text:
    John Fletcher v. Enos Fletcher.
    A deed made in Mississippi is regarded in Louisiana as a private instrument in writing, any other receipt for money paid is not conclusive between the parties, but is open to explanation by evidence.
    The answer of a party to interrogatories on facts and articles may he overthrown by the testimony of two witnesses, or one corroborated by strong circumstantial evidence, or by written proof.
    The admission of contradictory statements of a witness made to third persons on some former occasion, for the purpose of raising suspicions as to the truth of his testimony, is not allowed, unless the witness whose testimony has thus been sought to be impeached has been first interrogated as to the contradictory statements which are adduced against him. This applies with double force to a party whose answers on oath are sought to be contradicted.
    APPEAL from the District Court of Concordia, Farrar, J.

      J. Thomas, for plaintiff.

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

Eustis, C. J.

The plaintiff alleges that in August, 1840, he signed an instrument purporting to convey certain lands situated in the parish of Concordia to Enos Fletcher, the defendant; that the instrument, which was in the form of a deed, was signed in the State of Mississippi; that the consideration acknowledged to have been received was $15,000 in cash; but the true consideration Was the notes of the said E nos Fletcher, to be executed by him in favor of your petitioner; that the deed was not delivered, but was afterwards recorded by the plaintiff without his having received the notes, trusting in the good faith of the defendant who committed a fraud in withholding the notes. The petitioner prays that the said deed be annulled, or that the said defendant be decreed to execute his notes according to the agreement, with legal interest from the day of sale.

The defendant, under a general denial, admits a convej'ance of the lands and that the consideration mentioned in the deed was not the true one; but alleges that the only consideration for said conveyance was the price of $2 50 per acre for the land, payable at the date of four years irom the date of the deed; on which he has paid the plaintiff $1800, and should the sale of said land not be held to be valid and binding, then, and in that event, he asked for judgment against the plaintiff for the sum of $1800, with interest.

The judgment of the district court annulled the sale of the lands unless the defendant should pay to the plaintiff within ninety days from this date $15,000, with interest thereon at the rate of five per cent per annum from the 5th day of August, 1840. From this judgment the defendant has appealed.

The plaintiff, in his petition, addressed to the defendant the following interrogatories: 1. “What consideration did you pay for the transfer of the lands described in the deed of John Fletcher to you, dated August 5th, 1840 ? Have you ever given any consideration? 2. Did you or not agree to give your notes for $15,000 for said lands ? 3. Have you ever given said notes ?”

To these interrogatories the defendant answered. To the 1st: “ I paid nothing at the date of the deed, but I agreed to pay the sum of $2 50 per acre for every acre of said lands, at the expiration of four years from the date of said deed. I proposed to purchase the lands at this rate in the month of June, 1840, and in the month of August, 1840, the plaintiff accepted the offer, and executed and delivered the deed to respondent, which deed was recorded in the office of the parish judge of this parish. I have made sundry payments on account of the purchase of said lands. I have paid said plaintiff thereon in money. I have handed him and paid for him in goods and provisions. I have furnished him and family about seventeen or eighteen hundred dollars. I cannot state the exact amount, nor furnish all the particular items, in consequence of not having all the receipts and papers showing them. The trunk which contained those papers was left by me in the house occupied by John Fletcher, where it remained some time. When I got it from there I found it had been forced open, and most of those papers abstracted from it.” To the 2d: “ Affiant answers that he did not agree to give his notes for fifteen thousand dollars for said lands; but agreed to pay the sum of two dollars and fifty cents per acre for the land at the time, as above stated.” To the 3d: “ Affiant answers, No ; but I have always been ready and willing, and am now ready and willing to perform my part of the contract.”

The testimony of witnesses was offered, on behalf of the plaintiff, to contradict the defendant’s answers to interrogatories as to the facts of the amount and payment of the price. This evidence was objected to on account of its being in contradiction to the written act, and, also, that under our jurisprudence the plaintiff was bound by the defendant’s answers, and could not contradict them by verbal testimony. The case of Burk v. Hall, 3 L. R. 117, is relied upon in support of this second objection. W e deem it sufficient to observe in relation to the objections to the evidence, having for its object to disprove the statement in the deed of the payment of the consideration, that the instrument was a deed made in the State of Mississippi, and that by the jurisprudence prevailing in that State we do not understand the party to be estopped by the recital in a deed of having received an amount of money as the price of property sold, but the recital is merely prima fade evidence of the fact which is open to be established by evidence. Greenleaf on Evidence, § 26, note, § 304. The instrument stands before us as a private writing, and we have always held that a receipt for money paid was not conclusive between the parties, but open to explanation by evidence.

We have seen that the allegation of the plaintiff, that the sum mentioned in the deed as the price of the land, was not paid, as is therein acknowledged, is conceded to be true; and we have seen in the defendant’s answers, what the price to be paid was, and how it was to be paid according to his statement. This statement, it is contended by the plaintiff, is disproved and the amount of $15,000 established to be the true price of the lands, and that the defendant having failed to pay the price, the plaintiff has aright to demand the rescission of the sale.

The evidence relied upon by the plaintiff to discredit the answers of the defendant on oath, are certain contradictory statements said to have been made by the defendant to witnesses or in their presence. The depositions of these witnesses taken under commissions, were received in evidence in the district court without any other objections than those we have noticed. They are before us, and it remains to be considered what weight they are entitled to.

The Code of Practice provides, art. 354, that the answers of the party interrogated are evidence, but do not exclude adverse testimony and may be destroyed by the oath of two witnesseses, or of one single witness corroborated by strong circumstantial evidence, or by written proof.

Before we proceed further, we cannot refrain from remarking upon the danger of this exceedingly unsatisfactory mode of assailing the credit of the party whom the plaintiff himself has made a witness, and whose conscience he has resorted to for the purpose of establishing his case. The plaintiff himself offered the answers of the defendant in evidence. The witness, whose statements are brought forward to impeach the credibility of the respondent, are not brought to testify in his presence, but are examiued at a distance under a commission, perhaps at a remote part of another State, and without the party most interested having it in his power to be present, or to exercise proper supervision over the taking of the testimony. A proceeding more liable to abuse than this scarcely finds place in a system which has for its object the protection of the character and property of the citizen. An ordinary witness in a civil suit is surrounded with proper and sufficient guards when his credibility is thus sought to be impeached in a court of justice.

The admission of evidence of the contradictory statement of a witness made to a third person on some former occasion, for the purpose of raising suspicions as to the truth of his testimony is not allowed, unless an essential pre-requisite has been complied with. Before the evidence can be admitted, the witness himself, whose testimony is thus sought to be impeached, must be first interrogated as to the supposed contradictory statements which are afterwards to be adduced against him. This proceeding is but an act of common justice to the witness. Before his credit is attacked, he should have an opportunity of explaining the conversation in which the statement was made, under what circumstances, from what motives, and with what design. In the Queen’s case, it was one of the questions submitted to the judges by the House of Lords, and the answer delivered by Abbot, C. J. is a full and complete exposition of the reason, nay the necessity of the rale, in the administration of justice. Queen’s case, Brod. & Bingham, 314. According to the practice of the courts of Scotland, the credit of a witness cannot be impeached by proof of his having given an account of the matter on a former occasion. Phillips on Evidence, 293.

Mr. Greenleaf thus states the rule to be: “The credit of a witness may also be impeached by proof that he has made statements out of court contrary to what he has testified at the trial. Before this is done, it is generally held necessary, in the case of verbal statements, first to ask him as to the time, place and person involved in the supposed contradiction. ”

Every reason which gives an ordinary witness the benefit of the protection of this wise and salutary rule, applies with double force to the party whose answers on oath are sought to be discredited in this manner by his adversary, who first seeks the advantage of his testimony and finding it not to be as he expected, is thus permitted to destroy it. We are not aware of any means under our practice by which a party answering can be thus protected, but it certainly is necessary in cases of this kind, for the testimony establishing contradictory statements by the respondent to be received with caution, and examined and weighed under the severest scrutiny.

It is contended, that the depositions of the witnesses prove that the price agreed to be paid by the defendant for the lands was the sum of $15,000, for which his notes were to be given, and that the defendant, finding himself unable to pay the amount, proposed to re-convey the lands to the plaintiff. It being conceded that the price was not paid, and there being no allegation in the petition of any promise to re-convey, and the annulling the sale being asked on the ground of the non-payment of the price, and the prayer of the petition being in the alternative for the annulling the sale or the payment of the price, the evidence concerning the promise or obligation to re-convey would be liable to the objection taken by the counsel for the defendant, and ought to have been excluded. The testimony on this point we do not consider, however, as materially affecting the lights of either party as they are presented by the petition and answer.

The testimony of two witnesses is relied upon as disproving the answers of the defendant as to the price of the land. Dyson swears that he was present when the bargain was made for the land; that he heard what passed between the parties at the time. The defendant was to give $15,000 for the lands, and notes were to be given. Learned from the parties that a deed had passed for the lands, but was not to be delivered until the notes were givep. Defendant never executed the notes as he told witness, &e.

But the testimony of Dyson as a man of veracity is discredited 'by three witnesses residing in Claiborne county, Mississippi, where Dyson resided in 1843 and 1844. The testimony of three witnesses is relied upon as sustaining his character. Two residing in Adams county, Mississippi, testify fully in favor of it; but the third, Crossgrove, states that, from a knowledge of his character, he would believe him upon his oath in a court of justice. On -the cross-examination this witness says, that should Dyson tell him any thing when not on oath, he would not know whether it was true or not, as he, Dyson, is in the habit of telling extravagant stories. His general reputation for veracity is not good; he would not believe him on oath when testifying against his own interest. If called upon to testify against his prejudices only, the defendant would believe him.

