text:
    No. 10,009.
    Sigfried Gruner & Co. vs. Aug. Stucken.
    Plaintiffs, as agents of defendants, entered into certain contracts of sale of cotton for futuro . delivery with third peisons. Hold: That the legality of said contracts depends on the dealings between the parties thereto; and cannot be affected by the faofc that in various previous transactions which plaintiffs, as agents, had made with other'third parties, settlements had been made by adjustment of differences.
    This raises no presumption that the parties to these contracts intended and impliedly consented to such mode of settlement.
    Plaintiffs having been invested by defendant's firm with express discretionary power to manage and settle the contracts “ as if they were their own,” defendant is hound by the mode of settlement adopted in absence of proof of fr md or injury.
    The liability of one partner for the contracts made by his copartner, without his knowledge or assent, is a question of agency. Third persons are not hound by special limitations in the articles of partnership of which they have no notice, but may assume that the partners have the power ordinarily incident to tho bnslness pursued by the firm.
    Dealing in futures is not, as a matter of law, and in absence of evidence, presumed to be an incident of the business of cotton buyers and commission merchants.

      But wliere defendant’s firm had two places of business — one in How Orleans, directed by him, and tbe other in Savannah, conducted by his copartner, and where both branches had repeatedly employed plaintiffs in dealings in futures, and had received and settled the accounts. Held: that plaintiffs had the right to assume that such dealings were within the scope; of the business, and within the presumed knowledge of all the parties.
    In this case plaintiffs received from the Savannah partner two orders for purchase of futures, one for account of the firm, the other for his individual account. Held: that, without the clearest proof that the latter was for the firm, in such manner as to make it certain that, if profit had resulted, the firm would have received it, the latter cannot he held for the loss.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      H. W. Huntington & Horace L. Dufour, for Plaintiff and Appellant:
    t. A contract of sale;of property for future delivery is not an illegal’as being ot again* bling or wagering nature, unless there was-a mutual intention not to receive or deliver the goods, mutually known to the contracting parties, and existing at the time of the contract was entered into. 37 Ann. 814; Art. 2983 C. C.
    2.A partner is the agent of his copartners, and has the authority and power'to bind them by acts done within tbe usual scope of their business.
    3.The correctness of the claim in suit is established by the evidence.

      Farrar & Kruttsehnitt for Defendant and Appellee:
    1. The fa'cts show that the transactions sued on were individual apeeulations of defendant’s former partner.
    2. This is undoubtedly the case as to three hundred bales bought and sold in the name of Carl. ■
    5. This last transaction sued on is characterized by the fifteen other transactions had between plaintiffs and Stucken & Co. From the fact that they were all settled by differences, the presumption is irresistible that it was tbe mutual intention of the parties to settle the last by differences.
    4.This conclusion is emphasized by the fact that plaintiffs used these contracts on the floor of the Exchange in settlement with their fellow-brokers — in 'other words, ringed them out — and paid no money in settlement thereof. That is why the loss occurred to them.
    5.After this.use of'the contracts on the floor of the Exchange, there jvas no contract left which Stucken &'Co. could enforce. Irwin vs. ‘Willar, 110 U. S. 499.
    I». Under the facts,*plaintiffs are not in the position of an innocent non-participating broker, seeking to recover disbursements made on account of his principal.
   The opinion of the Court was delivered by

Fenner, J.

The defendant was a member of the firm of August Stricken & Co., .composed of himself and Carl Eglinger, and engaged in the business, of buying cotton on commission. The business was conducted in New Orleans, uuder the control of Stucken, and in Savannah, under the control of Eglinger.

The firm was dissolved in April, 1885, and the present action is brought against Stucken as an individual member, on an account for losses on certain contracts for future delivery of cotton entered into by plaintiffs, who aré cotton brokers in New York, as agents and by orders of Stucken & Co.

Defendant sets up two defenses:

1st. He denies that plaintiffs, in said dealings, were eniployed or acted as agents of’his firm, but alleges that their employment was by Carl Eglinger individually.

2d. He alleges that the dealings were gambling transactions, for losses on which no recovery can be had.

J"~ So far as the latter defense is concerned, wo discover nothing in the case to difference it from that of Connei & Hare vs. Robertson, 37 Ann. 814, where we very carefully and fully defined the piinciples applicable to such dealings.

The evidence cleaily shows that contracts (made under the rules of the New Yoilc Cotton'Exchange), contemplated and required the actual delivery of the cotton, and created, as between the parties, absolute rights and obligations to demand and to make such delivery.

Although plaintiffs were guarantors of the contracts, yet, in making them, they acted as agents of their piincipal, and they dealt for him with other third persons. There is not a tittle of evidence of any agi cement or mutual intent as between the parties to these contracts at the time of their execution, that they should be settled otherwise than according to their terms. The fact that in various previous transactions which plaintiffs had made for Stucken & Co., settlements had been made without actual delivery, cannot infect these contracts with any such presumed intention, because it does not appear that the third parties to the present contracts were the same as those dealt (wijdriu the former cases, and who consented to such settlements.

Neither can defendant complain of the method of settlement adopted bjT plain tiffs. After the contracts had been made, and on the eve of Eglingei’s departure for EuropCj he conferred upon plaintiffs the fullest possible discretionary power to manage and settle these contracts “as if they were their own.” There can arise no question, therefore, as to their authority to settle in the way adopted, just as Eglinger himself might have done. There is no aspersion of.their good faith or proof of any injury to defendants by their action. The case of Irwin vs. Williar, 110 U. S. 499, has no application, the brokers there having acted without authority.

We will next consider the authority of Eglinger to bind his copartner by dealing in cotton for future delivery, without the latter’s actual knowledge or consent. In the case just cited the Supreme Court of the United States said :

“ The liability of one partner; for acts and contracts done and made by his copartner, without his actual knowledge or assent, is a question of agency. If the authority is denied by the actual agreement between the parties, with notice to the party who claims under it, there is no partnership obligation.”

Here, there is no pretense of any notice to plaintiffs of any special limitations bn the authority of the partners. But the court proceeds:

“If the contract of partnership is silent, or the party with whom the dealing has taken place has no notice of its limitations, the authority for each transaction may be implied from the nature of the business, according to the usual and ordinary course in which it is carried on by those engaged in it in the locality which is its seat, or as reasonably necessary or fit for its successful prosecution.”

Here we have no evidence as to whether dealings in futures are in the usual and ordinary course of business of persons engaged in the business of cotton-buyers and commission merchants pursued by Stucken & Co., and we should hold, on the principle adopted in Irwin vs. Willjar, that without evidence, as a matter of law, such dealings aró not necessarily implied as essential parts of such a business.

Finally, the United States Supreme Court said :

“If it cannot befound in that, itinay still be inferred from the actual, though exceptional, course and conduct of the business of the partnership itself as personally carried on, wbh the knowledge, actual or presumed, of the partner sought to be charged.” Irwin vs Williar, 110 U. S. 499.

Now, in the instant case, it is proved that from 1881 plaintiffs have been frequently employed in future transactions by the firm of Aug’ Stucken & Co., on orders, some of which came directly from the New Orleans house, controlled by defendant himself; that accounts of these transactions have been rendered to, and settled by, the firm, both at New Orleans and at Savannah, and that no question of authority had ever been raised.

We consider' that, under this course of dealing, plaintiffs had the right to assume that such transactions were within the scope of the partnership business, and within the presumed knowledge of all the copartners.

But, admitting Carl Eglinger’s authority to bind his firm by dealing in futures m the name of and for account of his firm, the question remains whether these particular transactions were for account of the firm.. , •

The evidence shows that Eglinger sometimes dealt in futures on his own as well as on.tlie firm’s account, and that in the same month with these transactions he had so dealt through plaintiffs.

The orders concerned in this case were received and transmitted by Haynes & Schley, agents of plaintiffs in Savannah.

' They are telegraphic, and the first, dated April 14, 1884, reads :, “Buy two July Stucken.” The other, dated April 15, 1884, reads : “ Buy three July Carl,” both signed Haynes & Schley. 1

The return telegrams of plaintiffs are, to the first: “Bought 200 bales July delivery 12.17 Stucken j” to the second, “ Bought 300 July 12.01 Carl order 15th.”

When these contracts were closed out plaintiffs’ telegram, announcing it, read : “Sold 200 bales July7 delivery Stucken, and sold 300 bales July delivery Carl.”

This correspondence clearly and unequivocally impresses upon these dealings the character of transactions for separate and distinct accounts ; and while we may fairly infer-that the word “ Stucken ” in the first order, was a telegraphic abbreviation of August Stucken & Co., the inference is irresistible that the word “ Carl ” in the second • order, meant Carl Eglinger.

Had the transactions resulted in a profit, it is plain tli.-t Eglinger could have claimed the profit on the last order as his own, and that plaintiffs would have been bound to account to him alone. Nothing but the clearest explanation of the difference in the orders and distinct pi oof of a contemporaneous'und .rstanding between all parties could justify the shifting of the loss upon the firm. No such explanation or proof is found in the record. Eglinger merely7 says : “ I gave the order-for 500 bales in the name of August Stucken & Co.1,” which is obviously contradicted by the dispatch.

Gruner glibly says : “Carl, referred to in telegram of April-15, we understood to mean August Stucken & Co.; it had been so used on previous occasions.” The correspondence contradicts such understanding, and is unexplained. Ot.to Arens, tlie other member of plaintiffs’ firm, who testified, does not refer to the matter.at all.

The testimony of Haynes.& Schley is not taken.

