author: Vooehies, J.

text:
    New Orleans, Jackson and Great Northern Railroad Company v. Thomas B. Lea.
    The certificate of the secretary of an incorporated, company, bearing its seal* affords prima, facie evidence of the facts therein stated. The court is bound to presume, from such certificate, that legal notice was given to the stockholders of the company of a meeting of which they were entitled to be notified. A special tax was imposed in aid of the corporation, the holders of the tax receipts to become stockholders in the company for the amount thereof. Held: That the payment of the tax does not release the stockholders from the obligations contracted by them under the charter. Instalments of the subscription of the stockholders, fixed and required to be paid in by resolutions of the Board of Directors, cannot be regarded as-open accounts, and prescribed against as such. Such instalments may be considered at least as equal to accowits stated.

    APPEAL from the Fourth District Court of New Orleans, Reynold#, J.

      George W. Olui’isty, for plaintiffs.

      W. J. Vason, for defendant and' appellant.
   Vooehies, J.

This suit is brought to recover from the defendant the sum of §1000, amount of his subscription to forty shares of the capital stock of the New Orleans, Jackson and Great Northern Railroad Company.

The action is resisted by the defendant on several grounds, one of which is that the plaintiff, although bearing the same name, is not the same company to whose capital stock he subscribed, but a company since created by a Legislative Act entitled “An Act to incorporate the New Orleans, Jackson and' Great Northern Railroad Company,” into which the former was merged, and the terms, conditions and stipulations of its charter materially altered, by extending it from a limited to a perpetual, corporation, increasing its capital stock from three? to eight millions of dollars, and removing all restrictions upon the powers of the President and Directors, so as to lead to other changes as to the manner of subscribing to and paying for the the- stock and constituting the Board of Directors, &e.

The New Orleans, Jackson, and Great Northern Railroad Company was incorporated under the legislative Act, entitled “An Act for the organization of corporations for works of public improvement and utility,” approved March 11th, 1852. Under the 5th section of that Act, the stockholders of any corporation, at a general meeting convened for that purpose, are authorized- to make any modification, addition, or change in their act of incorporation, with the assent of those representing three-fourths of the stock at such meeting. As that section must be considered as constituting a part of the charter of the company to which the defendant is a party, it is, therefore, binding upon him -r moreover, the 9th section of the charter itself provides, “ that all meetings of stockholders called for the purpose of increasing- or diminishing the capital stock of the company, or for any of the purposes enumerated in the 5th section of the Act of the 12th of March, 1852, shall be composed of persons holding in their own right, or as agents for others, at least three-fourths of the stock of the company, in order to take valid and binding- action in the premises.”

The question then recurs, were the amendments to the charter of the company under the legislative Act of the 22d of April, 1853, assented to or sanctioned by the siockholders ? The evidence shows that at a general meeting of the stockholders of the company, held on the 30th of April, 1853, they were submitted to the consideration of said meeting and sanctioned by the vote of stockholders representing 19959 shares, more than three-fourths of the entire stock of the company, and that none of the stockholders voted against them. But it is objected by the defendant, that the proof on this point is defective and insufficient. We do not think so. The certificate of the secretary, bearing the seal of the company, affords, in our opinion, prima facie evidence of the facts therein stated. Angelí and Ames on Cor., §§635, 679. The onus was, therefore, on the defendant to show the falsity of the certificate in this case, and he has not attempted to do so. It is argued from the fact that the meeting was held only a few days after the passage of the legislative Act, that legal notice was not given to the stockholders of such meeting. We are bound to presume from the certificate of the secretary of the company that such notice was given. We can perceive no good reason why it could not have been done prior to the passage of the Act, the provisions of which the stockholders had doubtless been apprised, previous to their enactment. The objection that the amendments were not sanctioned by the requisite number of votes, appears to us to be equally untenable. The charter provides that, “ the corporation shall go into operation and be organized so soon as shares of stock to the amount of $300,000 shall have been subscribed.” The subscription to stock by private individuals at the date of the trial below, as shown by the evidence, amounted to $617,000, equal to 24,680 shares. At the time of the meeting, neither the State nor the city had subscribed to stock in the company. The Acts autorizing them to subscribe were passed, the one relating to the State on the 28th of April, 1853, and the other to the city, on the 15th March, 1854. There is no proof of any previous subscription either by a parish or municipal corporation under the provisions of the legislative Act of the 12th of March, 1852. Had such subscription existed, the burden was on the defendant to have shown it. The other objection urged in connection with this ground do not appear to us pertinent to the subject-matter in controversy or defence to the action.

The second ground of defence may be considered, we think, as a corollary of the preceeding one.

The third ground urged by the defendant is, that since his subscription a special tax has been levied by the Common Council on his real estate and slaves in the city, for the benefit of the plaintiff, in pursuance of a legislative Act, to be collected annually for twenty years, on account of which he has already paid the sum of $396 50, which he is entitled to have imputed to the payment of any just debt that he may be legally liable to the plaintiff for; and, moreover, that he is discharged from his subscription in consequence of said tax, which he also urges to be illegal and unconstitutional. Under the law and city ordinance, holders of such tax receipts become stockholders in the company for the amount thereof. The stockholders of the company were not, as we are aware of, exempted from the payment of the tax thus levied, nor can such payment have the effect of releasing them from the obligations which they have contracted under the charter. The question as to the legality and constitutionality of the tax is a matter in our opinion which cannot be properly considered between the parties to this action.

The prescription of three years is also interposed by the defendant as a bar to the action. The written contract of the defendant is for the payment of a specific sum of money, to be payable or exigible by instalments as should be required under the terms of the charter, Instalments of the subscription of the stockholders, fixed by resolutions of the Board and required to be paid in, cannot, in our opinion, be viewed in the light of open accounts, to which the prescription invoked under the statute of 1852 is applicable. Such instalments may be considered at least as equal to stated accounts. 4 An. 197; N. O., J. & G. N. R. Co. v. Estlin, ante p. 184.

Judgment affirmed.


source: Caselaw Access Project

author: Spoeeord, J.

license: Public Domain

text:
    State v. H. B. Ellis et al.
    The State may appeal in criminal cases where the indictment, charging an offence punishable with death or imprisonment at hard labor, has been quashed before trial, or held bad upon a demurrer.
    Where there is a discrepancy between the English and French texts of a statute, the former must prevail.
    The English text is emphatically the la/w. It was intended and is required that the laws should be published and thus promulgated in both languages; but they are enacted, as required by the Constitution, in the language in which the Constitution of the United States is written. A honajide translation into French, and publication of the original and translation, is all that is required; and a mistake in the translation is in the same category with a typographical error.
    A person present aiding and abetting at the commission of an offence is a principal, and may be punished as such; (overruling the decision in the case of the State v. Hendry ¡ 10 An. 207 )
    APPEAL from the District Court of St. John the Baptist, Duffel, J.

      E. W. Mo’ise, Attorney General, for the State.

      St. M. Berault, for defendants.
   Spoeeord, J.

The State has appealed from ajudgment of the Fourth Judicial District Court, quashing an indictment preferred against the defendants for an alleged assault with a dangerous weapon, and inflicting a wound less than mayhem upon one Joseph Vielcnavr.

The appellees have moved to dismiss the appeal, upon the ground that the State has no right of appeal in criminal cases.

Under the Constitution of 1812 the Supreme Court had no criminal jurisdicdiction. The evils resulting from an unsettled and discordant administration of the criminal law by a multitude of tribunals, each empowered to decide in a last resort, were found to be so great that in 1843 a special court was erected with appellate jurisdiction in this class of cases, whose decisions were reported as authoritative expositions of the criminal law for the guidance of courts of the first instance. The court was called “a Court of Errors and Appeals in Criminal Matters.”

The second section of the Act constituting it provided that “this court shall have only appellate jurisdiction, with power to review questions of law; which questions shall he presented by hills of exceptions taken to the opinion of the Judge of the lower court, or by the assignment of errors apparent on the face of the record, taken and made in manner and form as now provided for by law for appeals in civil cases.”

The fifth section provided “that said court shall have jurisdiction of all questions of law arising in the progress of any prosecution for violation of any penal law of the State, where the punishment may be death or imprisonment at hard labor.” Acts of 1843, 59. „

Under this law the question arose, in a case quite parallel to the present, whether the State had a right to appeal as well as the accused. And it was held that the right of appeal existed in favor of the State from a judgment quashing an indictment. State v. Jones, 8 Rob. 573.

In the subsequent case of the State v. Jones, 8 Rob. 617, an appeal taken by the District Attorney from a similar judgment was entertained without question.

The Constitution of 1845, for the first time, invested the Supreme Court with criminal jurisdiction in certain specified cases. In Article 63 it was declared that the Supreme Court should have appellate jurisdiction only, in criminal cases on questions of law alone, whenever the punishment of death or hard labor may be inflicted, or when a fine exceeding three hundred dollars is actually imposed.

The phraseology of the corresponding Article in our present Constitution is slightly different. This court’s appellate jurisdiction extends “to all criminal cases on questions of law alone, whenever the offence charged is punishable with death or imprisoment at hard labor, or when a fine exceeding three hundred dollars is actually imposed.” Constitution of 1852, Art. 62.