The other witness, Richardson, was examined under a commission in the parish of Catahoula. This witness proves the plaintiff’s case from what he heard pass between him and the defendant in the house of the former, in 1843. The most important part of the conversation was overheard by the witness in an adjoining room ; he relates also a conversation he had the next morning with the defendant pretty much to the same effect. No attempt'has been made to discredit the testimony of this witness. He appears to have had an unusual propensity to change his place of abode, having, in the thirteen years preceding 1846, had no less than eight distinct places of residence. He, during that time, resided in Little Rock, Arkansas ; in Miller county, Arkansas; in Jasper county, Texas; in the parish of Caldwell, in this State; in the parish of Catahoula; in Concordia; in Tensas; ¿apd again in Catahoula.

It would be impossible to refuse credit to the answers of the defendant, on the declarations of those witnesses. Supposing full effect be given to that of the last, it is but the testimony of one witness; that of the former, Dyson, we consider discredited even by the witness who has been offered in support of his character. There is no written proof against the answers: nor are there any strong circumstantial facts which corroborated the declarations of these witnesses. We think the circumstances tend to show a stat.e of things which the plaintiff has no interest in establishing, and which he has been at some pains to repudiate — which neither party attempts to explain, or on which the courtis asked to act. The evidence on this subject is not such as would authorize the court to notice it, but it is sufficient to prevent any favorable inference for the benefit of either of the parties litigant.

There is the testimony of a witness for the defendant who relates a conversation he had with the plaintiff, in which the pripp of the lands was acknowledged by him to have been .$2 $0 ap acre as related in the defendant’s answers.

The value of the land at ¡the time of the sale in 1840, would have been a strong circumstance in favor of the price of the land having been that claimed by the plaintiff, to wit, $15,000; but the very peeuljar relations between the parties at the time lead us to the conclusion, that the real value of the land was not the test of the price agreed upon ; and therefore, we are bound to take that disclosed in the answers of the defendant, as ye have no other guide.

The material evidence as to the points determined, is all taken under commission by deposition. The witnesses were not examined before the district judge before whom the cause was tried without the intervention of the jury. As the case was on paper before the district court, we'feel less reluctance in changing the judgment, which the result of our examination of the case compels us to do.

There can be no rescission of the sale, for there has been no default established on behalf of the defendant, and the plaintiff can only recover the price of the land with interest.

The judgment of the district court is therefore reversed; and it is ordered, adjudged and decreed, that the plaintiff recover from the defendant the sum of four thousand one hundred and twenty dollars and seventeen cents, with interest thereon a.t the rate of five per cent per annum, from the 5th day of August, 1844, until paid, wjth tb? ppsts jn fhe court below; those of this court to be paid by plaintiff.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Same Case-On a Re-hearing.
   judgment of the court, on a re-hearing, was pronounced by

Rost, J.

It is ordered, adjudged and decreed, that the re-hearing prayed for in this case be refused; and the judgment rendered by this court on the 16th April, 1850, amended by the addition of the sum of fifty dollars to the amount thereof, with interest as therein stated.


author: Eustis, C. J.

text:
    Heirs of Bastable v. Thomas Curry et al.
    The 30th section of the insolvent law of 1808 requires that the syndic must present a petition for an order of sale before selling the insolvent’s property; but tvhere the sale has been made, the non-exhibition of an order of sale does not invalidate the purchaser’s title.
    Where a person having a mere equitable claim to lands permits another to sue the United States for them, and recover judgment, and the lands are sold under an execution against the person having thus acquired a judgment, the original claimant is estopped from reco’ vering the lands from the bona Ji.de purchaser at the sale.
    Where one sells any right, title, or interest he may have in a claim of certain lands against the United States, without any warranty against third persons, the claim not being recognized by the United States, there is no law requiring the registration of such a conveyance in the office of register of conveyances in the parish where the land is situated. The land office of the United States for the district is the office in which such a claim should be filed or registered.
    Judicial proceedings carry with them notice, and an assignment iriade in court to the syndic has the same effect as if recorded in the parish where the land is situated; there being no law requiring such assignments tobe recorded.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      T. G. Morgan, for plaintiff,
    in reply to argument of defendants’ counsel contended : 1. The first point made by the plaintiffs is,- the voluntary surrender by Bringier of the order of court thereon, and the assignment by him made vested the title to the property in the creditors. 5 M. R. 648. 2d. The surrender so made, being a judicial proceeding, was notice to the world. 4 M. R. 451. 7 M. R. 409. 9 M. R. 325. 3 Átk. 343. 2 P. Williams 282. But it is argued by defendants that the authorities cited by plaintiffs only go to show that insolvent proceedings are judicial proceedings; but there is not to be found an intimation that the whole world is bound by all judicial proceedings, in every case. Again they say, that, in truth the cessio bonorum is nothing more than a contract between the debtor and his creditors, although generally conducted according to certain formalities, under the sanction of a court, of justice.
    To test the correctness of this latter position, we will refer more particularly to the authorities cited in our original brief.
    In the case of Dupau's Syndics v. Brideaux, 4 M. R. 451, the court holds the following language: “We incline to think that the acts of creditors convened by a court of justice are part of the judicial proceedings, the whole course of which forms what is known to the Spanish laws by the name of juicio de concurso,” &e.

      Davenport v. Segher's Syndics, 7 M. R. 409 : “The proceedings of the meeting of the creditors of an insolvent are judicial proceedings. They are ordered by the court, and constitute a part of the proceedings in the suit instituted by the debtor against his creditors, and are the basis on which rests the judgment which terminates it. They, therefore, are a part of those written proceedings which are required to be promulgated, preserved and conducted in the language in which the Constitution of the United States is written.”
    The same rule was recognized in the case of Viale’s Syndics v. Gardenier et al., 9 M. R. 324, and Maxent v. Maxent et al., 1 L. R. 438. In the latter case separate and elaborate opinions were delivered, but ail concurred in recognizing the soundness of the rule laid down in the case of Durnford v. Segher's Syndics. Resting, then, on these repeated decisions, We submit that we were correct in saying that the surrender is a judicial proceeding. Was this judicial proceeding notice to the world ? Mackelday states the rule thus : “By means of the lilis contestatio the suit came to be pending lis pendens ; and to this very important consequences were attached, of which, especially, the following are retained in the modern Roman law: Every kind of preemption becomes thereby interrupted: the limitation of actions as well as the usucaptio on the part of the defendant. The object of the suit becomes thereby a res litigiosa, so that the plaintiff is no longer enlitled to transfer hisclaim to another, nor is the defendant either to alienate or make a change in the thing for the recovery of which the action is brought against him.” “From the time the suit is contested, every possessor, though he may have been previously a bona fide tenant, is treated as a possessor malee fide, with respect to the omnis causa which is to be vested together with the thing.” Mackelday, p. 204, 205. 206, sec. 203, English translation.
    Every man is presumed to be attentive to what passes in the courts of justice of the State or sovreignty where he resides. And, therefore, a purchase made of property actually in litigation, pendente lite, for a valuable consideration, and without any express or implied notice, in point of fact, affects the purchaser in the same manner as if he had such notice; and he will accordingly be bound by the judgment or decree in the suit. 1 Story on Equity, sec. 405, cites Com. Dig. Chancery, 463, 464; 2 Fonbl. Eq., b. 2, ch. 6, sec. 3 note (n.;) Sorrell v. Carpenter, 2 P. Will. 482; Worsley v. Earl of Scarborough, 3 Atk. 392; Bishop of Winchester v. Paine, 11 Yes. 194; Garth v. Ward, 2 Atk. 175; Mead v. Lord Orrery, 3 Atk. 242; Gaslceld v. Burdin, 2 B. & Beatt 169; Moore v. Macnamara, 2 B. & Beatt 186 ; Murray v. Ballou, 1 John. Ch. Rep. 566.
    It is a general rule, that lis pendent is a general notice of an equity to all the world. Bouv’s Law Die., verbo lis pendens, cites : 3 Atk. 343 ; 2 P. Will. 282; Amb. 676; 1 Ver. 286; 2 Fonbl. Eq. 152, (note;) 1 Sup. to Ves. Jr., 284; 3 Rawle’s Rep. 14; Pow. Mort., ind. h — t.
    These authorities, we .submit, sustain the position originally assumed: that the cessio bonorum is essentially a judicial proceeding, and as such notice to the world.
    But the learned counsel of defendants seems to intimate that the doctrine of lis pendente only has effect pendente lile. The numerous authorities to which we have referred do not sustain such doctrine. Indeed, it would seem to be a contradiction in effect, if not in terms, to say, that while all the world is px-esumed to know that a suit is pending, and that all are bound to know the object of such suit, that the moment judgment is rendered it' ceases to have effect; and this more especially when the codes and statutes of this State may be searched in vain for rule directing the proceedings and judgments of the courts of this State to be recorded elsewhere than on the records of the court, except in the solitary case where the party desires his judgment to have the effect of a mortgage. The Code of Practice, art. 163, provides, that ixx actions of revendication, &c., the defendant may be cited either within the jurisdiction where the property revendicated is situated, though he has his domicil out of that jurisdiction, or in that where the defendant has his domicil, as the plaintiff chooses.
    Suit for land may be brought at the domicil of the possessor, although the land' be situated in a different pax-ish. Blanchard v. Ternant, 4 N. S. 188. The registry laws do not require the judgment of eviction to be recorded in the parish where the land is situated.
    But suppose the rule to be as stated ; then the question would arise, where is a suit for surrender terminated 1 We submit, that it is commenced by the petition of the insolvent pi-aying to be permitted to make a cessio bonorum; and tex'minates only when Bind judgment has been pronounced on the tableau of distribution. If this be true, as we confidently affirm it to be, then the suit of Louis Bringier v. His Creditors is now pending, and undecided. No tableau of distribution has been filed; no final judgment rendered.
    3¿. The title of Bringier to the property by him surrendered being vested in his creditors, he could make no valid sale thereof. The sale of a thing belonging to another is void. L. C. 2427. Poth. Contract of Sale, No. 526. 11 L. R. 345. 3 M. R. 385. Nemo plus juris ad alium transferre potest quamipse haberent. D. 50, 17, 54.
    We trust we have cleax-Iy shown the divestiture of the title of Bringier, by his surrender and assignment to the sheriff in trust for his creditors; and that the title of Bringier, such as it was, vested in Lambert Bastable and Brothers, by the sale made by the assignee; and, consequently, that the subsequent sale by Bringier to Garland and Curry vested no title whatever in them. Under what title, then, does Stacy, the vendee of Garland, and Curry hold the remaining two-thirds of the land ? We say they have none other than the sale under which we claim, and the compromise between them and the heirs of' Mooney, they, the heirs of Mooney, having acquired the title of Brothers and Lambert; and holding under this title, they cannot be permitted to attack it.