The only payment on account of the loss was one of $500, made by Eglinger for Stucken &' Co., in ^October, 1884. The "heavy balance now claimed was suffered to remain uncollected without demand on plaintiffs until long after the dissolution of the firm of Stucken & Co. Although Gruner met Stueken in Europe after the loss, he did not mention the matter to him.

We are bound to treat the order for account of Carl, as it appears on the face of the correspondence, as an individual transaction of Eglinger, for -which defendant cannot be held responsible.

This leaves defendant liable only for the loss on the 200 bales, subject to the credit of $500, which having been paid by Stueken & Co., 'must be imputed entirely to their account.

That loss is.the difference between 12-17, at which the cotton was' bought and 11-01 at which it was sold..............'........$1024 00

Add 3-5 of commissions and charges........................ 51 00

Total due and bearing 6 per cent, from June 24, 1884......$1075 00 subject to credit of $500, with like interest, from October 17, 1884.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed; .and it is now. adjudged and decreed, that there be judgment in favor of plaintiffs and against the defendant, August Stueken, for one thousand and seventy-five dollars ($1075), with interest at 6 per cent, per annum from June 24, 1884, subject to a credit of five hundred dollars, with like interest, from October 17, 1884, defendant to pay costs of the lower and of this appeal.


source: Caselaw Access Project

author: Watkixs, J. Fenner, J.

license: Public Domain

text:
    No. 10,047.
    The State of Louisiana vs. Will A. Strong.
    An indictment, or information, which contains an averment negativing prescription, presents a material issue of facts, which a jury can alone decide.
    It is the duty of the Auditor of Public Accounts to direct prosecutions in the name of the State, against officers or individuals who, by any means, become possessed of public money and fail to pay the same upon due and proper demand therefor.
    On vhe trial of such offenders as may he charged with having possessed themselves of a portion of the public money, by means of Auditor’s warrants drawn upon the State Treasury, a transcript from his books is competent evidence
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Burgess, J.

      M. J. Cunningham, Attorney General, and L. J). Beale, District Attorney, for the State, Appellee :
    When the trial judge refuses a continuance for want of due diligence in procuring the attendance of absent witnesses, his ruling will not he disturbed, unless it clearly appear that his discretion has been abused. 37 Ann. 128, 774, 786 ; 31 Ann. 179, 408; 34 Ann, 381; 34 Ann. 679 ; 36 Ann. 15J, 852, 872.

      As non-resident witnesses can be summoned or attached in vacation (R.. S. 1020), it is not duo diligence for‘'defendant to wait till court moots and his case is fixed for trial to make the necessary affidavit to procure subpoenas for witnesses residing in distant pan&lics. \v\
    A defendant failing to give tbe city address of a witness residing in RowOrleaus, does not' use duo di igeucfe to procure bis attendance.
    Defendant is not entitled to a continuance on account of tbe absence of witness whose evidence is mateiial, aiitbits materiality must appear from tho affidavits for continuanco and attachments. ¿ *
    When dcfei dant is prosecuted for the embezzlement of monoy actually received, evidence as to amounts due him and never paid him is not material or relevant. ' -
    Defendant is not entitled ts a continuance when the facts claimed to be provable by tho absent witnesses ootild bo established by other e/idence.
    Tho Attorney General engaged in the prosecution cannot be excludod from the court-room on the ground that lío is a witness in the case. In any case the power to exclude witnesses is discretionary. Wharton’s PI. and Pr., § 5CD; Bishop's Or. Pro. §§ 108G, 1887.
    A Secretary of State loaeiving the proceeds of election tickets, paid for by State, and by him sold under the provisions of Act 101 of 1882, is indictable for its embezzlement under 11. S. 903.
    A person embezzling money by viitue and under color of his office or employment cannot be beard to question the light of his principal, or tho legality of bis own act in receiving it. Wharton’s Cr. L. (Sth ed.), §§ 1024, 1023, 1038.
    R. R. 176, 17ih paragraph, empowers the Auditor to direct prosecutions, by civil action, for debts due the State, and has no' reference to prosecutions for crime.
    Piescription' begins to run .in favor of an offender only from tbe time his, offense is mado. known to a public officer having the power to put the machinery of the courts in motion for iis punishment, and this includes only tho Attorney General, the District; Attorncjr, the grand jury and a magistrate, perhaps, if an affidavit is made before him. R. S. 98G. And facts must be made known to the officer which constitute an offenso.
    Tbe question as to whether a verdict is contrary to the law and evidence, and the question as to the amount embezzled, in piosecutions for embezzlement, are questions of facts, not subject to loview on appeal.
    When tl«e information charges tbe embezzlement of a specific amount, and the jury finds tbe accused “ guilty as charged,” tho verdict is for the amount charged in the bill.
    When the iuibimation charges the embezzlement, on tho day the officers term expired, of money received by him at different dates, the date of the embezzlement is specifically ckargal. But even if tbe bill is defective in this particular, defeudfini’s remedy was to demand a bill of particulars beib'e the tiial, and such defect cannot be taken advantago of by motion in airest. Wharton’s Or. B. (8th ed.), § 1048, and authorities cited; Wk. PI. and Pi-., §§ 157, 702, 703, 407 b; Bishop’s Or. Pro., §§ G43 to G46.
    Id is unnecessary to allege the particular maimer in which the embezzlement was committed. Various amounts may have been embezzled in different ways, but failure to pay demand is sufficientprhna facie pioof of embezzlement of the whole. R. S. 903.
    Ib is unnecessary to allege by whom tho demand "was mado; but any defect in the proof as tbe authority of tho officer making tho demand would have to be taken advantage of by objection to evidence, or by charge requested, and cannot be reached by motion in arrest.
    An information charging tho embezzlement of tho proceeds of election tickets sold by defendant, is not open to tho charge of duplicity, because it explains that said election tickets bad been paid for with money drawn from the Treasury — which explanation was necessary to show tho State's tight to the proceeds.

      The prescription of six months against prosecutions for fines or forfeitures under R. S. 986, docs not apply to ciimes and offenses merely because the penalty therefor, or part thereof, may be a fine.
    Tinder that section only the presciiption of twelve months bars prosecution for crimes and offenses, whatever ho the character of the penalty.
    The object of a prosecution for embe zzlemeut is to punish the cime, and not to recover the fine, although it is a necessary part of the penalty. 13 Ann. 369; 15 Ann. 499.
    Sections 903 and 9C4 of the Revised Siatutes ate not repealed by Sec. 88 of Act Ho. 68 of 3870, or by Sec. 90 of Act 4*2 of 1871.

      G. W. Buckner, K. A. Gross, B. W. Sutherlin, and Young <£• Thatcher, for Defendant and Appellant:
    The off nse charged was made "known to the Arditorraore than twelve months next precede ii g the filing the infonuation, and is therefore prescribed. Section 37G, paragraph 7, It. S.; Act 42 of 1871, section 52. Case of State vs. H. C. Dibble, Ho. 1847, Sup. Criminal Com t of Parish of Orleans.
    The judgment should be arrested, because sections 903, 901 R. S., are repealed by section 88, Act G8 of 1870, and section 82 of Act 42 oi 1871. which provide that th'e prosecution, shall be by indictment, and therefore indictment is the only method allowed. Hawkins’ Pleas of the Ciown. vol. 2, pp. 301, 302; 1 Burrow-», pp. 544, 545; 2 Burrows, p. 803; 1 Crauch 252; "Woods’ TT. S. Circuit R ports, vol. 3, p. 227; Woodbury & Minots’ Mass. Reports, vol. 3, p. 345 ; 7 Robinson 173; State vs. H. C. Dibble, Sup. Court, par» isk of Orleans, Ho. 1443.
    The charge of the trial judge, that no one but 1ke Attorney General, District Attorney oi magistrate with criminal jurisdiction, is authorized to direct a criminal prosecution, is wrong, and misled the jury. R. S., Secs. 994,176; Act 42 of 1871, Sec. 92.
    The verdict is nugatory, because a special verdict was necessary where the punishment, is imprisonment', fiue and restoration. 5 Ann. 329; 2 Eastman’s Pleas of the Crown, 708, 784 ; 5 Burrows 2C62.
   The opinion of the Court was delivered by

Watkixs, J.

The defendant is proceeded against by information, under Sec. 903 of the Revised Statutes, on the charge of embezzlement of public money, property of the State, while he was Secretary of State; and from a verdict of guilty and sentence by the court to fine and imprisonment at hard labor, he has appealed, and rests his claim to relief upon several bills of exception taken to the rulings of the trial judge, refusing to prant a continuance to obtain the attendance of absent witnesses; declining to give him a new trial; refusing to give to the jury certain special charges, and refusing to arrest the judgment.

I.

Counsel for the accused sought to arrest the j udgment and sentence of the court on the ground that Sec. 903 ct sequentes of the Revised Statutes, under which this information was found, had been repealed by See. 88 of Act 68 of 1870, and Sec. 90 of Act 42 of 1871, both of which provide for the prosecution of such cases by indictment only, and that he cannot be legally punished under verdict and sentence on-information, as demanded.

/,sWe are fully satisfied, from a careful examination of those acts, and comparisons made with the provisions, of the sections of the Revised Statutes referred to, that there is no inconsistency between them, and that the latter is not repealed; As this prosecution was instituted under those sections, the provisions of ihose acts are not necessarily inyolved. The Constitution declares that prosecutions may be by indictment or information. Art. 5.

II.

.The defendant tendered a plea of prescription of one year, and demanded his discharge from prosecution on that ground, without avail, apd. renews that resistance here.