In 7 An. 40, (State v. Cheevers,) our predecessors entertained an appeal on behalf of the State from a judgment quashing an indictment. This was under the Constitution of 1845. In 10 An 207, (State v. Hendry,) we entertained a similar appeal under the present Constitution. In neither of these cases, however, does there appear to have been a question made as to the right of the State to appeal.

We see no objection to the practice, provided it is limited to the class of cases found in the precedents, to wit: those where the indictment has been quashed before a trial, or held bad upon a demurrer, and where it purports to charge an offence punishable with death or imprisonment at hard labor.

If the prisoner has not been tried he has not been in jeopardy, and if a new indictment could be preferred after a prior one for the same offence has been quashed, there can be no greater danger in reinstating an indictment which has been erroneously quashed before a trial upon the merits.

The motion to dismiss is, therefore, overruled.

The appellants were indicted under the 11th section of the crimes Act of March 14th, 1855, (Session Acts, p. 131,): “Whoever shall, with a dangerous weapon, or with intent to kill, inflict a wound less than mayhem upon another person, shall, on conviction, be imprisoned not exceeding two years nor less than six months, with or without hard labor, and fined not exceeding one thousand dollars.”

The French translation of this law in the Act of 1855 differs in two particulars from the English text: the copulative et is used instead of the disjunctive or in the first clause, making it necessary for the use of a dangerous weapon and the intent to kill to concur, in order to constitute the offence; and the phrase “wound less than mayhem,” is translated “blessure qui la priverait de l’usage de l’un de ses membres,” which would amount to mayhem.

The Act of March 14th, 1855, is a part of the revisory legislation of that year, and it appears that the errors of the old translation of the Act of 1829 have been copied and perpetuated in the new law.

The objection is now taken that, as the two texts are incompatible, there is no law whatever upon the subject matter; because the Constitution requires (Art. 129) that “the Constitution ancHaws of the State shall be promulgated in the English and French languages.”

If this constitutional provision is, as contended by the appellees, not directory merely but mandatory, we do not see how it can avail them. For if the Act of 1855 has no binding force as to the class of offences charged, then the Act of 1829, from which a portion of it was taken, has not been repealed quoad that class of offences ; for it is only laws upon the same subject matter upon which a provision is made in the new law that are repealed: and the argument of the appellees is, that the new law, being self-contradictory, goes for naught as to assaults with a dangerous weapon and assaults with intent to kill, and inflicting a wound less than mayhem or equivalent to mayhem.

But we do not think the argument admissible. The old provision of the Constitution of 1812 and 1845 has been retained in our present Constitution: “The laws, public records, and the judicial and legislative written proceedings of the State shall be promulgated, preserved and conducted in the language in which the Constitution of the United States is written.” Constitution of 1812, Art. vi, sec. 15; Constitution of 1845, Art. 103; Constitution of 1852, Art. 100. Ve know that the practice of the legislative department under this provision has been to introduce and carry through the various stages of legislation bills in the English language alone. They are translated into French for enrollment by a clerk, but the statutes are adopted in the English only. They are not even required by the Constitution to be translated before receiving the Governor’s signature.

The English text, therefore, of our ordinary statutes is emphatically the law. The French version is not the work of the two Houses and the Governor, but is a mere clerical labor, its correctness depending upon the skill and accuracy of the clerk employed.

Now, when the Constitution of 1845, in Article 132, introduced the provision that the laws should be promulgated in the English and French languages, it certainly did not intend to detract from the authoritative force of the English text in which, by a previous provision, (Art. 103,) it had declared the “legislative proceeding ” should be “ conducted.” ■ It intended no more than that the laws passed in English should be translated into French before promulgation, and that the original and the translation should then be published and thus promulgated together. The English text was still to continue the lam as expressed in the identical words of the law-maker. The French was to be only a translation of that law done by a clerk. The English was to be the original, the French a copy.

The promulgation of laws is an executive function. The mode of promulgation may be prescribed by the Legislature, and differs in different countries and at different times. “ Elle consiste, en réalité, dans 1’opposition faite par le chef de l’Etat, de la formule qui ordonne l’exécution de la loi.” 1 Marcadé, No. 28.

Promulgation is the extrinsic act which gives a law, perfect in itself, executory force. Unless the law provides that it shall be executory from its passage or from a certain date, it is presumed to be executory only from its promulgation. Buhol v. Boudesquie, 8 N. S. 433; Merchants’ Bank of New Orleans, 2 An. 68; C. C., Articles 4, 5, 6 and 7. The printing of a law is not its promulgation.

By our present statute, (xlct of 1855, 341,) which is substantially a reenactment of the law of 1827, (page 172,) “all laws enacted by the Legislature of this State shall be considered promulgated at the place where the State gazette is published, the day after the publication of such laws in the State gazette, and in all other parts of the State thirty days after the publication.

But it is to be presumed that when the framers of the Constitution declared that the laws should be “promulgated” in English and French, they used the term as synonymous with the word “published.” The question then is, have the laws been “published” in the English and French languages ? The particular law in question is the “Act relative to crimes and offences,” approved March 14th, 1855. That law, composed of 127 sections, enacted in the English language only, but translated by a clerk into French, has been published in the State gazette, in the English in which it was passed and in the French into which it was translated by the clerk.

Can a few blunders of the translating clerk vitiate the law ? We think not. The English text is paramount, and the tribunals are authorized to correct the translation if erroneous. The translation was not the act of the law-maker, and we are not bound by it. See the cases upon this mistranslation, State v. Mix, 8 Rob. 549; also 9 An. 313; 10 An. 141.

Still less do we think that these blunders make the promulgation void. Such errors are inevitable. Human language, at best, is an imperfect medium of human thought. The greater part of the time of courts is consumed in trying to find out what the Legislature meant, even where courts and Legislature speak the same vernacular. The difficulty is doubled when ideas obscurely expressed in one language are to be turned into another. If the error of a translating clerk can destroy or change the law, he holds the most important office in the State, with a veto power larger than that of the Governor. We do not think the Constitution contemplated a verbal exactness in the promulgation of laws, and that it suffices if there has been a bona fide translation of the original statute into French, and a publication of the original and the translation in the State gazette.

Clerical and typographical errors in the publication do not impair the validity of the law, which is to be found in the rolls themselves. And an error of translation should, we think, be placed in the same category. We therefore conclude that the law “relative to crimes and offences,” notwithstanding a few inaccuracies of translation, has been promulgated in French and English in the sense of the Constitution.

It was because the District Judge thought differently that he quashed this indictment.

But two of the defendants, Derby and Bcbrington, contend that they should be discharged, because they are accused as aiders and abettors to a crime (inflicting a wound less than mayhem) which does not admit of accessories, and they rely upon the case of the State v. Hendry, 10 An. 207. But these parties are indicted as principals in the same count with the other defendant, so that the case of the State v. Hendry is not altogether in point. Moreover, on reviewing that case, we are not satisfied_ with its doctrine in the full extent to which it seems to have been carried.

A person present, aiding and abetting the commission of an offence, is a principal, and may be punished as such. We notice that in the revisory legislation of 1866, the expressions “aiders and abettors” in several of the statutes referred to in the State v. Hendry have been omitted as surplusage, and the argument drawn from this phraseology fails. Moreover the 11th section of the Act of 1866, relative to crimes, (page 149,) declares that “whoever shall be convicted as accessory before the fact to any crime or offence shall suffer the same kind and extent of punishment, according to the circumstances of the case, as might lawfully be inflicted upon the principal offender for such crime or offence.” .

This law, first enacted in 1818, seems to have been overlooked in the case of the State v. Hendry. If the doctrine of a portion of that case was correct, it would follow that an accessory before the fact to the crime charged in this indictment, but not present at its commission, could be punished as surely as the principal, while an accessory at the fact, or the person present aiding and abetting its commission, might not be punished at all.

We cannot admit this as a correct exposition of the legislative will, and the case relied upon by the appellees must be so far overruled.

It is, therefore, ordered, that the judgment be reversed, the indictment reinstated, and the cause remanded, to be proceeded in according to law, as against all the parties accused.


author: Merrick, 0.. J.

text:
    Dr. H. Daret v. Captain A G. Gray.
    Where a runaway slave is received on board ship by an imposition practiced on the officers by a forged pass and calculated to deceive, and it is clear from the evidence that the officers were actually deceived thereby, the owner recovering such slave is not entitled to damages from the master of the vessel on account of the deterioration in value of the slave by his running away; this viciousness of character was manifested before he was received on board the ship by his running away and procuring the forged pass.
    Masters of ships and other vessels being prohibited, by the third section of the Act of 1816, from transporting or attempting to transport any negro, mulatto or other person of color, from New Orleans, wider mvij pretence whatsoever, without the performance of certain prescribed formalities, the failure by the officers of the ship to conform to the requirements of the law, will make the master liable for the reasonable expenses of the owner in recovering his slave, and this on general principles as well as by the terms of the fourth section of the Act of 1816.
    The master of a ship is bound to third persons, both by the commercial law and this statute,^for the acts of all persons under, or supposed to be under, his command, while engaged about their ordinary duties as subordinate officers of the ship or as seamen.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      O. Janin, for plaintiff and appellant.