      But, say the learned counsel, they in making this compromise only bought their peace. We admit that when a party holding under a title defective in form, enters into a compromise with an adverse claimant, or where he seeks bona fide to get rid of a vexatious litigation, such transaction will not prejudice his rights. But such is not the present case. The pretended sale from Bringier to Garland and Curry is not defective in form. Neither is it defective in substance, had Bringier been at the time the owner of the thing sold, and had there been no surrender made by him the title would have been conclusive against the world. It is, as we have seen, null and void, and conveyed no title whatever, and according to the authority cited from Mackelday the defendants are possessors malts fide. They were so as to all the purchasers ; they are now so as to the present plaintiff. And as their only shield is the title acquired by the compromise, they cannot be permitted at one moment to protect themselves with it, and the next treat it as a nullity.
    Inasmuch as his honor Judge Preston was not on the bench when this case was argued in December last, we consider it ne essary to call the attention of the court now to the following paragraph in the defendants’ brief. “The plaintiffs’ counsel, when he asserted in his brief that no part of the original record can be found, and we are obliged to depend upon an imperfect copy, appears to have forgotten what we assert actually took place at the trial below, to wit, that the original record was produced by the clerk, examined by the judge, and collated with the copy now in the transcript, which was found perfect and complete, and the statement of evidence shows that the record itself was produced, and not merely the transcript, or copy.”
    This statement was admitted by the learned counsel for defendants to be erroneous; the fact being as stated, “that no part of the original record can be found.”

      Stockton and Steele, for intervenors,
    contended: 1st. That the creditors of Bringier were bound to record the title which they acquired by his surrender, in like manner as any other conveyance or alienation must be recorded in order to affect third persons. 2d. That the ancestor of the plaintiffs never acquired any title from the creditors of L. Bringier, because Morgan, the sheriff, had no authority to sell. 3d. That, if any title was acquired by the ancestor of plaintiffs, it should have been duly recorded in Concordia, in order to have any effect against third persons.
    It is, perhaps, unnecessary to refer to the several registry laws; but it suffices to say, that they require all conveyances and alienations to be recorded, &c. Old Code, p. 294, art. 171. L. C. 2171. 2d section of act of 29th March, 1826, in B. & C. Dig. 945. Act of 26th March, 1813, B. & C. Dig. 596.
    Now, in the case of Smally’s surrender, 2d Ann. 228, the court says, that a voluntary surrender is an alienation. This case is very important on this point, as it establishes, that an alienation by surrender is not to be distinguished from an alienation by any other method. It may be asked, how can such an alienation be recorded ? We answer, that the petition of the ceding debtor to be allowed to surrender, &c., and the acceptance by the judge are the conveyance; and, if recorded, they would be notice of the transfer.
    The doctrine of lis pendens being notice to all the world, does not obtain in Louisiana.
    In England there are but four law courts for the whole kingdom, all of which hold their sessions in Westminter; and there it is easy to consult the docket; but in Louisiana there is an independent district court of original jurisdiction in each and eveiy parish; and consequently here a similar rule would be unreasonable.
    The farthest extent to which our courts have gone is, that, in cases of suits for the recovery of immovables, the pending of the suit is so far made notice, that any conveyance made by defendant after the commencement of suit will not be noticed, and the suit progresses as if it had not been made. This is only a necessary rule of practice, without which no suit, in such cases, could ever be successfully prosecuted. But even in England the doctrine of Us pendens being notice, is confined to the courts of law ; and in chancery, even a decree is notice only to the parties thereto. I Story’s Equity Jurisprudence, sec. 405.
    But even if lis pendens were notice, there could be no reason for its application in this case; because the surrender of Bringier to his creditors did not amount to lis pendens; there was no suit. There is no defendant in a voluntary surrender out of the property, but only as to the discharge of the debtor from imprisonment, which is a collateral issue ; and in case no appearance is made by the creditors, no issue can be formed by a judgment by default, they are not required to do any thing, in default of doing which, such judgment can be rendered against them.
    A plaintiff and a defendant are necessary to constitute a suit. Further, there must be an issue, in order to forma suit, and without one, either expressed or implied, there is no suit, no lis pendens. A thing is not litigious until there is a contestatio litis.

    The surrender is a mere mode of conveyance. The debtor is desirous of securing to all his creditors the benefit of all his property, and he takes the necessary steps to effect this object. In other States of the Union he may convey to trustees; but in Louisiana he must convey to all his creditors, which is done by petition to a competent court to be allowed to surrender, and the acceptance of the surrender by the judge.
    Again, in the present case there was a direct assignment eo nomine ; and only in consideration of this direct and express conveyance or assignment by Bringier was he discharged from imprisonment by the court. This might have been easily recorded; and we humbly submit, that, in default.of such recording, it is of no avail as against third persons.
    The assignment made by Bringier is in these words : “I, P. L. Bringier, do hereby assign and transfer to the sheriff of the parish of New Orleans, in trust for the security of my creditors, the whole of my property as described in my schedule.” P. L. Bringier.”
    On the second point we will not make any remark, as it perhaps cannot be elucidated by reasoning.
    As to the third point we will simply refer to the case of Baramon and Lee, 3 R. R. 160, which was a case of a deed made by the sheriff, &c. "We think that case, and the act of 1813, in reference to recording sheriffs’ deeds, &c., fully cover the present controversy. Act of 26th March, 1813, B. & C. Dig. p. 596, sec. 1.
    We will here leave the plaintiff, and turn our attention to the defendant Stacy, whose pretensions to have succeeded to the interest of Rice Garland in said lands, we deem equally unfounded.
    The principal informality in the sheriff’s sale, on which we rely as an objection, and which we deem fatal to his title, is the want of any notice of seizure to the debtor, R. Garland.

    Though some argument was made at the bar in the district court, as to the burthen of proof in regard to the observance or non-observance of the formalities required bylaw in effecting the sale under which Stacy claims ; yet, in fact, no such question arises in this case; because the facts, as to the notice, are either established or insisted on by Stacy himself. He does not insist that Garland was served personally with the notice, but only by and through a service on Curry as his agent.
    In the first place, we do not deem that the service on Curry is established; but, if it were established, then we hold that, he never had any such power of attorney as was necessary to enable him to represent. Garland in any judicial proceeding whatever; and for this we rely on the case of Seymour v. Cooly, 9 L. R. 78, and Fuselier v. Robin, 4th Ann. 61.
    But we hold that, if Curry ever had any such authority, that is an authority to represent R. Garland in judicial proceedings, it was revoked by the power of attorney from R. Garland to Win. C. Plamner and Wm. H. Garland, dated 15th January, 1846, and accepted and acted on by said attorneys, to the knowledge of Curry, in June, 1846, as evidenced by the act of compromise between Curry and Garland, and the heirs of Mooney, at that date. C. C. 2999. This point is too plain for elucidation, and therefore we simply state it.
    It appears, then, that even if Curry was served with notice of seizure, he was not the authorized attorney of Garland to receive such notice ; and consequently, no notice of the seizure was ever given to Garland. A curator ad hoc to receive such notice should have been appointed, if he had no attorney in the State capable of receiving it.
    But he did have such an attorney in Hamner and Wm. p[. Garland, each of whom resided in New Orleans at the time, and who were known to Curry as his attorneys duly authorized for such a purpose. Enquiry of Curry would certainly have resulted in information of the fact. The notice should have been served on one or both of them. It is, then, fully established, that no notice of seizure was legally served on Rice Garland.