The information charges that the defendant did, on the 22d of May, 1884, then and there being Secretary of State, ombezzle the sum of $.4251 85, money belonging to the State, “which money he, the said Will. A. Strong, had theretofore, to-wit :• From the 15th day of August, 1882, to the 5th day of May, 1884, both inclusive, received, and been entrusted with in his said official capacity, and under color and by virtue of his said office of Secretary of .State, as the proceeds of election tickets sold by him, and for his account, under the provisions of Act 101 of 1882, which election tickets had been paid for with the money of the State, drawn from the State Treasury, out of the appropriation made for election purposes, under the appropriation bill of 1882, Act 63 of said year, on Auditor’s warrants, issued on the orders and vouchers of said Strong, from the 6th day of September, 1882, to the 28th of April, 1884, both inclusive ; ..which money, to-wit, the sum of $4251 85, the property of the State of Louisiana, as aforesaid, he, the said Will. A. Strong, has failed to pay, or account for to the State, notwithstanding due and legal demand made upon him therefor; and which money the said Strong did then and there, to-wit; the 22d day of May, 1884, feloniously, wrongfully, fraudulently and corruptly use, dispose of, conceal, convert to his own use, and embezzle.”

. :The information contains an averment to the effect that it was presented and filed within one year next after the offense had been made known to a public officer having power to direct a prosecution.

As thus presented, the evidence of prescription vel non was properly submitted to the jury.

It was a proper issue for them to try. It was a question of fact appertaining to the merits of the controversy, which could be passed upon by the jury alone. 36 Ann. 975, State vs. Victor; 7 Ann. 255, State vs. Foster.

During the progress of the trial it became an important question in the case whether the. Auditor of Public Accounts was authorized to direct prosecutions in. the name of the State, and the defendant’s counsel requested of the trial judge the following special charge to the jury, viz:

. “That the Auditor of Public Accounts of the State of Louisiana was, as public officer, authorized by law to direct prosecutions in the name of the- State of Louisiana, for all official delinquencies against all the debtors of the State, 'in cases such as the one on trial; therefore, if you find from the evidence that the defendant did embezzle the public moneys of the State of Louisiana, as is alleged in the bill .of information, then, and in that event, if you find from the evidence that such official delinquency was made known to the Auditor of Public Accounts for more than twelve months after the expiration of defendant’s term of office as Secretary of State, and for more thau twelve months before the information was presented and filed in this case, the .defendant cannot be punished therefor, and it is your duty to acquit .him.’’

The trial judge declined to give this in his charge to the jury on the ground that the “ Auditor is authorized to direct prosecutions by civil action alone; and that no one but the Attorney G-eneral, District Attorney, or magistrate, with criminal jurisdiction, is authorized to direct criminal prosecutions, like, the one at bar.”

This ruling was manifestly erroneous.

The duties of the Auditor of Public Accounts are specifically enumerated in sections of the Revised Statutes, 172 et sequentes; and 176 declares, in express terms, that “ it shall be his duty * * * to direct prosecutions in the name of the State for all official delinquencies in relation to the assessment, collection and payment of the revenue; against all persons who, by any means, become possessed of public-money or property, and fail to pay, or deliver the same ; and against all debtors of the State.”

The language herein employed is quite similar to that of the Statute in reference to the prescription of offenses. It declares that “no person shall be prosecuted, tried or punished for any offense, wilful murder, etc., excepted, unless the indictment or presentment for the same be found or exhibited within one year next after the offense shall have been made known to a public officer having the power to direct the investigation or prosecution,” R. S., Sec. 986.

Not only does the statute quoted confer the power on the Auditor, but it makes it, unmistakably, his “ duty ” to direct prosecutions in the name of the State,” in each of the three following cases, viz:

1. “ For all official delinquencies in relation to the assessment, collection and payment of the revenue.'"

2. “ Against all persons who, by any means, become possessed of public money or property, and fail to pay or deliver the same.”

3. “ Against all debtors of the .State.”

The charge against the defendant comes within the terms of paragraph second, as he is alleged to have embezzled public money, property of the State, which he had received and been, entrusted with, as Secretary of State — same being the proceeds of the salo of election tickets, which had been paid for with the money of the State, drawn from the State Treasury, on warrants issued by the Auditor, and against an appropriation made by the Legislature for that purpose.

Indeed, upon the trial of persons thus charged, the- books of the Auditor are not only competent evidence, but the statute of 1871 declares that “ upon the trial of any such officer ffir embezzling public money, under the provisions of this act, it shall be sufficient evidence for the purpose of showing a balance against such officer or person, to produce a transcript from the boohs of the Auditor of Public Accounts, and proof of the refusal of any such officer, or person, whether in or out of office, to pay,” etc. Sec. 90 Act 42 of 1871.

By the terms of Sec. 91 of Act 68 of 1870 it is made the duty of the Auditor to cause a thorough examination to be made as often as once in every six months, “of all tho receipts and business, books and vouchers of each collector and each receiver * * and every other State officer, or agent, having an office in which business of the Stato is attended to, done or performed,” etc.

By the terms of Sec. 92 of Act 42 of 1871, it is provided that if, iu the course of any such examination, any evidence of embezzlement, or breach of trust is discovered on the part of any officer, or persons whose accounts have been thus examined, the same shall be made known to the Auditor, “and it shall be the duty of the said Auditor to forthwith cause the arrest of collector, receiver, or agent, or person, or persons, Whose official functions shall be suspended,” etc.

We are at a loss to conceive of any room -left, in the face of such provisions, for any argument in support of the theory that the Auditor is not, in the eye of the law, a public officer, “ having the power .to direct an investigation, or prosecution ” within the intendment of Sec, 986 of ike Rtwised Statutes,

The quoted-provisions of those statutes deal with the same subject-matter as that treated of in R. S., Sec. 903 el scquentcs, and are entirely consistent, therewith.

Wo aro of the opinion that the charge requested was a proper one, and that it was error on tho part of the trial judge to have refused it. This was evidently to the prejudice of the accused, and ho is therefore entitled to a new trial.

It is, therefore, ordered, adjudged and decreed, that tho verdict of the jury be set aside, tho sentence of tho court arrested, and tho causo remanded to the lower court for further proceedings, according to law and the views herein expressed.

■Mr. Justice Fenner dissents, and flies a separate opinion.

Dissenting Opinion.

Fenner, J.

Section 986 R. S. provides: i:Xo person shall be prosecuted for any offense, wilful murder, etc., excepted, unless tho indictment or presentment for t.ho same bo found or exhibited within ono year.noxt after tho offense shall have been made known to a public officer having the power to direct the investigation or prosecution.” ,-J.t.is obvious that the public officer” referred to is ono whose official duty it is to inaugurate criminal proceedings for offenses of which lie.has cognizance, and who represents the State in such proceedings. It is the negligence of the State, through her officers authorized and required to represent her.in such matters, which forms the basis of prescription.

In a certain sense, every public officer, in common with every citizen, has the power to inaugurate criminal prosecutions for any offense, by making affidavit before the proper authority; but their neglect to do so would operate -no basis for prescription, except iu tho case of public officers, to whom tho-Stato-had confided tho light and duty to act as. her agent in such matters, and whoso neglect would bo tho State’s neglect.

Such, I think, to be the clear meaning of the statute.

The Auditor of Public Accounts is a constitutional officer, whose duties appertain to the fiscal department of the government, and who has no connection whatever with the administration of criminal justice, except where duties iu connection therewith are imposed by special statute, as for instance, by Sec. 92 of the Revised Statutes, Act No. 42 of 1871.

The claim of defendant that such duties are imposed on the Auditor by Sec. 176 of the Revised Statutes,T think, has.no foundation. That section, in fen paragraphs, defiues the various duties of the office, all of which, as therein set forth, relate to the fiscal affairs of the State ; and the seventh paragraph makes it his duty : “ To'direet prosecutions in the name of the State for all official delinquencies in relation to the assessment, collection and payment of the revenue against all persons who, by any means, become possessed of public money or property, and fail to pay or deliver the same, and against all debtors of the State.”

If, instead of the words direct prosecutions,” the words “ direct suits” had been used, no one would have supposed, for an instant, that anything was intended except civil suits.

But the word “ prosecution ” by no means necessarily refers to criminal proceedings.

It is equally applicable to civil actions.

Mr. Abbott gives the following definition :

“ Pi osecute : To carry forward, wage or maintain a judicial proceeding.

“ Prosecution : The act of conducting or waging a proceeding in court.”

We commonly speak of prosecuting a civil, as well as a criminal, action.

The use of the word, therefore, leaves ns at entire liberty to determine iu what sense the Legislature used it.

When we find that the prosecutions directed are to be “ against all persons who by any means become possessed of public money or property and fail to pay or decline to deliver the same, and against all debtors of the State,” the inference seems irresistible that civil suits for the recovery of the money or property or of debts due the State aro alone contemplated, since it is evident that debtors of the State and even persons who come into possession of mouey or property belonging to her, are not necessarily criminal, and the sapie may be said of delinquent revenue officials,, who may or may not bo criminals, and whose prosecution for criminal delinquencies is provided for in the levenue laws of the State.

This view is strengthened by the use of the words “in the name of the State,” which would be the sheerest superfluity, if crimiual proceedings were referred to, because these are, always and necessarily, carried on in the name of the State ; whereas, in order to bring a civil suit in the name of the State, the Auditor required special authorization to that effect.