      W. H. Hunt, for defendant.
   Merrick, 0.. J.

The plaintiff was in March, 1854, the owner of a mulatto man, a mulatto woman and their two children. These slaves being in possession of forged papers, obtained tickets from the Pacific Mail Steamship Company for a passage from New Orleans to Aspinwall, and went aboard the steamship Eldorado, about the 23d of March, 1854, and proceeded with the steamship to the Balize, where they were discovered through the agency of a telegraphic dispatch, and were secured and returned with the pilot (who took out the Eldorado) to this city. The plaintiff alleges that the slaves were received on the steamship without the consent of the petitioner; that by the receiving of said slaves on board the said steamer, the defendant caused him damages to the amount of four hundred and forty-five dollars and twenty-five cents, viz, four hundred dollars for depreciating the value of the said slaves and forty-five dollars and twenty-five cents for telegraphic dispatches, public notices in several papers, jail fees, &e. Ho prays for a judgment accordingly, and a privilege upon the steamship. The answer was a general denial. There was judgment for the defendant, and the plaintiff is the appellant.

The testimony shows that the papers produced by the slaves to the agent of the steamship company, purported to be executed before two prominent notaries of this city, and were well calculated to deceive any person except those most thoroughly acquainted with the hand writing of the notaries; that it is customary to examine the tickets of the passengers and search for secreted negroes only after leaving the wharf at New Orleans, on account of the crowd and on account of the intrusion of persons at the departure of the steamships; that this duty is performed by the purser, assisted by the steward and other hands ; that the tickets and free papers of the slaves were examined and being supposed to be in due form, they were permitted to proceed; that the captain has no agency in issuing the tickets and receiving the same, or examining the passengers, and that in this instance, as soon as ho received the telegraphic dispatch, he took the responsibility of returning the slaves to the city; that they were received by the plaintiff and that the ninety dollars paid by them for their passage was also paid over to him.

It will be observed that this suit is not brought to recover a statutory penalty, but, first, the depreciation in value of the slaves consequent upon their having runaway or absconded on board of the vessel; and, secondly, costs charges and money expended in recovering the slaves.

We do not think the first ground can be maintained. The proof, it is true, shows that the plaintiff sold the slaves and that he suffered large deductions from their apparent value, on account of their having runaway. The habit of running away is a vice inherent in the slave. That vice had developed itself before the slaves went on board the defendant’s ship. It was when they procured their forged papers and clandestinely left their master’s house to go on board of the ship, that they became runaways. They were corrupt when they imposed their purchased forgeries upon the officers of the ship, and the captain of the ship cannot be held responsible for the deterioration in the value of the slaves, which he had no agency in producing, and who was only made, by a neglect of a form of law, the instrument of giving greater publicity to such defects.

On the second branch of the plaintiff’s demand, we observe that by the third section of the Act of 1816, masters of ships and other Vessels are prohibited under any pretence whatsoever from transporting or attempting to transport any negro, mulatto or other person of color from New Orleans, without taking such person before the Mayor and having lodged with him a declaration containing a description of such negro, mulatto or other person of color, and having satisfied the Mayor by authentic proof, or the oaths or the affidavits of two credible witnesses, or the written direction of the owner, and having obtained from the Mayor a written certificate. In the other parishes, the like duty is to be performed by the Judge. See Bullard & Curry’s Dig. p, 358-4,

This precaution, which might have prevented the injury, was not observed by the officers of the ship and the defendant is liable for the reasonable expenses of the plaintiff in recovering his property, which was made more difficult to recover by the negligence of the officers of the steamship. The fourth section of the Act makes the master liable for the damages which the owner of the slaves sustains, and we think he would be responsible, on general principles, without the aid of this section. It is no answer to the plaintiff’s action that the negligence was that of other persons, and that he had in fact no agency in receiving the slaves on board of the ship. He is bound to third persons, both by the commercial law and the Statute, for the acts of all persons'under or supposed to be under his command, while engaged about their ordinary duties as subordinate officers of the ship or as seamen. If some of these duties are entrusted to third persons, he must assure himself that their acts which he finds himself, from the nature of his office, obliged to endorse, are not unlawful. 17 L. R. 545, 546.

It is, therefore, ordered, adjudged and decreed, by the court, that the judgment of the lower court be avoided and reversed. And it is now ordered, adjudged and decreed, that the plaintiff recover and have judgment against the said defendant, A. G. Gra/y, for the sum of thirty-four dollars, with legal interest thereon, from the third day of May, 1854, and that the defendant pay the costs of both courts.


author: Voorhies, J.

text:
    Melinda Knight v. Reuben Knight.—Opposition of J. E. Sutton.
    The copy of a sale under private signature, introduced in evidence for the purpose of proving its registry, has no effect without the original.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      A. T. Steele, for opponent and appellant.

      J. S. Whitalc&r, for appellees.
   Voorhies, J.

James E. Sutton claims the ownership of a slave named Louisa, seized and advertised to he sold by the Sheriff of the parish of Orleans as the property of the defendant. He alleges that he acquired a bona fide title to her by act under private signature, dated the — of November, 1854. He therefore prays that she he decreed to he his property. On a supplemental petition filed by him, the sale was enjoined.

The plaintiff pleaded a general denial, and prayed for a dissolution of the injunction, with damages and costs.

A supplemental petition was subsequently filed by the opponent, hut there appears to he no issue joined on it, and hence it cannot he taken into consideration.

The case being considered solely with reference to the issue thus presented, the question which then arises is whether the proof is sufficient to maintain the action. We think not. The evidence shows that on the 11th of June, 1852, Reuben Knight sold and conveyed by authentic act the slave Louisa to Albert G. Bailey, under whom the opponent claims to hold his title. On the trial below, the opponent introduced the copy of an act under private signature from Bailey to him, for the purpose, as stated in the note of evidence, of proving its registry in the conveyance office, certified as follows: “I, Register of Conveyances, certify the foregoing to be a true copy of the inscription made in my office, on the seventeenth of January, 1855, in Book No. 64, folio 578.”

It is evident that this document was entitled to no effect without the production of the original. The opponent then offered a document purporting to be a duplicate of the original made out by Bailey himself since the institution of the present suit, which was rejected, and forms the subject of a bill of exceptions. Were we to concede its admissibility, we do not think it would be entitled to any effect against the plaintiff.

On the other hand, it is shown that the slave Louisa was sold by Bailey to Mrs. Pryor on the 7th of February, 1853. On the l7th-of June, 1854, Sutton obtained a judgment against Bailey for the sum of $800. A writ oí fieri facias thereon was returned as follows:

“Received November 7th, 1854, and on the same day I seized a negro woman named Louisa, which slave was claimed by Reuben Knight as his property, and upon his presenting his title to the Sheriff for said negro woman, she was released from seizure. No property found after due demand made of both parties. Returned 4¡th Monday of December, 1854.”

The alleged recorded sous seing privé sale from Bailey to Sutton purports to have been made on the 18í7¡, of November, 1854. It is, therefore, perfectly clear that Sutton could not then be considered as the owner of the slave in question, thus seized under his execution as the property of his debtor. The testimony of the Deputy Sheriff, who made and released the seizure, shows that Sutton did not complain of it. It is moreover shown, that Kdwan'd Pa/rmehj held the slave Louisa, as lessee gf Reuben Knight, from January to the 15th or 20th of March, 1854. Knighfa possession in 1854 is also abundantly proved by other witnesses.

Judgment affirmed.


author: Buchanan, J.

text:
    Succession of Harman Jones—On rule taken by D. H. Jones, Appellant.
    The 58th and 59fch Articles of the Civil Code, relating to the sending into provisional possession of the presumptive heirs of art absentee, have no application to the question whether letters of tutorship have been properly granted upon the persons and property of minors whose father is alleged to be dead.
    The certificate of the Register of Births and Deaths for the parish of Orleans is a legal document, creating of itself a prima facie presumption of the death of a party.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      JElmore & King, for plaintiff in rule and appellant.

      G. Roselius and A. W. Jow'dan, for tutrix and defendant.
   Buchanan, J.

The succession of Eai'man Jones was opened by his widow, by petition to the Second District Court of New Orleans, filed on the 21st of May, 1856, to be qualified as natural tutrix of the two minor children of said Jones. To this petition was annexed a certificate of the Register of Births and Deaths in and for the city and parish of Orleans, certifying the death of New man Jones. About nine months after the widow Jones had qualified as tutrix, and made an inventory, under orders of the court, one David U. Jones, the brother of Rearman Jones, and against whom the widow and tutrix had instituted suit for an alleged indebtedness to the succession, took a rule in the Second District Court to set aside the mortuary proceeding and to revoke the letters of tutorship, on the ground that there was no evidence of the death of Ra/rmam, Jones, and that the length of time required for the presumption of the death of an absentee after he was last heard from had not elapsed.

There is one exception to the form of proceeding by rule which it is unnecessary to examine, inasmuch as the judgment upon the merits, for defendant in rule, is entirely justified by the law and the evidence.

Ra/rma/n Jones is proved to have left the port of New Orleans, on board a schooner called the Florinda, bound to San Francisco, California, in July, 1849. On the 15th November, 1849, he wrote from Rio de Janeiro, conveying information that the Florinda was undergoing repairs in that port, which would be finished the same day, and that she would immediately prosecute her voyage to her port of destination. Since the date of that letter, neither the schooner Florinda nor Ran'mcm Jones have ever been heard of.