      The result of this defect, is, according to the uniform course of decision in this State from the commencement of its judicial history up to the present time, fatal to the pretensions set up by Stacy under the sale made by the sheriff of Concordia.
    All formalities required by law must be complied with in order to effect a forced alienation. 11 M. R. 610, 675. 7 N. S. 185. 8 N. S. 246. 2 L. R. 328. 3 L. R. 421. 4 L. R. 150, 207. 9 L. R. 123. 16 L. R. 556. 6 R. R. 74. 8 R. R. 152. 9 R. R. 69. 1st Ann. 297.
    Three day’s notice is required to be after seizure and before advertising, whether in case of fi. fa. or an order of seizure ; otherwise the sale is void and transfers no right in the property to the purchaser. C. P. 654, 655, 667. 6 L. R. 631. 11 R. R. 54.
    On Monday, the 19th February, 1849, this court, in the case of Dorsey v. Hills etal., decided that a petition setting up defects in a sheriff’s sale, should state all the defects relied on, and that no proof could be given at the trial as to any other l han the defects so set out and relied on in said petition. The court refers to Landry v. L’Eglise, 3 L. R. 219.
    We take it, then, that the doctrine of the courts in this State, as to the observance of formalities required by law, has not been changed or overruled; nor is it likely to be. We have particularized, in the petitions of intervention, the defects in the sheriff’s sale; and Stacy has proved their existence by endeavoring to show that they do not exist.
    The counsel of Stacy introduced in argument, in the district court, an authority from the Supreme Court of the United States going to show, that that court holds, the irregularities in sheriffs’ sales do not effect the purchaser, &c. We are well aware that such has ever been the uniform doctrine of that court up to the session of the court held in the winter of 1847, 1848, when, in the case of L. A. Collier v. Josiah Stansbrough, 6 Howard. U. S. S. R. 14, it was held, that the want of appraisement in a marshal’s sale, under execution issued from the Circuit Court of the United States for the District of Louisiana, was fatal to the purchaser. This we think, settles the question as to the effect of the informality, &c.

      H. A. Bullard, for defendants,
    contended : On the merits between the plaintiffs and the defendants, the case involves an inquiry, 1st, into the construction of the laws relating to the surrender of property for the benefit of creditors by insolvent debtors, particularly of the act of 1808, for the relief of debtors in actual custody; and, 2d, into the policy, construction, and application of the registry laws.
    I. The legal title to property assigned or suirendered under the insolvent act of 1808 and 1817, did not vest in the creditors. The best exposition of those laws (because it is a legislative one,) is found in the Louisiana Code. Article 2171 declares, that “ the surrender does not give the property to his creditors, it only gives them the right of selling it for their benefit, and receiving the income of it till sold.” 2178: “The creditors can never prescribe by any lapse of time, so as to gain a property in the estate ceded.” 2180: “All sales of property ceded to creditors, must be made at the same terms and under the same formalities that property seized on execution is sold, but the sale is made ííy the syndic, or some person authorized by them, at auction.”
    The act of 1826 introduced a new rule, but only in reference to a surrender made by a debtor not in actual custody, and it requires the judge to whom the insolvent’s petition is presented, to endorse upon the schedule, “ that the cession of all the property of the insolvent is accepted for the benefit of his creditors;” and the second section of the act declares that from and after such cession and acceptance, all the property shall be fully vested in the creditors. B. & C.’s Dig, 495.
    In the case of Bringier v. His Creditors, not only was the proceeding had with direct reference to the act of 1808, the debtor being actually imprisoned, but there never was any acceptance by the judge or the creditors ; and the only judgment rendered was, that the debtor, having assigned his property intrust for the benefit of his creditors, should be released from imprisonment. And here, so far as the record shows, all proceedings ended.
    The idea that the legal title vested in the sheriff as trustee, for the benefit of the creditors as cestui que trust, and that, as trustee, he had a right to sell and could confer a legal title, is repugnant to the provisions of the code above recited, which declares that the title is still in the ceding debtor.

      It is also inconsistent with all the acts of Morgan, who signs his deed as syndic, and never was anything more than syndic of the creditors, or their agent for the administration of the effects surrendered according to law. Now it is clear, that a syndic has no authority to aeUproprio moiu; he must have the consent of his constituents, .the creditors, and an order of court; and he must pursue the formalities required for the validity of a sheriff’s sale under execution. All this is wanting in the present case. The creditors never met; there is no evidence that they were ever notified to meet at any time ; there is no order given by the court authorizing the sale.
    It is intimated in the plaintiff’s brief that such order is to be presumed, because it is recited in the syndic’s deed. This presumption might have some weight if it had not been shown by the production of the original record, as well as the minutes of the court, that there is no trace of any such application by the syndic or the creditors, or of any such order to sell; nor was any attempt made to show any mutilation of the record which exists in the same court which tried this case. The record, then, which is the highest evidence known to the law, contradicts the recital of the syndic in his deed. But it is not even pretended, that there was any appraisement of the property, which is, certainly, one of the formalities required by law for a valid sale by the sheriff under execution. We confidently ask the court, then, whether, in the absence of any consent on the part of the creditors, in the absence of any judicial authority, and without any appraisement, a loose, irregular, unauthorized sale by the syndic at auction can be regarded as having vested in the pux-chasers the legal title to the property-in contx-oversy, as against Bringier, or those who hold under him. He had, surely, such an interest as authorized him to require that his creditors, in the disposition of the property ceded, should act according to law, for the common benefit of the debtor and his creditors. He had, especially, a 1'ight to require that all the formalities of law should bo complied with. But not only all these formalities were neglected, and the land sold for a little over $100, but the pui-chasers never exercised any acts of ownership under their purchase, never took possession, or recorded the title deed, until December 21st, 1846, after the confirmation of the title by the District Court of the United States, at the suit of Curry and Garland, and neai-ly five years after the registry of the sale from Bringier to them.
    The case cited by the plaintiff’s counsel from the 1 R. R. 384, sustains many of the positions which we have assumed. The court said, that the insolvent who has surrendered his property to his creditors, is interested that the estate should be legally disposed of, though it is added that this is not a real interest in any part of the property coded, and that the debtor cannot interfere after the px-oceedings in insolvency are closed. It may be remarked, that in that case, the surrender was made and accepted under the act of 1826; and that all proceedings had been closed by a tableau of distribution, and that an attempt was made to defeat a title acquired under those px-oceedings. But in Bringier’s case, the assignment took place under a different law, never was accepted by the judge, or assented to by the creditors, and that the px-oceedings are not yet closed. No account even of the pittance received from the purchasers of the land has ever been received, much less a tableau of distribution.
    The judge of the district court has fallen into a strange error. He assex-ts that Bringier was released from all his debts. The record contradicts this in express terms. The order or decree rendered was merely that he be discharged from imprisonment, and no other order could be rendered except upon the express consent of two thirds of the creditors, in number and amount. The record shows that none of the creditors appeared, and although it appears that' an order was given to notify them to attend, there is not the slightest evidence that any such notifications were ever given, and though the statute requires notifications to be published in two newspapei-s in French and Fngligh. The court is asked to presume the notice to the creditors; to presume their assent to the assignment; to presume that the court authoi-ized the sale by the syndic ; to px-esume that public notice was given by him of such a sale. The wliole title of the plaintiff rests upon those presumptions, most of which, if not all, are cleax-ly conti-adicted by the record. The plaintiff’s counsel, when he asserted in his brief that no part of the original record can be found, and we ax-e obliged to depend upon an imperfect copy, appears to have fox-gotten what we assert actually took place at the trial below, to wit: that the original record was produced by the clerk, and examined by the judge, and collated with the copy now in the transcript, which was found perfect and complete, and the statement of evidence shows that the record itself was produced, and not merely tho transcript or copy. We refer the court to the following authorities, some of which will be found to bear upon this point of the case : 4 M. R/450.- 5 M. R. 618. 1 N. S. 95. 6 N. S. 182. 6 M. R. 560. 7 N. S. 180, 425, 442. 6 L. R. 9. 2 R. R. 201, 539.
    2. Upon the subject of the registry laws, it is, perhaps, enough to say, that this court has already pronounced its opinion in at least two cases, and that it is in perfect harmony with all the decisions rendered by your predecessors. The first case is that of Tulane et al. v. Levinson, 2d Ann. 787, in which the court held, that a sale of land, to have any effect against third personsj must be recorded in the office of the parish judge of the parish in which the land is situated, and that it is not sufficient to have recorded it in the office of the recorder of mortgages. It was further said, that under our registry laws, notice is not equivalent to registry. Here was a sale by the true owner, by authentic act, recorded in the parish, but not in the proper office, which the court held, conferred no rights on the purchaser.
    The second case is, that of Tear el al. v. Williams et al., in the same volume, p. 868, 869. The same doctrine is adhered to, and reference is made to the case of Carraby v. JDesmare, 7 M. R., N. S., 662. In the case now before the court, the primitive title of Bringier is admitted ; indeed, both parties claim under him. He was the grantee, deriving his title from the sovereign, and consequently there was no necessity for its being registered. See Tear et al. v. Williams et al., ante. He was known to be the grantee of the Spanish Government, although his title had not been fully recognized by the United States. He sells to Curry and Garland, in 1841, who-immediately record then-deed in the proper office, and go into possession, Five or six years afterwards, the plaintiffs recorded a deed purporting to be a sale by the syndic of Bringier’s creditors. Now, if Bringier himself had sold to the plaintiffs, and they had kept the act in their pockets, never recorded it, never taken possession, nor exercised any act of ownership,- and he had afterwards sold to the defendants, by an act duly recorded, the last purchaser, under our registry laws, would hold the land.
    We are aware of only one exception-to this rule, and that is in cases of fraud and collusion; and we understand the cases of Splane v. Micheltree, and Gill v. Gill, turned upon those principles. Good faith is to be supposed to exist, unless the contrary is shown; and where the second purchaser or mortgage is in good faith, a previous sale or mortgage by his vendor, not registered, can- have no effect against him, either as conferring title or possession. And, so far has this court carried the' doctrine, that even when the attorney of the' party, who had transacted the business, knew the existence of the previous sale, and that it had been'registered in the wrong office, in the same village, the second sale was held to convey the title. See Tulane’s case, ante.
    The' act of 1813 requires even the sales made by sheriffs and other officers, to be recorded in the office of the parish judge of the parish in which- the land is situated, and it declares,- that all sureties, contracts, sales, judgments, sentences, or decrees aforesaid, and all liens of any nature whatever, having the effect of a legal mortgage, which shall not be recorded, agreeably to the provisions of this-act, shall be utterly nulí and void to all- intents and purposes, except between the parties thereto.
    The Supreme Court applied the stringent provisions of this act in numerous cases,- even where the first sale was made by judicial authority, but the sheriff’s deed had not been registered, so as to effeet the rights of third persons subsequently acquired. In the ease, among others, of Perron v. Maillan, 11 L. R. 489, the defendant was in possession under a purchase from the original proprietor, who sold long after the' date of the sheriff’s deed, and it appeared that the sheriff’s deed had never been recorded in the parish where the land is situated, and it was not shown that the purchaser had any knowledge of the sheriff’s sale, and the court affirmed the judgment below, by which the second sale was held- to convey the best title.
    The same decision was made in the case of Murphy v. Jundot, 2 R. R. 378, in which Mrs. Clark, the first owner, mortgaged the lot after the sheriff’s sale, but the deed had not been registered. In both these cases, there had been judicial proceedings, a judgment and fieri facias executed, but these persons were left ignorant of any divestiture of title by neglecting to record the sheriff’s deed of sale. The provision of the Code of Practice, requiring sheriff’s deeds to be recorded in the clerk’s office, was intended to make them authentic, and admissible in evidence, without proof, but did not change the provisions of the act of 1813. 3 R. R. 160. See further on this point, William, v. Hagan, 2 L. R. 122. 4 L. R. 241. 15 L. R. 269. 7 M. R., N. S., 661.
    But the learned counsel for the plaintiffs contends, that his clients acquired their title in virtue of judicial proceedings, and such proceedings are notice to the whole world. The proposition to that extent cannot be true. The doctrine of the lis pendens is much more restricted, and has no application to this case. It is true, that Bringier was arrested by one of his creditors, on the mesne process, and offered to make a cessio bonorum ; and on his voluntarily executing an assignment for the use of his creditors, he was discharged from the custody of the sheriff. The doctrine of the lis pendens, we understand to be this, that when a contest arises before a court of justice, relative to the title to property, no sale or other disposition of it, pendente lite, can oust the jurisdiction, and that the judgment finally rendered, will be conclusive upon the parties and all persons thus acquiring a pretended title. We are not aware that it has ever been contended, that every body is bound to know all proceedings had in a court of justice, where contracts entered into, under such proceedings, much less the sale of property by sheriffs, trustees or syndics, made in virtue of a judgment of the court, but by virtue of an authority derived from the consent of one of the parties. The history of this doctrine is well known. Originally, in the earlier period of the law, things in controversy, about which there existed a litis contestatio, were regarded as res litigiosae, and were incapable of alienation. They were, pending the controversy, considered as extra commercium ; all pretended alienations were, therefore, regarded asradically null. Insensibly, the principle came to be what it is considered at this day, as we shall endeavor to show by authorities, to wit: that, notwithstanding such alienations, pendente lite, the judgment finally pronounced should conclude both parties and privies thus seeking to acquire rights. See Fr. 3 D., de litigiosis, 44, 46. 4 Gains, 117. 1 Maynze éléments de droit Romain, 328. Makeldey, Institutes de droit Roman, 117 French Trans. The authorities cited by the counsel from Martin’s Reports, only go to show, that insolvent proceedings are- judicial proceedings, but there is not to be found an intimation that the whole world is bound by all judicial proceedings in every case.
    This doctrine is fully developed by Judge Story, in his Treatise on Equity Jurisprudence, vol. 1, 406. After speaking of tire registration of deeds as constructive notice, he says, “ It is upon similar grounds, that every man is presumed to be attentive to what passes in the court of justice of the State, or sovereignty, where he resides; and, therefore, a purchase made of property actually in litigation, pendente lite, for a valuable consideration, and without any express or implied notice, in point of fact, effects the purchaser in the same manne.r, as if he had such notice; and he will be accordingly bound by the judgment or decree in the suit. Ordinarily, it is true that the decree of a court binds only the parties and their privies in representation or estate. But he who purchases during the pendency of a suit, is held bound by the decree that may be made against the persons from whom he derives title. The litigating parties are exempted from taking any notice of the title so acquired, and such purchasers need not be made a party to the suit. '* * *' It is a rule founded upon a great public policy; for otherwise alienations made during a suit might defeat its whole purposes, and there would be no end to litigation ; and here ax-ises the maxim : pendente lite, nihil innoveiur, the effect of which is not to annul the conveyance, but only to renden- it subservient to the rights of the parties in the litigation.” The-author adds still another modification of the rule, to wit,, that “ a Us pendens, being only a genex-al notice of an equity to all the world* it does not effect any particular person with a fraud, unless such person had also special notice of the title in dispute in the suit.”
    But, in truth, the cessio bonorum is nothing more than a contx-act between the debtor and his creditors, although generally conducted, according to certain formalities under the sanction of a court of justice. This, is more especially the case in voluntary suri-endex-s. It is treated of in the code, under the liead of conventional obligations. The court, under whose eye the px-oceedings are conducted, so far from pronouncing upon the title to property, mex-ely ordex-s the discharge of the debtor from arrest, on his executing a voluntary assignment of his estate for the benefit of his creditors. That assignment is in itself a contract, and in this particular case does not appear ever to have been accepted or assented to. For ought that appears, the mass of creditors were us ignorant of what was done as Carry or Garland nearly twenty years after-wards.
    The judge of the district court more than intimates, that the filing of the sheriff’s deed, together with a copy of Trudeau's survey, in the land office at Ouachita, was a sufficient .constructive notice to the defendants of the purchase made by the plaintiffs’ ancestor and his associates. But, it is obvious, that the law has not made such filing equivalent to notice, and that the land officers at Ouachita, having no authority to confirm the grant, the only object was to give them notice of the claim, in order that the land embraced within the limits of the grants should be reserved from public sale. No one goes to the public land office to ascertain who is the owner of particular tracts of land, but only to learn what land is vacant, and subject to entry or sale. It is further intimated, that Curry and Garland did not purchase land, but merely a claim which is only an incorporeal right, and that on this ground, also, registry was not required. But, it cannot be doubted that land was sold; the only doubt was about the title. It is true, the title was inchoate, but that does not prove that the thing substantially sold was what land remained not disposed of by the Government, and the right to enter the same quantity previously disposed of in any land’ district in the State, as shown in the case of Stacey v. Hamner.