Considering, further, that the representation of the State in criminal proceedings is confided to special officers established for that purpose by the Constitution and laws, and that such duties are utterly foreign to the functions of the Auditor of Public Accounts, T think the Auditor does not belong to the class of public officers referred to in section 986 R. S.? and must, therefore, dissent from the opinion and decree of the court.


author: Bermudez, C. J.

text:
    No. 9985.
    Alexander Kallman vs. His Creditors.
    An opposition charging: fraud and undue preference against an insolvent, and seeking to have him debarred from the benefit of the insolvent laws, cannot be maintained, when the act complained of was undone before the cession and matters restored to their previous condition, the less so where the transactions appear to have taken place in good faith, andno injury resulted therefrom to the complainants.
    The rule of evidence is well recognized and well settled: that, where a litigant resorts to the declarations of another, he must take the whole or none. They are a unit. He cannot use the portions favorable and repudiate the rest.
    It lias, accordingly been held that-, where suoh party introduces iu evidence, without qualification, an instrument of writing, in which the other party has an interest, he cannot be permitted to impeach or gainsay the verity of its statements.
    PPEAL from tlie Civil District Court, for the Parish of Orleans. Voorhies, J.

      Hraughn, Huele, IHnkelsjoiel & Hart, for Plaintiff and Appellant.

      W. 8. Par leer son, for Opponent and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

The question presented is: Whether the insolvent has done any act which, under the law, debars him from the benefit accorded to honest debtors who become unable to honor their debts and obligations.

On the 5th of December, 1885, Kallman made a voluntary surrender, of his property to his creditors, which was accepted by the court for their benefit.

On the 19th following, Kohlberg & Oo., claiming to be his creditors, opposed his application for relief, charging that he had, within the three months next preceding said surrender, made a transfer of all his property to one Fitzner, which was fraudulent, and for the purpose and with the intention of giving him an unjust preference, to their injury.

Preliminary defenses having been overruled and issue being joined, the case was tried before a jury, which returned a verdict for plaintiff (opponents), and judgment was rendered annulling the decree accepting the cession, and denying to Kallman the benefit of the insolvent laws. From this judgment Kallman appeals.

The claim of the opponents as creditors is shown.

The partnership between Kallman & Fitzner, the latter in commendmm, is established, and the dissolution of that partnership is likewise shown.

The opponents introduced in evidence an act of sale by Kallman to Fitzner, on November 11, 1885, of all his property, consisting of a cigar store and contents, his rights to a lease, a phaeton and harness and a horse, etc., for $3500, stated to have been paid and received. They have also offered in proof an act of rescisión of this sale and retrocession of the property on hand and the proceeds of the sold portion. Kallman & Fitzner were also heard as witnesses, etc.

The acts in question were introduced by the opponents without any restriction as to the purpose for which they were offered, i. e,, without any qualification of object.

As found incorporated in section 1802 et seq. of the Revised Statutes, the law enumerates the oases in which an insolvent may be charged with fraud and accused of giving an undue preference to one or more of his creditors, to the injury of the complaining parties, and provides that, when the jury declare in their verdict, on the accusation, that he has been guilty of fraud, he shall forever be deprived of the laws passed in favor of insolvent debtors, in this State, and sentenced to imprisonment for a term not exceeding three years and, if it shall ap - pear that the debtor has only been guilty of conferring an unjust preference, or advantage, upon another bona fide creditor, such defendant may be relieved from imprisonment by paying the complaining creditor, or repairing the injury or fraud complained of, etc.

The act of sale of Kallman to Fitzner, as well as the retrocession by the latter to the former, were introduced in evidence by the opponents, as said, toithout any qualification.

It is a general principle of the law of evidence, long recognized'and so -firmly settled, as to be an axiom, that where either party litigant relies on the admissions, or declarations of his adversary to make out a ease against him, the whole of those admissions must be taken together as a unit, and that such party cannot select the favorable portions and repudiate the others. Pratt vs. Fowler, 3d N. S. 454; 9 B, 145; 9 Ann. 163; 14 Ann. 581.

In keeping with that equitable rule of practice, the present eourt_ has declared that a party who introdnees in evidence, without qualified tion, an instrument of writing, cannot be permitted to impeach or gainsay the correctness of its recitals. McCleir vs. Insurance Co. 33 Ann. 801.

In the present instance, the act of retrocession contains the joint declarations of Kallman and Fitzner, as to the nature, extent and purport of the act of sale already mentioned.

It alludes specially to that sale, and distinctly declares, that the contract was entered into by them in error of law and fact; that no fraud was intended by either, and that the parries in interest can well be placed in the situation, to all intents and purposes, as they would have been in had said contract not taken place.

It contains the further statement by Fitzner, admitted by Kallman j that he has sold the cigar stock, the phscton and the horse for amounts which are specified; that the unsold property is in kind and returned, fhe sums realized being deposited in the hands of the notary who passed the act, for safe-keeping.

This took place on the 24th of November, therefore anterior to the voluntary surrender, which was made on the 5th of December following :

On the trial, Kallman & Fitzner were heard as witnesses to prove the sincerity and reality of the transaction.

It may, indeed, well be that Kallman thought that in his straightened circumstances he could legitimately set over all his property to his partner in eommendam, who had an interest in a proper liquidation of the concern, in trust, as is done elsewhere to an assignee, for the common benefit of his creditors and that, subsequently, when informed that such a course was not sanctioned by the law in this State, Fitzner consenting, the transaction was instantly annulled.

All this: the sale, the retrocession, the cancelling of the lease, the sale of tobacco, carriage and horse ; the deposit of funds realized with the notary, far from showing bad faith and fraudulent design, may well establish precisely the reverse; particularly, when it is considered that those events transpired before the judicial voluntary cession, and that it is not charged or shown that any wrong was actually perpetrated.

It is evident that, when the opposition was filed, the transfer of which complaint is made, had been undone, and that matters had been put back in the condition in which they would have stood had the transfer not taken place.

Practically, that which might, under the law, have possibly been done after, was accomplished before prosecution, and suffices to relieve the insolvent from all imputation.

The opponents then, in point of fact, had no standing in court and, uuder the circumstances, they cannot be further listened to.

It is unnecessary to determine whether Fitzner was or not, at the date of the transfer, a creditor of Kallman, as, in either case, the transaction assailed must be viewed as having never existed, and as having produced no effect or injury whatever.

The burden was upon the opponents to have proved fraud, or undue preference. They have failed to do either and, on the contrary, have established the reverse.

Hence, it follows, that the verdict of the jury and the judgment upon it, are erroneous.

It is, therefore, ordered and decred, that the judgment appealed from be reversed, that the verdict of the jury be annulled and set aside, and that the opposition of Kohlberg & Co. he rejected, with judgment in favor of Alex. Kallman with costs iu both courts.


text:
    No. 10,007.
    Succession of J. B. D. Dauterive.
    A will executed iu the country, and purporting to be a nuncupative testament, under private signature, in the presence of three witnesses only, one of whom did not understand the language in which tlio testator expressed himself and the will was drawn up, is invalid.
    The circumstance that, wjiile it was being dictated, what was then said had been translated to that witness, does not supply the want of knowledge of the language in the latter.
    The law disqualifies as a witness to a testament a person who is deaf. A witness who does not understand the language in which a will is dictated and written down is intellectually deaf, and practically, is as though he had not attended at all.
    A nuncupative will, under private signature, executed before two competent witnesses only is invalid.
    APPEAL from the Twenty-fourth District Court, Parish of St. Bernard. Imcmdais, J.

      Sambola & JDueros, for the Appellant:
    1. The irTegular or incomplete fulfillment of a formality required by law for the last will and testament, carries with it the nullity of the will in its entirety. O. 0.1581, 1582, 1583, 1595; Durauton,- Nos. 21 and 71; 3 Troplong, Dan., No. 1741; 5 L. 396 ; 5 Zacharim, * ■ § 663; 21 Demolombe, No. 22; 16 Ann. 220 ; 5 Toullier, No. 410, 11 Ann. 679.
    2. He who understands not the language of the testatoi is not a competent witness to his nuncupative will. 11 Ann. 679, 8 Merlin, quest,, verbo testament xvii, art. 1 and 2, Mackeldey, § 642, 1 Febrero, Nos. 12 and 16; 14 Ann. 233, 11 L. 365, 4 Marcadé, p. 42 ; 5 Toullier, No. 393; 9 Durauton, No. 79; 4 Saintespedés-Lescot, Don., p. 97, No. 1038; 3 Mourlon, No. 785; 21 Demolombe, Nos. 196, 197, 251; 13 Laurent, No. 268.

