss to understand how such inadequacy of price can be deemed a fraud upon those who, with the contract before them, choose to furnish materials, &c., to the contractor. It will also be observed that the creditors affirmed the contract, and claimed under it by notices pursuant to the act of 1844.

The question upon which the controversy mainly turned in the court below was, whether at the time when Uzureau paid the third installment the flooring was laid and the roofing finished. In order to establish that the work at the date of that payment had not been completed to the extent specified in the contract, the defendants offered as witnesses four of themselves, namely, McHugh, Gardue, White and Tonglett; and notwithstanding the objection made to their competency on the ground of interest, they were received by the district judge, with the reservation, as stated in the bill of exceptions, that “ the testimony thus objected to was not received by the court to support the claims of the several witnesses giving the testimony, but only in support of the claims belonging to others than the witnesses so testifying.” The testimony of these witnesses as given tended to establish the fact which they were offered to prove. The judgment of the court below was in favor of the defendants. The reasons assigned and the judgment were as follows: “The price of the contract between the plaintiff and defendant was $12,000, Upon this contract the defendant has given receipts on account to plaintiff, which cover the first three installments, say $6400: but one of these payments appears to me to have been made by anticipation, and therefore not chargeable as against material men and workmen, whose claims were attested and notified in conformity to the law of 1844. I therefore credit plaintiff for $4400 cash paid defendant on account of his contract. To this sum is to be added $5165 89, which it cost plaintiff to finish the houses after defendant had abandoned the work. I also add $900, for ninety days demurrage under the contract — defendant having been duly put in default on the 2d October, 1849, and the work being only completed on the 1st January, 1850. The aggregate amount of these three items is $10,465 89, which deducted from the price of the contract ($12,000)'leaves a balance of $1534'll, to be divided pro rata among the following material men and workmen, who have proved their claims: 1. B. F. Burthe. 2. White and Tonglelt, for the use of Lyon. 3. Nicholas Tliclc. 4. Widow Tronchin. 5. T. Hacker. 6. Allen Hill. 7. Hepouilly 8f Co. 8. Hayman and Holden. 9. John Brown. 10. John McHugh. 11. Edward Gardere. 12. Gardere's saw mill. 13. Blois and Fortier. 14. Mrs. JDelachaise. 15. Boche and Nicolet. It is therefore adjudged and decreed, that the plaintiff Pierre Uzureau pay into court the sum of fifteen hundred and thirty-four dollars an'd eleven cents, to be divided among the intervenors above named pro rata according to the statement A annexed to this judgment. It is lastly ordered that plaintiff pay costs.”

After a careful review of all the evidence adduced at the trial by the defendants, we are unable to say, that if the testimony of the witnesses objected to had been excluded, the residue of the testimony would have been sufficient to sustain the conclusion that the payment of the third installment was premature and consequently void, under the code and the act of 1844, against the creditors for materials and labor. It is therefore indispensable to pass upon the bill of exceptions.

In support of the ruling of the court below the counsel for the creditors has referred to an elaborate note of the American editors of Mr. Phillips’ Treatise on Evidence, vol 2, p. 86, note 84. The authorities there collected do not meet the present case. They recognize the doctrine that in general a mere interest in the question will not disqualify a witness who is not a party in the cause. That if he will not gain or lose by the event of the suit, or if the verdict cannot be given in evidence for or against him in another suit, the objection goes to his credit only, and not to his competency. For example, -in an action by a mariner against the owner of a vessel for wages, another seaman on board the same vessel was considered a competent witness for the plaintiff, although he may have a common interest with the plaintiff in the point in controversy, the objection going only to his credit. So, a person who was connected with the plaintiff in the same transaction out of which the action arose, and who had commenced an action against the same defendant for the same injury, was notwithstanding considered a competent witness for the plaintiff. So it has been held that in an action against one underwriter of a policy of insurance, another underwriter on the same policy may be a witness for the defendant. In short, bias must not be mistaken for interest. . .