    It is upon this principle we contend, that if the plaintiffs are entitled to recover at all, in the opinion of this court, they must take only one-third of the land, the title to which was already confirmed, together with one-third of the scrip for six thousand and thirty American-acres precisely, as would have been adjudged to 'them if they had been parties in the suit of Curry and Garland v. The United States. They remained silent until that suit had been carried to a successful termination; and, if they are to participate in the result, they ought to pay their share of the expenses incurred for the common benefit of all parties, and not take one-third of the land with a most advantageous location, and throw upon our hands the right to make up the deficiency out of the refuse lands belonging to tire domain. It is, however, agreed, that as to our equitable claim for contribution towards expenses, taxes paid, &c., the matter is to be left open for future adjustment. The land to which the title was actually confirmed, was about thirty-two thousand arpents, instead of forty thousand, called for by the grant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal from a judgment of the-court of the Fifth District of New Orleans, by which the plaintiffs recovered from the defendants one undivided third of certain lands situate in the parish of Concordia. The judgment also dismissed the petitions of intervention of John McDonogh and of George T. Williams 8f Co.., creditors of Rice Garland, one of the defendants. The appeal is taken by the defendants and the parties intervening, and the case has been argued by the counsel of each.

The petitioners, daughters and heirs of Jonah Bastable, deceased, claim of the defendants the undivided third of a tract of land situate at the confluence of the Ouachita and Black rivers, in the parish of Concordia, said tract containing forty thousand superficial arpents.'

The title set up by the plaintiffs is a deed made by the sheriff of the parish of Orleans on the 25th June, 1828, which recites that at a public sale, after legal advertisements, made by said sheriff -on the 10th May of the same year, under an order of the District .Court of the First Judicial District of the State of Louisiana, in the ease of Louis Bringier v. His Creditors, the property therein described was adjudicated to Isaac Lambert, Jonah Bastable, and William Brothers. The description of this property in said deed is as follows : “A claim for forty thousand arpents of land in Ouachita, situated at the confluence of Ouachita and Black rivers, granted to the said Bringier through his father, by the Baron de Carondelet in 1796; the original titles certified by Gurley, Register of the Land Office, were given to T. B. Robertson, Esq. whilst our representative in Washington City, in the year 1815. It is probable that a duplicate drawn out of the office of the late Mr. Bouchou, Surveyor General of this State, about the year 1820, and forwarded to the western land office, has been there recorded ; however, Mr. Bouchou kept a copy, which is in the records under the charge of the surveyor general.”

This sheriff’s deed was recorded on the 27th June, 1827, in the clerk’s office of the First Judicial District Court. It was also registered in the office of alienations in the parish of Orleans, about the same time. It was a third time registered in the land office at Munroe, (being the United States land district in which the land was situated) at a time which is not shown by the evidence, but which must have been about the 8th February, 1837', because the said registry was mad;e under the actpf Congress i‘ for the final adjustment of claims to lands in the State of Louisiana,” approved the 8th February, 1,835; by which act the limitation for recording evidence in support of claims was two years, counting from the passage of said act. Finally, the sheriff’s deed in question appears to have been recprded a fourth time, in the office of the recorder of the parish of Concordia, on the 21st December, 1846.