      3. Clear proof that no more than three witnesses to a nuncupative will, under private signature, could he had, must he adduced by him who applies for the probate thereof. 6 N. S. 88; 3 Ann. 155 ; 1 Febrero, No. 4; O. C. 1583; 7 Ann. 118; 1 B. 301; 1 N. S. 400; 12 L. 489; 15 L. 31.
    7?. T. Beauregard and II. Ghiapella, for the Appellees :
    “ A nuncupative testament under private signature, must be written by the testator himself or by any other person from his dictation; or even by one of the witnesses in presence of live witnesses. * * * Or it will suffice if, in the presence of same number of witnesses, the testator presents the paper on which he has written his testament, or caused it to be written out of their presence, declaring to them that the paper contains his will.” B. C. C.1581.
    Tn either case, the testament must be read by the testator to the witnesses, or by one of the witnesses to the rest, in presence of the testator; it must he signed by the testator, if he "knows how or is able to sign, and by the witnesses, or at least by two of them * * w This testament is subject to no other formality than those prescribed by this and the preceding article.” B. C. C. 1582.
    Nuncupative testaments, under private signature, are valid with three witnesses in the country, if more cannot he had. -B. C. C. 1583.
    “ We do not perceive in what particular there was a failure to .comply with the requirements of the Code for this kind of testament, which are that it will suffice if in the presence of five witnesses the testator presents the paper on which he has written his testament or caused it to he written out of their presence, declaring to them that that paper contains his last will.” Bourke vs. Wilson, 38 Ann. 322.
    “ To constitute a presentation of the will in the sense of the Code it is not necessary that it shall be delivered to the witnesses by the testator with his own hand, and no particular words or set form of speech is necessary to constitute a declaration tha‘ the instrument is the testator’s will.” Bourke vs. Wilson, 38 Ann. 322.
    *k The affirmative answer of a testator to a question whether the paper contains his last will amounts to the presentation prescribed by law. The presentation need not be manual or more formally made.” Pfarr vs. Belmont, 39 Ann. 594.
    For qualifications of witnesses to wills see B. C. C. 1591.
    The nuncupative testament, under private act, is unknown in France. See C. N. 967, et seq. 975, 980.
    The qualifications of witnesses to testaments are more numerous and strict than at Borne formerly, or in Louisiana. C. N. 975, 980 ; Bogron, Code Civil Expliqué, Art. 980, Note 4.
    Paillet (droit civil, pp. 358, 359, note 11), commenting on Art. 980 C. N., says: “ Le téraoin doit-il entendre la langue du tesfcateur ? La loi romaine décide que cela*n’est pas nécessaire, si d’ailleurs ü comprend de toute autre maniére pour quel aote il a été appelé.” L. 20, 56, if. qui testam.
    “Testamentary freedom is too valuable and important in every respect to be restricted without the most stringent reasons.” G-odden vs. Burke, 35 Ann. 183.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an appeal from a decree orderiug the execution of the will of the deceased as being in the nuncupative form, under private signature.

The objections urged against its validity are : That it was executed in presence of three witnesses in the country, where more could have been obtained, and that one of those witnesses neither understood nor spoke the French language, in which the will was framed.

It is unnecessary to pass upou the first objection.

As to the second, it is fatal to the validity of the will.

The evidence conclusively shows, that the witness Main did not understand or speak the French language.

It is, however, contended that, as the will was translated to him in English, by another witness, while the testator was uttering his intentions — this ceremony supplies the absence of knowledge of the language.

There might be some plausibility in the retort had the will been translated, not only at the time tliat'it was being taken down, but also when it was read to the testator, if he understood the English language ; but it does not appear that this was done.

The law is emphatic. It disqualifies a person who is deaf, as a witness to testaments, and it exacts that its requirements touching the formalities to which wills are subjected, be strictly observed, under, pain of nullity. R. C. C. 1591, 1595.

Under the Roman, the French and the Spanish law, knowledge of the language in which the will is dictated and written down, is deemed indispensable for the validity of the will, when, to be valid, it must have been executed in the presence of witnesses. Mackeldey, § 642; 1 Febrero, No. 12 and 16; 4 Marcadé, p. 42; 5 Toullier, No. 393; 9 Duranton, p. 113, No. 79; Saintespes Lescot Donat, p. 97, No. 1038; 2 Mourlon, No. 785; 21 Demolombe, No. 196-7, 251; 13 Laurent, No. 268; Merlin, vo. Test. (Quest de Droit) xvii, art. 2.

In Hebert vs. Hebert, 11 L. 364, and Breaux vs. Gallusseaux, 14 Ann. 233, in this State, it has been held that a witness who does not understand the language in which the will is couched, is incompetent, and the testament is a nullity.

Had the witness Main, in the instant case, when interrogated, been asked to state his knowledge of the contents of the will, as acquired from the reading only, and not from the translation, whatever it be, previously made to him, assuredly he would have remained perfectly dumb. From a legal standpoint, he was intellectually deaf, and disqualified from service.'

It is apparent that it was impossible for him to have compared the translation in English with what was read in French, and that as to him, the will was no more read than if he had not been at all in attendance.

It does not appear that the testator understood the English language, and that he was on that account- able to ascertain whether the translation was or not faithful.

While fully appreciating the utterance of our immediate predecessors touching the sacreduess of the will of the departed ones, which should be respected as their graves, (30 Ann. 217), we cannot say that the ceremonies observed at the making of what is termed the will of the deceased have impressed upon it a sanctity, which shields it from the assault now made, and we are driven to the necessity of declaring that one of the three subscribing witnesses being incompetent, the ceremony has taken place before two witnesses only, while the law imperiously requires that three at least.should attest its execution.

The pretended will must, therefore, be considered as having never been made, and having no legal existence, .

It is, therefore, ordered and decreed, that the judgment appealed from be reversed, and that the application for the probate and execucution of the will be rejected, with costs in both courts.


author: Poché, J.

text:
    No. 10,082.
    The State of Louisiana vs. Charles Pete.
    The refusal of a new trial in a criminal case cannot he reviewed on appeal if no hill of. exception was reserved from the ruling of the district judge on the motion for a new trial. Numerous previous decisions reaffirmed.
    A complaint involving a matter Of fact not patent on .the face of the record cannot he presented in a motion in arrest of judgment.
    A PPEAL from the Twenty-first District Court, Parish of Iberia. ■ r\ Monton, J.

      M. J. Cunningham, Attorney General, for the State, Appellee.

      A. & C. Fontelien, for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

The complaints of the accused who appeals from a conviction of feloniously shooting at another, and a sentence to hard labor for one year, are presented in a motion for a new trial, and in a motion in arrest of judgment.

1. His motion for a new trial rested on newly-discovered evidence, and is supported by his own affidavit and by that of the person whose testimony would constitute the newly-discovered evidence.

But no bill of exception was received from the ruling of the trial judge on the motion, and hence the question cannot be reviewed on appeal.

We note the statement in the brief of his counsel that a bill of exception had been reserved from the ruling of the judge, but after the most diligent search of the record, we have failed to find as much as a mention of any bill of exception reserved throughout the trial.

No rule of criminal jurisprudence is more firmly settled and more uniformly enforced than that which requires a bill of exception as an indispensable condition to entitle any matter connected with a motion for new trial to the attention of this court in a criminal case.

With the hope that the profession may be fully informed on the subject we have taken the pains of collating the following recent cases in which the principle has been recognized :

State vs. Williams, 30 Ann. 1029; State vs. Given, 782; State vs. Nelson, 32 Ann. 842; State vs. Ross, 32 Ann. 854; State vs. Hudson, 32 Ann. 1052; State vs. Chatman, 34 Ann. 881; State vs. Williams, 35 Ann. 742; State vs. Jackson, 35 Ann. 769; State vs. Belden, 35 Ann. 824; State vs. Miller, 36 Ann. 158; State vs. Comstock, 36 Ann. 310; State vs. Walker, 37 Ann. 560: State vs. Redwine, 37 Ann. 780; State vs. Deas, 38 Ann. 581; State vs. Wier, 38 Ann. 684; State vs. Boyce, 39 Ann. 229; State vs. Darrow, 39 Ann. 677; State vs. Waggoner, not yet reported.

2. In his motion in arrest the defendant charges that the minutes of the court do not show that the indictment was presented by the grand jury in open court.

It appears from the record that, while the court was in session, the grand jury entered the oourt-room and presented their report, which included the indictment in this case.

Under this showing, the argument that the indictment was not presented in open court is untenable. The awkwardness of the clerk’s composition does not destroy the fact which is shown by the entry.

He next contends that the indictment was not indorsed by the foreman of the grand jury, but by the district attorney. The record shows the very reverse, and discloses no irregularity on that score.

1-Iis last complaint is that the grand jury was defunct when the indictment’ was found, because the jury had adjourned for more than three days without leave of the court.

That point involves the discussion of a question of fact which cannot be presented in a motion in arrest of judgment. The alleged error is not patent on the face of the record. State vs. Miller, 36 Ann. 158.

We find no error to the prejudice of the accused.

Judgment affirmed.

Todd, J. absent.


author: Todd, J. Watkins, J.

text:
    No. 9949.
    John Pasley vs. Ann McConnell, and Ann McConnell vs. John Pasley.
    (Consolidated.)
    Motions to dismiss appeals should be based on alleged irregularities in the lower court or in the appellate court in the proceedings relating to the nppeal, or want of jurisdiction in one or both courts, and should contain nothing relating to the merits of the controversy except for the purpose of illustration.
    One is not disqualified from being a security on an appearance bond because he is security for costs or on the injunction bond in the court below.
    Where a rule was taken to compel a compliance with an adjudication, and the property was adjudicated for a sum exceeding §2000, this court has jurisdiction.
    The plaintiff in execution of a money judgment, becoming the adjudicatee of real property at execution sale, during the pendency of a devolutive appeal therefrom, and put in possession thereunder by the sheriff executing the writ, cannot be treated as being illegally in possession because the only evidence of her title is the sheriff’s proees verbal of adju • dication.
    Notwithstanding the amount of such plaintiff’s judgment may be subsequently reduced by the appellate court to a sum less than the price of adjudication, and the sheriff’s proees verbal does not recite the payment thereof by the purchaser, she cannot be treated as in contempt of an injunction obtained by the judgment debtor, restraining her* from making sale of the property pendente lite, on account of her attempt to procure a deed of sale from the sheriff, by rule, in the meanwhile.
    APPEAL from the Civil District Court, for the Parish of Orleans. Houston, J.