But here the object of the testimony was to create, in the very cause in which the witnesses were examined, a general fund in which each witness, being a party in the cause, would participate. The result of their testimony is that the court has decreed that the payment was anticipated and void, and has given them a share in the fund created by the combined testimony of these co-litigants, each of whom had a like interest to produce this result when he gave his testimony. The incompetency on the score of interest seems to us clear.

With regard to the reservation stated in the bill of exceptions, it seems to us a refinement which, if susceptible at all of actual application in the administration of justice, would be dangerous in practice and inconsistent with the spirit of art. 2260 of the Civil Code. We are not aware of any precedent to sustain it.

Judgment reversed, and cause remanded for a new trial; appellees to pay costs of appeal.


author: Eustis, C. J.

text:
    O. and A. Wetmore v. James T. Daffin et al.
    Where a judgment has been obtained in another State and the party plaintiff brings suit in this State for the original cause of action, he must show the invalidity of the judgment previously obtained, or the court will presume it is correct and that the cause of action has been merged in the judgment, and the plaintiff will be non-suited.
    from the Second District Court of New Orleans, Lea, J.

      Durant and Hornor, for plaintiffs.

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

Eustis, C. J.

The plaintiffs allege that John Daffin and James T. Daffin, residing in Florida, partners of the firm of J. and J. T. Daffin, which firm has been recently dissolved, are jointly and severally indebted to them in the sum of $1200, with interest, &c., by virtue of a certain promissory note drawn by said J. and J. T. Daffin, and payable at Tallahassee, Florida, &e. They further allege, that the petitioners obtained judgment against the commercial firm of J. and J. T. Daffin after its dissolution, by service on John Daffin, one of the partners, in the United States District Court of the Northern District of Florida, which judgment is only binding on John Daffin, the defendant; they then allege James T. Daffin to be temporarily within the jurisdiction of the court, and ask for an attachment against his property and for judgment against him under our attachment laws. James T. Daffin appeared by attorney, and judgment was rendered against him for the amount of the note. From this judgment he has appealed.

The defendants having pleaded the general issue, and thus put the plaintiffs on the proof of their case, we think it was incumbent on them to show the invalidity of the judgment as to James T. Daffin, under the laws of Florida. We cannot presume that a court would render a judgment against a party which the law did not authorize. The court may have held, according to the jurisprudence of that State, that such a connexion continued to subsist between the partners as authorized the judgment, or the partner served with process may have entered an appearance for his co-partner under a sufficient authority. A judgment, as asked for by the plaintiff' on the original cause of action, as the matter is before us, might be in direct conflict with the provision of the Constitution of the United States as to the force and effect of judgments rendered in courts of the several States.

The judgment of the district court is therefore reversed, and judgment rendered against the plaintiffs as in case of non-suit, with costs in both courts.


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    George W. Cable et al. v. John Leeds & Co.
    Where a mechanic undertakes to make and deliver a piece of machinery as soon as possible, and actually does deliver the machinery, but7 so defective that it will not answer the purpose intended, he will be considered in default from the time of the delivery of the defective machinery, and will be held responsible for such direct damages as the other party may have suffered from the delay caused by the defective work.
    APPEAL from the Fifth District Court -of New Orleans, Buchanan, J.

      Rosier, for plaintiffs.

      Hunton and Bradford, for defendants.
   The judgment of the court was pronounced by

Preston, J.

The plaintiffs employed the defendants to make a crank for the engine of their steamboat Constitution. The old crank had been broken on her trip from St. Louis to this port. She was advertised to start on her return trip on Saturday evening, the 4th of August, 1851,

The plaintiffs allege and offered testimony to establish an agreement on the part of the defendants to deliver the new crank on that evening. But this allegation becomes immaterial, as in point of fact a crank was delivered on that evening, and the evidence and circumstances establish conclusively that it was to be delivered as soon as possible. The actual delivery of the crank on Saturday evening shows that it was possible at that time.