The title of defendants is a notarial act of sale from Louis Bringier to Thomas Curry and Rice Garland, passed at New Orleans before Seghers, notary, on the 13th April, 1841. The description of the property in the conveyance is as follows: “All the right, title, interest, and claim, that he (the vendor) may have in and to a certain tract or parcel of land situate in the county of Concordia, on the east bank of .the Rio Negro, commonly called Black river, commencing at the mouth of the bayou Tensas, having such front on said Black river, running back on the lower line east fourteen hundred perches or poles, on the back line running north two thousand eight hundred perches or poles, and on the upper-line three hundred and eighty perxlres or poles on the bayou Tensas, thence to the mouth of said bayou, as will give the superficial quantity of forty thousand arpents, according to a plan of survey made by Don Carlos Trudeau, formerly Surveyor General of the Province of Louisiana, on the ,4th September, 1796, in obedience to an order of survey given by the Baron Carondelet, formerly Governor of the Province of Louisiana, the original plan of survey has been delivered by said Louis Bringier to the purchasers, who acknowledge the receipt thereof.”

This act of sale from Bringier to Curry and Garland appears -to have been recorded in the notarial records of the parish judge of Concordia parish, on the 11th May, 1841. The interest of Rice Garland in the property thus purchased was divested by a sheriff’s sale, under a writ oí fieri facias issued upon a judgment obtained by the Bank of Louisiana against said Garland. This sheriff’s sale took place on the 5th December, 1846, and the defendant Stacy, being the highest bidder, the -interest of Garland in the Bringier claim was adjudicated to him.

It is thus seen that the plaintiffs and defendants both hold under Bringer, and the controversy is, in which of these parties the right of Bringier is vested. The Bringier claim having been affirmed by -the United States Court for this district, by judgment rendered at the suit of Garland and Curry v. The United States, which judgment -is now final, the party in whom the right of Bringier is must recover the property. Of the three parties, purchasers at the sheriff’s sale of the 10th May, 1828, two intervened in the suit in the United States Circuit Gourt, and the two undivided thirds of Lambert and Brothers, in the said purphase at sheriff’s sale, became vested in the defendants by compromise.

The evidence shows that Louis Bringier, the original claimant of this large tract of land, filed his petition for the benefit of the act for (he relief of insolvent debtors in actual custody, in tho District Court of the First Judicial District of the State of Louisiana, on the 3d November, 1827. Annexed to his petition was a schedule, containing a statement of his debts and also of his property, as required by the act of 1808. One of the items of property on Bringier's schedule (the fourth) is that now in controversy; which is described in said schedule in the identical words of the description in the sheriff’s deed to the ancestor of plaintiffs, which have been copied.

Upon the filing of this petition and schedule, an order of court was made for notice to Bringier’s creditors to appear in open court on the 26th November, 1827, to show cause, if any they had, why the petitioner should not be discharged according to the prayer of his petition.

On the 26th November, 1827, the day fixed by the said order, the record shows that Bringier appeared in court, and having made an assignment of all his property to the sheriff of the parish of Orleans, in trust for the use of his creditors, and having taken the oath prescribed by law, and no opposition having been made to his discharge, judgment was rendered discharging him from imprisonment.

The record also contains the assignment, signed by Bringier, which is in the following words: “I, P. L. Bringier, do hereby assign and transfer to the sheriff of the parish of Orleans, in trust for the security of my creditors, the whole of my property as contained in my schedule.”

We have seen that the sheriff sold on the 10th May, 1828, the property in question. The deed slates that it was made on an order of court, given in the case of Bringier v. His Creditors. The record of the casé of Bringier v. His Creditors does not exhibit any special order of court for the sale of the property, but it is, perhaps, to be presumed there was such an order. Nothing, indeed, in the act of 1808 requires a special authorization of court to the assignee of the insolvent debtor, for the sale of the property assigned to him in trust for the creditors. In this respect, this law differs from the law of 1817, regulating the proceedings in a cessio honorum. By the 30th section of that law, the syndic must present his petition for the sale of the property surrendered. We are of opinion, that the non-exhibition of an order of sale does not invalidate the plaintiffs’ title.

The statement of the titles under which the plaintiffs and defendants respectively claim, we have taken from the able and well prepared opinion of the learned Judge of the Fifth District Court of New Orleans, in the leading doctrines of which, we fully concur.

Although the two defendants claim under the insolvent Bringier, yet Stacy does not hold directly from him. He purchased the interest of Garland at sheriff’s sale under a judgment against Garland in favor of the Bank of Louisiana. This sale was made on the 5th of December, 1846. The claim of Curry and Garland to the land had then been confirmed by the court of the United States. The title of Garland was then a judgment, and the land thus held by Garland in his name was purchased by Stacy and paid for by him to the seizing creditor. It is obvious, that his position in relation to the plaintiffs is materially different from that of the other defendant who claims under a sale from the insolvent previous to the confirmation of the Bringier claim. According to numerous decisions of this court, the plaintiffs’ rights being strictly equitable, and having permitted Garland to take and hold one-half the property in his own name, those rights cannot be enforced to the detriment of bond fide judgment creditors of Garland, or purchasers for a valuable consideration, without notice. The respective rights, therefore, of the two defendants, depend upon different principles.

Curry, as we have seen, claims under a recorded authentic act from Bringier, and Bringier had previously ceded his interest in the lands to his syndic for the benefit of his creditors. The assignment which he made in open court was not recorded, nor was the sheriff’s deed to the plaintiffs’ ancestor in the parish of Concordia, where the lands are situated. The principal argument of the defence has been directed to the effect of this non-recording. It is said that it renders the sheriff’s deed without effect as to third persons. There does not appear to have been any notice on the part of the defendants of the title of the plaintiffs; there is no allegation or evidence to this effect.

The district judge was of opinion, that the sale by the syndic was not one of lands required to be recorded under the registry acts, but of a claim to lands under a title not confirmed by the government of the United States, and that a registry of the proofs of the claim and transfer in the land office of the district within which the lands were situated, was a sufficient recording to give effect to the sale to the ancestor of the plaintiffs.

The right which the insolvent ceded to his creditors, appears in his schedule as “my claim in 40,000 arpents of land in Ouachita,” situate, &e.

The sheriff’s deed describes it asa “claim for 40,000 arpents of land in Ouachita,” situate, &c., and purports to transfer to the purchaser the above described claim, and all the right, title and interest which the said insolvent or his creditors had on the 3d of April, 1828, or at any time since had in or to said land, or any part thereof, &c.

Curry and Garland on the 13th of April, 1841, from Bringier bought what? Let the act speak for itself: “Personally came and appeared Louis Bringier, residing in the city of New Orleans, who declared that for and in consideration of the sum of five thousand dollars to him in hand paid in ready money by the hereinafter named purchasers, the receipt whereof he does hereby acknowledge, he, the said Louis Bringier, does, by these presents, sell, bargain and convey, assign and make over forever unto Thomas Curry of New Orleans, and Rice C. Garland of Opelousas, both here present and accepting jointly each for one undivided half, all the right, title, interest and claim that he may have in and to a certain tract or parcel of land situate in the county of Concordia, on the east bank of the Rio Negro, commonly called Black river,” &c.

The act recites, that the original certified plan of survey has been delivered by said Bringier to the purchasers, who acknowledged the receipt thereof; that the sale is made without any warranty on the part of Bringier, except against himself, his heirs, and those claiming under him,- and that the purchasers knowing that said title has not been confirmed by the United States, they take upon themselves all the risk and expense of procuring the confirmation thereof.

This purchase from Bringier, fourteen years after his bankruptcy and after the sale of the same thing by his syndic to the plaintiffs’ ancestor, turns out to be a simple quit claim on the part of Bringier of the right and interest he may have in the object sold. Bringier does not undertake even to declare that he has any real interest in it. He knew he had ceded it to his creditors to be applied to the payment of his debts, and he knew it had been sold for that object. Hence the unusual, guarded and equivocal description, the use of the words “may have," and the exclusion of any warranty on his part, except against himself, his heirs and those claiming under him. Had he undertaken to have sold a subsisting right, his warranty and his word would stand falsified by his transfer to his creditors. He sells a mere contingency, and the whole affair was a speculation on the part of the purchasers on the chances of giving it such a direction as would ensure its success.

As this claim has resulted in a judgment of a court in favor of the title to the purchasers, it is not necessary that we should make any statement in relation to it, except that we concur with the district judge in the opinion, that it is not within the letter or purpose of the registry acts. It is not a claim by which lands are to be affected in the language of the statute.

If any right can be predicated of the claim, it falls under that class denominated incorporeal rights. No action could be maintained for the possession or ownership of the land under this claim, as it is in evidence before us; and we can consider it as having no force or value whatever, except as addressed to the bounty of the government of the United States.

We do not think, therefore, that the rights of the respective parties as they are presented before us by the evidence and arguments of counsel, rest upon the rules of the petitory action. The legal title, or indeed the only title, is in the defendants. The plaintiffs’ rights are strictly equitable; and the real question is, whether the judgment obtained, by which the title has been vested in the defendants adversely to the United States, inures to the benefit of the plaintiffs to the extent of their interest.

In order to complete the transfer to the ptochasers of the claim under the syndic’s sale, all that it was in their power to do was to record it in the land office of the district where the lands were situated. The transferree is only possessed of the thing transferred, if it be debt, right or claim, after notice has been given to the debtor. If there was any obligation attached to this claim, the United States owed it, and the land office was the proper office to notify of the transfer. We find that a copy of the plan of survey, as it is called, the original of which is said to have been delivered by Bringier on the sale to Curry and Garland in 1841, (which is the only evidence of any claim which has been before us,) was, together with a copy of the deed of the sheriff as syndic, filed in the land office at Monroe, under the act of Congress of February C, 1835, and a favorable report from the land officers solicited in behalf of the claim. We think these documents are to be taken as having been filed under that act, or with a view of taking that benefit of it, and consequently previous to its expiration, or within a short time after; at all events, previous to 1841.