      W. S. Benedict, for John Pasley, Appellant.

      J. Magioni and J. Timony, contra.

   On Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J.

This is an appeal taken from a judgment discharging two rules, taken out by John Pasley against Mrs. Ann McConnell.

One rule was for the purpose of setting aside an order of court requiring the sheriff to make a deed to Mrs. McConnell to certain property previously adjudicated to her.

The other rule charged that Mrs. McConnell had disobeyed an injunction issued for the purpose of preventing her taking possession of the property adjudicated to her, as stated. It being a rule for contempt.

An appeal can only be dismissed on account of some irregularity in the proceedings in the lower court or in this court relating to the appeal, or for the want of jurisdiction.

There are numerous grounds for tlie dismissal of this appeal contained in the motion, only two of which relate to irregularities in the proceedings on the question of jurisdiction.

As to the alleged irregularities, they are, in substance:

1. That the appeal bond is not identified with the case in which the judgment was rendered.

2. That the security on the bond of appeal is disqualified by reason of being a security for costs and also security on an injunction in a proceeding relating to or connected with this case.

3. That an order was made in the court below, requiring security for costs to be furnished within a certain delay. That such security was not furnished within the delay stipulated, and by the effect of such default the proceedings or rules abated, and there existed, therefore nothing that could form the subject of an appeal.

We have examined the record carefully with respect to these contentions, and find that they are without force or merit, either in fact or law.

It is also charged by implication that this court is without jurisdiction ratione materm.

It is true that we are without jurisdiction touching the matter of the rule for contempt mentioned, but the other rule has for its object, as stated, to prevent the sheriff making a deed to certain property adjudicated at sheriff’s sale. This property was adjudicated for $9500.

Besides, in the motion for the appeal we find an averment by the appellant that he will be damaged exceeding $2000, if the sheriff’s deed sought to be prevented is executed to the appellee, Mrs. McConnell ; and the same averment is made and supported by oath in the iujunction proceeding found in the record.

We conclude, therefore, that we have jurisdiction.

The motion to dismiss is, for these reasons, refused.

On the Merits.

Watkins, J.

A brief and additional reswmé of the salient historical facts connected with this litigation is necessary to a. correct understanding of the questions that are presented by this appeal.

In May, 1882, Mrs. McConnell recovered a judgment against John Pasley for $14,660 59, from which a devolutive appeal was taken, and in this court same was reduced to $2980. 36 Ann. 998, McConnell vs. Pasley.

During the pendency of this appeal, fi. fa. was issued under the judgment of the district court, and real property of Pasley seized and advertised for sale by the Civil Sheriff. It was appraised at $13,900, and adjudicated to the plaintiff in execution at the stated price of $9500 cash, and the sheriff executed a proces verbal of sale accordingly, and same was duly recorded in the convenance records, in January, 1883.

After said cause was decided on appeal, Pasley instituted suit against Mrs. McConnell, and therein sought to obtain pendente Kte the judicial sequestration of the property which had been adjudicated to her. The plaintiff appealed from an adverse decree of the district court, and we therein expressed the opinion that Mrs. McConnell was in possession of the property in dispute, and had been for more than eighteen months prior to the institution of the suit, under a sheriff’s sale,” and affirmed the judgment appealed from. 36 Ann. 703.

Another phase of same controversy was passed upon in 37 Ann. 553.

Einally, the merits of the suit were tried, and decided, and another appeal resulted, in which we announced the following conclusions, viz:

1st. It recited the facts outlined above, relative to the judgment and adjudication to Mrs. McConnell, and the reduction of her judgment on appeal.

2d. That “ it is shown that the price has never been paid in money, and it does not appear that it was imputed * * * but that the purchaser received delivery of the property in June, 1883.”

3d. That on the 28th of January, 1884, Pasley brought the suit”— the one under consideration — “ against Mrs. McConnell and her transferrees, in which he alleges the nullity of her title and that of her transferres on various grounds, and prays te be decreed the owner of the property, and in the possession thereof, and an accounting of the revenues.

4th. Upon the issues thus joined we then decided “ that the reduction of the judgment of Mrs. McConnell by this court (36 Ann. 986), has no effect upon her title as purchaser at the judicial sale pending the devolutive appeal.”

5th. That the lack of a sheriff’s deed has no significance whatever,” and the non-payment of taxes did not affect its validity.

6th. That in so far as the non-payment of the price is concerned, under the condition of affairs existing at the date of adjudication, there was no payment to be made. * * Mrs. McConnell is bound to pay the price of adjudication to whomsoever is entitled to it. Upon removing the apparent anterior incumbrances, plaintiff will be entitled to recover the excess ofthepriee over the amount of her final judgment.

7th. We finally concluded that .said suit possessed no such feature, and could not be maintained. There was no reservation to the plaintiff of the right to sue for the rescission of the sale for non-payment of the price of adjudication and the restitution of the property, or for the surplus of the proceeds of sale — but there is, in our opinion, a clear intimation to the effect that suit of either character might be brought.

It appears, from the record, that on the 8th day of February, 1883, a few months subsequent to the adjudication to Mrs. McConnell, and several months anterior to the institution of the suit last referred to, she applied for, and obtained, a rule on the Civil Sheriff to show cause why he should not execute and deliver to her a deed of sale, in pursuance of the adjudication ; but for some cause, unexplained by the record, the same was not made absolute, and no judgment to that effect was signed until the 2d day of December, 1886, long since judgment was rendered in this court in the suit above referred to. Since the final decision of that suit, Pasley, on the 28th of May, 1886, brought a new suit, in which he makes the following averments and demands, viz :

1st. That Mrs. McConnell, as adjudicatee of the property in controversy, has paid no part of the price of adjudication.

2d. That the judgment, under which the sale was made was subsequently reversed, and a new one rendered; and that same has long since been paid, leaving no part thereof remaining.

3d. That Mrs. McConnell made a simulated and fraudulent transfer thereof to her children, theErmans.

4th. That the sale and adjudication to her are null and void on account of the non-payment of the price thereof, and should be dissolved and the property restored to him in the condition it was at the date of the. adjudication.

5th. That he pleads compensation and extinguishment of the judgment in her favor, and avers that the sheriff has executed to her no deed of sale to the property.

6th. That he is the owner of the property in dispute, and he fears that the defendant claiming possession thereof may take advantage of her alleged possession to dispose of same pending suit; and that it is necessary, in order to preserve the same, that an injunction issue.

Objection was made by Mrs. McConnell to the institution and filing of this suit in Division-B of the Civil District Court, and an exception to that effect was sustained, and the suit was transferred to Division C of said court.

In this situation of affairs, counsel for Pasley filed, on the 23d o^ December, 1886, one of the rules on Mrs. McConnell, now under consideration, it having for its object to compel her to show cause why the judgment making her rule on the sheriff — the one above referred to as having been signed on the 22d of December, 1886 — absolute, should not be set aside, and his injunction obeyed.

On the same date plaintiff Pasley obtained an order for an an additional rule on Mrs. McConliell to show cause why the proceedings taken by her against the Civil Sheriff to coerce the execution and delivery of a deed of sale should not be set aside, and she be punished for contempt therefor, on the ground, and for the reason that by said injunction she and the Ermans had been inhibited and restrained from interfering with said property, or taking possession thereof.

To these rules a variety of exceptions were taken by the counsel of Mrs. McConnell to the effect, viz:

1st. That the court was without jurisdiction because the final judgment against Pasley had been executed and consumed by the sheriff placing her in full and complete possession of the property more than three years before.

2d. That her rule on the Civil Sheriff was a proper and legal ones at the time it was taken, as he had possession under the writ of fi.fa.

■3d. That since the sheriff’s adjudication and delivery of possession to her she had conveyed the property to her children by recorded title translative of property.

4th. That Pasley cannot by summary proceedings by rule review proceedings that have been disposed of by a judgment of the Supreme Court.

These two rules seem to have been considered aud treated by the parties, as well as by the court below, as parts and parcels of same proceeding, aud as having for their object the same relief — to test, in this ancilary way, the bona fi'cles of Mrs. McConnell’s possession — and they may be considered as cumulated into one proceeding.

On the trial of the rules it was admitted by Pasley, that Mrs. McConnell was put in possession under her judgment and adjudication thereunder, and that she is now in possession, and was in possession long prior to the signing of the judgment making absolute the rule herein complained of. It further appears, from the evidence adduced on the trial of the rule, that the sheriff had executed agroees verbal of sale to Mrs. McConnell, but no deed of sale to the property.

Prom a judgment discharging plaintiff’s rule he has appealed ; and, considering the indubitable evidence furnished by the various records and proceedings herein detailed, we cannot conceive upon what he can entertain a hope of reversing that decree. We do not regard the judgment complained of as having any material bearing on the questions involved in the pending injunction suit. We have already decided that the non execution of a sheriff’s deed was of no consequence. Plaintiff’s injunction suit judicially admits Mrs. McConnell’s possession of the property. The ground assigned as evidencing her contempt of the injunction is, in point of fact, altogether incorrect. Appellant must rely on his injunction suit,'and await its trial on the merits foi relief.

Judgment affirmed.