But the crank delivered could not be used in consequence of being too long, although the old crank had been furnished as a pattern by which it was to be made. The defendants made another and suitable crank in lieu of it; but the evidence shows, and the jury were satisfied, that the boat was detained a day in consequence of the failure to deliver a suitable crank after ample time to do so, as undertaken by the defendants, and that the actual expenses of the master and men caused by the detention of the boat on that account was $83; for which a verdict and judgment was rendered.

These damages were caused directly by the defendants by making a crank that could not be used, and they are therefore responsible for them. Greater direct damages are claimed, but not proved ; also, consequential damages .which! cannot be allowed if proved.

As soon as a reasonable time had elapsed for making and delivering a suitable crank, the plaintiffs might have applied to another foundry for one; and there* fore no damages can be recovered by them except those caused by the detention of their boat the time that was actually necessary to have obtained a suitable Crahk, which the plaintiff's themselves seem to have considered about a day.

The making and delivery of a crank unfit for the use for which it was designed, Was a violation of the contract that a suitable crank should be made and delivered as soon as possible. The defendants, by their failure to do so, put themselves into an irretrievable default for at least one day, and superseded the necessity of being put into default by the plaintiffs.

There is nothing in the decisions of this court in the cases of Bailey v. Stetson et al., 1st Ann. 332, or Allin v. Wills, 4th Ann. 98, relied upon by the counsel of the defendants, adverse to the judgment in this case under its peculiar circumstances.

It is therefore affirmed, with costs.


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    James Holmes v. B. M. C. Brown et al.
    Where no adequate cause is shown for the failure of the appellant to file the appeal in the Supreme Court in due time, the appeal will he dismissed.
    from the District Court of East Feliciana, Burk, J.

      Merrick, for plaintiff.

      Z. S.\Lyons, for defendants.
   The judgment of the court was pronounced fay

Eustis, C. J.

The appellee lias moved to dismiss this appeal. The judgment appealed from was rendered on the 19th of April, 1848. An appeal was taken on the 29th of April following, returnable on the second Monday of February, 1849, and the bond was filed on the 20th-of July, 1848. The appeal was only filed in this court on the 6th of January, 1851; no adequate legal cause has been assigned for this delay.

The appeal is therefore dismissed, with costs.


author: Rost, J.

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    Luc Dobard et al. v. Vincente Nunez.
    Id an action of slander, where it appears that the defendant did not originate the slanderous report, and that he merely repeated it without malice, and it is not shown that the plaintiff suffered any special damage by the report, none but nominal damages should be allowed.
    APPEAL from the District Court of St. Bernard. J.

      Foulhouze, for plaintiffs.

      T. W Collens, for defendant.
   The judgment of the court was pronounced by

Rost, J.

This is an action of slander. The slanderous words are alleged to be,c “ that the families of Martin and Lafrance are colored people.”

The defendant admits the words charged to have been uttered by him; and avers that he persists therein, because they were founded upon probable cause, and uttered without malice. There was judgment against him for $500, and he appealed.

It is not necessary to pass upon the bill of exceptions taken by his counsel to the opinion of the court rejecting evidence offered by him. That evidence is in the record, and we are of opinion that if admitted it would have been entitled to little weight, and could not have changed materially the aspect of the case.

On the merits, the evidence is conflicting; and on the principle that has uniformly guided our decisions in such cases, we cannot reverse the judgment. We think, however, that the-damages allowed are excessive, and that little more than nominal damages should have been given. The defendant did not originate the slander, and evidently acted without malice in repeating it. There is nothing in the record to show that the plaintiffs were in any manner injured by what he said.

It is therefore ordered, that the judgment in this case be amended, and that there be judgment in favor of the plaintiffs for fifty dollars damages, and the costs of the district court; those of this appeal to be paid by the plaintiffs and appellees.