His family and relatives, including Damid R. Jones, the mover in this rule, went into mourning for Rarmam Jones as for a person deceased. Damid R. Jones told one of the witnesses that his brother Ran'man was dead, and exhibited a great show of distress on the subject. David R. Jones even collected, under a power of attorney, the amount of insurance effected on cargo per schooner Florinda for this voyage, upon his own affidavit of a portion of the facts above detailed, as proof of a total loss of the vessel and cargo. The insurance company paid him the amount of the policy, on the 11th of October, 1850, five years and a half before the succession of Rearman Jones was opened by his widow.

The burden of proof was upon the mover in this rule to rebut the very strong, not to say conclusive presumption of the death of Ran'man Jones, arising from these circumstances. Not the slightest attempt to rebut them is made by him.

His counsel relies altogether upon the provisions of the 58th and 59th Articles of the Civil Code, relative to the sending into provisional possession of the presumptive heirs of an absentee. These Articles have no application to the case before the court. The question for our decision is whether letters of tutorship have been granted improperly upon the persons and property of minors whose father is still living.

The certificate of the Register of Births and Deaths for the parish of Orleans, introduced without objection in evidence, is a legal document, creating of itself a prima facie presumption of the death of Rarman Jones, which is corroborated by facts emanating in a great measure from the very party who now disputes that death.

Judgment affirmed, with costs.


author: Spofford, J.

text:
    Succession of S. B. Davis.
    A testamentary executor domiciled out of the State is not entitled to letters without giving security, as is required from dative testamentary executors.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      B. A. Bradford and II. B. Strcmhridge, for plaintiff in rule.

      F. Preston and Pmvis & Dugu&, for defendant and appellant.
   Spofford, J.

Samuel B. Da/ois died at his domicil in Delaware, leaving a last will. The succession was opened in Delaware before the court charged with such matters, and letters testamentary issued to one Peter A. Brown.

It does not appear that any property, real or personal, was left by the deceased Da/ois in the State of Louisiana, although it would seem from the statements of the parties to this litigation, that suits have been instituted against one or more citizens of this State, upon certain promissory notes belonging to the succession opened in Delaware.

About a year after letters were issued to Brown as executor of the estate in Delaware he filed a petition in the Second District Court of New Orleans, annexing a copy of his letters and of the will as probated in Delaware, and prayed to be recognized as executor of the said will and authorized to act as such.

The following order was thereupon rendered ex pao'te:

“ Let the last will and testament of the deceased, of which the accompanying is an authentic copy, be approved, registered and executed, and let the petitioner be recognized as the testamentary executor of the deceased and be authorized to act as such.”

Shortly afterwards a motion was filed by the present appellees, praying the court to rescind the foregoing order, on the grounds—

1st. That Brown was not testamentary executor as alleged;

2d. That he had not taken an oath or given security as required by law in Louisiana, and that the order was illegal in not requiring him to do so ;

3d. That he had failed to comply with the other requisites of the law of Louisiana concerning executors, administrators and successions.

Upon a hearing, the rule was made absolute, and the entire order, as quoted above, was revoked and annulled.

The executor Brown has appealed.

The judgment appealed from is partly right and partly wrong.

It is right in rescinding so much of the original order as declares the appellant to be testamentary executor of the will of Samuel B. Davis, and authorized to act as such; it is wrong in annulling that portion of the order which admits the will to registry and orders its execution.

The latter order is fully justified by the Articles 1681 and 1682 of the Civil Code; they do not appear to have been repealed by the statute of March 16th, 1842, which is rather supplementary to than subversive of those Articles.

It is, therefore, ordered and decreed, that so much of the judgment appealed from as revokes that portion of the order of 9th December, 1856, which declares that the will of Samuel B. Da/ois be approved, registered and executed, be avoided and reversed, and the said order reinstated pro tanto; and it is further adjudged that, in other respects, the judgment appealed from be affirmed, the costs of this appeal to be borne by the appellees, and those of the District Court by the appellant, defendant in the rule.


author: Buchanan, J. Buchanan, J.

text:
    R. W. Rayne v. Mary B. O’Brien and Husband.
    The appeal will be dismissed under the rule of court of 29th May, 1854, where the appellant has died «ince the appeal, and the administrator having received the twenty-five days’ notice required by that rule, fails to make himself a party. _
    The delay for applications for re-hearing is fixed by law at three judicial days, and longer time should not be allowed within which to move to reinstate an appeal dismissed under a rule of
    APPEAL from the Sixth District Court of New Orleans, Gotton, J.

      Race & Foster, for plaintiffs.

      A. Roberts, for defendants and appellants.
   On the motion to dismiss appeal:

Buchanan, J.

The plaintiff and appellee moves to dismiss this appeal under the rule of court of the 29th May, 1864, the appellant, Mary O'Brien, having died since the appeal, and the administrator having received the twenty-five days’ notice required by that rule, to make himself a party without having done so.

Appeal dismissed.

On the motion to reinstate the appeal:

Buchanan, J.

The record of appeal was filed in this case, in this court, on the 7th June, 1864, and the appeal was dismissed on the 4th February, I860, under the provisions of the rule of court of the 29th May, 1854. The proceedings for the dismissal of the appeal were perfectly regular, and upon proper showing.

On the 27th April, 1857, more than a year after the judgment of dismissal, the administrator of the appellant, Mary O'Brien, moved to reinstate the appeal.

This motion is entirely too late. The delay for applications for re-hearing upon the final decision of the most important questions that come before us, is fixed by law at three judicial days; and no reason is perceived why a longer time should be allowed for reinstating an appeal dismissed under our rule, especially when the party making the application is a resident of the place where the court holds its sessions, as in the present case.

Rule to reinstate discharged, at costs of mover.


author: Cole, J.

text:
    Succession of Celeste Croizet, Widow Gondran—On Opposition to Account of S. Gondran, Administrator.
    Proof of verbal acknowledgments of indebtedness is not entitled to much weight, particularly after the death of the person who is alleged to have made them.
    "Where a minor arrived at the age of majority gives a receipt to his tutor, the receipt is not conclusive against him, and the fact which it recites may be contradicted by oral testimony.
    APPEAL from the District Court of West Baton Rouge, Robertson, J.

      J B. & E. Phillips and F. O. Bouis, for opponents and appellants.

      A. Provosty, for the appellee.
   Cole, J.

Madame Julie Oelesle Groizet, widow of Pierre Gondran, died in October, 1853 ; her son, Simon Gondran, was appointed administrator of her estate on the 3d November, 1853. Her heirs were there, to wit, Simon Gond/ran, Adele Gondran, wife of F. O. Bouis, and Martin O. LeBlane, son of Julia Bouis, wife of Octave LeBlane.

Julia Bouis was the daughter of Madame Gondran by a former marriage.

On the 10th February, 1855, more than a year after the administrator was appointed, Martin O. L,eBlana took a rule to compel him to file an account. It was rendered on the 9th March, hut no vouchers were filed, and afterwards an order was obtained, which directed him to file them.

Oppositions were made by M. O. LeBlane to the original and amended tableaus, and an opposition was offered to be filed, by F. O. Bouis, for his claim as overseer, which had been put on the tableau, but for which the administrator took a nonsuit. The District Court objected to receive it as coming too late.

The oppositions of LeBlane were sustained in part by the lower court.

LeBlane, Bouis and the administrator have appealed.

The principal items objected to by LeBlane are the claims of F. O. Bouis, and an item put down in the tableau as being due Simon Gondran, the administrator, by the deceased, as his tutrix, for the balance due him in the estate of his father, Pierre Gondran.

We will advert first to the claims of Bouis, who is the principal creditor of the succession. They amount in principal and interest to about $20,000.

They consist of, 1st. A note made by Madame Gondran to him or order for $8,591 38, dated 10th June, 1848, payable in March, 1849, with eight per cent, after maturity. 2d. An account for his wages, as overseer and hire of negroes, $5,196 66. And 3d. Note in favor of A. Robin, paid by him, with eight per cent, interest, from 10th April, 1854, for $1,568 89.

Bouis was son-in-law of deceased, and lived with his family in her house from 1842 to 1853.

He acted also as her agent from 1848 to 1852 ; shipped molasses in his own name from Madame Gondran’s place for several years, and received the proceeds amounting to $?, 058 66.

It was the duty of Bouis to have presented an accurate account of his transactions in his fiduciary capacity.

He has not done this, and he seeks to sustain a part of his demand by proof of verbal acknowledgments of indebtedness on the part of the deceased.

Not much weight is given in law to this species of evidence, particularly when such recognition is pretended to have been made by one since deceased.

We do not doubt the integrity of the witnesses, but it must be remembered, that this confession of debt was made by one who probably knew but little about her business, and had confided for years the administration of a great part of her affairs to Bouis, and who, it is likely, was not aware of the exact relations of her affairs with him, of the manner in which he had conducted them, of his responsibilities to her, of the debts he had paid or created in her behalf.

When these things are considered, such acknowledgments can have but small effect, particularly as she is dead; for if Mrs. Gondran was living, she could plead that this recognition was made in error, and that she was not aware of the real condition of affairs between Bouis and herself.