Mr. Justice Todd absent.


author: Fenner, J.

text:
    No. 9743.
    Marx Weill vs. Baker, Sloo & Co.—George Horter, Warrantor.
    There is no division of ownership of a wall in common; the whole belongs jointly and in indivisión to the neighboring proprietors without reference to the dividing line between the lots.
    In absence of evidence to the contrary, the whole wall, with its flues and appurtenances, as originally constructed, is presumed to have been so constructed by common consent, at the common expense and for the common benefit of both proprietors.
    The circumstance of a flue being constructed in the lower stories of the wall in that half of it which is on the side of one property, does not establish exclusive ownership in the flues, or destroy the presumption that it was intended for the common use and benefit of both, particularly when the extension of the flues in the upper story, without which it would be useless, lies in the centre of the wall
    Nothing in the facts and conditions established by plaintiffs in this case suffices to destroy the legal presumption of the common right of his co-proprietor to use the flue in ques- • tion, especially when reinforced by the fact that the latter has actually used it from a X>eriod whereof the memory of no witness in the case runneth to the contrary.
    A PPEAL from the Civil District Court, for the Parish Orleans. A RigMor, J.

      Singleton, JBrowne & Ohoate, for Plaintiff and Appellant.

      White & Scmnders T. Gilmore & Sons, for Defendant and Warrantor, Appellees.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff and warrantor are owners of adjoining properties, (two brick stores), Nos. 6 and 8 Magazine street.

The two buildings were constructed in 1840. They are separated by a wall in common, in which exists a flue to conduct the smoke from store or fire-places connected with the wall.

This flue, beginning at the basement, is in the half of the wall on tlie side of No. 8, through the first and second floors, where the wall is eighteen inches thick.

Above the second floor the wail is only thirteen inches, but in the third floor, where the flue is located, a brick projection of about three inches is added on the side of No. 8, and the flue is thus continued mainly, but not wholly, in' the half of the wall on that side. In the fourth floor, the flue is in the centre of the wall, and finds exit through a chimney which is built directly over its centre.

There is a fire-place on the sidemf No. 8, without a grate, and also a hole for a stove-pipe cut into the flue, which was covered with tin.

There is no clear evidence that either was ever used, and it is conclusively shown that they had never been used since 1847.

On the side of No. 6 there is no fire-place, but there does exist a hole for a stove-pipe cut into the flue, and actually occupied and used for the purposes of a stove. With regard to the length of this use, no witness testified whose personal knowledge reaches farther back than 1852; but at that time he found the use existing, and there is nothing to prove, or even to raise a presumption, that the aperture for the pipe had not been made when the wall was built, and that the flue had not been used for a stove in No. 6 from the time of its first occupancy.

Such were the conditions existing when, in 1885, the plaintiff, Marx Weill, purchased and occupied No. 8.

Discovering the aperture in his side of the wall for a stove-pipe, he put up a stove, and conducted his pipe through the hole into the flue. He found that his stove obtained a draught insufficient to induce the ' free consumption of fuel and also smoked.

He brings the present action, based on the substantial averments: that the flue in question was built and intended for the exclusive use of his property; that the use thereof by the occupant of No. 6 was illegal and without right;; that such use destroyed the draught in said flúe so as to prevent the use thereof by plaintiff, occasioning him great damage and inconvenience; and he asks for a judgment enjoining the continuance of such use by defendants and for $2500 damages.

The antiquity of the construction deprives us of. the benefit of evidence as to the purposes or intentions of those who built the wall.

In absence of evidence to the contrary, the whole wall, as it stands, including the projection above-referred to on the third floor, is presumed to be a wall in common. C. C. 677.

There is no division of ownership of a wall in common. The whole belongs jointly and in indivisión to the neighboring proprietors, and is intended to serve their common purposes without reference to the dividing-line between the lots. Thus, one co-proprietor may “cause beams or joists to be placed within two inches of the whole thickness of the wall,” and his neighbor would have no right to complain unless he had need of the same space for Ms own construction. C. C. 680.

It follows that the circumstance of the flue being built, on the first and second floors, in the half of the wall on the side of No. 8, does not establish exclusive ownership thereof in the proprietor of that property, nor does it destroy the presumption of community which attaches to the -flue as to every other part of the wall. Particularly is this the case when the extension of the flue in the fourth story, without which it would be useless, lies in the centre of the common wall.

The evidence, moreover, establishes that in eighteen inch or four-brick walls, this method of establishing flues on one side is convenient, economical and not infrequent, because accomplished by the simple omission of one brick, whereas, if put in the centre, it would necessitate the cutting of the bricks on either side of the centre.

The existence of the fire-place and of the stove-pipe aperture on the side of No. 8, furnishes very good evidence that the flue ivas intended for the use of that property, but none that it was not intended for the use of No. 6. The absence of any fire-place on the latter’s side only proves that its proprietor did not intend to use the flue in that at the time of building, but otherwise amounts to nothing- in view of the proof that, as far back as the memory of any witness runs, he had an aperture into the flue, and had actually used it for the purposes of his stove.

The projection on the side of No. 8 in the third floor was part of the common wall as originally constructed and presumably built at the common expense. The proprietor of No. 6 is not called on to explain, after this lapse of time, why the wall was thus constructed.

The presumption is that it was done by common consent, and at the-common expense, and hence for the common benefit of the proprietors.

The insufficiency of the flue for the full needs of both proprietors may be evidence of lack of skill in the builder, rather than of intention to confine the use of the flue to one property only.

It is certainly much move difficult to believe that the proprietor of No. 6 should have built a wall without providing any flue for the heat-in of his stove, than that the builder should have constructed an insufficient flue.

The evidence does not satisfy us that by reducing the size of the stoves on either side and by adopting proper fuel, the flue may not serve tlie essential needs of both properties. Neighborly concessions would no doubt accomplish this result.

At all events, nothing in the facts and conditions established by. plaintiff suffices to overthrow the legal presumption of common right to the use of the flue as part of the wall iu common, and the yet more powerful presumption in favor of the destination of the flue to the use of No. 6 as well as of No, 8, resulting from the actual immemorial use of it by the former property.

Judgment affirmed.


author: Watkins, J.

text:
    No. 10,051.
    The State of Louisiana v. Henry Harris.
    Iu case a jury returns into court a verdict which, in the opinion of the trial judge, does not conform to the charge in the indictment, or to any lesser ofiense of the same hind, he may remand tbe jury, under proper instructions, to correct it.
    In this maimer tbe delay and expense of-a new trial may be avoided and same object at* tained.
    An application for a now trial, predicated on newly-discovered testimony, is properly re* iused if it appears from tbe judge’s assignment of reasons in tbe bill of exceptions re* served, that it was cumulative only.
    Tbe judge bas tbe right to direct tbat proper corrections be made in tbe minutes, so as to conform same to tbe facts witbin bis personal knowledge, even after tbe trial and ver* diet bas been rendered.
    APPEAL from the Twenty-first District Court, Parish of St. Martin. Mouton, J.

      21. J. Ounningham, Attorney General, and O. AT. Mouton, District Attorney, for the State, Appellee.

      Felix Yoorhies and Fan Voorhies, for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

The defendant was indicted on two counts, viz:

■1st. With having feloniously and wilfully stabbed one Jean Baptiste Lalande with a certain dangerous weapon, to-wit,.a knife, with intent to kill and murder him.

2d. With having feloniously and wilfully, and with a dangerous weapoD, inflicted on said Jean Baptiste Lalande a wound less than mayhem.

Having been convicted on the latter, he was sentenced to one year’s imprisonment in the penitentiary, and from that sentence appeals.

i.

When the jury returned into court they reported as their verdict the following, viz :

We, the jury, find the prisoner guilty of stabbing with intent to kill,” and the trial judge refused to receive it on the ground that it was responsive to no criminal law of the State. He thereupon again explained the law applicable to the case, and the different kinds of verdicts they could render, and directed them to return to their room for further deliberation, and report.

When the jury returned into court they presented the following verdict. viz:

Guilty of stabbing with a knife, and inflicting a wound less than mayhem.”

This verdict was received by the court, and the jury were discharged.

The defendant made complaint in the lower court of this proceeding on the ground that the judge had no authority to thus decline to receive the. first report made by the jury as their verdict, insisting that “ said verdict was their judgment, and had to stand as rendered.” This objection having been overruled, defendants counsel retained a bill.

Simplified, the question is, was the one first rendered a verdict responsive to either charge in the indictment? orto any lesser offense of the same kind ? We think not. It was imperfect and incomplete. The gravamen of the charge nominated in the indictment was, an assault with a dangerous weapon with intent to kill and murder, and the inflicting of a wound less than mayhem. As the verdict in question did not, even substantially, respond to either, it was informal and invalid.

In quite a recent case we had occasion to examine and pass upon this question, under somewhat different circumstances. State vs. Oliver, 38 Ann. 632.

In that case the ruling of the trial judge was the same as that of the judge a quo.

The jury were discharged after having rendered the verdict complained of. The defendant’s counsel moved to set same aside, and have him released from custody.

He argued that the verdict did not respond to the charge in the indictment, and no sentence could be imposed thereunder, and that the defendant must be released from custody.

The judge set aside the verdict, and ordered a new trial. The defendant, assuming that this ruling had the effect of terminating the prosecution, appealed. We maintained the ruling of the lower judge, and remanded the case for a new trial. 36 Ann. 857, State vs. Foster; 38 Ann. 357, State vs. Burdon.

Had the trial judge, in the Oliver case, taken notice of the defectiveness of the verdict, and directed the jury to have reformed it instante)', the same result would have been accomplished, without the delay and expense of a new trial, before a different jury. We commend the course pursued by the trial judge as being at once judicious and consistent with a prompt and vigorous enforcement of the criminal law.

II.

The defendant’s complaint of the judge’s rilling is made the basis of an application for a new trial in part, and same was properly refused.