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    P. P. Babin v. John Nolan.
    An heir who sues for a share in the community existing between a deceased sister and her husband, cannot recover the value of what has been consumed in necessary daily use, nor for what was necessary for the continued improvement .and cultivation of the plantation in which he was interested, and in the crops of which he shared.
    APPEAL from the District Court of Point Coupee. Farrar, J. W. B.

      Robertson, for plaintiff.

      George S. Lacey, J. L. Lobdell and S. P. Greves, for defendant.
   The judgment of the court was pronounced by

Preston, J.

This is the ninth time the controversies of these parties as to the succession of Marie Babin, the deceased wife of John Nolan, has been before the Supreme Court. She died in 1841, leaving her brother her sole heir; and her succession consisted of her interest as wife in community in a sugar estate, which her surviving husband administered. In looking back into the litigation of the parties, we do not see anything in the succession peculiarly intricate which ought to have prevented the administrator from settling it within the year, in which it is supposed by the law estates may ordinarily be settled, and for the settlement of which the law allows summary trials without the intervention of juries. Notwithstanding the ten years that have elapsed since the opening of the succession, this case comes up with a new record of near five hundred pages. Under such circumstances we will presume much in favor of the former judgments, and the prescriptions pleaded against the reciprocal demands of the parties. Interest rei publica ut sit finis litium.

The plaintiff, the only heir of the deceased, claims a large sum for half the difference in value of movable property, 'according to inventories made immediately after the decease of his sister, and in 1844, when made for a partition with her surviving husband, and also for the value of property not produced at the second inventory. Much of the personal property first inventoried was of daily use, and necessary for the continued improvement and cultivation of the plantation from which the plaintiff received his share of the crops, and has realized his share of the increased value of the property by improvement. The defendant is not liable for what was consumed for those puiposes, nor for the deterioration by use of what remained. No extravagance in the consumption of the property is proved, or negligence in the use of what remained to be partaken. We think the claim is unfounded.

The plaintiff next claims damages on an injunction bond. The same damages were claimed by him in a former suit. The district court decided as follows: “It is considered that no damages whatever can be adjudged to the plaintiff in execution, which he prosecuted under pretext of a judgment which, contradictorily with him, or rather with his consent, has been annulled by proper authority. Finally, as there are no damages, there is nothing to carry costs.” This claim is therefore bai'red by the exception res judicata.

The next claim of the plaintiff is for the half of two notes, one of Thomas Clark for $2000 and one of Curtis and Holmes for $3000, which he alleges belonged to the community of acquets. The note of Clark is dated after the dissolution of the community, and belongs to John Nolan individually. Curtis and Holmes were non-residents and insolvent; reasonable diligence has been used to realize the debt, but without effect.

He claimed, further, the half of a debt of the community, which he alleged he had paid to the Citizens' Bank, but offered no proof in support of the claim.

He claims, further, half of the value of two slaves, Enoch and Charles, belonging to the community, but which were not produced in the partition. The defendant has proved that Charles was accidently drowned before the partition. He must pay half the value of Enoch, of whom he gives no account by testimony. The district court fixed half his value at $450, and we cannot say his assessment is unreasonable.

The plaintiff claims the hire of the slaves allotted to him in the partition made in 1844. It was allowed to him from the 1st of February, 1842, until the 5th of May, 1847, when he obtained the slaves by a writ of possession, after constant litigation to obtain his interest in the community during the whole period. The prescription of three years, plead against this claim, is applicable to the conventional hire of slaves, and not to the fruits of property detained by an administrator from the heir, who keeps him constantly in default by suits for the property and a settlement.

We think the estimate made and allowed by the district court for the value of the services of the slaves or for their hire greater perhaps than the evidence would justify; but there are equitable circumstances favorable to the plaintiff in this case, which induce us not to scrutinize too closely the estimate of the hire made by the district court.