The proper notice having been given of the transfer of the claim, it results that Bringier, when he made the quit claim to Curry and Garland, had no interest whatever in it. The defendants are presumed to have been cognizant of the proceedings in insolvency of Bringier and of the assignment made by him under it. The judicial proceedings carry with them notice ; and the assignment made in court to the syndic had the same effect as if recorded in the parish where the lands were situated, there being no law requiring such assignments' to be recorded. They were buying a land claim, and the land office was the’ proper place to look for the evidence of its ownership. They knew it had never been confirmed, and they knew that if it was not a fraud it must be registered among other claims for land according to the laws of the United States. The’ reserve with which Bringier invests his obligations in the act of sale, would create distrust in the mind of any bond fide purchaser. We think, with the district judge, that the defendants bought the claim cum. more, and must account to the plaintiffs for the share of their ancestor in it.

We soe no reason why the interventions should be sustained, and. think the district judge did not err in dismissing them.

The judgment of the court, so far as relates to Stacy, we think erroneous.

It is therefore ordered, adjudged and decreed, that the judgment of the court below, so far as the same relates to the defendant David S. Stacy be reversed, and that there be judgment in his favor for one-sixth part of the grant, and that he be forever quieted in his title to the same against the pretensions of the plaintiffs. It is further ordered and decreed, that as it relates to the defendant Thomas Curry, the judgment of the court below be affirmed; and that the plaintiffs recover one undivided sixth of said grant, subject to the reservations in the judgment of the court below, to wit, that the allowance of 3000 acres of said land, for the payment of counsel’s fees, be first deducted from the whole grant, and borne by the parties in proportion to their interest in the same. And it is further ordered, that as it relates to the defendant Curry, the case be remanded for further proceedings according to the agreement of the parties and the judgment of the district court; and that one-half of the costs of the court below and on this appeal, be paid by the defendant Curry, and one-half by the plaintiffs. And it is further ordered, that the judgment dismissing the intervenors be affirmed, with costs in both courts.


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    Thomas May v. Norbert Ransom.
    Where* under art. 656 O. C., in a matter of natural servitude it is not possible to do justice to both parties, recourse should be had to the police jury which under the act of 1813 has ample power.
    Irrelevant testimony should not be received in evidence.
    APPEAL from the District Court of St. John the Baptist, Randall, J.

      Gedge and M. Taylor, for plaintiff.

      Grailhe, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff alleges, that the defendant has, to his great damage and injury, constructed levees or dams upon his estate, and adjoining the lands of' the petitioner, whereby the natural flow of the waters is arrested, and they are made to overflow his lands. He prays that the defendant be compelled to remove those levees or dams, and to pay damages.

The answer contains a general denial, and further avers, that the land of the defendant is the superior estate, and owes no servitude to that of the plaintiff. That the natural flow of the waters along the line of the levee complained of is in a direction parallel with it. That the levees or dams complained of have existed lor more than fifteen years without any opposition from the plaintiff or his vendors, and that he has waived by his silence any rights he might have. That the said levees or dams were not constructed with the intention of arresting the natural flow of the waters on the plaintiff’s land, but for the purpose of counteracting the effect of two wide draining canals now existing on his estate, which accumulate the water in large bodies, raise it above its level, and force it with great rapidity through the defendant’s land. That those canals extend far beyond the cultivated lands of the plaintiff; that they change the natural course of the waters, and should hot be permitted to continue open. That the coulées, through which some of the water that falls on the plaintiff's land finds its way on the defendant’s estate, are the result of crevasses, and cannot be considered natural drains.

The case was tried before a jury, who found in favor of the defendant. The plaintiff has appealed from the judgment rendered upon this verdict.

On the trial of the cause, the defendant’s counsel propounded to Felix Garcia, and to other witnesses introduced by him, the following question: From your experience as a planter, and your knowledge of the localities, which do you cousider the best means of draining the land of the plaintiff and of his neighbors, and to empty the surface waters into bayou Pin? To which question the plaintiff’s counsel excepted, on the ground that it was wholly irrelevant to the issue. That the question to be decided was Whether the plaintiff’s plantation' drained naturally upon the plantation of the defendant from their relative situations, and not whether a system of artificial draining could be devised, which could carry off the water from the plantation of the plaintiff and his neighbors; arid that the tendency of all such testimony was to mislead the jury. But the court admitted the testimony; and the plaintiff took a bill of exceptions.

The defendant’s counsel also asked the witness £>urgi, who is a civil engineer, .whether he knew any portion of France which at all resembles the alluvial portion of Louisiana? which question was put for the purpose of showing that the text of the Louisiana Code, under which the action was brought, was inapplicable to lower Louisiana, because the corresponding text of the Code of France, from which our text was copied, was enacted for a countiy of which the surface and topography are different.

The plaintiff’s counsel objected to the introduction of this evidence, on the ground that the causes which influenced the legislators of France could have no influence upon or connection With a positive provision of our own law, which, it must be presumed, was enacted to meet our own necessities. That its applicability was to be tested by the local and relative positions of the places in relation to which it was invoked ; and that such testimony tended to distract the minds of the jury, and to divert them from the real issue.

The court permitted the question to be answered; and the plaintiff's counsel took another bill of exceptions.

We are of opinion, that the district judge erred and that the testimony objected to should not have been received. It was irrelevant to the issue, and well calculated to mislead the jury. The cause, must therefore be remanded.

The issue in this case is the same as in Martin v. Jett, 12 L. R. 501, and presents the same difficulty in applying the law, on which the plaintiff relies.

The alluvial soil of Louisiana cannot be profitably cultivated without frequent open drains, the necessary effect of which is to accumulate the waters which pi-eviously flowed naturally over the surface into those drains, and to render the servitude of inferior estates more burthensome, in violation of art. 656, C. C.

The owner of the inferior estate, on the other hand, has no means of protecting himself against that infringement upon his legal rights, without arresting the natural flow of the waters, and thus violating the first paragraph of the same article.

To obviate this difficulty, the Code of France provides that courts of justice are to decide in such a manner as will reconcile the respect due to property with the interests of agriculture. This discretion is not expressly given to us. But more ample and benefieient powers on this subject have been vested elsewhere by the Legislature.

The act of 1813, further defining the organization, authority and functions of police juries, provides that they shall b’e empowered to cause to be opened again such ancient natural drains as have been obstructed by the owner of the adjacent lands, and to prescribe the mode to be observed in that respect. That act also provided that when a point of land on the Mississippi shall be divided among several proprietors-, and it shall be found necessary to dig one or more common draining ditches, the police jury shall have power to ordain that the ditches be dug at the expense of the owners of the land, and that the expense be borne by a contribution among them, to be levied in such manner as the police juries may prescribe.

These powers are ample to meet the present case, and to remove all the difficulties which are shown to exist in relation to draining the point of Bonnet Carre.

We therefore earnestly recommend the parties to-this suit to avail themselves of the provisions of this law, and not to force us to make a decision which may be injurious to both. The police jury have the right to determine how lands situated as these are shall be drained, without regard to their relative position; and if any rational system of drainage be ordered by them, it shall be respected and enforced by us.

It is therefore ordered, that the judgment in this case' be reversed, and the case remanded for further proceedings according to law, with directions to the district judge not to admit the testimony excepted toby the plaintiff in the former trial. It is further ordered and decreed, that the defendant and appellee pay the costs of this appeal.


author: Preston, J.

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    Enoch Evart v. The Brig Lowndes et al.
    In an action against a vessel and owners for tl>e non-delivery of freight, the defendants may, nnder the general issue, introduce testimony to show that the identical goods claimed by the plaintiff' were shipped by another person, who took a bill of lading for them.
    APPEAL from the Second District Court of New Orleans. Canon, J.

      J. Q. Bradford, for plaintiff.

      Carter and Bradford, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff engaged and paid his passage on the brig Lowndes, from New Orleans to Cbagres, in the month of December, 1848,and alleges that he shipped on board the vessel a quantity of goods, to be delivered to his order at Chagres, of which he annexes bills to a supplemental petition. He alleged that the vesssei failed to sail at the time agreed upon, in consequence of which he was exposed to the cholera then prevailing as an epidemic in New Orleans; that he took the disease; was unable to go when the vessel actually sailed ; lost his passage and his goods; incurred expense and suffered damage : the-whole amounting to the sum of $544, for which he' brings suit.

The defendants'filed a general denial. The case was tried by a jury; a verdict and judgment were rendered for $218, and the defendants have appealed.

It appears by the testimony, that the vessel was prevented from commencing her voyage at the time advertised, and, perhaps, agreed upon, by a dense fog and the inability to procure a steamboat; and that the plaintiff was prevented by sickness from going as a passenger when she actually sailed. Each party was prevented by circumstances from carrying into effect his intentions.

The jury probably considered that the passage money, .or at least a portion of it, should be restored, and the defendants held accountable for the value of the goods shipped by the plaintiff and not restored to him. And we should think the verdict equitable under the circumstances, on the testimony before the jury. But the court excluded legal testimony which might have entirely changed the verdict as to the goods. The defendants offered to prove by Dunning and by the bill of lading, first proving it genuine, that the very goods, the value of which is claimed by the plaintiff, were shipped, not by the plaintiff, but by one Marsh. The testimony was rejected, on the ground that it was irrelevant to the issue made by a general denial. It was not irrelevant to the issue. The plaintiff alleged that he shipped the goods; the defendants denied it. Surely, it was relevant to this issue thus made, to show that the goods were not shipped by the plaintiff, but by Marsh. The plaintiff might show in opposition, by the shipping receipt, or otherwise, that he alone placed the goods on board the vessel for shipment, and insist before the jury that the master had no authority to give bills of lading to Marsh, or deliver the goods at Chagres, except to his own order.