The Judge a quo viewed the obligation of Bouis, as agent, to render an account, and the character of such acknowledgments, in the same light that has just been portrayed.

He rejected his claim for wages, as overseer, but allowed $3,300 for hire of negroes, from which sum, he deducted $2,900 50, credits by amounts paid Bouis as admitted in his account.

The lower court made this deduction on the principle, that as Bouis had not rendered a perfect statement of his acts as agent, the credits in his account rendered, admitted by him, must be charged against him, without considering as correct, unless proved, the other portions of his account that consisted of charges against the estate.

The Judge a quo also allowed Bouis the note of $8,591 38 and interest; opponent offered testimony to show, that Bouis had shipped molasses belonging to Mrs. Gondran, at various times, the proceeds of which exceeded six thousand dollars, and came into his hands.

The counsel of administrator objected to such testimony to establish a credit On the note, as it was not an amount equally liquidated. The court rejected it, believing it was inadmissible as a plea in compensation on the note.

This was erroneous. Bouis was the agent of Mrs. Gondran; the moment then he received her funds, and appropriated them to himself, compensation took place between an amount, that she owred him, equal to that he had appropriated, and although he may have held claims of various kinds against her, the law imputes the payment to the most onerous, which was the note.

As to the plea that the amount of the proceeds was not equally liquidated, this is incorrect, because money paid is certainly as much liquidated as a note, and in the opinion of the generality of mankind, more so; payment can always be plead. *

Bouis held claims against deceased; it is not to be presumed he intended feloniously to keep the proceeds of the molasses, but when he appropriated them he considered them as a payment pro tanto, and as he has not accounted for them, they might be placed to their account as an off-set to the note ; but the evidence shows, ho paid some claims for her, and transacted generally her business. It is just then to give Bouis an opportunity in the lower court to render an exact account of his relations as agent for the deceased, to show all the sums received, and disbursed, at what time each amount came into his hands and was paid out; also, a full account of his claims against Mrs. Gon~ drm and the credits thereon. He could not censure us if we were to render judgment on the evidence now before us, for it was his duty to have rendered such an account when he presented his claim against a deceased person, but we have concluded to give a nonsuit on all his demands against the estate, and permit him to present them hereafter in a proper form. It is impossible to do justice between him and the estate as the case now stands.

The other principle item opposed by LeBlane is that of $3,656 25, as being due Simon Gondran, the administrator, for balance due him in the estate of his father, Pierre Gondo'an, by the deceased, as his tutrix.

The grounds of opposition are, that it has been paid; prescription is also plead. The evidence on the part of LeBlane, the opponent, consists in an act of “ quittance” passed before a public officer, in which Simon Gondran acknowledges to have received from his mother, the deceased, the full amount of this claim.

The District Court refused to admit evidence to prove that, in fact, he had never received from his mother the amount stated in the H quittance,” and that he gave her the said receipt only to enable her to raise a loan by mortgaging her property, which she could not do so long as his legal mortgage remained the first on the records. The ground sustained by the court is, that the written receipt could not be contradicted by parol evidence.

The Judge a quo erred. This evidence was admissible ; tho act of “ quittance” was null and void between the parties, it being in derogation of the law which declares, “ that every agreement which may take place between the tutor and the minor arrived at age of majority, shall be null and void, unless the same was entered into after the rendering of a full account and delivery of the vouchers, the whole being made to appeal’ by the receipt of the person to whom the account was rendered, ten days previous to the agreement.” O. O. sec. 284, Art. 355.

This Article was enacted for the protection of minors, and if they have not the right to establish the real nature of their transactions with their tutors, the laws made for their protection would have no effect whatever. This receipt was signed by Simon Gondran about one year after he arrived at the age of majority. As a receipt, it is merely prima faeie evidence of the fact of payment, and not conclusive, and, therefore, the fact which it recites may be contradicted by oral testimony. Vide 5 An. 408; 10 An. 749 ; and 9 An. 129.

The court also considered the claim barred by the prescription of four and five years.

Even supposing that under the circumstances of this case, prescription could be successfully plead, yet the party ought to have the opportunity of showing that the course of prescription was' arrested, if such was the case, by some one of the modes pointed out by law.'

This part of the tableau must be sent back for further action of the lower court.

The administrator has placed himself on the tableau for $1,384 85, being the total amount of commissions allowed by law on the whole assets of the estate. As this is only a provisional account, and the entire amount due the succession is not yet collected, he can only charge his fees on the part of the assets actually received by him. This tableau being, however, not artistically framed, does not exhibit what is the total sum that has been received by the administrator; there must, therefore, be a nonsuit for his commissions.

The account must be corrected also in two items, admitted by counsel of administrator in his brief to be just, to wit, for $177 for wood sold by the administrator and owned in partnership with the deceased, and for $250 cash found in the estate, for which no credit was given by error of counsel.

As regards the amended account filed on the 7th January, 1856, claiming upon the part of the administrator a credit against the estate of $2,160 for hire of slaves during the year’s 1850, 1851 and 1852, this claim is prescribed by Art. 3503 C. C. and is rejected.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed; and proceeding to render such judgment as ought to have been rendered by the lower court, it is ordered, adjudged and decreed, that the account be amended as follows, to wit, that there be a non-suit in favor of Simon Gondran, administrator of the succession of JuKe Celeste Croizet, widow of P.' Gondran, against all the claims of F. O. Bouis, whether on the tableau or presented by way of opposition.

It is futher ordered, that the administrator must be charged with cash in hand, belonging to the estate, being two hundred and fifty dollars, and the administrator must charge himself with the amount of wood sold, as admitted by him, to wit, one hundred and seventy-seven dollars ($177) ; that the claim of 8. Gondran for negro hire during the years 1850, 1851 and 1852, for $2,160 is rejected.

That there be a nonsuit in favor of the estate against the commissions of the administrator as put on the tableau.

It is further ordered, that this case be sent back to the lower court, only to have the claim examined and adjudicated upon, of S. Gondran for $3,656 25, being the alleged balance due him by the deceased, as his tutrix, in the estate of his father, Pierre Gondran; and the District Court is instructed to admit parol testimony offered in relation to the “ quittance” given by him to his mother, by act passed before Valery Ledoux, the 2d April, 1849.

It is therefore further ordered, adj uged and decreed, that the account bo amended in conformity with the above decree, and that it be homologated in all other respects, and that the administrator file an account within 20 days from the time this judgment is executory, in conformity to law, giving the credits and debits of the estate, and stating the balance in conformity with this judgment, and reserving, out of the funds on hand at the time of filing the present tableau, the pro rata share of S. Gondran for his claim aforesaid, of $3,656 25, or the whole of it, if said funds suffice to pay in full the claims of all the creditors on the tableau, as amended; that he distribute the balance of said funds among the creditors who are thereon according to this decree, according to their legal rank and privilege.

It is further ordered and decreed, that the costs, so far as incurred, of the lower court, be paid by the estate; that three-fourths of the costs of appeal be paid by the estate, and the other fourth thereof by F. O. Bouis.


author: Merrick, C J.

text:
    The State v. Judge of the Sixth Judicial District.

      A mandamus will be issued by the Supreme Court only as auxilliary to its appellate jurisdiction. The Constitution does not confine the judiciary to the examination of such questions as may arise under the laws in force at the time of its adoption, but leaves to the Legislature the power of creating new clases of cases for the action of the courts.
    It is not necessary, to constitute a judicial proceeding, that it should have all the requirements of a regular suit.
    The Act of 1855 “ To enable married women to contract debts and bind their paraphernal or dotal property,” is but an extension of the powers already vested in the courts, and the Legislature had the right of imposing the duty required by this Act upon any court of original jurisdiction.
    It not appearing that the refusal of the Judge to grant the certificate will occassion the applicant damage to the amount of $800, the mandam/us is for this additional reason refused.
    ON the application of Ann L. Webb for a mandamus to the Judge of the District Court of East Baton Rouge, Beale, J.
   Merrick, C J.

The relator applied to the Judge of the Sixth District Court, under the Act of 1855, (p. 254,) to be authorized to execute a mortgage in order, as is alleged, to pay a pressing debt due on account of the paraphernal estate of the wife.

The late District Judge being of the opinion that the duty imposed by the Act of 1855 is not judicial, declined to examine the applicant and grant or refuse the certificate authorized by the statute. He cites in support of his position the first Article of the Constitution, which divides the powers of the government into three departments, and prohibits each of the departments from exercising powers properly belonging to either of the others, and he concludes that the duty imposed by the Act properly belongs to the executive department, and ought to have been confided to a clerk or notary public, as deputy executive officers.

The present Judge in answer to the application for the mandamus, says that he waives any further answer to the application, and submits the case upon the reasons of his predecessor, as an answer, and as the ground of his refusal to act in the premises.

The line of demarkation between the different departments of the government is on many subjects so faint, fhat it sometimes presents questions of great embarassment. The Constitution has but sketched the main outlines, and the filling up has been left to the departments themselves, and notably to the judiciary to determine where the one power ceases and the other begins. Hence great caution ought to be used in the determination of these questions. We find by the Constitution of 1845, it was provided that “ No duties or functions should ever be attached by law to the Supreme or District Courts, or the several Judges thereof, except such as are judicial.”