The defendant by reconvention claims half the debts of the community of acquets amounting to upwards of $40,000, which he alleges that he paid, and that the payments have never been allowed him in all the controversies between him and the plaintiff. It was his first duty, as administrator of the community of acquets, to have paid these debts in 1841; to have filed his accounts with the vouchers within a year after his appointment, and to have had them homologated; and if his claims were not properly allowed, to have obtained redress by appeal.

Whether he paid the debts of which the half is claimed or not, and whether his claim for them has been allowed or not, we find by examining the record that the rejection of his claims for them has not only become the thing adjudged, but that their rejection has been twice adjudged against him. For when the controversies of these parties were the seventh time before the late Supreme Court, the defendant made an effort, as he does now, to have the case remanded for the purpose of having the present claims examined and allowed. After expressing their just surprise that the claims should be again presented, the Supreme Court examined with care the action of the inferior court in two suits in relation to them and the affirmance of the judgments in those suits; and after showing that they had been twice rejected in the lower court, and twice in the Supreme Court, conclude by saying: “ A careful re-examination of the old records has satisfied us that all the money matters existing in controversy between the parties on the previous trials below and before this court, have been finally settled and adjudicated upon by the judgments subsequently affirmed; that the various sums shown to be due to the defendant by the community have been justly liquidated; that those judgments have now the force of res judicata between the parties upon all the subjects therein determined; and that they must have the same .effect upon the account and vouchers, which the appellant having failed to produce and prove in due time, has sought in vain to introduce and investigate in the lower court. We conclude, therefore, that the appellant is now precluded from setting up the pretensions upon which he based his motion, which was overruled by the inferior court.”

The defendant claims the slave Giles, or his value, allotted to the plaintiff in the partition, on the ground that the slave was his separate property. The partition was duly homologated by judgment on the 23d of June, 1845, which judgment was confirmed on appeal by the Supreme Court. The plea res judicata, therefore, bars the claim if it was valid. And to show how reasonable it is to presume much in favor of the settlements already made by judgment, we find what has not been brought to our notice by the counsel on either side, that although the defendant took much pains to. show that the slave Giles was his separate property by the date of the billof sale, yet on examining the old accounts homologated by judgment, that he was paid for out of the crops belonging to the community, and the price allowed to the defendant in accounting for those crops. The parties have litigated so long, that they seem to overlook in the end what was done in the beginning.

The defendant claims damages for the illegal sequestration by the plaintiff of the crop of 1842. None are proved ; which renders it unnecessary to examine the plea of prescription and exception res judicata.ns to this claim.

The defendant next claims damages for the seizure of his property under an execution illegally issued in 1843, and which he successfully enjoined. He claimed damages for the illegal seizure in his suit for the injunction; and the court, in making it perpetual, rendered the following judgment on the claim for damages: “As to the damages claimed by Nolan, the court cannot see the propriety of granting any ; said Nolan having suffered no injury.” Nolan took no appeal, and this claim is therefore barred by judgment.

The only claim of the defendant set up in his demand in reconvention, which appeal's to be tenable, is for half the value of the standing crop sold with the community land in 1844, and purchased by him. It has been decided by the Supreme Court, that the crop of 1844 belonged to the defendant and no part of it to the plaintiff. Much and varying testimony was taken as to the value of that crop. The district judge • had much better means of judging on the subject than we have, and we think has fixed a fair value upon it.

After examining the voluminous case with great care, as is manifest by his judgment, he established a balance in favor of the plaintiff against the defendant of fourteen thousand three hundred and eight dollars thirteen cents; for which he rendered judgment with legal interest from the judicial demand and costs. The interest cannot be allowed because not prayed for in the petition. C. P. art. 157,553'. The claim was so unliquidated that perhaps damages were not allowaable perhaps if claimed.

For the reasons given, it is reversed as to the interest at the costs of the appellee, and affirmed in all other respects.