The judgment of the district court is therefore reversed, and the case remanded for further proceedings according to law, with instructions to the court below to admit testimony to identify the goods purchased, and the value of which is claimed by the plaintiff, with those shipped by Marsh. And proof that they were actually shipped by Marsh, and not by the plaintiff. 'Jh.e A°.sts of this appeal to be paid by the appellee.


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    The State v. Jose Fuentes.
    The right of trial by a jury da mediatate linguce/ if it ever existed in Louisiana, was abolished by the statutes prescribing the qualifications of jurors, and the manner in which juries should be composed.
    No affront by words and gestures only is a sufficient provocation to excuse or estimate such acts of violence as manifestly endanger the life of another. In this respect the law makes no distinction between free white persons and free persons of color.
    APPEAL from the First District Court of New Orleans, McHenry, J.

      Isaac Johnson, Attorney General, for the-State.

      J. W. Frost, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The defendant being a foreigner, and subject of the Queen of Spain, asked for a trial by a jury de mediatate linguce, selected as provided by the common law of England. The privilege of a foreigner in England to demand a trial by a jury composed one-half of aliens, has generally been referred to the statute of 28th Edward III., chap. 13, sec. 2. But, as observed by the counsel of the accused, the statute was, no doubt, declaratory of the common law of England; and that the right was established by some of the conquerors of England, on account of the great numbers of foreigners, which the successful invasions by the Normans, or perhaps even the Danes and Norwegians, introduced into the country.

To show how little the privilege was favored at a later period, of the English history, when the statute of Edward was passed, it was regarded as a statutory right, and the trial by natives and denizens, the common law trial. And when, two hundred years afterwards, the statute of the 1st and 2d Phillip and Mary, chap. 10, required that trials for treason should be according to the common law, it was held to repeal the statute of Edward the Third, as to trials for treason. 2 Hale, P. C. 251. 2 Hawk. 420.

For the same reason, it may fairly be considered, that our statutes, directing specially how all juries shall be composed, and enumerating their qualifications, and especially that the lawful juror shall be a citizen of the State, have abolished the right to a jury, de mediatate lingua, if it ever existed in Louisiana. The right had fallen almost into disuse in England, before our revolution, and has hardly been claimed or allowed in any of the States of the Union, although the statute of Edward III. remained nominally in force, after the revolution. In Pennsylvania., the privilege has been allowed in but two instances. See the case of Respublica against Mesca and others, 1 Dallas, 73.

In New York, it yyas allowed in the single case of The People against McClean, 2 Johns. New York Rep. 381, and was there abolished by statute. 2 Revised Statute, 734. In the case of The Stale of North Carolina against Antonio, it was held, that the prisoner was not entitled to the privilege.

No such jury is allowed in Massachusetts. 7 Davis Abpdg. 331. And we do not find that the privilege has been allowed in any other State. A jury de mediatate lingua, has never been granted in Louisiana. Indeed, we have legislative provisions which supersede its necessity. The courts are bound to assign counsel to foreigners tried before them, whose services it would only embarrass ; our laws also provide for them interpreters ; and the supposition of prejudice against them in a jury drawn by lot, is entirely unfounded. We do not think that the introduction of the trial, per mediapaiem lingua, even if it could be legally done, would contribute at all to the advancement of justice; but, on the .contrary, that it would impede and embarrass its administration. It is also to be considered, that it is a privilege which a citizen of Louisiana could not reciprocally enjoy in Spain, or perhaps in any other country except in the British dominions. It would be a humiliating spectacle to see aliens forming a competent part of our tribunals, and administering our justice, while Louisianians, were not allowed the same right in their country. The application for a jury de mediatate lingua, was, therefore, properly refused.

The counsel of the prisoner requested the court to charge the jury, “ that the use of grossly insulting and indecent language by a free man of color to a white man, naturally must excite the passions of a white man, and if immediately succeeded by a mortal stab, it may well be imputed to the weakness and infirmity of human nature, and a jury may render a verdict of manslaughter if they so find the fact.” The court declined so to charge the jury, and we think properly.

It is one of the first and most familiar principles in trials for homicide “that no affront by words or gestures only is a sufficient provocation so as to excuse or extenuate such acts of violence, as manifestly endanger the life of another.” 4 Black Qom. 200.. The law lias made no distinction whether the affront proceeds from a white, or a free man of color. Indeed, as was well observed by the attorney general, since the law makes a distinction between white and free colored men, as to their condition, and punishes free persons of color, who, even by words, insult white persons, their situation imposes upon us, perhaps, a higher obligation to suppress our passions, and resort to the laws to punish their insolence, than in the case of white persons, against whose insolence and verbal outrage there is no redress by prosecution.

It is truly a painful duty to perform when the life of a fellow-creature is involved, but we are obliged to affirm the judgment of the district court, with costs.


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    The State v. Raymond Florez.
    In exercising the right of a peremptory challenge to a juror, the better practice is, for the State first to decide and to present the juror to the prisoner as a good and lawful juryman, The non-observance of this is not, however, a sufficient ground for a new trial.
    "Where public officers have published, as their own, writings in which interlineations occur, entire confidence is to be placed in such writings, until they are formally attacked supported by a proof of malfeasance.
    A name so badly spelled as to change the sound, may affect an indictment; but, where the foreman of the jury mis-spells the name of the prisoner in rendering the verdict, the name may be regarded as surplusage, and the verdict is not thereby vitiated.
    APPEAL from the First District Court of New Orleans. McHenry, J".

      Isaac Johnson, Attoi'ney General, for the State.

      R. Hunt, for defendant.
   The judgment of court was pronounced by

Preston, J.

The defendant, accused and convicted of murder, has appealed to this court. His counsel moved in the district court for a new trial, on four grounds, three of which are insisted upon in this court, his application for a new trial having been refused.

1st. The State was allowed peremptorily to challenge a juror after presenting him to the prisoner, and after he was accepted by the prisoner.

The right of the State to challenge six jurymen, without cause, in criminal cases, was first granted by an act of the Legislature, approved the 7th March, 1837. The act- did not declare whether the State should exercise this right before or after the prisoner had exercised his right of challenge ; and no practice under the statute has been established, nor is any principle involved in the question whether the State, or prisoner, shall first exercise the right of challenge. The cause assigned is not, therefore, a sufficient cause for granting a new trial.

As in the case of the State against Cummings, we will observe, that the better practice would be, for the State to exercise the right of challenge first; and present the juror to the prisoner as a good and lawful juryman. And if this practice become well established, a departure from it may be a good cause for granting a new trial; for when new principles are introduced into our criminal law by statute, it behooves all the courts to cany them into effect by a uniform practice.

2d. It is alleged, that the indictment has upon its face “alterations, interlineations and interpolations, made in a different hand-writing from the body of the indictment, and not expressly authorized, or noted in any manner by the grand jury. The grand juiy alone have power to amend, or authorize an amendment of their indictments.” It is no doubt proper and commendable in all officers of the State, to present the public documents emanating from them in a fair hand without erasures or interlineations. But iu this case we have no doubt, from the testimony, that the indictment appeal’s on record verbatim et literatim- as it was presented by the attorney general and found by the grand jury; and we would take this for granted without statement or proof, on behalf of the State, until the defendant should establish the contrai’y by irresistible proof.

The multiplicity of business imposed Upon the attorney general and district attorney in the first district, compels them to write with such haste as sometimes to require them to interline the- indictments they lay before the grand juries, and the informations they file in court; and they are not allowed clerks to copy those or other writings required in the performance of their duties. Even this court is often necessitated, by the accumulation of cases, to interline its opinions before delivered. In all such cases, entire confidence is to be placed in the sworn officers of the State, and in the writings they publish as their own, until a formal accusation is made of malfeasance in office, supported by proof.

It is lastly urged., that the verdict is not responsive to indictment. Raymond Florez was indicted and tried; it is said Raymond Florez is found guilty by the verdict. It does not clearly appear by inspection, whether the foreman of the jury intended Flory or Florez, in writing the name of the accused in the verdict. He was not a good scribe. It is impossible to say whether his own name was Welder or Wilder, from his signature in two places. A name so badly spelled as to change the sound may affect the indictment; but no authority has been furnished us to show that bad spelling vitiates a verdict.

The accused was tried by his true name, to which he had plead. A verdict of guilty was written on the back of the indictment. The law presumes that it was the person tried who was found guilty, and not a person not tried, or a fictitious person. The name in the verdict may be rejected as surplussage. It is no material part of the finding. The only tendency of inserting the name in the verdict erroneously spelled, is to uncertainty; but there is no such uncertainty in the record, as to the person indicted, who plead, was tried, and found guilty, as to afford any ground for a new trial.

The clerk, in entering the verdict at the time of its rendition, and before there was any controversy as to the spelling of the name, entered it on the record correctly spelled. He probably recorded it from the mouth of the foreman, who was, no doubt, according to correct practice, asked to look upon the prisoner, and to pronounce orally, whether the jury found the prisoner tried by them, and not another person, guilty, or not guilty, of the murder charged in the indictment.

It is usual, and was no doubt done in this important case, to read the verdict to the jury after it-is recorded, and ask them if it is their verdict; so that the verdict on record, correctly spelled, is really the verdict found by the jury.

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