This prohibition has been omitted from the Constitution of 1852, and the question rests, as correctly stated by the Judge a quo, upon Article one of the present Constitution, which is nearly identical with the same Article in the Constitution of 1812.

We find that the Attorney General, the District Attorneys, Justices of the Peace, the Clerks, Sheriffs aud Coroners are classed, as to their general duties, by the Constitution as belonging to the department of the judiciary.

Under the Constitution of 1812, the Judges of the parish courts performed, for a period of thirty }rears, ministerial duties of the most opposite and varied character’s. They ordered, as Judges of the probate court, the sale of real and personal estate, and sold it as auctioneers ; they ordered petitions and executed their own orders as notaries public; they received wills as notaries, and ordered the same to be executed after the death of the party, as Judges ; and finally, recorded the same as clerks of their own courts. They were Registers of Mortgages; they presided over Police Juries; they were Judges of elections; they authenticated the indentures of apprentices, and in certain cases transferred their unexpired terms ; they licensed pedlars, registered births and deaths, recorded the brands of cattle, and held inquests over those who appeared to have come to their deaths by violence. . Yet we are not aware that it was ever supposed that any of these multifarious duties were executive in the sense of the 'Constitution of 1812. They appear to have been considered ministerial, and as belonging rather to the judicial than the executive department of the government.

The ministerial duties, whether performed by the person exercising the judicial functions or by another officer as his agent, (as in the case of a Justice of the Peace who still acts as his own clerk,) are essential to the very existence of the judiciary. It is by the aid of ministerial acts and offices that matters are brought before the judiciary for judgment, and they are the hands by which the decrees of court are finally executed.

The duty, we conclude, imposed by the Act of 1855 is not one confided by the Constitution to the executive department.

Is the duty a ministerial or a judicial duty ? If it is merely ministerial, although confided to the Judge of the District Court, there is no direct appeal from the act of the Judge to this court in any case, and, as a consequence, the application for a mandamus will not lie, because the mandamus is a process which issues from the court only as auxilliary to its appellate jurisdiction.

The Constitution, in the division of powers, was not intended to confine the judiciary exclusively to the examination of the classes of judicial questions which might arise under the laws as then in force, but it left to the Legislature the power of creating other classes of cases for the action of the court. The Legislature might compel the courts to take cognizance of new crimes and of-fences. It might modify the modes of proceeding and the rules of evidence. It might submit new questions of law arising from civil proceedings for the consideration of the courts, and still there could be no ground for the charge, that the Legislature was conferring upon the courts any of the powers belonging to the executive department.

Let us now see what is the nature of the duties imposed by the Act of 1855. A proceeding maybe a judicial proceeding without having all the formal parties required in a regular suit, as in the case of the naturalization of foreigners, and many matters entrusted to the probate court.

Powers have for a long time been conferred upon our courts to adjudicate upon questions of capacity and status. The statute of 1829 conferred on the District Courts the power of emancipating minors over the age of nineteen years; the court of probates had the power to appoint guardians and curators, which was conferred by statute as early as 1807. Power to interdict, to examine lunatics and send them to asylums is vested in the courts.

Courts of justice had always exercised the power of decreeing a separation of of goods between husband and wife. The Code of 1808 conferred upon the Judge power to authorize the wife to appear in a court of justice if the husband refused to give such authority. Moreover, if the husband refused to authorize his wife to pass an act respecting her separate estate, the Judge had power to cite or call her husband before him, and to authorize or refuse to empower the wife so to sign such act, and these provisions are retained in the Code of 1825. The statute of 1855, in question, is, therefore, but an extension of the powers already vested in the courts, and daily exercised by them. The Judge, by the last mentioned statute, is required to examine the wife separate and apart from her husband touching the object for which the money is to be borrowed or debt contracted. This examination is left to the discretion of the Judge, and he may conduct it under oath or not as he shall deem proper. It is not exclusive of other proofs which the wife may produce before him.

After such examination it is his duty, if he finds that the money to he borrowed or the debt to be contracted is intended for the advantage of the husband or the community, to refuse the authorization.

If, on the other hand, the wife shall satisfy the Judge that the same is for the benefit of her separate estate, or of her dotal property it is made his duty to issue the certificate.

It appears to us from this examination of the statute, that the Legislature had the power to impose this duty upon any court of original jurisdiction, although, as the Judge a quo suggests, it might have been conferred upon the clerk, under Article 76 of the Constitution, and probably upon notaries and other ministerial officers, if it had pleased the Legislature to have clothed the proceeding with forms less solemn than the sanction of a judicial officer.

But we have already said that the writ of mandamtis is only issued by this court in cases where it has appellate jurisdiction. It does not appear from the proceedings, that the refusal of the Judge to grant the certificate will occasion the applicant damage to the amount of three hundred dollars. Without, therefore, considering the question, whether this court would have power to revise the exercise of the discretion vested in the District Judges by the Act of 1855, we are of the opinion that there is no sufficient showing to authorize the writ of mandamus to issue in this case.

It is, therefore, ordered, adjudged and decreed by the court, that the petition for a mandamus in this case be dismissed, and that said Mrs. Ann L. Well and husband pay the costs.


text:
    A. A. Williams v. W. F. Talbot.
    'The redhibitory action cannot be maintained when the purchaser of a slave permitted many months to elapse, after the first development of disease, without resorting to medical aid.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      R. & 3. Marr, for plaintiff and appellant.

      Moise & RmidoVph, for defendant.
   Cole, J.

This is an action to rescind the sale of a slave, passed the 1st January, 1853, and to recover the price, on the ground that he was afflicted at that time with a redhibitory malady, which caused his death about the middle of June, 1854

It is alleged that this disease was pulmonary consumption.

Ja/ois was the overseer of plaintiff during the time the slave Jack was on his plantation, and testifies that he was apparently well at his arrival, hut two or three weeks afterwards, witness discovered he was affected with a bad cough, particularly of nights ; his health became gradually worse to the period of his decease.

He first noticed, in July or August, 1853, that Jaclc expectorated hlood during his spells of coughing, and complained of fever and night sweats. He was employed at chopping wood up to the middle of October, 1853.

Jr. Fmrot was first called to see him in July or August, 1853 ; he prescribed for him at that time, and afterwards in October of the same year.

Jr. Vaughan testifies he first examined Jack in December, 1853, and found him in an advanced stage of tubercular consumption.

Jrs. McKelney and Piaton examined him in the spring of 1854, and the former testifies, he thinks, they found a cavity in one of the lobes of his lungs.

The neglect of plaintiff to send for medical aid for so many months after the first manifestation of symptoms of disease, constitutes, under the established jurisprudence of this court, a bar to his action of redhibition.

Plaintiff has sought to prove by scientific gentlemen, that the disease existed anterior to the. sale; but the uncertainty which characterizes human speculations and hypothesis, renders such testimony nugatory, unless the witnesses had been called at the first opening of the malady, and had exerted their medical resources to a degree that they could reasonably testify the death did not result from neglect to apply scientific aid to the primary S3rmptoms of disease.

He has also attempted to show that this slave was injured many years before the sale, and exhibited then some signs of the disease which subsequently terminated his existence; but evidence of this character cannot, as a general rule, prevail, unless a continuity of the malady is established from its inception to the death of the patient, with more or less violence ; it may be, however, with brief periods of respite, according to the nature of the disease, and unless also within a reasonable time after the first signs of the disease medical assistance is invoked.

Even if it could be proved the malady was incurable ab initio, this would not he of itself sufficient to cancel a sale, for if a physician had been called at the primary manifestation of the disease, the life of the slave might have been extended for some years.

It would be unjust to coerce the vendor to return the price, when, if medical aid had been promptly summoned, the life of the slave might have been spared for years, and then even if he was obliged to take him back, he would have had the benefit of his services for a long period.

Humanity and a just regard to the rights of vendors require that parties should not recover, who have permitted many months to elapse, after the first development of disease, before invoking medical aid.

Yide 10 An. 263, 267, 302.

The judgment is therefore affirmed, with costs.


text:
    George W. Roper v. Elizabeth Magee et al.
    Plaintiff sued originally upon a quantum meruit for materials furnished and work done in building a house, and afterwards, by an amendment admitted by the court, set up a written contract. (10 An. 61.)
    On the case being remanded, the defendants objected to the action being maintained against them’ because they had not been put in default. 27eld: That this case does not come within the rule relied on by defendants.
    The Act of 1839 repealed Article 554 C. P., and implies the allowance of interest on unliquidated demands.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      M. M. Oohen, for plaintiff.

      Alfred Hennen, for defendants and appellants.
   Voorhies, J.

This case has already heeri before us. The report of the experts having been set aside, it was remanded to he proceeded in according to law. See 10 An. 61, 63.

The defendants are again appellants from a judgment rendered against them in favor of the plaintiff.

It appears from the judgment thus rendered that they were debited with the sum of $1325, as the price stipulated for the work specified in the contract, and $225 for extra work, deducting therefrom, as credits, the sum of $1100, acknowledged to have been received by the plaintiff, and $75 to complete some of the work shown to he defective. The result thus presented is, we think, justified by the evidence.