The objection that the verdict subsequently.rendered was, and is, contrary to law and the evidence, cannot be considered. We have so decided frequently and recently.

Of his supplemental application for a new trial, on the ground of newly-discovered evidence, the district judge says: ■

“ It is evident to my mind, from the facts elicited, and other witnesses heard, that such testimony, if it does exist, must certainly have been within the knowledge of the accused; the more so, as that alone could have justified, or extenuated his assault; and his failure to procure it shows want of due diligence.”

He also states that this newly-discovered testimony being only emrmlative with that offered and received on the trial, its subsequent discovery does not authorize'a new trial.”

The refusal of the trial judge to grant a new trial on this ground is in strict conformity with elementary principles and our repeated decisions on the subject.

III.

The defendant’s counsel sought to have the judgment arrested on an assignment of various defects and fatal omissions in the record, such as the following, viz :

1st. That the minutes do not show that the indictment wras found by the grand jury.

2d. Nor that same was returned into court.

3d. And if returned, it was hot in open court.

4th. Nor that same was returned by the foreman of the grand jury.

■ 5th. That the minutes do not show that the accused was present during the trial, when the jury were sworn, and at every other stage of the proceedings.

The trial judge assigns as his reason for overruling the defendant’s motion that certain corrections in the minutes were necessary, and he caused them to be made, so that they should conform to his personal knowledge of the facts which came under Ids observation.

As thus corrected and supplemented, all the defendant’s objections are answered.

Iiis complaint of their having been made after the trial had been completed and the jury discharged, is not well founded.

As the minutes appeared when this motion was filed they are incomplete, and did not truthfully disclose the proceedings had.

Under the circumstances, it was not only the privilege, but the the duty, of the judge presiding over the trial, to have the minutes so corrected as to conform to the facts. We have so decided frequently and recently. 38 Ann. 469; State vs. Pierce, 39 Ann.

Judgment affirmed.

Mr. Justice Todd absent.


text:
    No. 10,090.
    The State ex rel. E. S. Jaffray & Co. vs. Judge of the Ninth Judicial District.

      Mandamus does not lie to compel a district judge to dissolve a sequestration unconditionally, on bond by plaintiff, where the property sequestered had already been attached.
    Coupling the dissolving order on bond with the provision that it shall not be construed as a release of the property from the attachments previously levied upon it, was a wise and judicious reserve.
    An exparte dissolution of a sequestration on bond does not affect attaching creditors who are not parties either to the suit in which the writs issued, or to the motion to dissolve.
    A restraining order will not issue where the party seeking it may obtain relief by other adequate remedy in the lower court.
    ^REPLICATION for Mandamus.

      Wade li. Young, for the Eelatbrs.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a mandamus to compel the district judge to dissolve unqualifiedly a sequestration on furnishing bond.

The main averments are, that the relators caused to he sequestered certain goods which they had sold and delivered to certain parties, and which had been attached by creditors of the latter, as their propel ty, although the price of sale had not been paid.

On fclie theory that the non-payment of the price and that the fraudulent devices which had been resorted to byr the purchasers to obtain delivery, annulled the sale, and reinvested title in the vendors, the relators obtained a sequestration as against the vendees, and, on their failure and that of any one else, within the legal delay, to dissolve the sequestration.ou bond, procured that dissolution on giving security in a stated amount; but the judge coupled his decree with a proviso that it should not be construed as a release from the attachments issued by other parties against the same property sequestered.

The complaint is that the district judge had no authority to make the reserve, which crippled the order of dissolution, and that by so doing lie has acted illegally and arbitrarily.

Conceding that our supervisory power may be invoked in such a case, it is manifest that they cannot be exerted as the relators contend they ought to he.

The attaching creditors are not parties to the sequestration proceedings, and even then, have not been heard on the motion to dissolve the sequestration on bond, which is, as usual, ex parte, and surely not binding on any one not legally connected with the suit.

Had not the district judge made the proviso it would have been implied in the dissolving order, which cannot prejudice those who are not parties to the record, and have had no knowledge of it.

Asking that the proviso be pronounced illegal is to claim that the dissolution shall have the effect of releasing the property from the attachments already levied upon it, which cannot be allowed.

The district judge acted wisely', and the complaint is unfounded.

We did not grant in limine the restraining order asked to prevent the sheriff from selling the attached goods, as the relators were not left without adequate remedy in the lower court.

Application refused.


text:
    No. 10.014.
    The Grand Lodge of the State of Louisiana vs. Charles Cavanac, State Tax Collector, et als.

      A clerk’s certificate that a transcript is complete, as containing all the evidence adduced, etc., protects an appellant, although the transcript does not contain that evidence.
    In such a case, in furtherance of the ends of justice, the cause must be remanded.

      APPEAL from the Civil District Court. Parish of Orleans. Houston, J.

      Honor & Lee and J. Q. A. Fellows, for Plaintiff and Appellee.

      M. J. Cmvningham,, Attorney General, and J. C. Moise, for Defendants and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

The State appeals from a judgment exempting certain property of the plaintiff’s from taxation for the year 1877.

Although the certificate of the clerk is full, and such as the law requires, the fact is that the transcript does not contain a particle of the evidence which was actually offered below.

The omission is apparently attributable to the clerk, in the absence of production by him of authority to justify it; but the appellant, not being shown to be in default, is protected by the clerical attestation.

It is possible that proof was administered to establish that the property in question was used in a manner to entitle it to the execution which the plaintiff claims, under Sec. 3 of Secs. 2233 of the R. S.

We consider that, in furtherance of the ends of the justice, it is better to remand the case to the lower court for the purpose of obtaining the desired evidence. 16 L. 572.

While the judgment appealed from must give way to carry out this object, we do not propose to say that it was improperly rendered ; for aught we know, it may be justified by the evidence adduced, as the plaintiff claims that full proof was administered showing the extent and nature of the use of the property and fully meeting, to the satisfaction of the court, the special defense in the answer’.

It is, therefore, ordered and decreed, that the judgment appealed from be set aside, and that the cause be remanded for further proceeding according to the views herein expressed and according to law.


text:
    No. 10,052.
    The State of Louisiana vs. Thomas Lewis et als.
    The declarations of a party voluntarily made, during the preliminary examination of a pros* ecntion o f another party, are admissible against theVitness, in a prosecution of himself j the more so when the witness sought to incriminate some other one and deposes to his own innocence.
    On the trial of a motion in arrest, charging omissions and informalities in the minutes of the court, the trial judge has authority to order corrections made, so as to have the minutes conform to the facts, when the same are to his personal knowledge and recollection.
    In the absence of any further complaint, the corrections made will be considered as having been properly made, and as showing the real occurrence of facts.
    A PPEAL from the Twenty-first District Court, Parish of St. Martin. /~\ Mouton, J.

      M. J. Cunningham, Attorney General, and C. 11. Mouton, District Attorney, for the State, Appellee.

      James Simon, for Defendants and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

The accused was prosecuted and convicted for murder, without capital punishment, and sentenced to hard labor for life.

For the reversal of the verdict and sentence he relies ou two bills of exception and on a motion in arrest.

I.

In the first .bill it is charged that the court admitted in evidence, against the defendant, the deposition and confession of himself, taken under oath, at his preliminary examination ; that there was error in this admission, because the deposition and pretended confession was not free and voluntary.

The trial judge states that he admitted the evidence because it had been given by the accused on the preliminary examination of Césaire Lewis, who wms then charged with the murder of the man Jacob Simon; because it was given by the accused of his own free will and accord, and in corroboration of what he had stated to him (the judge), before he had been called to testify, and because the testimony did not incriminate him, and was circumstantial.

This statement of the trial judge is in no way assailed, and therefore must be considered as truthful.

There is no legal proposition better settled in criminal practice than that the confessions of an accused, in actual custody, are inadmissible, unless they are his own free and voluntary statements.

In this case, the declarations of the accused were not made by him at the preliminary examination of his own ease, but at the examination of another party accused of the same crime, and were given freely and voluntarily, without inducements, hope, threat or fear.

They were not offered arid admitted as a confession, but as declaralions for certain purposes, perfectly legitimate iu themselves, and which, are set forth by the trial j udge in his before-stated remarks in the bill.

Those declarations are annexed to the bill. Far from being a confession, or declarations, incriminating tlie defendant, they are statements clearly designed to exculpate him (the witness), and to affirm, as it does, in as many words, liis own innocence.

It is, indeed, to be wondered, how a declaration of innocence can be upheld as a confession of guilt! !

II.

The motion in arrest charged grave omissions and informalities, apparent on the face of the minutes, namely: that these do not show that the bill was found by the grand jury ; that it was returned by the foreman of the same, under his official signature; that it was handed to the judge or clerk; that the prisoner was in court, aud pleaded not guilty, when arraigned ; that he was present when the motion, to sever was filed, argued and submitted ; that be was present during the trial at every important stage thereof; that the indorsement on the bill of indictment does not show that the foreman signed bis name in Ids official capacity, and state tlie crime for the which the grand jury bad found.

On the trial of this motion in arrest, the district judge ordered that tlie minutes be corrected, so as to conform to the facts, as they occurred. To this order the accused reserved a bill. In that bill the judge states that the facts were within his personal knowledge and recollection. He had that right. 38 Ann. 469.

'The other charges are not supported by the record.

There is no complaint now that the facts have been improperly set forth in the corrections made.

These views dispose of both the motion in arrest aud the hill taken to the corrections ordered.

Judgment affirmed.