From a careful examination of the evidence, we are not enabled to say that the Judge erred in rejecting the claim for damages set up by the defendants in reconvention, alleged to have been sustained by them in consequence of the failure of the plaintiff to perform the work within the stipulated term.

The appellants have submitted several questions of law to our consideration.

1st. That the action cannot he maintained, as the defendants have not been put in default.

The case at bar does not come within the operation of the rule relied upon. See the case of Loreau v. Declouet, 3 L. R. 1.

2d. That the judgment should have been rendered against the defendants jointly and not in solido.

It is clear that the obligation of the defendants was joint and not in solido ; hence the judgment is erroneous and must he reversed. O. O. 2075; 15 L. R. 588; 3 An. 162.

3d. That interest was improperly allowed the plaintiff on his claim, which was liquidated, from judicial demand.

The Article 554 of the Code of Practice, on which the appellants rely, was repealed by the Act of 1839, implying thereby that interest might be allowed on accounts or unliquidated demands.

It is, therefore, ordered, that the judgment of the court below he avoided and reversed; that the plaintiff recover of the defendants jointly the sum of three hundred and seventy-five dollars, with legal interest thereon from judicial demand until paid, and also the costs of the District Court, for the payment of which said defendants shall he bound in solido; and it is further ordered, that the costs of this appeal he paid by the plaintiff and appellee.


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    Sarah Jacobs v. S. Levy.
    It is a sufficient compliance with Art. 72 of the Constitution, for the Judge to state in his decree that, “ after hearing evidence and argument of counsel for the reasons assigned in open court, it is adjudged and decreed, &c.”
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Wooldridge & Lemly, for plaintiff.

      B. O. Elliott, for defendant and appellaht.
   Buchanan, J.

The defendant is appellant from a judgment condemning him to pay one hundred and fifty dollars damages for a very gross slander of the chastity of plaintiff, who is a married woman, and whose behavior is proved to be correct

The defendant relies in this court entirely on the want of a statement of reasons in the written judgment of the District Court.

The judgment reads as follows: “ After hearing evidence and argument of counsel, for the reasons assigned in open court, it is adjudged and decreed,” &c.

We think this satisfies the requirement of the Article 12 of the Constitution of the State, that Judges shall “ in all cases adduce the reasons on which their judgment is founded.”

Judgment affirmed, with costs.


author: Merrick, O. J.

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    W. J. Blocker v. W. W. Whittenburg, Captain and Owner of Steamer B. E. Clarke.
    The lemfori governs the admissibility and effect of evidence.
    The principle as to the liability of common carriers laid down in the case of Wattsw. Steamer Samon, 11 An. 43, re-affirmed.
    APPEAL from the Fourth District Court of New Orleans Iieynolds, J.

      IT. B. Eggleston, for plaintiff and appellant.

      Glia/rles B. Singleton, for defendnat
   Merrick, O. J.

The court did not err in excluding the deposition of W P. Bloelcer, the son 'of the plaintiff. The admissibility of the testimony, as well as the sufficiency of the proof, are judged of by the laws of Louisiana, and not those of Texas where the plaintiff resides and the deposition was taken. The general rule, subject to several exceptions, is that the lea fori governs the admissibility and effect of evidence. 17 L. R. 458 ; 19 L. R. 214, 215.

Descendants are expressly prohibited from being witnesses in civil cases for or against their ascendants. This prohibition is not based exclusively upon the reason, that these relations are the forced heirs of each other, but because it has hitherto been the policy of the law to withdraw the witness from the necesssity of testifying for or against those to whom he sustains such intimate and delicate relations, and to relieve the courts from the embarassment of hearing and deciding upon this kind of proof. 5 L. R. 96; 7 Rob. 360. The present case is not, therefore, within the exception to the general rule, and the testimony was properly rejected.

This suit is instituted to recover of the defendant $1500, for damages alleged to have been done to plaintiff’s cotton, which the defendant received at Swanson’s Landing, on Lake Oaddo, in the State of Texas, without instructions from the plaintiff, during its transportation to New Orleans.

The testimony is ver}' conflicting, but we think the following facts are sufficiently established, viz: that the defendant took eighty-five bales of plaintiff’s cotton at Swanson’s Landing, on Lake Caddo, aboard of a flat made fast to the B. E. Olark; that he proceeded to Law’s Landing and took more cotton on board the flat; that he moored the boat to a tree or stump about a quarter of a mile from the landing; that the flat sunk, in a rainstorm ora gale; that forty-five bales of plaintiff’s cotton were at night thrown into the water by the sinking of the flat; that the captain and crew went into the water, .which appears to have been shallow, and, by morning, secured the cotton upon the bank of the lake, and there placed the bales upon their edges, a little distance apart, in order that they might more readily dry; that the captain left the cotton in charge of the proprietor of Law’s Landing; that he proceeded to New Orleans with the boat; that rainy weather intervened, and on the return of the boat the cotton was received aboard the boat saturated with water; that the captain collected $135 salvage on the cotton, and paid $35; that when the forty-five bales were delivered at New Orleans they were, with the exception of two bales, greatly damaged and rendered unmerchantable, and that the liability of the boat was admitted by the captain and owner.

On this statement of facts we do not think the inquiry important, whether or not the defendant took the cotton without authority. On the question how the injury occured, one of the plaintiff’s witnesses swears positively, that the flal was filled with water by the backing of one of the wheels of the boat, while the defendant’s witnesses say it was occasioned by the waves. Some of the witnesses, those of the plaintiff, would lead us to think it was but a common rain accompanied with a little wind; others, officers and hands on the boat, describe it as a gale, so severe as to render it dangerous to remain near the pilot house. Again, on the subject of the stowage of the injured cotton, on the return of the boat, two of plaintiff’s witnesses swear that it was stowed in the hold of the boat, and one of them, that it was so stoewd against his remonstrances. On the other hand, some of the officers and hands swear, that it was stowed in the engine room, or in front of and near the boilers: where and how, they are not quite consistent among themselves. We shall not undertake to reconcile this testimony, nor decide which class of witnesses is entitled to be believed on this point.

We are of the opinion, from the testimony, that the short time the cotton was in the water in Lake Oaddo was not the occasion of the damage to it.' That if it had been immediately placed under cover, in a situation to dry, it would not have become injured to ai^ great extent. That the injury was occasioned by exposure to the rain for several days following, and then being transported in this condition to the city, either in the engine room, by the boilers, or in the hold.

Whether, therefore, the captain had improperly obtained the cotton or not, is immaterial, because he was bound to that diligence, during the whole of the period of the transportation of the cotton, which the law' exacts of the common carrier. He was wanting in that diligence in leaving the cotton upon the hank of the lake, exposed to the weather and the almost daily rains, often common at this season of the year. He should have left a tarpaulin to cover the cotton during the rains, or provided other means of shelter. In the case of Watts v. Steamer Saxon we said: 11 The common carrier is hound to the most exact diligence, as much to avoid danger which may be reasonably apprehended in the future, as to rescue the property from present and imminent peril.” 11 An. 48. We conclude that the defendant is responsible. See 8 An. 298, Bond v. Frost, and 12 An., Steamer Jean Webre v. H. Kendell Carter & Co; Parson’s Mercantile Law, 215; 12 Howard, 280.

We think the damages are proven to be $1245 50.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and it is now ordered, adjudged and decreed, that the plaintiff do have and recover judgmentagainst the said defendant, for said sum of twelve hundred and forty-five dollars and fifty cents, with five per cent, interest thereonfrom the first day of June, 1854, until paid, and costs of both courts, and that the plaintiff have a privilege upon said steamboat, to secure the payment of the same.


author: Voobhies, J. Merrick, C. J.

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    T. S. McCay v. J. S. Chambliss.
    An action of redhibition to set aside the sale of a slave on the ground that the slave had so little-mind or sense as to be utterly worthless, cannot be maintained.
    Such a case falls within the Article 2497 of the Code as a defect apparent to any ordinary observer.
    APEAL from the Fourfc District Court of New Orleans, Reynolds, J.

      McGoaj and Edrow'ds, for plaintiff.

      J. B. & G. T. Bemiss, for defendant and appellant.
   Voobhies, J.

The defendant is sued on his promissory note, which he alleges was given in payment of the price of a slave named Riley, sold to him by K. W. McKinney, with full warranty. James S. Person, as holder of the note by blank endorsement from McKinney, the payee, caused the same to he protested for non-payment at maturity.

The failure of consideration is the ground of defence on which the payment of the note is resisted. The defendant avers, that after the sale the slave Riley proved to he unsound and worthless, and died of a disease under which he labored at the time of the sale; that, under the laws of Mississippi, the domicil of the parties where the contract was made, he has the right to avail himself of his defence against the plaintiff, as holder of the note.

Conceding his proposition to be true, on which we express no opinion, we do not feel ourselves authorized, after a careful perusal of the evidence, to say that the Judge a quo erred .in his conclusion.

The alleged sale, it appears, took place on the 8th of March, 1852. One of the defendant’s witnesses testifies, “ that he was informed, and believes,” that the negro is dead; that he died during' the spring or summer after Mr. OJiambliss bought him. He does not know of what disease he died; he saw him several times previous to the 16th of October, 1862, when he seemed to be in good health ; but the last time he saw him, about a week or two before he died, he seemed to be in bad health, which he attributed to his exposure while runaway. The other witnesses, Dennis and Lewis, both testify that u Biley had so little mind or sense as to render him utterly worthless,” the former adding that he was informed by B. C. Brown, the overseer of the defendant, that Biley died in August, 1852, but of what disease he did not know; neither did he know the state of his health between the 8th of March and 15th of October, 1852, except while under his charge, just after he had runaway, when ho looked to be in bad health. There is nothing showing the nature of the disease of which the slave died, nor the date of its origin. No physician appears to have been called in. Neither does it appear that any attempt was ever made by the defendant to have the sale annulled on account of the alleged defects. But it is insisted by him that the proof of the defectiveness of the slave’s mind is conclusive.

It is not pretended that the slave was afflicted with madness, one of the absolute vices of slaves giving rise to redhibition. In the case of Briant v. Marsh, 19 L. R., 392, it is said, that actual idiocy may, perhaps, be considered as one of the absolute vices, although not specially classed as such under Article 2502 of the Code. But the qualification which follows, clearly indicates, we think, that the court did not intend to sanction such an interpretation. On the contrary, the organ of the court remarked: “ But such a defect as that would, we think, be so apparent to an ordinary observer, as to bring the case within the Article 2497 of the Code.” So, in the present case, if the slave “ Biley had so little mind or sense as to be utterly worthless,” it appears to us that it must have been apparent to an ordinary observer at the date of the sale. Hence, we do not think the defendant can-have any just or legal ground of complaint.

Judgment affirmed.

Merrick, C. J.

I concur in the decree in this case under Art. 2511 O. C., but I am not prepared to say there may not be cases of mental imbecility which would give rise to an action of redhibition, because not a vice discoverable on mere inspection by a person of ordinary experience.


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    J. L. Powers v. W. E. Hubbell—Turnbull & Co., Intervenors.
    The keeper of a livery stable has no privilege by law upon carriages and horses kept in his stable.
    When the vendee of a carriage covenanted with his vendor not to sell it to the prejudice of his vendor’s right, and a subsequent purchaser assumed the payment of'the price and received possession from the original vendor : Reid, that the vendors privilege still existed.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      J. J. Michel, for plaintiff.

      Semmes & Edwards and Budd & Lambert, for intervenors and appellants.
   Merrick, O. J.

This case presents the question, whether the keeper of a livery stable has a privilege upon the carriage and horses kept by him, and, if so, whether it is superior to that of the vendor of the carriage.

The plaintiff’s counsel contends, that the privilege of the keeper of the livery stable for the keeping of the horses and the storage of the carriage is that of the lessor, and he cites the Articles 3185, 3223, 3224, 3225 of the Civil Code, and 5 An. p. 718, in support of this position.

The lessor, under the contract of letting and hiring, parts with the occupanc3r of the real estate, and the same goes into the occupation of the lessee.

Here the possession of the livery stable is in the keeper, who has never parted with the possession. The hack driver who takes his horses and carriage to the lively stable for keeping, has himself possession of no part of the building, and the reward which the owner exacts for such keeping is not rent of the stable.

The Articles of the Code cited do not confer upon the plaintiff a privilege, and we are not aware of any other Articles of the Code which gives the keeper of a livery stable a privilege upon the carriage sent there with the horses to be kept. Whether he has a privilege for preserving the horses by feeding them, it is not necessary to decide. The plaintiff contends that the intervenors have lost their privilege upon the carriage, because they sold it first to one Madden, who afterwards sold it to the defendant, and, therefore, the intervenors have, under Article 3194, lost their privilege.

We think the intervenors have not lost their privilege. Madden, in a written contract, covenanted not to convey the carriage to the prejudice of the rights of the intervenors.

Before the sale to the defendant, in pursuance of Madden's contract, the carriage was delivered to the intervenors, from whom the defendant received it. He, moreover, agreed by an entry on Madden's contract, to all the conditions of the sale to Madden, and assumed the payment of his notes to the intervenors, at the time they delivered him the carriage.

Thus, HuVbell placed himself in Madden's shoes as purchaser, and, as a consequence, the property was still bound for the payment of the vendor. The vendors had not allowed the carriage to be sold without making their claim and obliging the new vendee to receive possession of them, and to assume to them the payment of the price. As against the plaintiffs who had no privilege at all it must be held that the defendant stands in the relation of a vendee to the intervenors, and not having paid the price their privilege must be recognized.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court, upon said demand in intervention, bo avoided and reversed, that the vendors’ privilege in their favor bo recognized upon the proceeds of said carriage and harness, for the payment of said sum of five hundred and eighty-five dollars and interest, as set forth in their petition of intervention, and it is further ordered, that the proceeds of said carriage and harness, after deducting the costs of sale, viz: the sum of five hundred and sixty-one dollars and sixty-five cents, be paid over to the said intervenors, in part satisfaction of the vendors’ privilege, and that said plaintiff, James S. Powers, pay the costs of the appeal and the cost of the intervention in the lower court.


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    M. A. Cornish, f. w. c., v. L. N. Shelton.
    Where the disease of which a slave died manifested itself within three days after the sale, but death was caused by a relapse not attributable to negligence on the part of the purchaser, held., that the sale should be avoided.
    The presumption of the existence of a disease at the time of the sale, from its manifestation within _tíjree days after the day, may be rebutted by evidence.
    APPEAL from the Eourth District Court of New Orleans, Reynolds, J.

      W. H Hunt, for plaintiff.

      L. M Simoncls, for defendant and appellant.
   Cole, J.

This suit is instituted for the recovery of the price paid for a slave, on the ground that she was affected with a redhibitory vice, which caused her death within three days after the sale.

It is proved that plaintiff purchased from defendant the slave Diana on a Saturday; she was taken sick very early on Sunday morning, and died of yellow fever within three days after the sale.

The vice having made its appearance within three days after the sale, is presumed to have existed before. C. C. 2508; Landry v. Peterson, 4 An. 96.

It is averred by defendant that yellow fever is not a redhibitory vice; that not only is the disease curable, but that in this case the patient was actually cured, and through some imprudence or negligence she was taken with a relapse, of which she died.

It appears that her attending physician was employed by defendant, and at one time he considered her out of danger. A person who has been sick with the yellow fever is not, however, free from the danger of a relapse for a considerable period after the disease has apparently departed. If this slave committed any imprudence in leaving her bed too soon, or in eating improper food, it may perhaps be attributed to the belief of the physician that she was out of danger, which may have prevented him from warning her sufficiently of the danger of such imprudence. As this physician was employed by defendant, the latter cannot take advantage of any want of prudence on his part.

It is established that plaintiff rendered good attention to the deceased, and that that the decease of Diana is not attributable to any negligence on her part.

As this slave died of a relapse of the yellow fever, which exhibited itself within three days of the sale, then her death was produced by the effects of a disease which the law presumes to have existed before the sale.

"VVe admit that the presumption declared by Article 2508 O. 0., to wit: that the appearance of the vice within three days after the sale is not conclusive, but may be rebutted by evidence; in this case, however, there is no testimony to rebut the presumption of law. See Dugas v. Estilletts, 5 An. 559.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be affirmed, with costs.


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    Benjamin May v. John F. Ball.
    When a party acknowledges service of a rule on him to set aside a judgment, and contests it on its merits, it has the effect of a waiver of all exceptions to the form of proceeding.
    Where judgment was rendered without a hearing or consent of parties, held^ that although rendered in favor of the plaintiff, he had a right to have it set aside if it was not such a judgment as he wanted.
    APPEAL from the Sixth District Court of New Orleans, Ootton, J.

      Emerson & Huntington, for plaintiff and appellant.

      A. Q. Semines, for defendant.
   Spofford, J.

In this ease it appears that a judgment was taken upon what purports to he a confession, by the defendant sous seing privé, before the cause was at issue, and without the consent or knowledge of the plaintiff or his counsel

It was erroneously stated upon the minutes of the lower court that this judgment was rendered upon motion of the plaintiff’s counsel.

Upon discovering this error, the plaintiff took a rule upon the defendant to show cause why the judgment should not he set aside and annulled. The defendant’s counsel acknowledged service, and contested the rule upon its merits, without taking any exception to the form of proceeding.

The facts stated above were proven, and no explanatory evidence was given by the defendant’s counsel to show how such anomalous proceedings were brought about.

The District Judge dismissed the rule, because he thought he could not disturb a judgment which he had signed. We think this was an exception to the form of proceeding which had in effect been waived by the defendant.

When there is no reconventional demand, a party plaintiff is at liberty to discontinue his suit at any time. Judgment cannot be entered against his will unless due steps have been taken to put the cause at issue and have it fixed for trial, or unless he is in default himself.

The judgment in this case was improvidently rendered without a hearing or consent of parties, and when the plaintiff was not in default. Although the judgment is in his favor, he may have it set aside, if it was not such a judgment as he wanted. The plaintiff here asserts that he did not desire the judgment to be rendered, and that he is aggrieved by it.

It is, therefore, ordered, that the judgment on the rule be avoided and reversed, and that the prayer of the rule he granted, the judgment rendered on the 3d and signed on the 5th December, 1856, set aside and annulled, and the •cause remanded for further proceedings, according to law; the costs of this appeal to be borne by the defendant and appellee.